plainant, after diligent effort, seems to have been unable to ascertain them. It is certainly not too much to say upon this record, and the evidence before the court, that the evidence on the part of Blodgett in respect to the payment of the consideration stated in the deed is unsatisfactory, and that such proof was vital in order 1lo uphold the deed, surrounded as it is in other respects with suspicion. This being so, it must he held that the burden of showing that the paper was of value, and that Blodgett was a bona fide purchaser, rests upon him. Such, in substance, is the doctrine announced by the supremo conrt of the United States in two cases at least. Clements v. Moore, 6 Wall. 299; Clifton v. Sheldon, 23 How. 481. The result is that there must be decree for complainant in accord· ance with the prayer of his bill, and it is so ordered.
(Circuit CoUrt, D. Nebraska.
BILL TO VACATE Jm>GMENT.:....cIJlMITATION.
A bill in chancery brought to vacate a judgment obtained in a court of law, and to order a new trial, takes the place of the ordinary petition fllr a new trial, 'provided for by .the Code of Civil Procedure of this state, and must be brought within one year from the rendition of the judgment sought to be vacated.
In Equity. Harwood, et Ames, for plaintiff. O. B. Hewett, for defendant. DUNDY, D. J. The complainant in this case filed his bill on the sixth day of February, 1882. ,The object of the suit and the prayer of the bill is to vacate a judgment heretofore rendered in this court, on the ground of newly-discovered evidence, so that the cause may he tried again npon its merits. An inspection of the record shows that on the. twentieth day of pecember, 1879, this plaintiff commenced an aetion at law against this defendant in this coort for the purpose of recovering on certain bonds claimed to have been issued by the defendant to a.id in building a school-house for the benefit of ,the 'district. The execution' of the bonds and all liability thet'eon was denied ,by the district. A jury was duly waived, and a trial was ther.ellpon had upon the merits. of the controversy. In the trial the issues were determined in f.ayor of the defendant, and the suit was
TICE V. SCHOOL.DISTRIOT
then dismissed at the costs of this complaina,nt· This trial was' had and the judgment rendered on .the ". ' day of November, 1880. In that trial the members oftha school board were all witnel?ses, and, it may be proper to say, were the principal witnesses. The, plaintiff relied upon their testimony, in a great measure, to sustain. his cause of action, rrhese witnesses were. the school board at the time the bonds beal' date, and are the same persons whose pear on the bonds as members of the schoolboard, and who, as the plaintiff claims, issued the bonds in behalf of the school-district. 'fhis complainant now claims to have been taken by surpri&}. to see how little, how very little; the said school board knew of the circum·, stances connected with the issuing of the bouds then in suit. ,Viewed. in the light of subsequent developments, this surprise seems to be' well founded, and if timely movement had been made in tQe right direction, the complainant would have been entitled sought in this action. The view that I take of this proceeding makes it unnecessary to diseuss the character of the new testimony whioh the complainant claim!"! to have discovered since the first trial, and which.he produce thereat. If .what is claimed by.complainant in that,regard be true, then, certainly, the newly-diacovere,d testimony would ,have been very material for the complainant when his cause was tried on its merits. , The Code of Civil Procedure of this stat(l has abolished the distinc- , tion between actions at law and, actions in chancery. But it is fair, to' presume, and T, therefore, assume, that under it all individual wrongs can be redressed, and all rights maintained, providing, it does, a complete remedy for all sorts of grievances, whether real. or imaginary. Where a cause has been tried; upon ,its merits, and a judgment has been rendered; the judgment so rendered may ,be reo viewed or modified or vacated"ll.nd a new trial had, under certain circumstances, and on such .terms as may seem to ,be Just. Where errors are committed during the progresaof a trial the injqred party has full opportunity to have the errors complained of corrected in the court where the er.rors may be committed'. ,If judgmentg08s against a party who may feel aggrieved, and he important, and material testimony that he knew not of, and could not cliscoyer by using due diligence in time to produce such tllst,imony on the first trial,. he may then: file',a,peti.tion. for a new triaL; but this must be done within one year from the rendition of the judgment 80nght to be vacated by filing such petition. The complainant, in this
case, has resorted to the familiar praotice of filing his bill in equity to vacate the judgment complained of, instead of relying on the Code practice in that The right to do so must be upheld. In analogy there is but slight difference in the two modes of proceeding, and, after much thought and a careful consideration of the whole subject, I am unable to discover any good and sufficient reason why either mode of proceeding cannot be maintained. I must hold, then, that the filing of the bill, in this and similar cases, simply takes the place of the petition for a new trial provided for by the said Code of Civil Procedure, and must be governed, at least to some extent, by that Code. It seems to be the recent policy of the laws of the United States to conform the proceedings in the federal courts to the practice prevailing in the state courts. There is much good reason in this. After all, the laws of the state are administered· in the federal about the same as they are in the state courts, and there is no apparent reason why there should be any difference in results to be at. tained in resorting to either. The same rights are recognized in both. Thesanie limitations and restrictions are recognized and enforced in both. And the only difference to be observed in enforcing, upholding,or maintaining either, is in the manner of doing it. That is the application of the remedy provided to accomplish the same reo sults. Applying this principle to the present case will require the dismissal of suit, though the bill is in many respects a meritorious one. Hltd it been filed in time, I doubt not the judgment complained of would have been overturned for reasons stated in the bill. But statutes limiting the time within which new trials may be granted, must be looked on with great favor, and their beneficial results must not be denied to those for whose benefit they were enacted. This suit was not commenced until 14 or 15 months after the rendition of the judgment sought to be vacated. As the complainant seeks to have the judgment complained of annulled on the gronnd of newlydiscovered evidence, wliichmight have lead to a different result had the same been produced on the trial, it is my deliberate judgment that his application comes too late; and that, to entitle him to the relief sought in this action, it was necessary for him .to file his bill to vacate the judgment complained of within one year from the date of entering the same. The bill must, therefore, be dismissed; and it is so ordered.
STATE NAT. BANK OF LINCOLN, N:&BRASKA,
STATE NAT. BANK OF LINCOLN, NEBRASKA,
v. YOUNG and others.
(Oircuit Oourt, D. liebraska. 1883.\
LETTER OF OIlEDlT-WHA1' 18 NOT.
A letter such as the one following, written by/the defendants to the plaintiff, does not constitute a letter of credit:
"State National Bank, Lincoln, Nebraska-GENTLEMEN: Mr. Dawson, of Dawson & Young, has been to see us, and has explained their business to our satisfaction, and we wish them to continue with us, and we expect to take care of them and pay drafts as heretofore. " Respectfully, W ILLLUI YOUNG & CO."
2. CONTRACT,-AGREEHENT TO ACCE"T DRAFT.
Nor does the same amount to an agreement to aecept any draft's which Dawson & Young, or either of them, might draw on William Young & Co., the defendants. T.o constitute a valid and binding promise to accept the draft .of another, the draft must be described in terms not to be mistaken. 3. S.um-DEPARTURE FROM T.ERM'S. Any departure from the terms of an agreement to acceptthe bill or draft 0 another, will not bind the party sought to be charged as acceptor.
Demurrer to Petition. Mason &; Whedon, for plaintiff. Bisbee, Ahrens et Hawley and Field ct Holme" for defendants. DUNDY, D. J. It is stated in the petition that Dawson & Young were largely dealing in and shipping live-stock to Chicago; that generally they consigned the same to William Young & Co., the def(lndants, at Chicago, who were then doing business as commission merchants; that Dawson & Young were in the habit of drawing their drafts on Young & Co. for the stock shipped, and that the same were cashed by the plaintiff at the request of Dawson & Young, and that the same, with one exception, were paid by the defendants; the payment of one was refused, and that the same was afterwards paid by Dawson; that subsequently Dawson went to Chicago and saw the defendants, and arranged with them for future acceptances, and, pursuant to the arrangement then made, the defendants wrote , to the plaintiff a letter, of which the following is a copy; "CHICAGO, 7-23-1880. "State National Bank, Lincoln, Nebraska-GRNTLEMEN: Mr. Dawson, of Dawson & Young, has been to see us, and has explained their business to our satisfaction, and we wish them to continue with us, and we expect to take care of them and pay drafts as heretofore. "Hespectfully, YOUNG &" Co."