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Full text of "Reports of cases determined in the Supreme Court of the state of Nevada : reported by judges of the court during the year .."

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HARVARD I ^. W SCHOOL 

LixJ:»w*ucY 



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REPORTS OF CASES 



DETEBtfllTED IN 



THE SUPREME COURT 



STATE OF NEVADA 



DURING 1883 and 1884. 



REPORTED BY 



CHAS. F. BICKNELL, 



CLERK OF SUPREME COURT, 



AND 



Hon. THOMAS P. HA^VJLEY, 



ASSOCIATE JUSTICE. 



VOLUME XYIII. 



CARSON CITY, NEV.: 

STATE PRINTING OFFICE— J. C. HARLOW, SUPERINTENDENT. 

1885. 



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^ 




D^. a. z^^^" 



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1883-4. 

Justices of the Supreme Court 



Hon. THOMAS P. HAWLEY Chief Justice 

HoK. CHARLES H. BELKNAP, 
Hon. ORVILLE R. LEONARD. 



'y Associate Justices 



Officers of the Court 



Hon. WHiLLSiM H. DAVENPORT. . . Attorney General 

CHAS. F. BICKNELL Clerk 

's. T. SWUT Bailiff 



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District Judges. 

1883-4. 



First District Hon. RICHARD RISING 

Second District Hon. T. D. EDWARDS 

Third District Hon. M. A. MURPHY 

Fourth District Hon. R. R. BIGELOW 

Fifth District Hon. D. C. McKENNEY 

Sixth District Hon. HENRY RIVES 

Seventh District Hon. W. M. BOARDMAN 



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TABLE OF CASES. 



PAGE 

Adams ads. Jones 60 

Alt V. California Fig Syrup Co 423 

Anderson ads, Boyd 348 

Angelo ads. State 425 

Arrington ads. State ex rel. Perry 412 

Avery ads. Hammersmith 226 

Barber V. Gillson 89 

Bamettads. Lachman 269 

Bamett, State ex rel. v. Fifth District Court 286 

Beck V. Tnickee Lodge, I. O. O. F 246 

Bender, adm'r. estate of Lake ads. Lake 361 

Bergman, Exjmrte 331 

Board of Coimty Commissioners ads. State ex rel. Perry 412 

Bosch ads. Hoffman 360 

Boyd V. Anderson : 348 

Brown v. Evans 141 

California Fig Syrup Co. ads. Alt 423 

Cardwell, State ex rel. v. Glenn .34 

Cartan v. David 310 

Clark ads. Norton 247 

Cole V. Richmond M. Co 120 

Coleman ads. Langworthy 440 

Crockett ads. McKelvey 238 

Dan ads. State 345 

David ads. Cartan 310 

Elder V. Frevert 278, 446 

Esmeralda County ads. Lyon County 166 

Esmeralda Co., Stat-e ex rel. v. Third District Court 438 

Eureka & P. R. R. Co. ads. Sacalaris 155 

Evans ads. Brown 141 

Ex parte Bergman 331 

Ex parte Sweeney 74 



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8 Table of Cases. 

PAGE 

Falcon M. Co. ads. Malter 209 

Fifth District Court ads. State ex rel. Barnett 286 

Fook Ling, State ex rel. v. Preble 251 

Frevert ads. Elder 278, 446 

Funding Commissioners Esmeralda Co. ads. State ex rel. Cardwell 34 

Gillson ads. Barber 89 

Gillson V. Price 109 

Glenn ads. State ex rel. Cardwell 34 

Gold Lead G. & S. M. Co. ads. Steel 80 

Gould V.Wise 253 

Hammersmith v. Avery 225 

Hanks ads. Pinschower 99 

Hansen ads. Tognini 61 

Haydon v. Nicoletti 290 

Haydon ads. Norton 247 

Hirschfeld v. Williamson 66 

Hoffman v. Bosch 360 

Hullyads. Phipi>s 133 

Hutchinson ads. Rickards 215 

Irwhi v. Strait 436 

Jones V. Adams % 60 

Justice Court ads. Victor M. & M, Co 21 

Kelly V. Kelly 49 

Kinkead ads. Reiese '. 126 

Lachman v. Barnett 269 

Lake v. Bender, adm'r. estate of Lake 361 

Langworthy v. Coleman .• 440 

Livingston v. State 353 

Logan ads. Smith 149 

Longley ads. Robinson 71 

Lyon. County v. Esmeralda County 166 

Malter V. Falcon M. Co 209 

Mandcl ads. Ro.sendorf 129 

Martin v. Victor M. & M. Co 303 

McKelvey V. Crockett 238 

McKenney ads. State ex rel. Truman 182 

Meagher V. Van Zandt 230, 237 

Newnham, State ex rel. v. State Board of Education 173 

Nicoletti ads. Haydon 290 

Norton v. Haydon 247 

Ogg ads. Simpson 28 

Perry, State ex rel. v. Arrington 412 

Phipps V. HuUy 133 



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Table of Cases. 9 

PA UK 

Pinschower v. Hanks; IH) 

Preble, ads. State ex rel. Fook Ling 251 

Price a^ls. OilLson 109 

Reese v. Kinkcad 126 

Richmond M. Co. ads. ('ole 120 

Rickarda v. Hutchinson 215 

Roberts ads. Cartan HIO 

Robinson v. Longley 71 

Rosendorf v. Mandel 12i) 

Sacalaris V. Eureka* P. R. R. Co I.1.1 

Sherwood ads. Sultan 454 

Simixson v. Ogj; 28 

Simpson v. Williams 4:}2 

Smith V. Lojran 14i) 

State V. Angelo 425 

State V. Dan :{45 

State ads. Livingston .iv} 

State V. Warren 15{> 

State Board of Ed. ads. Newnham IT.i 

State ex rel. Barnett v. Fifth District Court 2m) 

Stat€ ex rel. Cardwell v. Glenn :M 

State ex rel. Esmeralda Co. v. Third District Court 4.'^^ 

State ex rel. Fook Ling v. Preble 251 

State ex. rel. Newnham v. State Board of Ed 17:5 

Stateex rel. Perrj' v. Arrington 412 

State ex rel. Truman v. McKenney I.s2 

Steel V. Gold Lead G. & S. M. Co so 

Strait V. Irwin 4.')() 

Strait V. Williams *. 430 

Sultan y. Sherwood 4.54 

B'weeney, Ex parte 74 

Tognini v. Hansen HI 

Truckee Lodge ads. Beck 240 

Truman, Stateex rel. v. McKenney l.'*2 

Van Zandt ads. Meagher 230, 237 

Victor M. tfe M. Co. v. Justice Court -1 

Victor M. & M. Co. ads. Martin 303 

Warren ads. State 450 

Williams ads. Simpson 432 

Williams ads. Strait 430 

Williamson ads. Hirschfeld 00 

Wise ads. Gould 25:» 



Vol. XVIII— 2 

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K;TJIjES 



OF" 



The Board of Pardons. 



1. The regular meetings of the board shall be held on 
the second Monday of January and July of each year. 

2. Special meetings may be called by the governor at 
any time when the exigencies of any case demand it, notice 
thereof being given to each member of the board. 

3. No application for the remission of a fine or forfeiture, 
or for a commutation of sentence or pardon, shall be consid- 
ered by the board unless presented in the form and manner 
required by the law of the state, approved February 20, 
1875. 

4. In every case where the applicant has been confined in 
the state prison, he or she must pi^ocure a written certificate 
of his or her conduct during such confinement, from the 
warden of said prison, and file the same with the secretary 
of this board, on or before the day of hearing. 

5. All oral testimony ofi:ered upon the hearing of any case 
must be presented under oath, unless otherwise directed by 
a majority of the board. 

6. Action by the boai'd upon every case shall be in pri- 
vate, unless otherwise ordered by the consent of all the 
members present. 

. 7. After a case has once been acted upon, and the relief 
asked fot has been refused, it shall not, within twelve 



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12 Rules of the 13oard of Pardons. 



months thereafter, be again taken up or considered upon 
any of the grounds specified in the application under con- 
sideration, except by the consent of a majority of the mem- 
bers of the board ; nor in any case, except upon new and 
regular notice as required by law in case of original appli- 
cation. 

8. In voting upon any application the roll of members 
shall be called by tlie secretary of the board in the follow- 
ing order : 

First — The Attorney Genera). 

Second — The Junior Associate Justice of the Supreme 
Court. 

Third — The Senior Associate Justice. 

Fourth— The Chief Justice. 

Fifth— The Governor. 

Each member, when his name is called, shall declare his 
vote '*for" or "against" the remission of the fine or for- 
feiture, commutiition of sentence, pardon or restoration of 
citizenship. 

9. ^o document relating to a pending application for 
pardon or commutation of sentence, or to a prior api»Iica- 
tion which has been denied, shall be withdrawn from the 
custody of the Clerk after filing, unless by consent of the 
Board. 

10. Application for pardon or commutation of sentence 
must be filed with the clerk at least two days before the 
regular meeting of the board, at which the application is to 
be considered. 



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K;TJIjES 



OF 



THE SUPREME COURT 

OF THE 8TATE OF NEVADA. 



RULE I. 



1. Applicauts for license to practice as attorneys and 
counselors will be examined in open court on the first day 
of the terra. 

2. The Supreme Court, upon application of the district 
judge of any judicial district, will appoint a committee to 
examine persons applying for admission to practice as attor- 
ueys and counselors at law. Such committee \fnll consist of 
the district judge and at least two attorneys resident of the 
district. 

The examination by the committee so appointed shall he 
conducted and certified according to the following rules : 

The apj)licant shall be examined by the district judge 
and at least two others of tlie committee, and the questions 
and answers must be reduced to writing. 

No intimation of the questions to be asked must be given 
to the apphcant by any member of the committee previous 
to the examination. 

The examination shall embrace the following subjects : 

1. The history of this State and of the United States ; 

2. The constitutional relations of tlie State and Federal 
governments ; 

3. The jurisdiction of the various courts of this State and 
of the United States ; 

4. The various sources of our municipal law ; 

5. The general princi})les of the common law relating to 
property and peraonal rights and obligations ; 



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14 Rules of the Supreme Court. 



6. The general grounds of equity jurisdiction and princi- 
ples of equity jurisprudence ; 

7. Rules and principles of pleadings and evidence ; 

8. Practice under the civil and criminal codes of Nevada ; 

9. Remedies in hypothetical cases ; 

10. The course and duration of the applicant's studies. 

3. The examiners will not be expected to go very much 
at large into the details of these subjects, but only suffi- 
ciently so, fairly to test the extent of the applicant's knowl- 
edge and the accuracy of his understanding of those sub- 
jects and books which he has studied. 

4. When the examination is completed and reduced to 
writing, the examiners will return it to this court, accom- 
panied by their certificate showing whether or not the ap- 
plicant is of good moral character and has attained his 
majority, and is a bona fide resident of the State ; such cer- 
tificate shall also contain the facts that the applicant was 
examined in the presence of the committee ; that he had no 
knowledge or intimation of the nature of any of the ques- 
tions to be propounded to him before the same were asked 
by the committee, and that the answers to each and all the 
questions were taken down as given by the applicant with- 
out reference to any books or other outside aid. 

5. The fee for license must in all cases be deposited with 
the clerk of the court before the application is made, to be 
returned to the applicant in case of rejection. 

rule II. 

In all cases where an appeal has been perfected, and the 
statement settled (if there be one) thirty days before the 
commencement of a term, the transcript of the record shall 
be filed on or before the first day of such term. 

rule III. 

1. If the transcript of the record be not filed within the 
time prescribed by Rule 11, the appeal may be dismissed 
on motion during the first week of the term, without notice. 
A cause so dismissed may be restored during the same 
term, upon good cause shown, on notice to the opposite 
party ; and unless so restored the dismissal shall be final, 



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Rules of the Supreme Court. 15 



and a bar to any other appeal from the same order or judg- 
ment. 

2, On such motion, there shall be presented the certifi- 
cate of the clerk below, under the seal of the court, certi- 
fying the amount or character of the judgment ; the date of 
its rendition ; the fact and date of the filing of the noticfe 
of appeal, together with the fact and date of service thereof 
on the adverse party, and the character of the evidence by 
which said service appears ; the fact and date of the filing 
the undertaking on appeal, and that the same is in due 
form ; the fact and time of the settlement of the statement, 
if there be one ; and, also, that the appellant has received 
a duly certified transcript, or that he has not requested the 
clerk to certify to a correct transcript of the record ; or, if 
he has made such request, that he has not paid the fees 
therefor, if ' the same have been demanded. 

RULE IV. 

1. All transcripts of record in civil cases shall be printed 
on unruled white writing paper, ten inches long by seven 
inches wide, with a margin, on the outer edge, of not less 
than two inches wide. The printed page, exclusive of any 
marginal note or reference, shall be seven inches long and 
three and one-half inches wide. The folios embracing ten 
Hnes each shall be numbered from the commencement to 
the end, and the numbering of the folio shall be printed on 
the left margin of the page. Small pica solid is the smallest 
letter, and most compact mode of composition allowed. 

2. Transcripts in criminal cases may be printed in Hke 
manner as prescribed for civil cases ; or, if not printed, 
shall be written on one side only of transcript paper, six- 
teen inches long by ten and one-lialf inches in width, with 
a margin of not less than one and one-half inches wide, 
fastened or bound together on the left sides of the pages by 
ribbon or tape, so that the same may be secured, and every 
part conveniently read. The transcript, if written, shall 
be in a fair, legible hand, and each paper or order shall be 
separately inserted. 

3. The pleadings, proceedings and statement shall be 
chronologically arranged in the transcript, and each tran- 



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16 Rules op the Supreme Court. 

script shall be prefaced with an alphabetical index, specify- 
ing the folio of each separate paper, order or proceeding, 
and of the testimony of each witness ; and the transcript 
shall have at least one blank fly-sheet cover. 

4. No record which fails to conform to these rules shall 
be received or filed by the clerk of the court. 

rule v. 

The written transcript in civil causes, together with suflS- 
cient funds to pay for the printing of the siime, may be 
transmitted to the clerk of this court. The clerk, upon the 
receipt thereof, shall file the same and cause the transcript 
to be {jrinted, and to a printed copy shall annex his certifi- 
cate that the said printed transcript is a full and correct 
copy of the transcript furnished to him by the party ; and 
said certificate shall be prima facie evidence that the same 
is correct. The said printed copy so certified shall also be 
filed, and constitute the record of the cause in this court, 
subject to be corrected by reference to the written transcript 
on file. 

rule VI. 

The expense of printing transcripts on appeal in civil 
causes and pleadings, afladavits, briefs, or other pai)ers con- 
stituting the record in original proceedings upon which the 
case is heard in this court, required by these rules to be 
printed, shall be allowed as costs, and taxed in bills of costs 
in the usual mode. 

rule VII. 

For the purpose of correcting any error or defect in the 
transcript from the court below, either party may suggest 
the same, in writing, to this court, and upon good cause 
shown, obtain an order that the proper clerk certify to the 
whole or part of the record, as may be required, or may 
produce the same, duly certified, without such order. If 
the attorney of the adverse party be absent, or the fact of 
the alleged error or defect be disputed, the suggestion, ex- 
cept when a certified copy is produced at the time, must be 
accomi)aiiied by an affidavit showing the existence of the 
error or defect allesfed. 



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Rules of the Supreme CJourt. 17 

rule viii. 

Exceptions or objections to the transcript, statement, the 
undertaking on appeal, notice of appeal, or to its service or 
proof of service, or any technical exception or objection to 
the record affecting the right of the appellant to be heard 
on the points of error assigned, which might be cured on 
suggestion of diminution of the record, must be taken at 
the firet term after the transcript is filed, and must be noted 
in the written or the printed points of the respondent, and 
filed at least one day before the argument, or they will not 
be regarded. 

RULE IX. 

. Upon the death or other disability of a party pending an 
appeal, his representative shall be substituted in the suit 
by suggestion in writing to the court on the part of such 
representative, or any party on the record. Upon the entry 
of such suggestion, an order of substitution shall be made 
and the cause shall proceed as in other cases. 

RULE X. 

1. The calendar of each term shall consist only of those 
causes in which the transcript shall have been filed on or 
before the first day of the term, unless by written consent 
of the parties; provided, that all civil cases in which the 
appeal is perfected, and the statement settled, as provided 
in Rule IE, and the transcript is not filed before the first 
day of the term, may be placed on the calendar, on motion 
of the respondent, upon the filing of the transcript. 

2. When the transcript in a criminal cause is filed, after 
the calendar is made up, the cause may be placed thereon 
at any time, on motion of the defendant. 

3. Causes shall be placed on the calendar in the order in 
which the transcripts are filed with the clerk. 

RULE XI. 

1. At least six days before the argument, the appellant 
shall furnish to the respondent a printed copy of his points 
and authorities, and within two days thereafter the respond- 



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18 Rules of the Supreme Court. 



ent shall furnish to the appellant a written or printed copy 
of his points and authorities. 

2. On or before the calling of the cause for argument 
each party shall file with the clerk his printed points and 
authorities, together with a brief statement of such of the 
facts as are necessary to explain the points made. 

3. The oral argument may, in the discretion of the court, 
be limited to the printed points and authorities filed, and a 
failure by either party to file points and authorities under 
the provisions of this rule, shall be deemed a waiver by 
such party of the right to orally argue the cause. 

4. No more than two counsel on a side will be heard upon 
the oral argument, except by special permission of the 
court, but each defendant who has appeared separately in 
the court below, may be heard through his own counsel. 

5. At the argument, the court may order printed briefs 
to be filed by counsel for the respective parties within such 
time as may then be^ fixed. 

6. In criminal cases it is left optional with counsel either 
to file written or printed points and authorities or briefs. 

RULE XII. 

In all cases where a paper or document is required by 
these rules to be printed, it shall be printed upon similar 
paper, and in the same style and form (except the number- 
ing of the folios in the margin) as is prescribed for the 
printing of transcripts. 

RULE XIII. 

Besides the original, there shall be filed ten copies of the 
transcript, briefs and points aud authorities, which copies 
shall be distributed by the clerk. 

RULE XIV. 

All opinions dehvered by the court, after having been 
finally corrected, shall be recorded by the clerk. 

RULE XV. 

All motions for a rehearing shall be, upon petition in 
writing, and presented within ten days after the final judg- 

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Rules of thb Supebmb Court. 19 



raent is rendered, or order made by the court, and publica- 
tion of its opinion and decision, and no argumeut will be 
heard thereon. No remittitur or mandate to the coui-t below 
shall be issued until the expiration of the ten days hei*ein 
provided, and decisions upon the petition, except on special 
order. 

RULE XVI. 

Where a judgment is revereed or modified, a certified 
copy of the opinion in the case shall be transmitted, with 
the remittitur, to the court below. 

RULE xvn. 

No paper shall be taken from the court room or clerk's 
oflBice, except by order of the court, or of one of the justices. 
No order will be made for leave to withdraw a transcript 
for examination, except upon written consent to be filed 
with the clerk. 

RULE xvin. 

No writ of error or certiorari shall be issued, except upon 
order of the court, upon petition, showing a proper cause for 
issuing the same. 

RULE XIX. 

Where a writ of error is issued, upon filing the same and 
a sufficient bond or undertaking with the clerk of the court 
below, and upon giving notice thereof to the opposite party 
or his attorney, and to the sherifl:', it shall operate as a 
supersedeas. The bond or undertaking shall be substan- 
tially the same as required in cases on appeal. 

RULE XX. 

The writ of error shall be i:eturnable within thirty days, 
unless otherwise specially directed. 

RULE XXI. 

The rules and practice of this court respecting appeals 
shall apply, so far as the same may be applicable, to pro- 
ceedings upon a writ of error. 

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20 RULBS OF THE SuPREMB CoURT. 



RULE XXII. 

The writ shall not be allowed after the lapse of one year 
from the date of the judgment, order, \5r decree which is 
sought to be reviewed, except under special circumstances. 

RULE xxni. 

Appeals from orders granting or denying a change of 
venue, or any other interlocutory order made before trial, 
will be heard at any regular or adjourned term, upon three 
days' notice being given by either appellant or respondent, 
when the parties live within twenty miles of Carson. When 
the party served resides more than twenty miles from Car- 
son, an additional day's notice will be required for each 
fifty miles, or fraction of fiftj' miles, from Carson. 

RULE xxrv. 

In all cases where notice of a motion is necessary, unless 
for good cause shown the time is shortened by an order of 
one of the justices, the notice shall be five days. 



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REPORTS OF CASES 



DETERMINED IN 



THE SUPREME COURT 



STATE OF NEVADA, 



APRIIv TE^RM, 1883. \irTi\ 

82 18S; 



[No. 1149.] 

VICTOR MILL AND MINING COMPANY, Pbtitionbr, 
V. THE JUSTICE COURT OF TOWNSHIP No. 18, 
ESMERALDA COXJNTY, NEVADA, Rbsponmnt. 

Justice of the Peace— Summons by Publication— No Presumption in Favor 
OF Jurisdiction. — Nothing can be presumed in favor of the jurisdiction of 
a justice of the peace. The statutory provisions for acquiring jurisdiction 
by other than personal service must be strictly pursued. The affidavit for 
publication of summons must set forth the probative facts upon which the 
ultimate facts depend. It is not sufficient for the order to state that the 
ultimate facts "appear to the satisfaction of the court." * 

Idem— Sections of Civil Practice Act Applicable to Justices' Courts— The 
civil practice act, sections 1093 to 1097, 1 Compiled Laws, both inclusive, 
relating to service of summons, are applicable to justices' courts. 

Affidavit for Publication of Summons — Sufficiency of. — An affidavit for 
publication of summons against a foreign corporation must show that the 
corporation had no officer within the state upon whom personal service 
could be made, and must state the facts showing what diligence had been 
used to obtain personal service. An affidavit which merely states that the 
constable had returned the summons not served, and that due diligence 
had been used to find defendant, is not sufficient. 

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22 Victor M. M. Co. v. Justice Court. [Sup. Ct. 



Argument for Petitioner. 



When Copy of Complaint and Summons Must be Deposited in Postoffice — 
Residence op Defendant. — If service is made by publication, and the res- 
idence of the absent defendant is known, the service is void imless the 
court directs a copy of the complaint and summons to be deposited in the 
postoffice, directed to the person to be served, at his place of residence. 

Idem — Order for Deposit Must be Made by the Court. — A deposit made 
by an attorney without an order of court is insufficient. 

Affidavit for Publication of Summons Must State the Cause of Action.— 
The affidavit must state the facts necessary to show that a cause of action 
exists against the defendant. An averment that the amount claimed was 
" due from the defendant to plaintiff" is simply an allegation of a legal 
conclusion, and is insufficient. 

Application for writ of certiorari. 

The facts are stated in the opinion. 

P. Reddy and R. M. Clarke^ for petitioner ; 

1. The affidavit for publication is wholly insufficient. 

It is not shown that service of summons upon the defend- 
ant could not be made in accordance with the provisions of 
section 1092, Comp. Laws. In granting the order for publi- 
cation the justice acts judicially, and can know nothing 
about the facts upon which the order is to be granted 
except from the affidavit. {Rickeison v. Richardson^ 26 
Cal. 164.) The affidavit must show whether the residence 
of defendant is known; if known, the residence must be 
stated, and if unknown that fact must appear. {Rickeison 
V. Richardson^ 26 Cal. 154; Brah/ v. Seaman^ 30 Cal. 
610.) The affidavit does not show that due and diligent 
search was made for defendant within the State, and that it 
could not be found. (Swain v. Chase^ 12 Cal. 285.) The 
existence of a cause of action is a jurisdictional fact which 
must appear by the affidavit, and if it does not the order 
based upon it is void. {Little v. Gurrie, 5 Nev. 91 ; Roy v. 
Whitford, 9 Nev. 370 ; Ricketson v. Richardson^ 26 Cal. 
149 ; Braly v. Seaman, 80 Cal. 610 ; F(yrbes v. Hyde, 31 
Cal. 342.) 

IL The justice cannot go outside of the affidavit to be 
satisfied as to the existence of a good cause of action against 
defendant. {Forbes v. Hyde, 31 Cal. 342 ; Orandall v. 
Bryan, 15 How. Pr. 48.) 

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April, 1883.] Victor M. M. Co. v. Justice Court. 28 

Opinion of the Courts-Leonard, J. 

No appearance by respondent. 
By the Court, Leonard, J. : 

The petitioner seeks to review, by certiorari^ the action 
of respondent in an action entitled A. Hasseit^ Plaintiffs v. 
Victor Mill ^ Mining Company^ Defendant j wherein judg- 
ment by default was rendered and entered of record against 
the defendant therein, November 17, 1881, for the sum of 
two hundred and seventy-three dollars damages, besides 
eighty-seven dollars and fortj'-one cents interest, and forty 
dollars and ten cents costs. It is alleged in the petition, 
among other things, that the defendant in said action was 
never served with summons or complaint ; that no service of 
summons was made on any officer, agent, or servant of the 
defendant ; that no service of summons was made by post- 
ing copies thereof in said township No. 18 ; that no attor- 
ney was appointed by said justice court to appear in behalf 
of the defendant; that the defendant never knew or was 
cognizant of the pendency of said action until September 
1, 1882, or thereabouts. There is nothing in the court's 
return which contradicts the above allegations of fact. The 
defendant's time for appeal did not lapse, therefore, by its 
own fault. An attempt was made to get service upon the 
defendant by publication, but it is not claimed there was 
personal service. A complete transcript of the record and 
proceedings of the court in said action is before us, and it is 
to be decided therefrom whether respondent acquired juris- 
diction of the person of the defendant. If it did not, the 
judgment rendered in said action is null. 

It is well settled in this and other courts that nothing can 
be presumed in favor of the jurisdiction of a justice of the 
peace, but that each step towards its acquirement must be 
affirmatively shown ; that the statutory provisions for acquir- 
ing jurisdiction over a defendant by any other than personal 
service must be strictly puraued ; that an affidavit for pub- 
lication of summons, which merely reports the language of 
the statute or its substance, is not sufficient, but the ultimate 
facts of the statute must be proved by the affidavit, by 

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24 Victor M. M. Co. v. Justice Court. [Sup. Ct. 

Opinion of the CJourt— Leonard, J. 



showing the probative facts upon which the ultimate facts 
depend ; and that it is not sufficient for the order to state 
that the ultimate facts ''appear to the satisfaction of the 
court," but they must be sustained by the probative facts 
stated in the affidavit. The probative facts set out in the 
affidavit must be sufficient to justify the court in being 
satisfied of the existence of the ultimate facts required by 
the statute before it has jurisdiction to order service of 
summons by puWication. {Little v. Gurrie, 6 Nev. 90; 
iifoy V. Whitford, 9 Nev. 372 ; Scorpion S. M. Co. v. Mar- 
sano, 10 Nev. 382.) 

The civil practice act relating to service of summons, from 
sections 1093 to 1097, Comp. Laws, both inclusive, are 
applicable to justices' courts. Section 1092 is not made 
applicable, in direct terms, but it must be read in coimec- 
tion with former ones, for the purpose of asceiiiaining what 
the affidavit and order for publication should contain, in 
order to satisfy the law and make the service complete. 
Section 1093 provides that "when the person on whom the 
service is to be made resides out of the state, or has de- 
parted from the state, or cannot after due diligence be found 
within the state, or conceals himself to avoid the service of 
summons, or, being a corporation or joint-stock association, 
cannot be served as provided in section 29 (Comp. Laws 
1092), and the fact shall appear by affidavit to the satisfac- 
tion of the court or a judge thereof, and it shall in -like 
manner appear that a cause of action exists against the de- 
fendant in respect to whom the service is to be made, or 
that he is a necessary or proper party to the action, such 
court or judge may grant an order that the service be made 
by the publication of the summons.*' It is plain from this 
section that a corporation must, if possible, be served as 
required by section 1092 ; and if it cannot be so served, 
then, upon proof of the fact by affidavit to the satisfaction 
of the court, service may be made by pubhcation, if the 
affidavit also shows a cause of action against the person to 
be served, or that he is a necessary or proper party. 

Section 1092 provides that "* * * if the suit be 



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April, 1883.] Victor M. M. Co. v. Justice Court. 25 



opinion of the Court — Leonard, J. 



against a foreign corpoitition * * * doing business in 
this state, the summons shall be served by delivering a copy 
thereof, attached to a certified copy of the complaint, to an 
agent, cashier, or secretary, president, or other head thereof ; 
provided, that if the suit be against a corporation organized 
under the laws of the state of California, in addition to 
such pei'sonal service, a copy of the summons, attached to 
a certified copy of the complaint, shall be deposited in the 
postoffice, addressed to the president and trustees of said 
corporation, at their place of business in the state of Cali- 
fornia, if the same is known, or can by due diligence be 
ascertained." 

By section 1094 it is provided that " * * * in case 
of publication, where the residence of a non-resident or 
absent defendant is known, the court or judge shall also 
direct a cop3' of the summons and complaint to be deposited 
in the postoffice, directed to the person to be served, at his 
place of residence." 

Let us now test the affidavit and order for publication by 
the requirements of the section from which we have quoted. 
Petitioner is a California corporation doing business in this 
state. The only showing made in the affidavit that the de- 
fendant could not be served as required by section 1092 was 
the following: ''That defendant has no agent or person 
upon whom service of summons can be had, and this affi- 
ant, in support thereof, states the following facts and cir- 
cumstances : That a summons was duly issued out of this 
court, directed to the constable thereof, with instructions to 
said constable to serve the same ; that the said constable 
has returned the same not served ; that affiant has made 
diligent inquiry to find said defendant, but cannot, after due 
diligence, find it within this state." 

The matters set forth in an officer's return are presumed 
to be true, but the presumption as to what he has done does 
not extend beyond the facts stated by him. Here, by the 
affidavit, it was shown that the constable had returned the 
summons not served. That fact did not tend to prove that 
it could not be served according to the requirements of 

Vol. XVni--4 

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26 Victor M. M. Co. v. Justice Court. [Sap. Ct. 



Opinion of the Court— I«eonard, J. 



section 1092. It was not proof that the defendant had no 
officer in the state upon whom personal service could be had. 
The plaintitt* also stated in his affidavit that he had made 
diligent inquiry to find the defendant, and that, after due 
diligence, it could not be found in the state. Of course, the 
defendant could not be found in the state because it was a 
foreign corporation. Its residence was in California. But 
it may have had an officer here, upon whom service could 
have been made under section 1092, and if that- was the 
case the court had no right or power to order service by 
publication. It was then incumbent upon the plaintiff to 
show that the defendant did not have such officer in the state, 
by setting out the facts showing what diligence he had 
used, what he had done in attempting to ascertain the 
required information. It may be that if the plaintiff had 
stated the diligence used, and the grounds of his belief, 
the coui't's conclusion would have been different from his. 
There was not a 'sufficient showing that the defendant could 
not be served according to the requirements of section 1092. 
Again, if service is made by publication, and the residence 
of the non-resident or absent defendant is kncwn^ the ser- 
vice is void unless the court directs a copy of the summons 
and complaint to be deposited in the postoffice, directed tci 
the penson to be served, at his place of residence. If the 
residence is known, such deposit is an indispensable part of 
the service. 

In this case the affidavit contained no statement as to the 
defendant's residence, and the court made no order direct- 
ing the deposit. Plaintiff* may have known the residence. 
If he did, he should have stated it in his affidavit ; the 
court should have made the requisite order, and the return 
in this proceeding should have shown a full compliance 
therewith. Nothing less, at least, than an affidavit to the 
effect that plaintiff* did not know defendant's residence, 
could justify the failure to order the depositing of copies of 
the complaint and summons in the postoffice directed as 
required. Whether or not the affidavit should also state 
facts showing sufficient diligence in attempting to ascertain 



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Apri], 1883.] Victor M. M. Co. v. Justice Court. 27 



Opinion of the Court — Leonard, J. 



the residence, we do uot deem it necessary to decide. We 
cannot presume- that plaintiff did not know the defendant's 
residence, and, without that presumption, the return would 
not show a legal service, even though we should conclude 
that the affidavit contained facts sufficient to justify the 
court in deciding that service could not be made under sec- 
tion 1092. There is, however, in the return, an affidavit of 
plaintiff's attorney to the effect that on the seventeenth day of 
October, 1881, three days after the date of order for publica- 
tion was made, he deposited in the postoffice at Candelaria, 
Nevada, a copy of the summons attached to a certified copy 
of the complaint in said action, postage fully prepaid, 
directed to the president and trustees of the Victor Mill 
& Mining Company, at San Francisco, California. But that 
neither justified the order of publication nor aided the 
attempted service. The place of residence was not stated 
in the affidavit, and the court did not order the deposit in 
the postoffice. Without an order so to do, the deposit was 
a mere gratuitous act on the pail of the attorney. It did 
not cure what had already been done. 

Again, the affidavit must show that a cause of action 
exists against the defendant. The complaint filed stated a 
cause of action, but the affidavit did not, and the complaint 
was not sworn to. Besides, the order for publication shows 
upon its face that the court did not consider the complaint 
in making the order. Nor could it have done so, in any 
event, since it was uot incorpomted in the affidavit. These 
are the only statements of a cause of action in the affidavit, 
viz., *'that said action is brought to recover $273 due from 
the defendant to the plaintiff', on account, for work and labor 
done for defendant at Candelaria, Nevada, between March 
15, 1879, and March 15, 1880, a voucher or statement of 
which is attached to my complaint herein, and interest on 
the siime sum." That the amount claimed was '*due from 
defendant to plaintiff'* is simply a legal conclusion, and 
there is no allegation or statement that the work was done 
at the defendant's request. It may have been done volun- 
tarily on the plaintiff 's part. At any rate, the contrary does 

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28 Simpson v, Ogo. [Sup. Ct 

Points decided. 

not appear from the affidavit upon which the court acted. 
{Huguetv. Owen^ 1 Nev. 466; McManus t. Ophir S. M. 
Co. 4 Nev. 16 ; State Tel Co. v. Patterson, 1 Nev. 150.) 

Our opinion is that the order for the publication of sum- 
mons was void, and that the court acquired no jurisdiction 
of the person of the defendant in said action. 

The judgment rendered therein is annulled. 



[No. 1104.] 

D. C. SIMPSON BT AL., Respondents, v. CLEM OGG, 
BT AL., Appellants. 

Notice of Appeal — The notice should state that appellants do appeal, not that 
they will appeal. 

Findings of Fact Should be Embodied in the Statement— New Trial — 
Application For, How Made— When a new trial is applied for on the 
grounds of insufficiency of evidence to justify the lindings of fact, conclu- 
sions of law, and judgment of the court, and that the same were against 
law ; and on the further ground of errors in law which occurred at the 
trial, the application must be made upon statements prepared as the statute 
requires. (Comp. Laws, 1256, 1267.) 

Idem— Stipulation op Counsel not in the Statement— A stipulation of 
counsel, entered into after the statement on motion for new trial has been 
filed, which is not identified, or designat-ed by the judge, or clerk, as having 
been read or referred to on the hearing of the motion cannot be considered 
in the appellate court. Stipulation , also, held insufficient on other grounds. 

Judgment IIoll — Errors in. When not Reviewable — When an appeal is 
taken from an order denying the motion for a new trial only, the errors, if 
any, appearing in the judgment roll cannot be reviewed by the appellate 
court. 

Appeal from the District Court of the Third Judicial Dis- 
trict, Esmeralda County. 

The facts sufficiently appear in the opinion. 

T. H. Wells and A. C. Ellis, for Appellants : 

Notice that appellants will appeal is sufficient. (Comp. 
Laws, 1392, 1402, 1408.) 

M. A. Murphy and A. W. Crocker, for Respondents : 
I. The notice of appeal does not comply with the pro- 
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April, 1888.] Simpson v. Ogq. 29 



Argument for Respondents. 



visioDs of the statute. (1 Comp. Laws, 1392.) The acts 
required by the statute must be strictly complied with. 
(Warner v. Holman, 24 Cal. 228.) 

11. The bond filed by appellants is not such a bond as is 
required by statute. (1 Comp. Laws, 1402-3.) The sure- 
ties are not severally bound upon this bond. False repre- 
sentations made by the principal * * * will discharge 
the sureties. [Chamberlain v. Brewer^ 3 Bush, 561 ; Shrack- 
elford V. Handley, 10 Am. Dec. 753 ; Schuylkill Company v. 
Cbpely, 67 Penn. St. 386 ; 3 Paraon on Contracts, 414, 415, 
416 and notes; Snyder v. Mndley, 1 Am. Dec. 193.) 

To constitute an appeal three things are necessary : First, 
filing a notice ; second, service of same ; third, filing an 
undertaking. {Bryan v. Berry, 8 Cal. 133; Franklin v. 
jReiner, 8 Cal. 840; Whipley v. Mills, 9 Cal. 641 ; Hastings 
V. Halleck, 10 Cal. 31.) 

in. This being an appeal from an order overruling a 
motion for a new trial, the appellate court is confined in its 
investigation to the record used in the court below ; there 
being no record nor statement used in the court below, 
there is none in this court. (Caldwell v. Greely, 5 Nev. 
262 ; Walls v. Preston, 25 Cal. 61 ; Hutton v. Reed, 25 Cal. 
488 ; Barrett v. Tewksbury, 15 Cal. 356 ; Reynolds v. 
Lawrence, 15 Cal. 360 ; White v. White, 6 Nev. 23 ; Lock- 
wood V. Marshy 3 Nev. 138 ; Irwin v. Samson, 10 Nev. 
282 ; McCausland v. Lamb, 7 Nev. 240.) 

By the Court, Leonard, J. : 

Prior to the oral argument in this case a preUminary 
motion was made to dismiss the appeal, for various reasons 
stated. The motion and the case were submitted together. 
We shall not stop to consider at length the objections urged 
against the notice of appeal and the undertaking on appeal. 
It is, however, proper to state that they are faulty in many 
particulars. It is stated in the notice that the defendants 
will appeal, when it ought to state that they do appeal. 
Again, the undertaking was executed and filed more than 
a year after judgment, and consequently the judgment could 



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80 Simpson v. Oas. [Sup. Ct 



Opinion of the Ck)iirt--Leonard, J. 



not be appealed from. It was executed, however, before 
the notice of appeal was served and filed. One of the re- 
citals in the undertaking was that, on the fifth of July, 
1880, plaintifts obtained judgment against defendants for 
the sum of $1,900, with interest thereon then accrued in 
the sum of $111, and interest on said sum of $1,900 from 
date of judgment until paid, at the rate of ten per cent, per 
annum, while the fact is that the judgment gave interest on 
$2,011 from date of judgment until paid. Another recital 
was to the effect that defendants were desirous of appealing 
to this court from said judgment, and every part thereof, 
and from the order denying a new trial, and were desirous 
of having execution stayed pending such appeal. The un- 
dertaking was sufficient in amount to stay execution, but 
the appeal is from the order denying the motion for new 
trial only ; and the sureties ** undertake and agree to and 
with the said plaintifts that if said appeal be perfected the 
said defendants will pay to the said plaintifts the amount oi 
said judgment, principal, interest, and costs, and all accru- 
ing costs and damages in said cause, for which they may 
obtain judgment agaiiist said defendants in case said judg- 
ment be affirmed, wholly or in part, or said appeal aban- 
doned or dismissed. * * *" In view of the fact that 
the sureties bound themselves to pay only in the event that 
said appeal — that is to say, an appeal frona the judgment 
and order — should be perfected ; and the further fact tliat 
an appeal was taken from the order alone, there is a ques- 
tion, at least, which we do not decide, whether they are 
bound by this undertaking, since they are liable '' to the 
extent, and in the manner, and under the circumstances 
pointed out in their obligation, and no further.** {Carson 
Opera House Association v. Miller^ 16 Nev. 328.) 

Again, the findings of facts were not inserted in the state- 
ment, although the judge certified thereon that he referred 
to them in deciding the motion. The court has decided on 
several occasions that findings of fact cannot be considered 
on appeal unless they are embodied in the statement of the 
case. {Alderson v. Qilmore^ 13 Nev. 84.) Since the find- 



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April, 1883.] SXMPSON V. Oaa. 81 

Opinion of the Cofirt— Leonard, J. 



ings were not embodied in the statement, it is questionable, 
at least, whether the judge below had the right to refer to 
them in deciding the motion, or whether we can consider 
them on this appeal, although they were referred to by 
him. It being unnecessary, we do not decide the question, 
bat content ourselves by saying that, at least, the better 
practice is to embody the findings in the statement. 

But the application for a new trial was made on the 
grounds of insufficiency of evidence to justify the findings 
of fact, conclusions of law, and judgment of the court, and 
that the same were against law ; and on the further ground 
of errors in law which occurred at the trial. Applications 
for new trial for these causes must be made upon statements 
prepared as the statute requires. (Comp. Laws, 1256, 1257.) 
There is in the transcript what purports to be a statement 
on motion for a new trial. Thereon is an acknowledgment 
of service by one of the plaintiff's attorneys ; but it has no 
accompanying certificate of the parties themselves, or their 
attorneys, that it has been agreed to and is correct, or any 
certificate of the judge that it has been allowed by him and 
is correct, as the statute requires ; nor does the clerk of the 
court certify that no amendments to the statement have 
been filed. There is, then, no statement which we can con- 
sider, unless it becomes such by reason of the stipulation 
contained in the transcript, signed by counsel of the respec- 
tive parties, which is as follows : 

*' It is hereby stipulated and agreed, by and between the 
parties plaintiffs and defendants in the above entitled cause, 
by their respective counsel, that the statement this day filed 
by the defendants in said cause, and served upon counsel for 
plaintiffs, is hereby agreed to as constituting the statement 
on motion for new trial by defendants in said cause, and that 
the bill of exceptions therein contained shall be settled and 
certified by the judge of said court whenever he shall again 
be in Aurora, Nevada ; that said statement on motion for a 
new trial shall be the statement on appeal in said cause, if 
either party shall appeal from the order of said court grant- 
ing or refusing a liew trial of said cause, subject to such 

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82 Simpson v, Ogo. [Sup. Ct. 



opinion of the Court— Leonard, J. 



amendments thereof by way of revision as the respective 
parties shall agree upon, or the judge of said court shall 
make in their presence, after the said motion for new trial 
shall have been ruled upon by said court, in case an appeal 
be taken by either party. 

"It is further agreed and stipulated, as aforesaid, that 
said statement on motion for a new trial shall not be en- 
grossed unless an appeal be taken, and not then until after 
revised as aforesaid, and that when so engrossed the exhibits 
therein referred to may be still referred to, and when the 
transcript on appeal is made, that they may then be inserted 
in their proper places and order in said transcript. 

"It is further stipulated and agreed, as aforesaid, that if 
defendants wish to file any affidavit or affidavits on motion 
for a new trial of said cause, in pursuance of their notice of 
motion therefor, that the same may be filed on or before the 
thirty-first day of July, 1880, and then served by copy on 
counsel for plaintifts. 

"It is further stipulated that plaintifts may have till, and 
ten days thereafter, the bill of exceptions shall have been 
settled by the judge of this court, as hereinbefore provided, 
in which they may file amendments to defendants' state- 
ment as it then stands. ' ' 

The above stipulation was not, nor could it have been, 
made a part of the statement, because it was not entered 
into until after the statement had been filed. Nor is it 
identified, or designated by the judge or clerk as having 
been read or referred to on the hearing. By us, then, it 
must be treated as a fugitive paper that has found a place 
in the transcript without lawful authority. There is nothing 
before us showing that this paper was used or referred to by 
the court below on the hearing, or even that the court or 
judge knew of its existence. On this appeal we are limited 
in our examination to a statement legally authenticated, and 
to such other papers as properly may have been and were 
read and referred to by the court below on the hearing ; and ' 
the only evidence, which we can consider that such papers 
were used below, is the judge's certificate to that ettect. 



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April, 1883.] Simpson v. Ogg. 88 

Opinion of the Court — Leonard, J. 



As it is brought here, we cannot regard the stipulation, and 
without that, there is nothing in the transcript which the law 
recognizes as a statement on motion for a new trial. But if 
we could consider* the stipulation, the result would be the 
same. It would then be true, as it is now, that the tran- 
script contains no statement. To make a statement, on 
motion for a new trial, a record which this court can con- 
sider on appeal from an order overruling the motion, it must 
be filed and served in time ; and, if there are amendments, 
it must be accompanied with a certificate by the respective 
parties, or their attorneys, if they can do so, that it is agreed 
upon and is correct. If the parties or their attorneys can- 
not agree, it must be settled by the judge or referee, and 
must bear his certificate that it has been allowed by him, 
and is correct. If no amendments have been filed, the 
clerk must certify that fact. 

In the first part of the stipulation under consideration the 
statement was ^^ agreed to as constituting the statement on 
motion for a new trial bj' defendants in said cause.'* With- 
out attempting to ascertain the exact meaning of the words 
quoted, if used alone, it is enough to say that there was no 
agreement, or intention to agree, that the statement of de- 
fendant was complete or correct as it was filed. On the con- 
trary, it was provided in terms that the bill of exceptions, 
which was made a part of the statement, should be settled 
and certified by the judge at some subsequent date, and also 
that the plaintift' should have until ten days after the bill of 
exceptiouH should be settled and certified in which to file 
amendments to the statement as it should then stand, and 
the bill of exceptions has not yet been settled. So, accord- 
ing to the stipulation, if the bill of exceptions had been set- 
tled and certified on the day the motion was decided, plaint- 
ifts would have had ten days thereafter in which to file 
amendments. If there had been no stipulation, and plaint- 
iffs had proposed amendments to the so-called statement 
filed, and it had not been settled or agreed upon as correct, 
we could not regard it on this appeal, even though it had 
been read and referred to on the heai'ing, for the reason 

Vol. XVIII-5 

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34 Simpson v. Ogg. [Sup. Ct. 



opinion of the Court— Leonard, J. 



that it would have been unsettled. {Solomon v. Fuller, 13 
Nev. 278.) Under the agreement that plaintiffs should have 
until ten days after the judge should settle and certify the 
bill of exceptions, in which to file amendments, the state- 
ment is now as unsettled as it would have been if, without 
the stipulation, amendments had been proposed and fi.led, 
and no further action had been taken thereon. It was 
appellants' place and duty to present to the judge below 
such a statement as the statute requires, and, failing to do 
so, they cannot complain of his action in disregarding it. 
He had no right or power to consider the imperfect state- 
ment filed. 

This being an appeal from an order denying the motion 
for a new trial only, errors appearing in the judgment roll 
cannot be reviewed, ( Thompson v. Patterson, 64 Cal. 545 ; 
Jenkins v. Frink, 30 Cal. 596 ; Martin v. Matfield, 49 Cal. 
45 ; Shepard v. McNeil, 38 Cal. 74.) Besides, it is not 
shown that any of the papers in the transcript constituting 
the judgment roll were read or referred to by the judge in 
deciding the motion, and, as before stated, we are confined 
in our investigations to the record made and used in the 
court below. 

Respondents* motion to dismiss the appeal in this case 
would have to be sustained, even though injustice had been 
done appellants at the trial ; but we shall now enter the 
order of dismissal with less reluctance than we should have 
felt in that state of the case, being satisfied, upon an exam- 
ination of the evidence, that the action was fairly tried. 

Appeal dismissed. 



23 101 1 . [No. 1161.] 

jLj THE STATE OF NEVADA, bx rel. JAMES CARD- 
J8 84 WELL, Relator, v. M. M. GLENN, et. al. 

^^ FUNDING COMMISSIONERS OF ESMERALDA 

COUNTY, Respondents. 

Constitution—Provisions of, Mandatory.— The provisions of section 18 of 
article TV of the constitution, requiring the signing of bills and joint reso- 



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April, 1883.] State v. Glenn. 86 

Points decided. 

lations, by the presiding officers of the respective houses, and by the secre- 
tary of the senate and clerk of the assembly, are mandatory and must be 
complied with. 

Evidence of the Existence of a Law.— This court will not look beyond the 
enrolled bill in order to ascertain the terms of a law. The fact that it is 
signed by the proper officers of each house, approved by the governor and 
filed in the office of the secretary of state, is conclusive as to the passage 
of the act as enrolled, and is the only evidence thereof. {State ex rel. 
George v. Swift, 10 Nev. 176, and State ex rel. Chase v. Rogers, 10 Nev. 
250, affirmed.) 

Constitution — Section 18 Article IV CoNiSTRUED — Assistant Secretary May 
Sign Bills. — Held, that the signature of the assistant secretary of the senate 
is a substantial compliance with the provisions of the constitution requir- 
ing all bills to be signed by the secretary of the senate. 

Idem. — These provisions of the constitution must be construed with reference 
to existing customs in legislative and parliamentary bodies, and courts, in 
cases of doubt, should take into consideration the construction which has 
been deliberately given to tlie provisions of the constitution by the co-ordi- 
nate departments of the state government. 

When President of Corporation May Exectte a Deed and Donate Lands 
to a County. — A resolution passed by the trustees of a corporation "that 
the president be, and is hereby authorized, on behalf of the company, to 
deed and convey to purchasers, at his discretion, town lots in the town of 
Hawthorne," is sufficient to authorize the president, on behalf of the 
corporation, to execute a deed and donate the land therein conveyed, to a 
county. 

Idem — Deed — Construction Of. — The president executed a bargain and sale 
deed of certain lots to the county of Esmeralda, without the payment of 
any money, " for the pur|)ose of erecting thereon county buildings, to 
which the same is hereby dedicatt»d for the use and benefit " of the county : 
Held, that the deed complies with the statute, that it amounts to a dona- 
tion of land to the county for the purpose therein expressetl, and if the 
land is used for such purpose the county will own the land as absolutely 
as if it had obtained the same by purchase. 

Mortgage Upon a Railroad — How Construed. — In construing a mortgage 
given by a corporation upon its railroad which minutely designates the 
line of road, specifies all the lands of an average width of sixty feet, upon 
which the road is located, neces8ur>' for the use and operation of the road, 
its rolling stock, superstructures of every kind and then adds '* and all 
rights, privileges, franchises, and property whatsoever, now belonging or 
to be acquired by said party of the first part :" Held, that it should be 
construed as conveying only such property as was or would be employed 
and be useful or necessary in the construction, maintenance, operation, 
preservation or security of the railroad mortgaged and that it did not 
include other property owned by the corporation not used, or to be used, 
in connection with the railroad, in promotion of the direct and proximate 
purpose of its construction. 

Application for mandamus. 

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State t\ Glenn. [Sup. Ct. 



Argument for Relator. 



The facts are stated in the opinion. 

Thos. H. Wells and A. C. Ellis, for Relator: 

I. Section 18 of article IV is directory only. 

A distinction is clearly taken by the constitution between 
the passage of a bill and its becoming a law, and yet if we 
construe the constitution literally, when it has been passed 
by the two houses, regardless in certain cases of the signa- 
ture or approval of the governor, it may become a law. 
(Art. IV, sec. 35.) It is nowhere provided in the constitu- 
tion the signing of bills which may have passed both houses 
shall be a condition precedent to their becoming a law. 

The power to enact a law without the signatures of these 
clerks to the same, is not denied to the legislature ; as in 
many other instances of substance and power, as illustrated 
in sees. 21 and 22 of const. All such affirmative prescrip- 
tions of duty are held directory. (Smith Com. sees. 679, 
681, 835, 837; Sedg. Stat, and Con. Const. 324, 412, 413; 
Cooley Cons. Lim. 182, sec. 150 ; Washington v. PagCy 
4 Cal. 388; Miller v. State, 3 Ohio St. 475; Fim v. 
Mcholson, 6 Ohio St. 176 ; Cotirell v. State, 9 Neb. 129; 
People V. Supervisors, 8 N. Y. 328 ; McPherson v. Leonard, 
29 Md. 377 ; Hill v. Boyland, 40 Miss. 618; Swann v. Buck, 
40 Miss. 268 ; Cape Girardeau v. Riley, 52 Mo. 424 ; SL 
Louis V. Foster, 62 Mo. 513 ; Wright v. Pinkerton, 15 Ohio 
St. 573 ; Pierpont v. Crouch, 10 Cal. 316; Striker v. Kelly, 
7 Hill, 24 ; Marchant v. Langioorthy, 6 Hill, 647 ; Pacific 
Railroad v. 7" he Governor, 23 Mo. 368 ; Anderson v. Baker, 
23 Md. 585-6.) 

II. It is manifest that the bill passed, from an inspection 
of the statute roll in evidence, for upon the back of this 
bound record appears the evidence that it passed and the 
majority by which it passed each body. The legislature 
has the power to prescribe the duties of secretary or assis- 
tant secretary, and the presumption is that the officer called 
assistant secretary has done his duty and told the truth. 

Bennett ^ Beddy, for Respondents : 

I. The signatures of the officers named in the constitu- 



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April, 1883.] State v. Qlbnn. 87 



opinion of the CJourt— Hawley, C. J. 



tion is the exclusive evidence of the passage of a bill. 
(State ex rel George v. Swift, 10 Nev. 189.) The provision 
requiring these officers to sign all bills is mandatory, because 
not onl}' an essential part of their duty but it is essential to 
the validity of all bills, for if they fail to sign there would 
be no evidence of the passage of the bill. 

The same doctrine is applied in Burroughs on Pub. 
Securities, 425 ; Cooleys Cons. Lim. 186 ; State v. Silvery 
9 Nev. 231. All the cases bearing on the point are fully 
discussed in State v. Rogers, 10 Nev. 252-261. Affirmative 
words where they are peremptory are mandatory. (Dwar- 
ris on btat. and Const. 228; 5 Tex. 423; 1 Paine, 
406.) 

Bills must be signed by the officers named in the consti- 
tution. The assistant secretary of the senate is not the 
secretary of the senate. The constitution, in requiring 
that bills passed should be signed by the secretary of the 
senate, necessarily implies that the senate must have a sec- 
retary, and therefore such secretary necessarily becomes a 
constitutional officer. How many clerks the senate should 
employ, and how their officers should be designated, is all 
left to the legislature. But the senate having filled the 
constitutional office, it is therefore beyond the power of the 
legislature to thrust still another person in that constitutional 
office to perform the act or acts specially enjoined upon the 
constitutional officer, or to divide with him the power con- 
ferred by the constitution. The right to decide what bills 
have passed the senate is an important trust and cannot be 
delegated by the officer upon whom it is conferred. . That 
such power has been conferred upon the secretary of the 
senate there can be no question because so decided by this 
court in State v. Swiff, 10 Nev. 200. 

By the Court, Hawley, C. J.: 

This proceeding was instituted for the purpose of com- 
pelling respondents "to issue bonds for the purpose of creat- 
ing a fund for the erection of county buildings.'* (Stat. 
1883, 104.) Its real object, however, is to determine whether 

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88 State v. Olenn. [Sup. Ct. 



Opinion of the Court— Hawley, C. J. 



the ''act to remove the county seat of Esmeralda county from 
the town of Aurora to the town of Hawthorne*' (Stat. 1888, 
95) is valid. 

Respondents claim that this act is invalid because the 
enrolled bill is not attested by the signature of the secretary 
of the senate. The bill was signed by the presiding officera 
of the respective houses, by the chief clerk of the assem- 
bly, and by the assistant secretary of the senate. As thus 
attested, it was approved by the governor and regularly de- 
posited with the secretary of state. 

Section 18 of article IV of the constitution declares that ''a 
maiority of all the membere elected to each house shall be 
necessary to pass every bill or joint resolution, and all bills 
or joint resolutions so passed shall be signed by the presid- 
ing officers of the respective houses, and by the secretary 
of the senate and clerk of the assembly.'' 

Relator claims that this provison— relative to the signing 
of the bill — is directory merely. This view, in the light 
of the decision in State ex rel. George v. Swift, 10 JNev. 176, 
cannot be maintained. It was decided in that case that the 
courts could not look beyond the enrolled act, certified to 
by those officers who are charged by the constitution with 
the duty of deciding what laws have been enacted, and that 
when an act has been signed by the proper officers of each 
Jiouse, approved by the governor, and filed in the office of 
the secretiiry of state, *'it constitutes a record which is con- 
clusive evidence of the passage of the act as enrolled." 
The necessity of having some fixed and definite rule by 
which the existence of a law may be established, is so 
thoroughly and ably discussed in that opinion that it needs 
from us no further comment- If the rule of evidence as 
there established is right — and its correctness is not ques- 
tioned by relator — then it follows, as clearly as the night fol- 
lows the day, that the provisions of the constitution as to 
the signing of bills and joint resolutions is mandatory, and 
must be complied with^ otherwise there is no evidence of 
the passage of a bill or joint resolution by the legislature 
that can be considered by the courts. 



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April, 1883.] State v. Glenn. 89 

Opinion of the Court— Hawlcy, C. J. 

Nearly all of the decisions cited by relator, to establish 
the doctrine that this provision of the constitution is direct- 
ory, were examined, and several of them reviewed, in State 
V. Borers, 10 Mev. 250. We shall not, therefore, again 
enter into the genei*al discussion of this subject, but will 
confine ourselves to such questions as have a direct bearing 
upon the particular question here presented. When the 
acts required to be done are of the essence of the thing, 
the provisions of the constitution, whether negative or affirm- 
ative in their terms, are imperative. Things which are not 
of the essence may be declared directory. The provision 
in question might be held directory by the courts in the 
various states where it has been decided — in opposition 
to the rule announced in State v. Swift — that the 
courts could look at the journals of the respective 
houses in order to determine whether any act had been 
passed by the legislature. The signature of one officer or 
of all the officere might be omitted without invalidating the 
the law. {(Jottrell v. State^ 9 Neb. 128 ; Comrs v. Higgin- 
botharn^ 17 Kan. 75.) But it cannot consistently be said, 
by a court which adheres to the principles announced in 
State V. Sioift^ that this provision is merely directory. We 
cannot look at the journals in order to determine whether 
the bill received the constitutional majority necessary for 
its passage. We must look to the enrolled bill, and to that 
alone. The constitution says that if the bill received the 
requisite majority it "shall be signed by the presiding 
officere of the respective houses, and by the secretary of 
the senate and clerk of the assembly.'' What was the 
object of this provision ? There can be but one answer. 
It was to furnish the evidence that the bill thus attested 
had regularly passed the respective houses. It was intended 
that the bill thus attested, when signed by the governor and 
deposited with the secretary of state, should upon its face 
furnish the evidence necessary to make it a law. The sign- 
ing of the bill by the officers designated in the constitution 
is absolutely essential to its existence as a law. 

"This is the mode adopted for the authentication of 



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40 State v. Qlbnn. [Sup. Ct 



1 



Opinion of the Court — Hawley, C. J. 



eveiy bill." {Pacific Railroad v. The Governor ^ 23 Mo. 
864.) The governor's signature to a bill is not required as 
a means or part of its authentication, but as evidence of his 
approval. Cooley in speaking of the signing of bills, says : 
'^ This is a constitutional requirement in most of the states, 
and therefore cannot be dispensed with.*' (Cooley Const. 
Lim., sec. 153.) Burroughs upon the same question says : 
'* There are constitutional provisions requiring all laws to 
be signed by the speakers of both houses. Where this 
provision exists in the constitution of a state, it is essential 
to the vaHdity of an act in that state that the bill should be 
duly signed.'* (Burroughs Pub. Sec. 425.) 

The constititution of Indiana requires that a bill which 
passes each house ''shall be signed by the presiding officera 
of the respective houses." The supreme court, referring 
to this provision, use the following language : *' What, then, 
was the purpose in i'equiring this attestation by the presid- 
ing officers ? Was it intended as an idle form ? It is not 
fair so to assume. What possible object, then, was sought 
to be accomplished by it, unless it was to furnish evidence 
that the paper thus attested had been, by the proper pro- 
cesses of each house, clothed with the force of law — evi- 
dence upon the enrolled act itself, which should be taken 
as authentication and prove itself upon inspection?" 
{Emm V. Browne, 30 Ind. 523.) 

This brings us to the question whether the act under con- 
sideration is signed by the proper officers. Is the signature 
of the assistant secretary a substantial compliance with the 
provisions of the constitution ? Did the framers of the con- 
stitution intend that all bills should be signed by the chief 
clerk and the principal secretarj', or was it their intention to 
allow this duty to be performed by their assistants when 
acting, as they often do, in the capacity of clerk and secre- 
tary of the respective houses ? This provision of the con- 
stitution should be construed with reference to existing 
customs in legislative and parliamentary bodies. 

The duties pertaining to the offices of secretary and assist- 
ant secretary, as prescribed by statut-e, should also be con- 



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April, 1883.] Statb v. Glenn. 41 

Opinion of the Court— Hawley, C, J. 



sidered. At the time of the adoption of the constitution it 
was the custom of le^slative bodies to have an assistant 
secretary of the senate and assistant clerk of the house. In 
the very nature of the office, independent of any statute, 
the assistant might take the place of the secretary or chief 
clerk, and for the time being discharge his duties. It is 
the duty of the secretary to be present during the entire 
session. If he neglects this duty, or is incompetent, he may 
be removed. (2 Comp. L. 2730.) But the legislature of 
this state, with the experience of other legislative bodies, 
foresaw that, without any fault upon his part, he might not, 
at all times, be able to attend to all the duties required of 
him, and provided for an assistant. Cases of emergency 
might arise. The secretary might be ill, or for some una- 
voidable cause, be temporarily called away. Leave of ab- 
sence for the day might, for good cause shown, be granted 
him. The assistant could then be called to his desk, take his 
place, and discharge his duties. While acting in that capa- 
city is he not, to all intents and purposes, the secretary ? 
If in this official capacity he calls the roll of the senate and 
keeps the yeas and nays on the passage of the bill, is he 
not, by virtue of the provisions of the constitution, author- 
ized to attest the vote so taken ? Why not ? He is author- 
ized by law to discharge the duties peiiaining to the 
office of secretiiry. He may call the roll and keep the tally 
of the votes. When he discharges this duty he is, in his 
official capacity, advised of the passage of the bill. The 
constitution does not impose the duty of. signing bills and 
joint resolutions upon the individual, but upon the officer. 
It is the officer who is authorized to act as secretary that 
must attest the bills and joint resolutions. When the assist- 
ant so acts, does not the constitution mean that he may sign 
the bills and joint resolutions, and that full faith and credit 
should be given to his signature ? It is true that the. offices 
of secretary and assistant secretary are in one sense sepa- 
rate and distinct. They are held by different persons, who 
have different duties to perform. But is it not also true that 
these persons are authorized at times to perform the same 

Vol. XVIlI-6 

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42 State v. Glenn. [Sup. Ct. 

Opinion of the Court— Hawley, C. J. 

duties ? Both may and do act as secretary of the senate. 
In this sense they discharge the duties of the office men- 
tioned in the constitution. The secretary and assistant 
secretary, in the discharge of this duty, are called upon to 
exercise judgment and discretion. The power given by the 
constitution cannot be delegated to others. 

At the first session of the legislature, after the adoption 
of the constitution, an act was passed giving the secretary 
authority to appoint an assistant. (Stat. 1864-5, 103, sec. 
6.) Then, as now, it was made the '*duty of the assistant 
secretary of the senate, and the assistant clerk of the assem- 
bly, to take charge of all bills, petitions, and other papers 
presented to their respective houses, to file and enter the 
same in the books provided for that purpose, and perform 
such other duties as may be directed by the secretary of 
the senate and chief clerk of the assembly. " (Stat. 1864-6, 
102, sec. 4 ; Stat. 1881, 17, sec. 4.) In 1873 the act was 
amended by providing that *'all officers and employes of 
the senate and assembly * * * shall be elected by the- 
senate and assembly respectively.'* (Stat. 1873, 155, sec. 
6.) Whether appointed or elected, the assistant was author- 
ized to act as secretary when requested so to do. 

The constitution does not deal in details. In construing 
the provision in question, we must consider the modes of 
thought which gave expression to the language used, in 
connection with the usage and cuatom pertaining to the 
duty of the officer named in the constitution, in order to 
determine what -was meant. The intention of those who 
framed the instrument must govern, and that intention may 
be gathered from the subject-matter, the efl:ects and con- 
sequences, or from the reason and spirit of the law. Even 
where the language admits of two senses, each conformable 
to common usage, that sense should be adopted which, 
without departing from the literal import of the words, best 
harmonizes with the object which the framers of the instru- 
ment had in view. " Perhaps the safest rule of interpretar- 
tion, after all, will be found to be, to look to the nature and 
objects of the particular powei's, duties, and rights with all 



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April, 1883.] Statb v. Glbnn. 43 

Opinion of the Court — Hawley, C. J. 

the lights and aids of contemporary history, and give to the 
words of each jnst such operation and force, consistent with 
their legitimate meaning, as may fairly secure and attain 
the ends proposed." (1 Story, Const, sec. 405 a.) This 
rule is subject to some qualifications, which it is here unnec- 
essary to discuss. (Id. sec. 406.) 

It was admitted upon the hearing of this case that many 
of the acts passed by the legislature of this state were 
attested by the assistant clerk of the house, or the assistant 
secretary of the senate, or by both assistants. We have 
taken the pains to examine the enrolled statutes on file in 
the office of the secretary of state, and find that at the first 
session of the legislature (1864-5) eight bills and joint reso- 
lutions were so signed ; one at the session of 1866 ; two in 
1867 ; eighty-one in 1869 ; eighty-four in 1871 ; forty-six 
in 1873 ; majority in 1875 ; seventy-one in 1877 ; ninety- 
seven in 1879 ; none in 1881 ; forty-six in 1883. The civil 
practice act and other equally important acts are so attested. 
The legislative and executive departments have always con- 
sidered that the attestation of the assistant secretary of the 
senate and assistant clerk of the assembly was a sufficient 
compliance with the provision of the constitution. 

At the difiereut sessions of the legislature there have been 
many membere who were prominent members of the con- 
stitutional convention, and they, with others, have always 
recognized and sanctioned this construction of the constitu- 
tion. Among these names we mention James A. Banks, 
Ismel Crawford, J. W. Haines, A. J. Lockwood, B. S. 
Mason, J. G. McClinton, H. G. Parker, F. M. Proctor, F. 
Tagliabue, and Charles W. Tozer. J. S. Crossman, a mem- 
ber of the convention, was afterwards lieutenant governor, 
and John H. Kinkead was governor. 

At the session of the legislature in 1864-5, Charles W. 
Tozer was speaker of the assembly. In 1866, J. S. Cross- 
man, as lieutenant governor, was the president of the senate, 
and James A. Banks was speaker of the assembly. In 
1873 Israel Crawford was president p*o tern, of the senate. 
In 1879 and 1881 John H. Kinkead was governor. We 



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44 State v. Glenn. [Sup. Ct. 



Opinion of the Court — Hawley, C. J. 



glean from this history that the co-ordinate departments of 
the state government, including among its numbers seveml 
persons who were members of the constitutional convention, 
have for the past nineteen years construed the provision of 
the constitution as giving the authority to the assistant clerk 
of the assembly and the assistant secretary of the senate to 
sign the bills and joint resolutions which passed the 
respective houses. The people of this state have acquiesced 
in that construction, and it has received the apparent 
sanction of the courts, although it has never before, to our 
knowledge, been called in question. Property and other 
rights have vested, and ought not to be overthrown unless 
it is manifest that the construction given by the other 
departments is absolutely erroneous. Even in such cases 
courts of great ability have hesitated, and, in some extreme 
cases, refused, to declare the law unconstitutional. But, 
from the views we have expressed, it will be observed that 
we do not consider the construction, as given by the other 
departments, erroneous. We believe it is correct; still, if 
it is not free from doubt, — and that, it seems to us, is the 
most that can be said, — it is clearly our duty to give some 
weight to the construction which has been deliberately 
given by the legislative and executive departments. 
{Evans v. Jo6, 8 Nev. 338.) '' Great deference is certainly 
due to a legislative exposition of a constitutional provision, 
and especially when it is made almost contemporaneously 
with such provision, and may be supposed to result from 
the same views of policy and modes of reasoning which pre- 
vailed among the framers of the instrument expounded.*' 
{People V. Green, 2 Wend. 275.) 

The supreme court of the United States, when the power 
of the judges of that court to sit as circuit judges was called 
in question, said: ''To this objection, which is of recent 
date, it is sufficient to observe that practice and acquiescence 
under it for a period of several years, commencing with the 
organization of the judicial system, aftbrds an irresistible 
answer, and has, indeed, fixed the construction. It is a 
contemporary interpretation of the most forcible nature. 



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April, 1888.] State v. Glenn. 45 

opinion of the Court— Hawley, C. J. 



This practical exposition is too strong and obstinate to 
be shaken or controlled. * * * The question is at 
rest, and ought not now to be disturbed/* {Stuart v. Laird^ 
1 Cranch, 808.) In Georgia, when the question was raised 
as to the power of the governor of that state to veto bills 
after the adjournment of the legislature was called in ques- 
tion, the court said : ''If this was an original question, 
independent of any construction heretofore given by the 
executive department of the state government to this clause 
of the constitution, we should be inclined to hold that the 
governor could not approve and sign any bill after the ad- 
journment of the general assembly ; but, on looking into 
the past history of our legislation, we find that it has been 
the practice for many years for the governor to take five 
days after the adjournment of the general assembly for the 
revision of bills passed by that body, and to approve and 
sign the same within that time, * * * and that a large 
number of the most important acts now upon the statute- 
books of the state have been so approved and signed, which' 
usage and practice of the executive department of the state 
government should not now, in our judgment, be disturbed 
or set aside.** {Solomon v. Com'rs^ 41 Ga. 161.) 

The supreme court of Peinisylvania, in discussing the 
power of the legislature, under the provisions of the consti- 
tution of that state, to enlarge the privileges of corporations, 
said : "This construction is not unsupported by authority. 
It has not, indeed, received the direct sanction of any 
express judicial decision. But the legislature, with many 
membei-s of the convention in it, has always acted upon 
this interpretation. And this has been done with the 
silent acquiescence of all the people, including the legal 
profession and the judiciary. The defendant's counsel has 
produced us a list of two hundred and seventy-nine acts of 
assembly, passed only within the last four years, creating 
one and enlarging the powers of another corporation, or 
enlarging the powers of two corporations, both municipal 
and private. Some thousands of such laws have probably 
been passed since 1838. If we now declare them to be 



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46 State v. Glbnn. [Sup. Ct. 

Opinion of the Court — Hawley, C. J. 

unconstitutional, and sweep away at once all the rights, 
public and private, which have been acquired under them, 
we must do an amount of mischief which no man's arith- 
metic can calculate. This is a proper element of legal 
judgment on such a subject. We are not to overlook the 
practice of the legislature, or disregard the consequence of 
doing so. (Moers v. 6% of Beading, 21 Pa. St. 202. To 
the same effect : Bingham v. Miller, 17 Ohio, 448 ; Johnson 
v. Joliet ^ C. B. B. Co. 23 111. 207 ; Scanlan v. Childs, 33 
Wis. 666 ; Oronise v. Oronise, 54 Pa. St. 263 ; ComWs v. 
Higginbothamy 17 Kan. 80.) 

These cases are cited and quoted as declaring principles 
which should govern courts where doubts exists as to the 
proper construction of the constitution. It is only in cases 
where the provisions of the constitution are free from doubt 
that courts follow the " fundamental law as it is written, 
regardless of consequences.'* In such cases courts have 
frequently declared that the argument ab inconvenienti 
s'hould not "bend the constitution to suit the law of the 
hour.'' We agree with Judge Cooley that ''we allow 
to contemporary and practical construction its full legiti- 
mate force, where it is clear and uniform, to solve in its 
own favor the doubts, which arise on reading the instru- 
ment to be construed." (Cooley, Const. Lim. 71, and 
authorities there cited.) 

Having decided that the act to remove the county seat to 
Hawthorne is valid, it becomes our duty to consider certain 
other questions, preliminary in their character, which relate 
to the provisions of the act requiring the funding commis- 
sioners to issue certain bonds. This act contains a proviso 
"that suitable grounds for the erection of such buildings 
(court-house and jail) thereon, at the town of Hawthorne, 
be donated to the county free from all incumbrances." 
(Stat. 1883, 105, sec. 4.) The deed to the county is ex- 
ecuted by H. M. Yerington, as president of the corporation 
known as the Southern Development Company. It is con- 
tended that he had no authority to execute this deed, and 
that the deed is not a donation to the county of the land in 



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April, 1888.] State v. Glenn. 47 

Opinion of the Court — Hawley, C. J. 



question. The resolution passed by the trustees of the cor- 
poration is as follows : *' Resolved, that the president be 
and is hereby authorized, on behalf of the company, to 
deed and convey to purchasers, at his discretion, town lots 
in the town of Hawthorne. * ' 

Does this resolution authorize the president, on behalf of 
the corporation, to donate the land to the county ? We 
think it does. The use of the word *' purchasers *' was not 
intended to limit his authority to only convey land to those 
who paid a price or value for the same. Tt is evident that 
the word *' purchasers,'* as used in the resolution, is more 
extensive in its meaning. In its broadest sense it includes 
the power to donate land, to execute a conveyance by gift, 
and all other modes of the personal acquisition of real prop- 
erty, except by descent or inheritance. (2 Bl. Comm. 244 ; 
Greer v. Blanchar, 40 Cal. 197 ; 2 Whart. Law Diet. 356.) 
The words ''at his discretion," give force and effeqt to this 
meaning. The language of the deed is, ''does grant, bar- 
gain; sell, and convey unto the said party of the second part, 
and to its successors, and assigns forever, all of that certain 
real estate '' — describing it — "for the purpose of erecting 
thereon county buildings, to which the same is hereby dedicated, 
for the use and benefit of said party of the second part, its 
successors and assigns, forever." The deed expresses a 
consideration of one dollar, but it is admitted that no money 
was paid. It is claimed that the deed dedicates the land 
to a certain use, and that it is not a donation of the land to 
the county. This is too narrow a construction to be adopted. 
The deed complies with the statute. The land is donated 
to the county for the purpose of having county buildings 
erected thereon. If used for such purpose, the county will 
own the land as absolutely as if it had obtained the same 
by purchase, without the words of dedication as expressed 
in this deed. 

It is claimed that the land conveyed is incumbered by 
mortgage. The mortgage in question was executed by the 
"Carson & Colorado Railroad Company," and conveys "all 
that certain railroad now owned and operated, or hereafter 



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48 State v. Glbnn. [Sup. Ot. 



Opinion of the Court — Hawley, C. J. 

to be constructed, owned and operated by the party of the 
first part in the State of Nevada/* The line of the road 
is specifically designated. The mortgage includes "all the 
lands of an average width of sixty feet, more or less, upon 
which said railroad is located and built, or to be built, * 

* * which are or may be necessary for the use and 
operation thereof." It conveys all the stations, depots, 
and all superstructures of every kind, with the land 
upon which the same are situated, and all personal property 
used or to be used, by the railroad company in the working 
and operation of its road. After a minute description of 
the railroad is given, the following words are employed : 
*' and all rights, privileges, franchises, and property what- 
ever, now belonging or hereafterto belong to or to be acquired 
by said party of the first part." At the time this mortgage 
was executed, the (^arson & Colorado Railroad Corai>any 
owned the land, mentioned in the deed of the Southern 
Development Company to the county of Esmeralda. This 
land is not within sixty feet of the railroad. But* it is 
contended, that by the use of the language last quoted, 
all property owned by the corporation wherever situate, 
was conveyed to the mortgagees. This construction cannot 
prevail. All the words employed in giving the description 
of the property mortgaged must be considered, in order to 
determine the meaning and intent of any particular clause or 
sentence. 

Upon a careful reading of the entire instrument, we are 
clearly of the opinion that the mortgage only conveys such 
property, real and personal, as was or would be employed 
and be useful or necessary in the construction, maintenance, 
operation, preservation, repair, or security of the railroad 
mortgaged ; and that property owned by the Carson & 
Colorado Railroad Company not used, or to be used, in 
connection with the railroad, in promotion of the direct and 
proirimate purposes of its construction, was not thereby con- 
veyed. {Morgan v. Donovan^ 58 Ala. 242.) 

It is ordered that a peremptory writ of mandamus be 
immediately issued as prayed for by relator. 



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REPORTS OF CASES 



DBTEBMINED IN 



THE SUPREME COURT 



OF THB 



STATE OF NEVADA, 
JULY TERM, 1883, 



[No. 1139.] 

JOHN KELLY, Respondent, v. KATE KELLY, Appel- 
lant. 

DivoBCE— Extreme Cbuelty.— The element of danger to life, limb or health, 
or the reasonable apprehension of such danger, must exist in order to 
constitute legal cruelty. There may, however, be cruelty without personal 
violence, and such cruelty, working upon the mind, may affect the health. 

Idem — Cruelty of Wife. — False accusations, by the wife, of marital infidelity 
on the part of the husband, may in certain cases constitute such extreme 
cruelty as to entitle the husband to a divorce. The statute contemplates 
cases in which the husband may be the complaining party, and in such 
cases it affords him the same relief which it extends to a complaining wife. 

Appeal from Judgment — Presumptions. — When matter is necessary to be 
proven in order to support the judgment it will be presumed to have been 
proven, in the absence of an affirmative showing to the contrary. This 
principle is always applied where the appeal is taken from the judgment 
roll alone. 

VERifiCATiON OF C!oMPLAiNT — SUFFICIENCY OF. — When the allegations of the 
complaint are made positively, and no averments stated upon information 
or belief, a verification, which omits the words "except as to those matters 
which are therein stated on his information or belief, and, as to those mat- 
ters, he believes it to be true," but otherwise follows the form prescribed by 
«tatute, is sufficient. 
Vol. XVm— 7 ^ . 

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50 Kelly v. Kelly. [Sup. Ct. 



Argument for Appellant. 



Appeal from the Diatrict Court of the First Judicial Dis- 
trict, Storey County. 

The complaint is sufficiently set forth in the opinion. 
The answer, omitting the title of court, is in the following 
words : " Now comes the defendant in the above entitled 
cause ; and for answer unto the complaint of plaintiff, filed 
herein, admits the truth of each and every allegation therein 
contained, and prays the sum of twenty thousand dollars be 
awarded to her out of the community property.'* 

Crittenden I'homton and F. H. Merzbachy for Appellant : 

I. The averments of the charges of adultery made by 
the defendant against the plaintiff are insufficient in sub- 
stance. 

(1.) The offense consists in words, a spoken, not an 
acted, crime. Following the analogy of the precedents of 
pleading in slander, the words should be set forth in ipsissi- 
mis verbis. (Towns, on Slan. and Lib. sec. 329.) 

The only existing exception to this rule is where the 
words uttered are so obscene as to render it improper that 
they should appear upon the record, and in such cases the 
statement of the words may be omitted altogether, and a 
description substituted ; but the reason for not setting forth 
the exact words must appear by proper averments on the 
face of the complaint. (Id. sec. 332.) 

(2.) The charge of adultery alleged to have been made 
by the defendant against the plaintiff is not alleged to have 
been made in the presence or hearing of any third person. 

In an action for slander, the allegation that the defendant 
spoke the words in the presence or hearing of divers peraons 
is indispensable. (Style, 70 ; Stark, on Slan. S60 ; Edwards 
V. Wooton, 12 Co. 35 ; Hicks' Case, Pop. 139, and Hob. 
215 ; Wheeler ^ Appleton's Case, Godb. 340 ; Phillips v. 
JanseUy 2 Esp. R. 624 ; Lyle v. Clason^ 1 Caines, 581 ; 
Sheffill v. Van JDeusen, 13 Gray, 304.) 

(3.) The charges of adultery made by the defendant 
against the plaintift'in the hearing of third persons are not 
alleged to be false. 



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July, 1883.] Kelly v. Kelly. 61 

Argument for Appellant. 



That falsehood is of the gist and essence of the plaintiff's 
cause of action, not only in a technijcal action of slander, but 
in a suit for divorce on the same grounds, is a point on 
which all the authorities are so unanimous, that it would be 
a waste of time and space to cite them. 

II. A charge of adultery, brought by either spouse 
against the other, even if false, is not extreme cruelty per 
se^ but depends upon ^mattera of aggravation and surround- 
ing circumstances, its results and consequences, and the 
character of the parties, in the following particulara : 

(1.) Publicity ; the presence of the parents, children, 
friends, or servants. {Powelson v. Powelson^ 22 Cal. 858 ; 
Cook V. Cook, 3 Stockt. (N. J. Ch.) 195; Wheeler .v. 
Wheeler, 53 Iowa, 511 ; Famham v. Faniham, 73 III. 497 ; 
Goodman v. Goodman, 26 Mich 417.) 

Of all the surrounding circumstances which might or 
could characterize this ofteuse against marital peace and 
hai)piness, publicity is the most essential. If the reproach 
be not uttered in the hearing of a third person, the law itself 
dooms it to perpetual oblivion. The charge may rankle 
and wound, but it cannot disgrace. A charge of this kind, 
uttered in the privacy of the home, far from the hearing of 
the outer world, would, by the law, be held to be unspoken. 

(2.) Falsehood. 

This is essential. The truth would certainly be a justifi- 
cation in this if in any cause. 

(3.) The lack of existence of probable cause, or of well- 
founded suspicion. 

In addition to the abstract falsehood of a single charge 
of unchastity, bad faith, and lack of reasonable or proba- 
ble ground of belief in its truth, should appear. {Kennedy 
V. Kennedy, 73 N. Y. 374; Lewis v. Lewis, 5 Mo. 278.) 

(4.) Habitual repetition. {Poioelson v. Powelson, 22 
Cal, 358 ; Bennett v. Bennett, 24 Mich. 483 ; Goodman v. 
Goodman, 26 Mi(;h. 417 ; Hoshall v. Uoshall, 51 Md. 72 ; 
Cookv. Cook, 3 Stockt. (N. J. Ch.) 195 ; Wheeler v. Wheeler, 
53 Iowa, 511 ; Farnliam v. Famham, 73 111. 497.) 



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62 Kblly v. Kelly. [Sup. Ct 

Argument for Appellant. 

(5.) Physical results and consequences to the sufferer. 
{Poioelson y. Poxoelson^ 22 Cal. 858 ; Richards v. Richards^ 
1 Wright (Pa.) 228.) 

The use of the words ''unendurable'* and ''miserable*' 
in the description of the results of the defendant's acts does 
not strengthen the pleading. The causes alleged must be 
adequate, in the legal sense, to produce such effects. This 
court cannot know, judicially, the mental fiber or the ten- 
derness of the emotions of John KeHy. He may, like the 
fabled Sybarite, "die of a roseleaf in aromatic pain ;** but 
there is nothing on the face of his complaint to show that 
his sense of virtue is so exquisite, or his repugnance to a 
family quarrel so great, that an imputation upon his reputa- 
tion for chastity will bring in its train such anguish that his 
physical and mental constitution is in danger of giving away 
under the shock. For all that this court can know, the 
plaintiff* may be equal to Socrates enduring the taunts of 
Xantippe, and giving to the world a never-to-be-forgotten 
example of marital forbearance and manly fortitude. (See 
further, as to the necessities of a physical result, BaiUty v. 
Bailey, 97 Mass. 873 ; Oiway v. Oiway, 2 Phi 11. 95 ; Smith 
V. Smith, lb. 207 ; Tomkins v. Tomkins, 1 S\vab. & Trist. 
168 ; Milford v. Milford, 1 L. R. P. & U, 295.) 

III. Charges of adultery brought by the wife against the 
husband cannot be extreme cruelty, except in extreme cases. 
The case must be extreme in every feature, because of 

(1.) The duty and responsibility of the husband as a 
member of the stronger sex. {Birkby v. Birkby, 15 111. 120 ; 
De la Hay v. Be la Hay, 21 111. 252 ; Sheffield v. Sheffield^ 
3 Tex. 87 ; Bennett v. Bennett, 24 Mich. 483.) 

Where the plaintiff* relies upon an exception to the gen- 
eral and ordinary course of human events, he should be re- 
quired to state it. 

(2.) The undeniable fact that the proven adultery of the 
husband does not expose him to the same consequences or 
punishments, moral, social, or physical. 

Nothing which we could say beyond its mere uttemnce 
could possibly add to the knowledge which every man 



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July, 1883.] Kelly v. Kelly. 53 

Argument for Respondent. 

possesses of truth of the fact we have just stated. It is as 
well known as the difterence between the sexes ; as the 
reverence of civilized beings for female virtue ; as their 
contempt for those who do not possess it. Until very 
recently, in the continuous growth of the science of juris- 
prudence, divorces were not granted for adultery of the hus- 
band. Such adultery does not bring the same consequences 
to the family, in fact or in law. It does not impose upon 
the husband or the family an heir by a stranger. The 
purity of blood is not corrupted. The greatest and most 
profound writers on the philosophy of jurisprudence have 
given their opinions against granting divorces for the adul- 
tery of a husband. (Shelford on Marriage and Divorce, 395; 
Montesquieu, Esprit des Lois, tome 3, p. 136 ; Traite du 
Contrat de Mariage, Pothier, 516 ; Hosack, Conflict of 
Laws, 255, and note ; Taylor's Elements of Civil Law, 254; 
Cooper's Justinian, lib. 1, tit. 9, sec. 1, p. 435.) 

IV. The necessary results and consequences of the charge 
of adultery, either moral, social or physical, are not alleged 
to have followed in this case. 

V. The verification of the complaint is insufficient. (1 
Comp. Laws, sec. 215 ; 1 Comp. Laws, 1118, Waits Pr. 340; 
IVuscoit V. Doll, 7 How. Pr. 221.) 

Woodburn ^ Mitchell, for Respondent: 

I. The validity of this complaint cannot be tested by 
the application of the exploded doctrine, that there can be 
no legal cruelty without actual or threatened bodily harm, 
but must be tested by the modern rule which has reversed 
that of the English ecclesiastical courts, and which best 
accords with the refinement and intelligence of this enlight- 
ened age. {Heed v. Heed, 4 Nev. 395 ; Leiois v. Lewis, 
5 Mo. 278 ; Pinkard v. Pinkard, 14 Tex. 356 ; Elmes v. 
Elmes, 9 Barr. (Penn.) 166.) It is claimed that the lan- 
guage of the several charges in the complaint is not set 
forth ; that the reason for not setting forth the exact words 
must appear, and that some of the charges are not alleged 
to be false. If there were an omission, which we deny, to 



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54 Kelly v. Kelly. [Sup. Ct 

Argument for Respondent. 



fully state the facts constituting the legal cruelty, it could 
be taken advantage of,*only on demurrer. (Hill v. J5RH, 
10 Ala. 527.) The bill of complaint need not, allege with 
circumstantial particularity, every act of cruelty complained 
of ; one or two specifications will be sufficient, and others 
may be proved under the general charge. {Reese v. Reese^ 
23 Ala. 785; Kenemer v. Kenemer, 26 Ind. 330.) 

n. The allegations of the coraplaiiit being positive, and 
not made upon information or belief, the verification was in 
strict conformity with the requirements of the statute. The 
appellant filed her answer, went to trial on the merits with- 
out objecting to the verification, and cannot for the first 
time raise the point in the appellate court. [McCullough 
V. Clark, 41 Cal. 298; Kuhland v. Sedgwick, 17 Gal 127.) 

in. The laws of this state give the husband, as well as 
the wife, the right to bring a suit for divorce on the ground 
of extreme cruelty. (1 Bishopon Marriageand Divorce, 762.) 
Defendant stands in no better light than does the plaintiff. 
The judgment roll shows that she confessed all the allega- 
tions of the complaint, and that she was awarded on the 
hearing, and is now enjoying, more of the common prop- 
erty than she prayed for in her answer. She permitted 
nearly a year to roll by before appealing to this court, and 
then suddenly became dissatisfied with the decree, and now 
seeks to set it aside on grounds which should have been 
urged in the court below. 

In addition to the authorities cited by counsel, the court 
examined the following : Davies v. Davies, 55 Barb. 136 ; 
Van Veghten v. Van Veghien, 4 John. Ch. 502 ; Evans v. 
Evans, 1 Hag. Con. 35 ; Oliver v. Oliver, Id. 361 ; Kirkman 
v. Kirkman, Id. 413;-i/oWeAi v. Holden, Id. 459; Brown- 
ing on M. and D. Ill ; Hooper v. Hooper, 19 Mo. 356 ; 
Jones V. Jones, 66 Penn. 497; White v. White, 1 S. &T. 593; 
Gibbs V. Gibbs, 18 Kan. 423; Lynch v. Lynch, 33 Md. 329; 
Mag V. Mag, 62 Penn. 211 ; Close v. Close, 25 N. J. Eq. 
529 ; Latham v. Latham, 30 Gratt. 307; Devoe v. Devoe, 
51 Cal. 544; Briggs v. Briggs, 20 Mich. 45; Waring v. 
Waring, 2 Phillmore, 141 ; McNamara v. McNamara^ 2 



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July, 1883.] Kellt v. Kblly. 56 

opinion of the Court— Belknap, J. 

Hilton, 649 ; Graecen v. Graecm, 2 K J. Ch. 462 ; Pidge 
V. Pidge, 8 Met. 266 ; Kempf v. Kmpf, 34 Mo. 211 ; Wal 
ton V. Walioriy 32 Barb. 204; Henderson v. Henderson, 88 
m. 260. 

By the Court, Belknap, J. : 

This is an appeal from a judgment of divorce in favor of 
the husband and against the wife upon the ground of extreme 
cruelty. Neither the findings of the court nor any statement 
of the evidence has been brought here. The appeal is 
taken from the judgment roll alone, and the principal ques- 
tion presented for consideration is whether the allegations 
of the complaint are sufficient to support a judgment of 
divorce. ' 

The complaint, after setting forth the necessary jurisdio- 
tional facts, proceeds as follows : '' That since the said mar- 
riage defendant has been guilty of extreme cruelty towards 
this plaintiff; that on the sixth day of July, A. D. 1881, at 
the city of San Francisco, defendant falsely charged plaintift 
with committing adultery, and frequently since said date 
has accused him of conjugal infidelity, and with living and 
cohabiting with other women, and has since then constantly 
circulated among their mutual friends charges of the same 
character. Plaintift' further avers that since the said sixth 
day of July, A. D. 1881, defendant has been in the habit of 
villifying, slandering and abusing this plaintiff, and apply- 
ing to him the most opprobrious epithets, and has frequently 
threatened to abandon plaintift*; that by reason of the acts 
of the defendant hereinbefore set forth the life of the plaint- 
ift' has been rendered unendurable and miserable, so that he 
has been forced to cease cohabiting and living with defend- 
ant" 

In considering extreme cruelty as a ground of divorce, 
courts have cautiously given it negative, rather than afiirm- 
ative, definitions. The difficulty in giving an affirmative 
definition arises from the fact that cruelty is a relative term; 
its existence frequently depends upon the character and 
refinement of the parties, and the conclusion to be reached 



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56 Kelly v. Kbllt. [Stip. Ct. 



opinion of the Court— Belknap, J. 



in each case must depend upon its own particular facts. 
" We do not divorce savages and barbarians because they 
are such to each other,'* said the supreme court of Pennsyl- 
vania, in Richards v. Richards. ''We can exercise no 
sound judgment in such cases (divorce cases) without study- 
ing the acts complained of in connection with the character 
of the parties, and for this we want the common sense of 
the jury rather than fixed legal rules." (37 Penn. 228.) 

In the great case of Evans v. Eoans, 1 Hagg. Cons. 35, 
Lord Stowell laid down certain principles which have been 
universally approved. He said : '' What is cruelty ? In 
the present case it is hardly necessary for me to define it, 
because the facts here complained of are such as fall within 
the most restricted definition of cruelty ; they aflt'ect not 
only the comfort, but they affect the health and even the 
life of the party. * * * What merely wounds the 
mental feelings is in few cases to be admitted, when not 
accompanied with bodily injury, either actual or menaced. 
Mere austerity of temper, petulance of manner, rudeness of 
language, a want of civil attention and accommodation, even 
occasional sallies of passion, if they do not threaten bodily 
harm, do not amount to legal cruelty ; they are high moml 
oftenses in the marriage state, undoubtedly, not innocent 
surely in any state of life, but still they ai*e not that cruelty 
against whicK the law can relieve. * * * i,j the older 
cases of this sort, which I have had an opportunity of look- 
ing into, I have observed that the danger of life, limb, or 
health is usually inseii;ed as the ground upon which the 
court has proceeded to a separation. This doctrine has 
been repeatedly applied by the court in the cases that have 
been cited. The couii; has never been driven off this 
ground. It has been always jealous of the inconvenience 
of departing from it, and I have heard no case cited in 
which the court has granted a divorce without proof given 
of a reasonable apprehension of bodily hurt. I say an ap- 
prehension, because assuredly the court is not to wait until 
the hurt is actually done ; but the apprehension must be 
reasonable ; it must not be an apprehension arising merely 



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July, 1883.] Kelly v. Krlly. 57 



Opinion of the Court— Belknap, J. 



from an exquisite and diseased sensibility of the mind.'* 
Adopting the principle that the element of danger to life, 
limb, or health, or the reasonable apprehension of such 
danger, must exist in order to constitute legal cruelty, can 
it be affirmed as matter of law that the plaintift* may not 
have established a cause of action under the complaint? 
If the conduct of which the defendant confesses to have 
been guilty, and which she admits drove the plaintift* from 
his home, could have resulted in injury to health, then the 
judgment must be allowed to stand. The result which the 
law is intended to prevent may be accomplished without 
any physical violence. The health of a sensitive wife may 
be as effectually destroyed by systematic abuse, and humil- 
iating insults and annoyances, as by blows and batteries. 
It would be a reproach to the law, as is said by Mr. Bishop 
in his work on Marriage and Divorce, to say that a husband 
may not by personal violence ruin the health of his wife or 
kill her, and yet allow him to produce the same result in 
some other way. (Section 783.) 

Upon this subject the Pennsylvania court of common 
pleas employed the following language : '*A husband may, 
by a course of humiliating insults and annoyances, practiced 
in the various forms which ingenious malice could readily 
devise, eventually destroy the life or health of his wife, 
although such conduct may be unaccompanied by violence, 
positive or threatened. Would the wife have no remedy in 
such cirtumstances, under our divorce laws, because actual 
or threatened personal violence formed no element in such 
cruelty ? The answer to this question seems free from 
difficulty when the subject is considered with reference to 
the principles on which the divorce for cruelty is predicated. 
The courts intervene to dissolve the marriage bond under 
this head, for the conservation of the life or health of the 
wife, endangered by the treatment of the husband. The 
cruelty is judged from its effects; not solely from the 
means by which those effects are produced. To hold abso- 
lutely that, if a husband avoids positive or threatened per- 
sonal violence, the wife has no legal protection against any 
Vol. XVm— 8 

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58 Kblly v. Kelly. [Sup. Ct. 

Opinion of the Court — Belknap, J. 



means short of these which he may resort to, and which 
may destroy her life or health, is to invite such a system of 
infliction by the indemnity given to the wrong-doer. The 
more rational application of the doctrine of cruelty is to con- 
sider a course of marital unkindness with reference to the 
effect it must necessarily produce on the life or health of the 
wife ; and if it has been such as to affect or injure either, 
to regard it as true legal cruelty. This doctrine seems to 
have been the view of Sir H. Jenner Fust, in Dysart v. 
Dysari, where he deduces from what Sir William Scott 
ruled in Evans v. Evans^ that if austerity of temper, 
petulance of manner, rudeness of language, a want of civil 
attention, occasional sallies of passion, do threaten bodily 
harm, they do amount to legal cruelty. This idea, expressed 
axiomatically, would be no less than the assertion of this 
principle : that, whatever form marital ill-treatment 
assumes, if a continuity of it involves the life or health of 
the wife, it is legal cruelty.'* {Butler v. Butler, 1 Pars. 
(Pa.) Sel. Gas. 844.) 

We scarcely need the aid of judicial authority for the 
enforcement of the truth that there may be cruelty without 
personal violence, and that such cruelty, working upon the 
mind, may affect the health. Wretchedness of mind 
can hardly fail to have this result. In causes of divorce 
upon the ground of cruelty, wives appear as complainants 
more frequently than husbands. This arises from the fact 
that the husband is generally physicallj^ stronger than the 
wife, and less susceptible to the eft'ects of ill-treatment than 
she. He too may, in fact, frequently restrain the wife's 
violence, by the exercise of marital power in the domestic 
forum, without the aid of courts. But the law does not en- 
courage him to measure strength with her. *^ The fact that 
the husband can defend himself is the very grievance. It 
is because he may be tempted, in defending himself, to re- 
taliate upon his wife that the court is bound to interfere, 
and to decree a judicial separation when such acts are 
proved. When a man marries an ill-tempered woman he 
must put up with her ill-humor ; but the moment she lifts 



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July, 1883.] Kelly V. Kblly. 59 

Opinion of the Court — Belknap, J. 



her hand against him the court must interfere, for, if it does 
not, how can it answer the husband if he should subse- 
quently allege that he had been forced to use violence in 
self-defense." {Forth v. Forth, 36 Law J. 122, cited in 
Browning on M. and D. 111.) 

The statute contemplates cases in which the husband may 
be the complaining party, and in such cases expressly aftbrds 
him the same relief which it extends to a complaining wife. 
Although he is generally physically stronger than she, he 
may be the weaker party. And cases may arise in which 
the wife may cause th^ husband to suffer as seriously, men- 
tally and physically, as she would were he the aggressor. 
To reverse this judgment would be to say, as matter of law, 
that no such cases could exist. Under the allegations of the 
complaint a case of extreme cruelty could have been proven. 
Whether such a case was, in fact, proven, cannot be re- 
viewed upon this appeal, because of appellant's failure to 
make the evidence a part of the record. The general prin- 
ciple of law is that when matter is necessary to be proven 
in order to support the judgment, it will be presumed to 
have been proven, in the absence of an affirmative showing 
to the contrary. And this principle is always applicable in 
an appellate court to causes presented, as this case has been, 
upon the judgment roll alone. 

Objection is made to the verification of the complaint. 
Each allegation of the complaint is made positivelj^ and 
nothing is stated upon information or belief. The verificar 
tion follows the form prescribed by statute, omitting the 
words " except as to those matters which are therein stated 
on his information or belief, and, as to those mattera, he 
believes it to be true." "If a party, who in his answer 
has stated nothing on information and belief, thinks it ad- 
visable to swear that he believes such statement to be true, 
he doubtless has a right to do so ; but if in such a case he 
confines himself to swearing that his answer is true to his 
knowledge^ he not only complies with the requirements of 
the Code, but avoids what, to say the least of it, is a harm- 
less absurdity . " {Kinkaid v. Kipp, 1 Duer, 692.) 

Judgment affirmed. 

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60 Jones v. Adams. [Sup. Ct. 

Opinion of the Court— Hawley, C. J. 
[No. 1081.] 

JOSEPH JONES, Appellant, v. JOHN Q. ADAMS, 
Respondent. 

Statement Must be Authei^icated— A statement on motion for a new trial 
will not be considered ^on appeal unless it is authenticated in the mode 
prescribed by statute. 

Appeal from the District Court of the Second Judicial 
District, Douglas County. 

N. Soderbergj for Appellant. 

A, C. Ellis, for Respondent. 

By the Court, Hawley C. J. : 

The errors assigned by appellant, upon which he relies 
for a reversal of the judgment and order of the court refus- 
ing a new trial, cannot be considered on this appeal, because 
there was no statement on motion for new trial. That 
which purports to be a statement has no certificate from the 
parties, or attorneys, *'that the same has been agreed upon 
upon and is correct. ' * It is not accompanied with the certifi- 
cate of the judge " that the same has been allowed by him 
and is correct ;*' nor is there any certificate from the clerk 
that **no amendments have been filed.'* (CHv. Prac. Act, 
sec. 197 ; 1 Comp. Laws, 1258.) 

We have repeatedly declared that if the statement on 
motion for a new trial is not authenticated in the mode pre- 
scribed by the statute, the motion for new trial should be 
denied, and the appeal therefrom dismissed. {Lockwood v. 
Marsh, 8 Nev. 138 ; White v. While, 6 Nev. 20 ; Solomon 
v. Fuller, 13 Nev. 276 ; Hall v. Ogg, ante.) 

No error appears upon the judgment roll. 

The judgment of the district court is affirmed. 



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July, 1883.] ToGNiNi v. Hansen. 61 

Opinion of the Court— Leonard, J. 



[No. 1120.] 

JOSEPH TOGNINI BT AL., Appellants, v. PETER N. 
HANSEN, Respondent. 

LssTRUcTioN Upon Point Not in Issue— When New Trial Should be Granted 

— The court below granted a new trial on the ground that the jury had been 

instructed to find upon a material fact concerning which no evidence was 

• introduced at the trial : Held, upon the review of the testimony, that the 

ruling of the district court was correct. 

Appeal from the District Court of the Sixth Judicial 
District, Eureka County. 

The facts are stated in the opinion. 

F. W. Cole, for Appellants. 

Wren ^ Cheney and i?. M, Beatty, for Respondent. 

By the Court, Leonard, J. : 

This action was commenced May 27, 1881. In their 
complaint plaintiffs allejs^e that on or about August 11, 1879, 
the defendant entered into a contract with the firms of Leon- 
ard! & Co. and Alberigi & Co., by which contract said firms 
agreed to manufacture charcoal on the Daney & Ellison 
ranch, in Eureka county, and deliver the same to defendant, 
and in consideration thereof defendant agreed to pay to said 
firms, on delivery of said charcoal, the sum of fourteen cents 
per bushel for each and every bushel so delivered ; that on 
or about the twenty-sixth day of March, 1880, plaintiffs 
succeeded to the rights of said firms in said contract, by 
virtue of an equitable assignment of the same to plaintiffs, 
and that ever since the last-named date defendant has recog- 
nized plaintiffs as the successors in interest in and to said 
contract. Then follows an allegation that under and by vir- 
tue of said contract, since March 26, 1880, plaintiff's manu- 
factured charcoal and delivered the same to defendant, to 
the amount of fifty thousand bushels, and that defendant 
has received the same ; that there is now due and owing 
thereon from defendant to plaintiffs the sum of seven thou- 
sand dollars. 



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62 ToGNiNi V. Hansen. [Sup. Ct. 

Opinion of the Court— Leonard, J. 



For a second and separate cause of action it is alleged 
that plaintifts, since January 1, 1881, at defendant's request, 
have sold and delivered to defendant fifty thousand bushels 
of charcoal, of the value of seven thousand dollars, and that 
defendant has not paid for the same. At the trial, by an 
amendment to the complaint, plaintifts were permitted to 
further allege that between January 1, 1880, and May 27, 
1881, plaintifts, at defendant's request, manufactured and* 
delivered to defendant fifty thousand bushels of ehurcoal, 
of the value of seven thousand dollars, no part of which 
had been paid. Defendant denied each and every allega- 
tion in the original complaint contained, and those in the 
amendment thereto were, and are, treated as denied. Plaint- 
ifts obtained verdict and judgment for two thousand six 
hundred and seventeen dollars and seventy- eight cents and 
costs. 

This appeal is taken from an order granting a new trial, 
because plaintifts' instruction No. 1 was given to the jury, 
when, in the opinion of the court, there was no evidence to 
justify the same, and in consequence of which the jury were 
led into an error in rendering their verdict. The instruc- 
tion in question is as follows : ''It is a question of fact for 
you to consider whether the firms of Leonard! & Co. and 
Alberigi & Co. were one and the same firm, and as to 
whether the wood cut or charcoal burned was so cut or 
burned by one or both of such firms, or how much was cut 
or burned by each of said firms. ' ' 

It is not claimed by appellants that the court erred in 
gmnting a new trial, if its conclusion was correct that there 
was no evidence tending to show that the firms of Leonardi 
k Co. and Alberigi & Co. were one and the same firm. 
The record discloses but one contract, and that was made 
by defendant and Leonardi & Co., although the court, in its 
opinion, says that, upon the trial, the defendant introduced 
in evidence the original written contract between himself 
and Alberisri & Co., which disclosed the same terms as that 
between him and Leonardi & Co., and was dated July 26, 
1879. The contract between defendant and Leonardi & 
Co. was dated August 11, 1879. 

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July, 1883.] ToQNiNi v. Hansen. 63 



Opinion of the Court — Leonard, J. 



Defendant testified that there was no connection between 
the two firms mentioned ; that they worked under difl:erent 
contracts, the terms of which were substantially the same ; 
that before plaintifts and Torre levied upon the wood and 
coal, as hereinafter stated, Leonardi & Co. had cut a large 
amount of wood and burned it into coal, and that he had 
paid them over 01,600 therefor ; that Alberigi & Co. also 
cut wood under their contract, enough to make 28,000 
bushels of charcoal, and that about the first of December, 
1879, they threw up their contract and turned the wood over 
to him in satisfaction of certain indebtedness due from them 
to him. Defendant also testified that at the time of the 
sheriff's sale in Torre's suit, March 26, 1880, he notified 
plaintiffs that the wood cut by Alberigi & Co. was his, and 
that he did not want it burned into charcoal. 

Plaintiffs did not undertake to disprove this testimony. 
So, as stated by the court below, *' there was no attempt to 
contradict the testimony of the defense that the Alberigi 
& Co.'s wood was cut and paid for before plaintiffs came 
upon the scene ; that plaintiffs were notified that defendant 
owned the same, and did not wish it burned into charcoal ; 
and that, notwithstanding, plaintiffs proceeded at their 
peril, and burned that wood into charcoal." 

Defendant testified that Leonardi & Co. had cut very 
little wood, if any, at the time Alberigi & Co. turned their 
wood over to him ; that his wood ranch was made up of two 
or three different ranches that he had bought ; that Leon- 
ardi & Co. cut wood in one place, and Alberigi & Co. in 
another ; that the Leonardi coal was manufactured by Leon- 
ardi and Alberigi, after they went in together, about the 
first of December, 1880. We quote from his testimony : 
** That (the Leonardi) was the coal that I gave Tognini & 
Co. notice that I would receive from them. That had 
nothing to do with the Alberigi wood or coal. I never 
gave Tognini & Co. notice that I would receive any coal 
burned from the Alberigi A Co. wood, and I never in any 
way recognized the right of Tognini & Co. to burn it into 
charcoal." The notice given in evidence corresponds with 



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64 ToGNiNi V. Hansen. [Sup. Ct. 

Opinion of the CJourt — Leonard, J. 

this testimony. It was given in January, 1881, and 
referred only to the coal burned by Leonardi & Co. 

Again, plaintifta' rights in this action, whatever they are, 
are based upon the fact that plaintiffs are the successora of 
Leonardi & Co., for the reason that they made a certain 
purchase at sheriff's sale, in the case of John Torre v. 
Giovanni Demetro^ Guisseppi Ludessi and Antonio Leon- 
ardiy and the further reason, as they claim, that they were 
recognized and treated by the defendant as the successors 
of Leonardi & Co. But the names of each of the defend- 
ants in that case appear in the judgment, execution, sheriff's 
return on execution, notice of sale, and sheriff's certificate 
of sale, and in neither document does the name of Alberigi 
& Co., or any member of that firm, appear. It was a part 
of the judgment in that case that execution issue against the 
separate property of the defendants served with summons, 
and the joint property of all the defendants, to-wit: Giov- 
anni Demetre, Guisseppi Ludessi, Antonio Leonardi and 
Adnaino Andreucetti. If Alberigi & Co., or any member 
of that firm, had any interest in the property or property 
rights purchased, they were not conveyed to plaintitts under 
the sale. Defendant not only notified Torre and plaintitts 
that he owned the property in question, but Torre gave the 
sherift' an indemnifying bond, with plaintiff Tognini as one 
of the sureties. This was as early as March 26, 1880, 
before plaintiffs burned any coal from the Alberigi wood. 
Besides, plaintiff's brought suit in the justice's court and 
attached ten thousand bushels of charcoal, and wood suffi- 
cient to make thirty thousand bushels of coal, more or less, 
as the property of Antonio Leonardi and A. Andreucetti. 

The coal attached in the last-named suit, we understand, 
was that admitted by defendant to have been burned by 
Leonardi & Co. under their contract, which was on the 
ranch when plaintiffs commenced to burn coal, and the 
wood was cut by Alberigi & Co. under their contract, which 
was abandoned about December 1, 1879, by consent of de- 
fendant, who took the wood cut in satisfaction of Alberigi 
A Co.'s indebtedness to him. But counsel for appellants 



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July, 1883.] ToGNiNi v. Hansen. 66 

Opinion of the Court— Leonard, J. 

says defendant's statement that the two firms were separate, 
and worked under distinct contracts, is contradicted by his 
further statement that Alberigi & Co. and Leonardi & Co. 
cut wood together after November, 1879, and that a certain 
pass-book admitted in evidence was kept in the name of 
Alberigi & Leonardi. Defendant stated that Alberigi went 
to work with Leonardi after he threw up his contract, and 
there is nothing to prove that the purchases shown by the 
pass-book were made prior to that time. Alberigi might 
have been a member of the firm of Leonardi & Co. after 
November or December, 1879, and, consistently with that 
fact, the pass-book thereafter might have been kept as 
stated. But the fact that Alberigi was a member of the 
firm of Leonardi & Co. after the contract of Alberigi & Co. 
had been abandoned, does not tend to show that, prior to 
that date, Alberigi A Co. and Leonardi & Co. were one and 
the same firm, or that the wood cut previously by A. & Co. 
was the property of L. & Co. 

Plaintitt* Tognini testified as follows : ** There were three 
or four members of the firm of Leonardi & Co. Leonardi 
and Alberigi were all I knew.*' The witness might have 
meant, and, we presume, did mean, that Alberigi was one 
of that firm after he abandoned his own contract, Novem- 
ber or December, 1879. That view accords with the testi- 
mony of defendant, and is not inconsistent with plaintiffs'. 

Finally, it is said, the fact that defendant gave plaint- 
iffs a statement of the Alberigi & Co. coal shipped by him 
in February, 1881, is inconsistent with the idea that he did 
not, prior to that time, consider the A. A Co. coal and the 
L. & Co. coal were one and the same. Defendant said he 
gave the statement because plaintiffs asked for it. But he 
had given previous notice that the wood cut by A. & Co. 
was his property, and that he did not want it burned into 
coal. Plaintifts not only failed to ^et defendant's consent 
to the manufacture of the Alberigi wood into coal, but 
they did so against his protest. They were not misled by 
his words or acts. And the fact that he subsequently, at 
plaintifiB' request, gave them a statement, is not any evi- 

VOL. XVin-9 r^^r^]^ 

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66 HiRSCHFBLD V. WILLIAMSON. [Slip. Ct. 

Points decided. 

dence of his previous consent or his subsequent ratification. 
We think the order appealed from should be aflSrmed, 
and it is so ordered. 



[No. 1090.] 

JOSEPH HIRSCHFELD, Respondent v. CHARLES 
WILLIAMSON, Sheriff, etc., Respondent. 

Sale— Declarations of Vendor— When Not Admissible— Res Gest^.— The 
declarations of a vendor, made after a sale by him and after he has parted 
with the possession to his vendee, cannot be received in evidence against 
the vendee for the purpose of affecting or impeaching the bona fides of such 
sale, or of defeating the vendee's title on the ground that the sale was in 
fraud of the vendor's creditors. The declarations are not admissible as 
being part of the rea gestx. 

Idem— Party Bound by His Pleadings.— In reviewing the evidence and plead- 
ings : Held, that defendant is bound by the averment in his answer and 
that he cannot claim that a sale which he alleges, therein, was made at a 
certain date was really made at a different time. 

Appeal from the District Court of the First Judicial Dis- 
trict, Storey County. 

The power of attorney referred to in the opinion reads as 
follows : 

Know all men by these presents, that I, Louis Ehrlich, 
of the city, county, and state of New York, have made, 
constituted and appointed, and by these presents do make, 
constitute and appoint Moses Ehrlich, of Reno, Nevada, 
my true and lawful attorney, for me and in my name, place 
and stead, to take (jharge of and to conduct and carry on 
my general merchandise business at said Reno, Nevada, to 
purchase and sell, either for cash or credit, all such articles 
and property as he may deem useful and proper, as con- 
nected with said business ; sign, accept and indorse notes, 
drafts and bills ; to state accounts ; to sUe and prosecute, 
collect, compromise or settle all claims or demands due or 
to become due, now existing or hereafter to arise in my 
favor, and to adjust, settle and pay all claims and demands 
which now exist against me or may hereafter arise, either 



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July, 1888.] HiRscHFELD v. Williamson. 67 



Argument for Appellant. 



as connected with the foregoing business or otherwise ; to 
take the general management and control of my afiairs, 
property and business, and therein to buy, sell, pledge or 
mortgage, and to execute and enter into bonds, contracts, 
mortgages and deeds connected therewith, and in general 
do all other acts and things which he may consider useful 
or necessary connected with my business, property or inter- 
ests ; giving and granting unto my said attorney full power 
and authority to do and perform all and every act and thing 
whatsoever requisite and necessary to be done in and about 
the premises as fully to all intents and purposes as I might 
or could do if personally present, with full power of substi- 
tution and revocation, hereby ratifying and confirming all 
that my said attorney or his substitute shall lawfully do or 
cause to be done by virtue thereof. 

In witness whereof I have hereunto set my hand and seal 
the 12th day of August, A. D. 1879. 

L. EHRLICH. [SEAL.] 

Wal. J. Tuska and D, JVeidenrich^ for Appellant : 

I. The declarations made by Louis Ehrlich to Levi, 
Greenwald & Loewenthul were made while to all intents 
and purposes Ehrlich was in possession of the chattels. By 
implication of law no sale was made to the respondent by 
L. Ehrlich on January 15, 1880. 

n. Hirschfeld claims under a sale alleged to have been 
made on January 16, 1880, by M. Ehrlich, attorney in fact 
of L. Ehrlich by virtue of a power of attorney dated August 
1-2,. 1879. No such extraordinary powers, to sell out his 
entire business at Virginia city, Nevada, had been given 
by L. Ehrlich to his son. The power of attorney falls far 
short of this. It is merely a general power to attend to the 
transaction of his business in Reno, Nevada. A power of 
attorney must be strictly construed. {Lord v. Hherman, 2 
Cal. 498; Billings v. Morrow, 7 Cal. 171; Blum v. JioberU 
son, 24 Cal. 127; Wood v. Goodridge, 6 Cush, 117; Ferreira 
V. Depew, 17 How. Pr. 418 ; Shaw v. Stone, 1 Cush. 244 ; 
Temple v. Pomroy, 4 Gray, 131.) 



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68 HiRSCHFBLD V. WILLIAMSON. [Sup. Ct. 

Argument for Respondent. 

in. The declarations of the assignor while in possession 
and after assignment are admissible. {Adams v. Davidson^ 
10 N. Y. 309.) A general power to manage and ccftiduct 
one's business, authorizes the agent only to buy and sell in 
the usual courae of trade or business. {Shaw v. Stone, 1 
Cush. ; Temple v. Pomroy, 4 Gray ; Ferreira v. Depew, 17 
How. Pr. 418 ; Wood v. Goodridge, 6 Cush.) 

IV. The declarations objected to are admissible in evi- 
dence as res gestce. The rule applicable to res gesice does 
not require that the circumstances proposed to be given in 
evidence should have occurred at the precise time when 
the principal fact happened ; if it arose either at the time 
or soon thereafter as to constitute a part of the transaction, 
it will be sufficient. 

Leiois ^ Deal, for Respondent : 

I. The order of the district court granting a new trial 
should not be reversed unless the weight of evidence clearly 
preponderates against the ruling of the court. (State v. 

Yellow Jacket Co., 5 Nev. 415 ; Phillpotts v. Blasdel, 8 Nev. 
61 ; Treadway v. Wilder, 9 Nev. 67 ; Margaroli v. Mulli- 
gan, 11 Nev. 96.) 

II. The confirmation of the sale relates back to the 
fifteenth day of January, 1880, and places the sale on the 
same footing as if the authority had been conferred before 
the transaction. (1 Chitty on Contr. 295.) 

III. The power under which the son acted was sufficient. 
It authorized him to adjust, settle and pay all claims which 
existed against his father at the time of the execution of«the 
power, or that might thereafter exist, either as connected 
with his business or otherwise. 

By the Court, Leonard, J. : 

Defendant appeals from an order of the court below grant- 
ing to the plaintift* a new trial. The record shows these 
facts ; Louis Ehrlich, a resident of New York city, on and 
prior to January 15, 1880, had a store in Virginia city, in 
this state, wherein he sold dry goods, clothing, etc. On the 



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July, 1883.] HiRSCHFBLD V. Williamson. 69 

Opinion of the Court— Leonard, J. 



twelfth day of August, 1879, he executed and delivered to 
his Ron, Moses Ehrlich, a power of attorney to do and per- 
form in his name the matters and things therein stated. 
On the fifteenth of January, 1880, Moses Ehrlich, as attor- 
ney in fact of Louis Ehrlich, sold and delivered to Joseph 
Hirschfeld, plaintiff herein, all the goods in the store at Vir- 
ginia city, and plaintiff* retained possession thereof until 
February 6, 1880, when defendant, as sheriff of Storey 
county, attached the goods in question as the property of 
Louis Ehrlich. On the sixteenth day of February, 1880, 
plaintiff* commenced this action to recover the goods so 
attached, or their value, to- wit, four thousand eight hundred 
and seventy-six dollars and fifty cents. On the third day of 
Februai-y, 1880, after being informed by telegram and 
letter, dated January 15, 1880, of the circumstances and 
conditions of the sale, Louis Ehrlich ratified the same by 
an instrument in writing, signed, sealed and acknowledged 
by him. At the trial, and against the objections of plaint- 
iff*, defendant was permitted to prove certiiin declarations 
made by Louis Ehrlich in New York city, on the nineteenth 
and twentieth of January, 1880, the tendency of which was 
to impeach the bona fides of the sale and impair the title of 
plaintiff*. 

The only question presented for our consideration is as to 
the admissibility of these declarations. The defendant, in 
his answer, alleged that the pretended sale was made for 
the purpose of defrauding the creditors of Louis Ehrlich, 
one of whom was the plaintiff' in the suit wherein the goods in 
question were attached by the defendant in this action, 
February 6, 1880. The verdict of the jury was for the 
defendant. It is general, and sustains the allegations of 
fraud. But it was found, in part, upon the declarations of 
Louis Ehrlich, admitted in evidence against plaintift^s 
objection. Those declarations were harmful to plaintiff's 
case. Their tendency was to invahdate the sale. Defend- 
ant ought not to retain a verdict obtained upon material 
illegal testimony. If anything is well settled in the law it 
is that the declarations of a vendor, made after a sale by 



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70 HiRSCHFELD l\ WILLIAMSON. Sup. Ct. 



Opinion of the Courts— Leonard, J. 



him, and after he has parted with the possession to his 
vendee, cannot be received in evidence against the vendee 
for the purpose of affecting or impeaching the bona fides of 
such sale, or of defeating the vendee's title on the ground 
that the sale was in fraud of the vendor's creditors. Coun- 
sel for appellant do not deny that such is the law, but they 
say that the declarations were made on the nineteenth and 
twentieth of January, when to all intents and purposes 
Louis Ehrlich was in possession, because under the power 
of attorney, Moses Ehrlich did not have authority to sell 
out his father's entire business in Virginia city ; that the 
sale, and consequently the delivery of possession, to plaint- 
iff* were void when made, and the ratification was not made 
by Louis Ehrlich until afterwards, on the third day of 
February 1880. It is claimed, therefore, that the rule of 
law stated above does not apply to this case. Our impres- 
sions are that the power of attorney was sufficient to author- 
ize M. Ehrlich to make the sale and transfer ; but, under 
the allegations contained in the answer, we shall not base 
our decision upon this point. Defendant's theory of the case, 
as shown by his answer and at the trial, was that the trans- 
fer was made on the fifteenth of January, 1880, by L. 
Ehrlich, by and through his attorney in fact, M. Ehrlich, 
but that the transaction was void for fraud. 

A portion of the defendant's answer is as follows : *'And 
defendant avers, upon his information and belief, that on or 
about the fifteenth day of January, 1880, said (Louis) 
Ehrlich, intending to cheat and defraud his said creditors, 
did then and there combine and collude with the plaintiff 
herein, and said plaintiff* did then and there conspire and 
confederate with said Ehrlich to cheat and defraud the said 
creditors of said Ehrlich, and in pursuance of said scheme, 
and in furtherance thereof, sairl Ehrlich did, on or about said 
da)/, pretend to make^ and did make, a transfer of his said 
stock in trade, including the goods and chattels mentioned and 
described in the complaint herein, unto said plaintiff ; and said 
plaintiff' at said time well knew that said Ehrhch was largely 
indebted as aforesaid, and that said transfer was made with 



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July, 1888.] Robinson V. LoNGLBY. 71 

Points decided. 

r . ■ — - 

intent to cheat and defraud the creditors of said Ehrlich. 
And defendant avers, upon his information and belief, that 
plaintiff paid no consideration for said goods and chattels 
described in the complaint herein, and that he accepted said 
pretended transfer with the intent to cheat and defraud the 
said creditors of said Ehrlich, and now claims said goods 
and chattels in secret trust for said Ehrlich." 

The alleged fraudulent transfer referred to by defendant 
was the one made by M. Ehrlich on the fifteenth day of 
January. In fact, that was the only one made. Referring 
to that transaction, defendant alleges that L. Ehrlich trans- 
ferred to plaintiff the property in question, but that said 
transfer was made to cheat and defraud the creditors of 
L. Ehrlich. Li the face of these allegations defendant can- 
not now question the power of M. Ehrlich to make the 
transfer. He cannot now dispute the correctness of his own 
allegations. His only right under the pleadings was to 
show by competent evidence that the transfer was void for 
fraud. The declarations in question were not admissible by 
reason of their being a part of the res gestce. {Meyer v. V. 
^ T. JR. Co., 16 Nev. 343 ei seq.) 

The order of the court appealed from is affinned. 



. [No. 1146.] 

JOHN ROBINSON, Respondent, v. A. A. LONQLEY, 

Appellant. 

Failubb to File Briefs — When Judgment Should be Affirmed. — When 
appellant's counsel fails to file any points or authorities, as required by the 
rules of this court, the judgment appealed from should be affirmed. 

Jurisdiction of District Court— Legality of Tax. — The district court has 
jurisdiction of an action brought to recover money paid under protest for 
an illegal tax, although the amount in controversy is less than three hun- 
dred dollars. 

Circus— When Not Taxable.— A traveling circus and menagerie, owned by a 
non-residentt and brought into this state, to be exhibited at various places, 
and then taken into and through other states for the same purpose, is not 
subject to taxation in this state. 



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72 Robinson v. Longley. [Sup. Gt. 

Opinion of the Court — Leonard, J. 

Appeal from the District Court of the Second Judicial 
District, Washoe County. 

The facts are stated in the opinion. 

No brief for appellant. 

John H. Kiitrell and Thomas E. Haydon^ for Respondent : 

I. Property to be taxable must be abiding within the 
limits of a state or county; must be incorporated with the 
wealth of the state or county. 

By the Court, Leonard, J. : 

Plaintiff' is a resident of Hamilton county, state of Ohio, 
where he pays and has heretofore continually and uniformly 
paid taxes upon the property hereinafter mentioned. In 
July, 1882, he was, and for a long time prior thereto had 
been, the owner of a circus and menagerie. In the month 
mentioned he was traveling and exhibiting his said circus 
and menagerie, transporting the same on the cars of the 
Union Pacific and Central Pacific Railways, from Omaha, 
Nebraska, to the town of Reno, in this state, where he re- 
mained and exhibited one day. He also exhibited in other 
towns in the state, along the lines of railroads. He did not 
come to the state or bring his property here, to remain 
longer than was necessary in order that he might exhibit 
the same. After exhibiting in the state as before stated, 
he intended to take his circus and menagerie to the princi- 
pal cities and towns in California, and in fact did so. 

While said property was in Washoe county, the defend- 
ant, as assessor thereof, assessed said circus and menagerie 
for state and county purposes, in the sum of ten thousand 
dollars, and threatened to seize and sell said property, unless 
the tax of two hundred and seventy-five dollars should be 
forthwith paid thereon. To prevent such seizure and sale, 
plaintiff' then and there paid said tax under protest, and 
thereafter brought this action to recover back the same. 

Defendant demurred to the complaint on the ground that 



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July, 1883,] Robinson v. Lonolbt. 73 

Opinion of the Court — Leonard, J. 

the same did not state a cause of action, and that the sec- 
ond judicial district court did not have jurisdiction of the 
cause of action. The demurrer was overruled, and defend- 
ant failing to answer in the time allowed therefor, judg- 
ment by default was entered. This appeal is taken from 
the judgment. 

Appellant has failed to file any points and authorities as 
required by the rules of this court. For this reason alone, 
we should be justified, under former decisions, in affirming 
the judgment appealed from ; but from the character of 
the case we deem it advisable to pass upon the merits of the 
appeal. 

The court below had jurisdiction of the cause of action. 
The case involves the legality of a tax. Const, art. VI, sec. 6. 
The complaint states a cause of action against defendant. 
The property was not assessable in this state. In the sense 
of the statute, for the purposes of taxation, it was not within 
the state. It was passing through the state at the time of 
the assessment. It was here temporarily in the ordinary 
course of business. When he came here, plaintiff intended 
to remain in the state but a few days— just long enough to 
fill the engagements advertised — and then to continue his 
journey to other places in a neighboring state. He intended 
to take away all the property he brought with him. He 
was actually **on the wing," passing from one state to 
another. As well might this property have been taxed, 
if for the purpose of rest or health, plaintifl:' had stopped a 
few days in Washoe county. As well might a resident of 
another state be taxed on his money and team, if he comes 
on a visit to the state, to remain a week. {Barnes v. Wood- 
bury, 17 Nev. 383 ; Coiilej/ v. Chedic^ 7 Nev. 341 ; State 
V. JSngle, 34 N. J. Law, 427 ; Moi/t v. Com'rs. 23 N. Y. 
240 ; Id. 245.) 

The judgment is affirmed. 



Vol. XVm— 10 



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74 Ex PARTE Sweeney. [Sup. Ct 

Points decided. 
[No. 1167.] 

Ex Parte E. D. SWEENEY. 

OowTEMPT— Construction of Statutes.— The statute relating to contempta 
and punishments must be strictly construed, and no interpretation should 
be given beyond its obvious meaning. (Stats. 1869, 267.) 

Idem— Statutes Applicable to Cases of Contempt.— The provisions of sec- 
tion 449 of the criminal practice act (1 Coinp. L. 2073) and of the "act 
in relation to fines" (2 Comp. L. 3288) apply to all cases of contempt, when 
criminal, as well as other misdemeanors. 

Contempt— Criminal Proceedino, When.— A contempt for the disobedience 
of a decree and violation of an injunction is in the nature of a criminal 
offense, and the proceeding for its punishment is in the nature of a crimi- 
nal proceeding. 

Idem — Fine— Imprisonment for Non-Payment of. — Reldy that the fine im- 
posed in such cases is punitive, inflicted for the public good ; that impris- 
onment for the non-payment of the fine is but a mode, provided by statute, 
for the enforcement of the fine, incident to the power given to the court to 
impose the fine, and that it cannot be r^arded in the light of punishment. 

Application for discharge of petitioner upon habeas cor- 
pus. 

The facts are stated in the opinion. 

Harris ^ Bartine, for Petitioner. 

B. M. Clarke^ against Petitioner. 

At Chambers, Hawley, C. J. : 

Petitioner, upon a regular hearing had, was adjudged 
guilty of contempt of court, for disobedience to the decree 
and injunction in the case of Phillips v. Welchy 11 Nev. 
187, in appropriating more water than he was entitled to 
by said decree. For this contempt he was fined five 
hundred dollars, and the commitment under which he is 
held declares that " if said fine be not paid forthwith," the 
petitioner is to be *' imprisoned in the county jail of Ormsby 
county * * * for the space of two hundred and fifty 
days ; that is to say, at the rate of one day for each and 
every sum of two dollars of said fine; and that for each 
day's imprisonment under this order defendant have credit 



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July, 1883.] Ex partb Swbbnby. 76 

opinion of the Court— Hawley, C. J. 

upon the said fine for the sum of two dollars; and that 
defendant, if he so desire, after having served out part of 
said period of imprisonment, may be discharged from cua* 
tody and set at liberty upon his paying to the said sheriff 
any balance remaining due of said fine, after crediting 
thereon the imprisonment which defendant shall have 
undergone as aforesaid, at the rate of two dollars per day 
for such imprisonment, and not otherwise/* 

Petitioner claims that this order for his imprisonment is 
absolutely void, and hence that he is illegally restrained of 
his liberty. 

The statute relating to contempts and punishments, like 
other statutes relating to proceedings criminal in their 
nature, is to be strictly construed, and no interpretation 
should be given beyond its obvious meaning. The section 
upon which petitioner relies reads as follows: *' In cases 
of contempt the punishment shall be by fine and imprison- 
ment; but no fine shall exceed the sum of five hundred 
dollara, and no imprisonment shall exceed the period of five 
days, except as provided in section four hundred and sixty- 
nine.*' (Stat. 1869, 267, sec. 473; 1 Comp. Laws, 1534.) 
The exception referred to has no application to a case like 
this. This section is identical in its provisions with the 
statute of 1861. (Stat. 1861, 389, sec. 440.) At common 
law the power to punish for contempts was unlimited, 
dependent only upon the discretion of the court imposing 
the sentence. 

Under the statutes of this state, by the section above 
quoted, the power of courts is limited as to the extent of the 
punishment. No court or judge can impose a greater fine 
than five hundred dollars or imprisonment for more than 
five days (or both such fine and imprisonment), as a pun- 
ishment, upon any person adjudged guilty of contempt. 

In the proceeding against petitioner no impi'isonment was 
imposed as a punishment for the contempt, and the ques- 
tion to be determined, is, whether the provisions of the 
criminal practice act, or the act in relation to fines, as to 
the method of enforcing fines in criminal caaes, applies. 



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76 Ex PARTE Sweeney. [Sup. Ct. 

Opinion of the Court— Hawley, C. J. 

The criminal practice act in relation to the enforcement of 
judgments, provides that : ''A judgment that the defendant 
pay a fine, may also direct that he be imprisoned until the 
fine be satisfied, specifying the extent of the imprisonment, 
which shall not exceed one day for every two dollara of the 
fine, or in that proportion.** (Stat. 1861, 483, sec. 448 ; 1 
Comp. Laws, 2073.) 

The "act in relation to fines" provides, among other 
things, that the court in entering ''a judgment, that the 
defendant in a criminal case pay a fine, * * * shall by 
such judgment direct that if the judgment or any part 
thereof is not paid, the defendant be imprisoned one day 
for each two dollars of the judgment not paid." (Stat. 
1869, 96; 2 Comp. Laws, 3288.) 

These provisions, in my opinion, apply to all criminal 
cases of every kind and character, not otherwise specifically 
provided for — to cases of contempt, when criminal, as well 
as to other misdemeanors. A contempt of the character of 
which petitioner was found guilty, is in the nature of a 
criminal ottense, and the proceeding for its punishment is 
in the nature of a criminal proceeding. {Phillips v. Welch^ 
supra; Whittem v. Staic^ 36 Ind. 204; Cartwrighi" s Case, 
114 Mass. 239; Hill v. Crandall, 52 111. 73; Williamifon* s 
Case, 26 Penn. St. 19; .B. ^ 0. B. Co. v. C% of Wheeling, 
13 Grat. 57.) The fine imposed, in such a case, is punitive, 
inflicted as punishments in other criminal cases are inflicted 
for the public good, in order to secure obedience to lawful 
authority. The imprisonment is but a mode, which in this 
state is provided by statute, for the enforcement of the 
fine. It is incident to the power given to the court to 
impose the fine, and it cannot be regarded in the light of 
punishment. 

In Ux parte Bollig, the petitioner was convicted of a viola- 
tion of a city ordinance, before a police magistrate ; was 
fined twenty- three dollars, and ordered to be imprisoned 
until the fine was paid. It was contended that the imprison- 
ment was a punishment for the oftense and that such pun- 
ishment was prohibited by the constitution. The couit, in 



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July, 1883.] Ex partb Sweeney. 77 

Opinion of the CJourt— Hawley. C. J. 

discussing this question, said: "Power is given to the 
magistrate to assess a fine only on conviction. The 
language is, * shall forfeit and pay the sum of twenty-five 
dollars.' This is the whole extent of the punishment, the 
assessment of a fine. The imprisonment, though connected 
in the sentence by the copulative conjunction *and,* is but 
a mode provided for collecting the fine. It is incident to the 
power to fine, and cannot, in our judgment, be regarded in 
the light of punishment. (Paley, Conv. 271.) The consti- 
tution never designed to abridge the modes usually resorted 
to, and most generally pursued, to carry out the powera 
with which justices of the peace are vested. They have 
power to try a case and assess a fine on conviction. * * 

* To collect this tine and costs * * * the magis- 
trate, in very many cases, would be powerless without the 
power to hold the oflfender until he paid them or was dis- 
charged in some other mode. * * * rj^^Q provision of 
the constitution was designed to inhibit a justice of the 
peace from the trial of any case where imprisonment was 
denounced by the law as punishment in the first instance of 
conviction.'' (31 III. 95.) 

In Brock v. Siate^ the defendant was convicted of the 
oftense of playing and betting at cards, and was sentenced 
to pay a fine of one hundred dollars and costs, and 
on failure to pay the same, to three months' imprisonment, 
unless said fine and costs were sooner paid. The court, in 
considering the eftect of this sentence, said : *' The penalty 
for the otfense of which the defendant was convicted is 
pecuniary altogether. The court on imposing the penalty, 
may enforce its payment by adjudging that the party con- 
victed be committed until the fine and costs are paid. The 
imprisonment is no part of the penalty imposed, but it is 
the means, and the legal means of enforcing the judgment 
of the court." (22 Ga. 101.) 

If the coui'ts have not the power to enforce a fine for 
contempt in a case like this, they would be powerless to 
compel obedience to their lawful decrees and judgments — a 
power which is inherent in all courts. The judiciary would, 



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78 Ex PARTE SWEENBY. [Sup. Ct. 

Opinion of the Court— Hawley, C. J. 

indeed, hold but a barreu scepter if their powers ceased 
with declaring the law. The mere imposition of a fine 
amounts to nothing unless it can be enforced. If the argu- 
ment of petitioner's counsel, to the effect that the statute 
relating to contempts must govern this case as to the en- 
forcement of the fine, as well as its imposition, should be 
sustained, then it would necessarily follow that there could 
be no enforcement of the judgment, for the statute does not 
provide any mode for its enforcement, either by the issuance 
of an execution or by imprisonment. The imposition of a 
fine under such a construction of the statute would be a 
mere farce. But the statute cannot, within its obvious mean- 
ing, be so construed. The courts are invested with the 
power to enforce as well as to pronounce their judgments. 
The language in the statute relating to contempts, that *'no 
imprisonment shall exceed the period of five days,'* refers 
to the punishment. No imprisonment, as punishment, for 
contempt shall exceed five days. The entire section relates 
to punishments only, and was evidently not intended by the 
legislature as a prohibition of the power of courts to enforce 
their judgments imposing fines. It was intended as a 
limitation of the power of courts to infiict the punishment 
to the extent allowed by the common law, and it cannot, it 
seems to me, be construed as a prohibition against the en- 
forcement of any fine in the usual and ordinary methods, 
provided by statute for the enforcement of judgments in 
criminal cases. 

In Brown v. People the court said : '' The only question 
in the case is, whether a justice of the peace who has im- 
posed a fine for a contempt of his court, can imprison the 
party till the fine and costs are paid. Of this power we 
have no doubt. Such a power is indispensable to the proper 
administration of justice in these as well as all other courts. 
The statute has authorized justices' courts to impose a fine 
of five dollars for contempts, and to this extent it may be 
considered a limitation upon their power to fine for con- 
tempts, and it may even be held to take away the right to 
imprison directly for contempts ; but surely, it could never 



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July, 1888.] Ex parte Swbbnbt. 79 

Opinion of the CJourt— Hawley, C. J. 

have been the intention of the legislature to limit the power 
of these courts to enforce the collection of such fines by the 
well-known modes previously practiced for the collection of 
such fines, and which is allowed for the collection of all 
other fines. It is a rule of the common-law, that all courts 
of justice possess the power to protect themselves from con- 
tempts, by fine and imprisonment, and this was intended to 
be limited and regulated, in justices* courts, rather than 
taken away. Should we hold that the only means these 
courts have of protecting themselves is by imposing fines 
and issuing: ordinary executions to collect them, we might 
as well at once close the doors of these courts altogether. 
* * * A simple fine and tifi, fa. can have no terrora for 
one who has nothing, and never expects to have anything, 
out of which the fine could be made. The justice may fill 
his docket with such fines, and be laughed at all the time 
for his trouble. It is a matter of perfect indifference to 
such a party, whether he is fined five cents or five thousand 
dollars. * * * Jt was within the power of the justice, 
and it was his duty, to imprison the party guilty of the con- 
tempt, till the fine and costs were paid. We aflirm the 
judgment without a moment's hesitation.*' (19 111. 614.) 

The statutes of this state expressly provide that a judg- 
ment in a criminal case for a fine, imposed as a punishment, 
may be enforced by imprisonment, and the manner and ex- 
tent of the imprisonment is specified. The statute in rela- 
tion to contempts and their punishments must be construed 
with reference to these statutes in determining whether the 
fine can be enforced by imprisonment. 

In State v. MyerSj the defendant was adjudged guilty of 
contempt of court in violating an injunction ; was fined 
thirty-five dollars, and an order was made that he stand com- 
mitted until the fine be paid. It was there, as here, claimed 
that the court had no authority under the statute to impose 
the fine. The court, upon this question, said : '' Section 
S493 of the Code (relating to contempts) provides that the 
punishment for contempts by courts of record is limited to 
a fine of fifty dollai*s, and imprisonment not exceeding one 



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80 Steel v. Gold Lead M. Co. [Sup. Ct. 

Points decided. 

day. Section 4509 of the Code (relating to judgments in 
criminal cases) provides that 'a judgment that the defend- 
ant pay a fine may also direct that he be imprisoned until 
the fine be satisfied, specifj'iiig the extent of the imprison- 
ment, which shall not exceed one day for every three and 
one- third dollars of the fine.* We understand the provision 
of this section to apply to all fines properly imposed, 
whether the statute under which the conviction be had pro- 
vides a punishment of a fine only, or both fine and impris- 
onment." (44 Iowa, 584.) 

Petitioner is remanded into custody. 



[No. 1028.] 

JOHN STEEL et al., Appellants, v. GOLD LEAD 
GOLD AND SILVER MINING COMPANY, Re- 
spondent. 

MnfiNG Claimb—Ejectmekt— When Forfeiture Need not be Pleaded— In 
an action of ejectment, to recover the possession of a mining claim, where 
the defendant relies upon a forfeiture by plaintiff, tor failure to do the 
necessary work required by the act of congress (Rev. Stat. 2326) such for- 
feiture need not be specially pleaded. 

Idem— Application for Patent— When Party Need not Protest.— Where a 
mining company has regularly applied for a patent to a mining claim, it 
need not, in order to preserve its rights, protest against any subsequent ap- 
plication for the same ground while its own application is pending in the 
land department. Upon such a state of facts it is entitled to be heard and 
to have its rights determined in the proper forum wherever they are ques- 
tioned whether it be in the state courts or in the land department of the 
government. (Leonard, J., dissenting.) 

Appeal from the District Court of the Firat Judicial Dis- 
trict, Storey County. 

The facts are sufficiently stated in the opinion. 

Kirkpairick ^ Stephens and Lindsay ^ Dickson^ for Appel- 
lants : 

I. It was error to permit the defendant to introduce testi- 
timony tending to prove that plaintiffs had failed to do any 



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July, 1883.] Steel r. Gold JjBAd M, Co. 81 



Argument for Appellant. 



work upon the Emma claim in the year 1877 ; and that 
plaintiffs had performed insufficient work thereon in the 
year 1878. The object of the testimony was to establish 
the fact that plaintiffs had forfeited their title and right of 
possession to the Emma claim by failing to perfonn thereon 
the annual labor required by the law of congress. Where 
a forfeiture is relied upon it must be pleaded. {Morenhaut 
V. Wilson, 52 Cal. 268 ; fJutch Flat Go. v. Mooney, 12 Cal. 
634 ; Bell v. Bed Bock Co., 86 Cal. 214 ; Gelston v. Hoyt, 3 
Wheat. 246.) 

II. The court erred in instructing the jury that the law 
required a record of the location to be made ; there being no 
evidence introduced of the existence of any local rules, regu- 
lations or customs in the district embracing the claim. 
{Golden Fleece v. Cable Con., 12 Nev. 322.) 

III. The court erred in admitting in evidence the deed 
from the Jacob Little Con. Mining Company to the defend- 
ant. It was admitted at the trial that the Jacob Little 
Con. Mining Company had failed to file any protest or ad- 
verse claim against the defendant's application for a patent. 
We contend that by such failure on the part of the Jacob 
Little Company it waived in favor of all parties appearing 
in the land office, either as applicant or protestant, any title 
it might have had to the premises in controversy. It is 
clear that after such failure the Jacob Little Company itself 
could not have intervened, nor in any manner have asserted 
any title to the premises — how, then, could it confer upon 
its grantee the right to do so ? Yet the court admitted the 
deed in evidence, and instructed the jury that if they found 
that a valid location had been made by the predecessors of 
the Jacob Little Company, and that such location had been 
maintained by the Jacob Little Company and its grantors, 
then their verdict should be for the defendant. (See sec- 
tion 2326 Revised Statutes of TJ. S. ; Bissel v. Henshaio, 1 
Saw. 583-5 ; IVeadway v. Seyyiple, 28 Cal. 659-60 ; Semple 
V. Wright, 32 Cal. 666; U. S. v. Halleck, 1 Wall. 454 ; U. S. 
V. FstudillOj 1 Wall. 716; Eureka Co. v. Bichmond Co., 4 
Saw. 317.) 

Vol. XVIII-11 ^ t 

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82 Stbbl v. Gold Lead M. Co. [Sup. Ct. 

Argument for Respondent. 



rV. If the deed from the Jacob Little Company to de- 
fendant was admissible for any purpose it was only admissi- 
ble for the purpose of showing title in the defendant to that 
portion of the Jacob Little Company's claim which conflicts 
with the plaintiffs' claim, and which was not in controversy 
in the action brought by the Sierra Nevada Company against 
the Jacob Little Company, which portion, as appears from 
the map, is an infinitessimal part of the premises now in 
controversy, and the effect of the deed as evidence should 
have been so limited. 

Leiois ^ Dealj for Respondent : 

I. It was competent for the defendant to show that the 
plaintiffs had done no work on the Emma in the year 1879. 
In all cases of this kind it is incumbent on the plaintiff' to 
show title in himself. He can show that title for one year 
by simply proving his location in accordance with the re- 
quirements of the law and the mining rules. But suppose 
the entry were made after the expiration of the first year ; 
then it would be necessary for the plaintiff' to prove that the 
title, which he acquired by reason of his location, was con- 
tinued by a further compliance with the law — that is, by 
the performance of labor. The act of congress clearly re- 
quires the performance of labor in every year after the loca- 
tion, otherwise the title is not maintained. The location 
gives a title only for one year ; the labor performed con- 
tinues that title — hence it is just as essential to show that 
the act of congress has been complied with by the doing of 
work as it is to show the location in the first instance. 
There can be no subsisting title after the first year except 
by a compliance with the act of congress, and that act de- 
clares that if the work be not done the mine becomes open 
to the next locator — shall in fact be as if no location had 
ever been made. 

It will be seen at once that the failure to do work does 
not result in a strict forfeiture, because after the first year 
there is nothing to forfeit, the title by location terminates 
by lapse of time, where there is no work to continue it. It 



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July, 1883.] Steel v. Gold Lead M. Co. 83 

Argument for Respondent. 



nothing were shown but the location the court would have 
to presume that the title acquired bj' it terminated in one 
year unless something more were shown. Therefore, we 
say it is incumbent on the plaintiff*, if he wishes to recover 
on a right of possession after such year, to show his work, 
as required by law. 

In case of strict forfeiture, as in the case of Gelston v. 
Soyt, 3 Wheat. 246, no proof of the kind is required of the 
plaintiff'. 

n. As far as the second ground of error is concerned, we 
claim that it could in no wise injure the appellants if the 
court holds that the deed from the Jacob Little was properly 
admitted, for the admission of that deed not only shows us 
to have an unimpeachable title, but also shows that any title 
which the appellants may have acquired by location or 
otherwise was completely annulled by their failure to protest 
against the Jacob Little application for a patent. 

ni. The deed of the Jacob Little company to the respond- 
ent was admissible in evidence. 

We admit that a person having a claim at the time an 
application for a patent is made failing to protest, is cut off 
and loses his title; but we contend that a peraon having 
such a claim, who himself has applied for a patent, need 
not protest, and hence, that in this case the Jacob Little 
having applied for a patent, was not called upon to protest 
against the Gold Lead application. 

Actions brought under this act of congress are not differ- 
ent from actions formerly brought for the same purpose. 
Nor has the judgment any different force or effect. [4^0 v. 
The Bullion, 9 Nev., 248.) 

IV. The result of the proceedings in the Jacob Little 
application for a patent amounted to an adjudication that as 
between the parties to the suit the Sierra Nevada had the 
better right of possession. It could not possibly amount to 
anything more. The act of congress declares that that is 
the only fact to be decided by the courts, and we think it is 
clear from the case of The 4^0 v. The Bullion that nothing 
•«lse can be decided in these cases. 



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84 Steel v. Gold Lead M. Co. [Sap. Ct, 

Opinion of the CJourt— Hawley, C. J. 

If the proceedings in the land office were in effect a 
decision that the Jacob Little had a good title against all 
persons except the Sierra Nevada, then surely it could rely 
upon such decision and title against all persons except the 
protestant, as it could rely upon any other decision in its 
favor, and could of course transfer its title to any one else, 
as was done here. 

By the Court, Hawlby, C. J.: 

This suit was brought to determine the right of posses- 
sion to ceitain mining ground for which defendant had 
applied for a patent. The complaint and answer contain 
the usual averments. Defendant subsequently filed a sup- 
plemental answer, claiming title to the ground in contro- 
versy by virtue of a deed from the Jacob Little Consoli- 
dated Mining Company. When the cause was tried, plaint- 
iffs introduced evidence, oral and documentary, tending to 
prove a valid location by them on January 1, 1877, of the 
ground described in their cora4)laint aa the Emma claim. 
The defendant introduced evidence, oral and documentary, 
tending to prove a location made by defendant's grantor, 
Andrew Charles, on August 28, 1878, of the Gold Lead 
claim. A witness was then called and testified on behalf of 
defendant that he was and had been acquainted with the 
premises described in the complaint as the Emma claim 
ever since the first day of January, 1877. This witness 
was then asked the foUlowing question : '' Did the plaintiffs 
do any work on the Emma claim in the year 1877?" 
Plaintiffs objected to this question on the ground that de- 
fendant, in its answer, failed to plead or rely upon a forfeit- 
ure of plaintiffs' interest in the premises in controversy, by 
reason of their failure to perform the work or make the 
expenditure required by law upon the Emma claim. This 
objection was overruled, and the witness testified "that the 
plaintiff's had done no work on said Emma claim in the year 
1877." Other witnesses gave testimony tending to prove 
that plaintiffs did no work and made no expenditures on the 
Emma claim in the year 1877, and that plaintiff's did not 



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July, 1883.] Stbbl v. Qoij) Lead M. Co. 85 

Opinion of the Court— Hawley. C. J. 



perform one hundred dollars worth of work in labor on said 
claim in the year 1878. 

The plaintiffs admitted, for the purposes of this trial, that 
the predecessors in interest and grantors of the Jacob Little 
Consolidated Mining Company made a^valid location on the 
thirty-first of January, 1863, of the Jacob Little Consoli- 
dated Mining Company's claim; that said location embraces 
the portion of the Emma claim described in the answer ; 
that the Jacob Little Consolidated Mining Company, on the 
second of July, 1877, regularly filed its application for a 
patent from the United States for said claim; that plaintiffs 
failed to make or file any protest or adverse claim to said 
application. 

Defendant admitted that the Sierra Nevada Mining Com- 
pany, within the time allowed by law, duly made and filed 
its protest and adverse claim to the application of the Jacob 
Little Company, and within due time instituted a suit in 
the proper court against the Jacob Little Company to 
determine the right of possession to the premises embraced 
in said application ; that a judgment was rendered in said 
action on the twenty-seventh of December, 1878, in favor 
of the Sierra Nevada Company ; that upon the determina- 
tion of said suit the Sierra Nevada Company caused a cei-ti- 
fied copy of the judgment roll in said action to be filed with 
the register of the United States land office ; that no further 
proceedings have been had in said cause nor in said land 
office under said application ; that the Sierra Nevada Com- 
pany has filed its protest and adverse claim against the 
application of the defendant herein for a United States pat- 
ent and duly commenced an action against defendant, which 
is pending and undetermined, to determine the right of 
possession to the premises in controversy herein, and that 
the Jacob Little Company failed to file its protest and 
adverse claim to the application of defendant for a patent. 

Thereupon defendant offered in evidence a deed executed 
on the twenty-sixth of September, 1879, from the Jacob 
Little Company to the defendant, whereby all the right, 
title and interest of the Jacob Little Company in and to the 



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86 Steel v. Gold Lead M. Co. [Sup. Ot. 



Opinion of the Court — Hawley, C. J. 



Jacob Little claim was conveyed to the defendant. Plaint- 
iffs objected to the admission of this deed in evidence, 
because it appeared from the admission made by the 
defendant that the Jacob Little Company, at the time 
said deed was executed, had no right, title or interest in the 
premises in controversy which could be used adversely to 
the plaintiffs in this action ; that said deed, if admissible at 
all, is only admissible for the purpose of showing title in 
the defendant to that portion merely of the Jacob Little 
claim which is embraced in the Gold Lead and Emma 
claims, and which is not included within the premises recov- 
ered by the Sierra Nevada Company. The court overruled 
these objections, but limited the deed to so much of the 
Jacob Little claim described in the deed as was in conflict 
with the Emma claim. 

There was no evidence in the case tending to show that 
the defendant or the Jacob Little Company ever acquired 
any title or interest to any portion of the premises in contro- 
versy from the Sierra Nevada Company. No evidence was 
introduced of any local laws, regulations, or customs. The 
premises for which the Sierra Nevada Company recovered 
judgment include nearly the entire claim described in the 
deed from the Jacob Little Company to the defendant, and 
nearly all of the Emma claim which conflicts with the Gold 
Lead claim and the Jacob Little claim. Judgment was 
rendered in favor of defendant. 

1. Did the court err in admitting evidence to show that 
appellants did not perform the amount of work required by 
law during the years 1877 and 1878 ? It has been decided, 
in an action of ejectment to recover the possession of mining 
ground, that if the defendant relies upon a forfeiture by 
plaintiff' for failure to comply with the local rules and regu- 
lations of the mining district, the forfeiture must be spe- 
cially pleaded. The reason given for this rule is that "a 
defense based merely upon forfeiture does not involve a 
denial of the plaintiff" s possession, or right of possession, at 
the date of the defendant's entry ** [Morenhaui v. Wilson^ 
52 Cal. 268), which are the only necessary allegations in the 



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July, 1883.] Steel ?;. Gold Lead M. Co. 8T 



opinion of the CJourt— Hawley, C. J. 



action of ejectment. But this reason does not, in our opin- 
ion, apply to an action like the present, brought under the 
"act concerning the determination of conflicting rights to 
mining claims in certain cases'' (1 Comp. Laws, 1674), 
which is designed to supplement section 2326 of the revised 
statutes of the United States. These actions may be brought 
by the plaintiff whether he is in or out of possession of the 
mining ground in controversy, and the "only sensible con- 
struction of the law is that each party must prove his claim 
to the premises in dispute, and that the better claim must 
prevail." {Golden Fleece Co. v. Cable Con. Cb., 12 Nev. 
321.) In such actions, the question whether the plaintifl:' 
has forfeited any rights under the acts of congress is neces- 
sarily involved, and need not, when relied upon by defend- 
ant be specially pleaded. The court did not, therefore, err 
in admitting this evidence. 

2. Did the court err in admitting the deed from the 
Jacob 'Little Company in evidence without limiting it to 
that portion of the ground which was not in controversy in 
the action brought by the Sierra Nevada Mining Company 
against the Jacob Little Company ? It seems to us that it 
is unnecessary to decide this question. The action of the court 
in admitting it, if erroneous, did not prejudice appellants. 
The only title which they assert to the ground in contro- 
versy is derived from the location of the Emma claim, 
which was prior in time to the application of the Jacob Lit- 
tle Company for a patent, and whatever rights they may 
then have had to this ground were waived and lost by their 
failure to protest against that application ; at least, so far as 
the rights of the contesting parties under that application 
are concerned. (Rev. Stat. U. S. 2326.) 

But appellants contend that the Jacob Little Company 
had waived its right to the premises in contro\'ersy by rea- 
son of its failure to protest against the application of the 
Gold Lead Company for a patent. This position cannot be 
maintained. The Jacob Little Company, having regularly 
applied for a patent, was not, in our opinion, compelled, in 
order to preserve its rights, to protest against any subse- 



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88 Steel v. Gold Lead M. Co. [Sup. Ct. 



Opinion of the Court — Hawley, C. J. 



quent application for the same ground while its own appli- 
cation was still pending in the land department. {Hose v. 
Jilchmond M. Co., 17 Nev. 25; Resurvey of Grown Point 
Lode, Sickel's Mining Decisions, 116 ; Application of Hag- 
gin for Patent to Hurricane Lode, Id. 243.) 

This contest is not between the Gold Lead Company, as 
the owner of a subsequent location, and the Jacob Little 
Company, a prior applicant for patent. It is between appel- 
lants under their title to the Emma mine, which was located 
prior to the application of the Jacob Little Company, and 
respondent as owner of the Jacob Little title. We do not, 
therefore, think that under the facts of this case we are 
required to decide whether the Gold Lep^d Company (re- 
spondent) pursued the proper course in order to secure a 
patent, on the theory that the Jacob Little Company, the 
Sierra Nevada Company, and the appellants had each for- 
feited their respective rights to the ground in controversy. 

In a case where a party applies for a patent and thereafter 
fails, before the patent is issued, to comply with the law 
in respect to the amount of work required to be done, so 
that the ground becomes open and subject to relocation, 
and a new lo'cation is made, it may be that the party re- 
locating the ground should first take steps to have the pre- 
vious application dismissed in the land department before 
making an application for a patent, and that the rights of 
these parties would have to be tried and determined in the 
land department. {Application for Patent to Wildman 
Quartz Mi}ie, Sickel's Mining Decisions, 275.) But, be 
that as it may, it is enough for us to declare, as we have, 
that if an application can be made by the subsequent loca- 
tor, the previous applicant is not required to protest against 
such an application. 

The Jacob Little Company having applied for a patent to 
the mining ground in controversy in this action, and its 
application being still pending, it is, it seems to us, entitled 
to be heard and to have its rights determined in the pi'oper 
forum where they are questioned, whether it be in the state 
courts or in the land office. The defendant having procured 
its title is entitled to the same rights. 

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July, 188B.] Barbbr v. Qillson. 89 



Points decided. 



We deem it proper to add that it is apparent to us, from 
the admitted facts in this case, that neither the appellants 
nor respondent have any right whatever to that portion of 
the ground in controversy for which the Sierra Nevada Min- 
ing Company obtained judgment. The result of this liti- 
gation as to that portion of the ground must necessarily be 
fruitless unless the Sierra Nevada Mining Company has 
abandoned or forfeited its rights or will surrender them to 
the successful party in this action. 

The judgment of the district court is affirmed. 



Leonard, J., dissenting : I dissent. 



[No. 1145.] 

0. T. BARBER, Rbspondent, v. GEORGE QILLSON, 

Appellant. 

Dissolution or CJopabtnkrship— Relation of Partners — Surety, and Prin- 
cipal Debtor — Payment of Indebtedness. — Upon the dissolution of a co- 
partnership where there is an agreement that one partner assumes and will 
pay all the debts of the firm, he thereby becomes the principal debtor, and 
the other partner becomes his surety, as between themselves and all others 
dealing with tliem with knowledge of the facts, and the surety has the 
right to protect himself by settling the indebtedness for which he is 
liable, at any time, whether it is due or not. 

Idkm— -Payment After Compromise,— If the principal debtor had made a com- 
promise with the creditors of the firm, then the surety could not recover 
from the principal the amount thereafter paid by him to the creditors in 
procuring a release of his own liability. 

Idem— Release From Creditors.— Upon a review of the evidence: Held, that 
Barber, as surety, was entitled to recover from Gillson, the principal 
debtor, whatever amounts he may have paid on account of the firm in- 
debtedness regardless of the question whether he procured his own release 
thereby. 

Idem — Value of Notes — Measure of Damages. — The surety surrendered cer- 
tain notes, executed in his favor by his copartner, to the creditors of the 
firm in order to release himself from liability : Heldy in an action by the 
surety against his copartner, that the measure of damages, which he is 
entitled to recover, ia the face value of the notes surrendered. His loss is 
not to be measured by the ability of his copartner to pay. 

Appeal from the District Court of the Second Judicial 
District, Ormsby County. 

Vol. XVni— 12 



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90 Barber r. Gillsox. [Sup. Ct. 



Instructions of the Court. 



The instructiouB given and refused in this case were quite 
numerous. Among others the following were given at the 
request of plaintift' : 

1. If the jury believe from the evidence that at the 
time of the dissolution of copartnership between plaintift' 
and defendant, on the twenty-fifth of February, 1881, the 
defendant promised to pay all the debts of the firm of 
Gillson & Barber in considemtion of the sale and delivery 
by plaintift' to defendant of plaintiff's interest in the prop- 
erty mentioned in the bill of sale, from plaintift' to defend- 
ant, and introduced in evidence, and in the deed men- 
tioned in the complaint, and if you further believe that on 
or about the thirty-first day of May. 1881, the said defend- 
ant had not paid said indebtedness, and that double the 
amount of the face value of the notes mentioned in the com- 
plaint of said indebtedness then remained unpaid, and that 
on or about that day and while said amount of said indebt- 
edness remained unpaid, the said plaintift', in order to pro- 
cure from the creditors of the firm of Gillson & Barber his 
individual release and discharge from said indebtedness' so 
remaining unpaid, surrendered to said creditors the said 
notes, and that in consideration thereof the said creditors 
did release and discharge the said plaintift* from said 
indebtedness, and that said indebtedness, was due and 
payable before the commencement of this action, then your 
verdict should be for the plaintift' for the sum of six thous- 
and two hundred and twenty-eight ($6,228) dollars, even 
though you should believe that said indebtedness was not 
due at the time plaintift', Barber, surrendered said notes. 

6. If you believe from the evidence that one of the 
terms of the dissolution of the copartnership between plaint- 
iff and defendant on the twenty-fifth of February, 1881, was 
that said defendant should assume and pay all of the debts of 
said firm of Gillson & Barber, then you are instructed that 
the plaintiff". Barber, had the right to pay and discharge 
said indebtedness in whole or in part without waiting for 
any demand upon him by any of the creditors of said firm 
so to do. 



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July, 1883.] Barber v. Qillson. 91. 



Instructions of the Court. 



The court refused to give the following instructions, 
among others asked by the defendant : 

3. To entitle the plaintift' to recover you must be satis- 
fied from the evidence that the notes in question were sur- 
rendered by him to the creditors, and by them received 
and accepted in payment in whole or in part of the indebted- 
ness of Gillson & Barber, and in this connection you are 
further instructed that by payment is meant a discharge of 
the obligations of Gillson & Barber to the creditore in whole 
or in part, and unless you are satisfied from the evidence 
that the notes were surrendered by Barber and received by 
the creditors in payment of Qillson & Barber's obligation, 
and that they w^ere intended to operate and did operate to 
discharge Gillson from the payment in whole or in part of 
such indebtedness, then your verdict must be for the de- 
fendant. 

4. You are further instructed that the mere release of 
Barber from his individual liability as a member of the 
firm of Gillson & Barber did not necessarily operate as a 
payment in whole or in part of the debt« of Gillson & Barber, 
nor did it necessarily operate to discharge Gillson from such 
debts, for if at the time of such release Gillson was liable as 
a member of the firm of Gillson & Barber, and if he was 
further liable as betw.een himself and Barber by reason of 
an agreement between them, to pay individually the debts 
in question and to save and hold Barber harmless from such 
payment, then in that case such release did not operate to 
discharge Gillson or to pay, so far as Gillson was individually 
concerned, such debts. 

5. You are further instructed that if at the time Barber 
surrendered the notes in question to the creditors of Gillson 
& Barber, Gillson had agreed to pay the debts in question 
and to indemnify ai^ hold Barber harmless from such pay- 
ment; and if you further believe that at the time of such 
surrender by Barber, Gillson was negotiating with the 
creditors for the compromise, settlement and payment of 
such debttj and afterward and before suit such ne^rotiations 
were consummated and Gillson did compromise, settle and 



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92 Barber v. GillsoiN. [Sup. Ct. 

Instructions of the CJourt. 

pay such debts in pursuance of the negotiations, then and in 
that case the release of Barber would not operate to pay 
said debts so far as Gillson was concerned and you itiust find 
a verdict for defendant. 

6. You are further instructed that if the evidence satis- 
fies your mind that Gillson & Barber dissolved the partner- 
ship theretofore existing between them by an agreement 
and understanding that as between them Gillson should pay 
the debts of Gillson & Barber, including the debts in ques- 
tion, and that Gillson should have the right and be charged 
with the duty of collecting the debts due to the firm, and 
should pay or discharge the liabilities of the firm, including 
those in question, then you are instructed that Barber had 
no authority or right pending such agreement to interfere 
with the unsettled affairs of Gillson & Barber or to compro- 
mise or settle with the creditors of the firm and that the 
power to manage the afiairs of the firm including the 
power and right to compromise and settle with the creditors, 
belonged exclusively to Gillson, and that any interference 
therein by Barber was contrary to such agreement and 
wholly unauthorized. And in this connection you are 
further instructed that any loss, damage or injury sustained 
by Barber which was the consequence of his, such unauthor- 
ized interference must be borne by .him and cannot be re- 
covered against Gillson in this action. 

9. You are further instructed that if you believe from 
the evidence that at the time of the dissolution of the firm 
of Gillson & Barber they were indebted, and it was agreed 
between them that Gillson should pay the debts, and it was 
understood that such payment was not to be made imme- 
diately, then as between Gillson & Barber, Gillson became 
and was an indemnitor merely, that is he was obligated to 
hold Barber harmless from the payment of any such debts, 
and if Gillson did fulfill the contract on his part, no matter 
how, whether by paying in full or by compromising such 
debts or by obtaining an extension of time and afterward 
compromising or paying, in that case Barber is not entitled 
to recover for the value of the notes surrendered, although 



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July, 1883.] Barber v, Gillson. 93 

Ai^g^ment for Appellant. 

he may have surrendered them for the express purpose of 
procuring his release and although he procured his release 
in consideration of such surrender. 

Robert M, Clarke^ for Appellant : 

I. It was error not to permit defendant to show that the 
debts were not to be paid immediately. If not to be paid 
immediately, Barber was clearly an intermeddler, and his 
act was in violation of his agreement. The suit was i»re- 
mature because the notes were not due when the action 
was commenced. 

II. The actual value of the notes surrendered is the true 
measure of damages^ and it was error to exclude proof of 
such value. Barber did not pay money, but delivered 
property, to-wit : Promissory notes, and the cash value of 
the property delivered measures the injury. 

III. A release to be of binding force must be in writing 
subscribed by the parties and under seal. {Davis v. BowkeVy 
1 Nev., 487.) The release in question was inoperative until 
its conditions were fulfilled by Gillson in the execution and 
delivery of the notes, June 27, 1881. It was in fact an 
agreement of mutual and dependent covenants to be signed 
by both parties thereto and in no event to operate as a 
release until the conditions were performed. 

IV. Defendant had the sole right to pay or settle the 
firm debts, and plaintiff in assuming to pay them was an 
intermeddler. Defendant was a mere indemnitor and plaint- 
iff could not complain unless compelled to pay. Unless 
plaintiif was compelled to pay, defendant's contract was 
not broken. The surrender of the notes was not under 
duress or compulsion, but was purely voluntary. Barber 
having transferred his interest, had no right to make volun- 
tary payment. His agreement of sale gave Gillson the 
exclusive right. (Civil Code Cal., 2460, 2465, 2772, 2778 ; 
Par. on Part., 403, 407, 434, 437; Coleman v. Lansing, 65, 
Barb, 55, 57 ; Palmer v. Dodge, 4 Ohio St., 21.) 

V. The notes were not surrendered in payment of the 
debts of Gillson & Barber, (nor did they so operate) but to 



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94 Barber v. Qillson. [Sup, Ct. 



Aigument for Respondent. 



procure Barber's release. (1.) But Gillsoii did not agree 
and was not obliged to procure Barber's release. {Coleman 
V. Lansing^ 65 Barb. 57.) (2.) Gillson did pay the debts 
as he agreed and thus procured, Barber's release. 

VI. The payment or settlement of the partnership debts 
was an afikir of the partnership, concerning which Gillson 
alone had the right to act, and in this Barber did interfere 
without Gillson's sanction. 

VII. The proofs show that Barber's action in surrender- 
ing the notes was purely voluntary and intermeddling. 

A. C. Mils, for Respondent : 

I. After the dissolution upon the tenns that Gillson was 
to pay the partnerahip debts, the relations of plaintift* and 
defendant, as between themselves, was that ot principal tiud 
surety, though as to the creditors of the firm they were joint 
debtors. (Lindley on Part. 567, sees. 714, 862; Millard v. 
Thome, 56 N. Y. 402; Brandt on Sureties, sec. 23; 
McCormack v. Irwin, 11 Casey, 111 ; 1 Lead. Cases in 
Eq. 145 ; Aldrich v. Cooper, Am. note. Lead. Cases 
in Eq. vol. 2 ; Rogers v. Maw, 15 M. &. W. 444 ; Smith v. 
Shelden, 35 Mich. 42 ; Butler v. Birkey, 13 Ohio St. 514.) 

n. The surety, Barber, had the right to pay at any time 
after the debts became due without waiting to be called 
ui)on so to do, much less without waiting to be sued, and 
for the accumulation of costs. {Craig v. Craig, 5 Rawle, 91 ; 
Williams, Administrator v. Williams, 5 Ohio, 444 ; Mauri 
V. Hefferman, 13 John's, 58-75 ; Odlin v. Greenleaf, 3 N. 
H. 270 ; Goodall v. Wenttoorth, 20 Me. 322 ; Fraser v. 
Good, 3 Rich. 199 ; Babcock v. Hubbard, 2 Conn. 536 ; 
Ward V. Henry, 5 Conn. 596 ; Brandt on Suretyship, sees. 
176, 177, 296. 

in. He may pay before the debt is due, and sue the prin- 
cipal after maturity. Brandt on Suretyship, sees. 176-177 ; 
Craig v. Craig, supra. 

IV. The surety. Barber, may waive the defense, of 
which Barber was ignorant, if there was any, that he has 
been discharged by time given to the principal. (Brandt 



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July, 1883.] Barber v, Gillson. 95 



Argument for Appellant. 



on Suretyship, sees. 296-300.) There was no considera- 
tion for this extension ; it was nudum pactum, (Brandt, 
296, 2 Lead. Case, in Eq. 2011.) 

V. Barber as such surety could make payment in any 
way — in land, merchandise or his own notes^ and may main- 
tain assumpsit against his principal for money paid, laid 
out and expended, etc. (Brandt on Suretyship, sees. 178, 
181, 249, 250, 261 and cases there cited ; Barney v. Seeling, 
2 Wend.' 482; 11 John. 519; 1 Hill (S. C.) 237; 15 M & 
W. 449.) 

On the question of payment by surety. {Docliitle v. 
Dioight, 2 Met. 561 ; Bone v. Torrey, 16 Ark. 83 ; Mim^ v. 
McDoxoell, 4 Qa. 182 ; Pearson v. Parker, 3 N. H. 366 ; 
Elxoood V. Deifendorf, 5 Barb. 398 ; White v. Miller, 47 Ind. 
385 ; Hommell v. Gamewell, 5 Blackf. 5 ; Mc Vicker v. Eot/ce 
71 U. C. Q. B. 529 ; Barclay v. Gooch, 2 Esp. 570 ; Mogers 
V. Maw, 15 M. & W. 444. 

VII. The release by the creditors of the principal debtor, 
Gillson, does not discharge the surety. Barber, if the 
creditors at the time reserve the right to puraue the surety. 
(Brandt, sec. 123 ; V. S. v. Howell, 2 Am. Lead. Cas. 372 ; 
Boaler v. Maher, 19 0. B. (N. S.) 76 ; Rucker v. Robinson, 
38 Mo. 154 ; Kearsley v. Cole, 16 M. & W. 128 ; Morse v. 
Huntington, 40 Vt. 488-496 ; Sohier v. Loring, 6 Cush. 537; 
Hagey v. Hill, 25 P. F. Smith, 108 ; Hunt v. Knox, 34 
Miss. 655 ; Bailey v. Edioards, 4 E. B. & S. 760 ; Nichols v. 
Norris, 3 Barn. & Ad. 41 ; Claggett v. Salmon, 5 Gill & 
John. 314; Bangs v. Strong, 10 Paige 11 ; Willis v. JDecas- 
tro, 4 C. B. 215 ; Yates v. Donaldson, 5 Md. 389 ; Camp- 
bell V. Booth, 8 Md. 107.) 

R. M. Clarke for Appellant, in reply : 

I. JBarber agreed that Gillson should settle and pay the 
debts of the firm. By the agreement Barber surrendered 
all right to make settlement with the creditors and vested 
the exclusive right in Gillson, and when he attempted to 
exercise the right so surrendered he violated his agreement. 
(Civil CJode of Cal., Sec. 2460 ; Palmer v. Dodge, 4 Ohio st,, 

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96 Barber i\ Gillson. [Sup. Ct. 



Opinion of the Court — Belknap, J. 



30; Par. on Part., 388; Hilton v. Vanderbili, 82 N. Y., 
592.) 

By the Court, Belknap, J. : 

The parties hereto composed a copartnership of mer- 
chants. Upon the twenty-fifth day of February, 1881, the 
copartnersliip was dissolved by mutual consent. Appellant 
purchased from respondent his interest in the property and 
effects, giving promissory notes therefor aggregating in 
value the sum of six thousand two hundred and twenty-eight 
dollars. In consideration of the transfer, appellant assumed 
the outstanding indebtedness of the firm, amounting to 
upwards of forty thousand dollars. This indebtedness re- 
mained unpaid until the latter part of the month of May 
succeeding, at which time appellant entered into negotia- 
tions with the view of obtaining a settlement by compro- 
mise. At this time respondent, at the request of the cred- 
itors, and in order to procure his personal release from the 
firm indebtedness, surrendered the promissory notes to them. 
Thereafter he brought this action to recover, as damages, 
the sum of six thousand two hundred and twenty-eight 
dollars, the value of the notes, exclusive of interest. He 
recovered judgment. Defendant appeals therefrom, and 
from an order overruling a motion for new trial. 

The questions of law presented for review arise principally 
upon the rulings of the court in giving and refusing instruc- 
tions requested. A determination of the legal status of the 
parties, and of their relative rights and liabilities, will de- 
termine the questions arising under the rulings in this 
regard. The dissolution of the copartnership, and the 
agreement that Gillson should pay the debts of the firm, 
rendered Barber the surety of Gillson, as between them- 
selves and all others dealing with them with knowledge of 
the facts. (Brandt, Sur. sec. 23, and cases there cited.) 
As such surety Barber had the right to protect himself by 
settling at any time the indebtedness for which he was lia- 
ble. Upon this subject Chief Justice Gibson said : "As 
to the position taken, that payment before the bonds fell 



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July, 1883.] Barber r. Gillson. 97 

Opinion of the Court— Belknap, J. 

due would be essentially voluntary, His proper to remark 
that the principle was ruled ditt'ereutly in Armstrong v. 
Gilchrist, 2 Johns. Cas. 429, where it was held that a guar- 
antee of a note, who had compromised and paid it for his 
own indemnity before it had .become due, was entitled to 
recover. That a surety is to wait until payment is extorted 
of him is not pretended ; but it is said that payment before 
maturity is necessarily voluntary, and that eventual liability 
is not equivalent to a precedent request. There is no au- 
thority for that, and it seems not to be defensible on prin- 
ciple. Why may "not a surety take measures of precaution 
against loss from a change in the circumstances of his prin- 
cipal, and accept terms of compromise before the day which 
may not be obtainable after it. He may ultimately have 
to bear the burdei] of the debt, and may therefore provide 
for the contingency by reducing the weight of it. Nor is 
he bound to subject himself to the risk of an action by 
waiting till the creditor has a cause of action. He may, in 
short, consult his own safety, and resort to any measure 
calculated to assure him of it, which does not involve a 
wanton sacrifice of the interest of his principal." {Oraig 
V. (Jraig, 5 Rawle 98 ; Williams' Adm'rs v. Williams^ 
5 Ohio 444 ; Odlin v. Greevleaf, 3 N. H. 270 ; Goodall 
V. Wentworth, 20 Me. 822; Brandt, Sur. sees. 176-177.) 
The instructions allowed were in accordance with these 
views. 

At the trial, the court overruled an ofter of defendant to 
show that at the time of the assumption of the finn indebt- 
edness by (iillson, neither of the parties contemplated that 
he should pay the debts immediately. Under the authority 
of the foregoing and all other cases to which we have been 
referred, it was immaterial whether the indebtedness, as 
between the parties themselves or the creditors, was due or 
not. Nor was Barber's conduct in compromising the claims 
agaiust himself, an interference with the aftairs of the part- 
nership contrary to the contents of the notice of dissolution. 
That notice provided that all indebtedness due the firm 
should be paid to Gillson, and that all claims against the 

Vol. XVra-13 r^r^nlo 

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100 PiNscuowBR V. Hanks. [Sup. Ct. 

Argument for Appellant. 



the jury, and the verdict was against the law, in that the 
weight of the evidence is against the verdict. The evi- 
dence of the respondents destroyed itself by its utter 
improbability, by palpable contradictions as to material 
facts about which they could not have been simply mis- 
taken and which should have led the lower court to apply 
the rule that when a witness willfully testifies falsely to a 
material fact, the whole of this evidence should have been 
disregarded. 

II. The court below erred in denj'ing appellant's motion 
for a new trial. If it be true that the weight of the evi- 
dence clearly preponderates against the verdict, then it was 
not only in the power of the lower court to set aside the 
verdict, but it was its duty to do so. {Phillpots v. Blasdel^ 
8 Nev. 61.) If the evidence in this case presented in the 
ti'anscript clearly shows such a state of facts that it is made 
clearly to appear to the court that the verdict was wrong, 
and clearly an injustice, then this court can come to no 
other conclusion than that the lower court should have 
granted a new trial, and that its refusal was error. (Hill, 
on New Tr., 447, and authorities there cited.) 

III. The court erred in refusing a new trial upon the 
newly discovered evidence set forth in appellant^s affidavits. 
The court refused to consider the affidavits of Joseph E. 
McDonald and Charles Harper, in its consideration of the 
motion for a new trial, on the ground that they were depu- 
ties of defendant, and were witnesses in the case, and this 
was error. The sole question addressed to the court as to 
this was whether the evidence could have been by the aid 
of due dihgence discovered by defendant and produced at 
the trial. Here the defendant was in fact merely a nomi- 
nal party. His name was used and that was all. He had 
no interest in the case except to see that he had a good 
bond to protect him against any judgment that might be 
recovered against him. 

IV. The court below erred during the trial in refusing 
to admit in evidence the depositions of B. Tulverman, H. 
Glauber, Isadore Lowenberg and William Cohen. These 



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July, 1883.] PiNSCHOWER v. Hanks. 101 



Argument for Respondent. 



depositions showed beyond any question that Isadore Rich 
was a member of the firm of liich Brothers. It was 
material to connect him with the alleged frauds. It was 
proper to do this to show him to be one of the principals. 
He got the money, if any was got, from the respondents ; 
and he was the principal party, the originator and perfector 
of the whole job, his natural talents in that direction being 
improved by a former experience of the same sort ; and yet 
all of this evidence was kept from the jury against appel- 
lant's objections. 

V. The court erred in permitting the introduction in evi- 
dence of the paper written by Mr. Stephens containing the 
substance of the result of an examination of Joseph Rodgers, 
made at the request of the respondents. This paper was 
introduced and read for the purpose of impeaching Rodgers' 
testimony. No proper foundation was laid for this purpose, 
and it was error to permit the reading of it to the jury. 
(Green on Ev. sec. 462-466.) 

Kirkpatrick ^ Stephens and Wm. Woodbumi^ for Respond- 
ents : 

1 The authorities are to tlie effect that a Tim prius court 
ought not to grant a new trial when the evidence is con- 
flicting, except the weight of evidence clearly preponder- 
ates against the verdict. But when such court does grant a 
new trial, the appellate court will not interfere unless the 
weight of evidence clearly preponderates against the ruling 
of the court. {Treadway v. Wilder^ 9 Nev. 67 ; Carlyon v. 
Lannan, 4 Nev. 156 ; jReed v. Meed^ 4 Nev. 395 ; Quint v, 
Ophir S. M. Co,y 4 Nev. 304 ; Covington v. Becker ^ 5 ^'ev. 
281 ; State of Nevada v. Yellow Jacket S, M. Co., 5 Nev. 
415; Clark v. Nevada Land ^ M. Co., 6 Nev. 203; Lewis 
V. Wilcox, 6 Nev. 215; McCoy v. Bateman, 8 Nev. 127; 
Solen v. V. ^ T. R. R. Co., 13 Nev. 107 ; Smith v. May* 
berry, 13 Nev. 427.) In this case the weight of evidence is 
clearly in favor of respondents. 

n. The defendant has not shown diligence in procuring 
the newly discovered evidence. He has not made an jilii- 



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102 PiNscHowKR V. Hanks. [Sup. Ct. 



1 



opinion of the Courfc—Hawley. C. J. 



davit showing that he could not have procured the testi- 
mony at the trial, or that the facts set out in the affidavit of 
the witnesses were not within his knowledge. No person 
can make this affidavit for him, and his failure to make it 
is fatal to his right to a new trial. {Arnold v. tilcaggs^ 36 
Cal. 687 ; Baket^ v. Joseph, 16 Cal. 180.) It was the 
duty of the defendant to ascertain what Harper and 
McDonald knew about the case, and produce their testi- 
mony upon the trial of the cause. The failure to do so was 
inexcusable negligence on the part of defendant, and is not 
ground for a new trial. [Fanning v. Oraney, Morrison 
(Iowa) 398 ; Carson v. Cross, 14 Iowa 464 ; Wright v. 
Alexander, 11 Smede & Marshall 411; Arnold v. Skaggs, 
35 Cal. 687; Philips v. Ocniutgee Mills, 55 Geo. 633; 
Gauiier v. Douglass Man, Co., 52 How. Pi\ 325 ; Archer v. 
HeUt, 55 Geo. 200.) 

in. The objection made to the witness Stephens reading 
the statement made to him by Joseph Rodgers was properly- 
overruled. The reasons given by the court are incontro- 
vertible, namely: that the plaintiffs were not introducing 
the paper in evidence for any purpose; that the witness 
had the right to refresh his memory as to the statement 
made to him by Joseph Rodgers. (jRiordon v. Davis, 9 
La., 239 ; 1 Stark on Ev., 128.) 

By the Court, Hawley, C. J.: 

This action was brought to recover damages for the con- 
version of certain personal property, consisting of a stock 
of clothing, which originally belonged to the firm of Rich 
Bros. 

The plaintiffs in this action brought suit against A. Rich 
and J. Rich, alleged to constitute the firm of Rich Bros., 
attached the property, recovered judgment by default, and 
purchased the property under an execution sale in said 
action. After the delivery of the property to them by the 
sherift*, and on the same day, the property was levied upon 
under an attachment issued in an action commenced by the 
Colman Bros, against A. Rich, Isadore Rich, and J. Ricb^ 



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July, 1883.] TixscHowBR r. Hanks. 103 



opinion of the Court— Hawley, C. J. 



alleged to be copartners under the firm name of Rich 
Bros. Colman Bros, obtained judgment and the property 
in question was sold under execution in that action. 

The defendant in this action is the sheriff of Storey 
county, and in his answer justifies his seizure and sale of 
the property underand by virtue of the proceedings in Colman 
Bros, V. Rich Bros. He alleges that the notes upon which 
the action of Pinsehowers v. Rich Bros, was instituted (ex- 
ce\A a note to Kirkpatrick & Stephens for $1,000) were 
fraudulent, and were made for the purpose of hindering, 
delaying and defrauding the creditors of Rich Bros. 

1. It is earnestly argued by defendant's counsel that the 
evidence in this case is insufficient to justify the verdict in 
favor of plaintiffs. The testimony which plaintiffs gave in 
their own behalf seems to be, in some respects, improbable ; 
hut in several material and important points it was corrob- 
orated by impartial witnesses, and after a careful examin- 
ation we are unable to say that it should be rejected, and 
considered so false upon its face that no verdict should be 
allowed to stand upon it. Their testimony is not free from 
suspicion; but there is nothing in the record that would 
justify us in saying that it is " utterly untrustworthy. " The 
character of the testimony offered by defendant to impeach 
and destroy the testimony of plaintiffs, and to show that the 
notes, hereinbefore referred to, were fraudulent, is, in many 
respects, at least, as suspicious and improbable as the testi- 
mony of plaintiffs. In this state of the case, it was the duty 
of the jury and the district judge to determine, from all the 
facts before them, the truth or falsity of the testimony as 
given by the respective witnesses. If they consider the 
testimony of plaintiffs worthy of credit, the evidence is 
sufficient to sustain the verdict. There is not such a clear 
preponderance of evidence against the verdict as to warrant 
any interference by this coui't. There is a substantial 
conflict of evidence upon material points, and, under the 
rule so frequently announced by this court, the verdict will 
not, upon this ground, be disturbed. 

2. It is claimed that the court erred in excluding certain 



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104 PiNscTiowER V. Hanks. [Sup. Ct. 



Opinion of the Court — Hawley, C. J. 

depositions showing that Isadore Rich was a member of 
the firm of Rich Bros. We are* of opinion that this ques- 
tion is immaterial. The respective suits were brought 
against the firm of Rich Bros. The notes sued upon in 
Pinschowers v. Rich Bros, were executed in the firm name, 
and the plaintifl:'s in that action were entitled to recover, if 
at all, whether Isadore was a member of the firm or not, or 
whether he was made a party to the suit. (Whiimore v. 
Shiverick, 3 Nev. 306 ; Brown v. Birrdsall, 29 Barb. 549 ; 
Wright V, Herrick, 125 Mass. 154.) The defendants in that 
action might, perhaps, have taken advantage of the defect 
of parties defendant by plea in abatement. But if Isadore 
was a dormant partner, then the non-joinder could not have 
been successfully pleaded by them. ''Much less can it be 
pretended that, upon a judgment against ostensible partners, 
in the firm name, the interest of the partners not named 
will not pass to the sherifli'^s vendee. ' ' ( Taylor v. Henderson^ 
17 Serg. & R. 453 ; Harper v. Fox, 7 Watts & S. 142 ; 
Grier v. Hood, 1 Casey 430 ; Carey v. Bright, 58 Peim. St. 
84.) The declarations of Isadore Rich wore not objected 
to. All of his acts and conduct, with reference to the ques- 
tion whether the transaction between the Pinschowere and 
the Rich Bros, were fraudulent, were admitted in evidence 
without objection. Under these circumstances the court 
did not err, to the prejudice of defendant, in excluding the 
depositions. 

3. Joseph Rodgers, who testified in favor of defendant, 
was asked upon cross-examination whether he did not, at a 
certain time and place, and in the presence of certain parties, 
make a certiiin statement, as to facts within his knowledge, 
at variance with his testimony on the trial. He answered 
that he made no such statement. The attorney for 
plaintiffs was called as a witness, in rebuttal, and testified 
that the witness Rodgers came to his office, at the time 
named, and made a statement a^ referred to in the cross- 
examination of the witness ; that this statement was written 
down by the attorney and read to the witness Rodgers ; that 
Rodgers did not sign it, but stated that it was correct, and 



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Julj, 1883.] PiNscHowBR r. Hanks. 105 

Opinion of the Court— Hawley, C. J. 



that he would ao testify, if called as a witness, upon the trial 
of the case. The attorney, when asked what statement 
Rodgers made, asked leave of the court to refresh his 
memory by referring to the written statement, and, leave 
being granted, he then read aloud the written statement as 
taken down by himself. It is contended that the court 
erred in permitting the attorney to read this statement. 
The written statement was not oftered in evidence for any 
purpose. The attorney had the right to examine the paper 
for the purpose of refreshing his memory as to the state- 
ment made by Rodjjers. He testified to the correctness of 
the facts set forth in the statement as read by him. It was 
not the written statement, but the recollection of the wit- 
ness, that was given in evidence. It was not erroneous to 
allow the witness to refresh this recollection by reading the 
statement. {Cooper v. Siaie^ 59 Miss. 272 ; Halsey v. Sinse- 
bough, 15 N. Y. 486 ; Guy v. Mead, 22 N. Y. 465 ; Krom 
V. Levy, 1 Hun. 173; Com. v. Ford, 130 Mass. 64.) 

4. Upon the motion for a new trial, on the ground of 
newly-discovered evidence, defendant presented the affida- 
vits of Joseph McDonald and Charles Harper, who were his 
deputies, tending to show that the suit of Pinschowers v. 
Hich Bros, was fraudulent ; the facts alleged being declara- 
tions made by A. Rich, after the attachment was levied, 
to the eiiect that they (Rich Bros.) had been working for 
the San Francisco creditors long enough, and did not intend 
that they should catch them again, and the request of A. 
Rich to have Joseph Rodgers put in charge as keeper, and 
other matters of like import, leading deponent Harper to 
believe, from what was said, '^that all the expenses were 
borue by Rich Bros., and that the suit and attachment 
was, through some arrangement, between Rich Bros, and 
plaintifts ;'' and giving McDonald to understand " that said 
suit in which said attachment was issued, and said attach- 
ment, was a job between the plaintifts * * * and the 
said A. Rich and J. Rich." The record shows that Joseph 
McDonald was subpoenaed as a witness and testified to other 
matters on behalf of the plaintifts and the defendant, and 

Vol. XVIII— 14 

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106 PiNscHowER V, Hanks. [Sup. Ct. 

Opinion of the CJourt — Hawley, C. J. 



that Charles Harper was subpoenaed and was present, but 
did not testify, at the trial. They state, in substance, that 
they considered that defendant was merely a nominal party 
to the action, and that he and his deputies should stand 
neutral as between the parties, and hence they never stated 
the matters tending to establish the fraudulent character of 
the transaction between plaintiffs and the Rich Bros, to the 
defendant or to his attorney, or the Colman Bros., until 
after the verdict in this action was rendered, and that they 
make the statement set forth in their affidavit in the interest 
of justice, believing that a wrong has been committed by 
the verdict. 

It is important, first, to determine whether the defendant 
used due diligence to procure the testimony within the 
knowledge of the witnesses making these affidavits. It 
seems manifest to us that no such diligence is shown as the 
law requires. No affidavit was made by the defendant or 
the Colman Bros. The statement in the affidavit of 
defendant's attorney, that '*he diligently searched for testi- 
mony to establish the defense made by the amended answer 
in this action," and other like averments as to the diligence 
used by the defendant and the Colman Bros, is too general. 
The acts performed by them should be particularly stated, 
so as to enable the court to determine whether the con- 
clusions stated in the affidavit are supported by the facts. 
It is the duty of litigants to be active and diligent in pro- 
curing the testimony upon which they rely to maintain their 
cause. Trials are not to be encouraged as experiments. A 
party is not allowed to present his case by piecemeal ; to 
take a part of the facts first, and then, if he fails, apply for 
a new trial, and seek to strengthen his case by a statement 
of other facts which were reasonably within his power to 
present at the first trial. He must make diligent search 
and inquiry in advance of the trial, and be able to show, to 
the satisfaction of the court, that he used reasonable dili- 
gence. 

It matters not whether the defendant is the real or nomi- 
nal party to the action. He certainly cannot claim that he 



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July, 1883.] PiNSCHOWBR v. Hanks. 107 

Opinion of the Court—Ha wley. C. J. 

is entitled to a new trial because lie is only a nominal party 
to the suit. If the Colman Bros, were the real parties in 
interest, it was their dutj- to make reasonable efforts to 
ascertain and procure the testimony upon which they relied, 
to establish the fact that the suit of Pinschowers v. Rich was 
fraudulent. Witnesses were introduced who testified to 
acts and declarations of the Rich Bros, and the plaintiffs at, 
prior to, and after the attachment in that suit was levied, 
tending to show that the transaction was fraudulent. Mc- 
Donald and Harper were the officers who levied the attach- 
ment, and one of them took charge of the property as 
keeper. In the very nature of the case, their position was 
such that they were liable to hear and know what the Rich 
Bros, and the plaintifls had to say or do (if anything) about 
the transaction, and it was the duty of the defendant and of 
Colman Bros, to inquire of them whether they had heard or 
seen anything tending to show the true nature of the trans- 
action. Ordinary prudence suggests that they should have 
pursued this course. Their failure to do so constitutes such 
inexcusable negligence as to prevent them from availing 
themselves of the facts set out in the afiidavits. 

In Arnold v. Skaggs the court said : '*As to the witness 
Covey, the case not only fails to show diligence in preparing 
for trial, but shows negligence. He was culled by the de- 
fendant as a witness and examined at the trial, and the most 
ordinary dihgence on the part of the defendant or his coun- 
sel would have led to the discovery of what further, if any- 
thing, he knew about the case. That the discovery, under 
such circumstances, was not made until after the trial, must 
be attributable to negligence." (35 Cal. 687.) 

In Howard v. Winters this court said: *'It is for the 
public good that there be an end to litigation. When, 
therefore, a trial has been held, and a judgment rendered, 
a second trial should only be granted to further the ends of 
justice, and not to relieve litigants from the consequences of 
their own laches, thoughtlessness, or neglect. The law de- 
mands of the parties all reasonable diligence and caution in 
preparing for trial, and furnishes no relief for the hardships 



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108 PiNSCHOWBR V. Hanks. [Sup. Ct. 



opinion of the Court — Hawley, C. J. 



resulting from inex(jUBable negligence or want of diligence. 
When, therefore, a new trial is sought because of newly- 
discovered evidence, it should most certainly be shown by 
the party making the application that his failure to produce 
such evidence at the first trial was not the result of any 
negligence upon his part. Of that fact the court should be 
perfectly satisfied. To grant new trials upon this ground, 
where no such showing is made, would simply be giving 
encouragement to negligence, and judicial approval to inex- 
cusable carelessness." (8 Nev. 542.) 

The authorities cited by respondent are to the same 
effect. (See, also, Ihney v. Toney, 73 Lid. 36 ; Zickefoose 
V. Kuykendall, 12 W. Va. 30 ; Atkinson v. Connor, 66 Me. 
650 ; Blake v. Madigan, 65 Me. 530 ; Brown v. Luehrs, 96 
111. 197.) 

The judgment of the district court is affirmed. 



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REPORTS OF CASES 



DETEBMINRD IN 



THE SUPREME COURT 

OF THE 

STATE OF NEVADA, 
OCTOBKR TERM, 1883. 



[No. 1126.] 



QILL80N & BARBER^ Respondents, v. WILLIAM E. 
PRICE, Appellant. 

Contract for Cutting Cord Wood, Construed— Liability of Defendant.— 
The contract provided that the wood should be delivered, at a certain 
place, upon the cars of the V. & T. R. R. Co., and was to be paid for '* when 
sale was made and return of sales were received." The complaint 
allied that on a previous date an action was brought and judgment 
recovered for the amount then due for the wood delivered before such 
date, and for which returns of sale had, before that time been received : 
HM, that the test of defendant's liability at the time the former action 
was brought, was whether he had then received returns of sales of wood, 
although it had not been shipped or delivered on the cars. 

Idem — Instructions. — Held, that appellant could not complain of the instnic- 
tions of the court, as to his liability, which were given at his own request. 

Burden of Proof— Allegations of Complaint. — The burden of proof is on 
the defendant to prove all the allegations of his complaint necessary for 
his recovery ; but he is not bound to prove what goes merely to support 
the defense, although he has himself alleged them. 



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110 GiLLsoN V. Price. [Sup. Ct. 

Argument for Appellant. 

Idem — Estoppel. — Plain tifi& offered in evidence the judgment roll in former 
suit for the purpose of proving, as alleged in the complaint, that the cause 
of action was not identical with that litigated and determined in former 
action. Defendants defense was estoppel : Held^ that plaintiffs were not 
obliged to prove that the wood referred to in this action was not included 
in the former action ; that the defendant's plea of estoppel was new matter, 
and he was bound to plead and prove it. 

Idem— Evidence— Anticipating Defense.— /TcW, that the court did not err in 
permitting plaintiffs to anticipate the defense by adducing evidence tend- 
ing to show that the cause of action in this case was not identical with 
that in issue and determined at a prior date. 

Appbal from the District Court of the Second Judicial 
District, Washoe County. 

The facts are stated in the opinion. 

C. iS, Varian, for Appellant : 

1. The plaintiffs need not have pleaded the former judg- 
ment. In such case the estoppel must have been pleaded 
and proven by the defendant. Neither is it denied that 
immaterial averments need not be proved. The contention 
here is that the plaintift's have undertaken to avoid the 
effect of the former judgment, and by their form of plead- 
ing have assumed the burden of proof. The question is, 
what were plaintifts, under thei.r form of pleading, required 
to give evidence of in the first instance ? Is it not true 
that at the close of plaintiffs* case it must have been made 
to appear prima facie that the claims sued on were not iden- 
tical with those included in the former suit ? Under the 
pleadings the defendant could and must introduce evidence 
to rebut plaintiffs' claim that the causes of action were not 
identical. This without reference to his affirmative defense 
of estoppel, unnecessarily/ pleaded. Suppose defendant had 
not set up the estoppel, could he not have introduced the 
same evidence under his denials to meet plaintiffs' evi- 
dence ? An affirmative answer decides this appeal. I sub- 
mit, the case is not within the rule as to immaterial allega- 
tions ; because, first, the plaintiffs have made all the alleged 
matters material by so connecting and interweaving them 
together as to leave their cause of action dependent upon 



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Oct. 1883.] . GiLLSON t\ Price. Ill 



• 



Argument for Respondent. 

them ; and because, second, the avoidance of the eftect of 
the former judgment is not wholly foreign or irrelevant to 
the cause. On the contrary, the question whether the 
causes of action in this suit were identical with that in the 
former case is very relevant and material. None the less 
so because the plaintiffs, if so disposed, might have left the 
plea and proof to defendant. .1 suppose a privilege pf this 
kind may be waived as well by pleading as in any other 
way. The plaintiffs, having assumed the affirmative, should 
be held to it. (Steph. on PI. 425 ; Chitty on PI. 229 ; Bliss 
on Code PI. sec. 215; Dickensheeis v. Kaufman^ 28 Ind. 
251.) 

11. Suppose the plaintiffs at the trial, having introduced 
their stipulation that two hundred and sixty-eight and one- 
half cords had been cut and shipped, and the record of the 
former suit had failed to make any proof that this wood was 
not included in the former action, would not the defendant 
have been entitled to judgment of non-suit ? This seems 
perfectly clear, notwithstanding an estoppel was pleaded, 
because the issue is tendered by the plaintiffs and fully met 
by the denials. (Whart. on Ev. sec. 357 ; Union Bank v. 
Ridgly, 1 Har. v. Gill 417 ; Burgess v. Lloijd, 7 Md. 198 ; 
6 Mod. 218 : see, also, as reflecting upon the question : 
M' Cltire V. Fursell, 6 Tnd. 830 ; Kent v. White j 27 Ind. 
390 ; Vieths v. Hagge^ 8 Iowa 163 ; Stevenson v. Marony^ 
29 m. 532 ; Brown v. Kentfield, 50 Cal. 129 ; Cowing v. 
McJfhrlany 12 Pittsburg Legal Jour. 411.) 

Bobt. *M. Clarke and IVenmor Coffin, for Respondents : 

I. The ord^r of proof i& a matter resting solely within the 
discretion of the lower court, and is not subject to review. 
(1 Greenl. on Ev. sec. 74, note 3, and authorities there 
cited ; York v. Pease, 2 Gray 283.) The burden of proof 
is upon the party making the allegation, or if the allegation 
is made by both parties, burden of proof is upon the party 
whose cause would be injured or destroyed by strikin/s: it 
from the record. (Greenl. on Ev. sec. 74, and notes and 
authorities there cited ; Spaulding v. Hood, 8 Gush. 605-6 ; 



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112 QiLLsoN V. Price. [Sup. Ct 



• 



Opinion of the Court— Leonard, J. 



Blanchard v. Young^ 11 Cush. 345 ; Central Bridge Co. v. 
Butler, 2 Gi-ay, 132 ; Powers v. Russell, 13 Pick. 76-7 ; 
Wilder v. Cowles, 100 Mass. 487 ; 1 Taylor on Ev. sec. 838; 
Mills V. Barber, 1 Meesou A Welsby 427.) If the entire 
allegations concerning the former suit and recovery were 
stricken from the record it would still show a complete 
cause of action for plaintiiFs, but absolutely no defense. 

By the Court, Leonard, J. : 

This action was brought by plaintiffs to recover the sum 
of two thousand two hundred and fifty dollars, alleged to be 
due from defendant for cutting, splitting and delivering six 
hundred cords of wood under a contract executed by de- 
fendant and one Hugh Porter, which contract, before its 
completion, with the knowledge and consent of defendant, 
was assigned and transferred to plaintiffs for a valuable 
consideration. By the terms of the contract, Porter agreed 
to cut, split and deliver cord wood to the defendant at the 
Ophir dump, upon the cars of the Virginia & Truckee 
railroad, at the price of three dollara and seventy-five cents 
per cord, payable when sales were made and returns of sales 
received. It is not denied that by the assignment plaintiffs 
acquired all of Porter's rights under the contracts. Instead 
of being satisfied with a statement of facts suflicient to 
authorize a recovery, plaintiffs inserted in their complaint 
many averments that were not necessary in stating their 
cause of action. They not only allege the terms of the 
contract, the assignment, a performance on their part, and 
the indebtedness of defendant by reason thereof, but also 
that on previous dates they brought an action and recovered 
judgment for the amount then due for wood delivered to 
defendant before such suit, and for which returns of sales 
had before that time been received ; that after said action 
was brought and tried, and after said judgment was entered, 
they cut, split and delivered to defendant, under said con- 
tract, and in pursuance of its terms, six hundred cords of 
wood, which wood was not included in said action and 
judgment, and which had not, at the time of said suit, been 



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Oct. 1883.] GiLLsoN r. Price. 118 

Opinion of the Court— Leonard, J. 

delivered by plaintiffs to the defendant at the Ophir dump, 
and upon the cars of the Virginia & Truckee railroad, and 
which wood has, since said suit, been so delivered and sold 
and shipped by the defendant, and for which, and the sales 
thereof, defendant has, since said suit, had returns. 

The complaint also contains averments to the effect that 
defendant is indebted to plaintiff* in the sum of two thousand 
two hundred and fifty dollars, for six hundred cords of wood 
cut, split, and delivered to him by them, at the Ophir 
dump, upon the cars of the Virginia & Truckee Railroad ; 
that defendant promised to pay the same upon return of 
sale thereof ; and that return has been had. 

Defendant did not move to strike out any portion of the 
complaint. In his answer he denies that after the former 
suit was brought, plaintiff's or either of them, under said 
contract, or any contract, either cut, split, or delivered, any 
wood to defendant upon the cars of the Virginia and 
Truckee Railroad. This denial may be considered as 
eliminated from the answer by the stipulation entered into 
between plaintiff's and defendant, which will be referred to 
hereafter. Defendant also denies that, *' any wood, since 
the action and judgment aforesaid, and not included therein, 
and not at the time of said action delivered by plaintiff's to 
defendant at the Ophir dump, and upon the cars aforesaid, 
has been either cut, split, or delivered, by plaintiff's to 
defendant, or that any wood as aforesaid has bjeen sold or 
shipped by defendant, or that he has had returns for any 
such wood or the sales thereof . " He then denies plaintiff's* 
allegations of indebtedness, and sets up the plea of estoppel 
by former judgment, in due form. 

The stipulation before referred to and introduced in evi- 
dence by plaintiff's is as follows : " We stipulate that two 
hundred and sixty- eight and one- half cords of wood, which 
has been cut under the contract in suit, was shipped away 
by Price from the Ophir dump since the former action, 
and said wood was at the Ophir dump, and had not been 
delivered to said Price on the cars of the Virginia & 
Truckee Raih'oad at the time of said former suit and judg- 

Vol. XVin-15 

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114 GiLLSON r. Price. [Sup. Ct. 

Opinion of the Court — Leonard, J. 

ment." Plaintiffs had verdict and judgment for the num- 
ber of cords stated in the stipulation, at three dollars and 
seventy-five cents per cord, less thirty-five cents per cord 
for loading on the cars. This appeal is from an order over- 
ruling drfendant's motion for a new trial, and from the 
judgment. 

The record shows that plaintiffs offered in evidence the 
judgment roll in the former suit, for the purpose of proving 
that the causes of action embraced in the complaint in this 
action were not identical with those litigated and deter- 
mined in the former one. Defendant objected on the 
grounds that the evidence was irrelevant and immaterial to 
the defendant's case, and negatived the truth of the estoppel 
pleaded by him, and because it was not proper evidence in 
chief. The court overruled the objection on the ground 
that, under the form of pleading, if plaintiffs wished to 
anticipate the defense and enter upon their rebuttal, they 
would be permitted to do so. Plaintiffs were permitted, 
also, to introduce other evidence, against defendant's objec- 
tion, tending to show that the parties to this and the former 
action were the same, and that the alleged causes of action 
in this suit were not identical with those determined in the 
former one. 

After plaintiffs rested, defendant, on his part, introduced 
documentary and other evidence tending to prove that the 
claims and demands of plaintiffs in the present action were 
identical with those in issue and determined in the former 
action. 

Defendant having rested, without asking or getting 
leave to reopen their case, plaintiffs were permitted to call 
a witness to contradict the defendant, who as a witness in 
his own behalf, had testified that at the trial of the former 
action evidence was given to the effect that the wood 
remaining at the Ophir dump had been sold and the money 
or returns of sale therefor received. To the question whether 
any such evidence was given at the former trial, defendant 
objected on the ground that it was incompetent, irrelevant, 
and immaterial, and not in rebuttal, but that it was in sup- 



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Oct. 1883.] GiLLsoN V. Pricb. 116 

Opinion of the Court— Leonard, J. 



port of the plaintiffs' main case, under a former ruling of 
the court. The objection was overruled, and the witness 
answered that to his best recollection no such evidence waa 
given. 

The assignments of error on motion for new trial were : 
(1) That the court erred in permitting plaintiffs to intro- 
duce evidence in chief to negative the estoppel pleaded by 
defendant, and in admitting the rebutting testimony last 
mentioned ; (2) that the court erred in giving plaintiffs* 
instructions one and two, and in refusing defendant's first 
instruction. Tt is not urged in argument that plaintiff's* 
first instruction was erroneous. We think it was correct, 
and shall not notice it further. 

Defendant's defense was the plea of estoppel. His denials 
were based upon that theory of the case. The court so in- 
structed the jury, and also charged them that, if they found 
from .the evidence that the matters in issue in this action 
had been litigated and determined in the former one men- 
tioned in the pleadings, they should find for the defendant, 
otherwise for the plaintiffs. On behalf of defendant the 
jury were told that all wood which defendant had sold, and 
for which he had been paid, prior to the commencement of 
the former action, might have been embraced and included 
therein ; and if they found from the evidence submitted to 
them that the whole or any part of the wood in issue had 
been sold, and the money received therefor by defendant, 
prior to the commencement of the first action, and that 
evidence tending to establish such fact was given before the 
jury on that trial, then the former suit was a bar to any re- 
covery in this action for any wood so in issue ; that it did 
not matter whether the issue in the former suit, if there 
was one, as to the wood which had been sold, was properly 
or justly decided or not; that the only question for them to 
pass upon was whether such issue was made and determined 
in said suit against defendant. 

Defendant's first instruction refused by the court was to 
the effect that before plaintiffs could recover at all, under 
the allegations in their complaint, the jury must find that 



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116 GiLLsoN V. Prick. [Sup. ()t. 

opinion of the Court — Leonard, J. 

since the former suit and judgment, plaintiffs cut, split, and 
delivered at the Ophir dump, and on the cars of the Vir- 
ginia & Truckee Railroad, the wood mentioned in the stip- 
ulation. 

Defendant insisted in the court below, and such is his 
argument here, that under the contract the test of his lia- 
bility, at the time the former action was brought, was 
whether he had then received returns of sales of wood, al- 
though it had not been shipped or delivered on the cars. 
At his request the court so charged the jury. He cannot 
now complain because the court adhered to that construc- 
tion of the contract, which is undoubtedly the correct one. 

Plaintiff's' second instruction was to the effect that the 
burden of proof was upon defendant to show by a prepon- 
derance of evidence that the contmct price for the wood 
sued for was recovered in the former action. Counsel for 
defendant does not deny that immaterial averment^ need 
not be proved. He admits that it was not necessary for 
plaintiffs to allege that the matters in issue in this action 
were not included in the former one, or aver facts showing 
that they could not have been. He concedes that if 
plaintiffs had alleged only what was necessary and proper 
to constitute their cause of action, defendant would have 
been obliged to allege and prove the facts constituting the 
estoppel claimed. But he contends that plaintiff' under- 
took to avoid the effect of the former judgment by their 
form of pleading, and thereby assumed the burden of proof. 
We do not think so. A plaintiff' must prove allegations 
that are essential to recovery {Qreenfield v. Life Ins. Co. 
47 N. Y. 436), but he is not bound to prove what goes 
merely to support the defense. {Morgan v. Wattles^ 69 
Ind. 265.) 

The civil practice act provides that **the complaint shall 
contain a statement of the facts constituting the cause of 
action in ordinary and concise language," and, if the com- 
plaint be verified, the answer shall contain — ^^ £^irst, a 
specific denial to each allegation of the complaint, contro- 
verted by the defendant, or a denial thereof according to 



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Oct. 1883.] GiLLSON V. Prick. 117 

opinion of the Court— Leonard, J. 

his information and belief. * * **' (Sec. 39.) This 
evidently means material allegations ; that is to say, allega- 
tions essential to the plaintift^s claim, and which could not 
be stricken from the complaint without leaving it insuffi- 
cient ; allegations which the plaintiff must prove on the trial 
in order to maintain his action. {Hubler v. Pullen, 9 Ind. 
275; Baker v. Kistler, 13 Ind. 63; Qinfield v. Tobias, 21 
Cal. 350; Fry v. Bennett, 5 Sandf. 64; Bliss, Code PL, 
359.) The answer shall contain — ^^ Second, a statement of 
any new matter or counter claim, constituting a defense, in 
ordinary and concise language.*' (Sec. 46.) *' Every ma- 
terial allegation of the complaint, when it is verified, not 
specifically controverted* by the answer, shall, for the pur- 
poses of the action, be taken as true. The allegation of 
new matter in the answer, shall, on the trial, be deemed 
controverted by the adverse party.'' (Sec. 65.) '*A 
material allegation in a pleading is one essential to the 
claim or defense, and which could not be stricken from the 
pleading without leaving it insufficient." (Sec. 66.) 

Where a party grounds his right of action upon a nega- 
tive allegation he must prove it. It is then material, and 
a denial Taises a material issue. But it is otherwise if he 
inserts in his complaint a negative allegation which he need 
not prove in order to make out a 'prima facie case. Plain- 
tiffs were not obliged to prove that this wood was not 
included in the former action. If a plaintiff*, in an action 
upon a contract, should allege that the defendant, when he 
executed it, was not an infant or lunatic, he need not prove 
the allegation. It would be immaterial to his cause of 
action. A failure to deny it would not be an admission of 
its truth, and, being new matter, its mere denial would 
neither compel the plaintiff' to prove it, nor enable the 
defendants to establish the fact that he was one or the other. 
Defendant's plea of estoppel was new matter, and he was 
bound to plead and prove it. 

Said the court, in Northrup v. Mississippi Valley Ins, Co. 
47 Mo. 444: *' Under the old system, by pleading the 
general issue, everything was open to proof which went to 



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118 QiLLsoN V. Price. [Sup. Ct. 



Opinion of the Court — Leonard, J. 



show a valid defense. B.ut the practice act, which has sub- 
stituted for the general use an answer, and requires a state- 
ment of any new matter constituting a defense, in addition 
to a special denial of the material allegations of the petition 
intended to be controverted, has worked a complete and 
total change in the principles of pleading. The defendant, 
by merely answering the allegations in plaintiffs petition, 
can try only such questions of fact as are necessary to sus- 
tain the plaintiff's case. If he intends to rely upon new 
matter which goes to defeat or avoid the plaintiff" s action, 
he must set forth in clear and precise terms each substantive 
fact intended to be so relied on. It follows that whenever a 
defendant intends to rest his defense upon any fact which is 
not included in the allegations, necessary to the support of 
the plaintift"s case, he must set it out according to the 
statute, in ordinary concise language, else he will be pre- 
cluded from giving evidence of it upon the trial." 

To the same effect, see Stevens v. Thompson, 5 Kan. 311 ; 
Benedict v. Seymour, 6 How. Fr. 299 ; Edson v. Dillaye, 8 
How. Pr. 274 \ A. ^ N. R. R. v. Washburn, 5 Neb. 124 ; 
Coles v. Soulsby, 21 Cal. 50 ; Catlin v. Gunier, 1 Duer 265 ; 
Allen V. Reilly, 15 Nev. 453 ; McKyring v. Bull, 16 JSI. Y. 
304; Brazill v. Isham, 12 N. Y. 17; Moak's Van Santv. 
PI. 548, 559, 582; Pom. Rem. 660 ; Paige v. Willitt, 38 N. 
Y. 31 ; Bedell v. Carll 33 N. Y. 583 ; Conaughty v. Nichols, 
42 N. Y. 87. 

If plaintiffs had offered no evidence that the contract price 
of two hundred and sixty-eight and one-half cords of wood 
was not, and could not have been, included in the livst 
action, they would not for that reason have failed. It would 
have been error, therefore, if the court had instructed the 
jury that the plaintiffs could not recover unless it appeared 
by a preponderance of evidence that this wood was not in- 
eluded in the former action, or to have granted a nonsuit if 
plaintiffs had failed to prove that fact. If defendant had 
simply denied that the contract price of this wood was in- 
cluded in the firat action, plaintiffs would have been entitled 
to judgment. A cause of action would have been conceded 



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Oct. 1888.] GiLLSON V. Pricb. 119 

Opinion of the Court — Leonard, J. 



on the record. Nor were the material and immaterial 
averments inserted in the complaint so interwoven as to be 
incapable of separation. We think the court properly 
instructed the jury as to the burden of proof. 

Such being the case, we must consider whether the court 
erred in permitting plaintiffs to anticipate the defense by 
adducing evidence tending to show that the cause of action 
in this case was not identical with that in issue and de- 
termined at a prior date. Although defendant's defense 
was the plea of estoppel, and though his denials of the 
material allegations contained in the complaint were based 
upon that theoij of the case, still, by reason of suuh denials, 
plaintiffs were compelled to introduce evidence in order to 
make out a prima facie case. ''If the record contains 
sevei-al issues, and the plaintiff hold the affirmative in any 
one of them, he is entitled to begin ; as if, in an action of 
slander for charging the plaintiff* with a crime, the defend- 
ant should plead not guilty, and a justification. For 
wherever the plaintiff' is obliged to produce any proof in 
order to establish his right to recover, he is generally re- 
quired to go into his whole case, according to the rule 
above stated, and therefore is entitled to reply. How far 
he shall proceed in his proof, in anticipation of the defense 
on that or the other issues, is regulated by the discretion of 
the judge, according to the circumstances of the case, 
regard being generally had to the question whether the 
whole defense is indicated by the plea with sufficient par- 
ticularity to render the plaintiff*'s evidence intelligible.'* 
1 Greenl. Ev. 94 ; and see note to this text, where it is 
said: **In Brown v. Murray ^ Ryan & M. 254, Lord Chief 
Justice Abbott gave the plaintiff' his election, after proving 
the general issue, either to proceed with all his proof to 
rebut the anticipated defense, or to reserve such proof till 
the defendant had closed his own evidence, only refusing 
him the privilege of dividing his case into halves, giving 
part in the first instance and the residue after the defendant's 
case was proved. ' ' See, also, Chadboum v. Franklin^ 6 Gray 
314 ; Com. v. Moulton, 4 Gray 40 ; Morse v. Foiiery Id. 293 ; 



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120 COLB V. Richmond M. Co. [Sup. Ct. 



Argument for Appellant. 



Comsiock V. Hadlyme^ 8 Conn. 261 ; Scott v. Hull^ Id. 303 ; 
Lick V. Diaz, 37 Cal. 445 ; Phil. Ev. note to p. 692 ; Raii- 
road V. Van Steinburg, 17 Mich. 111. 

The same authorities sustain the court in admitting the 
testimony of the witness King. Besides, it was strictly in 
rebuttal, and could not have been given until after the 
defendant had testified. 

We find no error in the record, and the judgment and 
order appealed from are affirmed. 



[No. 1162.] 

F. W. COLE, Appellant, y. RICHMOND MINING 
COMPANY OF NEVADA, Respondent. 

Contract of Attorney— Fees Contingent on Success.— ^cW, upon a review 
of the testimony, that respondent was liable for the fees of appellant, which 
were contingent upon the success of certain litigation ; that the question 
whether a party is successful or not depends upon the particular facts of 
the case, and that, under certain circumstances, a litigant may be success- 
ful, if he gains substantially everything of value involved in the contro- 
versy, without winning everything that is asked for. 

Idem — Continu.\nce. — There were three cases involving the same question. 
One was tried, the others were continued. The contract was that the attor- 
ney should have his additional fee if one case was tried and the others con- 
tinued to await the result, of the one tried, in the appellate court: Hdd^ 
upon a review of the testimony, that the fact that one case was tried and 
the others continued by consent, and that no reason was given for such 
continuance, except as stated by the attorney, entitled him to his fees under 
the contract. 

Appeal from the District Court of the Sixth Judicial 
District, Eureka County. 

F. W, Cole, in propria persona, for Appellant. : 

I. The admission of testimony to prove which party was 
successful in the Rose suit was proper. Parol evidence is 
admissible to show what was the precise question at issue in 
a former suit. (Freeman on Judg., Sees. 273, 274, 276; 
Wood V. Jackson, 22 Am. Dec. 621, and cases cited in 
note; Gardner v. Buckbee, 3 Cow. 120.) 

n. Testimony reviewed and discussed. 



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Oct 1883.] Cole r. Richmond M. Co. 121 



opinion of the Court— Hawley, C. J. 



Thomas Wren for Respondent : 

I. A party to an action does not lose a suit because he 
does not recover all he sues for. To prevail, according to 
Webster, is to succeed. Under our practice act the pre- 
vailing party is entitled to costs. (1 Comp. Laws, 1535, 
1536.) 

n. Testimony discussed and reviewed. 

By the Court, Hawlby, C. J.: 

Appellant recovered judgment against respondent for 
one thousand five hundred dollars, upon a contract for legal 
services rendered in the suit of Rose v. Richmond M. Co, 
The district court granted a new trial. The appeal is taken 
from that order. 

The testimony in relation to the contract, as given by 
appellant, is as follows: "Sometime in the latter part of 
May, 1881, Mr. Probert, the managing agent of the defen- 
dant, said to me that he wished to employ me in the Albion- 
Richmond Qtses^ to assist in their trial in the district court. 

* * * He said he was willing to pay a small fee, but 
would not fix the amount. He told me to consider myself 
engaged, and Mr. Foley would see me on behalf of the 
Richmond company and fix my fee. I afterwards saw Mr. 
Foley. Foley asked me what I would charge to assist in 
the trial of those cases. I said twenty-five hundred dollars. 
He said he could not give it, ' Suppose you agree to take 
one thousand dollars now, and fifteen hundred dollars in 
case the Richmond company is successful in the district 
court. * I said there are three cases that were tried together 
on the hearing for injunction, and that the same questions 
were involved in all. That the chances were that only one 
case would be tried, and that the other cases would be 
postponed to await the result of the one trial. That if that 
was the fact the trial of one would be equivalent to the trial 
of all. It was then agreed between Foley and myself that 
if only one case was tried, and the others postponed to 
await the result of the one tried in the supreme tourt, I 
was to have the fifteen hundred dollars.*' 

Vol. XVIII— 16 ^ t 

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122 Cole v. Richmond M. Co. [Sup. Ct, 

Opinion of the Court— Hawley, C. J. 



In repeating the conversation, appellant testified that 
Foley said : '* Suppose you agree to take a thousand dollars 
now, and fifteen hundred dollars in case the Richmond 
Company is successful in the district court ? I thought 
over the matter a little while and agreed to it. Foley said, 

* Consider that the contract. * 1 then said, * Mr. Foley, 
there are three cases to be tried in the district court. They 
were all settled in one decision by Judge Rising, Now 
understand, I don't think there will be but one case tried 
in this court, and if the other cases are removed, or are 
continued to wait the issue of the one tried, I will be entitled 
to my fee.* He said, ' Certainly.' I said the trial of one 
of them will be equal to the trial of them all, and that if 

. the Richmond Company was successful in the case that was 
tried, I should consider that I was entitled to the fifteen 
hundred dollars. He agreed to that. I said, • Remember 
this agreement only relates to the district court; if the 
cases are removed to the circuit court, or are appealed to 
the supreme court, some other arrangement is to be made. ' 
He said, * Of course, if the other cases are taken out of the 
district court, or the one tried is appealed, you earn your 
money. * * * » ^ few days afterwards he came into 
my oflSce and gave me a check for a thousand dollars in 
accordance with the arrangement." 

M. D. Foley, on behalf of respondent, testified as follows: 
** I was directed by Mr. Probert to settle the fee to be given 
Mr. Cole in the Richmond- Albion case. Cole demanded 
twenty-five hundred dollars. I said I could not give it. 

* * * I told Cole I would pay him one thousand dollars, 
and fifteen hundred dollars additional in case the Richmond 
Company was successful. I paid him one thousand dollars. 
Cole said if the Richmond Company was successful in the dis- 
trict court he did not believe that the Albion Company would 
try the other cases before Rives, but would remove them to 
the circuit court of the United States, and if the Richmond 
Company won the Rose case, he, Cole, would be entitled to 
his contingent fee. I said, • Yes.' " 

Base V. Hichrnond Co. was tried at the June term, 1881, 



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Oct. 1883.] Cole v. Richmond M. Co. 123 



Opinion of the Court — Hawley, C. J. 



and was the only one of the Albion- Richmond cases tried at 
that term. The other cases were continued for the term. 
The district court, in JRose v. Richmond Cb., rendered a 
judgment in favor of the defendant for all that portion of the 
mining ground in controversy '* lying between the end hnes 
of the Victoria patented claim of defendant, extended from 
the quartzite foot wall to the shale hanging wall, and lying 
southwesterly of the line ' K. L.,' " and in favor of plaintiffs 
for that portion of the ground "lying between the shale 
hanging wall and the quartzite foot wall, to the northwest of 
said line *K. L.,' '* and for the costs. The Albion Com- 
pany appealed from this judgment. The Richmond Com- 
pany did not appeal. The case on appeal was argued in the 
supreme court at the October term, 1881, and a decision 
was rendered in March, 1882. 

At the September term, 1881, of the district couii;, the 
other cases were continued for the term, *' by consejit,'* and 
at the February term, 1882, were passed until the second 
setting of the calendar, '*by consent.** This action was 
commenced in November, 1881, and was tried in Febru- 
ary, 1882. 

Did the court err in granting a new trial ? Respondent 
seeks to justify this action of the court upon two grounds : 
Firsts it claims that it was not successful in Rose v. Rich- 
mond Co., in the district court; second, it claims that the 
other cases were not postponed "to await the result of the 
one tried in the supreme court." Neither of these posi- 
tions can, in our opinion, be legally maintained. It is true 
that the Richmond Company did not recover all it claimed 
in its answer, but it recovered all that was of any value. 
The result of the trial was, as testified to by appellant, 
"substantially a success infavorof the Richmond Company/' 
The judgment " gave to the Richmond Company all the 
mining ground that was of any value which was in con- 
troversy in these three cases." The president of respond- 
ent testified that "the Richmond Company was only par- 
tially successful in the Rose case, ' ' evidently meaning that 
it was only partially successful because it did not gain all 

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124 Cole /'. Richmond M. Co. [Sup. Ct. 

Opinion of the Court— Hawley, C. J. 

that it claimed. A party, however, may be successful in a 
suit without winning everything that is asked for. The 
question whether a party is successful or not, depends upon 
the particular facts of each case ; upon the issues raised ; 
upon the contest made. The decision of the district judge 
in the Rose- Richmond case was not favorable to the Albion 
Company. The trial resulted in a success, ''a favorable 
termination" for the Richmond Company. The condi- 
tion of the case was such that it was not necessfiry for the 
Richmond Company to gain everything it prayed for in 
order to be successful in the litigation. It claimed the 
greater portion of the mining ground in controversy by vir- 
tue of the St. George and Victoria patents. The real con- 
troveray, upon the merits of the case, was as to the validity 
of these patents. If they, or either of them, were declared 
valid it would result in a victory for the Richmond Com- 
pany. If both were declared invalid it would be a victory 
for the Albion Company, although it would not, on that 
account, recover all the ground that it claimed, or all that 
was of any value. {Rosev, Richmond M. Co. 17 Nev. 25.) 
The district court decided that the St. George patent wjis 
void. This part of its decision was against the Richmond 
Company, but it held that the Victoria patent was valid, and 
this patent embraced all the mining ground in controversy 
under these patents that was of any value. The Richmond 
Company was successful in the Rose case, in the district 
court, within the meaning of the word "successful," as 
used and understood by the parties to the contract at the 
time it was made. 

The other point is equally without merit. The other cases 
were not tried ; they were continued. These facts are not 
denied. Why were they continued ? 

Appellant testified that at the June term, 1881, "when 
the two other cases were reached and called on the calen- 
dar, Mr. Wren, who is the president and attorney for the 
defendant, said to me in court, ' Had not we better continue 
the two cases until the lio.se Case is decided in the supreme 
court?' I said yes, and thereupon these cases were con- 



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Oct. 1888.] Cole v. Richmond M. Co. 125 



Opinion of the Court— Hawley, C. J. ^ 

tioued for that term and have been continued every term 
since. ' ' The president of the Richmond Company testified 
that these cases "have never been continued to await the 
result of the case of Bose v. Jilchmond Mining Co.'* But 
this statement was based upon the fact that no order to that 
effect was made by the district court, and that no consent 
was affirmatively shown to have been given for such a con- 
tinuance by the attorneys for the Albion Company. This 
is apparent from his testimony and from his argument. He 
testified: "There has never been an agreement between 
the counsel of the Richmond Company and the Albion Con- 
solidated * * * to continue them to await the result 
of the Rose Case. At the setting of cases for trial at this 
term of couit the cases were passed until the second setting 
of the calendar." 

Upon this testimony he argues that "the* fact that no 
order of court was made continuing the two cases to await 
the decision of the supreme court, shows that if such a sug- 
gestion was ever made by counsel it was never acted upon, 
for some reason. To continue the two cases to await the 
decision of the supreme court required the consent of coun- 
sel for Rose et at., as well as counsel for respondent, and it 
does not appear that consent was ever obtained.** This is 
simply begging the real question at issue. Were the cases 
continued ? Yes. What was the reason which induced 
counsel on both sides to "consent*' to the postponement of 
these cases? None is given by respondent. In the absence 
of any reason given by respondent, do not the facts of this 
case furnish an answer to the question ? Was not the post- 
ponement of the two cases the natural course that would be 
pursued in the light of the history of the Albion-Richmond 
litigation ? But one case would be tried. This would 
determine tlie questions that would necessarily control the 
judgments and decisions in the other cases. No benefit 
would accrue to either party by the trial of these cases until 
the one tried was finally determined. The contract was 
that if but one case was tried appellant would be entitled to 
his additional fee. This was the plain understanding and 



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126 Reese v. Kinkbad. [Sup. Ct. 



Points decided. 



agreement of the parties. At the time the agreement was 
made both parties anticipated that but one case would be 
tried, and that of coui'se the others would be continued until 
the one tried wa« determined in the appellate court. One 
case was tried. The others were continued. It was not 
necessary, and it is not the usual practice, in cases of con- 
sent, for the record to show why a case is continued or 
passed. The reasons often go without stating. The merits 
of the question at issue are disposed of by the fact that the 
cases were continued, and no reason has been given for the 
continuance except the one mentioned in the testimony of 
appellant. 

Upon the undisputed testimony in this case appellant was 
to have one thousand five hundred dollars as an additional 
fee if the Richmond Company was successful in the district 
court, in th^ Rose- Richmond Case, (that being the case 
tried,) and the other cases were continued to await the 
result of that case in the appellate court. The Richmond 
Company was successful. The other cases were continued. 
The verdict of the jury was in accordance with the evidence 
and the law. The court erred in setting it aside. 

The order of the district court granting a new trial is 
reversed. 



18 126! 

1* 6671 
90 65, 
14' 871 [No. 1135.] 

PHILLIP REESE, Appellant, v. JAMES H. KIN- 
KEAD, EXECUTOR OF THE ESTATE OP R. 
H. CROCKER, DECEASED, bt al., Respondents. 

Allegation of Copartnership — Sufficiexcy of. — The averment of a copart- 
nership was: "That the plaintiff and R. H. Crocker, now deceased, were at 
the time and prior to the death of said R. H. Crocker, copartners under 
the firm name and style of Crocker & Reese:" Held, sufficient, {Reese v. 
Kinkead 17 Ncv. 447, affirmed.) 

Partnership Property— Sale to Copartner— Vendor's Lien.— Where one 
conveys his interest in copartnership lands to his copartner, he is, in the 
event of his copartner's death before payment, and in the absence of fraud, 
entitled to a yendor's lien for the purchase price ; provided there are no 
creditors of the estate of his copartner. 



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Oct. 1888.] Rebsb v. Kinkbad. 127 

Opinion of the Court — Leonard, J. 



Appeal from the District Court of the Second Judicial 
District, Washoe County. 

The averment of copartnership in the amended complaint 
is stated in the syllabus. The other facts are stated in the 
opinion. 

WilUam Webster for Appellant : 

Appellant was entitled to any relief the facts in his com- 
plaint would permit, and if no trust could be decreed 
because of our statute and the decision in the case of Sime 
V. Howard^ 4 Nev., 473, the court should have, on the 
showing made in the complaint, granted relief upon 
suflScient evidence by decreeing a lien for the amount of 
money mentioned in the deed. {Leman v. Whitley^ 4 
Russ. 423; Hill on Trust. 171, and authorities cited in 
Note 1.) 

Robert M. Clarke, for Respondents : 

The amended complaint does not state a cause of action. 

I. The averment of copartnership is insuJBBicient. {Groves 
V. TaUman, 8 Nev., 178.) 

II. If, as attempted to be alleged, a partnership existed 
and the property in question was partnership property, in 
that case there is no lien for the purchase money. The 
property would still be subject to the partnership debts and 
the equitable lien of the creditors would still prevail. 

By the Court, Leonard, J. : 

Plaintiff appeals from the judgment rendered herein in 
favor of defendants for their costs of suit. It is assigned 
as error that the court below erred in sustaining defendants* 
demurrer to the original complaint, and also in sustaining 
the demurrer of James H. Kinkead, executor, to plaintiff' *8 
amended complaint. By th« amended complaint, plaintiff' 
alleges the partnership of himself and Crocker until the 
latter's death ; that he owned an undivided one-half interest 
in the property described in the deed before mentioned, 

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128 Reepe r. KiNKEAD. [Sup. Ct. 

Opinion of the Court — Ijconard, J. 

and as such owner, at the request of Crocker, and for the 
consideration of seven thousand five hundred dollars, sold 
and conveyed to said Crocker, by deed duly executed by 
plaintifl", an undivided one-half interest in and to the lands, 
water rights, and privileges described therein ; that no part 
of said sum has been paid, and the whole of said considera- 
tion is now due; that Crocker died in September, 1879, 
seized of said property; that defendant James H. Kinkead 
is the duly appointed and acting executor of the last will 
and testament of said Crocker, deceased ; that within the 
time allowed by law plaintiif duly presented his demand in 
the sum of seven thousand five hundred dollars to said 
executor for allowance, and that the same was rejected and 
disallowed ; that the other parties defendant are legatees 
and heirs at law of said Crocker, deceased, and have and 
claim an interest in said estate, because of the last will and 
testament of said Crocker. 

Upon these facts plaintiff prays that a vendor's lien be 
decreed in his favor and against all the defendants named 
for the sum of seven thousand five hundred dollars, the con- 
sideration named in said conveyance ; that an order of sale 
be made directing the sale of so much of said premises as 
may be necessary to pay plaintiff's demand for the pur- 
chase price of said property. 

The amended complaint was demurred to on the ground 
that it did not state a cause of action. The demurrer was 
sustained. Plaintift' refusing to amend further, judgment 
for defendants* costs was rendered against plaintiff, as 
before stated. We think the averment of copartnership is 
suflicient. {Beese v. Kinkead^ 17 Nev. 447.) 

Counsel for respondent contends that, if a partnership 
existed, and the property conveyed was partnership 
property, there was no lien for the purchase money ; that 
the property would still be subject to the partnership debts, 
and the equitable lien of the creditors would prevail. But 
the complaint does not show the existence of any partner- 
ship creditors, and if such there are, they are not made 
parties. The defendants have the right to protect thera- 

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Oct. 1883.] RosBNBouF V. Mandbl. 129 

Points decided. 



selves, but not the creditors of the partnership. If the con- 
veyance was fraudulent, the fact does not appear in the 
amended complaint, but it does appear that plaintift* sold to 
Crocker the property described in the deed for seven thou- 
sand five hundred dollars, and that no part of the purchase 
money has been paid. Upon these facts, in the absence of 
fraud, which cannot be presumed, the plaintiff is a creditor 
of Crocker's estate to that amount, and, on general princi- 
ples, has a lien on the property sold, as security for the 
debt. {Burt v. Wilson, 28 Cal. 638 ; Cahoon v. Robinson, 
6 Cal. 226 ; Lanan v. Whitney, 4 Russ. 427.) We think 
the court erred in sustaining the demurrer to plaintiff's 
amended complaint. 

The judgment is reversed, with instructions to the court 
below to allow defendants a reasonable time to answer. 



[No. 1153.] 

M. ROSENDORF, Respondent, v. E. MANDEL et al., 

Appellants. 

Action Against Sureties— Damages— Injunction Bond— Sufficiency of 
Complaint. — In an action, to recover damages, against the sureties on an 
■injunction bond, the complaint alleged that "plaintiff has been damaged 
by reason of said injunction in the sum of three thousand dollars, no part 
of which has been paid:" Held, in the absence of a special demurrer, 
that the averment was sufficient. 

Idem — Demand, When Not Necessary. — In an action against sureties on an 
iiyunction bond, conditioned for the payment to the plaintiff of whatever 
damages he might sustain by reason of the injunction, it is unnecessary to 
allege a demand. 

Application of Money — Rights of Creditors. — The injunction order re- 
strained the sheriff from applying any moneys realized from the sale of 
certain property of the judgment debtor to the satisfiaction of plaintiff's 
judgment. Upon the sale the sheriff, in lawful obedience to this order, 
refused to credit plaintiff's judgment with his bid, and thereby prevented 
him from purchasing the property : Held^ that the damages resulting to 
plaintiff from such refusal may be recovered in an action against the 
sureties on the injunction bond. 

Appeal from the District Court of the First Judicial 
District, Storey County. 

Vol. XVin— 17 



18 


129 


1* 


«72 


19 


101 


e* 942 



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1 



130 RosBNDORP V. Mandel. [Sap. Ct. 

Argument for Appellant. 



Napthaly, Freidenrich ^ Ackerman and J. A. Stephens^ 
for Appellants : 

I. The complaint does not state facts sufficient to consti- 
tute a cause of action. There is no allegation therein of 
breach of the contract, upon which the action is based. 
The complaint does not contain any allegation that the 
plaintiffs in the action, in which the injunction was issued, 
have not paid to the parties enjoined such damages as they 
sustained by reason of said injunction. It does not contain 
any allegation that said plaintiffs have not paid plaintiff, M. 
Rosendorf, the damages which he sustained by reason of 
said injunction. It is not alleged that a demand for the 
payment of said damages was ever made upon said plaintiffs. 
{Morgan v. Menzies, 60 Cal. 341 ; 1 Chitty PI. 332, 337 ; 
Brandt on Suretyship, sees. 168, 410 ; Kannon v. Neely^ 10 
Humph. 288 ; Sage v. Wilcox, 6 Conn. 81 ; 2 Par. Con. 29.) 

n. Defendants are not liable, because of the refusal of 
the sheriff to credit plaintift''s bid upon his judgment. De- 
fendants have a right to stand upon the very terms of their 
contract and every intendment is to be construed in their 
favor. (Brandt on Suretyship, sees. 79, 98, 102 ; Miller v. 
Steivart, 9 Wheat. 680; Tarpey v. Shillenberger, 10 Cal. 
390.) By ordering or permitting or consenting to the 
second sale the plaintiff" necessarily waived all rights, if any, 
which he had acquired under the first sale. Under the first 
sale plaintiff' had acquired a right to have the sale com- 
pleted ; he was the highest bidder and his bid had been 
accepted. (Her. on Ex. 318, note 5.) It is manifest that 
the second sale could not have been had except by direction 
of plaintiff Rosendorf, hence we maintain that all rights 
which plaintiff'had acquired under the first sale were waived 
by his consent to the second sale. {Lally v. Wise, 28 Cal. 
539.) To charge the sureties because the sheriff* would not 
sell the property except for ready cash would enlarge the 
terms of their contract. Defendants are entitled to a strict 
construction of their contract. 

III. The sheriff" was not bound to accept plaintiff's judg- 

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Oct. 1883.] RosENDORP V. Mandkl. 131 



Opinion of the Court— Belknap, J. 



ment in satisfaction of his bid. {Isler v. (Jolgrove^ 75 
N. C. 334.) 

W. E. F, Deal, for Respondent : 

I. The complaint sufficiently avers the breach of the con- 
tract upon which the -action is based. 

II. The commencement of the action is a sufficient 
demand. When an obligation to pay is complete, a cause of 
action at once arises and no formal demand is necessary 
before suit. {Randon v. Barton, 4 Tex. 289 ; Edwards v. 
Bishop, 4 N. Y. 61 ; Chason v. Rankin, 1 Duer 337 ; 
Brown v. Jones, 5 Nev. 374 ; State v. Grape, 36 Mo. 365 ; 
Watson V. Walker, 23 N. H. 471.) 

in. The sureties were liable for any damages caused by 
the refusal of the sheriit to credit plaintift*'s bid upon his 
judgment. The sheriff was bound to accept a credit on 
respondent's execution in satisfaction of his bid. He had 
the right to have the respondent pay him the amount of his 
fees, etc., and this the respondent did ; but beyond this he 
could claim nothing except that respondent credit the 
amount of his bid upon the execution. {Sweeney v. Haw- 
thome, 6 Nev. 133.) When the judgment-creditor makes 
his bid within the amount of his judgment, and pays the 
sheriff's fees, expenses, costs of sale, etc., and offers to 
receipt for the amount of his bid on the execution, it is in 
effect a tender of cash to the amount of his bid. (Fi-eeman 
on Ex. sec. 300 ; Russell v. Gibbs, 5 Cow. 390 ; Nicholls v. 
Ketcham, 19 John. 92. 

By the Court, Belknap, J. : 

Plaintiff' recovered a judgment at law against th^ firm of 
Meyer Bros. Thereafter, J. Baum & Co., other creditors 
of Meyer Bros., commenced a suit in equity against the 
plaintiff* and others to set aside the judgment, and obtained 
an injunction against the sheriff of the county requiring him 
to hold all moneys he might realize from the sale of prop- 
erty levied on in the case of Rosendorf v. Meyer Bros, until 



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182 RosENDORP V. Mandbl. [Sup. Ct. 

Opinion of the Court— Belknap, J. 

the further order of the court. Defendant in the equity 
suit (plaintiff here) prevailed, and the present action is 
brought upon an undertaking entered into upon the issuing 
of the injunction. Trial was had upon the merits, and 
judgment rendered in favor of plaintiff. 

The only question made arises upon the judgment roll, 
and is whether the complaint states facts sufficient to con- 
stitute a cause of action. It is claimed that no breach of 
the condition of the undertaking is assigned, in that the 
complaint does not state that the complainants in the equity 
suit have not paid the damages incurred by reason of the 
injunction. The complaint alleges *' plaintiff has been dam- 
aged by reason of said injunction in the sum of three thou- 
sand dollars, no part of which has been paid." This aver- 
ment is sufficient. The only objection that can be suggested 
is that it is general, and does not expressly state complain- 
ants have not paid the damages ; but the suggestion is with- 
out merit, and could be raised only upon special demurrer. 

It is also claimed that the complaint is defective in not 
stating a demand. Mr. Chitty says that a demand must be 
averred when, by the terms of the contract, it is incumbent 
on the plaintiff to request the defendant to perform his con- 
tract, such request being, as it were, a condition precedent. 
(Chit. PI. 340.) But this is not a case in which a request 
is necessary to the right of action. The condition of the 
undeii;aking is that the complainants in the equity suit will 
pay to the parties enjoined such damages, not exceeding 
one thousand five hundred dollars, as they may sustain by 
reason of the injunction, and no demand or other act upon 
the part of the plaintiff' here is contemplated. Defendants 
covenanted that plaintiff should be paid. lie was not paid. 
They were therefore in default, and no demand Wiis neces- 
sary. (Gibbs V. Southam, 5 Barn. & Adol. 911; Dyer v. 
Mich, 1 Met. 180 ; Nelson v. Bosiwick, 5 Hill 40.) 

The injunction order restrained the sheriff from applying 
any moneys that might be realized upon the execution sale 
of the property of defendants, in the case of liosendorf v. 
Meyer Bros., to the satisfaction of the judgment, and 



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Oct. 1888.] Phipps v. Hully. 133 

Points decided. 



directed him to hold such moneys until the further order 
of the court. Upon the sale, the sheriff refused to credit 
plaintiff's judgment with his bid, and thereby, plaintiff 
alleges, he was prevented from purchasing the property, 
and damaged. In general, the law does not require the 
execution creditor to pay the amount of his own bid in 
money, because the creditor is himself entitled to receive 
the money recovered upon his execution. He is not, there- 
fore, required to pay out money which he is entitled to 
recover back. But the purpose of the injunction was to 
preserve the moneys that might be realized from the sale 
of the property of the judgment debtor until the rights of 
the creditors could be determined, and this purpose would 
have been disregarded, and the order of the court violated, 
had the sheriff' credited plaintiff"s bid upon his judgment. 
The sheriff' properly refused to deliver the property until 
he received the money, and his refusal was made in 
obedience to the injunction. The damage resulting is 
chargeable against defendants upon their undei1»king. 
Judgment affirmed. 



[No. 1158.] 

WILLIAM PHIPPS, ET AL., Appellants, v. THOMAS 
HTJLLY, Respondent. 

Contract— REDUCTION op Ore— Assay Value— BArrEBY Samples— Plead- 
ings.— Action on contract for reduction of ores requiring payment to 
plaintiffs of " sixty-five per cent, of the assay value of said ores, such assay 
to be made from said ores taken from the battery samples " at defendant's 
mill. The answer denied that the battery samples were duly or properly 
made and averred " that either by fraud of plaintiffs * * * or mistake 
by defendant's employes, they failed to show the assay value of such ores," 
and set forth the true value of the ore : Held, that the averments in the 
answer raised an issue as to the terms of the contract and the correctness 
of the assays taken from the battery samples. 

Idsm — Constrxjction of Contract : — Held, that by the terms of the contract 
the assays from the battery samples were to be taken as a means of ascer- 
taining the value of the ore ; that it was not the intention of the parties 
that they should be bound by the assays if they did not fairly represent 
the value of the ore, and that it was the true value of the pulp from the 
battery that was to be taken as a guide for the settlement. 

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. I 



184 Phipps V, HuLLY. [Sup. Ct. 



Argument for Appellant. 



Idem — Evidence : — Held^ that evidence, independent of the contract and of the 
assays taken from the battery, was admissible which tended to show that 
assays from the battery samples were not correct and also tended to show 
what the true value of the ore was. (See opinion for character of evidence 
admitted.) 

Immaterial Evidence — Effect of. — The court allowed testimony as to the 
value of ore in other places in the mine than that from which plaintiffs' 
ore was taken : Held, that the error, if any, was not of sufficient import- 
ance to justify a reversal of the judgment. 

Appeal from the District Court of the First Judicial Dis- 
trict, Storey County. 

The returns of the assayer making the assays that were 
introduced in evidence, contained the following caution : 

"It is perilous to trust any assay- report which is based 
upon a single assay, no matter how carefully or by whom 
made. No evidence is so satisfactory of the correctness of 
an assay report as the agreement of two proper assays of 
the same pulverized sample. All ore assays not specially 
otherwise ordered are understood to be of this character. 
When no interests are dependent, and when certainty as to 
the precision of a report is not important, a single assay- 
may be sufficient. Ore samples from a distance (three 
ounces is a sufficient quantity) may be sent prepaid by mail 
or express. It is reasonable to look for agreements in 
assays from the same ore made by difJerent assayers only 
when the sample has been previously pulverized and 
thoroughly mixed, after being sifted through the jfinest 
sieve. Pulp which has passed the first battery screens (as 
well as coarsely broken ore and tailings) may have a very 
deceptive sample sifted out of it. Parties who do not wish 
to be misled by assay-reports as to the value of their ores, 
pulp and tailings, should assure themselves that the assayer 
has faithfully operated upon a sample which truly represents 
the ore, and that he has not 'estimated' (guessed!) the 
gold contents, or assumed (without testing for it) that gold 
is not contained at all.*' 

M, N. Stone, for Appellants : 

I. The theory of the court, in disregarding the battery 



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Oct. 1888.] Phipps v. Hully. 185 

Aigament for Appellant. 



assays, was palpably unsound if any force or eftect whatever 
is to be given to the contract made by the parties. Assays 
made from the battery samples at the mill were the only 
tests provided by the parties for determining the value of 
the ores received and reduced by respondent, and sixty-five 
per cent, of such assay value, and no other, was the amount 
agreed to be paid for the ore reduced, after deducting the 
discount and six dollars and fifty cents per ton for reduction. 
The parties knew that they were contracting with reference 
to property of uncertain and fiuctuating value ; that some 
exclusive test should be adopted to protect appellants 
against any unfair or improper reduction of the ores at the 
mill, and that unless such test value was stipulated, the 
respondent and his mill employes being in the exclusive 
possession of the ores after delivery, would have it within 
his power to make any return to them he might see fit, of 
the value of the ore reduced. If they are to be compelled 
to depend as decided by the court, upon respondent's good 
faith and fair dealing in milling the ores and to take the 
word of himself and his employes in respect to the amount 
and value of bullion produced, the agreement for the ascer- 
tainment of the value of the property by battery sample 
assays was useless and absurd. It left them wholly without 
protection against his wrongful or fraudulent acts, or his 
improper or defective method of milling the ore. 

11. The answer presents no defense to the cause of action. 
The contract, as claimed by appellants, is admitted by it, 
and no new matter is alleged in avoidance of the contract. • 
To present any issue on the ground of fraud the facts and 
circumstances constituting the fraud or mistake should be 
set forth in the answer, and unless they are so set forth, 
proof to sustain such grounds of defense is inadmissible. 
When fraud is relied upon as a defense, a general allegation 
charging fraud will not suflice ; all the facts which the law 
requires as the elements of fraud, and all of which are 
claimed to be the constituents of the fraud in the particular 
case, must be alleged, and their absence may destroy the 
intended effect of the pleading, and shut out all evidence in 

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186 Phipps v. Hully. [Sup. Ct. 

Opinion of the Court — Hawley, C. J. 



its support at the trial. (Pomeroy on Rem. sec. 687 and 
cases cited ; Kent v. Snyder^ 30 Cal. 673 ; Gapuro v. Build- 
ers' Ins. Co. 39 Cal., 124 ; Chamberlain v. Stem, 11 Nev. 
271 ; Butler v. Viele, 44 Barb. 166 ; Kerr on Fraud, 365, 
366 ; Swope v. Fair, 18 Ind. 300 ; Horton v. Rukling, 3 
Nev. 504 ; Piercy v. Sabin, 10 Cal. 26 ; Jenkins v. Long, 
19 Ind. 28 ; Ham v. Greve, 34 Ind. 18 ; Hale v. Walker, 
31 Iowa 344 ; Wheeler v. Floral Mill Co., 9 Nev. 258 ; 
Smith V. Owens, 21 Cal. 11 ; McComb v. Reed, 28 Cal. 284.) 
III. Respondent cannot rely upon the defense of mistake 
in taking the battery assays introduced in evidence* in the 
cause. {Grimes v. Saunders, 3 Otto (U. S.) 56 ; Kinney v. 
Con. F. O)., 4 Sawyer 444 ; Kerr on Fr. and Mis. 432, 436 ; 
People V. Supervisors, 45 N. Y. 200 ; S. ^ S. E. R. Co. v. 
Row, 24 Wend. 74. 

W. K F. Deal and B. C Whitman for Respondent : 

I. There is no pretense that the ore was not carefully and 
faithfully worked ; no suggestion that there was any extra- 
ordinary loss in the milling. The question then is : shall 
the appellants hold respondent to the incorrect test of bat- 
tery assay, and recover from him something which was 
never theirs? Unless the rules of law governing this case 
be Procrustean, no such result can follow. 

II. Contract is to be interpreted according to the ordinary 
use of language, and *' the object of interpretation is simply 
to ascertain what the parties meant.'* (Bish. on Cont. sec. 
609.) 

By the Court, Hawley, C. J. : 

This action was brought by plaintifts to recover two thou- 
sand and ninety-five dollars and sixty cents alleged 
to be due from the defendant on a contract for reduc- 
ing certiiin ores at defendant's mill. The contract, as 
averred in the complaint, required defendant to pay plaint- 
ifts — after deducting six dollars and fifty cents per ton 
for expenses of reduction — *' sixty -five per cent, of the 
assay value of said ores, such assay to be made from said 



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Oct. 1883.] Phipps v. Hully. 137 

Opinion of the Court— Hawley, C. J. 

ores taken from the battery samples at said mill.'* It is 
alleged that the ascertained value of said ores, by the assays 
taken from the battery samples, was the sum of one hun- 
dred and thirty-four dollars per ton. 

The defendant, in his answer, alleges that '*he was to 
pay sixty-five per cent, of the battery sample assay, less 
six dollars and fifty cents for working, and less discount on 
the bullion produced. " He avers that he reduced twenty 
tons of ore and "admits that battery samples of such work- 
ings were made," but denies that they were duly or prop- 
erly made, and says "that either by fraud of plaintift Cizo- 
vich, or mistake by defendant's employes, they failed to show 
the assay value of such ores.* ' He " admits that such assays 
apparently showed the value of such ores or matter to be 
one hundred and thirty-four dollars per ton, but avers 
that the real value was not more than fourteen dollars and 
sixty cents per ton." He also avers "that the entire 
product of such ore, * * ♦ by him carefully and 
properly worked at his mill, was no more than one hun- 
dred and eighty dollars." 

The cause was tried before the court without a jury and 
judgment was rendered in favor of plaintifts for two hundred 
and sixtj'-five dollars, or its equivalent in gold and silver 
bullion. 

1. We are of opinion that the averments in the answer 
raised an issue as to the terms of the contract and also as to 
the correctness of the assays which were taken from the 
battery samples. 

2. It was argued by plaintifts that the assays taken from 
the battery samples were the only testa provided in the con- 
tract for determining the value of the ore, and hence that 
the court erred in admitting any other testimony for the 
purpose of establishing its value. By the terms of the 
contract the assays from the battery samples were to be 
taken as a means of ascertaining the value of the ore ; but 
this was, of course, upon the understanding of the parties 
that the assays would be correct. It never was the inten- 
tion of the parties that they should be bound by the assays 

Vol. XVIII— 18 

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138 Phipps v. Hully. [Stip. Ct. 

Opinion of the Court— Hawley, C. J. 



if they did not fairly represent the value of the ore. The 
language of the averments in the pleadings, when inter- 
preted with reference to the intention of the parties, is not 
susceptible of such a construction. It was the true value 
of the pulp from the battery that was to be taken as a guide 
for the settlement. Contracts of this character are pre- 
sumed to be made with a view of protecting both parties. 
The owner of the ore is guaranteed a certain per cent, of 
its true value, which secures to him a fair return. If the 
mill-owner is careful, and works the ore closely,, he may be 
able to save more than the per cent, agreed upon, and thus 
secure to himself an additional profit for the working 
of the ore. He also avoids the necessity of a clean-up 
for every small quantity of custom ore that he may work, 
and is thereby enabled to crush and reduce the ore at less 
expense than if the contract called for the bullion produced 
by the ore. If the assays taken from the battery samples 
are correct, the parties are protected and bound by them 
whether the clean-up, if made, amounts to the percentage 
agreed upon or not. But if the assays are not correct the 
parties are not bound by them, and may introduce any com- 
petent testimony tending to establish the true value of the 
ore. 

8. Upon the trial plaintifis introduced two assays taken 
from the battery samples — one taken under the direction of 
the defendant of one hundred and thirty-four dollars and 
eighty-two cents per ton, the other taken under the direc- 
tion of the plaintifi* Cizovich, of one hundred and twenty- 
eight dollars per ton. About half the ore had passed 
through the battery when the assay of one hundred and 
thirty-four dollai*s and eighty-two cents was obtained. It 
is argued in behalf of plaintiffs that defendant was negligent 
in not then taking the necessary steps to secure himself by 
having other samples taken from the battery, and seeing 
that proper and correct assays were made therefrom, or in 
not refusing to reduce the balance of the ore unless the mis- 
take in the assays taken was corrected in some manner that 
might be agreed upon between the parties. It is also 



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Oct. 1883.] Phipps v. Hully. 139 

Opinion of the Court— Hawley, C. J. 

claimed that the testimony introduced on the part of the 
defendant was incompetent to prove the real value of the 
ore, or to show that the assay value of the ore was less than 
shown by the assays taken from the battery samples. It 
would have been proper for the defendant to have pursued 
the course suggested, but it was not necessarily the only 
course to be pureued in order to ascertain the facte. The 
defendant seems to have used due diligence in notifying 
plaiutifis that something was wrong about the assays, and 
in endeavoring to find out what the true value of the ore 
was. He testified that after he ascertained from the 
aeaayer what the battery samples assayed he asked plaintifi:' 
Phipps for time to settle, '' because the amalgam produced 
by the ore showed that the ore was not of the value that 
the assay of the battery samples showed." When he 
showed plaintifi:' Cizovich the assay, he told him ''it was 
too high.'* Phipps said, "Hully informed me that the 
assays went one hundred and thirty-four dollars per ton, 
and he then expressed some surprise that it went so high, 
and asked whether I was not surprised ; he also said that, 
if we were not in a hurry, he would like to have us wait 
until he could make a clean-up before making a settlement 
with us." It does not appear that either of the plaintiftia 
objected to waiting for the "clean-up." Neither of them 
requested that any other assays from the battery samples 
should be made. Both parties had an equal opportunity to 
correct the mistake in the battery sample assays, and to pur- 
sue any course necessary to preserve their respective rights. 
After the assay of one hundred and thirty-four dollars and 
eighty- two cents was made defendant took a pulp assay 
from the tank " because evidences were cropping out that 
the battery assays were too high. ' ' He testified that he told 
CSzovich after he received the battery sample assays that 
he "did not believe that the ore was of any such value, 
because the gold in the ore, as shown in the battery sample 
assays, predominated in so much greater proportion than 
the gold in the bullion which the ore produced, as shown 
by the assays taken from the tank. ' ' The pulp from the 



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140 Phipps V, HuLLY. [Sup. Ct. 

Opinion of the Court — Hawley, C. J. 

tank assayed sixteen dollars and eighty-nine cents per ton. 

The defendant worked two thousand seven hundred 
pounds of ore belonging to himself with plaintiffs' ore, and 
the entire clean-up at the mill, of all the ore, only produced 
a bar of bullion of the value of two hundred and sixty-five 
dollars. Bossell testified on behalf of defendant that he 
was an amalgamator by occupation, of fourteen years ex- 
perience ; that he had charge of the working and reduction 
of the ore ; that it was properly worked ; that he took as 
fair a sample as he could from the tanks ; that the amalgam 
out of the pans "represented the entire product of the ore 
which plaintiffs sent to the mill;'* that he ''did not intend 
to clean up, but the difference between the assays from the 
battery and the assay from the tank was so peculiar that Mr. 
Hully told me to clean up ;'* that the sample taken "from 
the tank had the results of no other ore except plaintiffs* ;" 
and that he did not think it possible that they "could have 
made a loss in milling this ore of the difference between 
two hundred and sixty-five dollars and two thousand dol- 
lars." This testimony was competent, as it tended to show 
that the assays from the battery samples were not correct ; 
and also tended to show what the true value of the ore was. 

It is claimed that the court erred in allowing testimony 
as to the value of ore at other places in the St. John mine 
than that from which plaintiffs' ore was taken. We deem 
it unncessary to decide whether this testimony was compe- 
tent or not. It certainly was of but little, if any, value in 
•determining the fact at issue, and it is apparent to us from 
the record that plaintiffs were not prejudiced by it, and that 
the judgment would have been the same if it had been 
excluded. The error, if any, is not of sufficient importance 
to iustify a reversal of the judgment. {Merle v. Mathews, 
26 Cal. 467 ; Persons v. McKibben, 5 Ind. 261 ; Williams^ 
burg City Ins. Co. v. Cary, 83 111. 454 ; Albin v. Kinney, 
96 111. 216.) 

The judgment of the district court is affirmed. 



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Oct. 1883.] ^Brown v. Evans. 141 



Argument for Appellant. 



[No. 1165.] 

SAMUEL BROWN, Respondent, v. ALVARO fiVANS, 

Appellant. 

CoRTBAcr — Covenants in Deed — Use op Water. — In construing the condi- 
tions of a deed which gives the grantee the right to take sufficient water 
from certain ditches " to irrigate the land conveyed, and for domestic pur- 
poses, to an amount not exceeding two hundred inches," upon condition 
that he should pay pro rata as the amount of water he uses on the land 
conveyed shall bear to the whole amount of water that is conveyed in said 
ditches, for any needed repairs of said ditches : Held, that tlie grantee has 
the option of using whatever amount of water he deems sufficient for these 
purposes, and is not liable for the expenses incurred in repairing the 
ditches beyond a pro rata proportion, based upon the quantity of water 
actually used or demanded by him. 

Idem — Notice of Amount op Water Needed— Estoppei/— Evidence.— If the 
grantee gives notice to the grantor that he requires a specific quantity of 
water, for the purposes mentioned in the deed, and the same is furnished 
to him, he is estopped from denying that he did not need the amount 
specified in his notice and did not use it. And, in an action against him 
to recover his proportionate share of the expenses of repairing the ditches, 
such notices, as long as they remain unchanged, are admissible in evi- 
dence to show the quantity of water required and used by him. 

Appeal from the District Court of the Seventh Judicial 
District, Washoe County. 

The facts are stated in the opinion. ^ 

C S. Varian and P. Evans^ for Appellant : 

I. The deed of respondent's grantor to appellant fixes the 
rights of the parties. Plaintiff's instruction No. 1 cannot be 
reconciled with the other instructions. The deed required 
plaintiff to keep two hundred inches in the ditches at de- 
fendant's disposal. It permitted, but did not require de- 
fendant to take two hundred inches or less. It only obliged 
him to pay a jpro rata based upon the quantity actually used 
by him. The complaint alleges an actual use of two hun- 
dred inches, and founds the cause of action thereon. The 
court elsewhere construes the deed and instructs the jury 
that it was plaiiitift*'s duty to keep sufiicient water in one or 
other of his ditches to enable defendant to take his two hun- 
dred inches ; that defendant was not obliged to take any 

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142 Brown v. Evans. [Sup. Ct. 



Argument for Respondent. 



water unless he chose to do so, and that he was not lia- 
ble except for a pro rata based upon the quantity of water 
actually used. The four letters or notices were admitted 
for a single purpose and were restricted to such purpose. 
What sort of a practice is it that authorizes a court to admit 
evidence against objection for a single purpose — in this case 
to show the quantity of water used — and then in its charge 
to the jury to treat it as being in for other purposes ? The 
instruction proceeds upon some unknown and undeveloped 
rule of estoppel. Just as if any act of appellant in aid of a 
right given him by his deed could estop him. It is im- 
possible to say that the instructions were not conflicting. K 
these instructions had not been given, it well may be, the 
jury would have given credit to the evidence of appellant 
and his witnesses, and found accordingly. However that 
may be, he is certainly entitled to a trial in which the triers 
of fact may be permitted to consider his side of the case. 
II. Upon question of estoppel see 33 Cal. 84 ; Wilder v. 
Coivles, 100 Mass. 47 ; Vanslyck v. Mills^ 34 Iowa 375 ; 
Chicago B. B. Co. v. Payne, 49 111. 499 ; Clem v. State, 31 
Ind. 480 ; B. B. Co. v. Stallman, 22 Ohio St. 1. 

Bobert H. Lindsay, for Respondent : 

I. All we ask for the deed is a reasonable construction, 
one warranted by its language, the situation of the parties 
and the subject matter of the grant (3 Wash. Real Pr. 
333). It is simply a grant of sufficient water to irrigate, 
etc., not to exceed two hundred inches. If less than two 
hundred inches of water will meet defendant's requirements 
for irrigating and domestic purposes, then the surplus. is not 
granted. Now, taking the language used in the grant, the 
situation of the parties and the subject matter of the gi^nt, 
who is to be the judge of how much water defendant will 
require ^' under the deed?*' Plainly the defendant him- 
self. He, judging for himself, notifies the plaintiff' that he 
shall ^^ require'' the full two hundred inches. Plaintiff", at 
trouble and expense, furnishes it to him, and on several 
occasions sees him in the actual use of it. Under these cir- 



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Oct 1888.] Brown v. Evans. 143 

Opinion of the Court— Hawley, C. J. 

cnmstances does it lie in the mouth of defendant to say that 
he nsed only fifty inches? 

n. Defendant is estopped from denying that he used 
less water out of plaintiff's ditches than two hundred inches. 
(Davis V. Davis, 26 Cal. 23 ; Bowman v. Gadioorih, 31 lb. 
148 ; Welland Canal Go. v. Hathaioay, 24 Am. Dec. 61.) 
Such an estoppel need not be pleaded, especially in a case 
such as the one at bar, where we have no opportunity to 
plead it. We could not anticipate defendant's defense. 
{Flandreau ei al. v. Donmey, 23 Cal. 354 ; WelUmd Canal 
Co. V. Hathaway, supra.) 

By the Court, Hawley, C. J.: 

Respondent recovered judgment against appellant for 
four hundred and seventy-four dollars and four cents for his 
proportionate part of the expenses of keeping certain water 
ditches in repair, under and by virtue of a clause in a deed 
executed by respondent's grantor to appellant, as follows : 
**Said first party also hereby conveys to the second party, 
his heirs and assigns, the right to take sufficient water from 
either of said ditches above named to irrigate the land 
above conveyed, and for domestic purposes, to an amount 
not exceeding two hundred inches, under a six-inch pres- 
sure, upon condition that the second party, his heirs or 
assigns, shall pay 'pro rata as the amount of water he or 
they use on the land herein conveyed shall bear to the whole 
amount of water that is conveyed in both of said ditches 
for any needed repairs or enlargement of said water ditches, 
or either of them." 

In respondent's complaint it is alleged '* that between the 
* * * first day of August, A. D. 1879, and the thirtieth 
day of June, A. D. 1882, the needed repairs of both of 
said ditches amounted to the sum of two thousand four hun- 
dred and eighty-eight dollars and seventy-five cents, which 
amount said plaintift" has paid, laid out, and expended for 
said needed repairs on both of said ditches during said 
period ; that the quantity of water run in both of said 
ditches continuously during the time last aforesaid has been 



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144 Bkown v. Evans. [Sup. Ct. 

Opinion of the Court— Hawley, C. J. 



one thousand and jfifty inches, under a six-inch pressure, 
and no more ; that during the time last aforesaid defendant 
has used continuously from said ditches the full amount of 
two hundred inches of water, under a six-inch pressure, for 
irrigating and domestic purposes.'* 

Appellant, in his answer, denies that the needed repairs 
exceeded the sum of one thousand seven hundred dollars, 
and denies that he used more than fifty inches of water, 
under a six-inch pressure. He did not deny the averment 
in the complaint as to the quantity of water running in the 
ditches. 

Upon the trial respondent testified that the expenses of 
repairing the ditches amounted to two thousand four 
hundred and eighty-eight dollars and seventy-five cents, as 
alleged in hts complaint, and there was no testimony to the 
contrary. Upon the issue of fact, as to the amount of water 
actually used by appellant, there was a conflict of evidence. 
Respondent testified that at several times during the period 
mentioned in the complaint he had seen two hundred inches 
of water flowing into appellant's boxes and ditches. Ap- 
pellant testified that during the period mentioned '' he never 
used for irrigating or domestic purposes more than fifty 
inches from plaintifl[''s ditches," and that that quantity was 
suflScient to irrigate his land. 

During the trial respondent offered in evidence several 
notices and letters written by appellant to respondent, rel- 
ative to the use of the water, the amount required by him, 
etc. Appellant objected to their admission in evidence 
upon the ground that they were ^incompetent, irrelevant, * 
and immaterial ;" that they were written prior to a settle- 
ment between the parties in 1879, and prior to the alleged 
causes of action ; that they were too remote, and did not 
reflect upon the present issues; ''that the deed mentioned 
in the complaint fixed the rights and duties of the parties, 
and under it the plaintift' was required to keep said quantity 
of two hundred inches flowing in the ditches, ready for de- 
fendant's use ; and that no act or declaration of the defend- 
ant could add to or restrict that duty." The court allowed 



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Oct. 1883.] Brown v. Evans. 145 



Opinion of the Court — Hawley, C. J. 

the notices and letters to be read in evidence '^for the pur- 
pose only, as limited by the court, of reflecting upon the 
quantity of land irrigated by defendant and the quantity of 
water used by him.'* 

At the close of the testimony the court gave to the jury 
the following instruction: "If you believe, from the evi- 
dence, that the defendant, prior to August, 1879, demanded 
of plaintiif, and notified plaintiff that he would require, two 
hundred inches of water (and that said demand had not 
been altered or rescinded) out of the ditches referred to, 
and that plaintiff, weather and unavoidable accidents per- 
mitting, kept the said water at the disposal of defendant 
during the time mentioned in the complaint as the time for 
which- repairs are charged, then you will find for the plain- 
tiff" for such sum as you may find, reckoning as one 
thousand and fifty is to two hundred so is two thousand four 
hundred and eighty- eight and seventy-five one huudreths to 
the amount to be found, provided that you further find 
from the evidence that the plaintiff* made the repairs 
charged for, and that such repairs were necessary on said 
ditches, and that the charges therefor are correct.'' 

The questions whether the court erred in admitting the 
notices and letters, or in giving this instruction, will be 
considered together. Appellant contends that, under the 
language in the deed, it is the duty of respondent to keep 
two hundred inches of water running in the ditches, and 
that appellant may use as much or as little of that amount 
as he pleases, and that he is only bound to pay a pro rata 
proportion for the amount of water which he actually uses. 
Is this interpretation correct? The grantor conveyed as 
much water as is suflicient to irrigate certain land and for 
domestic purposes, to '*an amount not exceeding two 
hundred inches, under a six-inch pressure." Under this 
provision appellant did not acquire any title to any greater 
quantity of water than is sufficient ''to irrigate the land" 
mentioned in the deed ''and for domestic purposes." 
If ten inches is suflicient, that is all he is entitled to. If it 
takes two hundred inches, he is entitled to that amount, 

Vol. XVm— 19 ^ y 

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146 Brown r. Evans. [Sup. Ct. 

Opinion of the Court — Hawley, C. J. 



subject, of course, to the other conditions in the deed, 
which are not in issue in this case. Whatever amount is 
required, it is the duty of the respondent to keep running 
in the ditches, ready for appellant's use. But respondent 
is only required to furnish the quantity of water sufficient 
to irrigate the land and for domestic purposes. Appellant 
has the option of using whatever amount is deemed sufficient 
for these purposes, and is not liable for the expenses incurred 
in repairing the ditches beyond a pro rata proportion, based 
upon the quantity of water actually used or demanded by 
him. The question as to the amount of water required by 
appellant would be, primarily, at least, determined by him- 
self. If he notifies respondent that he needs and requires 
the full amount of two hundred inches, respondent would 
have the right to turn on that amount of water in the 
ditches, and to charge him for that proportion of the ex- 
penses incurred in the repaid of the ditches, whether the 
water was actually used by appellant or not. After giving 
respondent notice that he requires a specific quantity of 
water, appellant could not, in good conscience and fair 
dealing, be permitted to say that he did not need the 
amount demanded, and did not use the same. In this view 
of the case, the notices and letters were admissible for the 
purpose of determining the quantity of water required and 
used by appellant. 

A brief statement of the contents of the notices and let- 
ters will show that the court did not err in giving the 
instruction cofnplained of. In the letter dated March 5, 
1878, appellant called respondent's attention to the fact that 
he had a few days previously notified him that the water 
would be wanted for irrigation, and closes by demanding 
that the water be turned on ''at least one hundred inches in 
each ditch." In the notice of March It, 1878, after recit- 
ing the clause in the deed with reference to his rights, he 
says : "You will please take further and particular notice 
that on or about the first day of April, A. D. 1878, (if you 
do not on or before that time repair said ditches yourself 
and assess jp^o ra to,) it is the intention of the undersigned, 



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Oct. 1883.J Browtt v. Evans. I4T 

Opinion of the Court — Hawley, C. J. 



as the grantee aforesaid, by virtue of ownership of said two 
hundred inches of water, and the direct and implied au- 
thority to the undersigned in said indenture, to repair said 
ditches as aforesaid, sufficient to obtain said two hundred 
inches of water for irrigation and domestic purposes, and 
any interference upon your part with the full and direct flow 
of said two hundred inches of water in either of said ditches, 
as the undersigned may elect, either by selling the same or 
shutting the water ofl: at the head, or any intermediate point 
upon said ditches, or using any other means whereby the 
undersigned will be prevented from a full and uninterrupted 
use of all rights granted him by said indenture, * * * 
will be fully resisted according to law in such cases made 
and provided.'' On the twenty-fourth of January, 1879, a 
similar notice was given, in which the following language 
is used : "You are hereby notified that I am ready and 
willing at all times, and under all circumstances and con- 
ditions, to perform the conditions devolved upon me by 
virtue of said deed of conveyance, and even more when an 
equitable necessity shall arise ; that by virtue of my rights 
aforesaid, and the willingness specified to fulfill any con- 
dition devolved upon me thereby, I hereby demand for irri- 
gation and domestic purposes, under the claim in my deed 
of conveyance, * * ♦ an undivided two hundred inches 
of water for irrigating purposes during the irrigating season, 
and twenty-five inches during the fall, winter and spring 
seasons for domestic purposes. You are further notified 
that if said twenty-five inches of water are not furnished 
forthwith for domestic purposes, as aforesaid, and two 
hundred inches for irrigation purposes, as aforesaid, in due 
and proper time, without nrotice, suit will be commenced 
against you to compel specific performance of all conditions 
and rights accruing to me as grantee of Nevada Land and 
Mining Company (Limited)." 

These notices are clear, positive and explicit, to the 
'eftect that appellant requires two hundred inches of water 
for the irrigation of his land. He demands that that 
amount be furnished him for that purpose, and threatens to 



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148 Brown v. Evans. [Sup. Ot. 

opinion of the Court— Hawley, C. J. 

bring suit if any portion of it is withheld. By the giving 
of these notices he is estopped from denying that he " con- 
tinuously used'* the full amount required and demanded by 
him. The other objections are without merit. The settle- 
ment referred to was a compromise made by the parties (in 
a similar action) for a prior period of time. Respondent 
accepted a less amount than he sued for, and gave a receipt 
for the amount paid, it being "stipulated, understood, and 
fully agreed that the money paid aforesaid, and the condi- 
tions under which it was paid, there having been a dispute 
as to the exact amount due, and the above amount having 
been paid as a compromise, shall in no manner or way 
affect any subsequent settlement that may be made between 
the said Evans and myself ; but that all settlements here- 
after entered into shall be made by virtue of, and under a 
construction ' * of, the deed. 

The fact that the notices were given prior to the com- 
mencement of this action is immaterial. The demands for 
two hundred inches of water have never been withdrawn. 
The requests, demands and threats of litigation were con- 
tinuous in their nature. Respondent had the right to act 
under these notices; to furnish the water to the extent 
required, and collect that proportion of the expenses for the 
repairs of the ditches as long as these requests and demands 
remain unchanged. He might have submitted his case 
upon the notices and letters written by appellant, without 
introducing any testimony as to the amount of water 
actually used, and the court did not err in withdrawing 
from the consideration of the jury (as it did in the instruc- 
tion) the testimony of appellant to the effect that he 
only used fifty inches of water, and that that amount was 
sufficient "to irrigate the land." The purposes for which 
the notices were admitted in evidence were broad enough 
to have the effect of an estoppel as to the quantity of water 
needed to irrigate the laud, and appellant could not have 
been misled or deceived by the giving of an instruction to 
that effect. If he had ever withdrawn his demands or 
changed his requests it was his duty, and he had the oppor- 



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I 



Oct. 1883.] Smith r. Logan. 149 



Points decided. 



tunity, to testify to that effect. There is no error in the 
record prejudicial to appellant. 
The judgment of the district court is affirmed. 



[No. 1150.] 

GEORGE SMITH, Respondent, v. MICHAEL LOGAN 

ET AL., Appellants. 

Water Rights — Necessary Parties to Action.— A flume company diverted 
the waters of the stream above the lands of the parties to this action, but 
the waters thus diverted were returned to the stream for plaintiff's use, 
undiminished in quantity : Held, that the flume company was not, there- 
fore, a necessary party to the suit. 

Idem — Who May Maintain Action. — A party to whom certain lands are 
granted for the purpose of bringing an action for water rights connected 
therewith, there being an oral agreement between the parties that upon the 
termination of the litigation the lands should be reconveyed, may prose- 
cute and maintain the action in his own name. Such suit is founded on 
the legal title. 

FiNDiNQS—ExcEPTiONs TO TiME OF FiLiNG. — In coustruing the statutc relative 
to defective findings : Held^ that the exceptions required to be filed in 
court within five days are the exceptions of the party dissatisfied with the 
findings. 

Idem — Error Without Prejudice : — Held, that if any error occurred in the 
time of filing the exceptions, appellant could not have been prejudiced 
thereby, as all the additional findings were favorable to him. 

Appropriation of Water by Trespasser.— Respondent appropriated suffi- 
cient water to irrigate certain lands to which he had no title. Appellant 
subsequently obtained a contract for the purchase of these lands from the 
true owmer : Held, that the w^ater so used and appropriated by respondent 
while he was a trespasser did not become appurtenant to the land, and, 
hence, did not pass to ax)i)ellttnt under his contract of purchase. 

Idem — Adverse Use — Prescriptive Rights.— In reviewing the findings : Held, 
that respondent acquired a prescriptive right to a certain quantity of 
water, previously appropriated by appellant, by reason of an adverse use ; 
that appellant lost his right of appropriation, as previously acquired by 
him, to the extent of his non-user for the period prescribed by the statute 
of limitations ; but as he resumed possession of sufficient water to irrigate 
five acres of land before the expiration of the statute of limitations, his 
appropriation to that extent should be maintained. 

Appeal from the District Court of the Second Judicial 
District, Washoe County. 

Upon a rehearing, the court ordered that its previous 

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150 Smith v. Logan. [Sup. Ot. 



Argument for Appellant. 



decision should be modified. The opinion, as here pub- 
lished, contains the modification and change directed by 
the court. 

The facts are sufloiciently stated in the opinion. 

A, C. Ellis, for Appellant : 

I. The court erred in dismissing the corporation as a party 
defendant after it had answered. It was an indispensable 
party to the proper determination of the rights of the 
parties to the use of the waters of said stream. (Dicey on 
Parties, 322-4; 2 Sawyer 466.) If plaintifl:' gave consent 
to the corporation to divert this water after defendant built 
its flume upon the faith of this consent, this easement would 
ripen into an absolute property right upon the conditions 
reserved and would be adverse to plaiutitt' and defendant. 
(Laws of 1869, Civ. Prac. Act, sec. 13 ; Lee v. McLeod, 12 
Nev. 280 ; Woodbury v. Parshly, 7 N. H. 237 ; Snowden v. 
Wilas, 19 Ind. 14 ; Stevens v. Benson^ Id. 369 ; Lane v. 
Miller, 27 Ind. 637 ; Ehodes v. Otis, 33 Ala. 578 ; 
Campbell v. McCoy, 31 Penn. 264; Prince v. Case, 2 Am. 
Lead. Cases 760-1.) Logan could not lose his right of 
appropriation by non-user simply, he must have abandoned 
his right or must have lost it by permitting plaintifl:' to 
acquire it by prescription. {JSimson v. Eckstein, 22 Cal. 
680; Union Water Co. v. Crary, 26 Cal. 604.) He might 
resume and utilize his right at any time, unless intentioual 
abandonment was shown, or unless the water had been 
adversely used for five years. (Partidge v. Mc Kinney, 10 
Cal. 181; Moonv. Rollins, 36 Cal. 333.) 

M, M. Clarke and !S. D. King, for Respondent : 

I. The court did not err in dismissing the El Dorado 
Wood and Flume Company as a party defendant. (1 Pet. 
299 ; 6 Wheat. 6f ; 3 Gray 308 ; 1 Waits' Pr. 161 ; 
Sawyer X. Chambers, 11 Abb. Pr. 110; Adams' Eq. 314; 
Barb, on Part. 460, 462 ; Moak's Van Sant. Pi. 78 and 79, 



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Oct. 1888.] Smith v. Logan. 151 

Opinion of the Conrt^Belknap, J. 



etc., and cases cited; Story Eq. PI. 672; Civil Pr. sec. 
599 ; Harlan v. Eureka M. Co., 10 Nev. 92.) 

II. Findings reviewed and claimed to be correct in every 
particular and sufficient to support the judgment. 

Ry the Court, Bblknap, J. : 

This suit is brought for the purpose of determining the 
relative rights of the parties hereto to the waters of Steam- 
boat creek. Their rights, whatever they may be, are based 
upon appropriations made by themselves and their pred- 
ecessors in interest. 

•The joint answer of the defendants sets forth that a cor- 
poration known as the Eldorado Wood & Flume Company, 
is a necessary party defendant to the action, by reason of 
the fact that it was and theretofore had been, under claim 
of right, diverting permanently away from the natural 
channel all of the waters of the creek. The corporation 
was made a party defendant, and answered the joint answer. 
At the trial of the cause, and after the introduction of testi- 
mony touching the issues raised by the pleadings of the 
defendants and the corporation, the court dismissed it as a 
party defendant. 

It was shown that the flume company diverted a portion 
of the waters of the stream at a point several miles above 
the lands owned by plaintift or defendants. The lands of 
defendants are situated below the point of diversion and 
above the lands of the plaintiff. The waters diverted by 
the flume company were returned to the channel of the 
creek at a point below the lands of the defendants andabove 
those of the plaintift'. Testimony was introduced in behalf 
of the plaintift* and the flume company tending to show that 
"the water was not diminished by the flume company's 
diversion and use, and that as much water was returned to 
the plaintift"s land by the flume company as would have 
reached said land if none were diverted by the flume com-, 
pany.*' Defendants introduced testimony in contradiction 
of this. There is no express finding upon this issue, but as 
the judgment was for the plaintift*, it is our duty to adopt 

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152 Smith ??. Logan. [Sup. Ct. 

Opinion of the Court— Belknap, J. 



the theory of facts which will support the ruling of the dis- 
trict court, and we must, therefore, assume that no water 
was lost to the plaintitt' by the flume company's diversion. 
If this be so, why should the flume company have been a 
party to the litigation? The suit was brought upon the 
hypothesis that defendants had interrupted plaintiff:'*s enjoy- 
ment of the waters of the creek. The object in making the 
flume company a party to the suit was to show that the 
grievances complained of were produced by its, instead of 
defendant's, diversion of the waters. But, as the diversion 
by the flume company did not diminish the volume of water 
at plaintift"s land, his failure to receive water could .not 
have been attinbutable to its acts. It was not, therefore, a 
necessary party to the suit. 

Defendants conceded upon the trial that plaintifl' was the 
owner, in his own right, of a portion of the land described 
in the complaint. Other tracts of land were conveyed to 
him immediately prior to the commencement of this suit 
by grantors claiming to have acquired rights, by appropria- 
tion, to the waters of the creek, in connection with their 
ownership of the land. There was an oral agreement be- 
tween grantors and grantee that upon the termination of 
the litigation the lands should be reconveyed to the grantors, 
respectively. Upon these facts appellant contends that 
plaintifl:', as to the lands so conveyed, and the water rights 
appurtenant thereto, is not the real party in interest. The 
objection is founded upon the provision of the civil practice 
act (sec. 1067, Comp. Laws), which requires that "every 
action shall be prosecuted in the name of the real party in 
interest. * * ♦ " if the transactions between the plaint- 
iff' and his grantors created any trust, it was an express 
trust, and the trustee of an express trust may sue without 
joining with him the person or persons for whose benefit 
the action is prosecuted. But the evidence introduced at 
the trial was incompetent to establish an express trust. 
Section 55 of the act concerning conveyances, requires such 
a trust to be established by deed or conveyance in writing. 
The statute is as follows : "No estate or interest in lands, 



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Oct 1883.] Smith r. Logan. 153 

Opinion of the Court— Belknap, J. 

other than for leases for a term not exceeding one year, nor 
any trust or power over or concerning lands, or in any man- 
ner relating thereto, shall hereafter be created, granted, 
assigned, surrendered, or declared, unless by act or opera- 
tion of law, or by deed or conveyance in writing, subscribed 
by the party creating, granting, assigning, surrendering, or 
declaring the same, or by his lawful agent thereunto au- 
thorized in writing/' (Sec. 283, Comp. Laws.) Again, 
the objection may be satisfactorily decided upon the ground 
that the pleadings do not tender the issue whether the plaint- 
iff holds the property in his own right or that of another. 
True, the answer denies the plaintiff's ownership, but it 
does not set forth a state of facts requiring the district 
court to exercise its equitable jurisdiction, and examine into 
the relations of trust existing between the plaintiff and his 
grantors. This suit is founded upon the legal title, and 
when plaintiff showed that title to be in himself, he fully 
answered the issue of ownership presented, and there was 
no necessity for further evidence upon that point. 

The next point made is based upon the delay of the dis- 
trict court in naaking additional findings of facts. The find- 
ings and decree were entered upon the thirty-first day of 
July. Upon the fifth day of August following, appellant 
requested the court to make certain additional findings. 
The record recites the fact that upon the said fifth day of 
August the court failed and refused to make any additional 
findings, and thereupon appellants filed their exceptions to 
the action of the court. Afterwards and upon the fifteenth 
day of August the court made its findings upon the issues 
covered by the exceptions. It is claimed that the court 
erred in failing to make the additional findings within the 
time required by law. The statute relating to defective 
and insufficient findings provides: 

"Sec. 1669. In cases tried by the court without a jury, 
no judgment shall be reversed for want of a finding, or for 
a defective finding, of the facts, unless exceptions be made 
in the court below to the findings, or to the want of a find- 
ing; and in case of a defective finding, the particular de- 

VoL. XVIII— 20 

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154 Smith v. Logan. [Sap. Ct. 

Opinion of the Court — Belknap, J. 

fects shall be specifically and particalarly designated ; and 
upon failure of the court to remedy the alleged error, the 
party moving shall be entitled to his exceptions, and the 
same shall be settled by the judge as in other cases; 
provided, that such exceptions to the finding, or want of a 
finding, shall be filed in the court within five days after the 
making of the finding or decision to which exception is 
made." 

The exceptions required to be filed in the court within 
five days are the exceptions of the party dissatisfied with 
the findings. Thereafter the court may '* remedy the 
alleged error, ' ' but it will be observed that the statute does 
not prescribe the time within which the court must act. If 
any error could have occurred in this regard, the defendants 
could not have been prejudiced thereby, as all of. the addi- 
tional findings were favorable to them. 

Appellant assigns as error the failure of the district court 
to award defendant Logan the right to use suflBicient water 
to irrigate the twenty-acre tract of land heretofore referred 
to. Plaintiff' Smith and defendant Logan each endeavored 
to purchase this tract from the railroad company. In the 
year 1880 the company entered into a contract of sale with 
Logan. Prior thereto Smith had occupied and irrigated 
the land, and appellant now claims that the waters of the 
stream had become appurtenant to the land, and went with 
it when Smith lost and Logan acquired it. We cannot 
admit this claim. Smith,' as to the true owner of the land, 
was a trespasser. Logan has not connected himself with 
Smith's right to the use of the water, and he could have 
changed its use to other lands. 

Objection is made to the apportionment of the waters of 
the stream established by the decree. 

The findings show that from the year 1861 until 1867 
inclusive, Logan irrigated from ten to thirty-five acres of 
land. During the years 1868, 1869 and 1870 he made no 
use of the waters, and in 1871 and 1872 he irrigated but 
five acres. During these five years plaintiflF and his pred- 
ecessors in interest used the waters of the creek under 



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Oct. 1883.] Sacalaris v, E. A P. R. Co. 155 

Argument for Appellant. 



their appropriations adversely to Logan. They, therefore, 
acquired the right to so much of the waters appropriated by 
Logan as he failed to use during the period limited by the 
statute of limitations. But Logan did not lose his right to 
all of the waters appropriated by him, because in 1871 he 
resumed possession of sufficient water to irrigate five acres 
of land and thereafter maintained it. The decree fails to 
preserve this right to Logan under his appropriation in 1861 
and it must be modified accordingly. The cause must, 
therefore, be remanded to the district court with in- 
structions to modify its decree in this respect. It is so 
ordered. Appellant to recover his costs upon appeal. 



[No. 1159.] 

CHARLES SACALARIS, Respondent, r. EUREKA AND 
PALISADE RAILROAD COMPANY, Appellant. 

AgEKTB — R.ULWAY COBPOEATIONS — JUDICIAL NOTICE OF AUTHORITY — RECEIPT 

OF CoBDWooD.— Courts will take judicial notice of the authority of the 
managing agents of a railroad corporation, and, in the absence of any evi- 
dence upon the subject, will presume that its superintendent is empowered 
to conduct its ordinary business transactions, such as the reception of 
oordwood. 

iDEM.^An agent having the oversight and charge, with the power to direct, 
has a general and discretionary power within the scope of his agency. 

Idem— Declarations of Agent— When Admissible.— Declarations of an agent 
made in the course of the transaction out of which the action arose are 
admissible in evidence against his principal. 

Conflict of Evidence.— Where the evidence, in regard to a fact in issue, is 
conflicting, it is the duty of the jury to decide such feet, and the court will 
not interfere with their determination of it. 

Appeal from the District Court of the Sixth Judicial Dis- 
trict, Eureka County. 

The facts are sufficiently stated in the opinion. 
Wren Sf Cheney^ for Appellant : 

I. The evidence is sufficient to justify a verdict for plaint- 
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166 Sacalaris v. E. & P. R. Co. [Sup. a. 

Argument for Appellant. 

iff. Paquin was the agent of Sacalaris, with authority to 
sell the wood in controversy. Sacalaris, by permitting 
Paquin to take possession of the wood and haul it to 
Eureka, with power to sell an unmarked, and, to third 
persons, undistinguishable half, and by knowingly per- 
mitting and authorizing him to sell and dispose of a half, 
with knowledge that the whole was being placed upon the 
ground of a party to whom Paquin was delivering and sell- 
ing his portion, and at a place where the whole was being 
sent for the purposes of sale, and at a time and place where 
the defendant was buying and receiving wood from Paquin, 
so clothed Paquin with the indicia of ownership and appar- 
ent authority to sell and dispose of the whole of the wood, 
that defendant had the right to believe that Paquin was the 
owner of the whole of the wood, or had full power as agent 
to sell it. Plaintiff by his conduct clothed Paquin with 
implied authority to sell the wood in controversy to the 
defendant, notwithstanding any secret instructions or under- 
standing that may have been given or had between plaintiff' 
and Paquin, the rule being that where one has clothed 
another with the indicia of ownership and permitted him 
to assume the control of property with the apparent power 
of sale, the apparent authority is the real authority, and 
the person so holding out another as having authority is 
bound by the acts of the agent within the scope of the 
authority which the principal by his acts or silence has 
warranted third persons in believing the agent possesses. 
{Wrujht V. Solomm, 19 Cal. 64; ISalius v. Eocreit, 20 
Wend. 267 ; Thompson v. Blanchard, 4 Comst. N. Y. 803 ; 
Gass V. Hampton^ 16 Nev. 185 ; Rice v. Groffman^ 56 Mo. 
434 ; Stone v. Marye, 14 Nev. 362 ; Lumley v. Corbeti, 18 
Cal. 494 ; Hostler v. Hayes^ 3 Cal. 302 ; Dunning v. HoberiSy 
35 Barb. 467 ; Bridenbecker v. Lowell^ 32 Barb. 9 ; John- 
son V. Jones^ 4 Barb. 369, 373; Calias Steamboat Co. v. Van 
Pelt, 2 Black. U. S. 372 ; Pickering v. Busk,15Ei\8tK 38, 43; 
Gregg v. Wells, 10 Ad. & E. 90 ; Dyer v. Pearson, 3 Barn. 
& Cres. 38, 42; Storey on Agency, 93, 127, 136.) Plaintiff* 
is estopped from denying that Paquin had authority to sell 



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Oct. 1883.] Sacalaris v. E. & P. R. Co. 167 

Argument for Respondent. 



the wood in controversy to defendant. (Whart. on Ev. 
sees. 1142, 1144; Storey Eq. Jur. sec. 885 ; Stone v. Marye^ 
14 Nev. 862; Gass v. Hamptm^ 16 JNev. 185; Nivenv. 
Belknap, 2 John. 589.) 

n. Everts was a special agent of the company, and it is 
not shown that he had authority to act for the company in 
this matter. {Adriance v. JRoome, 52 Barb. 399 ; Walworth 
Q>. Bk. V. Farmer's L. ^ T. Go., 14 Wis. 325 ; Eisley v. 
I. B. ^ W. R. Cb., 1 Hun 202; C. ^ N. W. R. Co. v. 
James, 22 Wis. 194 ; Com Ex. Bk. v. Cumberland Coal Co., 
1 1308W. 436 ; Rankin v. N. E. and N. S. M. Co., i Nev. 
78.) A corporation can only act through its officers and 
agents. The power and authority of the officer is only 
that with which they are invested by virtue of the act of 
incorporation, or given them by the vote of the stock- 
holders, the by-laws of the company or by custom or usage, 
and the extent of that authority is found in the acts of 
incorporation, the records of the company and the extent of 
the custom or usage. But it matters not from which 
source the authority is derived, its existence must be estab- 
lished by proof and not by presumption. To these sources 
third persons must, in doubtful cases, look to determine the 
extent of the powers of the officers, or otherwise submit to 
the consequences resulting from their omission to do so. 
In this respect there is a material difference between the 
case of an individual and his agent and that of a corpora- 
tion and its officers. (Salem Bank v. Gloucester Bank, 17 
Mass. 28 ; Green's Brices Ultra Vires, 395, 396, 470, 472.) 
The alleged admissions and declarations were not part of 
the res gestae. {Meyer v. 7. ^ T. R. R. Co., 16 Nev. 344 ; 
Rollins V. Strout, 6 Nev. 150 ; Whart. on Ev. sec. 1178.) 

G. W. Baker, for Respondent : 

I. In order to constitute an estoppel in pais, there must 
have been a representation or concealment of material facts. 
The representation must have been made with knowledge of 
the facts. The party to whom made must have been igno- 
rant of the truth of the matter. " It must have been made 



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158 Sacalaris v. E. & P. R. Co. [Sup. a. 



Argument for Respondent. 



with the intention that the other party should act upon it." 
'* The other party must have been induced to act upon it." 
(Bigelow on Est. 480.) In the case at bar, there was no 
representation made at all, and no concealment of any fact, 
either material or otherwise. The defendant was not 
induced to buy the wood from Paquin by reason of any act, 
admission or representation of the plaintitt*, and did not 
attempt to establish such a state of facts upon the trial. 
The doctrine of equitable estoppels by conduct does not 
apply to the facts of this case. {Malloney v. Horan, 49 N. 
T. Ill; Bigelow on Est. 561.) The question is: Does 
the mere fact that a party employs another to haul wood for 
him to market, authorize the freighter to sell and dispose of 
the wood and convey a good title to the purchaser, or, in 
other words, will an innocent purchaser of personal property 
such as the property in controversy in this action, be pro- 
tected in his purchase, upon the fact alone of the possession 
of the party selling? This proposition must be answered 
in the negative. {Kinder v. Shaw, 2 Mass. 399 ; Wright v. 
SolomoTiy 19 Cal. 76 ; Pickering v. Buck, 15 East. 38 ; Gass 
V. Hampton, 16 Nev. 190; Covell v. Hill, 4 Den. 323.) 
The authorities cited by appellant upon this proposition 
relate almost exclusively to negotiable instruments, which 
pass from hand to hand by delivery, and purchasers for 
value are protected under the law merchant. 

II. It was a mooted question in this case whether the de- 
fendant had actually purchased and received the wood in 
controversy from Paquin at the time the declarations of 
Everts were made and this question must have been deter- 
mined by the jury advei'se to the defendant. Hence we 
say that at the date of those declarations the sale was not 
made, that they were a part of the res gestce and not open 
to the objection urged by counsel, nor within the restriction 
of their authorities. If the defendant did not buy the wood 
from Paquin, it stiinds in the position of a bare, naked tres- 
passer, indefensible against the rights of plaintiff to recover 
in the action. 

III. It was a fact' material in the case, to show whether 



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Oct. 1888.] Sacalaris v. E. & P. R. Co. 159 



Aigument for Appellant. 



or not there had been an acceptance of the wood. The 
theory of the defendant is that it is an innocent purchaser. 
If it received notice of plaintiff's claim before acceptance 
of the wood, it destroys the bona fides of the transaction, so 
far as the defendant is concerned. Everts testified that he 
had accepted the wood before notice of plaintift^s claim. 
It was competent for the purposes of impeachment to show 
that he had stated that he had not accepted the wood. 
{Benjamin v. Wheeler^ 8 Gray 409 ; 1 Whart. on Ev. sec. 
661 and cases cited.) There is a very clear distinction be- 
tween the expression of an opinion and the statement of a 
fact in issue. 

IV. If there were any particular points upon which the 
defendant desired to have the jury instructed, such as 
agency, estoppel and the like, it should have requested such 
instructions, otherwise the court is not bound to so charge. 
{Rozar v. Burns, 13 Ga. 34 ; Hatch v. Spearin, 11 Me. 364 ; 
Davis V. Mliott, 16 Gray 90 ; Ball v. Weir, 1 Allen 261 ; 
Zabriskie v. SmiiK 13 N. Y. 822 ; Parsons v. Brown, 16 
Barb. 590.) It is no ground of error that the court did not 
discuss every possiJ^le aspect of the cause in the absence of 
any prayer or request for instructions upon questions which 
might properly be the subject of instructions. ( Weriz v. 
May, 21 Penn. St. 274 ; Fisher v. Filbert, 6 Id. 61.) The 
plaintiff's theory of this case was, that he was owner of 
the wood in controversy ; that he had never parted with 
his right of property in it. 

V. The verdict was right under the evidence, there was 
no error of law which could in any way have prejudiced the 
defendant, and error without prejudice will be disregarded. 
(Green V. Ophir 8. M. Co., 46 Cal. 522; Hisler v. Carr, 
34 Cal. 641 ; Mitchell v. Bromberger, 2 Nev. 346 ; Robinson 
V. Imperial M. Co., b Nev. 46 ; Blackie v. Cooney, 8 Nev. 
41.) 

Wren ^ Cheney, for Appellant in reply : 

I. A design to mislead is not essential to an equitable 
estoppel. (2 Pom. Eq. Jur. sees. 806, 811, 818 ; Mitchells. 



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1^0 Sacalaris v. E. A; P. R. Co. [Sup. Ct 

Opinion of the Court — Belknap, J. 

Eeedy 9 Cal. 204; McGee v. Stoney 9 Cal. 606; Bank v. 
Banky 50 N. Y. 575 ; Bank v. Hazard^ 30 N. Y. 226 ; Blair 
V. Wait, 69 N. Y. 113, 116.) 

II. It is not necessary that the action taken by the party 
claiming the estoppel should have been affirmative. A 
failure lo act is sufficient. (2 Pom. Eq. Jur. sec. 812 ; 
Bank v. Bank, 50 N. Y. 575, 584 ; Knight v. Wiffen, 5 L. 
R. Q. B. 660 ; Gasco Bank v. Keene, 5S Me. 103.) 

III. When the evidence of a party, upon whose uncor- 
roborated testimony the verdict of the jury rests, is contrar 
dictory and self-impeaching, the verdict ought to be set 
aside. (1 Phil, on Ev. 597.) 

IV. In considering objections to the introduction of evi- 
dence, the purpose for which it was oftered should be kept 
in view. (Henry v. Everts, 29 Cal. 60; Sickman v. 
Lapsley, 13 S. A; R. 224; Eyrick v. Heirick, 13 Pa. 
St. 491.) 

V. The evidence was inadmissible as impeaching testi- 
mony. At the time it was offered the party who alone 
could be impeached by it had not testified, and no founda- 
tion had been laid for its admission as impeaching testi- 
mony. (2 Phil. Ev. 802, 803.) 

By the Court, Belknap, J.: 

Plaintiff was the owner of a quantity of cordwood in the 
vicinity of the town of Eureka. He contracted with one 
Paquin to haul the wood to the town, and agreed to pay him 
one-half of the wood he should haul for his services. 
Accordingly, Paquin hauled four hundred and sixty-four 
cords of wood. Fifty cords of this wood were deposited in 
the immediate neighborhood of the depot of defendant, 
eighty-five cords at a point in the town called 'Hhe Chinese 
wash-house,** and the remainder (with which we are not 
concerned) at other places. These two lots of wood were 
the property of the plaintiff; but defendant contends that 
it purchased these from Paquin under circumstances creating 
an equitable estoppel against further claim of ownership 
upon the part of plaintiff. This contention is resisted as to 



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Oct. 1883.] Sacalaris r. E. & P. R. Co. 161 

Opinion of the Court — Belknap, J. 



the eighty-five cord8, upon the ground that defendant had 
notice of plaintiff's claim of ownership of this lot before it 
accepted it. 

The only evidence tending to show that defendant had not 
accepted the wood, were the declarations of Everts — its 
superintendent — alleged to have been made after the time 
when this lot of wood had been deposited at ''the Chinese 
wash-house," upon a demand therefor by plaintift', before 
the commencement of this action. There was no evidence 
of authority in the superintendent to make the declaration 
except such as the title to his office implies. Railway cor- 
porations enter so largely into the business transactions of 
the country that couii;s should take judicial notice of the 
authority of their managing officers, upon the same prin- 
ciple that judicial notice is taken of the duties of officers 
of banks and other agents, whose authority is so generally 
understood as not to be the subject of inquiry. It is a mat- 
ter of common knowledge that the superintendent of a 
railroad corporation is empowered to conduct its ordinary 
business transactions. The use of cordwood is convenient, 
and, we may fairly say, indispensable, to the operation of 
railroads within this state. To receive such wood, and de- 
clare whether it has been received, is, consequently, inci- 
dent to the business of a railroad corporation, and the au- 
thority to determine matters of this nature must rest with 
some of its agents or officers. We assume that the officer 
charged with the conduct of defendant's ordinary business 
has the authority to determine so common-place a matter 
as the receipt of cordwood. It is customary with railroad 
corporations to confer upon their officers and agents titles 
indicating and suggesting in general terms their authority 
to persons having business with the corporation. When 
an agent is clothed with a title implying general powers, 
as superintendent, the business public and courts may fairly 
presume he is what the corporation holds him out as being. 
Webster says, a superintendent is '* one who has the over- 
sight and charge of something, with the power of direc- 
tion." An agent having the oversight and charge, with 

Vol. XVIII— 21 ^ ^ ^ ^ . . ,. ,^Tp 

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162 Sacalarip c. E. & P. R. Co. [Sap. a. 

Opinion of the Court — Belknap, J. 



the power to direct, has a general and discretionary power 
within the scope of his agency. 

The law touching the liability of corporations arising from 
the acts of their agents has been greatly modified, as will 
be seen be seen by reference to recent decisions. 

In Adams M, Co. v. tSenter^ 26 Mich. 73, the court said : 
" The next question refers to the extent of Frue's authority, 
independent of specific and expressly granted powers. We 
are not satisfied that any testimony would be needed to 
show the extent of the ordinary powers of an agent in charge 
of such a mine. The authority of such oflicers must, within 
the usual range of business, at least be recognized judicially, 
like that of bank cashiers, vessel captains, and other known 
agents. The mining law recognizes agents by name, as 
known representatives upon whom process may be served. 
They are the persons who have the charge, personally of 
the local business at the mines, and are necessjirily to be 
treated, in law, as general agents, to do all that is fairly 
within the scope of corporate business in conducting the 
operations in that locality. The testimonj^ of Mr. Palmer, 
which shows the usual range of such agencies, indicates no 
more than should be inferred. The business could not be con- 
ducted at all without a very wide discretionary power. There 
is no reason, and can be no legal principle, which will put 
the agent of a corporation on any difterent footing than the 
agent of an individual in regard to the same business. A 
general agent needs no instructions within the range of his 
duties, and any limitation on his usual powera would not 
bind others dealing with him and hot warned of the re- 
strictions. ' ' 

In Grqfius v. Land Co.^ 3 Phila. 447, the president of an 
incorporated company was intrusted with the management 
of an enterprise. His authority was limited by the 
directors, and did not authorize him to render the corpora- 
tion liable for the services of the plaintifl:*. These facts 
were established in defense, but the court said : *' When a 
body, incorporated avowedly for a special object, intrusts 
its president, or other principal officer, with the manage- 



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Oct. 1888.] Sacalaris v. E. A; P. R. Co. 163 



Opinion of the Court — Belknap, J. 



ment of the bnaiiiess for which its powers have been con- 
ferred upon it by the courts or the legislature, it necessa- 
rily gives him the air and aspect, and clothes him with the 
functions, of a general agent, and should not afterwards be 
allowed to say that his powers are, in fact, special, and not 
general, to the injury of those who have trusted him on the 
faith and credit of the assets and resources of the corpora- 
tion. In general, those who deal with an agent are bound 
to ascertain the scope and extent of his authority, and can- 
not go beyond it for the purpose of charging the principal, 
even when they have been misled by their own credulity 
and the misrepresentations of the agent. But when a prin- 
cipal puts the agent forward as a general agent, or places 
him iu a position where othera are justified in the belief 
that his powere are general, the restrictions which may be 
imposed privately on the agent, will be immaterial, except 
as between him and the principal, and can have no effect 
on the rights or remedies of third persons.'* 

A similar question arose in Lee v. Pittsburg C, M. Cb., 
56 How. Pr. 376, and was discussed by the court : '^What 
general or special powers were by the bond expressly con- 
ferred upon Mr. Mullin as such president and manager, or 
what power inhered in those officers, we can only determine 
(in the absence of positive evidence) by inferences from such 
facts proved as throw light on this point, aided by the pre- 
sumption that, as the chief executive officer and manager 
of the company, he must have been clothed with some 
powers and duties which, of necessity, pertained to those 
positions, as it was shown that the business for which the 
defendant was organized was the mining, shipping, and 
selling of coal ; that it had mines in Pennsylvania, and large 
quantities of coal for sale, which it sought to market in 
Buffalo and the neighboring province of Canada. We may 
fairly presume, further, that the defendant's president and 
manager had, by virtue of his offices, authority to make 
those contracts in defendant's behalf which it was necessary 
some agent should make for the prosecution of its business, 
and which the daily exigencies of that business might 

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164 Sacalaris v. E. & P. R. Co. [Sup. a. 



Opinion of the Court — Belknap. J. 



require. The hiring of operatives to carry ou the work of 
mining coal, the making of contracts for the shipment of 
coal to the various markets, the employment of agents to 
receive and take care of coal at those markets, to attend to 
its sale, and to collect and remit the proceeds, were neces- 
sary to the operations of the corporation ; and it was also 
necessary that some agent should be clothed with authority 
to make such agreements. The public would have the 
right to assume that the president and manager of the com- 
pany claiming such authority and exercising it, did lawfully 
possess it, and treat witli him accordingly. 

•'Upon similar presumptions all business men deal with 
the executive officers of banking, insurance, railroad, man- 
ufacturing, and other corporations, whose operations move 
the vast and complicated machinery of trade and commerce. 
Their boards of directors may, and, no doubt, often do, 
adopt rules and regulations defining the powers and duties 
of the various officers through whose agency the corporate 
powers and franchises are exercised. But such rules and 
regulations are to be found only upon the minutes of the 
directors' proceedings, or other private records of the corpo- 
ration. They are not published, nor do the public, with 
whom the officers of a corporation transact business, know, 
or have the means of knowing, what such rules and regula- 
tions are. And it often happens — so often as to be the rule 
rather than the exception — that the chief officers of a cor- 
poration 'exercise a very wide range of powers, virtually 
grasping the entire direction and control of all its operations, 
with the tacit consent and approval of the corporation, 
though it has never by any direct vote or recorded act 
defined the nature or extent of their authority. It is, 
therefore, very difficult, if not impossible, for those having 
dealings with corporate bodies to determine, except by cir- 
cumstances and inference, what authority such officer have, 
or, in case of litigation, to prove their authority by positive 
evidence. Ought not the same evidence upon which pru- 
dent business men ordinarily infer the existence of the 
authority, to be satisfactory to courts and juries? And 



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Oct. 1883.] Sacalaris v. E. A; P. R. Co. 165 

Opinion of the CJourt — Belknap, J. 



would not the enforcement of more stringent rules embarrass 
and binder the operations of trade and commerce, and 
prove vexatious and injurious to the interests of the corpo- 
rations themselves ?'' 

These considerations led the court to the conclusion that 
defendant's president and manager was the officer who, in 
the ordinary course of business, would be expected to pos- 
sess authority to employ the plaintiffs, and plaintiffs had 
the right to presume that tlie officer was so authorized. {F> 
^ M. Bank v. B. ^ D. Bank, 28 N. Y. 425; 2\ W. ^ W. 
R. Co. V. Eodriguesy 47 111. 188 ; McKieman v. Lenzen, 
56.Cal. 61 ; Souihgaie v. A. ^ P. E. Co., 61 Mo. 89 ; In re 
German M. Co,, 19 Law & Eq. 591 ; Walker v. G. W. E. 
Co., 2 L. R. Exch. 228 ; Wild v. N. Y. ^ A. S. M. Co., 59 
N. Y. 644.) 

Further objection is made to the introduction in evidence 
of the admission of the superintendent, upon the ground 
that it was the statement of a past transaction and formed 
no part of the res gestce. Plaintitt'''s theory is that the lot of 
wood of eighty-five cords was set apart for the defendant, 
but that defendant had not accepted it, and therefore the 
transaction was incomplete and continuing. In this view, 
the declarations were made in the course of the transaction 
and were admissible. 

Objection is also made that the evidence is insufficient to 
support the verdict. This objection is based upon the fact 
that plaintiff allowed Paquin to deal with the wood in such 
a manner as to lead defendant's agents to believe he owned 
it. This fact constitutes the estoppel pleaded by defendant. 
One hundred and sixty cords of wood were in controversy. 
Plaintiff recovered judgment for the return of ninety-five 
cords of wood, or the value thereof. There was evidence 
tending to show that plaintiff' was estopped from asserting 
ownership to the fifty-cord lot; that the corporation had 
notice of plaintiff" s claim of ownership before it accepted 
the eighty-five- cord lot. The evidence upon these matters 
was conflicting. It was the province of the jury to deter- 
mine these facts. With that determination we cannot 



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166 Lyon Co. v. Esmeralda Co. [Sup. Ct. 



Opinion of the Court^ — Leonard, J. 



interfere. If defendant had notice of plaintifl^s claim of 
ownership before its acceptance of the eighty- five cords of 
wood, plaintiff was entitled to recover them or their value. 
There was no controversy as to the fact that ten cords of 
other wood belonging to the plaintiff had been taken by de- 
fendant. There being testimony to sustain each of these 
matters, it is evident that the evidence is not insufficient to 
sustain the verdict. 

The judgment and order of the district court are affirmed. 



[1171.] 

LYON COUNTY, Respondent, v. ESMERALDA 
COUNTY, Appellant. 

Jurisdiction — Appeal.— This court, under the practice act, has jurisdiction 
only in cases conimencwi in an<i tried by a court. The legislature may 
' enjoin upon a judge the perfonnance of judicial functions, in matters out- 
side of actions or proceedings in court ; but, in such cases, there is nothing 
in the statutes authorizing an appeal from his orders. 

Idem — Court Procekdincjs — Chamber Orders.— No appeal lias to the supreme 
court from an order of the district judge requiring the county assessor of 
Esmeralda county to file in the district court a statement of taxes, a« re- 
quiretl by section 6 of the act of March 1, 1883. (Stat. 1883, 100.) The 
proceedings required by tlie statute were in no sense court pnxieedings, as 
such, and the fact that the order wa.s made by the court instead of the 
judge, does not change its character. 

Appeal from the District Court of the Third Judicial 
District, Lyon County. 

The facts are stated in the opinion. 

D. J, Lewis, Wells ^ Taylor^ and J. F. Boiler, for 
Appellant. 

W, E. F, Deal, for Respondent. 

By the Court, Leonard, J. : 

At the last session of the legislature a statute was passed 
entitled "An act to detach a portion of Esmeralda county, 



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Oct. 1883.] Lyon Ck). r. Esmeralda Co. 167 



Opinion of the Court — Leonard, J. 



aDd to annex the same to Lyon county,'* the sixth section 
of which is as follows : 

"Sec. 6. In the event of the boards of county commis- 
sioners of Esmeralda and Lyon counties failing to agree 
upon and determine the amount due Esmeralda county from 
Lyon county, as provided in section two of this act, the 
district judge of the third judicial district shall order the 
county assessor of Esmeralda county to file in the district 
court of the third judicial district, in and for Esmeralda 
county, a statement setting forth the amount of the entire 
taxable property in Esmeralda county, as shown by the 
assessment roll for the year eighteen hundred and eighty- 
two, and the amount thereof assessed in and belonging to, 
the territory detached from Esmeralda county and annexed 
to Lyon county ; whereupon the district judge of the third 
judicial district shall, in accordance with the proportionate 
amount contemplated by section two of this act to be 
assumed by Lyon county, determine and declare the amount 
due Esmeralda county from Lyon county." 

The second section provided that Lyon county should 
assume and pay such a proportion of the indebtedness of 
Esmeralda county as the taxable property in the detached 
and annexed territory, for the year 1882, bore to the pay- 
ment of the entire indebtedness ; and also that the boards 
of county commissioners of the counties of Lyon and Esme- 
ralda, should, prior to the first Monday of July, 1883, 
agree upon and determine the amount so due from Lyon to 
Esmeralda county, and should regulate the manner and 
time of paying the same. Prior to the first Monday of 
July, 1883, the board of county commissioners of Lyon 
county made a demand upon the board of county commis- 
sioners of Esmeralda county to fix a time and place of meet- 
ing of the two boards, and to agree upon and determine the 
amount due from Lyon to Esmeralda county, and to regu- 
late the manner and time of paying the same, according to 
the provisions of said act of the legislature. The board of 
county commissioners of Esmeralda county failed to comply 
with the request and demand of the Lyon county board, 



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168 Lton Co. v. Esmeralda Co. [Sup. Ct. 



Opinion of the Court— Leonard, J. 



and the result was the event first mentioned in section 6. 
Thereupon, on the second day of July, 1883, at a regular 
meeting of the Lyon county board, said board entered 
upon their minutes an order instructing the district attor- 
ney of said county ''to present the matter to the district 
judge of the third judicial district, that he might proceed 
in the premises as required by the act of the legislature 
as aforesaid." 

In pursuance of that order, the district attorney of Lyon 
county addressed to the district judge a communication 
styled in the transcript a *' petition," wherein he set out 
the provisions of the statute referred to, the failure of the 
Esmeralda county board to comply with the requirements 
of section two, the consequent failure of the boards to agree 
upon the amount due Esmeralda county from Lyon county, 
as provided in said section, and prayed that said judge 
might make such orders, and take such action in the prem- 
ises as might be just, and to carry out the provisions of the 
act of the legislature before mentioned. Thereupon a cita- 
tion was issued out of the third judicial district court, in 
and for Lyon county, directed to S. B. Hinds, assessor of 
Esmeralda county, commanding him to show cause before 
the district judge, at the time and place mentioned therein, 
why he should not file in the district court of the third 
judicial district, in and for Esmeralda county, a statement 
setting forth the amount of the entire taxable property of 
Esmeralda county, as shown by the assessment roll for the 
year 1882, and the amount thereof assessed in, and 
belonging to, th'e territory detached from Esmeralda county 
and annexed to Lyon county. At the hearing the district 
attorney of Esmeralda county filed a demurrer to the peti- 
tion, and the assessor filed an answer to the citation, setting 
forth certain reasons why he could nM. furnish a statement, 
and why he should not be required to do so by the judge.' 
The demurrer was overruled, and the reasons given by the 
assessor having been deemed insufllcient, he was ordered 
by the judge in open court to file the required statement. 
The district attorney of Esmeralda county filed and served 

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Oct. 1883.] Lyon Co. v. Esmeralda Co. 169 

Opinion of the Court — Leonard, J. 



a notice of appeal, wherein it is stated that the defendant 
appeals from the order and judgment of the district court 
overruling defendant's demurrer, and' from the judgment; 
meaning, of course, the order commanding the assessor to 
file his statement. 

It is urged by counsel for Lyon county that no appeal 
lies in this proceeding. This is the first question to be 
considered. Section 4 of article VI of the constitution pro- 
vides that, ''the supreme couii; shall have appellate jurisdic- 
tion in all eases in equity ; also in all cases at law in which 
is involved the title or right of possession to, or the posses- 
sion of, real estate or mining claims, or the legality of any 
tax, impost, assessment, toll, or municipal fine, or in which 
the demand (exclusive of interest), or the value of the 
property in controversy, exceeds three hundred dollars; 
also in all other civil cases not included in the general sub- 
divisions of law and equity. * * *'* The statute gov- 
erning appeals in civil actions provides that '*an appeal may 
be taken, ^^7'5^, from a final judgment in an action or special 
proceeding commenced in the court in which the judgment 
is rendered, within oneyear after the rendition of judgment. 
* * *'* Under the practice act this court has appellate 
jurisdiction ov\]y in cases commenced in and tried by a court. 
Before the supreme court can exercise appellate jurisdiction 
in this case, it must appear that a final judgment has been 
rendered by the district court in an action or special pro- 
ceeding commenced in that court, and that the judgment 
appealed from was rendered in an action or proceeding 
which the court had power to try and determine. This 
court has not authority to consider the case before us on its 
merits, if the so-called judgment and order appealed from 
are simply chamber orders, or if the proceeding before the 
district judge was not, in any proper sense, a proceeding in 
court. Nor does it alter the case that the orders were made 
in court, if the duties required of the judge by the sixth 
section do not, in fact, constitute court proceedings. It is 
not denied that the legislature may enjoin upon a judge the 
performance of judicial functions in matters outside of 

Vol. XVIII—22 

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170 Lyon Co. v, Esmeralda Co. [Sup. Ct. 



Opinion of the CJourt — Leonard, J. 



actions or proceedings in court. In such cases the provisions 
of the practice act are inapplicable, and there is nothing 
in the statute under which the judge acted in this case that 
authorizes an appeal from his orders. 

Examining the sixth section of this statute, it is patent 
that the proceedings thereby authorized are, and were in- 
tended to be, special and summary. In a certain specified 
event, the district judge was required to do two things, viz : 
he was to order the county assessor to file in the district 
court for Esmeralda county the statement mentioned, and 
thereupon he was to determine and declare the amount due 
Esmeralda county from Lyon county. The assessor mijsjht 
have been required to file his statement without an order 
from the judge, and in that case the latter's duty would 
have been performed by a mere computation, as required 
by section 2, and a declaration of the amount found due, to 
the proper authorities. The order to the assessor was in- 
tended only to aid the judge in the performance of his 
principal duty. No pleadings or parties were contemplated 
or required. No petition from the district attorney or 
board of county commissioners of Lyon county was a pre- 
requisite to the action of the judge. The law made his 
duty plain. No citation or notice to the assessor to show 
cause was intended or required. If the judge had examined 
the records of the board, and thereby learned that the two 
counties had failed to determine the amount due to Esmer- 
alda, it would have been his duty to order the assessor to 
file his statement. His authority in the premises did not 
depend upon the petition or citation. If the sixth section 
is unconstitutional ; if the judge had no lawful right to 
make the order requiring a statement from the assessor, 
then the latter was under no legal obligation to obey the 
same, and he would not have been guilty of contempt in 
case of refusal. He could have placed his own construction 
upon the legality of the proceeding, and taken his chances 
on its correctness ; but there was nothing for him to demur 
to. He might have said to the judge in chambere, ** You 
ought not to require me to make a statement, for the fol- 



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Oct. 1883.] Lyon Co. v. Esmeralda Co. 171 



Opinion of the Court — Leonard, J. 



lowing reasous," stating them as set forth in the so-called 
demurrer and answer, and the result would have been the 
same as that attained by the proceedings in court. The 
proceedings required by the statute were in no sense court 
proceedings, as suck, and the fact that the orders were 
made by the court instead of the judge does not change 
their character. {Marty v. Ahl, 5 Minn. 34.) 

In Hubbell v. Mc Court, 44 Wis. 586, it appears that the 
legislature passed a law providing for appeals to the 
supreme court from orders made by circuit judges at 
chambers. Said the court: "It becomes an important 
question, and one which this court must determine, whether 
the legislature has power under the constitution to compel 
this court to take jurisdiction of and determine appeals 
taken from orders made by judges or other officers out of 
court ; in other words, whether this court has appellate 
power under the constitution, in case of appeals from the 
acts of persons acting as judicial officers or otherwise, as 
distinguished from the judgment or orders of courts cre- 
ated by the constitution and laws. * * * j^ this case, 
the parties, by their counsel, have not seen fit to question 
the power of this court to hear and determine this ap- 
peal ; but we are not disposed to usurp a power which is 
not conferred upon us by the constitution, even though the 
parties interested may waive their constitutional rights and 
agree to accept our decision as final in the pending case. 
The court has an abundance of labor to perform in the dis- 
charge of those duties which are conferred upon it by the 
constitution, and the laws made in conformity therewith, 
without assuming other burdens, not sanctioned by the con- 
stitution, and which may be attempted to be imposed upon 
it by legislation in violation of the constitutional limitations 
upon its powers. * * * The constitution of this state 

* * * provides that * the supreme court, except in cases 
otherwise provided in this constitution, shall have appellate 
jurisdiction only, which shall be co-extensive with the state. 

* * * The supreme court shall have a general superin- 
tending power over all inferior courts. ' * * * Without 

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172 Lyon Co. v. Esmeralda Co. [Sup. Ct. 

Opinion of tlie Court— Leonard, J. 

stopping to make any extended investigation, it is safe to 
say that it will be difficult to find that any court of last 
resort in any of the states had, at the time of the adoption 
of our constitution, ever exercised an appellate jurisdiction 
over orders made, in actions or otherwise, by judges at 
chambers, or out of court, and it is equally safe to say that 
the framers of our constitution, when conferring appellate 
jurisdiction upon this court, intended such jurisdiction should 
be limited to the judgments and orders made by the courts 
of the state. * * * Tq ]^q]^ that the power exists in 
the legislature to compel this court to take jurisdiction of 
appeals from ordera not made by any court, would, by 
indefinitely extending the right of appeal, greatly embar- 
rass its proceedings, and hinder and delay it in its determina- 
tion of those strictly judicial matters which were the sole 
object of its creation. We must, therefore, both for the 
protection of this court and in the interest of public justice, 
hold that the constitution limits the appellate power of this 
court to the judgments and orders of courts, and that 
'orders' made by judges or other officers out of court can- 
not be the subject of review in the first instance in this 
court.*' Ai\(\ see Hx parte Cosner^ 4: Tex. Ct. App. 89; 
Ar berry v. Beaver s^ 6 Tex. 470 ; Baker v. Chisholm, 3 Tex. 
157; Conter v. St. Paul ^ S. C. R, R. Co., 24 Minn. 
313; Hoffman v. Mann, 11 Minn. 366 ; Scliurmeier v. Rail- 
road Co., 12 Minn. 351 ; McNamara v. Minn. Cent. R. Co., 
Id. 389 ; Sturges v. Rogers, 16 Ind. 18 ; French v. Lighty, 
9 Ind. 475 ; Wilmington ^ Susquehanna R. Co. v. Condon, 
8 Gill, and J. 448. 

Without further discussion of this question, our opinion 
is, that there is no right of appeal in this case, and the 
same is dismissed. 



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Oct. 1883.] State v. Board of Ed. 178 

Argument for Kelator. 



[No. 1160.] 

THE STATE OF NEVADA, ex rbl, JOHN R. 
NEWNHAM, Relator v. THE STATE BOARD OF 
EDUCATION OF THE STATE OF NEVADA, 
Respondent. 

The State Board op Education — Text Books — When Resolutions May 
BE Reooxsiderkd. — The state board of education may, after it has passed 
a resohition prescribing a certain series of text books, reconsider its action 
and rescind such resolution at any time before the adoption of sucli books 
by the different school districts. 

Appucation for mandamus. 

The facts are stated in the opinion. 

A. C. Ellis, for Relator : 

L When text books are once prescribed by the proper 
authority, every parent having children of school age 
attending the public schools, and who has procured such 
text- books, has a direct personal, legal right to have such 
books used in the schools. There can be no distinction 
taken between the enfor(;ement of such right and the right 
of the parent to compel the admission of his child to the 
public schools when entitled to the benefit of such schools. 
Mandamus will lie to compel such admission. (State ex rel. 
Games v. McOxmm, 21 Ohio St. 198; Hoe v. Deming, 21 
Ohio St. 666 ; People v. (he Board of Educationj 18 Mich. 
400 ; State ex rel. Stoutmeyer v. Duffy, 7 Nev. 342.) 

n. It was not within the powers of the board, after it 
had prescribed Appleton's readers as text books, on the 
first day of December, 1879, to reconsider this action and 
change the text books on the third day of December 1879. 
(State ex rel. Flower v. Board of Education, 35 Ohio St. 
368; People v. Board of Education, 49 Cal. 684.) 

W. H. Davenport, Attorney-General, for Respondent. 

By the Court, Leonard, J. : 

Relator prays for the issuance of the writ of mandamus. 

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174 State v. Board of Ed. [Sup. Ct 



Opinion of the Court — Leonard, J. 



commanding respondent, the state board of education, to 
allow his child and all other children in the public schools 
of this state to use Appleton's school readers as text-books, 
and to take such steps as may be requisite for the intro- 
duction and use of said Appleton's school readers as text- 
books in the public schools of the state, and for the exclu- 
sion therefrom of Sheldon's readere. The statute provides 
that, '*the state board of education shall have a seal. * ♦ * 
It shall be the duty of said board to hold semi-annual 
sessions, for the purpose of devising plans for the improve- 
ment and management of the public school funds, and for 
the better organization of the public schools of the state, 
and such special sessions as may be called by the president. 
A full record of the proceedings of the board shall be kept 
by the secretary, and shall be embodied in the annual 
report of the superintendent of public instruction. ' ' (Corap. 
Laws, 3822.) *'The state board of education shall have 
power, and it ib hereby made their duty, to prescribe, and 
cause to be adopted, a uniform series of text- books in the 
principal studies pureued in the public schools, to-wit, 
spelling, reading, * * * and physiology ; and no school 
district shall be entitled to receive its^ro rata of the pubHc 
school moneys unless such text- books as prescribed by the 
state board of education shall be adopted and used in all the 
public schools. * * * Orthography, reading, * * * 
and geography shall be taught in all the public schools ; and 
in each school above the grade of primary, there shall be 
taught English grammar * * * and chemistry ; and in 
such schools as the board of trustees may direct, algebra, 
* * * astronomy, and the elements of book-keeping, or 
such other studies as the board of trustees may direct ; pro- 
vided, that the text- books shall not be changed oftener than 
once in four years.** (Comp. L. 8361.) 

It will be seen that, by the first section of the statute 
quoted, the board of education has power to do, at a 
special session, any act that it may do at a regular or semi- 
annual session. It will be observed, also, that under the 
last section quoted the board has power, and it is its duty, 



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Oct. 1883.] State r. Board of Ed. 175 

Opinion of the Ck)urt— Leonard, J. 



to prescribe and cause to be adopted a uniform series of text- 
books iu the principal studies, including reading. No 
school district can receive its proportion of public moneys 
unless it adopts and uses such text- books as are prescribed by 
the state board; and the text-books shall not be changed 
oftener than once in four years. 

The only facts of this case necessary to be stated are 
these: On the first day of December, 1879, Sheldon's 
readere were in use in the public shools of the state. It is 
not shown just when they were prescribed as text- books by 
the state board, or when they were firat adopted and used 
in the public schools. It does appear, however, that they 
had been in use six years prior to May 1, 1883, and also 
that at its meeting held on the first day of December, 1879, 
the board did not intend any change in the readers used in 
the public schools, until September 1, 1880. It is probable 
that the four years provided by the statute, during which 
the Sheldon readers could not be changed, did not expire, 
in the opinion of the board, until September 1, 1880. To 
show the action of the board, we quote from its minutes : 

** Carson City, December 1, 1879. 

*'The board met as per announcement in circular issued 
May 29, 1879, to consider the matter of text- books. Mem- 
bers all present. * * * Mr. Hatch moved to make a 
change of readers. Carried. Messrs. Kinkead and Hatch 
voted in the aflirmative, and Mr. Sessions in the negative. 
Mr. Hatch next moved to select a series of readei-s for use 
in the schools of Nevada for the next four years, beginning 
September 1, 1880. Carried by the same vote as above. 
The vote was taken by means of open ballot, and Appleton's 
readers were adopted. * * * It was moved by Mr. 
Hatch, and carried, that the secretary be authorized to 
enter into a contract with D. Appleton & Co. for furnishing 
readers iu accordance with the proposition of their agent, 
Mr. White, and that iu case of failure to fulfill said contract 
the agreement thus entered into shall be null and void. It 
was moved and carried that the consideration of the arith- 



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176 State i?. Board op Ed. [Sap. Ct. 



Opinion of the Court — Leonard, J. 



metics be postponed until the next meeting of the board, 
December fifteenth, prox. The proposition of D. Appleton 
& Co. (which was accepted) is as follows ; * * * 

John H. Kinkbad, President. 
D. R. Sessions, Secretary.'* 

*' Carson, Dec. 8, 1879. 

"Special meeting called to reconsider and review the 
action of the board at its previous session. Present full 
board. Mr. Hatch moved to reconsider the action had in 
adopting the Appleton readers, and to defer any further 
consideration of a change of readers until next meeting. 
Carried unanimously. The board then adjourned to meet 
again on Monday, December 15th, proximo. 

*'N. B. There being no quorum present December 15, 
1879, an adjournment was ordered, subject to call of the 
president. D. R. Sessions, Secretary.*' 

We shall concede, for the purposes of this decision^ that 
on the first day of December, 1879, respondent, the board 
of education, prescribed Appleton's readers as text books for 
the public schools of this state, and that, if it did not have 
power to reconsider its action then had, it is now its duty 
to cause those readers to be adopted and used in the public 
schools for the period of four years. State v. Board of Ed. 
of City of Columbus^ 35 Ohio St. 368, is cited by counsel for 
relator as being a case on all-fours with this, and we are 
urged to follow the decision there made as authority here. 
The value of a decision of another state court depends 
greatly upon the reasons given in its support, but beyond 
this, when it is based upon a statute, before we can be 
influenced by the conclusion arrived at, it must appear that, 
as to material points, the statute there construed was similar 
to the one we have under consideration. The school law 
of Ohio provided for a board of education for each district 
or city. In the case referred to, the board's powera and 
duties did not extend beyond the city of Columbus. These 
boards were required to hold regular meetings every two 
weeks, and were empowered to hold such special meetings 



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Oct. 1883.] State v. Board op Ed. J77 

■ 

Opinion of the Court — Leonard, J. 

as they might deem necessary. (70 Ohio Laws, 197.) The 
statute also provided that ''each board of education shall 
determine the studies to be pursued, and the text- books to 
be used in the schools under their control, and no text-book 
shall be changed within three years after its adoption^ without 
the consent of three-fourths of the members of the board of edu- 
cation given at a regular meeting. * * * *' (Id. 209, Sec. 
52.) The italics are ours. By the next section the board 
of education of each school district was given the manage- 
ment and control of the public schools of the district. They 
had power within their district such as our law gives to the 
board of education of the state and the trustees of a district. 
Under that law the court said : **The legal etiect of the 
action of the board on the twelfth of August must be ascer- 
tained from a construction of section 52 of the statute (70 
Ohio Laws, 209) under which its action was had. The first 
clause of the section, which alone bears upon this question, 
reads as follows: *Each board of education shall deter- 
mine the studies to be pursued, and the text^ books to be 
used in the schools under their control ; and no text-book 
shall be changed within three years after its adoption, with- 
out the consent of three- fourths of the members of the board 
of education given at a regular meeting,' etc. * * * 
The clause quoted is divisible into two sentences, each com- 
plete in itself. The first confers power on the board to act 
upon two subjects, — the studies to be pursued, and the text- 
books to be used in the schools. The second is a conditional 
restriction on the power of the board over the latter subject, 
when it is within the condition ; and when the restriction is 
inapplicable, the power of the board over both subjects is 
equal and complete. In this case the restriction was inap- 
plicable to the action of the board on the twelfth of August, 
for the reason that more than twice three years had then 
elapsed since the board had adopted the Cornell geographies 
as the text- book to be used in the schools. Consequently, 
at the date last named, the board could legally exercise, 
without restriction, all the powers conferred by the first 
sentence in the clause above quoted. Under this, the board 

Vol. XVIII— 23 ^ 

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178 State i\ Board of Ed. [Sup. Ct. 

Opinion of the Court— Leonard, J. 



is to determine the text- books to be used. What is the 
meaning of the word determine, as here used, or what 
operation and effect ought to be given to it ? When taken 
in connection with the purposes of the law, * * * and 
the subject-matter to which it relates, * * * it is man- 
ifest that the word * determine ' must mean something 
more than investigating and arriving at a conclusion by 
mental processes, although these are embraced. Official 
action is contemplated and required to give a practical eftect 
to the word, and the injunction to do this is mandatory upon 
the board ; and in order that thftse who must obey may 
know the will of the board, it is necessary that it should be 
declared in such a way that it may be known. 

" The usual mode by which the board of education makes 
known its will on any subject over which it has control is 
either by motion, or by a resolution passed by the board at 
an official meeting and entered upon the record of its pro- 
ceedings, where it may be seen by Biuy party interested. 
All this was done in the case before us. On the fifteenth 
day of July, 1879, the committee on text-books made a 
report to the board on the subject ; among others, of the 
text- books on geography then in use, and those which they 
recommended for use in the future, in which they give their 
reasons for excluding the Cornell series then in use, and 
substituting in their stead the intermediate, or No. 2, and 
the primary geographies of the Eclectic series. If the re- 
port as made had been adopted, its operation would have 
been to exclude the condemned series then in use, and to 
introduce those recommended into the schools to be there- 
after used. By official action that part of the report re- 
ferring to new geographies was laid over for two weeks. 
On the twelfth of August, 1879, at a regular meeting of 
the board, the report was taken up, when a proposition 
* * * was presented, stating the terms upon which they 
would furnish Harper's geographies for use in the schools. 
On motion of a member the name of Harper's geographies 
was substituted in the report of the committee for that of 
the Eclectic series. * * * * ^nd there- 



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Oct. 1883.] State v. Board of Ed. 179 

opinion of the Court— Leonard, J. 



upon the report of the committee as amended was adopted. 

"Whatever the legal effect of this action may be, it at 
least clearly shows that the board thereby intended to 
exercise the powers conferred upon it by law in reference 
to the text-books to be used in the schools on the subject 
of geography. It appeal's to us that the legal effect of this 
action of the board, by whatever name it may be called, 
was the adoption of Harper's geographies as the text-books 
on that subject, to be thereafter used in the schools under 
its control until they are lawfully changed. When the 
action of the board was consummated on the twelfth of 
August, its power over the subject was exhausted for the 
period of three years from that date, unless the text-book 
80 adopted should be changed within that time by the con- 
sent of three-fourths of the members of the board, given 
at a regular meeting thereof. The 'three years' begins to 
run from the date of the official adoption of a text- book, 
and not from the time such book is introduced and brought 
into actual use in the schools. ' * 

The court, therefore, decided that the bare majority vote 
on the twenty-sixth of August, 1879, reconsidering the vote 
of August twelfth, adopting Harper's geographies, was a 
nullity, because the action of the board on the twelfth was 
an adoption of Harper's, and the statute declared that they 
should not be changed within three years after their 
adoption. The last conclusion necessarily followed the first. 
If the determination by the board that a text-book should 
be used was its adoption, then, of course, the three years 
began to run from the twelfth of August, and the power 
of the board over the subject for three years from that date 
was exhausted, for the law so declared. If the action of the 
board on the twelfth of August constituted an adoption, as 
the court held, it is plain that 'it could not, twelve days or 
one day thereafter, reconsider its former action, and sub- 
stitute some geography other than Harper's, in the face of 
a law declaring that no text- book should be changed within 
three years after its adoption. 

But there is an important difierence between the Ohio 



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180 State v. Board of Ed. [Sup. Ct. 

Opinion of the Court — Leonard, J. 

statute and ours. The reason why the Ohio court said the 
board could not reconsider its former vote or adoption was 
because the statute prohibited further aition for three years 
after August twelfth, the time of adoption. There is no 
semblance of such prohibition in ours. Here, text- books 
cannot be changed oftener than once in four years. There 
they could not be changed within three years after their 
adoption^ and the action of the board alone constituted an 
adoption. Under our law it is the board's duty to prescribe 
and cause to be adopted a text- book in reading. On the first 
of December, 1879, let us say, it prescribed Appleton's 
series of readers for four years, commencing September 1, 
1880. Nothing further was done prior to December third, 
when the former action was reconsidered, if the board had 
power to do so. Before the reconsideration the board did 
nothing furthering their adoption, which must be done by 
the districts, and not by the board. The board can pre- 
scribe rules governing districts in the matter of text- books. 
It can declare a time when the different districts shall dis- 
card the old series, and adopt and use the new. And if any 
district fails to comply with a reasonable rule in this respect, 
it must pay the penalty prescribed by the statute ; it will 
not be entitled to receive its pro rata of public school moneys 
until it does comply. The different districts must adopt the 
books prescribed by the board. But if, before they are 
adopted, the board concludes that it has made an unwise 
prescription, we know of nothing in the law forbidding a 
reconsideration. In saying this, we have no reference to 
any contract made by the board for the purchase of books 
prescribed, for it is admitted that such contract could Jiot 
be enforced by this proceeding in any event. The only 
statutory limitation upon the board's power is that text- 
books shall not be changed oftener than once in four yeara. 
The board's duty is to prescribe^ and cause to be adopted, a 
uniform series of text- books. The statute makes the last 
duty as imperative as the first. The complaint made in 
this case is that the board fails to cause the adoption of 
text-books by it prescribed. By prescribing a text-book 



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Oct. 1883.] State v. Board of Ed. 181 

Opinion of the Courts Leonard, J. 

simply, the board's duties are only half done. It must also 
see that the prescribed book is adopted, and thereafter, for 
four years, it cannot be changed. This is the sensible view 
of the statute. The law declares no means by which the 
board shall cause the adoption of text-books ; but, the duty 
being enjoined, a power is given to use such reasonable 
means as are necessary for its proper performance. By a 
judicious exercise of this power the board need not experi- 
ence much difficulty in performing their entii-e duty. We 
find no fault with the Ohio decision under the statute there 
in force. We only say that, under ours, it is not in point. 

Counsel for relator refers also to People v. State Board of 
Klucation^ 49 Cal. 684, where it is held that the board 
could not change text- books once adopted as a part of a 
uniform series without giving six months' notice as 
required by law. The question there decided is not 
involved in this proceeding, but an examination of the 
statute there referred to shows a marked difference between 
it and ours. The eighty-eighth section of the California 
statute provided that the state board of education should 
prescribe and adopt a uniform series of text- books, and that 
any books once adopted in the state series sliould be con- 
tinued in use for four years. Indeed, the substance of the 
stjitute is that, when the board once adopts a text- book, it 
shall not thereafter change the same for four yeare. (See 
Stat. Cal. 1869, 1870, p. 847.) There, as in Ohio, the board 
alone adopts the text- books, and thereafter they cannot be 
changed for the period stated, except, in Ohio, by consent 
of three- fourths of all the members at a regular meeting, 
while here, after the board prescribes the book, the dis- 
tricts must adopt it as directed by the stiite board ; and 
until both are done, there is no change in text books in the 
sense of our statute. 

Mandamus denied. 



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12* 911 

I 



182 State v. McKenney. [Sup. Ct. 

Argument for Relator. 



% j82 [No. 1168.] 

}|.|?? THE STATE OP NEVADA ex rel. DAVID S. TRU- 

MAN, DISTRICT ATTORNEY OF NYE COUNTY 
NEVADA, Relator, v. D. C. McKENNEY, JUDGE 
OP THE PIPTH JUDICIAL DISTRICT COURT, 
NYE COUNTY, Respondent. 

Indians Living in Tribal Relations— Crimes By— Jurisdiction of Courts. — 
The courts of tJiis state have no jurisdiction to try an Indian belonging to 
a tribe which is recognized and treated with as such by the government of 
the U. 8., having its chief and tribal laws, for killing another indian 
belonging to the same tribe. 

Idem. — As both indians were under the authority and subjection of such tribal 
laws the authorities of the tribe alone have the right to take cognizance of 
the crime. It was not the intention of the legislature that the territorial 
or state laws defining crimes and providing for their punishment should 
apply to crimes committed by indians, against each other, living in their 
tribal relations. The courts of this state could only obtain jurisdiction of 
such offenses by an afflrraative act of the legislature, or a self-acting clause 
of the constitution. 

Idem— Policy of the Federal and State Governments.— The policy of the 
federal and state government toward the Indian tribes within their borders, 
and the status of the indians, living in tribal relations, stated and dis- 
cussed at length. 

Application for mavidamus. 

The facts are stated in the opinion. 

David S, Truman^ District Attorney of Nj'e County, for 
Relator : 

I. Statutes of U. S. referring to the criminal jurisdiction 
over indians. (Rev. Stat. sees. 2145, 2146, 5339.) 

II. The definition of murder by the statutes of this state 
is broad enough to include all human beings of any nation- 
ality, regardless of race, color or extraction, and the indian, 
having been indicted of murder, is amenable to the state 
laws the same as any other person within our territorial 
jurisdiction. (1 Comp. L. 2321 ; 1 Bish. Cr. L. sees. 124, 
134, 154, 172, 178, 988 ; 2 Bish. Cr. L. sec. 630 ; C7. S, v. 
Rogers, 4 How. 572 ; V. S, v. Yellow Sun, 1 Dil. 271 ; 
£Jx parte Reynolds, 5 Dil. 394 ; 6 Pet. 575 ; Htini v. State, 
4 Kitn. 60 ; Adams v. People, 1 Comst. 173 ; People v. Mc- 



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Oct. 1888.] State v. McKbnnbt. 188 

Argument for Relator. 

Leod, 1 Hill, 377 ; State v. Doxtatei^ 47 Wis. 278 ; U. S. 
V. Leathers, 6 Saw. 17 ; 7 Cranch, 82 ; 1 Whar. Cr. L. 
sees. 168, 166, 541.) 

W. H, Davenport^ Attorney General, also for Relator : 

I. A state has the power, by virtue of her sovereignty, 
to assume jurisdiction by enactment, of the crime of murder 
and other offenses committed by indians within her terri- 
torial limits, whether upon or oft' an indian reservation ; 
provided^ always^ that there are no statute or treaty pro- 
visions granting or retaining jurisdiction in favor of the 
United States. (State v. Forman, 8 Yerger, 256, 885; 
Caldwell w State, 1 Stew. & Por. (Ala.) 327 ; State v. 
Tassels, Dudley (Ga.) 229.) 

n. In the case of indians maintaining their tribal organi- 
zation, which is recognized in the treaty by the general gov- 
ernment, but living upon a reservation which is within the 
limits of a State, and respecting which, or the indians occu- 
pying it, there are no special provisions granting or retain- 
ing jurisdiction in favor of the United States, or withdraw- 
ing the indians from the jurisdiction of the state, the state 
courts have jurisdiction and not the federal courts. (State v. 
Ta-cha-na-tah, 64 N. C. 614 ; I'he Case of Peters, 2 Johns. 
Cas. 344; Jackson v. Goodell, 20 Johns. 190.) The courts 
of the United States have no common law criminal juris- 
diction. They only have such criminal jurisdiction as is 
given them by some law of the United States. (Ex parte 
Sloan, 4 Saw. 830.) 

in. Nevada is not an indian country, and hence the 
federal courts have no jurisdiction of the offense. ( JJ, S. v. 
Sturgeon, 6 Saw. 29.) 

IV. It appears from the petition herein that the defend- 
ant had withdrawn himself from the tribe, and was, at the 
time of the commission of the offense, living among the 
whites, and hence is amenable to the criminal laws of this 
state. (2 Storey on Con. 655.) 

V. An indian is a person, and, further, an indian is a 
human being. (See Stat. 1881, 29, 80 and 83 as to who 



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184 State ??. McKbnnby. [Sup. Ct. 

Argument for Relator. 

maybe witnesses.) Section 2357, Comp. Laws, makes it 
an offense to kidnap an indian, and this court, in the case 
of Lobdell v. HaU^ 3 Nev. 507, held that an indian, who 
had appropriated water on the public lands of the United 
States, might maintain an action for the diversion of that 
water as well as any other person. Now, if an indian is so 
recognized by our courts as to authorize him to institute a 
suit therein to enforce his rights, and he is permitted to 
testify in our courts, and our laws throw around him their 
protecting shield, can it be said, with any degree of justice, 
that he is not a person and a human being, capable of com- 
mitting crime, and punishable therefor under our laws the 
same as any other person ? 

IVenmor Coffin^ U. S. District Attorney ; also, for Relator: 

I. Between the state and federal courts must lie the 
jurisdiction of every case. The jurisdiction of the murder 
of one iudian by another, or the trial or punishment of the 
offense cannot fall within the constitutional power of con- 
gress ^*to regulate commerce with the indian tribes." 
(Const, of the United States, art. I. sec. 8.) The trial of 
this offense, even when committed on an indian reservation 
is in terms excluded fi'om the jurisdiction of the federal 
courts. (U. 8. Rev. Stat. sees. 2145, 2146.) The term 
*' indian country,** as used in section 2145, has been con- 
strued to mean all lands within the United States to which 
the indian title has not been extinguished, or which is set 
apart for the exclusive use or occupation of the indians ; i. 
6., indian reservations. {Bates v. Clark^ 95 U. S. 204; V. 
S. V. Martin, 8 Saw. 473.) 

II. There never has been any treaty reservations with, or 
in favor of the Shoshones, reserving to them or recognizing 
any tribal jurisdiction of any offense committed by a mem- 
ber of the tribe. (See treaty between the United States 
and the western bands of the Shoshone indians, 18 U. S. 
Stat, at Large, 689, art. II. Treaty with the eastern band 
of the Shoshones, 15 U. S. Stat, at Large, 673, art. L) 
Even if any such treaty stipulations had existed, they would 



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Oct. 1883.] State r. McKbnney. 185 



Argument for Relator. 



have beep abrogated by the admission of Nevada into the 
Union, without a special exception or reservation, saving 
and preserving the provisions of the treaty. ( The Kansas 
Indians, 6 Wal. 737 ; The Cherokee Tobacco, 11 Wal. 616 ; 
United States v. McBratney, 104 U. 8. 621.) Long prior 
to the commission of the crime or the finding of the indict- 
ment set out in relator's petition, the United States had 
abandoned the policy of entering into any further treaty 
stipulations with the indians. (U. 8. Rev. Stat. sec. 2079.) 
III. By the admission of Nevada "into the Union upon 
an equal footing with the thirteen original states in all 
respects whatsoever," (13 U. S. Stat, at Large, 30, sec. 1, 
and 749, Proclamation No. 22), without any reservation or 
condition concerning the indians or the indian country, the 
state acquired absolute sovereignty and jurisdiction over 
them. The authorities supporting this doctrine, both 
national and state, are numerous and uniform, and are une- 
quivocally against the jurisdiction of a federal court, and in 
favor of the sovereignty and jurisdiction of the state and 
state courts in cases such as presented by the petition of 
relator. [D. S. y. Bailey, 1 McLean 234; U. S, v. Ward, 
1 Wool. 17; C7. S, v. Stahl, 1 Wool. 192; £7. S. v. Mc^ 
Bratneij, 104 U. 8. 623 ; U. S. v. Cima, 1 McLean 254 ; 
Jackson v. Goodell, 20 Johns. 192; Goodell v. Jackson,, 20 
Johns. 693 ; Pollard's Lessee v. Hagan, 3 How. 223 ; TJ. 
S. V. Bogers, 4 How. 572 ; N. Y. v. Dibble, 21 How. 366 ; 
McOracken v. Todd, 1 Kan. 148 ; Clag v. State, 4 Kan. 49 ; 
People V. Godfrey, 17 Johns. 225 ; Murray v. Wooden, 17 
Wend. 531 ; U. S. v. Bevans, 3 Wheat. 388 ; Com. v. 
Oary, 8 Mass. 75 ; 2 Storey on the Con., Sec. 1227 ; U. S. 
V. Sa-CoO'Ba-Coi, 1 Abb. U. S. 377 ; Hicks v. Ewhartonah, 
21 Ark. 106; Taylor v. Drew, 21 Ark. 485 ; State v. Harris, 
47 Wis. 298 ; Painter v. Ives, 4 Neb. 122 ; People v. An- 
tonio, 27 Cal. 404; U. S, v. Martin, 8 Saw. 478.) There 
are some special exceptions where a state (Kansas) or a 
territory (Idaho) has not jurisdiction over indians and 
indian country (indian reservations and lands), but it is only 
where there was a special reservation or exception in the 

Vol. XVIII— 24 

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186 State r. McKbnnby. [Sap. Ct. 

Argument for Respondent. 



act of congress organizing the territory or admitting the 
state into the Union. These exceptions prove the rule in 
the strongest possible manner. (f7. IS. v. Ward^ 1 Wool. 
17 ; U. S. V. Stahl, 1 Wool. 195 ; The Kansas Indians^ 
5 Wal. 737; The New York Indians. 6 Wal. 761; 
Harkness v. Hyde, 98 U. S. 477 ; Langford v. Mon- 
teiih, 102 U. S. 146; U. S. v. McBrainey, 104 U. 8. 
623.) I am unable to perceive any distinction between a 
case like the present, where the murder was committed by 
one indian upon another, and where a white man was mur- 
dered by an indian. The following were cases where one 
indian was murdered by another, and the courts held that 
there could be no such distinction : State v. Foreman^ 8 
Yer. 256 ; State v. Hunt, 4 Kan. 65 ; State v. Tassels^ 
Dudley (Ga.) 229-38; State v. Ta-Cha-Na^Tah, 64 N. C. 
614. This state has assumed and provided for the juris- 
diction and trial by her district courts of every oftense com.- 
mitted within her boundaries, including a murder of one 
indian by another. (Const, of Nev., Art. VL, sec. 6 ; 
1 Comp. Laws, 933, 1711, 2321.) 

J. 2\ Lamb, for Respondent : 

I. The cases cited by relator's counsel have no application 
to the case under consideration. 

n. The American indians have always sustained a peculiar 
relation to the United States and the several states of the 
Union. They are neither aliens or citizens, but independent 
tribes. In the management of their own internal affairs 
they are dependent on no power. They punish offenses 
under their own laws, and, in doing so, they are responsible 
to no power but their own. ( Worcester v. Georgia, 6 Pet. 
583, 595; Cherokee v. Georgia, 5 Pet. 7; Goodell v. Jackson^ 
20 John. 693.) The English government and the colonies 
always guaranteed the rights of the indians to self-govern- 
ment. {See the chronicles and treaties of those times.) 

in. The constitution of the United States gives the 
power to congress to regulate commerce with the indiaa 
tribes. (Art. I, sec. 8.) 



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Oct. 1883.] State v. McKbnney. 187 



Opinion of the Court — Leonard, J, 



IV. The courts of the United States cannot punish the 
crimes of Indians committed against other indiaus. (Inter- 
course act of 1834, sec. 25; Rev. Stat. sees. 2145, 2146.) 

V. The rights of indians to self-government are not im- 
paired by the statutes relating to territories. (Rev. Stat, 
sec. 1839.) 

By the Court, Leonard, J. : 

Relator seeks by mandamus to compel respondent to pro- 
ceed to the trial of a Shoshone indian named Spanish Jim, 
for the alleged murder of an indian girl in the town of 
Belmont, in Nye county, in March, 1883. Respondent 
admits that he is the duly elected and qualified judge of the 
fifth judicial district court; that said alleged crime was 
committed within the jurisdiction of said court, if at all ; 
that the said Spanish Jim has been indicted by a lawful 
grand jury of Nye county, charged with the crime of 
murder, and that such indictment is now of record in the 
district court of the fifth judicial district, in and for Nye 
county. Respondent refuses to accept the plea of said 
Spanish Jim. or to try said cause, because the defendant is 
a Shoshone indian, born in subjection and obedience to his 
own tribal laws, and at the time the alleged ottense was 
committed was living with the Shoshone tribe or nation, in 
subjection to, and recognizing the authority of, the chiefs 
and the laws of said tribe; and the indian girl alleged to 
have been killed was a Shoshone indian, born in subjection 
and obedience to said tribal laws, and was, at the time of 
the alleged killing, living with said tribe, in subjection to, 
and recognizing the authority of, the chiefs and laws 
thereof ; that by reason of the foi*egoing facts, the fifth 
judicial district court, or judge thereof, has no jurisdiction 
of crimes committed by one indian against another when 
both are members of an organized tribe having laws for the 
government of their own internal attairs. Able arguments 
in support of relator's views of the law have been filed by 
the district attorney of Nye county, the attorney general of 
the state, and the United States district attorney for Nevada. 



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188 State v, McKenney. [Sup. Ct. 

Opinion of the Court — Leonard, J. 



We have carefully examined all the authorities cited, which 
are numerous, as well as all others which an extended re- 
search has disclosed, and will now express our views upon 
the question presented. 

Let it be remembered that what follows is intended to 
apply to the case before us, where one Indian belonging to 
a tribe which is recognized and treated with as such by the 
government, having its chief and tribal laws, is accused of 
killing another of the same tribe ; and let it be borne in 
mind, especially, that what we say does not refer to a case 
where one indian injures the person or property of another 
not an indian, or rice vernd. It does not refer to a case 
where an indian leaves his tribe and joins the whites. We 
entertain no doubt that the sUite courts, if any, have exclu- 
sive jurisdiction. In 1864 congress passed an act author- 
izing the inhabitants of that portion of the territory of 
Nevada described therein, to form for themselves, out of 
said territory, a state government, and providing that said 
state, when formed, should be admitted into the Union 
"upon an equal footing with the original states in ail 
respects whatsoever.*' (Enabling act of congress, 13 Stat, 
at Large, 30.) The state was formed in pursuance of the 
provisions of the enabling act upon an equal footing with 
the original states. Upon these facts, the United States 
courts, at least, have not jurisdiction. ( U, S, v. Ward^ 
McCahon 199 ; U. IS. v. Ward, Woolw. 21 ; U. S. v. Yel- 
loio Su7i, 1 Dill. 272 ; (7, S. v. Cisna, 1 McLean 254 ; U. S. 
V. Siahl, 1 Woolw. 192 ; D. S. v. Martin, 8 Saw. 473 ; U. 
IS. V. Bridlemaii, 7 Saw. 243 ; U. S. v. MeBrat7iei/, 104 U. 
S. 621 ; U. S. V. Leathers, 6 Saw. 17.) 

Nor have we any doubt, should such a course be deemed 
advisable by the legislature, that the state courts may be 
given jurisdiction over crimes committed by one indian 
against the person or property of another indian, by extend- 
ing the criminal laws over them. {Caldfvell v. State, 1 Stew. 
& P. (Ala.) 327 ; State v. Foreman, 8 Yei-g. 256 ; U. S. v. 
Yellow Sun, supra; State v. 7 assets, Dudley, (Ga.) 229.) 

This, then, is the principal question presented for our con 



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Oct. 1883.] State i\ McKbnney. 189 



Opinion of the Court — Leonard, J. 



sideration : Do our general laws upon crimes and their pun- 
ishments apply, or were they intended to apply, to indians in 
the situation of the accused ; or is it true that indians so 
situated are not amenable to those laws until they are made 
so by an affirmative act of the stUte legislature ? Although a 
state has the right and power to take jurisdiction in a given 
case, it cannot be exercised by courts, except in pursuance 
of a provision of the constitution that is self-acting, or an 
act passed by the legislature. The dnty of courts is to ex- 
pound and enforce laws. They cannot make them. Is 
there any law of this state to which the accused is amena- 
ble for the ofliense charged ? There is no statute extending 
the criminal laws over the indian tribes, or the individuals 
thereof. The statute under which the indictment was 
found is the general act concerning crimes and punishments, 
{Stat. 1861, 58,) which is as follows : '' Murder is the un- 
lawful killing of a human being with malice aforethought, 
either express or implied. Every person convicted of 
murder of the first degree shall suffer death, and every 
person convicted of murder of the second degree shall suffer 
imprisonment in the state prison for a term not less than ten 
years and which may be extended for life." 

An indian is a human being and a person. The indian 
girl alleged to have been murdered was a human being, and 
the accused is a person. If we stick to the letter of the law 
we must find that the fifth judicial district court has juris- 
diction. Our duty, however, is to ascertain the intention 
of the legislature in passing this law. In doing this we 
must follow certain well settled rules of construction that are 
peculiarly applicable to the present case. ^' The court 
should put itself in the position of the legislature — stand, in 
contemplating the statute, where the makers stood — the 
better to discover the reason and scope of the provision. 
They who voted for the measure must have had in mind a 
meaning for the enacted words ; and the meaning thus per- 
ceived must be given them by the court. If the statute is 
old, or if it is modern, the court should transport itself back 
to the time when it was framed, consider the condition of 



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190 State v, McKenney. [Sup. Ct« 



Opinion of the Court — Leonard, J. 



thiugs then existing, and give it the meaning which the 
language, as then used, and the other considerations, require. 
The court knowing the present law, knows also its history 
and the prior law. Such prior law, the legislature, being 
presumed to know it, must have had in mind in enacting 
the statute ; therefore, in the construction, the court should 
take it into account. * * * They do not close their 
eyes to what they know of the history of the country and 
of the law, of the condition of the law at the particular 
time, of the public necessity felt, and other like things. 
* * * (Bish. Writ. Laws, sec. Ibeiseq.) The exercise 
of even doubtful power will not be attributed to the legis- 
lature ; therefore, construction will lean against it. (Id. 
82.) The courts will presume the legislature intended its 
acts to be reasonable, constitutional and just ; and when 
possible, consistently with any fair rendering of the words, 
will 80 construe them as not to make them otherwise. But 
this rule will not be carried to the extent of giving the 
enactment a meaning plainly repugnant to its terms." (Id. 
90.) 

The last sentence quoted is explained by the author under 
section one hundred and forty-five, where he says : " Inter- 
pretation cannot, without sufficient indication in the words 
employed, aided by such surroundings as the law permits 
the court to look into, import words into the statute." 

Says the Court in U. S. v. Kirbi/, 7 Wall. 482: ^'All 
laws should receive a sensible construction. General terms 
should be so limited in their application as not to lead to 
injustice, oppression, or an absurd consequence. It will 
always, therefore, be presumed that the legislature intended 
exceptions to its language which would avoid results of this 
character. The reason of the law in such cases should pre- 
vail over the letter. The common sense of man approves 
the judgment mentioned by Puftendorf, that the Bolognian 
law, which enacted 'that whoever drew blood in the streets 
should be punished with the utmost severity,' did not 
extend to the surgeon who opened the vein of a person that 
fell down in the street in a fit. The same common sense 



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Oct. 1883.] State r. McKbnney. 191 



Opinion of the Court — Leonard, J. 



accepts the ruling cited by Plowden, that the statute of 1 
Edward 11. , which enacts that a prisoner who breaks prison 
shall be guilty of felony, does not extend to a prisoner 
who breaks out when the prison is on fire, ' for he is not to 
be hanged because he would not stay to be burnt.' " 

Tested by the above and other well settled rules of con- 
struction, let us endeavor to ascertain whether in the 
passage of the general criminal statute under which the 
accused was indicted, the territorial legislature intended to 
include within its scope indians in his situation. If we find 
that such intention did not exist, then it will not be neces- 
sary to consider the question of power on the part of the 
legislature to do so, except so far as an examination of the 
latter question may assist us in arriving at a proper solution 
of the former. If the legislature did not intend to legislate 
concerning acts committed by one tribal indian against 
another, then the courts of this state have not jurisdiction 
of the present case, unless by the constitution, or some sub- 
sequent legislation, jurisdiction has been extended so as to 
include it. In other words, unaffected by any valid subse- 
quent proceeding giving jurisdiction if the legislature of 
1861 did not so intend, the statute must be construed as 
though indians like the accused had been excepted in 
terms. The indian question was deemed of such import- 
ance by congress, when Nevada was admitted as a territory 
in March, 1861, that in the organic act it was provided, 
''* * * that nothing in this act contained shall be 
construed to impair the rights of person or property now 
pertaining to the indians in said territory, so long as such 
rights shall remain unextinguished by treaty between the 
United States and such indians ; * * * or to affect the 
authority of the government of the United States to make 
any regulations respecting such indians, their lands, prop- 
erty or other rights, by treaty, law or otherwise, which it 
would have been competent for the government to make if this 
act had never been passed." It also provided that the 
governor of the territory should perform the duties and 
receive the emoluments of the superintendent of indian 



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192 State i\ McKenney. [Sup. Ct 

opinion of the Court — Leonard, J. 

aftkirs ; that the several counties should have representa- 
tives ill the legislature in the ratio of their population, 
' ' indians excepted. ' ' 

Section 6 provided that the legislative power of the ter- 
ritory should extend to all rightful subjects of legislation 
consistent with the provisions of that act ; and by section 16 
it was provided that the constitution and all laws of the 
United States which were not locally inapplicable, should 
have the same force and eftect within the territory as else- 
where within the United States. 

The conditions stated in the organic act were accepted by 
the territory, and the legislature had no right to pass laws 
in violation of their spirit. Courts must presume there was 
no intention to do so. Examining the organic act, we call 
attention, first, to the provision retaining the authority in 
the government to make any regulations respecting the 
indians in the territory, their lands, property, or other 
rights, by treaty, law, or otherwise, which it could have 
made if the act had not been passed, or, in other words, if 
the territory had not been organized. Expressed in a few 
words, the government, in terms, retained the right to con- 
duct indian affairs, among themselves at least, in its own 
way, as has been its custom in forming temporary govern- 
ments, as it was bound to do under the law. (U. S. Rev. 
Stats, sees. 1839, 1840.) If this power was retained as 
stated, it need not be said that the territory did not i)Ossess 
it. It could not be in both governments at once. {The 
Kansas Indians, 5 Wall. 755.) 

It is not necessary to restate history here, in relation to 
the indian tribes. It is enough, perhaps, to say that, from 
the beginning, the government has pursued a policy con- 
cerning them that has been an exception to all other people 
of the earth. They have been its wards. We may admit 
that they might have been subjected to the same laws as 
have been passed for the government of other pei*sons, but 
such has not been the policy adopted. They claimed the 
right of self-government in matters appertaining to them- 
selves, and did not desire to become a part of the body 



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Oct. 1883.] State v. McKbnnby. 198 

Opinion of the Court— Leonard, J. 

politic. 'They have had laws and chiefs of their own mak- 
ing and choosing, and their right to have them has been 
recognized by the constitution, the laws and treaties of con- 
gress, and the decisions of courts. Such was their condi- 
tion when our organic act was passed ; and, under the cir- 
cumstances stated, if congress intended to permit the 
territory to do away with their cherished customs, to de- 
clare as to themselves what acts should constitute crimes, 
and prescribe punishments for the same, then it inserted, in 
a most important instrument, words which utterly failed to 
express its meaning. It said that all rights of person and 
property then pertaining to the indians of the territory 
should not be impaired so long as such rights should remain 
unextinguished by treaty, and that the government of the 
United States should have authority to make any regula- 
tions respecting such indians, their lands, property, or other 
rights, by treaty, law, or otherwise, which it might have 
made if the territory had not been formed. What rights 
of person and property did congress intend to preserve un- 
impaired ? Evidently not those alone which had been estab- 
lished by treaty, because all the indians in the territory 
were included in the protecting clause, and not all the tribes 
had treaty rights. So far as we are advised, the first treaty 
with the Shoshones in Nevada was concluded in 1863. Con- 
gress could not have referred to treaty rights only. It did 
not intend to guard indians against lawlessness on the pai*t 
of the territory. Surely, it could not have been considered 
necessary to provide against the commission of acts of vio- 
lence upon their persons or property, for congress was deal- 
ing with a free people, capable of governing themselves, 
possessing intelligence and humanity, which are prerequisites 
in the formation and sustainment of enlightened govern- 
ments. 

In 1870 the senate judiciary committee, of which Mr. 
Carpenter was chairman, were instructed by resolution /'to 
inquire into and report to the senate the ettect of the four- 
teenth amendment to the constitution upon the indian 
tribes of the country ; and whether, by the provisions 

Vol. XVni-25 

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194 State v. McKenney. [Sup. Ct. 

Opinion of the Courts- Leonard, J. 



thereof, the Indians are not citizens of the United States ; 
and whether thereby the various treaties heretofore existing 
between the United States and the various indian tribes are 
or are not annulled. " The report is No. 268, and is found in 
senate reports of the third session, forty- first congress. It com- 
mences by saying: "That in the opinion of your com- 
mittee the fourteenth amendment to the constitution has no 
eflect whatever upon the status of the indian tribes within 
the limits of the United States, and does not annul the 
treaties previously made between them and the United 
States. The provisions of the amendment material to this 
question are as follows : * All persons born or naturalized in 
the United States, and subject to the jurisdiction thereof ^ 
are citizens of the United States and of the states wherein 
they reside. Representation shall be apportioned among 
the several states according to their respective numbers, 
counting the whole number of persons in each state, exclud- 
ing indians not taxed.* The question is whether the indians 
are subject to the jurisdiction of the United States, within 
the meaning of this amendment, and the answer can only 
be arrived at by determining the status of the indian tribes 
at the time the amendment was adopted." 

The report is lengthy, learned and exhaustive, but we 
must content ourselves with short and unsatisfactory extracts 
therefrom. The committee say : ** The principle must now 
be recognized and acted upon, that the indians, after the 
European discovery and settlement of their domain, lost all 
sovereignty over it, retaining only the right of occupancy 
until their title should in some way be extinguished, and 
the right to regulate, without question, their domestic 
aflkirs, and make and administer their own laws, provided, 
in the exercise of such right, they should not endanger the 
safety of the governments established by civilized man. 
Beyond this limit the pretensions of European settlers never 
extended; but to this extent the principle referred to was 
recognized and enforced; and although the indians were 
thus overshadowed by the assumed sovereignty of the 
whites, it was never claimed or pretended that they had 



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Oct. 1883.] State v. McKbnnby. 195 

Opinion of the Court— Leonard, J. 



lost their respective nationalities, their right to govern 
themselves, the immunity which belongs to nations in the 
conduct of war, or any other attribute of a separate political 
community.'* 

They then quote from treaties, acts of congress, and 
decisions of United States and state couii;s, to prove that the 
policy of our government has been the same, and say : '* In 
the opinion of your committee the constitution and the 
treaties, acts of congress, and judicial decisions, above re- 
ferred to, all speak the same language upon this subject, 
and all point to the conclusion that the Indians, in tribal 
condition, have never been subject to the jurisdiction of the 
United States, in the sense in which the term jurisdiction 
is employed in the fourteenth amendment to the constitu- 
tion. The government has asserted a political supremacy 
over the Indians, and the treaties and laws quoted from, 
present these tribes as ' domestic, dependent nations,' sep- 
arated from the states of the Union, within whose limits they 
are located, and exempt from the operation of state laws, 
and not otherwise subject to the control of the United States 
than is consistent with their character as separate political 
communities or states. Their right of self-government, and 
to administer justice among themselves, after their rude 
fashion, even to the extent of inflicting the death penalty, 
has never been questioned; and while the United States 
have provided by law for the punishment of crimes com- 
mitted by indians upon white men lawfully within the res- 
ervations, the government has carefully abstained from 
attempting to regulate their domestic attairs, and from pun- 
ishing crimes committed by one indian against another in 
the indian country. Volumes of treaties, acts of congress, 
almost without number, the solemn adjudications of the 
highest tribunal of the republic, and the universal opinion 
of our statesmen and people, have united to exempt the in- 
dian, being a member of a tribe recognized by, and having 
treaty relations with, the United States, from the operation 
of our laws and the jurisdiction of our courts. Whenever 
we have dealt with them it has been in their collective 



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19G State v. McKenney. [Sup. Ct. 



opinion of the Court— Leonard, J. 



capacity as a state, and not with their individual members, 
except when such members were separated from the tribe 
to which they belonged ; and then we have asserted such 
jurisdiction as every nation exercises over the subjects of 
another independent sovereign nation entering its territory 
and violating its laws/' 

And in report No. 367, forty-third congress, first session, 
the committee on Indian aftairs, to whom was referred the 
bill conferring exclusive jurisdiction upon the United States 
couits, and for the punishment of crimes committed by and 
against indians, reported as follows :*«*** That it 
is doubtful whether congress has power to confer exclusive 
jurisdiction upon the courts of the United States over indian 
reservations within the several states without their cfonsent. 
This difficulty does not exist in the territories where the 
authority is ample and undisputed. * * * Your com- 
mittee are further of opinion that the attempt to confer 
jurisdiction upon the courts of the United States, over 
offenses committed by one indian against the person or 
property of another, might lead to interminable litigation, 
and subject the government to great difficulty and expense 
in the determination of disputes which could more readily 
be adjusted by the agents and superintendents having the 
indians in charge. The indians, while their tribal rela- 
tions subsist, generally maintain laws, customs, and usages 
of their own for the punishment of offenses. They have 
no knowledge of the laws of the United States, and the at- 
tempt to enforce their own ordinances might bring them in 
direct conflict with existing statutes, and subject them to 
prosecutions for their violation.'' (See, also, 2 Story Const, 
sec. 1933.) 

Mr. Wharton, in his Conflict of Laws, under the head of 
^'Adoption in a North American Indian Tribe," (sec. 252) 
says: "He (the person adopted) may be indicted, it is 
true, in state or territorial courts, for crimes committed by 
him on persons not of his tribe ; but for offenses against 
members of his tribe, he is only justiciable before the tribal 
authorities. So far as concerns his domestic relations, he is 



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Oct. 1883.] State v. McKbnnky. 197 



Opinion of the Court— Leonard, J. 



governed not by territorial, but by tribal law. * * * In 
short, while he retains his subjection to the territorial gov- 
ernment (state or federal, as the case may be) in all that re- 
lates to transactions outside of the tribe ; so far as concerns 
transactions within the tribe, his allegiance is to the tribe, 
and he is governed exclusively by tribal law." 

The organic act for Idaho territory is precisely like ours 
upon this question. It contains the same provisos for the 
protection of indian rights ; the retention of the right of the 
government to make any regulations respecting the indians, 
their lands, property, or other rights; and also that no 
territory shall be included therein, which by treaty with 
an}' indian tribe, is not, without consent of the tribe, to be 
included within the territorial limits or jurisdiction of any 
state or territory. 

In Langford v. Mojiteith, 102 U. S. 147, after referring 
to the organic act, the court said : ''This court, in Hark- 
ness V. Hi/de, 98 U. S. 476, relying upon an imperfect ex- 
tract found in the brief of counsel, inadvertently inferred 
that the treaty with the. Shoshones, like that with the 
Shawuees, contains a clause excluding the lands of the tribe 
from territorial or state jurisdiction. In this, it seems, we 
were laboring under a mistake. Where no such clause or 
language equivalent to it is found in a treaty with indians 
within the exterior limits of Idaho, the lands held by them 
are a part of the territory and subject to its jurisdiction ; so 
that process may run there, however the indians themselves may 
be exempt from that jurisdiction,'' The italics are ours. 

In Boyer v. Dively, 58 Mo. 529, the court say: "The 
constitution of the United States, and the statutes passed in 
pursuance thereof, undoubtedly recognized the indian tribes 
as a peculiar people, having relations to the government 
totally difterent from citizens of the states. Although lo- 
cated within the state lines, yet, so long as their tribal cus- 
toms are adhered to, and the federal government manages 
their aftairs by agents, they are not regarded as subject to 
the state laws, so far, at least, as marriage, inheritiince, etc., 
are concerned. * * * The customs and laws of the 



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198 State v. McKbnnby. [Sup. Ct. 

Opinion of the CJourt — Leonard, J. 



indian^, then, prevailed among the remnants of tribes in 
1829 and 1830, and would continue unless positively changed 
by the legislature of the state. No such legislation was 
attempted, and it is useless to inquire if it had been, whether 
it would have been valid.'' 

To the same effect are Wall v. Williamson, 8 Ala. (N. S.) 
51 ; Jones v. Laney, 2 Tex. 348. See, also, Fisher v. 
Allen, 2 How. (Miss.) 611; Dole v. Irish, 2 Barb. 642; 
Morgan v. McGhee, 5 Humph. 14. 

Again, the governor, by the organic act, was made 
superintendent of Indian aliairs throughout the territor3\ 
Under the law he performed such duties as were, or might 
be, assigned to him. (U. S. Rev. Stat. sec. 2050.) There 
were indian agencies in the territory. The limits of each 
agency was established by the secretary of the interior, 
either by tribes or geographical boundaries. (Id. sec. 
2066.) It was each agent's duty, within his agency, to 
manage and superintend the intercourse with indians 
agreeably to law, and execute and perform such regulations 
and duties, not inconsistent with law, as might be pre- 
scribed by the president, secretary of the intei'ior, the com- 
missioner of indian attUira, or the superintendent of indian 
attaii^s. (Id. sec. 2058.) The president was empowered to 
discontinue any agency, or transfer it to such other place or 
tribe, as the public service might require. (Id. sec. 2059.) 
All persons employed in indian affairs were prohibited from 
having any interest or concern in any trade with the Indians, 
except for, or on account of, the United States. (Id. sec. 
2078. See, also, section 1840.) Without making further 
references or quotations, we have shown, we think, that 
upon the admission of Nevada as a territory, the United 
States did not intend to yield or divide its authority over 
the indians in th-eir domestic affairs; that the territorial 
legislature had no right to exercise it, and the presumption 
is that it did not intend to do so. That there was no such 
intent, is indicated by the history of the country at the time 
and subsequently. 

In 1861 the indians heie were savages in name and fact. 



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Oct. 1888.] State r. McKennby. 199 



Opinion of the Court — Leonard, J. 



They were entirely unacquainted with the laws of civilized 
countries. They were governed by their own. Their 
wishes were not consulted in the making or execution of 
the laws. They eked out a miserable existence by hunt- 
ing, fishing, begging, and sometimes steaUng. They 
neither wanted, nor had intercourse with the whites. Some 
were peaceable, others aggressive and warlike. At times, 
subsequent to the passage of the crimes act, they stole bands 
of cattle and drove them away. They killed inoftensive 
white men. For these acts even, they were not appre- 
hended and dealt with according to our laws, so far as we 
know, although they might have been. See memorial to 
congress by the legislature of 1862, (Stat. 1862, p. 196.) 
It admits of serious doubt, at least, whether it would be 
good policy even now to subject indians, as to their own 
matters, to our laws ; but it would be less open to objection 
now than it would have been in 1861. To have done so 
then would have been ** cruel and absurd.'' (Whart. Confl. 
Laws, sec. 9.) 

Mr. Otis, in his book on the Indian Question, published 
in 1878, concludes that we should sweep away the tribal 
organizations, and subject the indians to territorial law. 
But he admits that the codes of civilized states will not 
answer for this purpose. Commenting on his conclusions, 
Mr. Wharton, in a note at section 258, says: *' Waiving 
the question of our right to destroy, under the constitution, 
tribal sovereignty, it will be a task exceedingly difficult to 
frame a code to which indians can be properly subjected.'* 

It is a well known fact that from 1861 to the present 
time, as to crimes committed against each other, indians 
have not been subjected to our criminal laws. Eleven legis- 
latures have met without endeavoring to change the prac- 
tice. If petitioner's theory is correct, is it not strange that 
daring all these years courts and grand juries have neglected 
to perform a sworn duty ? Is it not rational, at least, to 
conclude that their understanding has been that the general 
criminal laws were not intended to apply to such cases ? 
And, if this is so, should not the contemporaneous and 



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200 Statb v. McKbnnby. [Sup. C^. 

m — • " 

Opinion of the Ck)urt— Leonard, J. 

continuous construction of the statute by courts, grand 
juries, and legislatures, have great weight with courts in 
deciding the question now before us? The Shoshone 
indians, like other tribes, had and have their own laws and 
customs in constant exercise in relation to marriage and 
divorce. Polygamy is common among them. If so in- 
clined they may have as many wives as their circumstances 
justify. (1 Bancroft's Native Races, 436.) Did the legis- 
lature of 1861 intend to bring them within the laws of mar- . 
riage and divorce, husband and wife, and bigamy ? We 
cannot think so. Our opinion is that congress intended to, 
and did, protect the indians in the right, then pertaining to 
them, of self-government in their domestic aftUirs. At any 
rate, as to any follies among themselves, or crimes com- 
mitted by one against another, it proposed to pursue its 
own course, in its own way. The territory had a right to 
subject tribal indians, like other persons, to punishment for 
crimes against its own citizens. (Whart. Confl. Laws, 
252.) This was necessary for its own protection, and the 
organic act did not forbid its exercise. Their right to self- 
government did not extend beyond acts among themselves- 
Undoubtedly, as before stated, the words of the statute 
under consideration are broad enough to include tribal in- 
dians; but the words •'* all" and '* every** are often 
restrained in meaning by their context or by the general 
object of the provision. (Bish. Writ. Laws, sec. 102.) 

Li Phillips V. State, 16 Ga. 519, it is said : '<True, it 
(the statute) says that in all cases where a levy is made, 
etc. One is amazed, in casting a glance over our statute 
book, to find how often this form of expression occurs, fre- 
quently signifying, as here, not absolutely all, but all of a 
particular class only. Indeed, it seems to be common to all 
writings, lay as well as legal, sacred as well as profane. And 
the generality of the phrase is frequently' to be restrained 
in the act, not only by the context, but by the general form 
and scheme of the statute, as demonstrative of the inten- 
tion of the legislature. Here it means, in all cases where 
the claimant is in possession of the property he shall 



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Oct. 1888.] State v. MgEen:ney. 201 

Opinion of the Court— Iieonard, J. 

not be deprived of it, but it shall be left with him," 
Without quoting therefrom, we make particular reference 
in this connection to Kennedy v. GieSy 25 Mich. 84 ; and 
see Dano v. M. 0. ^ B. R. Go. 27 Ark. 665. 

Here the word '* every,'* as used in the general crimes 
statute of 1861, as to their domestic affairs, should not be 
held to include indians living in tribes recognized by the 
government and under the dominion of tribal laws. It is 
now necessary to consider whether or not the law remained 
the same at the time of the alleged homicide in this case. 
We have seen that the statute under which the indictment 
was found remains as it was when passed, and that we have 
no statute extending the laws of the state, civil or criminal, 
over the indians. At most, to the above statement, there 
is, so far as we know, but one exception, and that is the 
statute of 1881, (page 29,) permitting all persons of sound 
mind to become witnesses. It must be true, then, that 
prior to the adoption of our constitution, the criminal laws 
did not embrace offenses charged against indians in the sit- 
uation of the accused. Wa« any change wrought by the 
constitution ? Section 2 of article XVII provides that *' all 
laws of the territory in force at the time of the admission 
of this state, not repugnant to this constitution, shall remain 
in force until they expire by their own limitations, or be 
altered or repealed by the legislature." The laws men- 
tioned were to remain in force. They continued as they 
then were, having the same scope, force and effect ; and 
there is no repugnancy between the statute as we interpret 
it and the constitution. There is nothing in the constitu- 
tion indicating a desire on the part of the framers to bring 
tribal indians within the purview of the crimes act. They 
knew that the domestic affairs of indians had not been in- 
terfered with under the territorial government, and they 
expressed no dissatisfaction thereat ; but, on the contrary, 
they said this statute should remain in force until the legis- 
lature should change it. And should we look into the con- 
stitutional debates we should find nothing indicating such a 
desire. But, see Const. Deb. 145. Nor has anything been 

Vol. XVIII-26 r^ ^^^T^ 

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202 Statb v. McKbnney. [Sop. Ct 

Opinion of the Court — Leonard, J. 

done by the state legislature aftecting the crimes act. In 
1878, the legislature authorized ceilain state officers to con- 
tract for the purchase of Bonnifield & Healy's compilation. 
The object and eftect of the compilation were, merely, to 
collect and arrange in convenient form the statutes then in 
force. No legislative action was taken upon each law con- 
tained therein, or upon the whole as collected and arranged. 
This is evident from the compiler's preface, the arrange- 
ments of the statutes, and the law authorizing a purchase. 
(Comp. Laws 4240.) Such has been the undei^standing of 
courts and attorneys and it is correct. Constant reference 
is still made in practice to diflFerent statutes prior to 1873, 
as well as to the compiled laws. 

Before closing this opinion it is proper to consider certain 
decisions relied on by counsel for petitioner in support of 
this application. With one exception, none of them will 
b^ found to conflict with this opinion. The many cases 
cited wherein indians were accused of committing crimes 
against white men, or the reverse, are not in point, of 
course, and in reading them this fact must be kept in mind. 
In passing, let us remark that if, under the facts of this 
case, the theory of petitioner is correct, it is a little strange 
that in all the books, in the multitude of cases that have 
arisen out of the indian question, only four have been found, 
by the industry of court and counsel, wbere one indian has 
been prosecuted for an act committed against the person or 
property of another. 

The first is an able and exhaustive opinion in State v. 
Foreman^ 8 Yerg. 256 ; but there is nothing in that which 
conflicts with the views here expressed. The state of Ten- 
nessee was admitted into the Union in 1796, *'on an equal 
footing with the original states in all respects whatsoever." 
In 1833 the legislature extended the civil jurisdiction of 
several counties, so as, by the extension of the limits thereof, 
to include the country within the occupancy of the Chero- 
kee indians which lay within the l>oundaries of the state. 
The statute also gave the courts jurisdiction of three crimes 
committed within the indian territory — murder, rape and 



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Oct. 1883.] Statb v. McKennby. 203 



Opinion of the Court— Leonard, J. 



larceny ; but allowed to the indians their usages and customs 
in all other respects. The question before the court was, 
whether the state legislature had power, under the treaties 
and laws of the United States, to pass the statute, and the 
court held that it had. There, there was a state law which, 
in terms, extended the state's jurisdiction over the indians 
in a state admitted on an equal footing with the original 
thirteen, without any restrictions in the act of admission. 
Here, there is no such law, and the general law was not in- 
tended to include tribal indians, like the accused. That 
case would be authority if our state legislature had ex- 
tended the territorial crimes act, and the validity of the 
extending statute was now questioned. 

In State V. Tassels^ Dudley, (6a.) the, facts were the same 
substantially as in Foreman's case. It simply involved the 
validity of an act of the state of Georgia, one of the origi- 
nal thirteen, extending the laws of the state over the ter- 
ritory inhabited by the Cherokee indians and the indians 
themselves. (See The Cherokee Nation v. Georgia^ 5 Pet. 
1, and Worcester v. State of Georgia^ 6 Pet. 615.)' 

In State v. Ta-cha-na-tah^ 64 M. C. 614, the defendant, a 
Cherokee, was convicted of manslaughter in 1870, for kill- 
ing another indiau, and the supreme court held that Chero- 
kee indians were subject to the criminal laws of the state. 
The point was disposed of in these few words: '•^ Prima 
facie^ all persons within the state are subject to the criminal 
laws and within the jurisdiction of the courts ; if any ex- 
ception exists it must be shown. On examination of the 
treaty of New Echotah, Georgia, on the twenty-ninth of 
December, 1835, between the United States and the Chero- 
kee indians, we find that by article XII, it was provided that 
individuals and families who were averse to moving west of 
the Mississippi river, might remain and become citizens of 
the states where they resided. Our civil laws have been 
extended over these indians, at least, ever since 1838, (Rev. 
Code, ch. 50, sec. 16,) and this statute applies as well where 
the contract is between two indians as where one of the 
parties is white. {Lovingood. v. Smithy 7 Jones 601.) 

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204 State v. McKbnnby. [Sup. Ct 

Opinion of the CSourt— Leonard, J. 

Unless expressly excepted, our laws apply equally to all 
persons, irrespective of race/' 

North Carolina was one of the original thirteen. When 
the revised code of that state was passed in 1838, under which 
the defendant was convicted, (Rev. Code, 203, 619,) the 
state had, power, we presume, to include Indians within the 
scope of its laws. No facts are stated showing that the 
legislature did not intend to do so ; but, on the contrary, 
section 16, chapter 50, referred to in the opinion, shows 
affirmatively that contracts with indians, and between in- 
dians, might be enforced if made in writing and subscribed 
by two witnesses. In 1838 the state was old, and the 
Cherokees were intelligent in comparison with our indians 
in 1861, or now. If the legislature of this state, having the 
right so to do, should now pass a crimes act, like the one in 
force, we might hesitate, at least, before declaring that the 
general words were not intended to include all persons. 
But, in ascertaining the legislative intent in enacting a law, 
there is a marked distinction between a statute passed when 
the legislative power so to do is unrestricted, and a similar 
one enacted while that power is curtailed. In one case the 
words used would be construed, ordinarily, according to 
their natural import, while, in the other it would be pre- 
sumed, if possible, that the legislature did not intend to 
violate in spirit or letter the restricting provisions. The 
organic act provides that no tax shall be imposed upon the 
property of the United States. The legislature of 1861, in 
the revenue law, excepted such property from taxation. 
But if it had not done so, courts must have presumed that, 
in using the words " all property * * * shall be subject 
to taxation," it was not intended to tax the property of the 
United States, because such action would have been illegal. 
We do not think the North Carolina decision, rendered 
under the circumstances stated, militates against our 'vdews. 
The same is true of State v. Doxtater^ 47 Wis. 278. 
Restrictions substantially like those in our organic act 
concerning indians, were placed upon Wisconsin when 
a territory, but they were taken ofi* by the act ad- 



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Oct. 1883.] State v. McKbnnby. 205 

Opinion of the Court — Leonard, J. 

mitting the state in 1846. In 1849 the state legislature 
repealed the territorial crimes act, and passed the one 
contained in the revised statutes of Wisconsin for 1849. 
(See pages 682, 747.) Besides, in Doxtaier's case, although 
he was an Indian, the woman with whom he was accused of 
committing the crime charged, was a white person. 

It must be conceded that the conclusion reached by the 
court in Hunt v. State, 4 Kan. 60, decided in 1866, (before 
the decisions in the Kansas Indian Oases, 5 Wall. 736,) is 
opposed to ours. In that case the defendant, a member of 
the Wea tribe, killed another member of the same tribe. 
This tribe, with others constituting what were known as the 
'' United Tribes,'* had a tribal government, and maintained 
treaty relations with the United States. The organic act 
admitting the territory of Kansas in 1854, as well as the act 
of admission as a state in 1861, contained provisos substan- 
tially like those concerning Indians in our organic act, 
although the last-named act also declared that Kansas was ad- 
mitted into the Union on " an equal footing with the original 
states.*' The statute under which Hunt was convicted was 
a general law enacted by the territorial legislature, and the 
constitution contained a provision continuing territorial laws 
in force until they should expire by limitation, or be re- 
pealed by the state legislature. In 1860 all Indians in Kan- 
sas territory to whom lands had been set apart in severalty 
or by families, and who had received patents therefor from 
the United States, were, by legislative enactment, declared 
to be citizens of the territory ; provided, nothing in said act 
should be construed as conferring the right of suttrage on 
any indian. They were, however, authorized to sue and be 
sued in all courts of law and equity. (Acts of 1860, ch. 74.) 
The Wea indians held their lands as stated in this statute. 
(Kansas Indians, 5 Wall. 757.) To what extent, if any, 
the statute referred to, influenced the court, we are unable 
to say. But at any rate the decision was based solely upon 
the proposition that indians, even as to acts affecting them- 
selves only, were subject to the general criminal laws of the 
state, just like people coming from foreign countries like 



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206 State v. McKbnnby. [Sup. Ct. 

opinion of the Court— Leonard, J. 

France, Spain and Portugal. With all respect to the 
learned tribunal that rendered the decision, we suggest that 
whether this proposition is true or not, depends upon many 
facts and circumstances before referred to, which apparently 
were not considered, and certainly not discussed. 

In the case of Blue Jacket v. ComWs Johnson Co., 3 Kan. 
299, the court decided that lands held by the Kansas In- 
dians, including the Wea tribe, in severalty, under patents 
from the government, were taxable. The case went to the 
United States supreme court, where the judgment of the 
state court was reversed. {2^ he Kansas Indians^ supra,) 
This decision is referred to in Doxiater's case^ supra^ where 
the court say: *' There is, perhaps, some general lan- 
guage used by Justice Davis in his opinion in the case of 
The Kansas Indians^ which seems to be in conflict with 
the opinion above expressed; but this was a case simply 
involving the right of the state of Kansas to tax the lands 
of these indians, and the only point decided was that, the 
state had no right^ under the treaties with these indians, 
to tax their lands, and what was said outside of this ques- 
tion was obiter^ and entitled only to that respectful consid- 
eration which the opinion of the learned and experienced 
judge demands of the court. The conclusion that indian 
lands are not subject to taxation by the state, does not, by 
any means, prove that indians themselves may not be sub- 
ject to its criminal laws." 

We admit that the only question befoi'e the court was, 
whether the lands held in severalty by the united tribes, 
under patents from the government, could be taxed. But, 
in solving this question, the court was compelled to con- 
sider, and did consider, the condition of the tribes, their 
tribal rights under and outside of treaties, and the rights of 
the state under the act of admission. What the court said 
of the status of tribal indians, (page 755,) regardless of the 
guarantees of any treaty, was by no means outside of the 
case. It was stating a second reason why the indians in 
Kansas could not be taxed. The case shows that there had 
been two treaties with the indians ; that of 1831, which pro- 



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Oct. 1883.] State v. MoKbnnbt. 207 

Opinion of the Court— Leonard, J. 

vided that their lands should never be included within the 
boundaries of any state or territory, or subject to its laws, 
(page 739,) and that of 1854, which was silent upon this 
point (page 753.) We quote from the opinion: "Prior to 
the ratification of this treaty, (1854,) although not before it 
was signed, the organic act for the territory of Kansas was 
passed, and on the twenty-ninth of January, 1861, Kansas 
was admitted into the Union ; but the rights of the indians, 
the power of congress over them, their lands and property, 
and the stipulations of treaties, were fully preserved and in 
the same words, both in the organic act and the act of 
admission of Kansas. * * * It is insisted, as the 
guarantees of the treaty of 1831 are not in express words re- 
affirmed in the treaty of 1854, they are, therefore, abro- 
gated, and that the division of the Indian territory into 
separate estates so changes the status of the indians that the 
property of those who hold in severalty is liable to taxation. 
It is conceded that those who held in common cannot be 
taxed.** 

The court then expresses the opinion that it could not 
have been in the contemplation of the parties that such a 
distinction should exist, and says : "But it is not necessary 
to import the guarantees of the treaty of 1831 into that of 
1854, in order to save the property of the entire tribe from 
state taxation. If the necessities of the case required us to 
do so, we should hesitate to declare that, in the understand- 
ing of the parties, the promises under which the treaty of 
1831 were made, and the guarantees contained in it, were 
all abandoned when the treaty of 1854 was concluded. If 
the tribal organization of the Shawnees is preserved intact 
and recognized by the political department of the govern- 
ment as existing, then they are a people distinct from othere, 
capable of making treaties, separated from the jurisdiction 
of Kansas, and to be governed exclusively by the govern- 
ment of the Union. If, under the control of congress, from 
necessity, there can be no divided authority ; if they have 
outlived many things, they have not outlived the protection 
afforded by the constitution, treaties, and laws of congress. 



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208 State v. McKbnnby. [Sup. Ct 

Opinion of the Court— Leonard, J. 

It may be that they cannot exist much longer as a distinct 
people, in the presence of the civilization of Kansas ; * but 
until they are clothed with the rights, and bound to all the 
duties of citizens,' they enjoy the privilege of total immu- 
nity from state taxation. There can be no question of state 
sovereignty in the ease, as Kansas accepted her admission 
into the family of states on condition that the indian rights 
should remain unimpaired, and the general government at 
liberty to make any regulations respecting them, their lands, 
property, or other rights, which it would have been com- 
petent to make if Kansas had not been admitted into the 
Union. * * * While the general government has a 
superintending care over their interests, and continues to 
treat with them as a nation, the state of Kansas is estopped 
from denying their title to it. She accepted this status when 
she accepted the act admitting her into the Union. Con- 
ferring rights and privileges on these indians cannot affect 
their situation, which can only be changed by treaty stipu- 
lation, or a voluntary abandonment of their tribal organiza- 
tion. As long as the United States recognizes their national 
character, they are under the protection of treaties and the 
laws of congress, and their property is withdrawn from the 
operation of state laws.*' 

If by reason of the tribal organization of the Shawnees, 
recognized by the government, Kansas, under her act of ad- 
mission, could not subject their property to taxation, because 
she accepted her admission on condition that the existing 
indian rights should remain unimpaired, and the general 
government be at liberty to make any regulations respect- 
ing rights of.person and property, how can it be said that, 
under the same restrictions, rights of far greater value may 
be interfered with ? 

It is said by the United States district attorney that the 
first section of the civil rights bill (U. S. Rev. Stat. sec. 
1977) gives the state courts jurisdiction in this case, inde- 
pendently of adjudicated cases. He admits that this statute 
was passed in pursuance of, and to carry out, the provisions 
of the fourteenth amendment to the constitution. It is as 



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Oct. 1883.] Maltbr v. Falcon M. Co. 209 

Pointa decided. 

follows : **A11 persons within the jurisdiction of the United 
States shall have the same right in every state and territory 
to make and enforce contracts, to sue, be parties, give evi- 
dence, and to the full and equal benefits of all laws and 
proceedings for the security of peraons and property, as is 
enjoyed by white citizens, and shall be subject to like pun- 
ishments, pains, penalties, taxes, licenses, and exactions of 
every kind, and to no other." 

It has never been decided, and probably will not be, that 
within the meaning of the fourteenth amendment, indians 
are ''subject to the jurisdiction of the United States," and 
consequently citiaens. (See senate report, No. 268, supra.) 
This statute, passed for the purpose of carrying out the pro- 
visions of the amendment, was not intended to include per- 
sons other than those referred to in the constitution. This 
is a sufficient answer to th6 claim made, regardless of the 
recent decision of the United States supreme court upon the 
civil rights bill, which is not before us. Our opinion is that 
the fifth judicial court has not jurisdiction to try the accused. 

Mandamus denied. 



[No. 1172.] 

Q. H. MALTER et al., Appellants, v. FALCON 
MINING COMPANY, Respondent. 

Mechai^ic'b Lien— How Construed. — A mechanic's lien, although the act giv- 
ing it is to be liberally construed, is purely of statutory creation, and can 
only be maintained by a substantial observance of, and compliance with, 
the provisions of the statute. 

Idem-^0mi88I0ns in Notice— Pleadings — Evidence. — The omissions in the 
notice and claim, of a mechanic's lien, as recorded, cannot, in essential 
particulars, be aided by any averments in the complaint, or by extrinsic 
evidence. 

Idem— Name of Owner Must be Stated.— It is essential to the validity of a 
lien, under the provisions of the statute, that the name of the owner, or 
reputed owner, of the building, improvement or structure, upon which 
the lien is sought to be enforced, should be stated. If the name of the 
owner is unknown that fact ought to be stated, and the name of tlie re- 
puted owner given. These facts should be stated, independent of the 
description of the property, in a direct, clear and positive manner. 
Vol. XVm— 27 ^ t 

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210 Malter v. Falcon M. Co. [Sup. Ct. 

Argument for Appellant. 



Appeal from the District Court of the Seventh Judicial 
District, Elko County. 

The facts are stated in the opinion. 

W. K F. Deal, for Appellants : 

I. The amended complaint shows that the appellants filed 
in the recorder's oflice their claim, containing a statement 
of their demand, after deducting all just credits and offsets, 
with the name of the owner, and also the names of the 
persons by whom they were employed and to whom they 
furnished the materials, with a statement of the terms, time 
given and conditions of their contract, and also a description 
of the property to be charged with the lien sufficient for 
identification and properly verified. This was all that the 
statute required. The statement of the demand is sufficient. 
(Ski/rme v. Occidental M, ^ M, Uc,, 8 Nev. 237 ; Brennan 
V. Swasei/, 16 Cal. 142 ; Selden v. Meeks, 17 Cal. 129 ; 
Davis v. Livingston, 29 Cal. 283.) The respondent is stated 
to be the owner of the property upon which the lien is 
claimed. 

n. The property to be charged with the lien is so fully 
and particularly described that if the description were con- 
tained in a deed good in other respects it would be sufficient 
to pass the title to the mill and the land upon which it is 
built. (3 Wash, on Real Prop. 336.) 

III. The description is sufficient to identify the property, 
and the sheriff could easily levy upon the property intended 
from the description. {Hunter v. lYuckee Lodge, 14 Nev. 
30 ; Shaw v. Barnes, 5 Pa. St. 18 ; Knabb's Appeal, 10 Pa. 
St. 190 ; Donahoo v. Scott, 12 Pa. St. 48 ; Calhoun v. 
Mahon, 14 Pa. St. 58 ; Bayer v. Reeside, 14 Pa. St. 168 ; 
Fourth Baptist Church v. TVout, 28 Pa. St. 155 ; Kennedy v. 
House, 41 Pa. St. 41 ; McClintock v. Rush, 63 Pa. St. 205 ; 
City of Crawfordsville v. Boots, 76 Ind. 34 ; Endsley v. State, 
76 Ind. 468 ; City of Crawfordsville v. Johnson, 51 Ind. 398 ; 
Davis V. Livingston, 29 Cal. 289.) 



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Oct. 1883.] Malter v. Falcon M. Co. 211 

Argument for Respondent. 



Band ^ Dcrsey^ for Respondent : 

I. The plaintiffs were sub- contractors, and the complaint 
should not only show that they have a cause of action against 
the original contractors, but must show by competent alle- 
gations that plaintifta have a valid lien upon the premises 
described in the complaint, and if it fail in either particu- 
lar in this case, the judgment should be affirmed. 

n. The notice of lien shows that plaintiffs have received 
on their contract all that they are entitled to demand by the 
terms thereof, until fourteen days after the completion of 
the mill, and there is no allegation in the complaint that 
the plaintiffs have completed the mill, or that they have 
performed on their part all of the conditions of the contract, 
upon which they seek to recover. They have brought their 
action upon the contract. The contract contains a condi- 
tion precedent to entitle them to further recovery against 
the original contractors, and there is no allegation of the 
performance of the condition precedent. The demurrer on 
this ground alone should have been sustained. (1 Comp. 
Laws 1123 ; V. ^ T. E. B, Co. v. Lyon Co., 6 Nev. 68 ; 
11 N. Y. 456; 30 Cal. 486; Green's Fr. & PI. sec. 336; 
Moaks' Vansantvoord PI. 179.) 

III. One cannot rescind a contract, who, with full knowl- 
edge that it has been broken, has afterwards affirmed it by 
doing anything in recognition of its continued existence. 
(7 Greenleaf 70 ; 41 Me. 132 ; 21 Wis. 88 ; 2 Bish. on 
Cont. sees. 206, 656, 67.8.) 

IV. Sub- contractors are held to a more strict compliance 
with the letter of the statute than original contractors. (29 
Cal. 286; 54 Cal. 640; 4 Gray (Mass.) 289; 5 Dutch (N. 
J.) 415; 30 Vt. 168 ; 62 Penn. St. 417 ; 70 Id. 98 ; 21 111. 
425 ; 3 Minn. 86 ; 1 Cold. 528 ; 5 Md. 419 ; 10 Id. 257 ; 
11 Id. 81 ; 30 Conn. 461 ; Phill. on Mech. Liens, sees. 9, 
18, 21, 338, 349 ; 35 N. Y. 96.) 

V. The plaintiff must state in his notice of lien the name 
of the owner, or reputed owner, of the building, improve- 
ment or structure, if known. - (Stat. 1875, 122, sec. 5.) 



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212 Malter v. Falcon M. Co. [Sup. a. 

Opinion of the Court— Hawley, C. J. 

There is no statement in the notice, or allegation in the 
complaint, that the name of the owner, or reputed owner 
of the mill, was unknown to the plaintiffs at the time that 
they filed their notice of lien. This is a material averment. 
(43 Cal. 515 ; Phill. on Mech. Liens, sees. 345-7 ; 54 Cal. 
218 ; Id. 640.) The statement is in the alternative, and 
does not comply with the provisions of the statute. (1 
Chitt. PL 308, 535.) 

VI. The statute requires that the notice of lien shall con- 
tain a description of the property to be charged sufficient 
for identification. (Stat. 1875 p. 123, sec. 6.) The de- 
scription in the notice is insufficient (8 Cal. 346 ; 1 Penn. 
499 ; 10 Ohio 43 ; Phil, on Mech. Liens, sees. 380, 881, 
385, 390.) 

By the Court, Hawley, C. J. : 

This action was brought by appellants, as sub- contractors 
of Morey & Sperry, to foreclose a mechanics* lien against 
the Falcon Mining Company. The district court sustained 
a demurrer, interposed by respondent, to the amended com- 
plaint, dismissed the action as against it, and entered judg- 
ment in its favor for the costs. Respondent contends that 
the notice of lien attached to and made a part of the com- 
plaint does not in any respect comply with the requirements 
of section 5 of the act relating to mechanics* liens. (Stat. 
1875, 122.) We will not notice all the various objections 
urged by counsel, as we are of opinion that one of the points 
presented is fatal to appellants* claim. We have repeatedly 
declared that the act relating to mechanics* liens should be 
liberally construed ; that the spirit and purpose of the law is 
to do substantial justice to all parties who may be afltected 
by its provisions ; and that courts should i' avoid unfriendly 
strictness and mere technicality.** (Shyrme v. Occidental 
M. ^ M. Co., S Nev. 221 ; Hunter v. Truckee Lodge, 14 
Nev. 28 ; Lonkey v. Wells, 16 Nev. 274.) This rule should 
always be followed where the objections urged serve only to 
perplex and embarrass a remedy intended to be simple and 
summary, without adding anything to the security of the 



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Oct. 1883.] Maltbr v. Falcon M. Co. 213 

Opinion of the Court — Hawley, C. J. 

parties having an interest in the property sought to be 
aifected. But in following this rule, courts should always 
be careful not to impair the force of the statute or fritter 
away its meaning by construction. It must always be borne 
in mind that a mechanic's lien is purely of statutory crear 
tion, and that it can only be maintained by a substantial 
observance of, and compliance with, the provisions of the 
statute. It is *'a remedy given by law, which secures the 
preference provided for, but which does not exist, however 
equitable the claim may be, unless the party brings himself 
within the provisions of the statute, and shows a substantial 
compliance with all its essential requirements." (Phil. 
Mech. Liens, sec. 9.) Whatever is made necessary to the 
existence of the lien must be performed, or the attempt to 
create it will be futile. A substantial adherence to the 
terms of the statute in the notice of lien is indispensable. 
The omissions, if any, in the notice and claim as recorded, 
cannot, in essential particulars, be aided by any avennents 
in the complaint, or by extrinsic evidence. {Beriheolet v. 
Parker, 43 Wis. 551.) 

Under the provisions of section 5 of the act relating to 
mechanics' liens, it is, among other things, essential to the 
validity of the lien that the name of the owner, or reputed 
owner of the building, improvement, or structure, upon 
which the lien is sought to be enforced, should be stated. 
The notice of lien in this case does not substantially comply 
with this positive requirement of the statute. It declares 
that it is the intention of the claimants " to hold and claim 
a lien upon * * * that certain Rowland pulverizing 
and wet crushing and amalgamating mill, situated in Rock 
creek, on the mill-site owned or claimed by the Falcon 
.Mining Company, in Elko county, stiite of Nevada. ' ' There 
is no statement that the Falcon Mining Company is the 
owner, or the reputed owner, of the mill. The question of 
ownership is left to inference only, and the inference to be 
drawn from such a statement that the Falcon Mining Com- 
pany is the owner, or reputed owner, of the property, may 
or may not be true. It does not necessarily follow that be- 



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214 Maltkr v. Falcon M. Co. [Sup. Ct 



Opinion of the Court— Hawley, C. J. 



cause the company claims to be the owner of the mill-site, 
that it is the owner, or reputed owner, of the mill erected 
thereon. Moreover, the statement that the Falcon Mining 
Company claims to be the owner of the mill-site is appar- 
ently made for the pui'pose of giving a description of the 
property instead of designating the name of the owner. 
The description given, if intended to be a statement of the 
name of the owner, or reputed owner, of the property, is 
radically defective. 

In Beats v. Congregational B'nai Jeshurun it was stated, 
in the notice of lien, that the claim was for work done and 
performed, and materials furnished, ''for and upon the 
building known as the Jewish synagogue, situated in Greene 
street, ' ' etc. The notice also stated that one of the "owners 
is one Mark Levy. ' ' The court, after declaring that " with- 
out the name of the owner there can be no subsfcintial com- 
pliance " with the stiitute, and that the statement as to one 
of the owners was insufficient to bind the defendants, said : 
''The designation 'Jewish synagogue,' in the notice, is no 
compliance with the act, because it is not the name of the 
defendants, and because it is not stated in any manner as 
the name of the owner, nor as the name by which the 
owner is known or called. On the contrary, the language 
of the notice is explicit, and Umits these words to the de- 
scription of the building^ and does not apply it to the ownera 
at all." (1 E. D. Smith, 657.) 

In Buggy, Hoover, the lien claimant stated, in his notice, 
that "he did, at the request of one Martin Hoover, furnish 
and deliver unto said Hoover, for the furnishing * * * 
of his mill at Crookston, in the county of Polk, * * * '* 
certain mill supplies. The court, after disposing of certain 
questions, said: "There is no direct, unequivocal allega- 
tion as to the ownership" of the building. "The only 
word in the affidavit that could, by possibility, be construed 
to imply ownership is the word 'his,' used in a clause 
describing or identifying the building. * * * Jt js im- 
possible to say that its use, in the connection in which it is 
used in this affidavit, is a substantial equivalent for an alle- 
gation of ownership." (28 Minn. 407.) 

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Oct. 1888.] RicKARDs V. Hutchinson. 215 



Points decided. 

There is no direct, unequivocal allegation of the name of 
the owner, or of the reputed owner, of the property in the 
notice of lien under consideration. The question of owner- 
ship is only mentioned inferentially in giving a description 
of the property', and is there stated in the alternative. The 
statute contemplates a positive designation of the name of 
the owner, if known. {Mayes v. jRuffners, 8 W. Va. 386.) 
It only relieves a party claiming a lien from giving the 
name of the owner when it is not known to him. (Kelly v. 
lAiioSy 109 Mass. 396.) If the person claiming a lien 
" knows the name of the owner, that name must be in- 
serted ; if he only knows of a person reputed to be the 
owner, the name of such peraon, with the fact that he is so 
reputed to be the owner, must be inserted.*' {McEhoee v. 
Sandford, 53 How. Pr. 90 ; Hooper v. Flood, 54 Cal. 222.) 

The decisions upon this question are numerous and uni- 
form. (Phil. Mech. Liens, sec. 345 et seq.) They all 
declare that, where the statute requires it, the name of the 
owner, if known, must be stated ; and if the name of the 
owner is unknown, that fact ought to be stated, and the 
name of the reputed owner given. These facts ought to be 
stated, independent of the description of the property, in a 
direct, clear and positive manner. 

The judgment of the district court is affirmed. 



[No. 1175.] 

EMMA RICKARDS, Respondent, v. GEORGE R. 
HUTCHINSON, Appellant. 

Married Women— Mortgage. — A married woman who holds the title to her 
separate property may execute a mortgage thereon in lier own name. 
(Stat. 1869, IW, sec. 9.) 

Foreclosure of Mortgage — Administrator — F^states of Deceased Persons — 
Claims Against. — In an action to foreclose a mortgage after a conveyance 
of the mortgaged premises and the death of the mortgiigeor, when no judg- 
ment against the estate of the latter is asked for, it is unneccssarj'^ for the 
mortgagee to present the note and mortgage to the administrator of such 
estate for allowance. 



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216 RiGKABDS V. Hutchinson. [Sup. Ct. 

Aliment for Appellant. 



Idem— Parties to Action.— The mortgagee may maintain an action to fore- 
close the mortgage against the grantee of the mortgaged premises alone, 
without serving the administratrix, as she is not, in such cases, a necesaaiy 
party to the action. 

Idem — Statutes of Limitation — Trustee. — When a married woman, who 
holds the legal title to real estate in her own name, mortgages the same to 
a bona fide mortgagee, without notice that she holds the same in secret 
trust for another, to whom she afterwards conveys it, the right of the 
mortgagee to foreclose the mortgage is not barred, as against such grantee, 
because more than four years have elapsed since the maturity of the in- 
debtedness secured, unless the right to foreclose is barred as against the 
mortgageor. 

Idem— Counsel Fees. — The mortgage provided for the allowance of counsel 

fees "at the rate of per cent, upon the amount which may be found 

to be due for principal and interest." The court allowed one hundred and 
fourteen dollars, being twenty-five per cent, of the amount found due: 
Held, that such an allowance was authorized by the terms of the mortgage. 

On Rehearing — Statute of Limitations, Sections Sixteen and Twenty- 
three Construed. — In constniing the statute of limitations : Hdd^ that 
the mortgagee is entitled to have a person in esse, within this state, against 
whom she could bring suit, for the full period of time prescribed in section 
16 (1 Comp. Laws, 1031), and that the object of section 23 (1 Comp. Laws, 
1038) was to extend the time, in certain cases, within which actions might 
be commenced and was not intended to limit the time given by other sec- 
tions of the act. 

Appeal from the District Court of the Seventh Judicial 
District, Washoe County. 

The facts appear in the syllabus and opinion. 

Thomas E. Haydon^ for Appellant : 

I. Plaintiff's complaint does not state facts sufficient to 
constitute a cause of action, (a.) As against the adminis- 
tratrix and administrator, it fails to show any presentation 
to them, or either of them, of any claim against the estate 
of their decedent. This is a fatal error. (1 Comp. Laws 
618 ; Harp v. CaJahan, 46 Cal. 233 ; Piite v. Shipley, 46 
Cal. 161; Whitmore v. San Francisco S. U., 50 Cal. 150; 
Marsha. Dooley, 52 Cal. 235.) (6.) As plaintiff' claimed in 
her original complaint, judgment over against the estate 
the presentation was necessary ; but plaintiff' amended by 
dismissing claim for personal judgment against the estate. 
This amendment made the administratrix and administrator 



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Oct. 1883.] RicKARDs V. Hutchinson. 217 



Argument for Appellant 



improper and unnecessary parties to this suit ; and this suit 
should have been abated for misjoinder, plead in defend- 
ant's answer after such amendment. (Practice act, sees. 40, 
44 ; 2 Estee's PI. 449, note 87 ; Bliss on Code PI. sec. 102 ; 
Story's Eq. PI. sec. 197.) (c.) The representatives of Mrs. 
Wheat, deceased, were, after the deficiency was abandoned, 
no longer necessary or proper parties to this suit. {Christ}/ 
V. Dana, 84 Cal. 553 ; Sichel v. Oxrrillo, 42 Cal. 504 ; 
Schadt V. Hep-pe, 45 Cal. 437.) 

n. The complaint shows on its face that any action 
against appellant on the mortgage, is barred by the four 
years limitation. Appellant having acquired his interest in 
the mortgaged property subsequent to the mortgage, may 
invoke the aid of the statute of limitations as against the 
mortgage. [Lord v. Morris, 18 Cal. 490, 491 ; McCarthy 
V. White, 21 Cal. 496 ; Wormouth v. Hatch, 33 Cal. 126 ; 
Wood V. Good fellow, 43 Cal. 185 ; Lent v. Shear, 26 Cal. 
361 ; Grattan v. Wiggins, 23 Cal. 25 ; Coster v. Brown, 23 
Cal. 143.) The statute of limitation provides that civil ac- 
tions can only be commenced within the period prescribed 
by that act, except where a difterent limitation is prescribed 
by statute. (1 Comp. Laws. 1016.) And the statute runs 
in all cases not therein expresslj' excepted from its opera- 
tion. [Tynan v. Walker, 35 Cal. 636.) In this case there 
is absolutelj' nothing, alleged or suggested, why the statute 
does not run in favor of appellant. 

III. There are no facts stated in the complaint sufficient 
to constitute a cause of action against appellant. He is not 
shown to be in possession of the mortgaged premises ; to 
have been assignee thereof from the mortgageor." It was 
incumbent on the plaintiff to have alleged ewevy fact neces- 
sary to show a complete cause of action against the appel- 
lant ; what his title was to the mortgaged premises, when 
and how derived, that he was in possession, also alleging 
facts to show, that notwithstanding the coverture of Nancy 
L. Wheat, she had legal capacity to execute the note and 
mortgage in suit, in addition to showing a state of facts that 
would avoid the bar of the statute of limitation. Being 
Vol. XVIII— 28 r^^^^T^ 

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218 RicKARDS V. Hutchinson. [Sup. Ct. 

Argument for Respondent. 



under coverture, she could execute no notes, mortgages, or 
contract, except where expressly authorized by statute, or 
done in consonance with the trust reposed in her, that 
was, to collect rents, secure the title, and re-convey. {Beck- 
man V. Stanley, 8 Nev. 261 ; Harrison v. Brown, 16 Cal. 
289.) 

IV. The statute of limitation commenced running on this 
note and mortgage May 22, 1877, or May 25, 1877, allow- 
ing three days grace. (1 Comp. Laws 1038.) And time 
to sue expired in May, 1881. (1 Comp. Laws 1033 ; Smith 
V. Hall, 19 Cal. 86 ; Hibernia S. and L. Society v. Herbert, 
53 Cal. 378.) To bring this case within the fourth clause 
of sec. 16 (1 Comp. Laws 1031), the facts constituting a 
substantive fraud, and showing date of discovery, must have 
been alleged. {Sublette v. Tinney, 9 Cal. 424 ; Story's Eq. 
PI. sec. 484 ; Smith v. Richmond, 19 Cal. 481 ; Boyd v. 
Blankman, 29 Cal. 44-5 ; Curpentier v. City of Oakland, 80 
Gal. 444; Curry v. Allen, 34 Cal. 257.) 

William Webster and Boger Johnson, for Respondent : 

I. The action was not barred by the statute of limitations 
at the time it was commenced. The representative of the 
estate was absent from this state for about two years during 
the time the statute might have been running. No notice 
to creditors was ever given. {Quivey v. Hall, 19 Cal. 98.) 
It was not necessary for plaintifl' to show that no notice had 
been given, or to allege it in complaint. {Harp v. Calla- 
han, 46 Cal. 233.) It was not necessary to present the claim 
to administratrix for allowance if, as appellant claims, the 
properly never was assets of the estate. {Christy v. Dana, 
34 Cal. 553 ; Corbett v. Bice, 2 Nev. 330.) '' No lien against 
any estate shall be afiected by the statute of limitations 
pending the settlement of such estate.'' (1 Com. L. 668.) 
The action was not barred as against appellant. While this 
is in the nature of an action in rem, there must always be 
some person in existence who could be made a defendant in 
the action ; some one claiming the equity of redemption. 



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Oct 1883.] RicKARDs V. Hutchinson. 219 

opinion of the Court — Hawley, C. J. 



Thomas E. Uaydon^ for Appellant, on rehearing : 

Upon the question of the statute of limitation, cited the fol- 
lowing authorities: {Henry v. Confidence Co., 1 Nev. 622 ; 
Read v. Edwards^ 2 Nev. 264; Mackie v. Lansing^ 2 Nev. 302 ; 
White V. Hheldon^ 4 Nev. 293 ; Cookes v. Culbtrtson^ 9 N"ev. 
207; Basseit v. Monte Christo M. Co., 15 Nev. 300; Hi- 
bemia L. S. v. Herbert, 63 Cal. 375 ; Danglada v. De La 
Guerra, 10 Cal. 386 ; Smith v. Hall, 19 Cal. 85 ; Loioell v. 
KUr, 50 Cal. 646 ; Ang. on Lim. sec. 56 ; Rhodes v. Smeth- 
urst, 4 M. & W. 42 ; Freake v. Cranefeldt, 3 Mylne & C. 500 ; 
Pipkin V. Hewlett, 17 Ala. 291 ; Mills v. Glover, 22 Geo. 
319 ; 2 Jones on Mort. sees. 1207, 1210 ; Anderson v. Bax- 
ter^ 4 Or. 105 ; Eubanks v. Leveridge, 4 Saw. 274 ; Chris- 
tophers V. Garr, 6 N. Y. 61 ; Sanford v. Sanford, 62 N. Y. 
555 ; Pitte v. Shipley, 46 Cal. 161 ; jMar^A v. Dooley^ 52 
Cal. 234 ; Ellissen v. Halleck, 6 Cal. 386 ; Falkner v. Folsom, 
6 Cal. 412 ; £;;«5 v. Polhemus, 27 Cal. 350 ; iord v. ifoms, 
18 Cal. 482 ; Low v. Allen, 26 Cal. 141 ; Lent v. JfomZZ, 
25 Cal. 492.) 

By the Court, Hawley, C. J. : 

On the twenty-second day of May, 1876, Mrs. Nancy L. 
Wheat made, executed, and delivered to respondent her 
promissory note for three hundred dollars, payable on the 
twenty-second day of May, 1877, and, to secure the pay- 
ment of the note, gave a mortgage upon certain real estate 
situate in the town of lieno, in Washoe county. On the 
twenty-second day of March, 1879, Mrs. Wheat died in- 
testate, and on the thirty-fii'st day of May, 1879, her 
daughter, Mrs. L. C. Stiger, received letters of adminis- 
tration upon her estate and ever sinae has been the adminis- 
tratrix thereof. This action was commenced on the ninth 
day of August, 1882, against the administratrix to foreclose 
said mortgage. Appellant was made a party defendant, it 
being alleged in the complaint that he claimed an interest 
in the property and that his interest "is subsequent to and 
subject to the lien of plaintiff's mortgage.*' Although the 
administratrix is named as a party defendant, she was not 



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220 RicKARDS V. Hutchinson. [Sup. Ct. 

Opinion of tlie Court— Hawley, C. J. 

served with any process, and appellant is the only party 
appearing as a defendant. He interposed a demurrer to the 
complaint, and upon its being overruled, filed an answei\ 
Upon the argument on the demurrer respondent asked leave 
of the court, which was granted, to dismiss that part of her 
action which claimed apersonal judgment against the estate 
of Mrs. Wheat for any deficiency that might remain after 
the sale of the mortgaged premises, and the application of 
the proceeds thereof to the payment of the judgment which 
she might obtain. 

Several questions are presented by appellant, but the 
principal one raised by the demurrer and anSvver is whether 
the mortgage is. barred by the statute of limitations. (1 
Comp. Laws 1031.) Appellant claims that Mrs. Wheat, 
who was his mother, held the title to the property in her 
own name in trust for him. It appears from the evidence 
that in 1875 Charles Crocker was the owner of the land ; 
that appellant then entered into a written contract with 
Crocker for the purchase of the property ; that under this 
contract he was let into possession and improved the same ; 
that owing to anticipated troubles with his then wife, and 
expecting that she would sue him for a divorce and claim 
the premises as a homestead, he gave up his contract with 
Crocker for the purchase of the property, and. his mother 
then entered into a contract with Crocker for the purchase 
thereof in her own name. A portion of the money for 
which the note and mortgage was given was used by her 
to pay Crocker for the laud, and was so used with the 
knowledge and consent of appellant. Crocker deeded the 
land to Mrs. Wheat on the ninth day of June, 1876. On 
the third day of Decejnber, 1878, Mrs. Wheat made and 
executed a deed, in fee-simple, of the land to appellant. 
This deed, however, was never deHvered to appellant until 
the twenty-seventh of June, 1882, and was on that day filed 
for record in the office of the county recorder of Washoe 
county. 

The court, upon the trial of this cause, found, among 
other things, ''that the iuterest of said Hutchinson is sub- 
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Oct. 1883.] RicKARDS V. Hutchinson. 221 

Opinion of the Court — Hawley, C. J. 

sequent to, and subject to, plaintiff's lien ; that if said 
Nancy L. Wheat, deceased, did, as defendant claims, hold 
the aforesaid property as his (Hutchinson's) trustee, never- 
theless no trust was declared in writing previous to the 
giving of said note and mortgage ; that said trust existed, 
if at all, by virtue of a secret agreement between said 
Hutchinson and said N. L. Wheat, deceased, of which 
plaintiff had no knowledge, either actual or constructive ; 
that defendant, Hutchinson, was not in the occupancy or 
possession of said premises when said mortgage was given ; 
that the mortgage was executed to secure a bona fide loan 
for value, after the trust was created by the defendant, 
Hutchinson, and accepted by N. L. Wheat ; that no notice 
to creditors appears to have been given to the creditors of 
the estate of said Nancy L. Wheat; that the statute of 
limitation did not run against the demand of plaintiff after 
the death of said N. L. Wheat ; that the statute of limita- 
tion was not put in motion against plaintiff and in favor of 
G. R. Hutchinson, until the deed from N. L. Wheat made 
in his favor, and in which the trust was declared was 
recorded, and that the demand of plaintiff is not barred by 
the statute of limitation ; that since the appointment and 
qualification of said L. C Stiger as administratrix," she 
**has actually resided and been beyond the limits of the 
state of Nevada, except for a period of about fifteen 
months, * * * during which she has been within 
this state • * * * that at all the times mentioned 
in the complaint, said Nancy L. Wheat, deceased, was a 
married woman, but that the property mortgaged by her 
* * * was not the property of the community, but was, 
as to this plaintiff and to all the world, (except, perhaps, as 
to G. R. Hutchinson) her separate property." 

There is enough evidence in the statement on motion for 
a new trial to support these findings, and the facts found by 
the court are sufficient to sustain the conclusions of law " that 
plaintiff is entitled to a decree against George R. Hutchin- 
son for a sale of the property described in the mortgage, ' ' etc. 

Mrs. Wheat at the time of the mortgage held the title to 



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^ 222 RicKARDs V. Hutchinson. [Sup. Ot. 

Opinion of the Court— Hawley, C. J. 

the property ia her own name as her separate property, 
and, under the provisions of section 9 of the act defining 
the riglits of husband and wife, (1 Comp. Laws, 159,) she 
• had authority to execute the mortgage in her own name. 
As the respondent does not ask for any judgment against 
the estate, and as the estate has no longer any interest 
whatever in the property, it was unnecessary for her to 
present the note and mortgage to the administratrix for 
allowance. She could thereafter maintain this action 
against Hutchinson alone for the foreclosure of the mortgage 
against the property, and it was unnecessary to serve the 
administratrix as she was not after such dismissal a neces- 
sary party to the action. ( Christy v, Dana, 34 Cal. 553 ; 
Schadt v. Hepjje, 45 Cal. 438 ; Corbett v. Bice, 2 Nev. 334 ; 
Bhss, Code PL sec. 102.) 

If the statute of limitations could have been successfully 
interposed by the administratrix of the estate of Mrs. 
Wheat at the time appellant filed his deed for record, or at 
the time of the commencement of this action, there would 
not, of course, be any question as to his right to invoke the 
aid of the statute as a defense to this action ; but it is 
apparent, from the facts stated, that the action was not 
barred by the statute as against the estate, (1 Comp. Laws, 
1036,) and it is also apparent that a[>|)ellant has not brought 
himself within any rule which would entitle him to plead 
the statute in his own behalf upon any other ground. He 
was not in possession of the premises at the time the 
mortgage was given, nor at any time thereafter until 1880. 
Respondent had no knowledge of the secret trust existing 
between him and his mother, or of appellant's interest or 
claim to the property until he had his deed recorded, which 
was more than fonr years after the maturity of the note. 

The claim contended for by api>ellant, that the action as 
against him should have been brought within four years 
from the time of the maturity of the note, cannot be main- 
tained upon reason or authority. 

The allowance of counsel fees for the foreclosure was 
authorized by the terms of the mortgage. The amount 



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Oct. 1888.] RicKARDs V. Hutchinson. 228 

Opinion of the Court — Hawley, C. J. 

allowed was not, under the facts of this case, unreasonable. 

The judgment of the district court is affirmed. 

By the Court, Hawley, C. J., on rehearing : 

A rehearing was granted in this case for the purpose of 
considering the question whether section 23 of the act defin- 
ing the time of commencing civil actions (1 Comp. Laws, 
1038) is applicable to this cause, and whether, under its 
provisions, this action was barred by the statute of limita- 
tions, it not having been commenced within one year after 
the issuing of letters testamentary on the estate of Mrs. 
Wheat. Api>ellant claims that when a cause of action has 
matured, and the statute of limitations has commenced to 
run, before the death of the party against whom such cause of 
action accrued, no suit can be maintained unless brought 
within one year from the death of the party ; that the pres- 
ence of the executor or administrator in, or his absence from, 
the state makes no difference with reference to the running of 
the statute. We do not think this position is sustained by 
the authorities cited in its support. We are of opinion that 
the plaintiff was entitled to have a person in esse^ within 
this state, against whom she could bring suit, for the full 
pei'iod of time prescribed in section 16 (1 Comp. Laws, 
1031), and that the object of section 23 was to extend the 
time, in certain cases, within which the actions might be 
commenced, and was not intended, and should not be so 
construed, to limit the time given by other sections of the 
act. 

If Mrs. Wheat had lived, and been absent from the state 
for the same length of time as the administratrix was, the 
suit would have been commenced in time. Is the plaintiff 
not entitled to bring her suit within the time it could have 
been commenced, under similar conditions, if Mrs. Wheat 
had lived ? 

In California there is a provision in the Code identical 
with section 23 of our statute. In Smith v. Hall the su- 
preme court of that state said that the object of the section 
"was not to curtail, but to prolong, the period for suing in 
the given category.*' (19 Cal. 86.) 



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224 RicKARDs V. Hutchinson. [Sup. Ct 

Opinion of the Court — Hawley, C. J. 

In Lowell v. Kier the action was brought within the 
period limited for its commencement against the deceased 
party had he lived. The court said: ''It is not barred 
merely because it was not brought within one year after the 
issuance of letters" to the executors of the estate ; that the 
section of the Code, "while it may, under some circuna- 
stances, prolong the time originallj' Hmited, cannot operate 
in any case to shorten it." (50 Cal. 647.) 

The views herein expressed are in accordance with the 
decisions of this court in Wick v. 0' Neale (2 Nev. 303), in- 
stead of in opposition to it, as claimed by appellant. There 
the court correctly construed section 23 so as to extend the 
time for the commencement of the action to "one year 
from the time of the issuing of letters testamentary" in a 
case where the action would, under the other sections of the 
act, have been barred before that time. Our former decis- 
ion was correct. 

The judgment of the district court is affirmed. 



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REPORTS OF CASES 



DETERMINED IN 



THE SUPREME COURT 

OF THE 

STATE OF NEVADA, 
JANUARY TERM, 1884:. 



18 225 
[No. 1163.] ,^ '^' 



N. C. HAMMERSMITH, Rbspondbnt, ?;. G. W. 
AVERT, Appellant. 

Damaue-s — Seizure of Property Exempt from ExEcimoN— Evidence — 
Wages of Barber. — In an action to recover damages against an officer for 
closing a barber shop and taking the implementsj of the barber's trad^, 
which were exempt from execution : Hdd, that evidence of the customary 
wages of barbers is inadmissible to establish the damages resulting by 
reason of the interruption of the barber's business. 

Idem — Value of Property — Offer. — Evidence of the plaintiff of an offer 
made to him for the property, taken by the officer, is inadmissible ; but a 
witness, in giving his own opinion of the value of the property, may testify 
as to an offer made by himself Such evidence tends to prove the opinion 
of the witness, and is admissible. 

Idem— Right of Exemption— Person.al Privilege— Officers not Tres- 
passers. — The right of exemption is a personal privilege, which if not 
claimed is waived by the debtor. An officer who seizes property exempt 
from execution is not a trespasser ab initio. 

Idem — Instructions. — The fourth instruction, referred to in the opinion, was 
as follows : " If plaintiff « * * was in the possession as a tenant of 
the premises described in the complaint, and then and there carried on his 
trade as a barber, and the defendant, by virtue of a writ of attachment, 
ejected plaintiff therefrom and refused to allow him the use thereof, then 
the defendant was a trespasser, and is liable to the plaintiff for all damages 
that he directly sustained by reason of said withholding the possession 
thereof from him :" Held^ correct. 
Vol. XVm— 29 ^ t 

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24 



226 Hammersmith v. Avert. [Sup. Ct. 

Argument for Appellant. 



Demurrer — Misjoinder of Parties — Waiver. — The question of misjoinder 
of parties, raised by demurrer, is waived by filing an answer. 

Appeal from the District Court of the Seventh Judicial 
District, Washoe County. 

The following instructions, in addition to the one in the 
head notes, were given on the part of plaintiff : 

1. **The plaintili' claims certain personal property as 
exempt, as a barber, and I therefore instruct you that the 
tools and implements of a mechanic or artisan necessary to 
carry on his trade are exempt from execution, and if the 
defendant * * * took the same from the plaintiff, then 
he was a trespasser and liable to him for all damages that 
were the direct result of such acts." 

2. ''The statute of exemption being remedial, beneficial 
and humane in its character, must be liberally construed, 
and if it does not clearly appear to the jury whether certain 
property is or is not embraced within the excepting statute 
they will allow the debtor the benefit of the doubt, and 
suffer him to retain the property.'* 

8. *'The object of the statute of exempting tools neces- 
sary to carry on his trade is to save to the debtor the means 
of earning his support. ♦ * * And it is too narrow a 
construction of this statute to deny to a debtor, whose 
business required him for its successful prosecution the em- 
ployment of journeymen, the necessary means of their em- 
ployment. ' * 

Clarke ^ King^ for Appellant : 

I. The court erred in overruling demurrer to amended 
complaint. Distinct causes of action are improperly united. 
(1.) Eviction from real property and the taking and 
detention of personalty. (2.) Interruption or destruction of 
plaintiff's business. 

II. Evidence of what plaintiff' might have earned by 
hiring out his labor in another situation, and without 
reference to the property in question, real or personal, was 
not pertinent, and could only take the defendant by surprise 
and mislead the jury. 



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Jan. 1884.] Hammersmith ??. AvisRY. 227 

Aigument for Respondent. 



in. Specific offers for the property were not proper 
evidence of its reasonable or market value. 

IV. The evidence was strongly conflicting, and this 
incompetent matter may have turned the scale in the minds 
of a misled jury. ( Young v. Atwood, 5 Hun 234 ; Fowler 
V. Middlesex, 6 Allen 96.) 

V. Plaintift"s /7\si instruction is erroneous. An officer 
is not a trespasser in levying upon exempt property. 
Detention by the officer only becomes unlawful after 
demand made. The instruction awards damages for the 
iakingy and not for any detention, for which damages might 
be claimed. [Borland v. O'Neal, 22 Cal. 505, and cases 
there cited.) 

VL Plaintifi:*'s second instruction is erroneous. It can- 
not be law that the defendant here must not only disprove 
the exempt character of the property, but must clear the 
minds of the jury of any doubt. The jury might have been 
satisfied upon a great preponderance of the proofs that the 
greater part and value of the property in question was not 
exempt, and yet have had a doubt (not even limited to a 
reasonable or rational doubt), and then their duty under 
this instruction was to find for plaintifl:'.) 

VIL Plaintitt's t/iiy^d instruction (last clause) had no 
application to the case, and was misleading. There is no 
evidence that a journeyman or assistant is necessary or 
proper in plaintifl:" s business. It was incumbent upon 
plaintifl' to show that it was. This instruction intro- 
duces to the jury a new element for determining the rights 
of the parties not warranted by the evidence, to defendant's 
prejudice. {Mendelsohn v. Anaheim Lighter Co. 40 Cal. 
657.) 

John Bowman and William Cain, for Respondent : 

I. There is no misjoinder of causes of action. There is 
but one action on the case, wherein all the grievances com- 
plained of constituted but a single transaction at one and 
the same time, and is warranted by our practice. {Brewer 
V. Temple 15 How. Pr. 286 ; Robinson v. Flint, 16 How. 
Pr. 240 ; Jon^s v. Steamship Cortes, 17 Cal. 487.) 

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228 Hammersmith r. Avery. [Sup. Ct 



Opinion of the Court — Belknap, J. 



n. The value of the property in this action is not what it 
is worth when detached or separate from the realty, but in 
the condition it was and as used between outgoing and 
incoming tenants, and for what he could have sold it thus sit- 
uated. Wood's Mayne on Dam. 515, sec. 531 ; Thompson v. 
Peitii, 10 A.^K{ O. S.) 103 ; Boydell v. McMichaeL Crorap. 
M. & Roscoe 177 ; Mocrre v. Drinkwater, IF. & F. 134 ; Fox 
V. BrissaCy 15 Cal. 223 ; Hotchkiss v. Germania Lis. Co. , 
5 Hun 90.) 

III. The weight of authorities is that no demand was 
necessary. (Freeman on Ex. sec. 211 ; Frost v. Mbti, 34 
N. Y. 253 ; Sessions v. Mosely, 4 Cush. 87 ; Davlin v. Stone^ 
4 Cush. 369 ; Frost v. Shaw, 3 Ohio St. 270.) 

IV. Plaintiff's third instruction is warranted in the 
proof. From the testimony it became a question of fact for 
the jury whether two chairs were necessary in plaintiff's 
business to carry it on successfully. ( Wood v. Keyes, 14 
Allen 236 ; Freeman on Ex. sec. 336 ; Howard v. Williams, 
2 Pick. 80.) 

V. Plaintilf's fourth instruction is correct. {Fox v. 
Brissac, 15 Cal. 223.) 

By the Court, Belknap, J. : 

The defendant, the constable of Reno township, took in 
execution the implements of trade of the plaintiff, a barber, 
who claimed them to be exempt from levy and sale. This 
action was brought to recover damages for the taking, and 
also for the interruption to plaintiif 's business. Plaintift 
recovered judgment ; defendant appeals therefrom and from 
an order denying a motion for a new trial. 

In order to establish the damages resulting to the plaint- 
iff by reason of the interruption to his business, the court 
allowed him to prove, against defendant's objections, the 
customary wages of barbers for the period of time between 
the seizure and plaintiff's employment. The wages of the 
journeyman are fixed and certain in amount, and must be 
paid, whether the business of the principal is profitable or 
unprofitable. There is no necessary relation between the 



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Jau. 1884.] Hammersmith v. Avery. 229 



Opinion of the Court — Belknap, J. 



profits of a principal and the wages of a journeyman, and 
such wages could furnish no criterion upon which the jury 
could act in determining the damages sustained by loss of 
business. Furthermore, the testimony was incompetent. 
The law required the plaintifi:' to establish his case by the 
best evidence of which it waa susceptible. Such evidence 
was in his possession, and there was no necessity to resort to 
comparisons. The admission of this evidence was error, 
and the judgment must be reversed. 

As the case may be tried again, it is proper that the 
remaining exceptions should be considered. The evidence 
of the plaintiff' as to the '' offer " made him for the prop- 
erty should have been rejected, because, among other rea- 
sons, the person making the offer may not have known the 
value of the property. "The value of an 'otter' depends 
upon too many considerations to allow it to be used as a test 
of the worth of property." {Fowler v. Comrs^ 6 Allen 
96.) The testimony of the witness Coleman stands upon a 
different footing. In testifying to his own opinion of the 
value of the property, he spoke of an offer made by him- 
self. In Perkins v. People^ 27 Mich. 389, and Dickinson v. 
Pittsburgh, 13 Gray 564, it is intimated that evidence of this 
nature tends to prove the sincerity of the opinion of the 
witness, and is admissible. An instruction was given to the 
effect that if the property was exempt the defendant was a 
trespasser ab initio. There are cases which held that way. 
But in California, and many other states, the right of 
exem{)tion is held to be a personal privilege, which, if not 
claimed, is waived by the debtor. In this state we have 
been accustomed to proceed under the latter rule, and we 
prefer it — certainly in cases where the property is not of a 
class wholly exempt — because it is equally beneficial to the 
debtor and at the same time affords a protection to the 
olKcer. The reason of the rule is well expressed in Twinam 
v. Smart, 4 Lans. 264: ^*' Prima facie all property is liable to 
execution, and it was the duty of the constable, in the first 
instance, to make the levy. He cannot know intuitively 
that property is exempt, nor, indeed, that exemptions will 



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230 Meagher v. Van Zandt. [Sup. Ct. 



18 


230 


2* 


57 


18 


237 


2* 


60 



Argument for Appellant. 



be claimed if it is. * * * It would be intolerably op- 
pressive to place the constable in the dilemma of liability 
to an action if he refuses to levy his execution, and to an 
action of trespass if he does.** 

The fourth instruction given at the request of the plaintift 
was correct, and must be sustained as against the instruction 
inconsistent therewith given at the request of defendant. 
We see no error in the rulings of the court upon the other 
instructions. 

The question of misjoinder of causes of action raised by 
the demurrer was waived by answering. (Lonkey v. Wells^ 
16 Nev. 271.) 

Judgment reversed, and cause remanded for new trial. 



[No. 1140.] 

THOMAS F. MEAGHER et al., Appellants, v. FERD. 
S. VAN ZANDT, Respondent. 

Fees of WIT^'ES8E8 — Subpcena.— Fees for mileage or attendance of the oppo- 
site party'3 witnessess cannot be taxed, and judgment therefor entered 
against the losing party, when such witnesses have not been subpcsnaed in 
the case according to law, or sworn or examined, although present in court 
at the request of the successful party. (Hawley, C. J., dissenting.) 

Appeal from the District Court of the Fifth Judicial 
District, Nye County. 

The opinion in this case does not require a statement of 
the facts. 

I). S. Truman^ for Appellants : 

I. The court erred in not accepting, as evidence, the 
subpoena in Harvey v. Van Zandt, It would have con- 
clusively proved that tlie mileage fees paid was a necessary 
disbursement in the llarvey case; that the same had been 
jiaid in that action, and unless required to attend in this case 
by the process of the court issued in this action and duly 
served on the witnesses, the charge of such mileage fees 



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Jan. 1884.] Meagher v. Van Zandt. 281 

Ai^fument for Appellant. 



was not a proper charge to make in this action. (2 Comp. 
Laws, 2742 ; 1 Greenl. on Ev. see. 51 a, note 5 and 
authorities there cited.) 

n. The law provides the method by which a witness may 
be required to attend court to testify ; the statutes having 
provided a method, it is to the exclusion of other ways, 
except a voluntary attendance; and the method is by 
subpoenaing a party in the action in which he is to testify. 
(1 Comp. Laws, 388 et seq,) 

III. The court erred in not overruling defendant's objec- 
tion to the iutroduction of the Harvey v. Van Zandt records 
and papers, as the objection was too general, and should 
have been specific. {People v. Apple, 7 Cal. 289; Kiler 
V. Kimball, 10 Id. 268 ; Morgentham v. Harris, 12 Id. 245; 
Satterlee v. Blis:^, 36 Id. 489 ; Owen v. Frink, 24 Id. 171 ; 
Dreux v. Domec, 18 Id. 83; State v. Jones, 7 -Nev. 415.) 

IV. An exception that the evidence is irrelevant, im- 
material and incompetent, should be overruled if the evi- 
dence is admissible for any purpose. Sharon v. Minnock 
6 Nev. 382 ; State v. Soule, 14 Id. 455 ; Thompson v. 
Thornton, 50 Cal. 145 ; Covenij v. Hale, 49 Id. 552 ; 
People V. Manning, 48 Id. 388 ; Sneed v. Osbom, 25 Id. 
627.) 

Trenmor Coffin, also for Appellants : 

I. In order to entitle the prevailing party to have his 
witness' fees taxed as costs in the action, the fees must 
have been actually paid to the witnesses. (2 Comp. Laws 
2742 ; Clarke v. Linsser, 1 Bailey (S. C.) 190 ; Johnson v. 
Wideman, Cheves (8. C.) 26 ; Chillas v. Brooks, 5 Harr. 
(Del.) 60; Parsons on Costs, 198 sec. 43, and authorities 
there cited; Hopkins v. Godbehire, 2 Yerg. (Tenn.) 241 ; 
Wheeler v. Lozee, 12 How Pr. 450 ; Ehle v. Bingham, 4 
Hill 596 ; Dean v. \yilUams, 6 Hill 376.) 

IL No witnesses were ever subpoenaed in either case. 
They were voluntary witnesses, and no fees, especially no 
mileage, can lawfully be taxed against the losing party on 
account of such voluntary witnesses. {Spaulding v. Tucker, 

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282 Mbaghbr v. Van Zandt. [Sup. Ct 



Argument for Respondent. 



2 Saw. 50 ; Dreskill v. Parish^ 5 McLean 213 ; DreskiU v. 
Parish, 5 McLean 241 ; Parker v. Bigler, 1 Fisher's Pat. 
Gas. 289; Woodruff y. Barney, 2 Fisher's Pat. Gas. 245; 
Clarke v. Linsser, 1 Bailey (S. C.) 190; Love v. Ingram, 
2 Speer (S. C.) 88; Parsons on Gosts, 201, sec. 50, and 
authorities cited; Dowling v. Bush, 6 How. Pr. 410; 
Wheeler v. Ijozee, 12 How. Pr. 448-9 ; Bank of Niagara v. 
Austin, 6 Wend. 548.) 

HI. Mileage should not be taxed for a witness called and 
sworn without subpoena or subpoenaed at the place of trial. 
(Bratton v. Clendenin, Harper (S. G.) 454; Johnson v. 
Wideman, Gheves (8. G.) 26. 

IV. The same party has had taxed against the same 
plaintifts the mileage of the same witnesses in two different 
cases set for trial at the same place and on the same day. 
Such double taxation of costs is not permissible nor lawful. 
{Bliss V. Brainard, 42 N. H. 257 ; State v. Allen, 26 N. J. 
L. 147.) 

V. Fees cannot be taxed for witnesses subpoenaed but 
not sworn. {Bacon v. Mathews, 5 Harr. (Del.) 385; Booth 
V. Smith, 5 Wend. 107; Ehle v. Bingham, 4 Hill 596; 
Taylor v. McMahon,. 2 Bailey 131 ; Loi^e v. Ingram, 2 
Speer 88.) 

Uurler ^ Bowler and H. T. Creswell, 'for Respondent : 

I. The actual service of a subpoena to entitle a witness to 
fees who attends court at the request of a party to the 
action is not necessary. {Cummings v. Akron Cement Co., 
6 Blatchf. 509; Roe v. Shaio, 56 Me. 306; De Benneville 
V. De Benneville, 8 Yeates 558 ; Farmer v. Storer, 11 
Pick. 241 ; Johnson v. Wideman, 1 Gheves 26.) A 
witness is entitled to his fees whether summoned or not. 
{Gunnison v. Gunnison, 41 N. H. 121; Albany v. Derby, 
30 Vt. 718.) 

II. The attendance of witnesses may be procured by 
request of jjarties, and the party so liable to the witness may 
recover disburaements for mileage and attendance against 
the defeated party. {Ci^awford v. Abraham, 2 Or. 165.) 



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Jan. 1884.] Meagher v. Van Zandt. 238 

Opinion of the Court— Leonard, J. 

III. The successful party is entitled to tax travel fees of 
a witness who attends volunlarily upon mere request. {Ander- 
son V. Moe^ 1 Abb. U. S. 299 ; Whipple v. Cumberland Cot- 
ion Co. 2 Sto. 661; Prouty v. Draper, 2 Sto. 199;' 
Hathaway v. Roach, 2 Wood & M. 63.) 

IV. A party is entitled to full fees in every case wherein 
he is a witness. ( WiWnk v. Reekie, 19 Wend. 82 ; Finch 
V. Hoagland, 1 Wend. 69 ; Wheeler v. Lovzee, 12 How. Pr. 
446 ; Vence v. Speir, 18 How. Pr. 168 ; Hicks v. Brennan, 
10 Abb. Pr. 305.) 

By the Court, Leonard, J.: 

As we construe the statute governing the allowance of 
witness fees in civil actions, it is only necessary, upon the 
facts presented, to decide whether or not such fees, for 
mileage or attendance, of the opposite party's witnesses, 
can be taxed, and judgment therefor entered against the 
losing party, when such witnesses have not been sub- 
poenaed in the case according to law, or sworn or examined, 
although present in court at the request of the successful 
party. The question whether such witnesses could compel 
the party requesting their attendance to pay them reason- 
able compensation therefor, is not in the case. The allow- 
ance of witness fees is governed entirely by the statute. 
No amount beyond what is there stated can be taxed, in 
any event, for any witness ; nor can that be, if only a 
certain class of witnesses are allowed fees, without showing 
that such witness belongs to that class. The statute pro- 
vides as follows: '* Witnesses required to attend in any of 
the courts of this state shall be entitled to the following 
fees: * * * Witness fees in civil cases shall be taxed 
as disbursement costs against the defeated party. * * * " 
(Comp. Laws, 2742 ) It is plain from the foregoing that 
witness fees which may be taxed, mentioned in the last part 
of the section, are the same as those stated in the first part, 
which witnesses shall be entitled to receive ; also, that such 
fees are limited to witnesses who have been required to 
attend. When is a witness required to attend before a 

Vol. XVm— 30 n^^^]^ 

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234 Meagher v. Van Zandt. [Sup, Ct 

Opinion of the CJourt— Leonard, J. 



court ? Is it one who attends under the obligatory require- 
ments of the law, or one whose attendance is secured by a 
mere request of a party, or both ? 

The present fee bill was passed in 1866. The prior one 
(St 1861, p. 250, sec. 8) provided that witnesses in civil 
cases should have two dollars a day for aitendiny before any 
court, etc., and twenty cents a mile for traveling to the 
place of trial. At that time, and at the date of the passage 
of the present fee bill, the statute in relation to the manner 
of compelling the attendance of witnesses was the same, in 
substance, as now. (Stat. 1861, pp. 374, 375 ; Stat. 1864 ; 
Comp. Laws, 1449, 1450.) It provided that '*a subpcsna 
may require not only the attendance of the person to whom 
it is directed, but may also require him to bring with him 
any books," etc. No person shall be required to attend as 
a witness before any court * * * out of the county in 

which he resides, unless the distance be less than 

miles from his place of residence to the county trial. * * 
* The subpoena shall be issued as follows : To require 
attendance before a court. * * * To require attendance 
out of court, before a judge, referee, * * * before 
whom the attendance is required. * * * To require 
attendance before a commissioner appointed to take testi- 
mony. * * * " 

At the date of the passage of the present fee bill, as now, 
there was no other method of requiring or compelling at- 
tendance of witnesses in a statutory sense than by sub- 
pcena. It is plain that the word '' require," then and now 
used in the statute, meant and means the same as ^' compel. ' ' 
The legislature did not intend to say that no person should 
be "requested" to appear before any court out of his 
county, unless the distance was less than a certain number 
of miles from his place of residence to the county of trial. 
Webster defines "require" as meaning "to demand; to 
ask as of right and by authority. We require a person to 
do a thing and we require a thing to be done. * * He also says 
it is mrely used in the sense of "asking as a favor. " It is 
our opinion that when the legislature in 1865 changed the 



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Jan. 1884. J Meagher v. VanZandt. 285 

Opinion of Hawley, C. J., dissenting. 

fee bill of 1861, by limiting witnesses entitled to fees to 
such as are required to attend, it was intended to use that 
word in the sense in which it was and is employed in the 
civil practice act. The then existing statute provided that 
a witness might be required to attend by a subpoena, and 
the fee bill was changed so as to allow witness fees only 
when witnesses were so required. Saying that witnesses 
"required to attend before any court'' shall be allowed 
fees, is the same as saying that witnesses who attend *' pur- 
suant to law * ' shall receive them. (See Spaulding v. l^ucker, 
2 Saw. 51 ; Woodruff v. Barney, 2 Fisher Pat. Cas. 244.) 
The judgment is reversed, and the cause remanded for 
trial. 

Hawlby, C. J., dissenting: 

In my opinion witnesses who attend court at the request 
of a party without the service of a subpoena are entitled, 
under the statute, to fees and mileage for attendance. It is 
claimed that the words ' * required to attend ' * (2 Comp. Laws, 
2742) confine the allowance of fees to witnesses who are re- 
quired to attend court by virtue of legal process. In sup- 
port of this view the decisions of the federal courts, which 
hold that '' pursuant to law " means upon service of process, 
are cited. The statute of this state does not, however, 
confine the payment of fees to witnesses who are required 
to attend court pursuant to law, unless this construction 
necessarily follows from the use of the word ** required." 
It is true that this word is more frequently used as asserting 
a right, or as a positive demand, "to claim as by right and 
authority ;" but it is also defined as meaning, "to ask as a 
favor; to request.'* (Webst. Diet.) We gain but little 
light in searching for the definition of thia word. It has 
been held in one case that the words "request" and "re- 
quire," although derived from a common source, may, and 
often do, have a meaning radically different {Johnson v. 
Clem, 27 Alb. Law J. 444) and i« another case it is said 
that these words have the same origin. " Usage has given 
to them somewhat different meanings, which, however, are 



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236 Meagher v. Van Zandt. [Sup. Ct. 

Opinion of Hawley, C. J., dissenting. 

more distinctions in intensity than in effect or substance." 
{Prentice v. Whiiney, 8 Hun 801; Abb. Law Diet. *' Re- 
quest.*') 

I think it was the intention of the legislature that wit- 
nesses should be paid for their attendance at court without 
reference to the means employed in procuring their attend- 
ance. Witnesses may be required to attend court by 
agreement, or by the request of a party, without the service 
of a subpoena; and if they do so attend, they can, in my 
opinion, collect their fees for mileage and attendance from 
the party at whose request they were ''required to attend." 
The fees thus paid would, it seems to me, be a necessary 
disbursement in the action which could, under the provisions 
of the statute, "be taxed as disbursement costs against the 
defeated party." 

It is true, as was said by the supreme court of Oregon, 
'*that the statutory means of compelling the attendance of 
witnesses is by subjjoena duly served ; but we are at a loss 
to see how any party can be injured in having to pay mile- 
age and attendance merely for the witnesses of an adversary 
who attends upon request or agreement, when the additional 
expense of officers* fees and mileage for issuing and serving 
of a subpcena, swelling largely the claim for disbursements, 
could do no more than procure the attendance of the wit- 
ness." (Crawford v. Abraham^ 2 Or. 166.) 

Substantially the same views have been repeatedly 
expressed by the supreme and superior courts of New 
York: *' Witnesses are entitled to their fees from the 
party at whose instance they attend, whether they are sub- 
poenaed or not. The non-service of a subpoena would be no 
defense for the party when sued by a witness for his fees, 
who had attended as his witness at his request. Nor is it 
possible to perceive how the want of a subpoena can relieve 
the unsuccessful party from the payment of the fees of his 
adversary's witnesses." {Wheeler v. Lozee, 12 How. Pr. 
448; Vence v. Speir, 18 How. Pr. 168.) "The fee bill 
gives compensation to witnesses for daily attendance upon 
couit ; it does not say anything about attendance in obedi* 



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Jan. 1884.] Meagher v. Van Zandt. 237 

Opinion of the Court — Leonard, J. 

ence to subpcBiia; if subpoenaed there is an additional 
allowance for cost of service. This is necessary to enable a 
party to compel attendance. The defendant, being liable 
to these witnesses for their cost, is entitled to the bill as it 
has been taxed/' {Lagrosse v. Currant 10 Phil. 141. See, 
also, Farmer v. Siorer^ 11 Pick. 241 ; Gunnison v. Gunni- 
son, 41 N. H. 128.) 

I also think that witnesses who attend court in two or 
more cases, are entitled to fees for mileage and attendance 
in each case. [Flores v. Thorn, 8 Tex. 382 ; Robison v. 
Banks, 17 Ga. 215; McHugh v. Chicago ^ JV. W. R. Co., 
41 Wis. 81 ; Willink v. Reekie, 19 Wend. 82 ; Hicks v. 
Brennan, 10 Abb. Pr. 305 ; Vence v. Speir, 18 How. Pr. 
168.) 

I am, therefore, of opinion that the judgment of the dis- 
trict court should be affirmed. 



[No. 1141.] 

THOMAS F. MEAGHER, etal., Appellants, v, FEED. 
S. VAN ZANDT, Respondent. 

WiTKESs Fees— (Meagher v. Van Zandt, anie— approved.) 

Appeal from the District Court of the Fifth Judicial Dis- 
trict, Nye County. 

D. S. Truman, and Trenmor Coffin, for Appellants. 

Curler ^ Bowler and H, T. Creswell, for Respondent. 

By the Court, Leonard, J. : 

The questions presented in this case are precisely the 
same as Meagher v. Van Zandt, ante. Upon the authority 
of that case, the judgment herein is reversed and the cause 
remanded for trinl. 



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288 McKblvey v. Crockett. [Sup. Ct. 

Argument for Appellant. 
[No. 1158.] 

C. McKELVEY, Appellant, v. L. L. CROCKETT, 

Respondent. 

Stockholder of Corporation— Liability as Garnishee— Unpaid Subscrif- 
TiONS.— A stockholder in a banking corporation cannot be held liable for 
his unpaid and uncalled subscriptions, in an action at law against him aa 
the garnishee of the principal debtor. 

Appeal from the District Court of the Seventh Judicial 
District, Washoe County. 

The facts are stated in the opinion. 

William Cain^ for Appellant : 

I. The unpaid sum of money due from a stockholder to 
the corporation is a legal debt, and can be reached by a 
creditor of the corporation like any other debt due to it, or 
like any other of its assets. The corporation could recover 
the same by an action at law in assumpsit or debt, and can 
be garnisheed. {Piiisburcih C. B. Co. v. Byers^ 32 Penn. 
St. 22; Mc Cully v. Pittsburgh G M. Co., 32 Penn. St. 25; 
Peterson v. Sinclair, 83 Penn. St. 250 ; King v. Elliott^ 
5 S. & M. (Miss.) 428 ; Curry v. Woodward, 53 Ala. 371 ; 
Sanger v. Uptcn, 91 U. S. 62 ; Hatch v. Dana, 101 U. S. 
205 ; County of Morgan v. Allen, 103 U. S. 508 ; Ogilcie v. 
Knox Ins. Co., 22 How. 380 ; Van Hook v. W hillock, 3 
Paige 415 ; Thompson L. of Stockh., sec. 105.) If, there- 
fore, the amount due for shares of stock be a legal debt, 
then the same may be taken under garnishee proceedings. 
{Pease v. Underwriters, 1 Ills. Ap. 287 ; Faull v. Alaska 
G. Jt S' M' «>•, 14 Fed. Rep. 657 ; Hassie v. G. T. W. U. 
Cong., 35 Cal. 378.) The garnishee is liable to the plaintiff 
for the amount of debt owing by him to the principal 
debtor. {Roberts v. Landecker, 9 Cal. 262 ; Hassie v. G. 
T. W. V. Cong., 35 Cal. 378 ; Robinson v. Tevis, 38 Cal. 
612.) 

II. The plaintitt* may commence an action forthwith 
against the assignee. {Roberts v. Landecker, 9 Cal. 262 ; 
Robinson v. Tevis, 38 Cal. 612.) 



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Jan. 1884.] McKblvby t?. Crockett. 289 

Aigament for Respondent. 

III. These supplemental proceedings are a substitute and 
in the nature of a creditor's bill. {Faull v. Alaska G. S. 
M, C, supra; Freeman on Ex. sec. 394; Freeman on 
Judg. sec. 827 ; Adams v. Hackett, 7 Cal. 201 ; McCidlough 
V. Clark, 41 Cal. 298.) But even if it be admitted that 
money due from a stockholder to a corporation for unpaid 
capital stock is a trust fund, to be reached in equity only by 
creditore of the corporation, we are still met with over- 
whelming authorities to the effect that one creditor who has 
obtained judgment against a corporation and whose execu- 
tion has been returned unsatisfied may, by an action in the 
nature of a creditor's bill, proceed against one stockholder 
to subject the amount due from said stockholder to said cor- 
poration to the payment of his judgment, and our com- 
plaint, in addition to a claim by the garnishee proceedings, 
contains all the elements of such an action. {Ogilvie v. 
Knox Ins. Co. 22 llow. 380 ; Garrison v. Howe, 17 N. T. 
459 ; Bartleii v. Drew, 4 Lan. 444 ; 57 N. Y. 587 ; Hatch 
V. Dana, 101 U. S. 205 ; Bissitt v. Kentucky B. iV. Co., 15 
Fed. Rep. 353 ; Harmon v. Page, 62 Cal. 448.) 

IV. Where the corporation has virtually ceased to do its 
business no call is necessary, but the unpaid capital stock is 
due on demand by any creditor of the corporation. {Hatch 
V. Dana, 101 U. S. 214 ; Henry v. R. M. Co. 17 Ohio 187 ; 
Curry v. Woodward, 53 Ala. 871 ; Hartnon v. Page, 62 Cal. 
448.) 

JR. M. Clarke, for Respondent : 

L Crockett's liability, if any, for unpaid subscription is 
not a debt which is attachable at law. A debt to be 
attachable must be " owing to the defendant." (Civil Pr. 
Act, sees. 128, 130, 131.) To render Crockett liable as 
garnishee under the attachment, it must appear that the 
bank had a cause of action against him for the recovery of 
a debt. No judgment can be rendered against Crockett 
as garnishee except it appear from the proofs that a legal 
debt exists from him to the bank. (Drake on Att. 545, 
647 ; Presnall v. Mabry, 3 Por. 105.) A legal debt, as con- 



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240 McKblvby f . Crockett. [Sup. Ct 

Argument for Respondent. 

# 
tradistinguished from au equitable demand, is that alone 

which will authorize a judgment against a garnishee. 
(Drake on Att. sec. 547 ; Hassle v. 6r. i. W. V. Con- 
gregat 35 Cal. 378 ; Hoyi v. Swift, 13 Vt. 133 ; May v. 
Baker, 15 111. 90 ; Harrell v. Whitman, 19 Ala. 138 ; Rein- 
hart V. Hardesty, 17 Nev. 141.) In this case Crockett was 
not indebted to the bank absolutely in any sum of money 
whatever. His liability was contingent, not certain. It 
depended upon call under the statute, and had no existence 
unless and until call was made. (Drake on Att. sec. 545 ; 
Bingham v. Bushing, 5 Ala. 403 ; Faull v. Alaska G, ^ S. 
M. Co. 14 Fed. Rep. 657; Mann v. Pentz, 3 N. Y. 422.) 

II. The proceedings should be in equity by all the cred- 
itors, or for all the creditora, and it should be against all 
the stockholders. The action cannot be maintained unless 
brought by all the creditors, or by one creditor for the 
benefit of all. (Qivil Pr. Act, sees. 14, 17 ; Hallett v. Hal- 
leit, 2 Paige 19; U. S. v. Parrott, McAllister (C. C.) 271; 
Story Eq. PI. sec. 72 ; Thomp. L. Stock, sees. 258, 269, 
351, 361 ; Morgan v. New York R. R. Co., 10 Paige 290 ; 
Coleman v. White, 14 Wis. 700 ; Crease v. Babcock, 10 Met. 
526, 531, 532, 533 ; Vmstead v. Buskirk, 17 Oh. St. 113 ; 
Smith V. Huckabee, 53 Ala. 191, 195 ; Faull v. Alaska Co. 
supra ; Patterson v. Lynde, 106, U. S. 519 ; Sawyer v. Soge, 
17 Wall. 620 ; Bush v. Cartwright, 7 Or. 329 ; Pollard v. 
Bailey, 20 Wall. 520.) 

III. All the stockholders should be joined as defendants 
in one suit, and they should be proceeded against under the 
statute. A call should he made for the unpaid subscription 
and notice given of the time, amount and place of payment. 
(Thomp. L. Stock, sees. 258, 259 ; Smith v. Huckabee, 53 
Ala. 191 ; Matthews v. Albert, 24 Md. 532 ; Erickson v. 
Nesmith, 46 N. II. 371 ; Hadley v. Russell, 40 N. H. 109 ; 
Masters v. Rossi L. M. Co, 2 Sanf. Ch. 301 ; Thayer v. 
Union Tool Co. 4 Graj^, 75 ; Mann v. Pentz, 3 N. Y. 415 ; 
Adler v. Milwaukee B. Co. IB Wis. 57 ; Coleman v. White, 
14 Wis. 700 ; Umstead v. Buskirk, 17 Oh. St. 118.) 



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Jan. 1884.] McKblvey v. Crockett. 241 

Opinion of the Court — Belknap, J. 

By the Court, Belknap J.: 

The plaintift' commenced an action by attachment against 
the Eeno Savings Bank, a corporation existing under the 
laws of this state, and garnished the defendant, Crockett, 
upon the assumption that he was a debtor of the bank. 
Plaintiff recovered judgment against the bank ; an execution 
was issued and returned nulla bona; and thereupon this 
action was instituted against the garnishee to enforce his 
liability. The liability is based upon the fact that Crockett 
was a subscriber to a portion of the capital stock of the 
corporation. It appeared that the subscriptions to the 
capital stock had not been fully paid in by the various stock- 
holders, but that Crockett had paid all of the calls made 
upon him by the corporation. 

The question presented, and the only one which we deem 
it necessary to consider, is whether Crockett's liability for 
his unpaid and uncalled subscription can be enforced in an 
action at law against him as the garnishee of the principal 
debtor. The general corporation law under which the 
Reno Savings Bank was incorporated fixes the manner in 
which payments may be required upon unpaid stock. It 
does not require that the capital of a corporation shall be 
fully paid in upon its organization, but provides for assess- 
ments to be made by the stockholders or trustees. 

The portion of the statute bearing upon this subject is as 
follows : 

"Sec. 10. The stockholders of any corporation formed 
uuder this act may, in the by-laws of the company, prescribe 
the times, manner, and amounts in which the payment of 
the sum subscribed by them respectively shall be made; 
but in case the same shall not be so prescribed, the trustees 
shall have power to demand and call in from the stockholdera 
the sums by them subscribed at such times and in such 
manner, payments, or installments as they may deem 
proper. * * * ' ' 

In the absence of an assessment it is evident that the 
corporation cannot maintain an action upon an unpaid sub- 
scription, and because of this fact it necessarily follows 

Vol. XVIII— 31 ^ t 

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242 McKelvky v. Crockett. [Sup. Ct. 

opinion of the Court — Belknap. J. 

that plaintiff cannot maintain this action. Garnishment is 
a purely statutory proceeding, aiming to invest the plaintiff 
with the right and power to appropriate to the satisfaction 
of his claim against the defendant, debts due from the 
garnishee to the defendant. "It is in effect," says Drake, 
*'a suit by the defendant in the plaintift^s name against the 
garnishee, without reference to the defendant's concur- 
rence, and, indeed, in opposition to his will. Hence, the 
plaintiff usually occupies, as against the garnishee, just the 
position of the defendant, with no more rights than the 
defendant had, and liable to be met with any defense which 
the garnishee might make against an action by the defend- 
ant." (Drake Attach, sec. 452.) 

Upon corresponding facts the supreme court of Alabama 
denied the liability' of a garnishee. The judgment is rested 
upon grounds similar to those we have expressed. {Bing- 
ham V. Rushing^ 5 Ala. 405.) 

In Brovm v. Union Ins. Co. 3 La. Ann. 177, the plaint- 
iff having obtained judgment against the defendant corpora- 
tion, sought to charge by garnishment a subscriber to a 
portion of its unpaid stock. The shares were of fifty dollare 
eacli. The garnishee had subscribed for one hundred 
shares. He did not pay in full for the stock, but made only 
the cash payment of five dollara per share. The opinion 
proceeds : *'The charter divides the subscription into two 
distinct portions. The firet is composed of the five dollara 
paid at the time of subscribing, and of twenty-five dollars 
more which were to be paid on each share by installments 
fixed by the charter, and all falling due within the year 
1836. The other portion is composed of the other twenty 
dollars, for the payment of which no period is fixed, the 
directors being authorized to call it in at such time and in 
such proportions as they might see fit. The twenty-five 
dollars to be paid at fixed periods were due to the corpora- 
tion, and formed part of the assets out of which its liabilities 
were to be satisfied. To the extent of that debt, the gar- 
nishment must be sustained, unless it is barred by lapse of 
time, as alleged by the garnishee. * * * ]fQp tj^^ 



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Jan. 1884.] McKblvey v. Crockett. 248 

opinion of the Ck)urt— Belknap, J. 

twenty dollars remaining on each share, the company had 
no action against the garnishee without a formal call, made 
upon all the shareholders equally, and then onlj' for the 
share due by him. His liability to third persons for this 
portion of the subscription, cannot be enforced by the pro- 
cess of garnishment.'' (pp. 182, 183.) 

The case of Fault v. Alaska G. ^ S. M. Co., recently 
decided by the circuit court of the United States for the 
district of Oregon (14 Fed. Rep. 657), is a case in point. 
That was an action at law in which the plaintiff, a judgment 
creditor of the corporation, sought by garnishment to be 
subrogated to the rights of the corporation against a sub- 
scriber to a portion of its capital stock. Upon examination 
it was ascertained that the garnishee was a stockholder in 
the corporation ; that its capital had not been fully paid in ; 
and that a definite sum was due from the stockholders to 
the corporation upon assessments regularly made. The 
money due from the garnishee upon the assessments was 
held to be an asset of the corporation that could be reached 
by g^lrnishment. The court said: *' There beifig then a 
fixed and definite sum due from the garnishee to the de- 
fendant at the time of the service of the execution on the 
latter, the same was a debt or legal asset of the defendants, 
liable to be levied on or attached by the plaintiff' in satis- 
faction of his judgment against the defendant. It is a debt 
absolute and not contingent, as is the remaining portion of 
the subscription not yet called in or ordered paid. It is 
therefore as much a legal asset of the corporation, and as 
liable to be taken or attached on an execution against it, as 
a debt due it from the garnishee for money loaned or goods 
sold and delivered." (p. 661.) 

Appellant principally relies for a reversal of this case 
upon a decision made by the district court of the United 
States for the Eastern district of Pennsylvania. {In re Glen 
Iron Works, 17 Fed. Rep. 324.) An earlier decision in 
the same case is reported in 10 Phi la. 479. The proceeding 
was a p^etition of the nature of a bill in equity under the 
Bttmmary jurisdiction of the court of bankruptcy. (10 Phila. 



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244 McKelvey v. Crockett. [Sup. Ct. 

Opinion of the Court— Belknap, J. 

491.) The act of incorporation of the Glen Iron Works 
authorized the payment of subscriptions of stock in real or 
personal estate appropriate to the corporate business. No 
power existed in the corporation to accept payment of 
capital otherwise than in money or money *s worth, never- 
theless promissory notes, called ''stock notes,*' or ''sub- 
scription notes,*' subject to assessment, were given by the 
stockholders and accepted by the corporation for the full 
amount of their subscriptions. The court held that this 
arrangement concerning the payment of the capital, although 
valid as between the corporation and its stockholders, was 
invalid in so far as it postponed the recourse of creditors. 
"Every stockholder,** said the court, "is, with relation to 
the creditors, under an obligation to pay so much of the 
amount represented by his share or shares of the capital as 
may be required for payment of the corporate debts. 
Where he has made no express engagement, the obligation 
to pay is implied. Where an express engagement has been 
made upon such a condition as would impair the recoui-se 
of creditors, they may proceed as if no such conditional en- 
gagement had been made.** (p. 482.) 

In this opinion the court reserved from consideration the 
rights of attaching creditors. That question was deter- 
mined in the second opinion. The court there held the 
failure of the corporation to assess as immaterial. And pro- 
ceeding in accordance with the principles announced in its 
first oi)inion, that the charter of the corporation impliedly 
prohibited payment of the capital otherwise than in money 
or money's worth, and treating the payment of the capital 
by the subscription notes as simulated payments, void as 
against creditors, sustained attachments against stock- 
holders who had not paid their subscriptions, although no 
assessment had been levied. 

In Sawyer v. Hoag^ 17 Wall 610, a somewhat similar 
plan was arranged between a corporation and subscriber to 
its stock to evade the payment of money for capital. The 
court held that, as against creditors of the corppi-ation, 
nothing short of actual payment of the capital in good faith 



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Jan. 1884.] McKelvey v. Crockett. 245 

Opinion of the Court— Belknap, J. 

would be tolerated. In summarizing the decision the 
reporter says : '*An arrangement by which the stock is 
nominally paid, and the money immediately taken back as 
a loan by the stockholder, is a device to change the debt 
from a stock debt to a loan, and is not a valid payment as 
against creditors of the corporation, though it may be good 
as between the company and the stockholders. ' ' And in the 
opinion the court characterized such an arrangement as a 
fraud upon creditors which should be annulled or disre- 
garded. 

There is no necessary conflict between the Pennsylvania 
case and the one at bar. In that case the corporation, dis- 
regarding the requirements of its charter concerning the 
paying in of its capital, accepted promissory notes instead 
of money, or property appropriate to the corporate business, 
atits cash valuation. Courtsof equity uniformly treat unpaid 
snbsciiptions to the capital stock of a corporation as a fund 
for the benefit of the creditors of the corporation, and this 
right of the creditor was not allowed. to be postponed by 
the plan entered into by the corporation and the subsciibera 
to its stock ; on the contrary, the court treating the arrange- 
ment as void, allowed the creditors to " proceed,'* to use its 
own language, '*asif no such conditional engagement had 
been made." 

The statute under which the Reno Savings Bank was in- 
corporated, as we have seen by the quotation from its tenth 
section, authorized the corporation to prescribe the times, 
manner, and amounts in which payments of subscn'ijtions to 
stock should be made. No assessment being unpaid at the 
time of the service of the writ of attachment upon Crockett, 
there was no indebtedness upon w^hich the writ could 
operate. 

The order of the district court granting a new trial is 
aflBrmed. 



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246 Beck v. Truckbb Lodge. [Sup. Ct. 

Opinion of the Court—Leonard, J. 
[No. 1164.] 

1 1? ^1 H. H. BECK, Respondent, v. TRUCKEE LODGE, NO. 
IsSSij 14, L 0. 0. F., Appellant. 

New Triai.— When Findings Will Not be Reviewed.— This court will not 
review the facts of a case, in order to ascertain whether the findings are 
supported by the evidence, unless there has been a regular statement and 
motion for a new trial. 

Appeal from the District Court of the Seventh Judicial 
District, Washoe County. 

The facts are stated in the opinion. 

Wm. Gain, for Appellant. 

John F. Alexander, for Respondent. 

By the Court, Leonard, J. : 

This action was brought to recover five hundred dollai's, 
and interest, upon a bond executed by appellant in favor of 
respondent. Appellant does not deny that the findings sup- 
port and justify the judgment, but he says, in substance, 
that the findings are not supported by the evidence. Mo 
motion was made for a new trial, and this court has 
uniformly refused to review the facts of a case unless there 
has been a regular statement and motion for a new trial. 
In Whitmore v. JShioerick, 3 Nev. 303, the court said : 
"Doubtless, most errors committed during the progress of 
a trial may, at the option of the appellant, be firet brought 
under review in the court below upon motion for new trial, 
and upon that court refusing relief, be reviewed here on 
appeal from the order refusing a new ti'ial ; or they may be 
be bi'ought directly before this court on appeal from the 
judgment. This court can look into bills of exception, 
statement on appeal, the findings of the court, and the judg- 
ment roll for the purpose of correcting errors shown by any 
of these records; but for the purpose of setting aside a 
verdict or finding on the ground of its not being sustained 
by the evidence, it can only look to a statement on motion 
for new trial.** 

Judgment affirmed. 



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Jan. 1884.] Norton v. Clark. . 247 

Ai^gument for Appellant. 



[No. 1166.] 

HARRIET M. NORTON, Executrix, bt al., v. L. 
G. CLARK AND D. C. MARTIN, Respondents, and 
THOMAS E. HAYDON, Appellant. 

Estate of Deceased Persons— When Executor Cannot be Gabni3HEi>— 
CLAiais — Levy and Sale.— In an estate, where no order for distribution 
has been made, neither the executor or administrator is liable to the pro- 
cess of garnishment, nor can an allowed and ai)proved claim against the 
estate be levied upon and sold under an execution against the claimant. 

Appeal from the District Court of the Seventh Judicial 
District, Washoe Couuty. 

The facts appear in the opinion. 

Thomas JE. If ay don, in propria persona , for Appellant: 

I. A claim against an estate duly allowed by an executor 
or administrator and probate judge, can be seized and sold 
under execution, so as to vest in the purchaser the title of 
the judgment debtor. (Civ. Pr. Act, sees. 127, 128, 136, 
219, 222, 229, 230.) We adopted with these sections their 
settled judicial construction in California. {Adams v. 
Hackeii, 7 Cal. 187; Crandall v. Bkn, 13 Cal. 15; Davis 
V. Mitchell, 34 Cal. 87 ; Donohoe v. Gamble, 38 Cal. 352 ; 
Robinson v. Tevis, 38 Cal. 615 ; Freeman on Ex., sees. 112, 
116, 120.) See, collaterally, in aid of this proposition: 
[Jones V. Thompson, 12 Cal. 191 ; Halsey v. Martin, 22 
Cal. 645 ; Edwards v. Beugnot, 7 Cal. 162 ; Foster v. Potter, 
37 Mo. 525 ; Middletown Savings Bank v. Jarvis, 33 Conn. 
372 ; Eastland v. Jordan, 3 Bibb 186 ; Samuel v. Salter, 3 
Met. (Ky.) 259.) 

II. The claim in this case was on a written bill of sale or 
chattel mortgage with possession. This was a credit. It 
could have been assigned, sold, mortgaged, pledged or dis- 
posed of in any legal method before ita allowance, and after- 
wards, it could have been disposed of in the same way. It 
then became a judgment. [Dock's Estate v. Gherke, 6 
Cal. 666 ; Estate of Hidden, 23 Cal. 362 ; Pico v. De La 



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248 . Norton v. Clark. [Bup. Ct. 



Opinion of the Court — Belknap, J. 



Guerra, 18 Cal. 422 ; 0)rbett v. Bice, 2 Ncv. 330 ; Willis 
V. Farlei/, 24 Cal. 501 ; Estate of Schroeder, 46 Cal. 304 ; 
Rhodes v. O'Farrell, 2 Nev. 61-4.) 

Dickson cf- Varian, for Respondents : 

I. The executora could not be garnished in this case. 
(Freeman Ex. sec. 131 ; Drake Att. sec. 251, 492 ei seq; 
Elliott V. Newby, 2 Hawks 21 ; Young v. Young, 2 Hill (S. 
C.) 425 ; Stout v. LaFollelte, 64 Tnd. 365 ; Skinner v. Max- 
well, 68 N. C. 400 ; Estate of Nerac, 35 Cal. 397 ; Simes 
Estate, Myrick's P. R. 100 ; Machim Co. v. Miracle, 54 
Wis. 298.) 

II. A sale of the interest of the creditor of the estate can- 
not be made under execution. 

By the Court,. Belknap, J.: 

This suit was instituted by the executors of the last will 
of B. B. Norton, deceased, for the purpose of determining 
the ownership of an allowed and approved claim against his 
estiite and in favor of the Reno Savings Bank. Appellant 
Haydon claims by virtue of a writ of garnishment served 
upon the executors, and an actual levy and sale of the claim 
under an execution issued upon a judgment in his favor and 
against tlie bank. The respondents claim under assign- 
ments made subsequent to the proceedings by which appel- 
lant claims ownership. The only matter necessary for con- 
sideration is whether appellant acquired any rights by 
virtue of the garnishment, levy and sale, no order for dis- 
tribution to creditors having been made. 

The proposition that an executor is not, under these cir- 
cumstances, answerable to the process of garnishment, is 
abundantly supported by the authorities. The reasons for 
the conclusion are well expressed in the case of Shewell v. 
Keen, 2 Whart. 339. The court in that case said: "An- 
other circumstance of weight is, that an executor or admin- 
istrator is, to a certain extent, an officer of the law, clothed 
with a trust to be performed under prescribed regulations. 
It would tend to distract and embarrass these officera if, in 
addition to the ordinary duties which the law imposes, of 

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Jan. 1884.] Norton v. Clark. 249 

Opinion of the Court— Belknap, J. 

themselves often multiplied, arduous, and responsible, they 
were drawn into conflicts created by the interposition of 
creditors of legatees, and compelled to withhold payment 
of legacies without suit ; to suspend indefinitely the settle- 
ment of estates ; to attend, perhaps, to numerous rival 
attachments ; to answer interrogatories on oath ; and to be 
put to trouble and expense for the benefit of third persons 
no way connected with the estate, nor with the duties of 
their trust. It has been decided that money in the hands of 
prothonotary or sheriff cannot be intercepted by a creditor 
of the party entitled to it, but it must be paid over to him- 
self only. (1 Dall. 364.) The case of an executor or 
administrator is analogous to that of a sheriff or prothono- 
tary. He has the fund in his hands as an officer or trustee 
authorized by law, and if a new party were allowed to levy 
on it by attachment there would be no end of disputes and 
lawsuits, and no business could be certain of ever being 
brought to a close within a reasonable time. It is of great 
importance to the interests of heirs, creditors, and legatees 
that the affairs of a decedent's estate be kept as simple and 
distinct as possible ; that its concerns be speedily closed and 
the estate adjusted. It is, moreover, settled that an execu- 
tor cannot be sued as defendant in an attachment by a 
creditor of a testator, and the goods of the testator attached 
to recover the debt. (2 Dall. 73.) The reason is that the 
estate of the testator ought to come into the hands of the 
executor, that he may administer it according to law, and 
pay the debts if the assets suffice ; and they ought not to 
be stopped, and the executor subjected to new responsi- 
bilities by proceedings in attachment. These reasons apply 
with equal force to the attempt to make an executor gar- 
nishee for the purpose of paying out of the assets in his 
hands the debt due to a creditor of a legatee. These funds 
must travel only in the path pointed out by the laws relat- 
ing to decedents* estates in their various branches, and can- 
not be diverted out of that path without interfering with 
salutary regulations, and violating some of the most import- 
ant provisions of the acts of assembly." (See, also, Barnes 

Vol. XVm-32 

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250 Norton v, Clark. [Sup. Ct 

Opinion of the C5ourt— Belknap, J. 

V. IVeai, 7 Mass. 271 ; Brooks y. Cook, 8 TAass. 247 ; Thorn 
V. Woodruff, 5 Ark. 55 ; Sioui v. La Folleiie, 64 Ind. 365 ; 
J. L Gcise T. M, Co. v. Miracle, 54 Wis. 295 ; Colby v. 
CoaUs, 6 Cush. 558 ; Thayer v. Tyler, 5 Allen 94 ; Welch 
V. Gurhy, 2 Hayw. (N. C.) 334; Young v. Young, 2 Hill 
(8. 0.) 425; Curling y. Hyde, 10 Mo. 374; Winchell v. 
Allen, 1 Conn. 385 ; Lyons v. Houston, 2 Harr. (Del.) 349; 
Waiie v. Osborne, 11 Me. 185 ; Wilder v. Bailey, 3 Mass. 
289 ; Marvin v. Haxoley, 9 Mo. 382 ; i/iW v. 2>a d'oss, ^ M. 
R. R. Co., 14 Wis. 291 ; Dawscn v. Holcomb, 1 Ohio 275.) 

Appellant mainly relies, however, for title, upon the 
alleged levy and sale of the claim, independently of the gar- 
nishment. The sheriff seized in execution and took iu 
custody the paper writing among the files of the clerk of 
the court containing a statement of the claim of the Reno 
Savings Bank against the estate of Norton, regularly allowed 
by the executors and approved by the district judge. The 
same considerations which have moved courts to exempt 
executors from garnishment require that claims against an 
estate should not be subject to levy and sale. The vexation 
and delay which successive attachments would produce 
would be the same in cases of actual levy as if the proceed- 
ings were by garnishment, and one mode as much as the 
other would tend to divert the money of the estate from the 
course which the law has prescribed for it. The results 
produced by either methods being the same, a change of 
means cannot change the aspect of the question. There is 
no just ground for permitting one method of procedure and 
not the other. 

Again, the property, which the laws concerning attach- 
ments and executions require shall be taken into custody, is 
tangible, visible property, capable of seizure and actual 
possession. Concerning property such as was sought to be 
reached in this case, the statutes expressl}- provide that 
** debts and credits, and other personal property not capable 
of manual delivery,*' shall be reached by garnishment. 
(Sections 1189, 1191, 1280.) 

The order of the district court granting a new trial is 
affirmed. 

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Jan. 1884.] State v. Preble. 251 

Aliment for Relator. 



[No. 1169.] 

THE STATE OF NEVADA, ex rel. FOOK LING, Re- 
lator, V. C. S. PREBLE, Respondent. 

State Lajvds — Purchase by Chinese. — A citizen and subject of the chineae 
empire, who is a bona fide resident of this state, is entitled, under the laws 
of this state, to locate and purchase any of the public lands belonging to 
this state. 

Idem— Public Policy.— No act authorized by the constitution can be said to 
be against the public policy of the state. 

Application for mandamus. 
The opinion states the facts. 

IVenmor Coffin^ for Relator : 

L The policy of the land laws of this state is not to 
exclude the Chinese from the purchase of the public lands 
of the state. They are invited to purchase and guaranteed 
the possession and enjoyment after purchase. (2 Comp. 
Laws, 3818.) 

IL A Chinaman is a person. {ParroiVs Chinese Case, 
6 Saw. 349; sec. 1 Art. I, Cons.; sec. 16 Art. I, Cons.) 

TIL An indian is not a citizen ana cannot become a 
citizen of the United States (U. S. Rev. Stat. Sec. 5169 ; 
McKay v. (Jampbell, 2 Saw. 118), yet the court has held 
that an indian may acquire water rights by appropriation, 
and may convey such rights the same as auy other peraon. 
{Lobdell V. Hall, 3 Nev. 616.) 

IV. Constitutional and statutory provisions similar to ours 
in California and Colorado have been construed favorably 
to the alien. {State v. Rogers, 13 Cal. 169; McCanville v. 
Howell, 17 Fed. Rep. 104.) 

V. But even if the constitution and laws of this state were 
silent upon the subject or in terms prohibited the sale of 
the public lauds to Chinamen, they would have to go down 
before the constitution, statutes and treaties of the United 
States. (Con. U. S. art. VI sec. 2 ; Gibbons v. Ogden, 9 
Wheat. 211 ; Henderson v. Mayor, 92 U. S. 272 ; R. R. 
Co. V. Husen^ 96 Id. 472 ; ParrotVs Chinese Case, 6 Saw. 



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252 8TATB V. Prbblb. [Sap. Ct 

Argument for Respondent. 

862 ; Gordon v. Kerr, 1 Wash. C. a. 322 ; D. S. Rev. 
Stat. sec. 1097 ; Treaty with China ; U. 8. Session Laws, 
1881-2 13 art. II; Treaty with Argentine Confederation, 
A. D. 1853 ; Post Road and Public Treaties, 18, 19 art. 
IX ; In re Ah Fong, 3 Saw. 145 ; Baker v. City of Portland^ 
5 Saw. 566.) 

W. H. Davenport, Attorney General, for Respondent : 

I. A resident alien chinaman cannot make application, 
and purchase in his own right, the first or initial title to 
the public lands of the state of Nevada. When the word 
person is used in a statute, and no particular designation of 
the character of the person is given, it means a person 
free from any legal disability. {State of Nevada v. Hatch, 
15 Nev. 304. If the relator is laboring under any such 
disability, as will preclude him from availing himself of the 
benefits of this act, then he cannot be considered as a 
person within the meaning thereof. That there are persons 
not entitled to apply under the act, is plainly inferrable 
from the reading of sections 3818 and 3819, 2 Comp. L. 

II. Public policy is against disposing of the public 
domain to a proscribed alien. A chinaman does not come 
under the head of foreigner as is mentioned in sec. 16, art. 
I, Const. He is not a person such as is entitled to apply, 
under the statutes of this state, to purchase public land. 

By the Court, Hawlby, C. J.: 

This is an application for a writ of mandamus to compel 
respondent, as surveyor- general ^nd ez-officio land register of 
the state of Nevada, to receive the application of relator to 
purchase certain vacant non-mineral lands belonging to the 
state of Nevada. The only question to be determined is 
whether a citizen and subject of the Chinese empire, who 
is a resident of this state, is entitled, under the laws of the 
United States, or of this state, to locate or purchase any of 
the public lands belonging to the state of Nevada. The 
constitution of this state provides that "foreigners who are 
or may hereafter become, bona fide residents of this state, 



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Jan. 1884.] Gould v. Wisb. 268 

Points decided. 

shall enjoy the same rights in respect to the possession, 
enjoyment, and inheritance of property as native-born citi- 
zens." (Art. I sec. 16.) The rights of -foreigners are not 
confined to those who have declared their intention to 
become citizens of the United States, or to those who under 
our laws are entitled to become citizens by naturalization. 
The constitution gives to all foreigners who are bona fide 
residents of this state certain rights, which may be 
enlarged but cannot be abridged, by the legislature. The 
rights thus guaranteed by the constitution cannot be taken 
away. It is not within the power of the legislature of this 
state to limit the right to possess, inherit or enjoy such 
property to aliens who may become citizens. {People v. 
Rodger 8, 13 Cal. 160 ; McConviUe v. Howell, 17 Fed. Rep. 
104.') 

It is admitted by the pleadings that relator is a resident 
of this state, and that he has complied with the laws of this 
state, and is entitled to the relief he asks, unless the fact 
that he cannot become a citizen of the United States deprives 
him of that right. We are of opinion that the constitu- 
tional provision above quoted is conclusive in favor of his 
right to apply for the lands descri bed in his petition. There 
are no provisions in the constitution of the United States or 
in the existing treaties between the United States and China 
which deprive him of that right. No act authorized by the 
constitution can be said to be against the public policy of 
the state. 

Let the writ issue as prayed for by relator. 



[No. 1147.J 

JAMES GOULD, RbspOxNDENT, v. ALEXANDER WISE, 

Appellant. 

Mechanics' Lien — When Lessee can Create Lien on Property of Lessor. — 
The interest of the owner of reduction works may be subjected to lien 
claims, notwithstanding the labor and materials have not been performed 
and f\imished at his instance if, knowing that alterations or repairs are 
being made, by the lessee, he fails to give notice that he will not be respon- 
sible therefor. (Stat. 1875, 123, sec. 9.) 



18 


253 


8* 


80 


80 


llOi 


17* 753 


20 


120 


17* 759 

1 



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254 Gould v. Wise. [Sup. Ct. 

Argument for Appellant. 

Idem — Knowledge of Owner — ^Agent. — Evidence that the owner had an 
agent, residing in the vicinity of the premises, who personally visited the 
reduction works and knew that the work was being done and improve- 
ments being made • is prima facie sufficient to charge tlie owner with 
knowledge of that fact. 

Idem— Lease. — Held, that the terms of the lease, as stated in the opinion, also, 
showed knowledge on the part of the owner. 

Idem — Laborers — Materials.— Persons performing labor, or furnishing mate- 
rials used, in operating and " carrying on " reduction works are entitled 
to a lien against the property. (Leonard, J., dissenting in part.) 

Idem—Section 19 of Lien Law Construed— Words "or" and "on"— 
Clerical Mistake. — In construing section 19 of the lien law (Stat. 1876, 
126) : Held, that the word " on " should be read " or ;" that the change of 
the word " or " to " on," in the statute, was a clerical mistake and should 
be disregarded. 

Construction of Act — Judicial and Le6Isl.\tive. — A re-enactment of a 
statute, without substantial alteration, after an authoritative construction 
by the courts (in this case by the district court of U. S.) is a legislative 
adoption of the court's construction. 

Mechanic's Lien— Land Necessary for Convenient Use of Reduction 
Works— iJviDENCE. — Testimony showing that the land and reduction 
works had been leased togetlier, and sold together, tends to prove that the 
property subjected to the liens has been treated as a unit and useti for a 
common purpose, and, in the absence of any other testimony, or objections, 
at the trial, the court has the right to infer that the land so used and 
treated was reasonably convenient for the use of the reduction works. 

AjfPEAL from the District Court of the Fourth Judicial 
District, Humboldt County. 

The facts sufficieutly appear in* the opinion. 

Dickson ^ Varian for Appellant : 

L The act of 1875 gives no lien to the plaintiif for the 
material of the machinery or castings furnished. The clear 
and unmistakable declaration in section nineteen is to the 
effect that only persons performing work or labor on the 
machinery, etc., shall have a lien. It is also plain, that no 
lien is given to laborers for the carrying on of the mill. 

II. The right of lien is founded upon contract. There 
must be a contract, express or implied, before a right of 
lien attaches. In this case the lessee of the term of 3*ears 
was one of the contracting parties, and the lien claimants 
the other. In no sense was the lessee the owner's agent. 



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Jan. 1884.] Gould v. Wise. 255 

Argument for Appellant. 

He himself was the owner in the sense of the statute. 
(Phill. Mech. L., sec 83, et seq,; Harman v. Allen, 11 Geo. 
45; Collins v. Mott, 45 Mo. 100; Francis v. Sai/les, 101 
Mass. 435 ; Lister v. Lobley, 36 Eng. C L. 435 ; Ombony 
V. Jones, 21 Barb. 520 ; Choteau v. Thompson, 2 Ohio 
St. 114 ; Duiro v. Wilson, 4 Ohio St. 101 ; Johnson v. 
JJeioei/, 36 Cal. 623 ; Mumford v. Brown, 6 Cow. 475.) The 
lessee cannot bind the reversion nor improve the tenant in 
fee out of his property. (Alley v, Lanier, 1 Cold. (Tenn.) 
540; Caldwell Institute V. Young, 2Duv. (Ky.)582; Lynam 
V. King, 9 Ind. 3 ; Hawarth v. Wallace, 14 Penn. St. 118 ; 
Gaule V. Bilyeau, 25 Penn. St. 521 ; Squires v. Fithian, 27 
Mo. 134; 13 Ind. 475; Knapp v. Brown, 11 Abb. Pr. (N. 
S.) 118 ; Kirk v. Taliaferro, 8 Sm. & M. (Miss.) 754 ; Mc- 
Cartey v. Carter, 49 III. 53; Z6% v. Wilson, 40 Penn. St. 
67; McClvfitockv. Crisioell, 67 Penn. St. 183; Phill. Mech. 
L., sec. 186 et seq,, sec. 191.) 

III. Torrey having covenanted to put the premises in 
repair, the relation between the Boca Mill Co. and him was 
simply that of owner and contractor, so far as the claim of 
plaintiff is involved, and he is not entitled to any lien upon 
the premises. If Torrey was a contractor, then plaintiff* 's 
lien must be given, if at all, by sections one and nineteen 
of the act. In discussing this statute the following author- 
ities are cited upon the question of the construction of 
statutes with a view of arriving at the meaning of the term 
"agent'* in section one. [Harris v. Reynolds, 13 Cal. 515; 
Bish. Writ. Laws, sees. 96, 242 ; f7. H. v. Magill, 1 Wash. 
C. C. 463 ; Adams v. Turrentine, 8 Ire. 149 ; State v. Smith, 
5 Hump. 396 ; Ex parte Vincent, 26 Ala. 145 ; Macey v. 
Raymond, 9 Pick. 285 ; Merchants Bank v. Cook, 4 Pick. 
405; Potter's Dwar. on Stat. 199.) It is sufficiently estab- 
lished by the foregoing authorities that, unless there is 
something upon the face of this statute from which it mani- 
festly appears that the term "agent'' as used in the latter 
clause of the section under discussion, was not intended to 
be used in its legal signification, the force and meaning 
thereof is that which it had previously acquired in the law. 



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256 Gould v. Wisb. [Sup. Ot. 

Argament for Appellant. 



The power of this statutory agent, by his acts, to bind or 
affect his principal, the owner, must be determined by those 
well settled legal rules and principles which define the rights 
and liabilities of principal and agent ; some of the most 
elementary of which are that the principal is only bound by 
those acts or contracts made or performed by the agent, 
which are within the scope of his authority. If the agent 
transcend his powers the principal is not held ; and third 
persons dealing with an agent must take notice of the extent 
of his authority. (Stor. on Agency, sees 67, 71, 164, 176 ; 
Blum V. Robertson; 24 Cal. 128 ; Boston Iron Co, v. Hale^ 
8 N. H. 363 ; Toion v. Hendee, 27 Vt. 258 ; Taft v. Baker, 
100 Mass. 68, 75 ; Sprague v. Gillett, 9 Met. 91 ; 1 Chit, 
on Cont. 287.) The power conferred upon the statutory 
agent enables third persons who supply him with materials 
to be used in the execution of his contract, or who labor for 
him therein, to charge the property of his principal, the 
owner, with a lien therefor to the extent of the amount to 
become due to him from his principal on the principal con- 
tract, at the time he, the agent, purchases the material, or 
employed the labor. If not so limited, the statute in 
question leads to injustice. A construction which leads to 
injustice is to be avoided, if possible. 

IV. Whatever may be said of the right to a lien against 
the property of the owner for the value of the work done in 
repairing a mill, &c., under a contract between the lien 
claimant and the original contractor, it is safe to stvy that 
there is nothing in the statute to indicate that the legisla- 
ture intended to give a lien against the property of the 
owner, for the value of labor done in running and carrying 
on a mill, under a contract of employment between the lien 
claimant and the lessee of the owner. 

V. No lien is given by statute upon the land on which 
the mill is situated for work done in carrying on the mill 
by the lessee. 

VL There was no evidence from which the court could 
determine how much of the land on which the buildings are 
situated was necessary for the convenient use and occnpa- 



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r 



Jan. 1884.] Gould v. Wise. 257 

Aigument for Respondent. 

tion thereof. The coart, we say, cannot make a determin- 
ation thereof unless there be some evidence upon which to 
base its determination. [Lothian v. Wood, 55 Cal. 159.) 

VII. There was no evidence, in any view, that notice had 
been brought home to the Mill Company. The agency of 
Osborn had no relation to the management and control of 
the property leased, which had passed beyond the control 
and dominion of the owners. He was not acting in regard 
to it, and any knowledge that he may have acquired, was 
not the knowledge of his principal. {Lothian v. Wood^ 65 
aU. 169.) 

A. C -Ellis, for liespondent : 

L There is no ambiguity in the language employed in 
section 19 of the lien law as to the intention of the legisla- 
ture to give a lien to the class of material men enumerated 
for furnishing machinery and castings as well as for labor 
expended on the same. But even if the legislature had 
failed to clearly express its intention by the language used 
in the particular section in question, this court will not con- 
fine itself to a consideration of one section of the act, but 
will consider all the sections together, if necessary, in order 
to determine what the intention of the legislature was. 
{Buimham v. Hayes, 3 Cal. 116 ; San Francisco v. Hazen^ 
6 Id. 109 ; Taylor v. Palmer, 31 Id. 240 ; Cullerton v. Mead, 
22 Id. 98 ; People v. White, 34 Id. 183 ; Murray v. Cent. 
E. R. Co., 3 Abb. Ap. 339.) 

n. The owner having full knowledge that the repairs 
were being made upon the works, the law presumes that it 
was willing to allow the repairs to be made, and having 
done this, its interest in the property was subject to these 
liens. {Faquay v. Sticlcney, 41 Cal. 586 ; Phelps v. M, C. 
G. M, Co,, 49 Id. 337.) 

III. The court below was justified in giving a lien on 
the whole of the land in favor of the lien claimants. {Dick- 
son V. Corbett, 11 Nev. 277.) 

By the Court, Bblknap, J. : 

Foreclosure of mechanics' liens. The Boca Mill Company, 

Vol. XVIII-33 ^ . 

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2r)8 Gould v. Wise. [Sup. Gt. 

Opinion of the Court— Belknap, J. 

a corporation, was the owner of reduction works, and the 
land upon which they are situated. One Torrey entered 
into the possession of the premises under a written lease> 
duly recorded, for the term of two years. During Torrey's 
term the plaintiff and intervenors furnished materials and 
labor which were used in repairing and "carrying on*' 
the mill. This suit is brought against defendant, as the 
successor in interest of the Boca Mill Company to the 
property, to enforce lien claims for the materials and labor 
80 furnished. 

The first question presented is whether Torrey, the lessee, 
could create a lien upon the premises that would affect the 
estate of the lessor. Section 1 of the lien law provides that 
"every person performing labor upon or furnishing mate- 
rials * * * to be used in the construction, alteration, 
or repair of any building, * * * has a lien upon the 
same for the work or labor done, or materials furnished, by 
each respectively, whether done or furnished at the instance 
of the owner of the building or his agent; and every con- 
tractor, sub- contractor, architect, builder, or other persons 
* * * having charge of the construction, alteration, or 
repairs, either in whole or in part, of any building, or other 
improvement as aforesaid, shall be held to be the agent of 
the owner for the purposes of this chapter." (Stat. 1875, 
122.) It may be conceded for the purposes of this case 
that to authorize a lien there must be an employment by 
the owner of the building, or his authorized agent, and that 
an employment by a lessee does not constitute the employ- 
ment contemplated by the statute; and, further, that to 
constitute the contractor, sub- contractor, architect, builder, 
or other person the statutory agent of the owner, such per- 
son must have been employed, directly or indirectly, at the 
instance of the owner, or his conventional agent. But the 
interest of the owner may be subjected to lien claims, not- 
withstanding the labor and materials have not been fur- 
nished at his instance, if, knowing that alterations or repairs 
are being made or are contemplated, he fail to give notice 
that he will not be responsible therefor, as provided 



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Jan. 1884.] Gould v. Wise. 259 

Opinion of the Court — Belknap, J. 

in section nine of the act. The provision is as follows : 
**Sec. 9. Every building or other improvement men- 
tioned in section one of this act, constructed upon any lands, 
with the knowledge of the owner or the pei*son having or 
claiming any interest therein, shall be held to have been 
constructed at the instance of such owner or pereon having 
or claiming any interest therein, and the interest owned or 
claimed shall be subject to any lien filed in accordance with 
the provisions of this chaptei', unless such owner or person 
havinor or claiminor an interest therein shall, within three 
days after he shall have obtained knowledge of the con- 
struction, alteration, or repair, or the intended construction, 
alteration, or repair, give notice that he will not be respon- 
sible for the same, by posting a notice in writing to that 
effect in some conspicuous place upon said land, or upon the 
building or other improvement situate thereon." 

The evidence showed that the corporation had an agent 
residing in the vicinity of the premises, who personally 
visited the reduction works and knew that the work was 
being done and the improvements made. This evidence 
was prima facie sufficient to charge the corporation with 
knowledge of the fact. Xo notice having been given by it 
that it would not be responsible for the materials and work, 
it results from the provisions of this section that its estate 
is chargeable with the liens. 

Again, the consideration fftr the lease was that the lessee, 
^'at- his own cost and expense, * * * make all neces- 
sary repairs and improvements in and about said mill and 
reduction works, and furnish all necessary materials to place 
the same in good condition for crushing," etc. The money 
80 used, together with that expended in paying taxes and 
insurance, the lease provides, ''shall be in full payment and 
satisfaction for' the rent of said premises for the first year." 
This of itself shows knowledge on the part of the gprpora- 
tion of the "intended construction, alteration, or repair," 
within the meaning of section 9. 

A question growing out of the provisions of this section 
is whether persons performing labor in operating the mill 



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260 Gould v. Wise. [Sup. Ct. 

Opinion of the Court— Belknap, J. 

can acquire a lien against the estate of the lessor. Section 
nineteen, as will be hereafter sliown, provides liena for 
labor performed in ''carrying on*' mills, manufactories, 
and hoisting works, and declares that all of the provisions of 
the lien law respecting the mode of filing, recording, secur- 
ing, and enforcing liens shall be applicable to the provisions 
of this section. The provisions of the lien law preceding 
section nineteen were, with two exceptions, immaterial to 
this case, enacted with reference to liens for work done or 
materials furnished in the construction, alteration, or repair 
of buildings. In extending the right of lien to a new class, 
it was natural for the legislature to ordain that the general 
rules governing liens should also be extended. And in sec- 
tion nineteen these general provisions were made applicable 
in so far as they are appropriate to the new subject of lien. 
This conclusion is warranted by the ^ihraseology of the 
statute, and by the presumed intention of the legislature, 
to create an harmonious and not an incongruous law. 

The question also arises whether the law, as it now stands, 
contem()lates lien-claims for work performed in '* carrying 
on " reduction works. At the session of the legislature of 
1869 the following supplement was made to the mechanic's 
lien law : 

"All foundrymen and boiler- makers, and all other 
persons performing labor, or furnishing machinery, or 
boilers, or castings, or other *material, for the construction, 
or repairing, or carrying on of. any mill, manufactoiy, or 
hoisting works, shall have a lien on such mill, manufactory 
or hoisting works, for such work or labor done, or for such 
machinery, or boilers, or castings, or otlier material fur- 
nished by each respectively.*' (8tat. 1869, p. 61.) 

At the next session the lien law underwent some alter- 
ations, but this section was re-enacted without change, save 
that the italicised word " for " was omitted. The employ- 
ment of this word in the original enactment was unneces- 
sary, and its omission worked no other alteration in the law. 

The supplemental law provides for two classes of lien 
claimants. One class consists of foundrymen, boiler- makers, 



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Jan. 1884.] Gould v. Wise. 261 

Opinion of the Court— Belknap, J. 

and persons furnishing machinery, boilers, castings, or other 
materials. The other class consists of pei'sons performing 
labor. Down to the time of its enactment persons i.)erform- 
ing labor or furnishing materials for the purpose of operating 
mills, manufactories, or hoisting works were not entitled to 
liens under tlie lien law. The only ohject of the provision 
was to extend the right of lien to this class of claimants. 
Foundrymen, boiler- makers, and others furnishing labor or 
materials in constructing or repairing were already secured 
in their right of lien by the provisions of section 1 of the 
lien law, and the provisions of the supplemental law did not 
confer upon them additional rights. 

In the year 1875 the law was again revised, and the 
revision constitutes our present law. The section under 
consideration was then re-enacted without change other 
than this:* The italicized word **on*' in the followinff 
quotation was inserted in lieu of the word "or'* in the 
original enactment. The section as changed stands as 
follows : 

"Sec. 19. All foundrymen and boiler-makera, and all 
persons performing labor, or furnishing machinery or boilers, 
or castings, or other materials for the construction, or repair- 
ing, or carrying on of any mill, manufactory, or hoisting 
works, shall have a lien on such mill, manufactory, or hoist- 
ing works for such work or labor done on such machinery, 
or boiler, or castings, or other material furnished b}^ each 
respectively. * * *" (8tat. 1875, 126.) 

If this language be followed the right of lien is restricted 
to "work and labor done on such machinery, or boiler, or 
castings, or other materials '* as the lien claimant may have 
furnished, and is withheld from persons furnishing labor 
without materials ; and, also, from those furnishing the 
many articles of mining and milling supplies upon which no 
labor is bestowed by the vendor. The section, as it appears 
in the published statutes and in the enrolled bill, is delusive. 
It purports to provide for two distinct classes of lien claim- 
ants, but in fact provides for only one class. No reason 
can be assigned why the pretended provision for "pereons 



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262 Gould v. Wise. [Sup. Ct. 

Opinion of the Court — Belknap. J. 

performing labor '* should have been nullified by the incon- 
sistent provisions succeeding, nor for the senseless discrimi- 
nation in favor of those laboring upon materials furnished 
by themselves, and against those laboring upon materials 
furnished by others. If the intention of the legislature had 
been to change the law, it is reasonable to presume that 
language fairly expressive of such intent would have been 
employed, and that so radical a change would not have been 
brought about by the simple changing of the word "or" to 
**on.'* Instead, however, of fairly expressing a change in 
the law, the phraseology of the statute, unless attributable 
to clerical mistake, is intentionally misleading. No inten- 
tion to mislead can be indulged, and we conclude that the 
change arose through a clerical mistake, and should be dis- 
regarded. The error may be accounted for by the similar- 
ity in appearance of the words "or" and "on" as ordi- 
narily written. By mistaking the former word for the 
latter the error doubtless originated. 

The principle that courts will disregard clerical errors 
apparent upon the face of a legislative act has been 
frequently recognized. In U. S. v. Stem, 5 Blatchf. 513, 
the court had occasion to consider a statute providing for 
the indictment of i)ersons convicted of bribery. If effect 
were given to the clause concerning convictions, the whole 
act would be rendered meaningless. In order to carry out 
the intention of congress the clause was disregarded. 

A statute of the state of Minnesota, providing for the 
removal of actions to the supreme court, declared, by its 
first section, that "a judgment or order in a civil or criminal 
action in any of the district courts may be removed to the 
supreme court, as provided in this chapter." The second 
section was in these words : "All pencd judgments in the 
district courts may be examined and affirmed, reversed or 
modified by the supreme court ; * * * such examina- 
tion may be made upon writ of error or appeal as herein- 
after provided." The court held that the manifest design 
of the statute was to subject all judgments of the district 
courts to examination by the supreme court ; that the second 



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Jan. 1884.] Gould v. Wise. 263 

opinion of the Court— Belknap, J. 

section contained the only provision touching the manner of 
removing judgments ; that if it were construed according to 
its letter, the whole statute would be rendered ineftectual ; 
that the substitution of the word ^'finar' for the word 
''penal" would render the whole chapter eflectual, and 
consistent with its intent and purpose, and thereupon the 
court concluded that the use of the word ''penal" instead 
of the word "final" was a clerical or typographical error, 
and that the section should be treated as if the word "final" 
were substituted for the word "penal." {Moody v. Stephen- 
son, 1 Minn. 401, (Gil. 289.) Decisions involving the same 
principle were made in the following cases : Jenks v. 
Laiigdon, 21 Ohio St. 370 ; Turner v. Sixite, 40 Ala. 21 ; 
Nazro v. Merchants Ins. Co. 14 Wis. 295 : Haney v. Slate, 
34 Ark. 268 ; People v. Onondaga, 16 Mich. 254 ; Blanchard 
v. Sprague, 3 Suran. 279 ; People v. Hoffman, 97 111. 234 ; 
McConkey v. Alameda Co. 56 Cal. 83; Frazier v. Gibson, 1 
Mo. 272. 

The meaning attaching to the words "carrying on," as 
used in section 19, was construed by the district court of 
the United States for this district, in the year 1871, to the 
ettect that a teamster, in hauling quartz to a mill, performed 
labor for carrying on the mill and was entitled to a lieu 
against it. {In re Hope M. Co. 1 Saw. 710.) In 1875, as 
before stated, the legislature re-enacted the provision so 
construed. It has frequently been held that the re-enact- 
ment of a statute without substantial alteration, after an 
authoritative construction has been placed upon it, is a legis- 
lative adoption of the construction. The cases in which the 
rule is announced are generally those in which the construc- 
tion has been given by the highest court of the state ; no 
case has fallen under our notice in which the construction 
was given to a statute of the state by the courts of the 
United States. The rule is based upon the presumption 
that the legislature knew of the construction. 

In Hunter v. Truckee Lodge, 14 Nev. 39, this court felt 
safe in holding that before an oflicial publication of a decis- 
ion by the supreme coun of California "there ought to be 



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264 Gould v. Wise. [Sup. Ct 

Opinion of the Court — Belknap, J. 

no presumption that the decision was known to our legisla- 
ture/' *'In frequent instances,'* says the court in that 
case, "the courts have taken pains to show, by comparison 
of dates and otherwise, that it was reasonable to presume 
that the previous construction of borrowed statutes was 
actually known to the legislature by which they were 
adopted ; and in one case, Campbell v. Quinlin, 3 Scam. 
289, some stress was laid 'upon the fact that the decisions 
had not only been made, but the ' reports published to the 
world* prior to the adoption of the sttitute in question.'* 

The federal decision to which we have referred was pub- 
lished in the year 1873, in the reports of cases determined 
by the United States courts within the distnct embmced by 
the state of Nevada. If the presumption of knowledge on 
the part of the legislature is based upon the fact that pub- 
licity is given to the construction by publication of the 
decision, as this court appears to have held, we see no rea- 
son why the presumption of legislative adoption of the judi- 
cial construction of the statute in this case should not apply 
with the same force as in the cases decided by the state 
courts. 

Again, courts frequently refer to the history of a statute, 
and to any circumstance evidencing its object, for the pur- 
pose of ascertaining the intention of the legislature. Such 
reference is based upon the presumption that legislatures 
are conversant with the subject matter upon which they are 
acting. The decision in the firet of Sawyer's reports forms 
part of the history of the lien law, and it is reasonable and 
just to assume that in legislating upon the subject of 
mechanics liens it was not overlooked. Independently of 
these considerations, we are convinced that persons furnish- 
ing labor or materials used in operating the mill are entitled 
to liens, because, firsts the language of the statute so 
declares; and, second, as stated in another portion of this 
opinion, the enactment of section 19 was unnecessary, unless 
its object was to extend the right of lien to these classes of 
claimants. 

The last point made is that'there was no testimony show- 



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Jan. 1884.] Gould r. Wise. 265 

OpiJiion of Leonard, J., dissenting. 

ing how much of the land, npon which the reduction works 
stood, was necessary for its convenient use and occupation. 
When the reduction works were leased the land determined 
by the court as subject to the lien was embraced within the 
demised premises. And when the defeudant acquired the 
property he purchased this land and the reduction works. 
This testimony showing that the land and reduction works 
had been leased together, and sold together, tends to prove 
that the property subjected to the liens has been treated as 
a unit and used fpr a common purpose. With this testi- 
mony the court, in the absence of any suggestion to the 
contrary, (and none was made at the trial) might properly 
have inferred that the land so used and treated was reason- 
ably convenient for the use of the reduction works. 

The judgment and order of the district court overruling 
the motion for new trial are affirmed. 

Leonard, J., dissenting: 

Whether or not any person has a lien on real property 
depends entirely upon the statute. Our statute, in the cases 
mentioned therein, only gives liens for labor performed and 
materials furnibhed at the instance of the owner or his agent. 
*' Every contractor, sub-contractor, architect, builder, or 
other person having charge of any mining chiim, or of the 
construction, alteration, or repairs of any building or other 
improvement,*' is an agent of the owner. 'A contractor is 
one who enters into a contract with the owner to perform 
labor or furnish materials, and is responsible to tlie owner ; 
a sub-contractor enters into a contract with the contractor 
and is responsible to the latter; an "architect, builder, 
or other person" may have charge for the owner, con- 
tractor, or sub- contractor. There may be at the same time 
an owner of the fee and an owner for years, as there wns in 
this case. (Phil. Mech. Liens, 151.) The plaintiff was a 
contractor with Torrey, the lessee, but not with defendant's 
grantor, the owner of the fee. Plaintiff was an agent of 
Torrey, but not of the Boca Mill Company, nor was Torrey 
the hitter's agent. As agents of the Boca Mill Company, 

Vol. XVin-34 

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266 Gould v. Wise. [Sup. Gt. 

Opinion of Leonard, J., dissenting. 

neither plaintilf nor Torrey had power to burden the 
interest of the former with liens. Under section 1 of the 
lien law it is only upon contracts made with the owner or 
his agents named, that liens are allowed at all, and, without 
section 9, it is my opinion that Torrey's interest alone would 
have been subject to any liens filed in this case. 

In Georgia the statute giving all persons employed on 
steamboats a lien thereon for wages, and for wood and pro- 
visions furnished, was so amended as to be applicable to all 
steam saw mills at or near any of the water- courees in 
the state, in behalf of all persons who might be employed 
by the owner or owners, agent or superintendents, for services 
rendered, or for timber or fire-wood of any description, 
provisions or supplies, delivered to any such steam saw-mill. 
The amendment also declared that the same course should 
be pureued for the recovery of any such claim, as was 
stated in the original act; provided, the demand for such 
claim should be first made to the owner or agents of any 
person having control of any steam saw-mill against which 
any proceedings might bo had under the provisions of said 
act. (Cobb Dig. Ga. 1851, p. 428.) Construing that 
statute in Harman v. Allen, 11 Ga. 46, the court said : 

*'The lien given by the act of 1842, and the summary 
remedy provided for its enforcement, are in behalf of the 
persons who are emplo^'ed by the owner, agent, or superin- 
tendent of the mills, or for services rendered, or for supplies 
of any description which may be furnished the mill. It is 
clear that the lessee is neither agent nor superintendent in 
contemplation of the statute. He must, therefore, be the 
owner of the property, or otherwise the act does not apply 
to him at all. But he is the qualified owner of the mills, 
and it was competent for him, as such, to bind the property 
for the unexpired term for which it was let. Beyond this 
he could not go. It would be intolerable to hold that he 
could create liens upon the reversion, ad libitum^ for stocks 
and other materials consumed during his temporary occu- 
pancy. It has been contended that the words * agent * and 
* superintendent, ' include those who, de facto, control the 



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Jan. 1884.] Gould v. Wise. 267 

Opinion of Leonard, J., dissenting. 

property, irrespective of ownership. If so, then a mere 
trespasser or disseizor who wrongfully obtains the custody 
might incumber the estate with the most ruinous burdens. 
Such, we apprehend, could not have been the inten- 
tion of the legislature. None but the rightful owner, his 
agent, or superintendent can exercise this power ; and, inasr 
much as the tenant for the time being is the rightful owner, 
he may, by his contract, bind the property to the extent of 
iis interest, but no further.** 

.In my judgment the court's reasoning in that case is 
BDund, and it is appUoable to this cjise under section one. 
See.iilso, McCcvrty v. Carter^ 49 111. 57 ; Phil. Mech. Liens, 
117. 

But section 9 provides that *' every building or other 
improvement mentioned in section 1, constructed upon any 
lands with the knowledge of the owner, or the person claim- 
ing an interest therein, shall be held tp have been con- 
structed at the instance of such owner or person claiming 
any interest therein, and the interest owned or claimed 
shall be subject to any lien filed in accordance with the 
provisions of this chapter, unless such owner or person 
having or claiming an interest therein shall, within three 
days after he shall have obtained knowledge of the con- 
struction, alteration, or repair, or the intended alteration, 
construction, or repair, give notice that he will not be 
responsible for the same, by posting a notice in writing to 
that eftect in some conspicuous place upon said land or 
building or other improvement situate thereon." If defen- 
dant's grantor had knowledge through its agent of the con- 
siruction, alteration or repairs made by Torrey, and did not 
post the required notice within the specified time, then, by 
the terms of the statute, the materials furnished by plaintiflt* 
and the labor performed in repairing or altering the mill 
must be held to have been furnished or performed at the 
instance of the Boca Mill Company, and, under section 1, 
as well as section 9, the interest of that company became 
burdened with Uehs for such materials and labor. But for 
the labor performed by intervenors in *' carrying on the 



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268 Gould v. Wise. [Sup. Ct. 

Opinion of Leonard, J., dissenting. 

mill,'* I do not think the statute, construed as an entirety, 
permits any interest beyond that of the lessee to be sub- 
jected to the liens. 

Section nineteen of the existing lien law was enacted as 
an independent statute in 1869, and was embodied in the 
present law in 1875, when section nine was, for the first 
time, made a part of the law governing liens. I feel satis- 
fied, as before stated, that without the aid of section nine 
even the plnintiti:' could not have subjected the interest of 
the Boca Mill Company to liens for materials furnished and 
labor performed for Torrey ; and if I am right in this,4theu 
intervenors are not entitled to a lien upon that interest, for 
labor perfornied in ''carrying on the mill,'* because section 
nine does not declare that such labor shall be held to have 
been performed at the instance of that company, unless it 
gave the notice required in case of construction, alteration, 
or repair. 

Under section nine the Boca Mill Company was bound to 
give the required notice or have its property subjected to 
liens for machinery and materials furnished, and for labor 
performed under contract with Torrey, in constructing, 
altering, or repairing the mill. But for the labor per- 
formed in running the mill, no notice was required; and it 
cannot be said that the owner of the reversion was bound 
to give notice as to such labor, simply because it had to be 
given in the matter of materials furnished and labor per- 
formed in improving the mill. On the contrary, since the 
legislature, ex industria, limited the necessity of a notice to 
one class of claims, the presumption is that the other was 
not intended to be included. 

Section 9 is a harsh law, and it should not be construed 
to mean more tiian was plainly intended by the legislature. 
If a mill is altered or repaired by a lessee, a lien may, with 
some reason, be given upon the interest of the lessor, 
unless he gives the notice required; for the value of the 
property may be, and probably will be, enhanced by the 
outlay. But before I can say the legislature intended to 
give a lien upon the mill of a lessor for work performed in 



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Jan. 1884.] Lachman v. Barnett. 269 

Points decided. 

running it, under a contract with a lessee, and for his sole 
benefit, in other words, before I can say that the legislature 
intended to make a lessor's pro[»erty liable for a lessee's 
debt^, snch intention must be so plainly expressed that no 
other construction is consistent with the language employed. 
In my opinion that intention nowhere appears in the statute 
under consideration. 

It is provided in section 19, under which intervenors 
claim their lien, that *'all the provisions of this act respect- 
ing the mode of filing, recording, securing, and enforcing 
the liens of contractors, journeymen, laborers, and others, 
* * * shall be applicable to this section of this act." 
That is to say, Hen claimants, under section 19, shall 
pursue the same course in recovering their claims as is 
required of other lien claimants. I am of opinion, also, 
that under section 3 of the Hen law the Hens of intervenors 
cannot attach to any interest in the land occupied by the 
mill except Torrey's. 

To the extent stated I dissent. 



[No. 1151.] 

D. LACHMAN et al., Kespondents, v. THOMAS BAR- 
NETT ET al., Appellants. 

Possession of Land — Easement of W^ay Over, Does Not Give. — The mere 
enjoyment of an easement of the riglit of way over land does not give the 
owner of the easement possession of the land over which the easement of 
way exists. 

Forcible Entry and Unlawful Detainer— Force.— Every entry into the 
lands or tenements in the actual possession of another, with strong hand, 
or with a multitude of peoi)le, is forcible. 

Idem— Pladikgs and Evidence, Sufficiency of.— The pleadings and evi- 
dence reviewed: JMdy that the jury were justified, therefrom, in finding 
both a forcible entry and forcible detainer. 

Immaterial Evidence — Exclusion of.— The exclusion of evidence which 
merely tended to prove the use of the casement by the defendants and 
tlieir tenants : Held, not erroneous or prejudicial to defendants. 

Appeal from the District Court of the Seventh Judicial 
District, Washoe County. 

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270 Lachman v. Barnett. [Sap. CC 

opinion of the Court— Leonard, J. 

The facts are stated in the opinion. 
William Wcbsler^ for Appellants. 
Thomas E. Haydon, for Respondents. 

By the Court, Leonard, J.: 

In the complaint herein it is alleged that on and prior to» 
March 25, 1879, and at all times since April 10, 187], plaint- 
iffs were and have been peaceably in the actual possession 
of the south twenty feet of lots twenty-three and twenty- 
four, in block 0, in the town of Reno, fronting twenty feet 
on the west line of Vire^inia street, and extending along the 
north line of the alley running easterly and westerly 
through said block fifty feet, together with the tenements, 
hereditimients and appurtenances of Siiid land; that on the 
twenty-fifth of March, 1879, while plaintiffs were peace- 
ably in the actual possession of the west ten by twenty feet 
of the above described land, defendants, without right of 
entry given by law, with strong hand, did forcibly, wrong- 
fully and unlawfully make entry into said west ten by twenty 
feet of land, and the tenements thereon, and knock and tear 
down plaintiffs' fence inclosing the same, and otherwise 
injure the rights and possessions of plaintiffs to said lands 
and tenements, and ever since said wrongful entry of 
defendants, they have forcibly, wrongfully and unlawfully 
detained the possession of said west ten by twenty feet, and 
the tenements thereon. 

In their sworn answer, defendants specifically deny plaint- 
iffs* ownership or possession ; deny that they entered without 
right given by law, or forcibly, wrongfully, or unlawfully, 
on the twenty-fifth day of March, 1879, or at any other 
time ; or that they knocked down the fences of plaintiffs' 
enclosing said land ; or that they forcibly, wrongfully, or 
unlawfully detain said land, or the west ten by twenty feet 
thereof, or the tenements thereon. For affirmative defense, 
defendants allege that they own the fee and occupy the 
north eighty feet of said lots twenty-three and twenty- four; 
that prior to April, 1871, they were the owners of the south 



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Jan. 1884.] Lachman v. Barnbtt. 271 

Opinion of the Courts-Leonard, J. 

twenty feet of said lots ; that on or about April 8, 1871, 
defendant Thomas Barnett sold and conveyed said south 
twenty feet of said Tots to George Becker, (plaintifts* 
grantor,) but reserved a ri<yht of way over said twenty feet 
so conveyed, to the ])roperty owned by defendants adjoining 
said twenty feet on the north ; that said reservation was in 
writing, and contained in the deed of conveyance to said 
Becker, and embraced a sti-ip ten feet inside, on the rear of 
said twenty by fifty feet conveyed to Becker, for alley-way 
purposes ; that such right of way was reserved for the 
exclusive use and convenience of egress and ingress to 
their other property on lots twenty-three and twenty-four ; 
that said Becker by said deed was limited to the use of 
twenty by forty feet of the twenty by fifty feet conveyed ; 
that from the date of said conveyance, defendants had the 
exclusive use of said west ten by twenty feet for alley-way 
purposes, until March 25, 1879, when plaintifl:s wrongfully 
and unlawfully entered upon said ten feet of alley, and 
commenced to inclose the same, and while said alley was 
in the possession, and open for the use of defendants ; that 
plaintifts' obstructions were a nuisance, and, after plaintiffs' 
refusal to remove the s^ime, defendants removed them in 
order that they might have, as it was their exclusive right 
to have, the use of said alley-way at all times. 

The statute provides that, 

"No entry shall be made into the lands, tenements, or 
other possessions, but in cases where entry is given by 
law ; and in such case, only in a peaceable manner, not with 
sti'ong hand, nor with a multitude of people. When such 
entry is forcibly made, or where the entry shall be made in 
a peaceable manner, and the possession shall be held by 
force against the person entitled to the possession, the 
person so forcibly put out, or so forcibly holden out of 
possession, shall be restored to such possession by action, 
to be commenced and prosecuted as in this act provided." 
(Comp. Laws, sees. 41, 42.) 

•* On the trial of any action of forcible entry, or forcible 
detainer, the plaintiii' shall only be required to show, in 



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272 Lachman v. Barnett. [Sup. Ct- 

Opinion of the Court — Leonard, J. 

addition to the forcible entrj or forcible detainer com- 
plained of, that he was peaceably in the actnal possession at 
the time of the forcible entry, or was entitled to the pos- 
session at the time of the forcible detainer. The defendant 
may show in his defense that he or his ancestors, or those 
whose interest in such premises he claims, have been in the 
quiet possession thereof for the space of one whole year 
together, next before the commencement of said action, and 
that his interest therein is not ended or determined, and 
such showing shall be a bar to the action in all cases pro- 
vided for in this act.*' (Id. sec. 5U.) 

Undoubtedly, under the statute, plaintifts were bound to 
allege and prove that they were in the actual, peaceable pos- 
session of the west ten by twenty feet described, or some 
part thereof; that the defendants forcibly entered therou 
and forcibly detained the same ; or that defendants forcibly 
held possession which plaintitts were entitled to enjoy, 
although the entry was peaceable. 

The undisputed facts shown by the pleadings and evi- 
dence make it clear that at the time of defendant's entry, 
plfiintifts were in the actual, peaceable possession of tlie 
entire property described in their complaint, including the 
west ten by twenty feet thereof. Plaintiffs held the legal 
title to the land, and the only right that defendants claimed 
was an easement therein — the right of way over the west 
ten by twenty feet for allej'-way i^rposes. This right they 
exercised, let us say, up to the time of the alleged obstruc- 
tion of the passage-way by i)laintiffs, and for many years 
prior thereto. But, as against plaintiffs, the mere enjoy- 
ment of this right, if such they had, did not give them 
possession of the land over which the easement of way 
existed, or oust plaintifts therefrom. **The ownerehip of 
an easement, and that of the fee in the same estate, are in 
difterent persons. Nor docs the interest of the one aft'ect that 
of the other, so but that each may have his proper remedy 
for an injury to his right, independent of the other. Thus, 
the owner of the fee miiy recover his seizin by a proper 
action in his own name, and the owner of the easement, if 



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Jan. 1884.] Lachman v. Barnbtt. 278 

Opinion of the Court— Leonard, J. 

disturbed in the enjoyment of it, may sue for such disturb- 
ance in his own name. It has accordingly been held that 
the owner of the soil and freehold of the land over which a 
road is laid may have trespass against a stranger for acts of 
trespass done upon the land, as for cutting a tree or digging 
up the soi), and may have ejectment against a stmnger to 
recover the land, if deprived of the possession of it by him. 
In other words, he has exclusive seizin and possession of 
the soil of the highway, subject only to the easement of the 
public. * * * And, if the owner of the way shut it up 
and deny the owner of the land access to the same, the 
latter may have ejectment against him to regain the land 
covered by the way.*' (Washb. Easem. 8, 9, 15, 259, 264, 
265 ; Tyler, Ej. 41.) *' When a highway is established, the 
owner of the land over which it is laid out is in possession, 
and the laying out of the road does not dispossess him ; it 
only confers upon the public an easement, or right, to use 
the land for a specified purpose only, while for all other 
purposes the right of possession, and the actual possession, 
may remain as before. And it can make no difference, in 
this respect, whether this easement be imposed by law for 
a public purpose, or whether it be created by the owner of 
the land for private use. * * * aU these are burdens 
upon the land, and interfere with the owner's full use of it ; 
but they do not operate as an ouster of the proprietor, nor 
to transfer his right to possession, nor his interest in the 
soil, to the public or to another. The public has a benefit 
in the land, but not the possession." {Bead v. Leeds, 19 
Conn. 187; and see Wood v. T'ruckee Turnpike Co., 24 Cal. 
487 ; San Francisco v. Calderwood, 31 Cal. 589.) 

It being settled law that the owner of an easement, like 
the one claimed by defendants, has no right to possess the 
land, as such, upon which it is imposed, but a right merely 
to enjoy the way, and that the owner of the soil burdened 
with the easement is, in law, in possession of the land, it 
necessarily follows, as before stated, that the mere exercise 
of the right of way by defendants did not give them actual 
possession of any portion of the lots first described in 
plaintiffs' complaint. vol. xviii-35 

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274 Lachman i\ Barxett. [Sup. Ct. 



Opinion of the Court — Leonard, J. 

At the trial defendants did not pretend that they had used 
or occupied the west ten by twenty feet except as a passage- 
way.- They did not contradict plaintifts' evidence to the 
effect that the latter were put in possession of the entire 
premises by Becker, their e^rantor, in April, 1871, and that 
plaintiffs and their tenants, until March 25, 1879, used all 
the west ten by twenty feet, with the excejjtion of a passage- 
way about three feet wide, for storing wood, boxes, bottles, 
and other purposes ; or that this passage-way was used in 
common by plaintifts and defendants. There can be no 
doubt that plaintiffs were peaceably in the actual possession 
of the land over which defendants claim an easement on 
the twenty-fifth day of March, 1879, or that they were 
entitled to such possession at the time of the trial. It will 
be noticed that, in their answer, defendants do not deny the 
alleged entry. They only deny that it was forcible, wrong- 
ful or unlawful. Nor <lo they deny the allegation that ever 
since March 25, 1879, they have detained the possession of 
the west ten by twent}' feet, and the tenements thereon, 
from plaintiffs. They only controvert the allegation that 
such detention has been forcible, wrongful or unlawful. It 
is admitted then that defendants entered upon premises 
which were in the actual, peaceable possession of plaintiffs, 
and that, at the time of the trial, they detained the posses- 
sion of the same from them. They justify their entry and 
the detention by alleging that they had a right of way which 
plaintiffs obstructed, and that, by reason thereof, neither 
the entry nor the detainer was forcible, wrongful or unlaw- 
ful. There is no proof or admission of the claim of a right 
of way before us, but if there was it would not be a justifi- 
cation of a forcible entry or forcible detainer. The statute 
is plain upon this point, and all the authorities support the 
statement just made. Under the statute every entry into 
the lands or tenements in the actual possession of another, 
with strong hand or with a multitude of people, is forcible. 
The object of the statute was not to try titles, but to pre- 
serve the peace and prevent violence. 

At defendants* request the court instructed the jury that, 



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Jan. 1884.] Lachman v. Barnett. 275 



opinion of the Court— Leonard, J. 



'*if they found from the evidence that defendants, or 
either of them, knocked down the fence constructed by 
plaintifts, for the purpose of removing the same from the 
passage-way which they claimed over the lands of 
plaintifis, and for that purpose only, and not for the pur- 
pose of taking actual possession of the lands over which 
they claim the passage-way, nor for the purpose of taking 
possession of any part of the fifty feet claimed to be in the 
actual possession of the plaintifts at the time the fence was 
knocked down, and that defendants did not tiike the actual 
possession of any part of said fifty by twenty feet, to the 
exclusion of plaintiffs, they should find for defendants." 

Under that instruction the jury must have found that 
defendants knocked down the fence for the purpose of tak- 
ing actual possession, and that they accomplished their pur- 
pose. They were justified by the evidence and the allega- 
tions, denials and admissions in the answer, in so finding. 
It is true, Thomas Barjiett, one of the defendants, testified 
that when he knocked down the fence, he '*used no more 
force than was necessary; that what he tried to do was to 
get the boards ofl' for the purpose of opening the passage- 
way ; that he did that and nothing more ;" but it is quite 
evident that his object in removing the obstruction was for 
the purpose of taking and holding possession of the land. 
The answer shows this, and there was evidence supporting 
the same. 

This action was commenced on the day of defendants' 
entry. In tiieir answer, filed four days thereafter, they 
deny that plaintiffs are the owners, or have been in pos- 
session of the south twenty feet of lots twenty-three and 
twenty- four. They allege that their reservation of a right 
of way embraces a strip ten feet by twenty, in the 
rear of the lots mentioned, for alley way purposes, and 
that such right was reserved for the exclusive use and con- 
venience of defendants ; and that by the express provisions 
of their deed, their grantee, Becker, was limited to the use 
of twenty by forty feet ; that from the date of their said 
conveyance, they had had the exclusive use of said ten feet 



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276 Lachman v. Barnett. [Sup. Ct. 

Opinion of the Court — Leonard, J. 

for alley- way purposes ; that plaintifts wrongfully and unlaw- 
fully entered upon said ten feet and commenced to inclose 
the same, while said alley-way was in the possession of and 
open for the use of defendants ; that the fence built by 
plaintiffs was a nuisance, which defendants removed in 
order that they might have, as it was their exclusive right 
to have, the use of said alley- way -at all times. In their 
amended answer, defendants allege that since April, 1871, 
they have had the full use, and peaceable, exclusive and 
lawful possession of the alley-way referred to, for the pur- 
pose of egress and ingress to and from their property on the 
north eighty feet of lots twenty- three and twenty-four. 

Defendant Thomas Barnett testified that he gave one 
Henry, a tenant of plaintiiis, permission to put up a small 
kitchen in the north-west corner of the west ten by twenty 
feet, used by defendants for an alley-way. He also stated 
that he did not know that the passage-way had been at any 
time obstructed by plaintilTs, until March 25, 1879 ; that 
he had seen boxes in the passage-way, which he threw into 
the alley ; that at one time plaintiffs piled some wood in 
the passage-way, which he removed by throwing it into 
the alley; that he told one of the plaintiffs, after knocking 
down the fence on the twenty-fifth of March, to take away 
his boards, or he should remove them out of the way, and 
that Lachman removed them," and all the materials used in 
making the fence. 

One of the plaintiffs testified that they made no use of 
the west ten by twenty feet after March 25th ; that they 
were deterred from using this land, or attempting to inclose 
it, by what occurred on that date ; that they did not try to 
rebuild the fence, because they immediately brought this 
action, and thought it their duty to abide by the law ; that 
he was not a fighting man, and did not want to renew any 
cause for trouble or personal difficulty. 

Without further analysis of the pleadings or evidence, it 
is sufficient to say that the jury were justified in finding 
both a forcible entry and a forcible detainer. If it be true 
that defendants were entitled to unobstructed passage over 



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Jan. 1884.] Lachman v, Barnett. 277 

Opinion of the CJourt — Leonard, J. 

the land in question, they should have adopted lawful 
methods for the enforcement of their rights. They were 
not justified in attempting to obtain them by forcible means. 
(People V. Leonard, 11 Johns. 509; MUchdlv, DaciSy 23 
Cal. 384 ; Porter v. aiss, 7 How. Pr. 445 ; People v. Van 
Nostramf, 9 Wend. 53; Voll v. Hollis, 60 Cal; 573 ; Allen 
V. Tobias, 77 111. 171 ; Krevei v. Mei/er, 24 Mo. 110 ; 
Harris v. Turner, 46 Mo. 439 ; Barileit v. Draper, 23 Mo. 
408; 2 Bish. Crim. Law, (7th Ed.) sec 490.) 

If we are right thus far, the several assignments of error 
will be readily disposed of. 

1. The court did not err in excluding evidence tending to 
show that the tenants of defendants used the passage-way for 
the purposes of egress and ingress. Should it be conceded 
that such evidence was technically admissible, its exclusion 
could not have injured defendants, because the testimony 
all showed that they themselves, and their- employes, so 
used it uninterruptedly until March 25, 1879 ; and if such 
use by them did not give them actual possession, it could 
have added nothing of value to their case, to have shown in 
addition, that their tenants used it in the same manner. In 
other words, proof of such use by defendants alone, accom- 
plished everything that undisputed evidence of use, also, by 
their tenants, could have done. It could not have strength- 
ened defendants' case to have been allowed to show tjiat 
their tenants made the same use of the alley-way that they 
did. But if the exercise of the right of way by defendants* 
themselves did not give them actual possession, it cannot 
be said that such use by their tenants gave it. 

2. It was not error to exclude tlie testimony of witness 
Pechner, to the effect that in 1871, while he was a tenant 
of defendants, he and his partner built a fence at the south 
end of the west ten by twenty feet, and put a gate therein, 
by the persuasion of defendants. It is said that this testi- 
mony was especially material for the purpose of showing 
the use and control by defendants of the passage-way in 
question. But it would not have tended to show anything 
of the kind. Nor would it have tended to show that the 



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278 Elder i\ Frevbrt. [Sup. Ct. 

Points decided. 



18 


278 


3*237 


18 


446 


6* 


60 


19 


3St 


10*442 


20 


47 


14*587 


18 


278 


24 


227 


26 


27fl 


25 


844 


25 


845 



possession was not in plaintiffs at the time of the entry by 
defendants. Pechner claimed no interest in the land as 
such, or right of possession thereto, adverse to plaintiffs, in 
1871 or afterwards ; and evidence that he put up a fence at 
one end of the ground, for his own accommodation, would 
not show that plaintiffs were not in possession, or that de- 
fendants were, at the time of the entry. 

8, The motion for a nonsuit should not have been granted 
for reasons before stated. 

4. It was not error to strike out the testimony of witness 
Jacobs, to the effect that, several years before the trial, he 
heard one of the plaintiffs tell one Lipscomb that he wished 
witness '* would remove certain wood from the alley belong- 
ing to the latter, as the defendants would object to its -being 
there ;'' and the same is true as to the testimony of witness 
Hamilton, to the effect that "in 1871 or 1872 one of the 
plaintiffs told witness that he had concluded not to build a 
brick building, but would put up a frame, aa he had to 
leave an alley- way for defendants and their tenants.*' The 
most that can be claimed for this testimony is that it tended 
to show a right of way a long time prior to defendants' 
entry. It did not tend to show that defendants were, at 
that time, in possession of the land, or that plaintiffs were 
not. It was not relevant to any material issue in the case. 

The judgment and order appealed from are affirmed. 



[No. 1173.] 

GEORGE S. ELDER, Respondent, r. FRED. A. FRE- 
VERT, ET AL., Appellants. 

New Trial — Statement— When Mi st re Filed — Waiver. — A failure to tile 
a statoineiit within five days aftor giving notice of intention to move for u 
new trial, nothing having l)een done in the ineantinie to retain jurisdic- 
tion, operates as a waiver of the right to move for a new trial, and no 
power exist** in the district eourt to reinstate this right. 

IvEit — FiNDiNCJs — Decision. — In construing the i)rovi.sions of section 195 of 
the civil practice act : JTeld, that the findings of facts is a written state- 
ment of each issuable fact established bv the e\idence ; that the decision 



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Jan. 1884.] Elder v. Frbvert. 279 



Argument for Respondent. 



is the announcement by the court of its judgment, and may never be 
reduowi to writing; that the decii^ion is, therefore, distinct from the find- 
ings; and that the time within whicli notice of intention to move for a 
new trial must he given begins to run from the unnimncement of the 
judgment. 
Statement on New Tuial and on Appeal — How roNHiDERED.— Where the 
statement on new trial, also, purports to be a statement on appeal and was 
so treated in the oniers, extending time for filing and settlement, made by 
the district court, and wa« filed within the time required by statute for a 
statement on appeal, it should be considered as a statement on appeal by 
this court. 

Motion to Dismis.s Appeai. — Proof of Service of Notice — When may he 
Made. — Wlien the transcript on appeal fails to show that the notice of 
appeal was servetl. as re<iuired by statute, and a motion is made to dismiss 
the appeal on that ground, this court may grant leave to appellant to sup- 
ply this omission by filing an afladavit of the proof of service upon the 
aigument of the motion. 

Idem— AFFiPAvrr of Service, Sufficiency of — "CoNspicrors Place."— An 
affidavit which alleges the service of the notice of appeal upon respond- 
ent's attorney, at a time when he was absent fn)m his office and had no 
clerk, or other person, in charge, "by leaving a Cf)py thereof in a conspic- 
uous place in the ofiice of said attorney * * *" is insufticient. The 
affidavit should set forth the probative facts touching the place where the 
notice was left, so that the ultimate fact, whetlier such place was conspic- 
uous, may be determined by the court in the exercise of its judicial 
functions. 

Idem— Ame>'Dment of Affid wit— When may be Allowed.— The courts 
shcmld liberally exercise the power of amendment for the purpose of estab- 
li.'^hing the truth and sustaining the substance of the proceedings before 
them; and when a decisicm upon the sufficiency of an affidavit might 
o])erat€ as a surpri'^e and deprive appellant of a substantial right, leave will 
be granted to amend the proof of service. 

Appeal from the District Court of the Second Judicial 
District, Ormsby County. 

Motion to strike out statement on motion for new trial, 
and to dismiss the appeal. 

The facts appear in the opinion. 

Trenmor Coffin^ for Respondent, in favor of the motion. 

I. The five days allowed by statute to file and serve the 
statement expired before the order of court extending the 
time was made, «nd consequently came too late to operate 
as an extension of time. [Clarke v. !Sfronse^ 11 Nev. 79; 



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280 Elder v. Frbvert. [Sup. Ct. 

Argument for Respondent. 

Bear River Co. v. Boles^ 24 Cal. 354.) A statement must 
be filed and served in time, and if not so filed will be 
stricken out on motion. {Whitmore v. Shiverick, 3 Nev. 
300 ; Harrison v. Lockwood^ 14 Nev. 263 ; Tall v. Ander- 
son, 15Nev. 426.) 

11. The "decision of the judge'' contemplated by the 
statute, after which a motion for a new trial may be made, 
is the final judgment of the court when the cause is tried 
without a jury. {California SL T, Co, v. Patterson, 1 Nev. 
150 ; Gray v. Palmer, 28 Cal. 416 ; Genella v. Relyea, 32 
Cal. 159 ; Galpin v. Page, 1 Saw. 336 ; in re Greaves, 13 Ch. 
Div. (Eng.) 882 ; Houston v. Williams, 13 Cal. 24 ; 1 Abb. 
Law Die. 351 ; Bouv. Law Die. 438 ; Burke v. Laforge, 12 
Cal. 404 ; Klookenhaum v. Pierson, 22 Cal. 160 ; Carpenter 
V. Thurston, 30 Cal. 123 ; Knight v. Eoche, bQ Cal. 15 ; 
Soto V. Irvine, 60 Cal. 436-8.) 

IIL A party giving notice of motion for a new trial is 
bound by his notice. He cannot afterward give a second 
notice and file his statement within five days of the second 
notice, but more than five doys after the first notice. {Le 
Roy V. Rasseit, 32 Cal. 171 ; cited with approval in Cump- 
bell V. Jones, 41 Cal. 518 ; Bornheimer v. Baldicin, 42 
Cal. 32.) The above objections were made in the court 
below within the rule of Ihcist v. Kelly, 11 Nev. 377. 

IV. A notice of appeal, to be efl:*ective, must be served 
after filing. (1 Comp. Laws, sec. 1392 ; Lambert v. Moore, 
1 Nev. 345 ; Per an v. Monroe, 1 Nev. 484 ; Gaudette v. 
Glissan, 11 Nev. 184; Reese M. Co, v. Rye Patch M, Co., 
15 Nev. 341.) The affidavit should show upon its face a 
strict compliance with every requirement of the statute. 
There are no presumptions in favor of the service. {TruU 
lenger v. Todd, 5 Or. 38-9 ; Rees v. Rees, 7 Or. 79 ; May- 
nardv, McCrellish, 57 Cal. 355; Howard v. Galloway, 60 
Cal. 10 ; Weil v. Bent, 60 Cal. 603 ; see also, Lathrop v. 
Judicini, 2 Cow. 484 ; Rathbone v. Blackford, 1 Caines 
343 ; Jackson v. Norton, 2 Caines 95 ; Jackson v. Giles, 3 
Caines 88 ; Salter v. Bridgen, 1 Johns. Cases 244 ; Paddock 
v. Beebe, 2 Johns. Cases, 117 ; Jackson v. Gardner, Col. & 



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Jan. 1884.] Elbbr v. Frevebt. 281 

Argument for Appellant. 

Caines, 359 ; Jackson v. Giles, Col. & Caines, 442 ; Camp- 
bell V. Spencer, 1 IIow. Pr. 97 ; Quincy v. Foot, 1 Barb. Ch. 
496 ; Gelston v. Stcartwout, 1 Jolins. Cases, 136 ; Clark v. 
Adam.^, 33 Mich. 159; Oshiel v. Degraw, 6 Cow. 63.) 
Service cannot be made at an office in which no person is 
present clarin<y office hours, unless t^e office door at the 
time be open or unlocked, and the affidavit of service must 
affirmatively show that the door was open or unlocked. 
[Haight v. 3Ioore, 4- Jones & Spencer, N. Y. 294.) Service 
cannot be made by unlocking the door of an office and leav- 
ing the papers therein. {Campbell v. Spencer, 1 How. Pr. 
199, 200 ; Livingston v. Mclntgre, 1 How. Pr. 253.) Service 
of notice by putting it under the door of the office is not 
sufficient. {Corning y. Pray, 2 Wend. 626; InreDegraw 
Street, 18 Wend. 568.) 

Robert M. Clarke, for Appellant, against the motion : 

I. The additional findings and decisions operated to make 
the first notice of motion for new trial premature. The 
decision of the court was not final and complete until the 
additional findings were made and filed. {Polliemus v. 
Carpenter, 42 Cal. 375 ; Butherford v. Penn, M. F. Ins. 
Co,, 1 Fed. Rep. 456 ; Brockett v. Brockett, 2 How. (U. S.) 
238; Sage v. Central R. R. Co., 93 U. S. 418; Desty's 
Fed. Pro. sec. 1007 ; Ogburn v. Corinor, 46 Cal. 347 ; R. 
R. Co', v. Bradley, 7 VVal. 575 ; Hinds v. Gage, 56 Cal. 
486 ; Crowther v. Roivlandson, 27 Cal. 376.) The "decision 
of the court'' contemplated by the practice act is the filing 
of the findings of fact and conclusions of law. (Civ. Pr. 
Act, sec. 182 ; Covbett v. Job, 5 Nev. 203.) 

II. The statement is on appeal as well as on motion for a 
new trial. The statement on motion for a new trial is also 
a statement on appeal by express terma of the statute and it 
need not be so designated. (Comp. Laws, sec. 1258.) A 
statement on motion for new trial w\\\ be treated as a state- 
ment on appeal from the judgment although there be no 
appeal- from the order denying a new trial. {Towdy v. 

Vol.. XVIII-36 r^^^^T^ 

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282 Elder v. Frevert. [Sup. Ct. 

Opinion of the Court — Belknap, J. 

Ellis, 22 Cal. 651 ; Walden v. Murdoch, 23 Cal. 540 ; 
Wilson V. McEvoy, 25 Cal. 169.) 

III. The affidavit of service of notice of appeal is suf- 
ficient and is in the usual form. (1 Comp. L. 1557 ; 
Moore v. Besse, 35 Cal. 187 ; 2 Abb. N. Y. Forms, 690 ; 
2 Whittaker Pr. 384.). 

By the Court, Belknap, J. : 

Respondent moves the court to strike out the statement 
on motion for new trial, upon the ground that it was not 
filed within the time required by law ; and also to dismiss 
the appeal because there is no proof of service of the 
notice of appeal. The cause was tried by the court. 
Notice of motion for new trial was filed and served on the 
twenty-seventh day of March, and within ten days after 
appellant had received written notice of the decision. The 
statement on motion for new trial should have been filed 
within five days thereafter, unless the time for filing was 
enlarged by agreement of the parties, or order of the court 
or judge. Nothing was done in this behalf until the sixth 
day — April 2d — when the court caused an order to be 
entered granting appellant "ten days additional time to 
prepare and file his statement on motion for new trial and 
on appeal.'* The failure of defendants to file their state- 
ment within five days after giving notice of intention to 
move for a new trial, nothing having been done in the 
meantime to retain jurisdiction of the matter, operated, by 
the express terms of the statute, as a waiver of the right 
to move for a new trial, and no power existed in the district 
court to reinstate this right. (Clark v. Strouse, 11 Nev. 
78 ; Hegeler v. Henckell, 27 Cal. 491.) 

Additional findings were filed on the twentieth of April, 
and a second notice of intention to move for a new trial 
given within ten days thereafter. It is contended that this 
notice was in time because the decision was not complete 
until the additional findings were filed. In support of the 
contention we are referred to the case of Polhemus v. Car- 
penter, 42 Cal. 375. This case was decided under a statute 



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Jan. 1884.] Elder r. Frevert. 283 

Opinion of the Court — Belknap. J. 



of the state of California, providing that a party intending 
to move for a new trial should give notice thereof "within 
ten days after receiving written notice of the filing of the 
findings of the commissioner, referee, or court, when writ- 
ten findings are filed by the court, or of the rendering of 
the decision of the court when no findings are filed ; * * * 
and when amendments are filed, to remedy defects in the 
findings within ten days after receiving written notice of 
the filing of such amendments." (Sec. 195, Cal. Pr. Act.) 
The statute of the state of Nevada requires the party mov- 
ing for a new trial to give notice of his intention ''within 
ten days after receiving written notice of the rendering of 
the decision of the judge." (Civ. Pr. Act; sec. 195 ; Comp. 
Laws, sec. 1258.) Unless the ''decision" here spoken of 
is tantamount to the "findings" which the court may be 
required to make, the contention cainiot prevail. The find- 
ing of facts contemplated by the statute is the written 
statement of each issuable fact established by the evidence. 
From these determined facts the conclusion of law is 
deduced. The decision is the announcement by the court 
of its judgment, and although based upon the settled facts 
of the case, such facts may never be reduced to writing so 
aa to constitute findings within the meaning of that term as 
used in the civil practice act. It is a matter of frequent 
occurrence for courts to announce judgment, and afterwards 
to prepare the findings. The decision may be rendered after 
or before the filing of findings, or, as is frequently the case, 
no findings may be made. The decision is therefore dis- 
tinct from the findings, land the time within which notice 
of intention to move for a new trial must be given begins 
to run from the announcement of the judgment. 

The decision in Polhemus v. Ciirpenter is inapplicable. 
Section 195 of the civil practice act of the state of California 
underwent several amendments at the difterent sessions of 
the legislature of that state. At the session of 1864 the pro- 
visions embraced by our act were adopted. At the next 
session the section was changed so as to read as above set 
forth, and under these provisions that case was decided. 



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284 Elder v. Frevert. [Sup. Ct. 

Opinion of the Court— Belknap, J. 

When the legislature of our state in 1869 enacted the prac- 
tice act they adopted, in the main, the California act as it 
then stood, but took section 195 as amended in 1864, and 
not as it existed in 1869. The adoption, ex indusiria^ of 
provisions so entirely dissimilar indicates a different design 
from that of the California act as amended after 1864. 

The statement not having been filed within the time 
required by law, must be disregarded as a statement on 
motion for new trial. It, however, purports to be a state- 
ment on appeal, as well as on motion for new trial, and all 
of the orders made enlarging the time for its tiling, and the 
certificate of the district judge in settling and allowing the 
statement, is consistent with this pretension. It was 
evidently prepared with the intention that it should, if 
possible, perform the office of a statement on motion for new 
trial, or, failing in this, should serve as the statement on 
appeal. It was filed within the time required by law for the 
filing of statements on appeal, and must be treated as such 
statement. 

When the motion to dismiss the appeal was made, an 
affidavit of service of the notice of appeal, filed in the dis- 
trict court U|)on the day the notice of the motion to dismiss 
was filed in this court, was presented, and we are asked to 
consider it as supplying the omitted proof. Qpon appli- 
cation, we should have allowed the proof to have been 
made, and shall now consider the affidavit as having been 
filed upon leave given. {Moore v. Besse, 35 Cal. 187.) The 
affidavit alleges a service of the notice upon respondent's 
attorney at a time when he was absent from his office, and 
had no clerk therein, or other person in charge upon whom 
service could be made, *'by leaving a copy thereof in a con- 
spicuous place in the office of said attorney between the 
hours of 8 A. M. and 6. p. m. * * *" In the rescard 
shown by the quotation, the affidavit does not set forth the 
evidentiary facts establishing the ultimate fact that the 
place where the paper was loft was consjacuous, but merely 
repeats the language of the statute. Whether the place 
was conspicuous is a matter upon which the minds of meu. 



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Jan. 1884.] Elder v. Frevert. 285 

Opinion of the Court — Belknap, J. 

may clifter, and must be determined by the court, in the 
exercise of its judicial functions, rather than by the party 
makin<^ the affidavit. The necessity for this requirement 
is illustrated by the New York reports. In that state a 
compliance with the provisions of a law similar to ours has 
been claimed by throwing papers through the transom over 
the attorney's office door, or by passing them under the 
door, and by leaving them in the office. In these and 
similar cases courts have held that when the office is locked 
the service must be made in some other way. {Campbell v. 
apeiicer, 1 How. Pr. 199 ; LkinrjMon v. McIaUjre^ Id. 253 ; 
Gelston v. Swariioout^ 1 Johns. Cas. 137 ; Lathrop v. Judi- 
vini, 2 Cow. 484 ; Osliiel y.,De Graw, 6 Cow. 63; Corning 
v. Pray, 2 Wend. 626 ; Anon. 18 Wend. 578 ; Haight 
V. Moore, 4 J. & S. 294.) For aught that appears, 
the service in this case may have been made in some 
of the modes which the courts of New York have de- 
uounced, and yet have satisfied the requirements of the 
stiitute in the o[)inion of the person making the affidavit. 
The affidavit should set forth the probative facts touching 
the place where the paper was left, so that the ultimate 
fact — whether such place was conspicuous — may be deduced 
therefrom by the court. 

Upon the argument appellant asked leave to amend his 
affidavit so as to show the facts constituting the service, if, 
upon consideration, the court should be of opinion that the 
proof of service already ottered was insufficient. Having 
reached this conclusion, the question whether leave should 
be granted to amend is presented. We are not aware that 
the sufficiency of proof, such as has been made in this case, 
has ever been pai?sed upon bj- the courts of this state or 
coast. And in New York, the question, so far as our ex- 
amination of the cases has extended, has been made upon 
affidavits in contradiction of the affidavit of service. Our 
decision, therefore, might operate as a surprise and deprive 
appellant of a substantial right if the leave asked for were 
withheld. Under these circumstances, and because 
courts should liberally exercise the power of amendment 



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286 State v. District Court. [Sup. Ct. 



Points decided. 



for the purpose of establishing the truth and sustaining the 
substance of the proceedings before them, we shall grant 
leave to amend the proof of service. 

Motion denied, with costs to respondent, and appellant 
allowed ten days in which to amend affidavit of service of 
notice of appeal. 



[No. 1170.] 

THE STATE OF NEVADA, ex rel. THOMAS BAR- 
NETT, ASSIGNEE, Relator, v. FIFTH JUDICIAL 
DISTRICT COURT, Respondent. 

Insolvency, Adjudication Of— Effect on Pending Actions — Jurisdiction. — 
When an appeal is taken from a judgment rendered in a justice court 
and, pending the appeal in the district court, the debtor is adjudged 
insolvent by the district court of another county, a motion to stay pro- 
ceedings, without a proiH?r showing of the adjudication of insolvency, or 
of the order staying proceedings issued therein, docs not divest the district 
court to which the appeal is taken of its authority to proceed, so as to make 
its subsequent action void. 

Idem — ^Judicial Notice Of. — The district court is not bound to take judicial 
notice of the proceedings of the district court of another county ; and a 
disregard of an adjudication of insolvency there made, even if properly 
proven, would amount to no more than error. 

Appeal from Justice Court — Dismissal Of — Effect Of. — By dismissing the 
appeal taken herein, the district court divested itself of authority to pro- 
ceed further, except to include costs on dismissal. District courts have no 
power to impose damages for frivolous appeals, nor to directly, and with- 
out trial, reverse or affirm judgments brought by appeal from justices 
courts. Such cases must be tried anew. 

Application for writ of certiorari. 
The facts are stated in the opinion. 

S. D. King^ for Relator : 

I. The pendency of the insolvent proceedings, and the 
order staying proceedings, in the district court of Washoe 
county, operated of their own force to stay the proceedings 
in the district court of Nye county and that court was with- 
out authority to render any judgment. (Stat. 1881, 126, 
sees. 10, 15 ; Taffis v. Manlove, 14 Cal. 47 ; Cerf v. Oaks, 
59 Cal. 132.) 



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Jan. 1884.] State v. District Court. 287 

Opinion of the Court — Belknap, J. 



D. S. Truman^ for Respondent : 

I. The district court of Nye connty had a right to deter- 
mine the matter involved in the appeal from the justice's 
court regardless of any insolvency proceedings of Kaphael, 
which were subsequently instituted in another judicial dis- 
trict of this state. {Amador C. ^ M. Co. v. Mitchell, 59 
Cal. 169; Truman on Ex. 313; Guild v. Butler, 122 
Mass. 498.) 

By the Court, Belknap, J.: 

Brennan recovered judgment against Raphael in the 
justice's court for the sum of two hundred and twenty-eight 
dollars and fifty cents and costs, upon a moneyed demand. 
Raphael appealed to the district court. The case was called 
for trial upon the twenty-seventh day of July, whereupon 
counsel for appellant moved a stay of proceedings upon the 
ground that since the appeal had been taken his client had 
been adjudged an insolvent, under the insolvency laws of 
the state, by the seventh judicial district court. The 
motion was denied because of the incompetency of the 
evidence by which the fact was sought to have been estab- 
lished, the only evidence being a printed slip, presumably 
taken from the newspaper in which the order for the meet- 
ing of creditors was published, as provided in section eight 
of the act for the relief of insolvent debtors. (Stat. 1881, 
125.) A motion to dismiss the appeal was then made and 
sustained, and the case dismissed. Subsequently the court 
took under advisement a motion for judgment for damages 
and costs, and two days thereafter sustained this motion, 
awarding plaintiff ten per cent, of the amount of the judg- 
ment rendered by the justice as damages. Judgment was 
accordingly entered dismissing the appeal, affirming the 
judgment of the justice, with the damages sustained by 
reason of the appeal, and costs. Certiorari is brought for 
the purpose of reviewin^^ these proceedings. 

1. The relator relies upon the order staying proceedings 
as divesting the district court of jurisdiction. The cases of 

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288 State v. District Court. [Sup. Ct. 

Opinion of the Court — Belknap, J. 

Taffts V. Manlove, 14 Cul. 47, and Cerf v. Oaks, 59 Cal. 
132, are referred to as sustaining this position. In these 
cases the estates of the insolvents were seized under process 
issued at the suits of creditors whose claims were provable 
in the insolvency proceedings. The courts having jurisdic- 
tion of the proceedings, acquired control of the property of 
the insolvents, and it was their duty to protect the assets so 
that distribution could be made as required by law. In 
the former case it was held that notice of the order staying 
proceedings,, either to the officer or creditor, was unneces- 
sary ; that the effect of the order was from the making of 
it ; and that the proceeding was in this respect more in the 
nature of a proceeding in rem than in personam. "If this 
were not so," said the court, '' these proceedings might be 
made the means of the groiitest frauds, and the statute 
would wholly fail of its purpose of distributing the insolvents' 
property, and the construction would defeat the power to 
allot anything to the petitioner ; for if the personal service 
were necessary to give effect to the order, a creditor, or a 
few creditors, might keep out of the way of service and 
have the others restrained by service, and then those not 
served might come in and sweep all of the property.'' (14 
Cal. 52.) The general principle which was here acted upon 
aftbrds iw foundation for the idea that the proceedings in 
insolvency deprived the district court of jurisdiction. The 
subject-matter and the parties were within its jurisdiction, 
aud the order staying proceedings did not divest it of 
authority to proceed so as to make its subsequent action 
void. 

The object of the provision requiring that all proceedings 
against the debtor shall be stayed, is to preserve the estate 
of the insolvent for proportionate ^distribution among his 
creditors, and to protect him against needless lawsuits. 
The court in which the insolvency proceedings are insti- 
tuted has control of the estate, and will protect it against 
creditors seeking to enforce the collection of their claims in 
any manner calculated to interfere with the operation of 
the insolvency law. Litigation is therefore, in general, 



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Jan. 1884.] State v. District Court. 289 

Opinion of the Court — Belknap, J. 

unneccessary, except to establish disputed demands. If 
controveraies ariae which require an appeal to the courts, 
the law provides, at section 16, that not only the assignee 
may sue, and be sued, ''in everything which respects the 
rights and actions which may belong to the insolvent, or 
which may concern the mass of the creditora,** but, that 
"all suits brought against the insolvent, prior to his sur- 
render of property, before the courts of other counties, shall 
be trans«ferred to the court having jurisdiction in the county 
in which said insolvent shall have presented his schedule, 
and may be continued on motion and notice against his 
assignee/* If the assignee, or the debtor, allows an action 
brought before the institution of the proceedings to proceed 
to judgment without this transfer or substitution, and with- 
out informing the court in some proper way of the adjudi- 
cation of insolvency, or of the order staying proceedings, 
we see no reason why the judgment should be treated as 
void in the absolute sense. The district court was not 
bound to take judicial notice of the proceedings of the 
seventh district court. If the order and adjudication had 
been disregarded after having been proven, the action of 
tlie court would have amounted to no more than ei'ror. 
{Bandy v. Hansom^ 54 Cal. 88 ; People v. Whitney^ 47 Cal. 
584; Fievson v. McCahill, 23 Cal. 249.) 

2. After dismissing the appeal the court affirmed the 
judgment rendered by the justice, with damages and costs. 
The appeal alone had given the court jurisdiction of the 
case. By dismissing it, the court divested itself of authority 
to proceed further, except to include costs on dismissal, and 
left the judgment of the justice in full force, save as affected 
by the order staying proceedings. 

The review upon certiorari is confined to the question of 
jurisdiction, and no other matter appearing in the record 
has been considered. It is proper to state, however, that 
district courts are not authorized to impose damages for 
frivolous appeals, nor to directly, and without trial, reverse 
or affirm judgments brought by appeal from justices* courts. 
Such cases must be tried anew. (Section 1643, Comp. Laws.) 

Vol. XVIU— 37 ^ r 

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290 Haydon v. Nicoletti. [Sup. Ct 

Argument for Appellant. 

• The judgment, beyond that of dismissal, with costs, is 
annulled. Costs of this proceeding to be taxed against 
respondent. 



[No. 1154.] 

THOMAS E. IIAYDON, Respondent, v. OLINTA 
NICOLETTI ET AL., Appellants. 

Negotiable Note— Rights of Pledgee and op Owner.— A pledgee of a 
negotiable note, as collateral security, is entitled to be protected as a 6ono 
fide holder to the same extent as one who becomes the absolute owner, 
and may maintain suit therein in his own name as the real party in inter- 
est. The only difference between the rights of such parties is that the 
absolute owner may recover in full, while the pledgee, if there be equities, 
is restricted to the extent of his advances. 

Idem — Partnership — Evidence of.— A negotiable note, payable to two or 
more persons jointly, is no evidence that it is owned in partnership; nor 
is the fact that such note is in the actual possession of one of tlie payees 
such evidence. Evidence reviewed : Held^ that no partnership or agency 
existed between the payees of the notes in question. 

Idem— Title.— Title to a negotiable note, payable to order, passes only by 
indorsement and delivery. 

Idem — Indorsement by One Payee. — A negotiable note, payable to two or 
more persons jointly, indorsed by only one of the payees, is subject to any 
equities in favor of the maker, the same as though it had not been indorsed 
by eitlier. Such a note is payable to all the payees, or to their joint order, 
and cannot be transferred except by the joint indorsement of all the payees. 

Appeal from the District Court of the Seventh Judicial 
District, Washoe County. 

The facts are stated in the opinion. 

Robert M. Clarke^ for Appellants : 

I. The pledging of the Nicoletti note to T. L. Lagomar- 
sine was without authority, and did not pass the title to the 
bank. It was in no sense a partnerehip note, it was neither 
given to them as partnera, nor was it given to secure a part- 
nership debt. 

U. The note being payable to T. L. and A. S. Lagomar-; 
sine jointly, or to their final order, the endorsement of both 
is necessai7 to pass the title of either. (2 Par. on Notes 
and Bills, 4, 5 ; Smith v. Whiting, 9 Mass. 334.) 



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Jan. 1884.] Haydon v. Nicoletti. 291 

Ai^gument for Respondent. 

III. The sale of the notes by the sheriff to Haydon did 
not vest in him the title to the Nicoletti note, nor to the 
mortgai^e given to secure the same. As the title to the 
Nicoletti note was not in the bank ; as the bank's interest 
was at most a mere equity, which it possibly acquired by 
the assignment of T. L. Lagomarsine's interest, such interest 
being equitable merely and not legal, was not subject to 
attachment or execution ; and Haydon acquired nothing by 
the attachment proceedings and sale, except the Lagomar- 
sine notes. (Civil Pr. Act, sees. 128, 180, 131 ; Drake on 
Attach, sec. 54T ; Presiial v. 3Iabry, 8 For. 105 ; Hassle v. 
O. L W. V. Congregation, 36 Cal. 378 ; May v. Baker, 15 
111. 90 ; Hoyt v. Hmfi, 18 Vt. 133 ; Reinhari v. Hardest]/, 
17 Nev. 141.) 

Thomas JE. Haydon, in propria persona, for Respondent : 

I. The delivery of the possession of the Nicoletti note with- 
out the indorsement of either of the payees was all that was 
necessary to constitute a pledge of the note. (Jones on 
Chat. Mort. sec. 4 ; Story on Bail. sec. 296 ; Redfield on 
Car. & Bail. sec. 663 ; Story on Bail. sees. 287, 290.) By 
the delivery of the Nicoletti note in pledge, the pledgee 
could sue both the collateral and principal debtors at the 
same time and in his own name. (Jones on Mort. sees. 
1374, 1375; Redfield on Car. & Bail. sec. 666 ; Comstock 
V. Smth, 23 Me. 202 ; Story on Bail. sec. 321 ; 2 Kent Com. 
sec. 581 ; Nelson v. Wellington, 5 Bosw. 178 ; Lamberlon 
V. Windom, 12 Minn. 232, 242 ; Wheeler v. Neiobould, 16 
N. Y. 392 ; Fletcher v. Dickinson, 7 Allen 23.) 

n. It is not indispensable that the Nicoletti note should 
have belonged to the pledgor, T. L. Lagomarsine ; it is 
sufficient if it is pledged with the consent of the owner. 
(Story on Bail. sees. 291, 296 ; Jarvis v. Rcgers, 13 Mass. 
105.) Plaintiff being the i*eal party in interest, could sue 
upon this note without any indorsement by either of the 
payees. (Parsons on Notes & Bills, 47, 48 ; Kelly v. Smith, 
1 Met. (Ky.) 818; 11 Barb. 620.) 

HI. A promissory note or bill of exchange, being a 



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292 Haydon v. Nicolbtti. [Sup. Ct. 

Opinion of tlie Court— Leonard, J. 

personal chattel, may be assigned without indorsement or 
writing upon it, or upon any paper. (2 Parsons on Notes & 
Bills, 52, 54; Beard v. Dedolph, 29 Wis. 142.) But even 
had an endorsement been necessary the indorsement of T. 
L. carried his interest, and if authorized as agent, partner 
or otherwise his indorsement cariMed also the title of A. S. 
L. (1 Dan. on Ncg. Inst. sec. 701, 707 ; Pease v. Dicight^ 
6 How. 190.) Such a transfer of a negotiable note is pro- 
tected against all defenses subsequently arising. (Dan. on 
Neg. Inst. sees. 781, 782 ; Beard v. Dedolph, 29 Wis. 142, 
supra ; Richardson v. Mice^ 6 Rep. 686 ; 1 Pars. Notes Sl 
B. 263; 2 Pars. Notes & B. 54.) 

IV. A purchaser at execution sale acquires all the defend 
ant's title whatever it may be. (Freeman on Ex. sees. 
835, (note 7,) 342, 343.) 

By the Court, Leonard J. : 

Defendants appeal from the jndgment and order denying 
their motion for a new trial. It is alleged in the complaint 
that on the twentieth of December, 1878, defendant Nica- 
letti executed to defendants T. L. Lagomarsine and A. S. 
Lagomarsine his promissory notes, each for nine hundred 
and twenty-five dollars, payable in nine and twelve months 
from date, and, to secure payment of the same, gave a 
mortgage on land described. These averments are not 
denied. It is alleged, further, that T. L. Lagomaraine and 
A. S. Lagomarsine pledged and delivered the first of said 
notes to the lieno Savings Bank, July 11, 1879, to secure a 
loan of two hundred and forty dollare, made on said date to 
T. L. Lagomarsine ; that on July 14, 1879, at the request 
of T. L. and A. S. Lagomarsine the bank loaned to the 
former the further sum of seventy dollars, upon an agree- 
ment that the said ^icoletti note, before pledged, should be 
security therefor ; that at the time of said loans T. L. Lago- 
marsine gave to the bank his individual notes for the same. 

In their answer defendants adn^itted that T. L. Lago- 
marsine borrowed the sums mentioned, ana gave his notes 
therefor, but denied that T. L. Lagomui*siue and A. S. 

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Jan. 1884.] Haydon v. Nicoletti. 298 

Opinion of the Court — Leonard, J. 

Lagomareine pledged or delivered the Nicoletti note as 
security to the bank. Plaintiff alleged also that T. L. 
Lagomarsine indorsed and delivered the Nicoletti note to 
the bank as agent and partner of A. S. Lagoraai'sine by 
indoreing his own name thereon. Defendants admitted 
that T. L. Lagomarsine indorsed and delivered the note, 
but denied tlmt he was agent or partner of A. S. Lagomar- 
sine, or that he had any authority to act for or bind the 
latter in the premises; denied that A. S. Lagomarsine 
agreed to indorse, assign, or deliver, as a pledge or other- 
wise, said note, or that he did so. As new matter, defend- 
ants allege that Nicoletti paid the note pledged to the bank 
before the commencement of this action, and that T. L. 
and A. S. Lagomarsine, for value received, sold, assigned, 
indorsed and delivered the second note, due in twelve 
months from date, to J. C. Hampton, and that said note is 
due and unpaid. 

These facts are undisputed, viz. : 

The note in question was payable to A. S. Lagomarsine 
and T. L. Lagomarsine, or order. In July, 1879, before 
maturity, T. L. Lagomarsine pledged the note as security 
for a loan by the bank to himself, individually, of two hun- 
dred and forty dollars, and a few days thereafter he 
obtained seventy dollars more, on the same terms. A. S. 
Lagomarsine received no benefit from the money borrowed, 
and did not know of the assignment until April, 1881, when 
the note was sold by the sheriff under an execution issued 
upon a judgment in favor of the executor of Larcomb's 
estate. At the time of the loan by the bank, T. L. Lago- 
marsine indorsed his name, and was about to indorse his 
brother's also, when the cashier refused to allow him to do 
80, saying he prefered to have the other payee indorse for 
himself. T. L. Lagomarsine promised to have his brother 
make his indorsement. The bank received the note in this 
condition, as collateral, and A. S. Lagomarsine never 
iudoraed it. Nicoletti was not notified by the bank of the 
assignment, and he had no knowledge thereof, until April, 
1881. At the time of the execution of the notes and mort- 



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294 Haydon v. Nicolbtti. [Sup. Ct. 

Opinion of the Court — Leonard, J. 

gage by Nicoletti, it was agreed betweeu him and T. L. 
Lagomarsine that he might pay any of the debts of the 
latter in Virginia City, and receive credit therefor upon the 
notes. In the fall of 1879 a settlement was had betweeu 
them, and it was found that Nicoletti had paid seven hun- 
dred and eighty dollars. This amount T. L. Lagomarsine 
agreed to credit on the first note, the one in qnestion, but 
failed to do so, for the reason that it was in possession of 
the bank. Another settlement was had in the fall of 1880, 
and it was found and agreed that Nicoletti had paid of T. 
L. Lagomarsine's debts, four hundred and thirty dollara, 
during that year. It was agreed that this amount should 
be credited on the notes, and that the first should be given 
up as paid. T. L. Lagoniarsine gave Nicoletti receipts for 
the amounts stated, at the dates of settlement, but the 
credits were not placed upon the notes. The court finds 
that between the date of the note and July 11, 1879, when 
it was assigned to the bank, Nicoletti paid, of the debts of 
T. L. Lagomarsine, three hundred and twenty dollars, but 
that the bank had no notice thereof at that time or subse- 
quently ; and that, after the assignment, Nicoletti paid the 
further sum of eight hundred and ninety dollars, making in 
all one thousand two hundred and ten dollars, none of which 
was indorsed on the note or mortgage. 

Special issues were submitted to the jury, and, from the 
facts found by them and the court, the court declared, as 
conclusions of law, that the Nicoletti notes to T. L. Lago- 
marsine and A. S. Lagomarsine were negotiable ; that they 
were transferred in good faith and for a valuable considera- 
tion, before maturity, as pledges to secure the payment of 
loans made by the bank and Hampton ; that T. L. Lago- 
marsine was authorized as a partner and agent of A. S. 
Lagomarsine to pledge them ; that the delay of A. S. Lago- 
marsine to assert any rights in said notes and mortgage 
after he knew of their disposition by T. L. Lagomarsine 
operated as a legal ratification of the transfers ; that the 
transfer to the bank protected the bank from all equities iu 
favor of Nicoletti, and from all payments made by him, of 



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Jan. 1884.] Hatdon v. Nicoletti. 295 

opinion of the Court— Leonard, J. 

which the bank had no notice, to the extent of the princi- 
pal and interest of the loans made by the bank to T. L. 
Lagomarsine ; that the bank was not obliged to notify 
Nicoletti of the assignment in order to protect itself from 
any payment or other equities existing or subsequently 
arising in his favor against T. L. and A. S. Lagomarsine ; 
but that said payments beyond the bank's loans to T. L. 
Lagomarsine, with interest, were operative to prevent any 
judgment against Nicoletti, beyond the amount of such loan 
and interest. A decree was entered accordingly. 

The principal question to be decided is whether, under 
the circumstances, Nicoletti is entitled, as against plaintiff, 
to receive credit upon the note in suit for all or any portion 
of the debts of T. L. Lagomarsine, paid by him before 
knowledge of the assignment to the bank. For the pur- 
poses of this case, without discussing or deciding the ques- 
tion, we shall concede that plaintiff acquired, by purchase 
of this note at sheriff's sale, all the rights that the bank 
acquired by the assignment and loan ; that if the bank would 
have been protected against Nicoletti's equities, then 
plaintiff' is. It is admitted, also, that a party receiving 
negotiable paper as collateral security is entitled to be pro- 
tected as a bona fide holder, to the same extent as one who 
becomes the absolute owner, and that he may bring suit in 
his own name, as the real party in interest. (2 Pars. Bills 
k Notes, 54 ; Bank v. VanderhorsU 32 N. Y. 556 ; Brook- 
man v. Metcalfe Id. 595 ; Lindsay v. Chase^ 104 Mass. 253; 
Bonaud v. Genesis 42 Ga. 639, The only difference between 
the rights of an absolute bona fide owner for value and a 
bona fide holder as collateral security, as against the maker, 
is that the former may recover in full, and the latter, if 
there be equities, is restricted to the extent of his advances. 
{Matthews v. Rutherford^ 7 La. Ann. 225.) 

The jury found, and the court adopted the finding, that 
T. L. Lagomaraine and A. S. Lagomarsine were ''partners 
in the two Nicoletti notes." We do not think there was 
the slightest evidence sustaining such conclusion, and, if we 
are correct, the element of partnership should not be con- 



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296 Hatdon v. Nicoletti. [Sap. Ct. 

Opinion of the Court — Leonard, J. 

sidered in our discussion. Let us test our conclusion by the 
record. In the first place, in the note itself, there waa 
nothing to indicate a partnership. It was payable to the 
two payees named, jointly, or their order. In form and 
substance it was like any other negotiable note owned 
jointly by two or more individuals. The bank knew there 
was but one way to obtain the legal title to the note ; but 
one mode of transfer, according to the law-merchant, and 
that was by the indorsement of the paj''ees. Acting upon 
that knowledge, the cashier refused to permit one of the 
payees to indorse for the other, preferring to have the latter 
indorse for himself, since, as he expressed it, ''the note was 
made jointly to T. L. Lagomarsine and his brother.'* The 
bank evidently regarded the transfer as incomplete at that 
time, and trusted in tlie personal promise of T. L. Lagomar- 
sine to get the indorsement of his brother to complete it. 
T. L. Lagomarsine did not claim that the note was owned 
by the payees in partnership, but, on the contrary, said it 
belonged to him, and that he had the right to indorse his 
brother's name. In the face of such a note, the bank 
knew that, as to all persons but T. L. Lagomarsine, it would, 
at its peril, trust in such claim of ownership and representa- 
tion of power, and the result was as before stated ; that is 
to say, the note was received as the joint property of tlie 
payees, with the indorsement of one, but with the intention 
and expectation of getting the other. 

The jury found that the two brothers were partnere in 
farming, from 1876 until some time in 1878 ; that they were 
not partners in anything except the two Nicoletti notes, or 
engaged in any other business together, after September 8, 
1878. The notes and mortgage were given under the fol- 
lowing circumstances : T. L. and A. S. Lagomarsine owned 
the Steamboat ranch together. In 1878, before Septem- 
ber, T. L. Lagomarsine bought his brother's interest, agree- 
ing to pay him one thousand dollars therefor. He paid sev- 
enty-five dollars, but was unable to pay, at that time, the 
balance of nine hundred and twenty-five dollars. About 
the same time T. L. Lagomarsine sold his interest in the 



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Jan. 1884.] Haydon v. Nicoletti. 297 

Opinion of the Court— Leonard, J. 

Truckee ranch to Louis Lagomarsine for one thousand eight 
hundred and fifty dollars. 8oon after, Louis sold a part of 
his interest to Nicoletti. After these transactions, Nicoletti 
was owing Louis one thousand eight hundred and fifty dol- 
lars; Louis was owing T. L. Lagomarsine one thousand 
eight hundred and fifty dollars ; and T. L. Lagomareine 
was owing his brother, A. S. Lagomarsine, nine hundred 
and twenty-five dollars. For the sake of convenience, and 
to save expense, it was agreed among them that Nicoletti 
should give his notes and mortgage to T. L. Lagomarsine 
and A. S. Lagomarsine, and so settle the entire indebted- 
ness. We quote from the testimony of T. L. Lagomarsine, 
which shows the nature of the arrangement : 

'* We agreed that, instead of Louis mortgaging to me, 
and Nicoletti mortgaging to Louis, Nicoletti should make a 
mortgage direct to me for one thousand eight hundred and 
fifty dollars, which Louis owed me, and in this way settle 
the indebtedness to all of us. I told my brother T could not 
pay him the nine hundred and twenty-five dollars, which I 
owed him, at that time, but if he wanted to do so, he could 
have a half interest in the mortgage which Nicoletti was to 
make to me. He agreed to this ; and so the mortgage and 
notes were made to my brother and myself jointly, and our 
indebtedness all around settled. We were to each own one- 
half of the notes and mortgage." 

The other parties to these transactions testified to the 
same effect, and there was nothing to contradict their state- 
ments. If Nicoletti had given a note and mortgage for nine 
hundred and twenty-five dollars to A. S. Lagomarsine, and 
a note and mortgage for the same amount to T. L. Lago- 
mai*sine, in satisfaction of the entire indebtedness of all the 
parties, it would hardly be claimed that T. L. Lagomarsine 
and A. 8. Lagomarsine would have been partners in the 
two notes. In that case each would have owned his own 
paper, and now, both have a joint ownership. But a nego- 
tiable note, payable to two or more persons jointly, like the 
one in question, is no evidence that it is owned in partner- 
ship ; nor is the fact that such note is in the actual, manual 

Vol. XVIII— 38 r^^^^T^ 

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298 Haydon v. Nicoletti. [Sup. Ct. 

Opinion of the Court — Leonard, J. 

possession of one of the payees, such evidence. It cannot be 
held by all at the same time, and whoever has it in pos- 
session holds it for himself and the other payees. 

Without pursuing this question further, we repeat the 
conclusion before expressed, that there was no evidence 
showing a partnership in the two notes. Such being the 
case, it will not be necessary to consider the question 
whether one partner, by the indorsement of his own name 
only upon negotiable paper, payable to a partnership before 
maturity, so transfers it as to relieve a purchaser for value 
of equities existing between the maker and payees.*' 

But, in addition to the findings that the note was owned 
in partnership, the court concluded that, as an agent of 
A. S. Lagomarsine, T. L. Lagomarsine was authorized to 
pledge the note in question to the bank, and that the delay 
of the former to assert any rights in the same or the mort- 
gage, after he knew of their disposition by T. L. Lagomar- 
sine to the bank, operated as a legal ratification of the trans- 
fer. We think the evidence justifies the finding that T. L. 
Lagomarsine was authorized to do just what he did do. He 
could pledge the note as collateral security, indorse his own 
name, but not his brother's. And that was all he did — all 
that the bank desired him to do. His promise to get the 
indorsement of his brother was a personal obligation that 
was not performed, and the upshot of the whole matter is 
that the note was pledged without the indorsement of one 
of the payees, and such was its condition at the trial. 
Surely, A. S. Lagomarsine could not, and did not, ratify 
anything that was not done by T. L. Lagomarsine. Upon 
these facts, then, what were the rights of Nicoletti ? The 
statute provides as follows : 

"All notes in writing, made and signed by any person, 
whereby he shall promise to pay to any other person, or to 
his order, or to the order of any other person, or unto the 
bearer, any sum of money therein mentioned, shall be due 
and payable as therein expressed, and shall have the same 
effect, and be negotiable in like manner, as inland bills of 
exchange, according to the custom of merchants. " (Comp. 
Laws, sec. 9.) r^ i 

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Jau. 1884.] Haydon v, Nicoletti. 299 



'Opinion of the Court — Leonard, J. 



According to the lex mercatoria the title to negotiable 
paper, payable to order, passes only by indoi'sement and 
delivery. {Trust Co, v. Nat. Bank, 101 U. S. 71; 
Whistler V. Forster, 108 C. L. R. 255; Daniel, Neg. Inst 
aec. 780.) 

The statute further provides that : 

"In the case of an assignment of a thing in action, 
the action by the assignee shall be without prejudice 
to any set-off or other defense existing at the time of, 
or before notice of, the assignment ; but this section shall 
not apply to a negotiable promissory note, or bill of 
exchange, transferred in good faith, and upon good con- 
sideration, before due.** (Comp. Laws, sec. 1068.) "Every 
action shall be prosecuted in the name of the real party in 
interest." (Sec. 1067.) 

If the bank would have been protected against the 
equities of I^icoletti, it is because this negotiable note, 
payable to order, was transferred to it in good faith and 
upon good consideration, before due. 

The legislature did not intend to protect non- negotiable 
notes against the equities existing in favor of the makers 
before notice of assignment, although assigned for value 
before maturity. Did it intend to protect notes negotiable, 
payable to order, but not indorsed by the payee ? If it did, 
it intended to overturn a well-established rule of the law- 
merchant, recognized and enforced the world over. Such 
was not the intention. At the time the code was passed 
there was a well-established mode of transferring a negotia- 
ble promissory note payable to order, and no other was 
recognized, which was by indorsement. If it was assigned 
for value before maturity, but not indorsed, it was subject 
to the equities in the hands of the assignee that it would 
have been in the hands of the payee. This principle has 
not been changed by the statute. A note like the one 
under consideration, not indorsed, is not "transferred in 
good faith." [Richards v. Warriug, 39 Barb. 51-54; Bush 
v. Lathropy 22 N. Y. 547 ; Patterson v. Crawford^ 12 Ind, 
245 ; Whistler v. Forster, supra, 257 ; Trust Co. v. Nat. 



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300 Haydon v. Nicolbtti. [Sup. Ct. 

Opinion of the Court— Leonard, Jt 

Bank, supra; Terry v. Allis, 16 Wis. 479 ; Calder v. Bill- 
ington, 15 Me. 398 ; Savage v. Kingy 17 Me. 302 ; Hedges v. 
A^ea^i/, 9 Barb. 217 ; Pease v. Rush, 2 Miim. 111.) '* A 
promissory note made payable to order may be trans- 
ferred without indorsement, so as to vest the property in it 
in the purchaser. Transferred in that manner, it was 
formerly necessary to bring the action upon it in the name 
of the payee ; under the code it may be brought in the 
name of the real owner. But such a transfer does not 
clothe the assignee with all the rights of an indoraee of 
negotiable paper, transferred to him in the usual course of 
business; it gives him the title to the note, but subject to 
the rules applicable in case of an assignment of any other 
chose in action. In short, a note negotiable by indorse- 
ment, but not indorsed, transferred by delivery, and a note 
not negotiable, transferred by delivery, are equally open to 
every equitable defense which the maker had against it at 
the time of transfer; and if the payee could not have 
recovered at that time, the assignee cannot.'* (Edw. Bills, 
2d ed. 270.) ^'The rule is settled, by an unbroken series 
of authorities, that the assignee of a thing in action not 
negotiable takes the interest assigned, subject to all the 
defenses, legal and equitable, of the debtor who issued the 
obligation. * * * That is, when the original debtor or 
trustee, in whatever form his promise or obligation is made, 
if it is not negotiable, is sued by the assignee, the defenses, 
legal and equitable, which he had at the time of the assign- 
ment, or at the time when notice of it was given, against 
the original creditor, avail to him against the substituted 
creditor." (2 Pom. Eq. Jur. sec. 704.) 

Hedges v. Sealy was decided in 1850 (9 Barb. 217). The 
New York Code was adopted in 1848. The case was on all 
fours with the one in hand, with this excej)tion ; the note 
was payable to one person, who pledged it as collateral 
security for money loaned, without indorsement, while in 
this case the note was payable to two, and indorsed by one. 
The court said : 

"Although the plaintiff took the note upon sufficient 



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Jan. 1884.] Haydon v. Nicolbtti. SOI 



Opinion of the Court — Leonard, J. 



consideration, and the transfer was consummated by the 
actual delivery, yet the plaintitt' is not a bona fide holder, or 
indorsee, and entitled as such to recover against the maker, 
if the proof shows that he had a good defense against it in 
the hands of Roberts. To entitle the plaintiff to protection 
from such a defense, in addition to the valuable considera- 
tion paid by him for the note, it must also appear that he is 
the indorsee. The pleadings disclose that it was payable to 
order, and was not indorsed by the payee. In respect to 
the note the plaintiff is a mere assignee, and his rights are 
to be settled by the same rules that govern the case of an 
assignee of any other chose in action. The rule that the 
indorsee may recover where the payee may not, is founded 
on the commercial policy of sustaining the credit of nego- 
tiable paper. The paper in question was negotiable, but it 
was not negotiated. It is payable to Robert Roberts or 
order, and he has not indorsed it. * * * A note nego- 
tiable, but not indorsed, transferred by delivery, and a note 
not negotiable transferred by delivery, are open to every 
equitable defense which the maker had against them at the 
time of transfer ; and if the payee could not have recovered 
at that time, the holder cannot.'' 

"A promissory note, like any other personal property, 
can be transferred by mere delivery so as to pass the title, 
and the right to sue in the name of the holder when a note 
is payable to order, and is found in the hands of a person 
not the payee, without the indorsement of the payee, the 
difference between such a holder and one who holds by 
indoi-sement, is that the former is not entitled to the priv- 
ileges of a bona fide holder, while the latter is; a note pay- 
able to order, passed without indorsement, is not taken 
in the regular course of business, and is subject to the same 
disabilities as if it had been taken after due, but the title 
passes sufficiently to maintain a suit in the name of the 
owner.'' (Pease v. Rash^ 2 Minn. 111.) 

At the time of that decision the Minnesota code was like 
ours. (Stat. Minn. 1849-58, p. 534.) To the same effect is 
7'erry v. AUis^ 16 Wis. 479, under a statute like ours. 
(Rev. Stat. Wis. 1858, p. 714.) 

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302 Haydon v. Nicoletti. [Sup. Ct. 

Opinion of the Court — Leonard, J. 

Beard v. Dedolpli, 29 Wis. 141, supports the same 
doctrine, although holding, also, that an indorsement made 
after maturity of a note assigned, but not indoraed before 
maturity, relates back to the time of delivery and protects 
the assignee against everything subsequent to the delivery. 
This doctrine is repudiated, however, by many well-consid- 
ered cases. {Clarke v. Whiiaker, 50 N. H. 475, and cases 
there cited ; Lancaster Bank v. Taylor, 100 Mass. 22. See, 
also, Grimm v. Warner, 45 Iowa 108 ; Seymour v. Leyman, 

10 Ohio St. 285 ; McCrum v. Corby, 11 Kan. 470 ; Franklin 
V. Ttoogood, 18 Iowa 5^5 ; Patterson v. Cave, 61 Mo. 439 ; 
Boeka v. Nuella, 28 Mo. 180 ; Iladden v. Rodkey, 17 
Kan. 429.) 

We have considered the questions before discussed, upon 
the theory that a note like the one in suit, indorsed by one 
only of two joint payees, is subject to any equities existing 
in favor of the maker, the same as though it had not been 
indorsed by either ; and such, we think is the law. Such 
a note is payable to both, or to their joint order. By the 
law-merchant it cannot be transferred except by the joint 
indorsement of all the payees. {Hyhiner v. Feickert, 92 III. 
811, and authorities there cited.) If a note unindorsed is 
not transferred in good faith, then one indorsed by a part 
only, is in the same situation. Such a note is surely onlj' 
transferred in part. (2 Pars, Bills & Notes, 4, 6 ; Smith v. 
Whiting, 9 Mass. 333 ; Divight v. Pease, 3 McLean, 94 ; 
Bennett v. McGaughy, 3 How. (Miss.) 193 ; Wood v. Woody 
1 Har. (N. J.) 428 ; 1 Daniel, Neg. Inst. sec. 684 ; Low- 
ell V. Reding, 23 Am. Dec. 546.) We are satisfied that 
plaintiff is in no better situation than the payees of this 
note would have been had they brought this suit ; and, in 
*that case, Nicoletti would have been entitled to credit for 
all payments made, according to the agreement entered 
into at the time of the execution of the notes and mortgage, 
and before notice of the assignment. {Davis v. Neligh, 7 
Neb. 82 ; Pecker v. Saioyer, 24 Vt. 464 ; Britton v. Bishop, 

11 Vt. 70.) 

The judgment and order appealed from are reversed, and 
the cause remanded. 

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Jan. 1884.] Martin v. Victor M. Co. 308 

Points decided. 



[Ifo. 1179.] 



18 308 
3*488 

PHILLIPPI MARTIN, Respondent, r. VICTOR MILL %}! 
AND MINING COMPANY, Appellant. % IS 

Action to Recover Alleged Balance Due to a Foreman of a Mining 
Company — Evidence Reviewed. — The evidence, in relation to the accounts 
and business transactions between the foreman and superintendent of a 
mining company, reviewed : Heldy insufficient to sustain the judgment. 

Idem — Evidence — Pay-rolls — Alterations. — The pay-rolls of the mining 
company : Held, adniL«5.sible in evidence for the puri><>se of showing that 
the plaintiff and other employes of the mining company were accustomed 
to receipt for amounts due each month without receiving the money, not- 
withstanding alterations and interlineations therein. 

Idem— Letters of President—Receifts of Employes .—Held, admissible 
in evidence; the letters as tending to establish an indebtedness; the 
receipts as tending to prove payments. 

Idem — Loan of Money— Finding. — The finding as to loan of money : Held^ 
unsustaincd by the evidence. 

Idem— Wages of Foreman when Absent from the Mine.— A foreman of a 
mining comimny is not entitled to wages for the time when he is absent 
on jury duty or for the time spent in endeavoring to procure a settlement 
with the company. 

Idem — Account Stated — Finding.— The finding upon "account stated" 
referred to : Held^ correct as presented by the record. 

Appeal from the District Court of the Third Judicial 
District, Esmeralda County. 

The letter of Coye, referred to in the opinion as not iden- 
tifying the loan of two thousand dollara, is as follows : 

"Victor Mill and Mining Co., \ 

"San Francisco, Cal. j 

^^ Phillip Martin — Dear Sir: If you can give me the 
names of the men you paid off and that was paid by Rhodes, 
it will help me much in getting through with the account. 
You put down two thousand dollars to the Victor Company, 
cash. I can see that you have paid it out to the men, and 
the account shows that Rliodes also paid some of them. 
You, of course, hold the order. It is complicated, as we 
have credited Mr. Rhodes on the books of the company 
with all the pay-rolls. Now we will segregate and see 
what is jt)urs and what is Rhodes' * * * 

"H. L. COYE.'' 



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804 Martin v. Victor M. Co. [Sup. Ct. 

Argument for Appellant. 

The findings of fact as to the iiccount stated, as referred 
to in the opinion, is as follows : " First — That plaintiff' as 
alleged in his complaint performed work and labor and 
advanced money for defendant, at its special instance and 
request, during the years 1875, 1876, 1877, and up to May 
30, 1878, except that said complaint alleges the same to 
have been U[) to May 30, 1877, which error plaintiff cor- 
rected by his testimony on the trial. The amount is not 
stated, but the complaint alleges in subdivision second that 
for a]id 0]i account of said work and labor a settlement was 
had, and a balance struck on the thirtieth day of May, A. 
D. 1877, according to the evidence, May 30, 1878, when it 
was found that there was a balance due from defendant to 
plaintiff therefor of two thousand two hundred and twenty- 
four dollars. This balance I find to be unpaid according to 
the evidence. That the said work was performed and 
money advanced and settlement made is not denied, but it 
is claimed in defense that it is due, if not paid, from A. J. 
Rhodes to plaintiff. This is not sustained by the proofs in 
the case. I find that this settlement was between plaintiffs 
and defendant, and that the balance found and stated to be 
due from defendant to plaintiff' on that settlement, two thou- 
sand two hundred and twenty-four dollars, was for work and 
labor performed by plaintiff' for defendant after it became a 
corporation (February 11, 1876) and prior to said settle- 
ment. ' ' 

P. jReddy and J. F. Boiler^ for Appellant : 

I. Evidence and findings reviewed. 

n. Rhodes had no authority by virtue of his ofiice of 
superintendent to borrow money for the company, and could 
not confer such power on Mintie. (Story on Agency, 
sec. 69, note 2 ; Bainbridge on Mines, 379-383 ; Union O. 
M. Co. V. R, M. National Bank, 1 Col. 532 ; Union G. 
M. Co. V. R. M, National Bank, 2 Col. 248 ; Breed v. First 
N. B.,4 Col. 481.) 

III. If the balance due plaintiff' was against the defend- 
ant, then when plaintiff* accepted credit on the private store 



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Jan. 1884.] Martin r. Victor M. Co. 805 

Opinion of the Court — Belknap, J. 

books of Rhodes for that amount, and drew ag^ainst it for 
supplies and naoney, and Rhodes giving goods and money 
for this claim, it opemted as an equitable assignment of the 
claims to Rhodes. (1 Green (N. J.) 247 ; Story's Eq. Jur. 
sec. 1047 ; Wiggins v. McDonald^ 18 Cal. 126 ; 1 Pars, on 
Cont 229 and notes; 2 Whart. on Cont. sees. 839, 840.) 

D. J. Lewis, Curler ^ Bowler, and Wells ^ Taylor, for 
Respondent : 

I. The first finding is fully sustained by the evidence, 
when considered as a whole. The presumption of law is 
that, the finding is for the amount due, from the defendant 
to the plaintiff, for the work done, advances made, etc., 
from February 11, 1876, to May 3, 1878, when the settle- 
ment was made ; for there is no evidence that anything was 
due from Rhodes to plaintiff when defendant took control 
of and began to work the mine on its own account. (1 Comp. 
Laws, 1669; O'Connor v. Stark^ 2 Cal. 153; Buekovi v. 
Swift, 27 Cal. 433; Lyons v. Leimback, 29 Cal. 139; Henry 
V. Everts, 30 Cal. 425 ; Jenkins v. Frijik, 30 CaxI 586 ; Sears 
V. Dixon, 33 Cal. 326 ; San Francisco v. Eaton, 46 Cal. 
100 ; Howard v. Throckmorton, 48 Cal. 482.) 

II. The findings and evidence reviewed. 



jjjo 



By the Court, Belknap, J.: 

During the periods mentioned in the complaint the defend- 
ant was operating a mine in Esmeralda county. Its general 
business was intrusted with a superintendent, A. J. Rhodes, 
who was also the proprietor of a store of general merchan- 
dise at Belleville, a point about seven miles from the mine. 
Plaintiff' was foreman at the mine, and also conducted a 
boarding-house, at which the employes of defendant boarded. 
He purchased supplies for the boarding-house from Rhodes, 
and, in his complaint alleges, at various times loaned and 
advanced moneys to defendant and to its use. The com- 
plaint embraces several distinct causes of action arising upon 
these demands. The nature of the business relations be- 
tween plaintiff* and Rhodes, and the manner in which the 

Vol. XVm— 39 ^ t 

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806 Maetin v. Victor M. Co. [Sup. Ct 

Opinion of the Court — Belknap. J. 

transactions were conducted, may be shown by extracts of 
plaictift'^s testimony taken from the record. He said : 

** Baring all the time that Mr. Rhodes kept the store at 
Belleville, namely, up to the last month of the year 1879, 
he traded with Mr. Rhodes, taking credit for his labor and 
claims against the company, and drawing goods, waives, 
and merchandise and money from Mr. Rhodes against said 
claims." 

Again: ^'That he procured -the signatures of the men, 
and put his own signature in receipt for labor performed for 
the months and the years mentioned in said exhibits (the pay- 
rolls) at the request of Mr. Rhodes, the superintendent, and 
that Mr. Rhodes agreed to pay them for their time, and to 
give them credit in his store for anything they wanted up 
to the amount of the claim each had.*' 

Rhodes testified : 

**That Martin traded with him from September, 1875, 
up to the third day of May, 1878. I think that Martin drew 
all his supphes for his boarding-house from witness' (his) 
store, and was charged on witness' books for all such sup- 
plies ; that Martin would turn in his time and claims against 
the defendant to him, and that he would give Martin credit 
for it, and that he, witness, would takre the company for it. 
Sometimes Martin would owe him, and sometimes he would 
owe Martin ^ * * * that from the tliird day of May, 
1878, up to the time he closed his store in Belleville, which 
was sometime in October, 1879, Martin continued to trade 
at his store, and aftei'wards traded for about three months 
at his store at New Boston ; that Martin would sometimes 
pay the men the money for their time and bring it to wit- 
ness and have it credited on the store-books, and that Mar- 
tin would draw supplies against it; that the course- of deal- 
ing was as follows : Martin was permitted to draw whatever 
he wanted out of his store, either money or goods, which 
was charged to Martin on his books. Whenever Martin 
had any claim against the defendant for his time, or the 
time that he (Martin) had purchased from the men, that he 
would take it in payment and credit Martin on the books 



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Jan. 1884.] Martin v. Victor M. Co. 807 

opinion of the Court^Belknapf J. 

with the amount ; that the dealing was between him and 
Martin; and that he (witness) looked to the company to 
obtain his pay on these claims." 

These were the only witnesses who testified upon this 
subject, and there is no conflict in their testimony. If we 
are to be governed by it — and we have no alternative — it 
is manifest that the judgment cannot be sustained, because 
plaiutifl:' haa continued to transfer all his demands against 
defendant to Rhodes so long as Rhodes continued store- 
keeping. Rhodes closed his store about the commencement 
of the year 1880. The testimony shows that since that 
time plaintifl:' has paid large sums of money to defendant's 
use; but the complaint admits credits aggregating ten 
thousand three hundred and forty-two dollars, and there is 
nothing to fix the time when they were given. The total 
credits exceed the advances made since January, 1880, and, 
non constat, that defendant has not paid all of its indebted- 
ness to plaintifi. 

Upon the oral argument respondent claimed that an 
examination of the record would disclose the fact that the 
judgment given by the district court was for a balance due 
plaintiff:* after paying Rhodes, and that the transfer of 
demands to him was only to the extent of paying plaintiff:* *s 
indebtedness. In his cross-examination Rhodes testified : 

''That at various times while plaintiff' was acting as fore- 
man of the defendant, the witness, as superintendent of 
defendant, requested plaintiff' to pay sums of money to men 
who were working for defendant, and that plaintiff* did so; 
and that it was underetood and agreed between witness and 
plaintiff that all such advances and board-bills of the men 
working for defendant were to be credited to plaintiff' on 
the books of witness to the extent of what plaintiff' might 
then owe witness. 

If this piece of evidence estabHshed the fact that the 
demands against defendant were transferred only to the 
extent of plaintiff's indebtedness to Rhodes, still there is 
nothing in the record tending to show a balance in favor of 
plaintiff*. The judgment must be reversed for the reasons 
stated. 

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308 Martin v. Victor M. Ck). [Sup. Ct. 

Opinion of the Court— Belknap, J. 

As some of the questions made upon this aj)peul may 
arise upon a retrial, it is proper that they should be settled 
now. 

1. The pay-rolls offered in evidence were admissible. 
The number of days' work and the amount due each man, 
and set opposite his name, was in frequent instances altered, 
but the alteration was immaterial to the issue to which the 
proof was directed. The insti'uments purported to be re- 
ceipted monthly pay-rolls of defendant for a portion of the 
time embraced by the transactions between the parties, and 
were ottered as tending, in connection with other evidence, 
to prove the fact that plaintitt', as well as otters, were accus- 
tomed to receipt for the amounts due them each month, 
and, without receiving the money from defendant, take 
credit upon the books of Rhodes for the amount. No ques- 
tion of the number of days* labor performed each month, 
or of the amount due, was involved, but simply the course 
of business in the respect stated. 

2. The letters and receipts ottered in- evidence by plaintitt" 
were admissible ; the former as tending to establish an 
indebtedness ; the latter, in connection with the oral testi- 
mony, as tending to prove payments made by plaintitt' for 
defendant. The receipt of A. Mack& Co. must be excepted 
from this general statement, as there is no proof to connect 
this payment or matter wjth defendant. 

3. The finding that two thousand dollars was loaned to 
defendant is unsustained by the evidence. No authority 
was shown in Thomas Mintie to borrow money for defend- 
ant, nor was it shown that defendant received the money. 
The statement in Coye's letter of July 13, 1881, does not 
identify this loan, but appears to refer to money paid to the 
men, and not to Mintie. 

4. Plaintitt' should not have been allowed his per diem tor 
the time he was absent. 

5. The finding touching the account stated is correct as 
the question is presented by the record. The objectionable 
matter is not itemized ; if errors exist they do not att'ect all 
of the items of the transaction and invalidate the whole 



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Jan. 1884.] Martin v. Victor M. Co. 809 

Opinion of the Court— Belknap, J. 

account. Whether under the pleadings the account is 
subject to attack, or whether the facts authorize its cor- 
rection, are mattera upon which we express, no opinion, 
because the questions were not made. 

The judgment and order of the district court are reversed, 
and a new trial ordered. 



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REPORTS OF CASES 



DKTEBMINKD IN 



THE SUPREME COURT 

OF THK 

STATE OF NEVADA, 
APRIL TERM. 1884. 



[No. 1181.] 

CARTAN, McCarthy & OO., Respondbnts, v. EVAN 
DAVID, ET AL., Defendants, MRS. LOUISE C. 
ROBERTS, Appellant. 

Marbied Women— Contracts by— Separate Estate— Security for Hus- 
band. — The assignment by a married woman of a note and mortgage upon 
real estate, the same behig her separate property, as collateral security for 
the payment of her husband's debts, without any fraud or improper 
inducements, and with tlie intention of binding her separate estate, is a 
valid contract, and is enforceable in equity against her separate estate. 

Idem— Intention to Bind Separate Estate — How Expressed. — ^The intention 
of Mrs. Roberts to make the debt a charge upon her separate estate does 
not rest entirely upon parol evidence. It is made manifest by the acts and 
conduct of the parties, by the exhibits, and by the written indorsement 
and delivery of her note and mortgage. The contract, as made, is an 
express charge upon her separate estate for the payment of her husband's 
debt. 

Rights and Liabilities of Married Women.— Married women having, by 
statute, been granted the right to control their separate property, must 
assume the risks which ordinarily follow. Having the right to make con- 
tracts respecting their separate estates, they must be held liable tq the same 
extent as other citizens. 



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April, 1884.] Cartan v. David. 811 

Ajipument for Appellant. 

Contract of Mabried Women— Statute of Fbauds— When not Applicable 
— Consideration for Assignment of Note and Mortgage. — The statute 
of frauds haa no application to the facts of this case. It was not essential 
to the validity of tlie contract to have the consideration of the indotsement 
expressed upon tJie note, or mortgage in writing. The assignment being 
made by the wife for the purpose of securing the note of her husband at 
the same time lier husljand's note was given, and as part of the same 
transaction, tlie consideration for the husband's note will be regarded as 
the consideration for the collateral security of the wife, and no new or 
additional promise by her is necessary. The transaction must be treated 
as an original undertaking on the part of the wife, and cannot be con- 
sidered as a mere i^arol promise to pay the debt of another. 

Ajbbignment of Note and Mortgage by Married Women— How Made — 
Acknowledgment.— The assignment by a married woman of a note and 
mortgage upon real estate, being her separate property, may be made by 
merely indorsing her name upon, the back of the note. Such note and 
mortgage are mere chattels and the assignment thereof is not such a con- 
tract respecting her real estate as the statute requires to be acknowledged 
separate and apart from her husband. 

Idem— Executed Contract.— When a contract is fully executed on both sides 
the rights of the parties become fixed and neither pai-ty can interfere with 
such rights by pleading the statute of frauds. 

Appeal from the District Court of the Second Judicial 
District, Ormsby County. 

The facts are stated in the opinion. 

Harris ^ Bartine for Appellant : 

I. The evidence, in this case, shows that the entire 
en^gement of Mrs. Roberts was one of surety for the debts 
of her husband. Under the laws of this state, the only con- 
tracts which a married woman can make are those respect- 
ing: property. (1 Comp. Laws, 169.) 

n. The English equity doctrine which considers a promis- 
sory note executed by a married woman a charge upon her 
separate estate has no application. Even if it had, the 
weight of American authority is against it. (Wright v. 
Brown, 8 Wright (Penn.) 224; Metcalf v. Cook, 2 R. I. 
355; Leacra/t v. Hedden, 3 Green's Ch. (N. J.) 512; 
Perkins v. Elliott, 23 N. J. Eq. 526 ; Litton v. Baldwin, 8 
Hump. (Tenn.) 209; Montgomery v. Ag, Bank, 10 S. & M. 
(Miss.) 567 ; Patterson v. Laiorence, 90 III. 175 ; Kaniro- 
witz V. Pratker, 31 Ind. 92 ; Reed v. Buys, 44 Mich. 80 ; 



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312 Cartan v. David. [Sup. Ct 

Argument for Appellant. 

Ewing V. Smith, 8 Des. (S. C.) 417.) In New York, 
Massachusetts and South Carolina the doctrine is accepted, 
but with the important quaUfication that the instrument must 
expressly charge her estate, and that no other evidence 
will be admitted to show the intention. ( Yale v. Dederer^ 
18 N. Y. 265 ; Id. 22 N. Y. 450 ; Id. 68 N. Y. 329 ; Gos- 
man v. Crugcr, 69 N. Y. 87 ; Willard v. Eastkam^ 15 Gray 
328 ; Knox v. Jordan, 5 Jones' Eq. (N. C.) 175. See, also, 
Levi V. Earl, 30 Oh. St. 147 ; Ricev. Railroad, 32 Id. 380.) 

III. Where the estate is statutory and le^al, the statute 
governs, and courts of equity have no right to disregard its 
provisions. ( Wilkinson v. Cheatham, 45 Ala. 338 ; ^unns v* 
Giohans, 45 Ala. 374 ; 0' Connor v. Chamberlain, 59 Ala. 
431 ; Meyers v. Rahte, 46 Wis. 658 ; Maday v. Love, 25 
Cal. 367 ; Dollner v. Snow, 16 Fla. 86 ; Sioeazy v. Kammei% 
51 Iowa 642 ; West v. Larawaij, 28 Mich. 454.) 

IV. A promissory note is not per se a contract respectinor 
property. It depends upon the nature of the transaction iu 
which it is executed. St^inding by itself it is merely a per- 
sonal promise, and in no case can an undertaking of surety- 
ship, as evidenced by the signing of a promissory note, be 
a contract respecting property. {Sweazy v. Kamrner, 51 
Iowa 642 ; Jones v. Crosthioaite, 17 Iowa 393 ; Wolf v. Van 
Metre, 23 Iowa 397 ; Reed v. Bays, 44 Mich. 80 ; Russel 
V. People's Savings Bank, 39 Mich. 671 ; De Vries v. Conklin^ 
22 Mich. 256; West v. Laraway, 28 Mich. 465; Ames v. 
Foster, 42 N. H. 382 ; Shannon v. (hnney, 44 N. H. 592 ; 
Brookings v. White, 49 Me. 482; Willard v. Eustham, 15 
Gray 328 ; Athol Machine Co. v. Fuller, 107 Mass. 437 ; 
Hoker v. Boggs, 63 111. 161 ; Coats v. McKee, 26 Ind. 223 ; 
Savirigs Bank v. Scott, 10 Neb. 83 ; Id. 371 ; Smith v. Greer, 
31 Cal. 478.) 

V. The alleged assignment of the David note and 
mortgage was an undertaking in substance by Mre. Roberts 
to answer for the debt of lier husband, and is within the 
statute of frauds. (Brandt on Sureties, sees. 22, 60, 66 ; 
Spear v. Ward, 20 Cal. 659 ; Brown on Stat, of F. 173, 174, 
346 ; Mayer v. Adrian, 77 N. C. 83 ; Washington Ice Co. v. 



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April, 1884.] Cartan v. David. 313 

Argument for Respondent. 

• 

Webster, 62 Me. 341 ; Baptist CL v. Bigelow, 16 Wend. 
28 ; Williams v. Morris, 95 U. S. 444 ; Pierce v. Corf, Law 
R. 9 Q. B. 210.) It is necessary that all the substantial 
matter of agreement shall be connected with the signature 
of the party to be charged. The law admits of nothing by 
way of substitute for the actual signature. (1 Comp. Laws, 
289 ; Brown on the Stat, of F. sec. 863 ; Barry v. Law, 1 
Cmnch C. C. 77 ; Nexcby v. Rogers, 40 Ind. 9 ; Groover v. 
Warfield, 60 Ga. 644; Graham v. Musson, 6 Bing. N. 
a 243 ; Graham v. Fretwell, 3 M. & G. 368 ; Van Doren v. 
Ijader, 1 Nev. 380 ; Wilson v. Martin, 74 Pa. St. 159.) 

Trenmor Coffin, for Respondents : 

L If Mrs. Roberts had been o, feme sole, she could have 
pledged her personal property to secure the promissory 
note of another by the delivery of her personal property to 
the payee of the note at the time of its execution, or 
she could have assigned a note and mortgage held by her 
as collateral security for the debt of another. The debt of 
the pereon to whom the security was given would be a 
suflBcient consideration to support the assignment. {Gibson 
V. Milne, 1 Nev. 526 ; Lawrence v. Knap, 1 Root 248 ; 
Kansas M. Co. v. Gandy, 11 Neb. 448 ; 1 Jones on Mortg., 
sees. 615, 778 ; Worcester National Bank v. Cheeney, 87 III. 
607 ; Davidson v. King, 51 Ind. 224 ; Moore v. Fuller, 6 
Or. 272; Baylies on Sur. and Guar., 53, 58; Brandt on 
Sur. and Guar., sees. 6, 7, 8.) 

n. When a married woman signs a promissory note and 
has separate property, her husband cuts no figure in the 
same. A suit may be maintained on the note, a judg- 
ment obtained and her property taken in execution, the 
same as in the case of an unmarried woman or of a man. 
Her separate property may be subject to the payment of 
her promissory note, or the joint note of her and her hus- 
band, especially when credit was given upon the faith of 
her separate property, or where she understood or intended 
that her separate property should be liable for the satis- 
faction of the note. (Williams v. Urmston, 35 Ohio St. 

Vol. XVm-40 ^r^r^^]o 

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814 Cartan V, David. [Sup. Ct 

Argument for Respondent. 

» 

296; Phillips v. Graves, 20 Ohio St. Zll) Avery v. Van- 
sickle, 35 Ohio St. 270 ; Kimm v. Weippert, 46 Mo. 632 ; 
Miller v. Broion, 47 Mo. 504 ; Metropolitan Bank v. Taylor, 
62 Mo. 338 ; Deering v. So^/c, 8 Kan. 525 ; 5e« v. /fe^ar, 
18 B. Monroe 381 ; Cowles v. More/an, 34 Ala. 535 ; Bur- 
nett V. Hawpes, 25 Qrat. 481 ; Badford v. Qirioile, 13 W. 
Va. 572 ; Moore v. i'''<(Zfer, 6 Or. 274 ; Gray v. Holland, 9 
Or. 512 ; Z)^^^/ v. Mrih American Coal Co,, 20 Wend. 570 
Martin v. Dicelley, 6 Wend. 9 ; Jaques v. Methodist Church, 
17 Johns. 549 ; Vanderheyden v. Mallory, 1 N. Y. 452 
Cbni Exchange v. Babcock, 42 N. Y. 613; McVey v. Can- 
<re«, 70 N. Y. 295; Tiemeyer v. Turnqiiist, 85 JS'. Y. 516 
Merchant's Bank v. ^a/?, 83 N. Y. 338; Emerson v. Clayton, 
32 III. 496; Pomo-o^/ v. j^t/n. i7d5. Co., 40 111. 399, 402 
Williams v. Hugunin, 69 III. 214; jB«/o^/ v. (;o?/7er, 12 R. 
I. 79; i)ayi> V. Bank of Cheyenne, 5 Neb., 242; Kansas 
Manf. Co, v. Gandy, 11 Neb. 448 ; Priest v. Cbne, 51 Vt. 
495 ; Collins v. Dawley, 4 Col. 138 ; Porter v. Haley, 55 
Miss. 66; Wright v. Remington, 12 Vroom 48; 7b(W v. 
Zee, 15 AVis. 380 ; Krouskop v. /S/jo?!/^, 51 Wis. 204 ; Pelzer 
V. Campbell, 15 S. 0. 58J ; Slaughter v. Glenn, 98 U. 8. 242 ; 
Smith V. Thompson, 2 McArthur (D. C.) 291 ; Dallas v. 
Heard, 32 6a. 604 ; American Ins, Co. v. Averts, 60 Ind. 
670; Frazierv. lirownloio, 3 Ired. Eq. (N. C.) 237; iVe^c»- 
Zm V. Freeman, 4 Ired. Eq. 312 ; Allen v. Fuller, 118 Mass. 
402 ; Nourse v. Henshaw, 123 Mass. 96 ; Jl/^Jor v. Holmes, 
124 Mass. 108 ; Gardner v. Pea/i, 124 Mass. 347 ; A'e/i- 
worthy v. Sawyer, 125 Mass. 28 ; Goodnow v. -ffiW, 125 
Mass. 587 ; Wborf v. Orford, 52 Cal. 412 ; Parry v. JTeKy, 
52 Cal. 334 ; Marlow v. Barlew, 53 Cal. 456 ; Alexander v, 
5oMto?2, 55 Cal. 15; Brickell- v, Batchelder, 62 Cal. 639; 
Orange Bank v. lYaver, 7 Saw. 211 ; .^ifer^ v. Forbes, 59 
Md. 374; 1 Bish. Mar. Worn., sees. 848, 858, 864, 879.) 

III. When plaintiffs satisfied their judgment against 
Oliver Roberts, and Roberts and wife joined iu the execn- 
tion of a promissory note therefor, it was was an origiual 
undertaking on the part of Mrs. Roberts and not within the 
statute of frauds, plaintiffs having satisfied the judgment 



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April, 1884.] Cartan r. David. 315 

Opinion of the Court — Hawley, C. J. 

and parted with their goods on the faith and credit of Mrs. 
Roberts and of her separate proi>erty. (Corbeit v. Cochran, 
3 Hill (S. C.) 42 ; Umlerhill v. Gibson, 2 N. H. 352 ; Dear- 
born V. Parks, 5 Greenleaf, 81; Harrison v. tiawielle^ 10 
Johns, 242 ; Marcy v. Crawford, 16 Conn. 549 ; Green v. 
Brookins, 23 Mich. 48 ; Vo(jel v. Melms, 31 Wis. 306 ; 
Calkins v. Chandler, 36 Mich. 320 ; Ha-ppe v. Stout, 2 Cal. 
460 ; Rig(js v. Waldo, 2 Cal. 485 ; Evoij v. Taoksbury, 5 
Cal. 285 ; Jones v. Pod, 6 Cal. 102 ; Uazeliine v. Larco, 7 
Cal. 32 ; Otis v. Hazeliine, 27 Cal. 80 ; Gradmhl v. if«rm, 
29 Cal. 151 ; i^or^/ v. Hendricks, 34 Cal. 075 ; Howland v. 
^27(:/s 38 Cal. 133; Emerson v. iVa/er, 22 How. 28.) 

IV. Even if the transaction could be construed in any 
phase of it to be within the statute of frauds, it was on that 
day completed, and the contract of satisfying the judgment 
and of the delivery of the goods by plaintitt', and of giving 
collateral security by defendant, Mrs. Roberts, was on that 
day fully executed. An execution of a contract and change 
of possession of property takes a contract or transaction out 
of the statute. {Stone v. JDenison, 13 Tick. 1 ; Martin v. 
McCord, 5 Watts 493; Llnscotl v. Mclntire, 15 Me. 201; 
Dugan v. Gitiings, 3 Gill 138 ; Bobbins v. McKnighi, 1 
Hals. Ch. 642; Green v. Brookins, 23 Mich. 48; Lee v, 
McLeod, 12 Nev. 280 ; Ecans v. Lee, 12 Nov. 393.) 

V. The mortgage is a mere incident and follows the debt. 
[Lawrence v. Knap, 1 Root 248 ; Banyan v. Mersereau, 
llJohns534; Sheldon v. SiU, 8 How. (U. S.) 450; Car- 
Renter v. Longan, 16 Wal. 274, 275 ; Fryer v. Bockefeller, 
63 N. Y. 276 ; Ord v. Mckee, 5 Cal. 517 ; Nagle v. 'Macy, 
9 Cal. 428 ; Willis v. Farley, 24 Cal. 498 ; Hurt v. Wdsm, 
38 Cal. 264 ; Mack v. Wetzlcr, 39 Cal. 247 ; Burling v. 
Goodman, 1 Nev. 317 ; Burhams v. Hutchinson, 25 Kan. 
625.) 

By the Court, Hawley, C. J. : 

On the thirteenth of June, 1881, Oliver Roberts and his 
wife, Louise C. Roberts, made, executed and delivered to 
respondents a promissory note for nine hundred dollars. 

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316 Cartan V, David. [Sup. Ct. 

Opinion of the Court—Hawley, C. J. 

The consideration of this note was the satisfaction by 
respondents of a judgment previously obtained against 
Oliver Roberts for the sum of eight hundred dollars, and 
the sale by them of a certain stock of liquors, saloon fix- 
tures and supplies, valued at one thousand dollars, to Mrs. 
Roberts. As collateral security for the payment of the 
note, Mrs. Roberts indoi^sed and delivered to respondents a 
note for five thousand dollars, secured by a mortgage upon 
certain real estate in Carson City, Nevada, this note and 
mortgage being her separate property. This action was 
commenced to foreclose said note and mortgage and to sub- 
ject the proceeds of the sale of the mortgaged premises to 
the satisfaction of the nine-hundred-dollar note. At the 
close of plaintiffs* testimony the defendants moved for a 
nonsuit upon the grounds: 

"That the evidence for the plaintiffs shows conclusively 
that the whole transaction, on the part of Mrs. Roberts, 
was simply one in which she undertook to become a surety 
for the antecedent debt of her husband, Oliver Roberta, 
and that said undertaking on her part is not evidenced by 
any note or memorandum in writing, expressing the consid- 
eration for the undertaking, as is required by the statute of 
frauds." 

This motion was overruled, and the trial resulted in a 
judgment in favor of respondents. Mi^s. Roberta alone 
appeals. 

Can the contract of Mi's. Roberts be enforced under the 
laws of this state ? The general legal docti'ine that the 
civil existence of the wife is merged into the legal life of 
the husband, and divests her of all power to hold property 
in her own individual right, resulted in England in the 
establishment of certain equity rules which invested her 
with power to enjoy and hold a separate estate, and to alien- 
ate it. The question then arose as to the nature and extent 
of her authority over it. 

The leading case of llulnie v. Tenant^ 1 Urown Ch. 16, 
was brought by the obligee upon a joint bond by husband 
and wife to recover a sum of money out of the separate 



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April, 1884.] Cartan r. David. 817 

opinion of the Court— Hawley, C. J. 

property of the wife. Lord Thurlow, in rendering his 
opinion, said : 

"I have no doubt about this principle, that, if a court of 
equity says a feine covert may have a separate estate, the 
court will bind her to the whole extent as to making that 
estate liable to her own engagements, as, for instance, for 
payment of debts,*' etc. 

The rule in England is well settled that a/eme covert is to 
be regarded in equity as a fenie sole with respect to her 
separate estate, with power to dispose of it as she pleases, 
unless specially restrained by the instrument under which 
she acquires the esUite. She is, by the settlement of such 
separate property to her use, clothed with the absolute jus 
disponendi incident to ownership. 

In the United States there is no settled rule upon this sub- 
ject. No question has ever been presented to the courts of 
this country which has brought out such a conflict of 
opinion among the ablest and most distinguished jurists of 
the land. 

In Ewmg v. Smithy 3 Desaus. Eq. (S. C.) 418, Chancellor 
Desaussure, in tracing the doctrine from its first appearance 
in the courts of equity to the year 1811, said : 

"By the simple rules of the common law, the union of 
man and wife was deemed so complete that there was a 
junction of persons, minds, and fortunes. The wife's ex- 
istence was absorbed in the husband's, and he, adoptino* 
her and her debts, and assuming to maintain and provide 
for her, became entitled to all her personal estate absolutely, 
and to the enjoyment of all her real estate for life. When, 
in the progress and refinement of commerce, corruption 
came with them, and also great hazards to fortune fi-om the 
spirit of adventure, the caution and providence of parents 
endeavored to guard against casualities by giving property 
to their daughters as a separate estate, not liable to the 
debts of her husband. This at once dissolved the charm 
which bound up the fortunes and wills of the man and wife 
in one common bond of interest and affection. It was the 
introduction of a principle familiar to the civil law, but new 



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818 Cartan v. David. [Sap. Ct. 

Opinion of the Court— Hawley, C. J. 

to English law, that man and wife were distinct persons, 
with distinct properties, and distinct powers over them. A 
separate estate, free from the control of the husband, and 
subject to the will of the wife, made her a free agent quoad 
that property, and she could act upon it as a feme sole. 
But it was soon found that wives, however legally free, were 
much under the control of their husbands, and too readily 
yielded ui) their separate estates to them by direct gifts, or 
bv entjnffements to their creditoi's. This induced some of 
the judges to interpose and to endeavor to control the free 
exercise of tliis power of free agency, which the character 
of a feme sole^ as to the separate estate, bestowed. But, 
upon the fullest consideration, it has been found that upon 
the introduction of the principle that femes covert could hold 
separate estates, free from the control of their husbands, 
the jus disporie7idi, and all the other consequences of the 
holding separate estates necessarily followed, and after an 
inefiectual struggle the doctrine seems to hfive settled down 
where it was originally placed by the court. The result, 
then, is that a feme covert entitled to a separate estate, in 
possession, remainder or reversion, is held to be a feme sole 
to the extent of the 8ei)arate property, and the jus dispo- 
nendi follows, of course. She may give it to whom she 
pleases, or charge it with tlie debts of her husband, where 
no undue control is used over her, and her disposition will 
be sanctioned or enforced by the court, even without the 
assent of the trustees, unless that assent be specially made 
necessary by the deed or will creating the separate estate ; 
and this power of disposing of the separate estate is not 
restricted by the deed or will pointing out a particular mode 
of disposing or charging the particular estate, unless the 
deed or will negatives any other mode expressly. Upon 
the fullest and most attentive examination of the cases, I 
think these doctrines are clearly made out and established.*' 
This able oi>inion of the learned chancellor was, however, 
reversed in the court of appeals by a majority of the chan- 
cellors, and the courts of that state for many years thei-e- 
after maintained the doctrine that the wife was, as to her 

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April, 1884.] Cartan v. David. 819 

Opinion of the Court — Hawley, C. J. 



separate estate, under the disabilities of coverture, and 
entitled to exercise no rights, except such as were expressly 
conferred on her by the instrument creating the estiite. In 
1870 the legislature passed a law which authorized a mar- 
ried woman to "convey her separate property in the same 
manner and to the same extent, as if she were unmarried," 
and under this statute the courts have held that tlie per- 
sonal contracts of a married woman are binding upon her. 

In New York the subject has undergone very able and 
profound discussion. Chancellor Kent, in Methodist Episco- 
pal Ckiircli V. Jaques, 3 Johns. Ch. 78, (decided in 1817,) 
in an elaborate opinion, reviewing many of the English 
cases, came to the conclusion "with unfeigned diffidence, 
considering how great talents and learning, by a succession 
of distinguished men, have been exhausted upon the sub- 
ject, that the English decisions are so floating and contra- 
dictory as to leave us the liberty of adopting the true prin- 
ciple of these settlements. Instead of holding that the wife 
is a feme sole to all intents and purposes as to her separate 
property, she ought only to be deemed a feme sole^ sub 
modo^ or to the extent of the power clearly given by the 
settlement. Instead of maintaining that she has an abso- 
lute power of disposition, unless specially restrained by the 
instrument, the converse of the proposition would be more 
correct, that she has no power but what is specially given, 
and to be exercised only in the mode prescribed, if any 
such there be. Her incapacity is general, and the excep- 
tion IS to be taken strictly, and to be shown in every case, 
because it is against the general policy and immemorial doc- 
trine of law. These very settlements are intended to pro- 
tect her weakness against her husband's power, and her 
maintenance against his dissipation. It is a protection 
which this court allows her to assume, or her friends to 
give, and it ought not to be rendered illusory.'' 

As in South Carolina, the decision of Chancellor Desaus- 
sure, maintaining the correctness of the English rule, was 
reversed by a majority of the chancellors in the court of 
appeals ; so in New York the decision of Chancellor Kent, 



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820 Cartan v. David. [Sup. Ct. 

Opinion of the Court—Hawley, C. J. 

condemning the English rule and departing from it, was 
reversed in the court of errors ; likewise by a divided court. 
Spencer, C. J., in delivering the opinion of the court, said : 

*' I have examined this case with the unfeigned respect 
which I always feel for the learned chancellor who has 
denied the right of Mrs. Jaques to disi)Ose of her estate 
without the consent or concurrence of her trustee, and I am 
compelled to dissent from his opinion and conclusions. 
From the year 1740 until 1793 (with the single exception 
of the opinion of Lord Bathurst, in Hulme v. Tenant^ which 
occurred in 1778, and in which case a rehearing was 
granted by Lord Thurlow and the opinion revereed), there 
is an unbroken current of decisions that a feme corerty with 
respect to her separate estt\te, is to he regarded in a court 
of equity as a feme sole, and may disi»ose of her property 
without the consent or concurrence of her trustee, unless 
she is specially restrained by the instrument under which 
she acquires her separate estate. * * * Ti^e mis- 
take into which I think the chancellor has fallen consists 
in considering Mi*s. Jaques restrained from disposing of 
her estate in any other way than that mentioned in the deed 
of settlement. The cases, in my apprehension, are clearly 
opposed to this distinction ; and I am entirely Siitisfied that 
the established rule in equity is that when a feme covert^ 
having separate property, enters into an agreement, and 
sufficiently indicates her intention to attect by it her sepa- 
rate estate, when there is no fraud or unfair advantage 
taken of her, a court of equity will apply it to the satisfac- 
tion of such an engagement. {Jaques v. M. E, Church, 17 
Johns 577.) 

After the statutes of 1848 and 1849, which gave the right 
to marj'ied women to acquire and hold in actual possession 
and enjoyment a separate legal estate in lands or personal 
property, the princii»les controlhng the courts of that state 
were moulded into positive form by the decision of the 
court of appeals in Yale v. Dederer, 18 N. Y. 265. This 
case involved the question of the power of a married woman 
to charge her separate estate, either under the statute or 



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April, 1884.] Cartan v. David. 321 



Opinion of the Court — Hawley, C. J. 



independently of it, by executing a joint promissory note 
with her liusband. Comstock, J., in delivering the opinion 
of the court, gives as clear and able exposition of the sub- 
ject as is to be found in any of the decided cases which 
modify the rules as established in England. He said : 

''Until the change which has been mentioned was made 
by the legislature in the law of trusts, there was a well- 
settled doctrine that a married woman could deal with her 
separate estate as though she were feme sole. But this 
doctrine was a pure creation of the courts of equity. Trusts 
for the separate use of married women were a marked, 
although a beneficial, innovation upon the rules of the com- 
mon law. But when the courts of equity sustained their 
validity, and recognized the wife*s estate under them, it 
seemed to be a necessary result that she should have the 
power of disposition ; and, accordingly, the power was con- 
ceded. * * * But the separate estates, upon which the 
courts of equity ingrafted these peculiar doctrines, included, 
necessarily, only such rights and interests of the wife as 
would belong to the husband but for the limitation to her 
particular use. * * * But her own reversion in lands, 
when she owned them at the time of her marriage, was a 
legal estiite descendible to her heirs, to which courts of 
equitj' did not and could not well apply the doctrines which 
have been stated. * * * The principle, in short, which 
now governs in cases of this kind, is that a wife's separate 
estate is liable to pay her debts during coverture, in 
whatever form they are incurred ; not because her contracts 
have any validity at law, nor by way of appointment or 
charge, but because equity decrees it to be just that they 
should be paid out of such estate. Of course, it is not to be 
denied that a wife may appoint or specifically appropriate 
her separate estate to the payment of her own or her hus- 
band's debts. She may, if she pleases, even give it to her 
husband. What I am denying is that contracting the debt 
is, of itself, an appointment or charge. 

"Can, then, the principle on which the liability depends 
be extended to cases of mere suretyship for the husband 

Vol. XVIII— 41 ^ . 

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822 Cartan v. David. [Sup. a. 

Opinion of the Court — Hawley, C. J. 



or a stranger? It seems to me it cannot. The obliga- 
tion of a surety, in all other cases, is held to be stricti 
juris; and if this contract is void at law, there is no 
liability in equity founded on the consideration between 
the principal parties. * * * Why 'should a mar- 
ried woman be made an exception to this rule ? We are 
to remember that her contract is absolutely void at law, 
and, when she is a mere surety, there is no equity springing 
out of the consideration. Tf the promise is on her own 
account, if she or her separate estate receive a benefit, 
equity will lay hold of those circumstances, and compel her 
property to respond to the engagement. Where these 
grounds of liability do not exist, there is no principle on 
which her estate can be made answerable. If we hold that 
the signing of a note as surety brings a charge upon her 
estate, we must go further, and hold, also, that her guaranty, 
her indorsement, her accommodation acceptance, her bail- 
bond, indeed, every conceivable instrument which she may 
be persuaded to sign, for her husband or others, although 
absolutely void at law, are so far binding in equity as to 
charge her property with its payment. This would be a 
doctrine sustained by no analogies, and opposed to the 
soundest policy. It would go far to withdraw those checks 
which are intended to preserve a wife from marital 
influences, which may be, and often are, unduly exerted, 
and yet baffle all detection. The doctrine that equity 
regards her as a feine sole^ in respect to her separate estate, 
only admits that she may dispose of such estate with 
or without consent of her husband, and without the solemn- 
ities which the law in other cases requires. But her mere 
promise to pay money, as we have seen, is not of itself 
such a disposition. Courts of equity, proceeding in rem^ 
will take hold of her estate, and appropriate it to the 
payment of her debts ; but when her obligation is one of 
suretyship merely, she owes no debt at law or in equity. If 
not at law, which is very clear, then quite as clearly not in 
equity." 

When this case again came before the court, a majority 



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April, 1884.] Cartan v. David. 323 



opinion of the Court— Hawley, C. J. 



of the justices concurred in the opinion that the intention to 
charge the separate estate must be stated in the contract 
itself, or the consideration must be one going to the direct 
benefit of the estate. ( Yale v. Dederer^ 22 N. Y. 461.) 

The case for the third time came before the court, when 
the same views were maintained, but Church, C. J., in 
delivering the opinion of the court, said : " It is impossible 
to distinguish the case in its legal aspects from what it was 
when last before this court, and the decision then made 
must stand as the law of the case. It is res adjiidicata 
between these parties. In the case of Manhattan B. ^ M, 
Co. V. Thompson^ 58 N. Y. 80, in delivering the opinion of 
the court, I intimated a regret that the rule had not been 
established difterently, so that, since married women are 
allowed by statute to take, hold, manage and dispose of 
property as fully and completely as if they were unmarried, 
the signing of a note or obligation should be deemed suffi- 
cient evidence of an intention to charge their separate 
estates : and further reflection and examination have con- 
firmed the impression then expressed ; but I then thought 
that the rule had been too long established as the law of the 
state to justify this court in overruling it, and I am still of 
that opinion." ( Yale v. Dederer, 68 N. Y. 335.) 

And here we meet with another singular feature to be 
found in the adjudicated cases. As in New York, the deci- 
sions modifying the English rule are upheld in the latter 
cases upon tlie ground of stare decisis, and with regrets that 
[ the rule had been so modified; so, in Virginia, Missouri, 

and Alabama, where the courts for several years adhered to 
the English rule, claiming it to be founded on reason and 
; authority, the later decisions are based upon the doctrine of 

j stare decisis, and the justices express regrets that the i-ule 

! had not been otherwise established. {Burnett v. Hawpe, 

\ 25 Grat. 493; Metropolitan Bank v. Taylor, 62 Mo. 340; 

Nunn V. Givhan, 45 Ala. 375.) 

In Ohio the couii;s refused to be bound by the doctrine of 
stare decisis. In Levi v. Uarl, 30 Ohio St. 147, the justices 
of the supreme court unanimously came to the conclusion, 



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324 Cartan v. David. [Sup. Ct. 



Opinion of the Court— Hawley, C. J. 



after an able and exhaustive review of the subject, that the 
indorsement by a married woman of a promissory note, 
solely foi' the accommodation of her husband, and as surety 
thereon, in order to enable him to dispose of the same, is 
not, of itself, sufficient to warrant a court of equity in pre- 
suming that she intended to charge her separate real estate 
with the payment of the same. In Williams v. Umiston, 
35 Ohio St, 301, the case of Levi v. JSarl was overruled upon 
the ground that the conclusion reached therein was not only 
against the weight of authority, but was founded on a mis- 
conception of the principles upon which some of the cases 
reviewed in the opinion proceed, and the court declared the 
law to be that a married woman, having a separate estate, 
may charge the same in equity, by the execution of a 
promissory note as surety for her husband, or another, and 
when she does so execute a note, the presumption arises 
that she thereby intends to charge her separate estate with 
its payment, and this opinion met with the unanimous con- 
currence of all the justices. 

Tlie authorities we have referred to and quoted from, 
sufficiently indicate the reasons which have been given for 
the respective decisions. In the light of the adjudicated 
cases we can readily see that the "attempt to point out 
doctrines held in particular states becomes wearisome and 
unsatisfactory," and that an ettbrt to do so would, perhaps, 
justify the remark made by Mr. Bishop, that "it is impossi- 
ble for the author to know whether any doctrine he may 
set down in the text will be held by any court hereafter." 
(1 Bishop Mar. Wom. sec. 869.) 

The separate estates of femes covert, in most of the states, 
are not mere creatures of equity, but are legal estates; 
hence it has been held that their rights over their separate 
property must be controlled solely by the statute. But the 
respective courts are not harmonious with reference to the 
construction to be given to the provisions of the statute. 
There is, substiintially, the same diversity of opinion in 
regard thereto as is to be found in the general discussion in 
relation to the rules of equity. The question at issue has 



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April, 1884.] Cartan v, David. 325 



opinion of tlie Court — Hawley, C. J. 



never been adjudicated in this state. We are therefore at 
liberty, and it is our duty, to decide it in accordance with 
our own sense of justice, and our own ideas as to the proper 
construction of the statute of this state, unfettered by the 
doctrine of stare decisis, and independent of the views enun- 
ciated by the courts of other states. "In the midst of such 
a conflict of opinions, it is clear that we are left to the de- 
termination of it upon what may appear to be sound prin- 
ciples of equity.'' {Leaycraft v. Hedden, 4 N. J. Eq. 550 ; 
Perkins v. Ullioit, 23 N. J. Eq. 531.) 

Our statute provides that ''the wife may, without the 
consent of her husband, convey, charge, incumber, or 
otherwise, in any manner, dispose of her separate prop- 
erty." (1 Comp. Laws, 159.) ''Either husband or wife 
may enter into any contract, engagement, or transaction 
with the other, or with any other person, respecting proj)- 
erty, which either might enter into if unmarried." (Id. 
169.) 

As there are so many distinctions made with reference to 
the general rules, our decision will be based upon the par- 
ticular facts of this case. It must, therefore, be remem- 
bered that we are not called upon to decide whether Mrs. 
Roberts' separate estate would have been bound for the 
payment of the nine hundred dollar note by the mere fact 
of her signing the same as surety for her husband. In 
determining the effect of her contract, the entire trans- 
action must be considered. Respondents declined to make 
any settlement with Oliver Roberts unless they were 
secured. They ottered favorable terms if proper security 
was given. The court found, and the evidence justifies the 
finding, that respondents entered into and completed the 
entire transaction upon the faith and credit of the exe- 
cution of the nine hundred dollar note by Mrs. Roberts, and 
upon the faith and credit of her separate property pledged 
for the payment of said note. The court also found that 
the sale of the goods was made to Mrs. Roberts, and that 
she joined in the execution of the nine hundred dollar note 
for the purchase price thereof, and gave the security of her 

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326 Cartan 0. David. [Sup. a. 

Opinion of the Court — Hawley, C. J. 

sepamte estate for the payment of said note. If the sale 
was really made to her and for her benefit, then her author- 
ity to bind herself is unquestionable. "The rule, of neces- 
sity, must be universal that in all cases where the act of 
the feme ensues directly to her own benefit, and she expressly 
or by implication, binds her estate, a court of equity will 
enforce such obligation." (Perkins v. Elliott^ 23 N. J. Eq. 
535.) 

This principle is explicitly recognized in many of the 
authorities cited by appellant, and if this finding is to con- 
trol, as claimed by respondents, it is conclusive in favor of 
their right to recover. There are, however, some grounds 
for contention, if the evidence is subject to review, as to 
whether the sale of the stock of liquors and saloon fixtures 
was made to Mrs. Roberts, or for her benefit. With the 
views we entertain of this case, it will be considered, for 
the sake of the arscument. that the insertion of the name of 
Mrs. Roberts in the bill of sale was an afterthouglit, or that 
her name was used for the purpose of shielding the property 
from her husband's debts, and that the sale was, in reality, 
made to the husband, and that the contract of the parties 
was for his sole benefit. The fact still remains, as the evi- 
dence shows, that it was the intention of Mrs. Robeits, 
without any fraud or improper inducement upon the part of 
her husband or of the respondents, that her separate prop- 
erty should be bound for the payment of the nine hundred dol- 
lar note. She was represented by counsel, and all the facts 
were stated and discussed in her presence. She understood 
the nature of the business, and was careful enough to secure 
and protect the rights of her children to one-half of tiie five 
thousand dollar note. Her act in freely and voluntarilj' 
indorsing this note and delivering it, with the mort- 
gage, to the respondents, with a full knowledge of all the 
facts, is conclusive evidence of her intention to make ihe 
contract binding upon her separate estate. The contract 
does not rest entirely upon parol evidence. The intent to 
make the debt a charge upon her separate estate is made 
manifest by the acts and conduct of the parties, by the 



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April, 1884.] Cartan v. David. 327 



Opinion of the Court— Hawlej', C. J. 



exhibits, by the written indorsement, and by the delivery 
of the five thousand dollar note and mortgage. We are, 
therefore, of opinion that the contract is entitled to as 
much force and effect as if Mrs. Roberts had, in writing, 
expressly stated in direct terms that she indorsed the note 
for the purpose of binding her separate estate, in considera- 
tion of the satisfaction of the judgment against her husband, 
and of the sale of the saloon fixtures to him, as collateral 
security for the payment of the nine hundred dollar note. 
This conclusion brings the case within the rules announced 
in several of the authorities cited by appellant, and by all 
the authorities cited by respondents, as authorizing recov- 
ery against the wife's separate estate. 

In Yale v. Dederer, 18 N. Y. 281, the court said : ''Thus 
it appears that there are two modes in which the separate 
estate of a married woman may be charged with the pay- 
ment of her pecuniary engagement, — the one^ where she 
has, in terms and by an appropriate instrument, made such 
charge ; and the other, where, though she has not, in 
making the contract, referred to her separate " estate, or 
expressed her intention to satisfy it out of such estate ; yet 
the circumstances of the case are such as to leave no reason- 
able doubt that such was her intention." 

In discussing the evidence touching the intention of the 
wife in assigning her separate estate to secure the payments 
of demands against her husband, Folger, C. J., in deliver- 
ing the opinion of the court in Merchants' Bank v. Hall^ 
said : "It may be that the defendant had not precise 
knowledge of the facts as they then existed; yet it is to be 
inferred that she had a general understanding of the state 
of attairs, and that she executed the assignment in view of 
them. * * * And it is to be presumed that the assign- 
ment was obtained from her fairly, and in view of the con- 
dition of affairs then existing. She is bound, therefore, 
by such a construction of her agreement as arises fairly 
from the circumstances in which it was used by her 
authority." (83 iS. Y. 347.) 

Deady, J., in delivering the opinion in Orange National 

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1 



328 Cartan v. David. [Sup. Ct. 

• Opinion of the (^ourt — Hawley, C. J. 

Bank V. Trave7\ said : " There is no set form of words nec- 
essary to manifest the wife's intention to create the charge 
upon her estate. It is sufficient if it fairly appears from the 
language used, under the circumstances, that such was her 
intention. She gave this obligation to pay her husband's 
debt, with the express understanding that it was accepted 
by the creditor upon the credit of her separate estate, and 
the only inference from this fact compatible with her honesty 
is that she so intended it. This undertaking may have been 
an unwise one on her part. But where the law gives the 
wife power to contract as a ferae soUy it will hold her to a 
like obligation to perform, regardless of the consequences to 
herself or her estate." (7 Sawy. 216.) 

If Mrs. Roberts had been the owner of the real estate 
upon which her mortgage was given, she could certainly 
have executed a mortgage upon it for the purpose of secur- 
ing the payment of her husband's debt. ( Wolff v. Van 
Metre, 23 Iowa 397 ; Brookings v. While, 49 Me. 483 ; 
Moore v. Fuller, 6 Or. 273 ; Alexander v. Bouton, 55 
Cal. 15.) 

Does not her contract, in indorsing the note secured by 
mortgage, stand upon the siirae plane ? Is not her intention 
to bind her separate estate made manifest, in either case, 
by the contract itself? Is not the contract an express 
charge upon her separate estate for the payment of her 
husband's debt? Does not the contract come within the 
meaning of the statute authorizing a married woman to enter 
into "any contract, engagement, or transaction * * * 
respecting property ?" These words, in our opinion, are — 
as has been held by the supreme court of Cahfornia — '* suf- 
ficiently comprehensive to include a promissory note or 
mortgage." {Marlow v. Barlew, 53 Cal. 459.) 

It has ever been the rule of courts of equity to guard 
with jealous care the rights of the wife, in cohtracts of this 
character, in order to protect her from undue and improper 
influences on the part of her husband, or othere with whom 
she deals. This rule should always be strictly adhered to, 
but beyond this courts are not, and should not, be required 



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April, 1884.] Cartan v. David. 329 



Opinion of the Court — Hawley, C. J. 



to go. The question of the right and power of the wife to 
dispose of her separate estate in any manner she pleases, is, 
and should be, left solelj' with her as a free agent. She 
has, under the provisions of the statute, the absolute and 
unlimited control over it. She can keep it, where the law 
places it, secure from her husband's debts ; or she can, of 
her own free will, release it from the protection given by 
the law and use it for the purpose of paying her husband's 
debts. She may, if she so pleases, give it to him to be 
squandered away in any business or speculation in which he 
may engage ; and if she does so, without any fraud or 
undue influence, courts of equity will not relieve her from 
the obligations of her contracts. 

Married women should remember that their legal position 
is dilferent from what it was many years ago. Their prop- 
erty rights are no longer merged in the husband. With 
advaiicing civilization the wisdom of legislative bodies has 
been gradually bestowing upon them greater privileges, 
and has virtually emancipated them from the slavery of the 
law as it existed ages ago. Our statute endows married 
women with all the faculties and rights of a human being. 
They should, therefore, keep constantly in mind that with 
every enlargement of their rights there will necessarily 
come an increase of their responsibilities. Having asked, 
and been granted, the right to control their separate prop- 
erty, they must assume the risks which ordinarily follow. 
Having been given the right to make contracts respecting 
their separate estates, they should not complain if they are 
held liable to the same extent as other citizens. 

We are of ojnnion that the question in relation to the ' 
statute of frauds has no application to the facts of this case. 
It was not essential to the validity of the contract to have 
the consideration for the indorsement expressed upon the 
note, or other instrument, in writing. There was a good 
and valuable consideration for the nine hundred dollar note. 
The indorsement of the five thousand dollar note by Mrs. 
Roberts, and her delivery of it, together with the mortgage, 
to respondents as collateral security for the payment of the 

Vol. XVin-42 r^^^^T^ 

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830 Cartan v. David. [Sap. Ct. 

Opinion of the Court — Hawley, C. J. 

nine hundred dollar note occurred, as we have before stated, 
at the same time. It was one entire transaction. The con- 
sideration for the contract of Oliver Roberts to pay the nine 
hundred dollar note must, therefore, be regarded as a con- 
sideration for the collateral security given by Mrs. Roberts, 
and no new or additional promise was necessaiy. The 
transaction must be treated as an original undertaking on 
the part of Mrs. Roberts, and cannot be considered as a mere 
simple parol promise to pay the debt of another. 

'' To support a mortgage made for the accommodation of 
another, there must be a consideration. If the debt of the 
other person which is thus secured by the mortgage be 
already incurred, there must be a new and distinct consid- 
eration for the obligation incurred by the mortgageor as 
surety or grantor of that debt. But if the debt secured be 
incurred at the same time that the mortgage is given, and 
this collateral undertaking enters into the inducement to the 
creditor for giving the credit, then the consideration for 
such contract is regarded as considemtion also for the collat- 
eral undertaldng by way of mortgage.** (1 Jones, Mortg. 
sec. 615.) 

It is well settled that no new consideration is necessary 
to support a guaranty of a note given at the time of its ex- 
ecution, and so made a part of the original transaction, as 
the credit given to the principal debtor forms the consider- 
ation for the guaranty. This doctrine is equally applicable 
to contracts of suretyship. (Baylies, Sur. 54.) 

Moreover, the contract in this case was fully executed on 
both sides. The rights of the parties became fixed, and 
neither party can interfere with them by pleading the stat- 
ute of frauds. (See authorities cited by respondents.) 

The other objections urged by appellant are untenable. 

The indorsement on the back of the five thousand dollar 
note was suflScient to pass the title of the note and mort- 
gage. Mrs. Roberts did not own the real estate, hence the 
indorsement of the note and assignment of the mortgage 
was not a contract respecting her real estate, and was not 
such a contract as the statute requires to be acknowledged 



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April, 1884.] Ex PARTE Bergman. 331 

Points decided. 



separate and apart from her husband. The note and mort- 
gage were mere chattels, and passed by the indorsement on 
the note and by the delivery of the note and mortgage by 
Mrs. Eoberts to respondents. No question in relation to the 
rights of Jacob Muller in the note and mortgage assigned 
by Mrs. Roberts to respondents can be considered. He has 
not appealed, and he is therefore bound by the judgment. 

It follows, from the reasons we have stated, and the con- 
clusions reached, that the court did not err in refusing 
defendant's motion for a nonsuit, or in rendering judgment 
in favor of' respondents. 

The judgment of the district court is affirmed. 



[No. 1196.] 

Ex Parte WILLIAM BERGMAN. 

Habeas Corpus — Arrest and Bail — Fraudulent Disposition of Property- 
Second Action — Jurisdiction. — Petitioner was sued for malpractice. The 
plaintiff obtained judgment, lie subsequently commenced a second 
action setting forth the former judgment and, as grounds for a judgment 
against the person of petitioner, alleged that j^titioner had, prior to the 
former judgment, without his knowledge, fraudulently disposed of and 
removed his proj^erty without this state with intent to defraud his credi- 
tors : Held, that under subdivision five, of the act relating to arrest and 
bail, the district court had jurisdiction to arrest and detain petitioner in 
the second action. 

Idem — Merger of Fraud in Judgment— When Waived. — When the principle 
of merger applies the party relying upon it nuLst plead it in tbe second 
action, or he will be deemed to have waived the right of this defense. 

Idem— Fraud — When Carried Out.— Petitioner sold his real estate, within 
this state, and deposited the money realized therefrom in a bank in the 
state of California, prior to the rendition of the fii"st judgment. Subse- 
quently, when temporarily absent from this state, he transferred this 
money to Europe : Jleldj that tlie fraud of petitioner was not merged in 
the first judgment, becimse the fraudulent purjiose was not fully carried 
out until atler tlie rendition of such judgment. 

Idem — Fraud Co.mmitted When Absent From the State— When Consid- 
ered AS Committed Within This State. — As petitioner was a resident of 
this state, the act of the removal of the money from California to Europe 
was, in contemplation of Uiw, a fraud committed by him in this state, and 
the plaintiff is not prevented from enforcing the i)ayment of his judgment, 
by the means authorized by statute, because some of the alleged fraud- 
ulent acts were committed by petitioner during his temporary absence 
from the state. 



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332 Ex PARTE Bergman. [Sup. Ot. 

Opinion by Hawley, C. J. 



Idem— Voluntary Surrender— Notice by Plaintiff— Release— Subsequent 
Arrest Under Execution— Statute Construed. — Petitioner voluntarily 
surrendered himself into custody before any process had been issued 
against him, and thereafter, while he was so in custody, the plaintiff 
notified the sheriff" that he did not demand the arrest and detention, and 
petitioner was allowed to voluntarily depart : Held, in construing the pro- 
visions of the statute (1 Corap. Laws 416, 424). that such surrender, notice 
and release, did not prevent the plaintiff" from causing his subsequent 
arrest and detention under an execution issued on the judgment in the 
second action. 

Constitution Construed— Imprisonment for Debt.— Article I, section 14, of 
the constitution does not prohibit the arrest and detention of a defendant 
for the fraudulent disposition of his property with intent to defraud bis 
creditors, under a judgment in an action for tort. 

Idem — Imprisonment for Fraud— Coercive Means of Enforcing Judgment, 
The imprisonment of petitioner is for the fraud practiced in attempting to 
evade the payment of the judgment, and, while in the nature of a punish- 
ment, is only a coercive means given by the statute, and sanctioned by the 
constitution, to enforce the collection of the judgment. 

Idem — Costs. — The imprisonment is authorized for the costs which arc incurred 
in using the coercive means, as well as for the amount of the principal 
debt or demfind. 

Habeas Corpus— Errors not Reviewable.— Alleged errors and irregularities 
in the proceedings of the court cannot be reviewed upon haJbeaa corpus. 

Hearing upon habeas corpus. 

The facts are stated in the opinion. 

A, C, Ellis and J. F. Alexander, for Petitioner. 

jR. H. Lindsay and Clarke ^ King, for Respondent. 
Bj Hawley, C. J.: 

On the eighteenth day of April, 1883, R. W. Russell 
commenced an action in the district court of Washoe county 
against petitioner, William Bergman, to recover damages 
for malpractice as a physician, and on the thirtieth day of 
July, 1883, recovered a judgment against him for the sum 
of three thousand dollars, with interest and costs. There- 
after the said Russell commenced another action, setting 
forth the judgment by him obtained, and, as matter enti- 
tling him to a judgment against the person of petitioner, 
upon the ground of fraud, alleged, among other things, 
that on the fifteenth day of June, 1883, petitioner, for the 



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April, 1884.] Ex PARTE Bergman. 333 

Opinion by Hawley, C. J. 

purpose and with the intent to defeat any recovery, upon 
execution, of any judgment that Russell might recover in 
the action first commenced, being the owner of and in pos- 
session of real estate of the value of twenty thousand dollars, 
situate in Washoe county, sold said property and converted 
it into cash, realizing therefor the sum of sixteen thousand 
eight hundred dollars, and removed said money out of the 
state of Nevada, and deposited the same in a bank in Sac- 
ramento, in the state of California ; that petitioner was not 
and is not possessed of any other property ; that after the 
entry of judgment in the original action, petitioner applied 
for and obtained a stay of execution to enable him to apply 
for a new trial; that on the sixteenth day of February, 
1884, his motion for a new trial was overruled ; that a stay 
of execution was then granted until March 1, 1884 ; that in 
the month of December, 1883, petitioner surreptitiously, 
and without the knowledge of Russell, left this state and 
went to Sacramento, for the purpose of removing and dis- 
posing of the deposit of sixteen thousand eight hundred 
dolhii^, and did, in pursuance of said scheme and design, 
by draft and bill of exchange, remove and dispose of said 
money by making a pretended gift of the sum of sixteen 
thousand five hundred dollars, and transferring the same, 
without any consideration whatever, to his father, in the 
province of Hanover, in Europe, "with the intent then and 
there, and at all times, to defraud his creditors, and espe- 
cially with the intent then and there, and at all times, to 
defraud this plaintiff out of his said judgment and demand ;" 
that execution had been issued on the judgment obtained 
by Russell, and returned nulla bona by the sherift'; that he, 
Russell, did not know, at the time petitioner removed his 
property from the state of Nevada, that petitioner was re-* 
moving the same, and had no means of knowing thereof, 
and did not learn the same until after the rendition ^of the 
judgment onthe thirtieth of July, 1883. 

The trial of the second suit resulted in a judgment on the 
twenty-second day of May, 1884, in favor of Russell for the 
sum of three thousand three hundred and twenty-four dol- 



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334 Ex PARTE Bergman. [Sup. Ct 

opinion by Hawley, C. J. 



lars and ninety cents and costs, taxed at one hundred and 
sixty dollars and five cents; and, upon the general verdict 
and special findings of the jury, it was "' further considered 
and adjudged that the defendant, William Bergman, has 
removed his property, and all his property, from the state 
of Nevada with intent to defraud his creditors, and with 
intent to, defraud his said creditor R. W. Russell, plaintift* 
herein ; and it is considered and adjudged that said defend- 
ant, William Bergman, is guilty of removing his property, 
and all his property, from the state of Nevada with intent 
to defraud his creditors, and to defraud plaintiff herein his 
creditor ; and plaintiff is hereby adjudged and awarded 
execution against the body of said defendant, William 
Bergman, to be taken in satisfaction of the money judg- 
ment hereinbefore awarded and recovered ; he, said Berg- 
man, to be arrested, detained, and confined in the common 
or county jail of said Washoe county, state of Nevada, in 
satisfaction of this judgment, until such time as he shall pay 
and discharge said money judgment herein, or be other- 
wise lawfully discharged therefrom ; and plaintift* is hereby 
awarded execution pursuant to the tenor and ettect hereof, as 
by law in such case made and provided." 

Contemporaneously with the tiling of the complaint in 
the second suit, an affidavit was filed on behalf of plaintiff", 
setting forth the same facts as alleged in the complaint ; 
and thereupon an order was made by the district judge, 
requiring the sheritt' of Washoe county to arrest petitioner, 
and that he be held to bail in the sum of four thousand 
dollars. On the twenty-fourth day of March, 1884, 
petitioner gave the required undertaking in the form pre- 
scribed by law, and was released from custody. On the 
tenth day of June, 1884, more than ten days after the ren- 
dition of the judgment, petitioner surrendered his body to 
the custody of the sherift' of Washoe county, for the pur- 
pose, as stated by him, of exonerating his sureties. Three 
days after this surrender, and while petitioner was still in 
custody, the attorneys for Russell gave to the sherifl* a 
written notice, as follows : '4n conformity with verbal 



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April, 1884.] Ex parte Bergman. 885 

Opinion by Hawley, C. J. 



notifications heretofore given, we now notify you in writing 
that the plaintiff * * * does not now, nor has he at 
any time subsequent to the third inst., any claim or demand 
that the defendant's person be taken by you in satisfaction 
of the judgment rendered in said action. If at any time 
since that time you have been detaining him, it is at your 
own risk, and on your own responsibility. So far as you or 
your bondsmen are concerned, the plaintiff exonerates you 
wholly from any liability in the premises, and looks to the 
sureties on the bail-bond to pay said judgment.'* 

Petitioner thereupon notified the sheriff' that he had sur- 
rendered himself in exoneration of his sureties, and that 
he held himself in readiness to obey the orders of the 
sheriff' in obedience to the requirements of the judgment, 
and thereupon he was allowed to go at large. Thereafter, 
to-wit, on the twentieth of June, a writ of execution was 
issued in siiid second suit, which, after reciting the money 
judgment, and the judgment convicting petitioner of fraud, 
commanded the sherift* to take the body of petitioner into 
his custody, and to keep, detain, and imprison him in the 
common or county jail of Washoe county until the said 
"moneyed judgment, together with costs and interest, and 
accruing costs, be wholly paid and satisfied, or he be other- 
wise legally discharged.'* 

Upon these facts, did the district court exceed its juris- 
diction in causing the arrest and detention of petitioner? 
Is the process issued in this case authorized by any judg- 
ment, order, or decree of any court, or is it sanctioned by 
any provision of law? The proceedings were instituted 
under the fifth subdivision of section 73 of the act relating 
to arrest and bail in civil actions, which provides that 
the defendant in the a<;tion may be arrested when he 
" has removed or disposed of his property, or is about 
to do so, with intent to defraud his creditors." (1 Comp. 
Laws, 1135.) This statute gives authority for the proceed- 
ings in Russell v. Bergman, unless the jilaintift' lost his right 
by failing to proceed in the first action, or from some other 
cause. If the plaintiff had knowledge of the alleged fraud- 



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386 Ex PARTE Bergman. [Sup. Ct. 



Opinion by Hawley, C. J. 



uleiit acts of petitioner during the pendency of the first 
action, prior to the rendition of judgment therein, it may be 
that he might have alleged the same, and that he should 
have caused the arrest in that suit; but, inasmuch as the 
plaintiff had no knowledge of the fraud until after the judg- 
ment in that action was rendered, I am of opinion that he 
had the right to take the steps authorized by statute after 
he obtained knowledge of the fraud. 

The fact tluit the fraudulent acts were committed prior to 
the rendition of the judgment in therfirst suit, did not divest 
the court of its authority to cause the arrest of the petitioner 
in the second action. The fraud of petitioner was not 
merged in the judgment in the first suit. Where the fraud 
is committed in the making of the contract, or in immedi- 
ate connection therewith, it would undoubtedly be merged 
in the judgment on the contract; but it is questionable 
whether the principle of merger has any application what- 
ever to a case like the one under consideration, where the 
fraud alleged is independent of the cause of action insti- 
tuted by the plaintiff. If it does apply, then it was the 
duty of petitioner to have plead the merger in the second 
suit. Not having done so, he has waived the right of this 
defense. 

In Cable v. Cooper the court said: **The defendant in the 
ori.fifinal action was bound to plead his discharge, if he 
wished to avail himself of his exemption from imprison- 
ment for the same cause, secured to him by the statute. 
If he* had been convicted of perjury in procuring his 
discharge, he was, notwithstanding his discharge, liable 
to be again imprisoned, either on the old judgment, 
or under a new judgment recovered upon the old one, in an 
action of debt ; and if the discharge had been pleaded, the 
plaintiff might have replied to it such conviction, which 
would have been conclusive to bar him of his exemption. 
The privilege from imprisonment, to which Brown was 
entitled under the statute, certainly might be waived, and 
the omission to plead the discharge in the proper time was 
a waiver." (15 Johns. 154.) 



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April, 1884.] Ex PARTE Bergman. 337 



Opinion by Hawley, C. J. 



In this case, however, it aflStmatively appears that the 
fraudulent purpose of petitioner was not fully carried out 
until after the entry of judgment in the first suit. The 
renoLOval of the money from Sacramento, California, to Han- 
over, in Germany, if the act was done, as alleged, in fur- 
therance of the fraudulent design to hilider, delay, and 
defraud the plaintiff, authorized the arrest of petitioner in 
the second suit. But it is argued that this act was com- 
mitted out of this stivte, and hence, it is claimed that the 
district court had no jurisdiction to imprison petitioner for 
a fraud committed in another state. This position is not 
well taken. The act was committed by jietitioner, who was 
at the time a resident of this state. In contemplation of 
law it was a fraud committed by him in this state. It 
stands upon the same footing as if petitioner, when he de- 
posited the money in Sacramento, had taken a certificate 
of deposit from the bank, and then came into this state and 
here fraudulently transferred the certificate to his father. 
It was a fraudulent act that followed the person. Plaintiff 
• had the right to pursue any course authorized by statute to 
enforce the payment of his judgment which was obtained 
In this state, and he is not prevented from so doing because 
some of the acts of petitioner were committed during his 
temporary absence from this state. The right of plaintiff* 
to arrest the petitioner is a portion of the remed^f which 
the law of this state has provided for the enforcement of 
plaiutiff 's demand. 

In Claflin v. Frenkel the plaintiffs were merchants in the 
city of New York, and they sold and delivered goods to 
the defendants in Mobile, Alabama. The defendants were 
arrested in the suit instituted in the state of New York, and 
they claimed that the fraud, if any, was committed in the state 
of Alabama, and that they could not be held for the fraud 
committed in another state. The supreme court, in passing 
upon this question, said: ''Plaintiff's' affidavit was care- 
lessly drawn, but still it is to be inferred from it, as the 
plaintiff's were engaged in carrying on their business at 
the city of New York, that the sales were made at that 
Vol. XVm-43 • 

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338 Ex PARTE Bergman. [Sup. Ct. 

Opinion by Hawley, C. J. 



place, and that the defendant's liability was incurred, for the 
payment of the price of the goods, under and in conformity 
with the laws of this state ; and for that reason, when he was 
found here, there would seem to be no impropriety in sub- 
jecting him to all the legal remedies, which the law secured 
to the plaintiffs for the purpose of enabling them to obtain 
payment of their debt. The order of arrest was made for 
the reason that the defendants, after contracting this debt, 
had disposed of their property with intent to defraud their 
creditors. This was done in the city of Mobile, in the state 
of Alabama, where the defendants carried on their busi- 
ness. And that they did so dispose of their property is a 
fact left free from dispute in the case. Because this dispo- 
sition was made by them of their property in another state, 
it has been urged that it formed no ground of arrest in an 
action prosecuted in this state, and that their arrest was 
unauthorized, if the defendants did not subject themselves 
to that remedy, by the fact of the goods being purchased and 
delivered to them in this state. But, as the Code has pro- 
vided the remedy of arrest, it has not made it dependent upon 
any such distinction. It has, on the other hand, declared in 
general terms, that the defendant may be arrested in an 
action upon contract, express or implied, * * * where, 
since the making of the contract, he has removed or dis- 
posed gf his property with intent to defraud his creditors. 
This remedy has been provided for in terms so broad as to 
be subject to no exceptions. In language, certainly, it in- 
cludes all actions on contract against a defendant who 
has removed or disposed of his property, intending thereby 
to defraud his creditors. The code itself has not declared 
this to be a violation of the obligation of the debtor 
to his creditors, but it arises out of the general princi- 
ples of law adopted to secure the substantial morality and 
good faith of persons engaged in trade. At the common law, 
and wherever its principles may be observed, the debtor is 
restrained from making any disposition of his property, in- 
tending thereby to defraud his creditors. This obligation 
is recognized, and in some form enforced, wherever the 



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April, 1884.] Ex PARTE Bergman. 339 

Opinion by Hawley, C. J. 



common law prevails; and, as that law is presumed to 
exist in the state of Alabama, it was obligatory upon these 
debtors, carrying on their business there. In eftect, they 
were prohibited, by its wholesome restraint, from making 
any disposition of their property with the intention thereby 
of preventing their creditors from collecting their debts. 
By making such a disposition, these defendants violated 
this restraint of the law, and the obHgation resting upon 
them in favor of the plaintifts as their creditors. And for 
that violation they Ifecame subject to arrest, under this pro- 
vision of the Code,. whenever either of them placed him- 
self within the reach of the process of this court." (29 
Hun 289.) 

It is contended that the notice given to the sherift' by 
plaintiff's counsel was an order, or, at least, consent, for 
petitioner's discharge from custody, and that, petitioner 
having been discharged by this act of plaintiff, he is not 
now subject to arrest under the writ of execution. 

Section one of the act for the relief of persons impris- 
oned on civil process provides that " every person confined 
in jail on an execution issued on a judgment rendered in a 
civil ac^tion, shall be discharged therefrom upon the condi- 
tions hereinafter specified." (1 Conip. Laws, 416.) Section 
nine provides that "the plaintiff' in the action may, at any 
time, order the prisoner to be discharged, and he shall not 
thereafter be liable to imprisonment for the same cause of 
action." (Id. 424.) 

The discharge mentioned in section 9 has reference to the 
cases mentioned in section 1, where the prisoner is held 
under and by virtue of a writ of execution against the per- 
son. In such cases the discharge of the prisoner, by the 
plaintiff' in the action, would, under the provisions of the 
statute, be a bar to his subsequent arrest upon the same 
cause. (Freem. Ex'ns, sec. 464 ; Herm. Ex'ns, sec. 573.) 
But in this case no execution had been issued. The peti- 
tioner had voluntarily surrendered himself into custody 
before any process was issued for his arrest. He claims 
that he bad the right so to do under the provisions of section 



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340 Ex PARTE Bergman. [Sap. Ct. 



Opinion by Hawley, C. J. 



82 of the statute relating to arrest and bail. This section 
provides as follows: ''At any time before judgment, or 
within ten days thereafter, the bail may surrender the 
defendant in their exoneration; or he may surrender him- 
self to the sheriff of the county where he is arrested.'* 
(1 Comp. Laws, 1143.) 

This statute is by no means clear. At first blush, it 
would seem that the voluntary surrender therein referred 
to, in order to exonerate the bail, must be within ten days 
after judgment. It ife, perhaps, unnecfissary to decide this 
question in this proceeding, but it is proper to ssiy that the 
supreme court of California, from which state our statute 
was adopted, have held that some final process should issue 
against the judgment debtor before the bail could be 
charged. 

In Maioon v. Eder^ an action upon a bail-bond, Murray, 
C. J., after stating that the statute defied judicial exposi- 
tion, and referring to other provisions, said: '*It is dif- 
ficult to reconcile the provisions of these sections upon any 
other hypothesis than that the legislature have omitted, 
through inadvertence, to provide for final process in these 
cases ; and it is a singular anomaly that bail should be 
charged who have undertaken that the defendant will 
render himself amenable to the process of the court, when 
the fact is admitted that no process has issued, and that the 
debtor has at all times been within its reach." (6 Gal. 60.) 

In Allen v. Breslaner, the defendant, after the expiration 
of ten days from the entry of judgment, surrendered him- 
self to the sheriff in discharge of his sureties. But the 
sheriff', acting under the plaintiff' *s instructions, refused to 
take him into custody. In the snit against the sureties the 
court said: "The question presented is whether, under 
this state of facts, defendants are liable. We think not. 
The legislature, when providing for the surrender of de- 
fendant within ten days after judgment, evidently contem- 
plated that the plaintiff should take such measures as would 
authorize the officer to hold defendant in custody. ' The 
law requires no man to do a vain thing' is a familiar 



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April, 1884.] Ex PARTE Bergman. 341 

Opinion by Hawley, C. J. 

maxim, and certainly it would be in vain to require a party 
to surrender to an officer having no power to detain him. 
The construction contended for by plaintift' would enable a 
defendant to release his sureties by a surrender before 
execution, and then at once be released on habeas corpus, 
on the ground that he was illegally in custody. Such a 
result was never intended by the legislature, and we are of 
opinion that a surrender within ten days after execution is a 
sufficient comi)liance with the will of the legislature." 
(8 Cal. 554.) 

In the light of these authorities it was a vain thing for 
petitioner to surrender himself before any process had been 
issued against him. The plaintift' did not cause his arrest, 
and the notice, although it may have been given with the 
idea that the sureties on the bail-bond could be held because 
no surrender had been made within ten days after judg- 
ment, simply informed the sheriff' that the plaintift' had 
taken no steps for petitioner's arrest, had issued no process 
against his person, and was not responsible for his detention. 

The sherift' had no process authorizing him to hold peti- 
tioner. Petitioner was voluntarily in custody, and had the 
right to go hence, or to remain in custody, if he so desired, 
in order to test the true construction of the statute. He 
chose to take his liberty, and, while insisting that he should 
be detained, went his way. His voluntary departure did 
not have the eft'ect of preventing his arrest under the writ 
of execution at the instance of the plaintift'. 

It is next claimed that the fifth subdivision of section 73 
(1 Comp. Laws, 1135) is in conflict with section 14, art. I, 
of the constitution of this state, which declares that "there 
shall be no imprisonment for debt except in cases of fraud.'* 
It is argued that, under this provision, in order to authorize 
the imprisonment of the debtor, the debt must be one aris- 
ing ex contractu^ and that no arrest is authorized in actions 
of tort. This position is wholly untenable. It is the im- 
munity from imprisonmentfor debt that is confined to debts 
arising 6a: contractu. This is the prohibition inteiwled by 
the constitution. {McCool v. State, 23 Ind. 131 ; People ex 



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342 Ex PARTE Bergman. [Sup. Ct. 

Opinion by Hawley, C. J. 



ret. Brennan v. Cotton, 14 111. 415 ; McKindley v. Rising^ 28 
III. 337 ; Moore v. Green, 73 N. C. 397 ; Long v. McLean, 
88 N. C. 4; C/. 8. v. Walsh, 1 Abb. (U. S.) 72.) 

Ill McCool V. State the court said : "The second clause 
of the section prohibiting imprisonment for debt except in 
case of fraud, connected as it is with the first clause by the 
copulative conjunction, would seem to relate to the same 
subject or class of liabilities, and if so, the immunity con- 
templated by the second clause would be confined to debts 
or liabilities growing out of contracts, and not to liabilities 
resulting from crimes or torts." 

In People ex rel Brennan v. Cotton, Treat., C. J., in deliver- 
ing the opinion of the court, said that the prohibition of the 
constitution ''applies only to actions upon contracts express or 
imi)lied. It does not extend to actions for torts. The design 
is to relieve debtors from imprisonment who are unable to 
perform their engagements. They are exempt from arrest 
if they act in good faith to their creditors." 

The petitioner in this case is not entitled to the immunity 
given by the provisions of the constitution. ''In cases of 
torts, and where debts were fraudently contracted, or where 
there is an attempt at a fraudulent disposition of property 
with intent to delay the creditor, or to deprive him of 
payment, the body of the debtor is allowed to be seized 
and confined." (Cooley, Const. Lim. 341; 4th Ed. 422.) 

Finally, it is urged that petitioner cannot be imprisoned 
for the costs of the second suit; that so much of the judg- 
ment as awards his imi)risonment for these costs is authoriz- 
ing imprisonment for a debt pure and simple, and is there- 
fore unconstitutional. No authority has been cited which 
sustains this view. 

Merrill v. Townseml, 5'Pcdge Ch. 80; Ex parte Beattg, 
12 Wend. 229 ; and Prince v. Camman, 3 Edw. Ch. 413, 
cited by petitioner", have no application to the facts of this 
case. The decisions are to the ettect that a complainant in 
chancery, in a suit founded on a contract, where his bill is 
dismissed and a judgment for costs rendered against him, 
cannot be imprisoned for the costs. But under the amended 



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April, 1884.J Ex PARTE Bergman. 343 



opinion by Hawley, C. J. 



provisions of the code in that state, it has been held that 
the complainant in a certain class of actions, when his suit 
has been dismissed, may be arrested and imprisoned for the 
costs. 

In Parker v. Spear, 62 How. Pr. 894, the court, in con- 
demning the law which authorized it, was compelled to 
declare that under the provisions of the code, in an action 
in which the defendant could have been arrested and where 
the plaintiff* was unsuccessful, "the attorney for the defend- 
ant has the right to imprison the plaintiff to collect his 
costs.*' 

Bull V. Melliss, 13 Abb. Pr. 243, cited by petitioner, is 
also inapplicable. There "the credit was given by the 
plaintiffs and the goods sold, as appears by the complaint, 
at various times between October 1, 1860, and April 1, 
1861. The representations which are charged to be fraudu- 
lent, were made in January, 1861, and afterwards,*' and 
the court very properly held that upon these allegations it 
could not be said "that the whole of the debt for which 
the plaintiffs have recovered judgment was fraudulently 
contracted, and it would not be sufficient to justify a ca, sa. 
upon this judgment that part of it was so.*' 

In Thompson v. State, 16 Ind. 616, the court held that a 
party could not be imprisoned for the costs in a crinMual 
action. This case was cited as authority in State ex ret, Qtiinn 
V. District Court, 16 Nev. 77, where that question was not 
directly involved; but this rule is strenuously disputed. 
Tkompson v. State was overruled in McCool v. State, supra, 
where the imprisonment of defendant for the fine and costs 
was sustained. 

But, whatever the rule may be in the class of cases above 
referred to, it seems clear to my mind that, in an action like 
Russell V. Bergman, the costs are but an incident to the 
debt, and are necessarily incurred in order to procure the 
enforcement of the judgment. The imprisonment of peti- 
tioner is for the fraud practiced in attempting to evade the 
payment of any judgment that Russell might obtain against 
him, and this imprisonment, while in the nature of a pun- 



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344 Ex PARTE Bergman. [Sup. Ct. 

Opinion by Hawley, C. J. 



ishment, is a coercive means given bj' the statute and sanc- 
tioned bj' the constitution to enforce the collection of the 
judgment, and, in all cases of this character, is considered 
"an element of remedial justice." (Hurd Hab. Cor. 20.) 
It must therefore necessarily follow that the imprisonment 
is authorized for the costs which are incurred in using this 
coercive means to enforce the collection of the judgment, 
as well as for the amount of the principal debt or demand. 

Several other minor questions were iargued by petitioner's 
counsel, some of them relating to alleged errors and irregu- 
larities which it is not, by the established rules of the law, 
within my province to review. (Ex parte Winston, 9 Nev. 
75, and authorities there cited ; Peltier v. Pennington, 14 
N. J. Law, 312; Ex parte Parks, 93 U. S. 18.) None of 
them are of such a character as to justify petitioner's dis- 
charge on habeas corpus. 

Petitioner is remanded into the custody of the sheriff of 
Washoe county, to be held and confined in the county jail 
of said county, under the writ of execution in the suit of 
Russell V. Bergman, until he is legally dischars^ed. 



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REPORTS OF CASES 



DETERMINED IK 



THE SUPREME COURT 

OF THE 

STATE OF NEVADA, 
JULY TERM, 1884. 



[No. 1185.] 

THE STATE OF NEVADA, Respondent, v. CHARLEY 
DAN, Appellant. 

Criminal Law — Burglary — Inhabitancy of Bi'ilding — Statutes Con- 
strued. — In construing the statutes of tliis state defining burglarj' (Stat. 
1861, 66 : 1869, 65) : Held, that the language of the statute is broad enough 
to include buildings of any kind, regardless of the fact of inhabitanc}'. 

Idem— Description of Premise^— Owner— Tenant—Variance. — Where the 
premises are described in the indictment, a.s belonging to a certain person, 
tlie further allegation that the premises were occupied by a j)articular ten- 
ant is immaterial, and a failure to j)rovc the latter allegation is not a vari- 
ance, as its only office was to further identify premises already sufficiently 
described. 

Appeal from the District Court of the Second Judicial 
District, Ormsby County. 

The facts sufficiently ajjpear in the opinion. 

Robert 31. Clarke^ for Appellant : 

I. It is not burglary under the statute of Nevada to 
Vol. XVIII— 44 



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346 State v. Dan. [Sup. Ct. 

Argument for Respondent. 



break unci enter an unoccupied house with intent to steal, 
etc. (1 Comp. L. 2365.) A penal statute must be strictly 
construed. The words of the statute must be construed 
together and made consistent, and the spirit of the act must 
prevail. Inhabitancy is essential to' complete the crime 
under the precedent and principal clause, and the subsequent 
and subordinate clauses must be held to require the like 
conditions. (Sedg. Stat, and Const. Law 279, note a ; City 
of St. Louis V. Laughlin, 49 Mo. 559.) At the common 
law, the '' house" must be inhabited. It must be a dwell- 
ing house. (Rus. on Cr. 746-8.) 

n. A breaking having been alleged, it was necessary to 
prove it as alleged. 

III. The averment that the building was a dwelHng house 
occupied by Sadie Ray is descriptive of the oftense, and 
must be proved as laid. A house is not a dwelling unless 
inhabited. (Bish. Stat. Cr. sec. 279 ; Whar. Cr. Law, sees. 
781-84; State v. Warreiiy 33 Me. 30.) It is necessiiry to 
aver ownership. (Bish. Cr. Pro. 135-9.) And the owner- 
ship should be laid in the tenant and occupant; because the 
trespass is against the tenant, and the jiroof should support 
the averment. {Beall v. State^ 53 Ala. 460; Russ. on Cr. 
806, et. seq.\ Whar. on Cr. Ev. sees. 94, 101; Whar. 
Cr. Law, sec. 932; Roscoe Cr. Ev. 353, 366; Peoples, 
Stickman, 34 Cal. 242 ; People v. St. Clair, 38 Cal. 137; 
People V. Barnes, 48 Cal. 551 ; Itodgers v. People, 86 N. Y. 
360; Moore v. People, 47 Mich. 639; State v. McGowan, 
20 Conn. 245; Ros. Cr. Ev. 85, 88.) 

J. D, Torreyson, District Attorney of Ormsby county, for 
Respondent. 

I. The indictment alleges the breaking and entering with 
force. Proof of an entry xcithout force will be sufficient. 
(1 Comp. Laws 2365; State v. Watkins, 11 Nev. 30.) 

n. It is not necessary that the dwelling house should be 
occupied or inhabited in order to constitute burglary. Every 
house for the dwelling and habitation of man is a dwelling 
house. (2 Bish. Cr. Law, sec. 104 ; 2 East P. C. 491 ; 



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July, 1884.] State v. Dan. 847 



Opinion of the Court — Belknap, J. 



4 Bl. Com. 224 ; People v. Stickman, 34 Cal. 242 ; Com. v. 
Eeynolds^ 122 Mass. 464 ; State v. Meerchouse, 34 Mo. 345 ; 
State V. McGowan, 20 Conn. 245.) 

III. If a person leaves his house animo revertendi, though 
no person resides therein his absence, it is burglary to break 
and enter it. (4 Black. Com. 224, note 7 ; Post. 77 ; 1 Hale 
P. C. 566 ; 1 Whar. Cr. Law, sec. 791 ; Johnson v. State, 48 
Qa. 116 ; Dick v. State, 53 Miss. 384 ; State v. Bishop, 51 
Vt. 287.) 

IV. There is no material variance between the indict- 
ment and the proofs. (1 Comp. Laws, 1864; People v. 
Hughes, 29 Cal. 257, 262 ; People v. Edwards, 59 Cal. 359 ; 
People i\ Shainwald, 51 Cal. 468, 470.) 

V. The allegation in the indictment, to-wit : " Said 
dwelling house being occupied under a verbal lease by one 
Sadie Kay as a dwelling house'' may be treated as sur- 
plusage, and stricken out without destroying the indict- 
ment. (1 Comp. L. 1864, 2214 ; Whar. Cr. Ev. sec. 138 : 
People v. Hughes, 29 Cal. 257 ; State v. Lawrg, 4 Nov. 161 
State V. CoiTigan, 24 Coiui. 286 ; Burk v. State, 5 Tex 
(C. App.) 74; Coleman v. State, 2 Tex. (C. App.) 514: 
State v. Burt, 25 Vt. 373 ; State v. Elliot, 14 Tex. 426 
Miller v. State, 69 Ind. 284 ; Miles v. V. S, 103 U. S. 304 
McCameg v. People, 83 N. Y. 408.) In rejecting these 
words as surplusage the indictment is left perfect, and the 
defendant can in no way be prejudiced. They are merely 
unnecessary words. 

By the Court, Belknap, J.: 

At the common law inhabitancy of the building in which 
the oftense was committed was one of the tests of the crime 
of burglary. It is said that the words " house or building," 
in section 2365 of the crimes act, are used in the same sense 
as at common law. Our stiitute as originally adopted declared 
that the oftense may be committed in ''any dwelling house, 
or any other house or building whatever." (Stat. 1861, 66.) 
The statute was amended in 1869 so as to read "any dwell- 
ing house, or tent, or any other house or building whatever." 



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348 Boyd v, Anderson. [Sup. Ct. 

Points decided, 

(Stat. 1869, 65.) In its original form the language of the 
statute was broad enough to include buildings of any kind, 
regardless of the fact of inhabitancy. {People v. Sdckman, 
34 (>al. 245.) It cannot be pretended that the scope of the 
statute was restricted by the amendment. 

As to tlie question of a variance between the proof and the 
indictment, arising fi'om the fact that the tenant had sur- 
rendered the possession of the house to the landlord a few 
hours before the commission of the burglary, we think it 
cannot avail. The proof shows the oftense to have been 
committed in the house of Joseph Olcovich, as charged in 
the indictment. The allegation that the house was occu- 
pied by Sadie Ray, as lessee of Olcovich, was, under the 
facts, immaterial, and could perform no other otHce than to 
further identify premises already sufficiently described. 
(Com. V. Reynolds^ 122 Mass. 454; Anderson \\ Utate, 48 
Ala. 665.) 

Judgment and order affirmed. 



[No. 1174.] 

W. H. BOYD, Respondent, v. PETER ANDERSON, 

Appellant. 

Appeal— Statement on Motion for New Trial— Findings.— Findings not 
embodied in tlic statement on motion for a new trial, and not referred to 
therein, except by a statement that the " findings of fact and conclusiona 
of law are hereby referred to and made a part of this statement, and wiU 
be used upon the hearing of the motion for new trial," cannot be con- 
sidered on appeal. 

Appeal from the District Court of the Second Judicial 
District, Douglas County. 

The facts are stated in the opinion. 

A, C. Ellis, for Appellant. 

Robert 31. Clark, for Respondent. 

By the Court, Leonard. J.: 

Plaintili recovered judgment in this case. Defendant 

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July, 1884.] Boyd v, Am)E\\^o^, 349 

Opinion of the Court — Leonanl, J. 

moved for a new trial on the grounds : (1) Insufficiency of 
the evidence to justify or sui)iiort the findings and decision 
of the court, and that such decision is against law ; (2) that 
the decision and judgment of the court are not supported by 
the findings. 

The findings are not embodied in the statement on motion 
for a new trial. No reference to any findings of fact or con- 
clusions of law is made in th^ statement, except as follows: 

''Upon the eighteenth day of December, 1882, the. court 
found and filed its findings of fact and conclusions of law in 
the cause, and ui)on that day the judgment was entered in 
Siiid cause. The said findings of fact and conclusions of law 
are herebj^ referred to and made u part of this statement, 
and will be used upon the hearing of the motion for a new 
trial. ^' 

The same was said in relation to certain additional find- 
ings made and filed pursuant to written request of defend- 
ant. 

It is urged by counsel for respondent that this court can- 
not consider the findings, since iliey are not embodied in 
the statement on motion for new trial. Such has been our 
decision in many cases, but it is claimed by couiisel for de- 
fendant that the words in the statement before quoted are 
tantamount to an insertion of the findings in the statement, 
and that since the transcript shows the findings were read 
and referred to by the lower court on the hearing, this 
court not only can, but should, consider the findings as em- 
bodied in the statement on motion for new trial. There is 
no statement on appeal, the findings were not inserted in 
the statement on motion for new trial, except as before 
shown ; but the court did read and refer to them on tiie 
hearing. 

Upon tliis state of facts, can this court, on appeal from 
the judgment and the order overruling the motion for new 
trial, consider the findings ? 

In Imperial S. 31. Co. v. BarMaw^ 5 Xev. 254, this court 
said : '' The statute has plainly and ex[)licitly declared what 
an appellant shall furnish this court to entitle him to a hear- 



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360 Boyd i\ Anderson. [Sup. Ct. 

Opinion of the Court^ — Leonard, J. 

ing ; such must be before the court. An aijpellant is by no 
means precluded from bringing up other matter, but the 
mode of so doing is properly subject to statutory regulation. 
Whatever does not come up in the judgment roll, or under 
clerk's certificate, as by statute provided, must come em- 
bodied in a statement. Findings are no portion of the 
judgment 4oll. There is no provision for their introduction 
into the transcript, which is the record for the considera- 
tion of this court under special certificate; therefore, they 
must appear, if at all, by means of a statement." 

In /Simpson v. Oc/g, ante 1, the findings were not embodied 
in the statement, but they were referred to by the court iu 
deciding the motion for new trial, althougli in that case, if 
we remember correctly, there was no special reference in 
the statement to the findings, or any notice that they were 
made apart of the statement and would be used upon the 
hearing. In Simpson's Case we said : "Since the findings 
were not embodied in the sti\tement, it is questionable, at 
least, whether the judge below had the right to refer to 
them in deciding the motion, or whether we can consider 
them on this api)eal, although they were referred to by 
him.'* 

We did not, however, decide the question, since it was 
unnecessary in that case to do so. 

The statute provides that on the argument of a motion 
for new trial reference may be made, not only to the settled 
statement or affidavits, but also to the ''pleadings, deposi- 
tions, and documentiiry evidence on tile, testimony taken 
and written out by a short-hand reporter authorized by the 
court to take the same, and the minutes of the court.** It 
also provides that the " affidavits, counter-affidavits, or the 
statement thus used in connection with such pleadings, 
depositions, documentary evidence on file, testimony taken 
by a reporter, and minutes of the court, as are read or 
referred to on the hearing, shall constitute, without further 
statement, the pajjers to be used on appeal from the order 
granting or refusing a new trial. To identify the affidavits, 
it shall be sufficient for the judge or clerk to indorse them 



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July, 1884.] Boyd v. Anderson. 351 

Opinion of the Court— Leonard, J. 



at the time as having been read or referred to on the hear- 
ing. To identify any deposition, documentary evidence on 
file, testimony taken by u reporter, or minutes of tlie court, 
read or referred to at tlie hearing, it shall be sufficient that 
the judge designate them as having been read or referred 
to in his certificate to be for that purpose by him made 
thereon." 

In the statutory sense, the findinsrsof fact and conclusions 
of law required to be found and filed by the court are 
neither ''pleadings, depositions, documentary evidence on 
file, testimony tiiken by a reporter, minutes of the court," 
uor "affidavits," which are the only papers the court below 
is permitted to refer to outside of a statement, and the only 
ones, besides the statement, that this court can use on 
appeal from the order granting or refusing a new trial. 
We cannot consider a paper not embodied in the statement, 
simply because we find on a fugitive paper in the transcript 
a certificate of the lower court that it was read and referred 
to on the hearing. 

In addition to the statement, we can consider just what 
the stiitute permits, and nothing else, notwithstanding the 
lower court referred to other papers on the hearing. The 
findings in this case were not made a part of the statement. 
Ai)pellant said he referred to them and made them a part 
of the statement, and he gave the court and oijposins: party 
notice that they would be used on the hearing. Counsel 
for appellant insists that hy so doing the findings became 
as much a part of the statement as a mortgage would be a 
part of a complaint in a foreclosure suit, where the mort- 
gage is referred to and made a part of the complaint, and 
attached thereto as an exhibit. We miglit admit that 
the law would have been satisfied if appellant had, in the 
body of the statement, referred to the findings, made them 
a part of the statement, and attached them thereto as an 
exhibit. But neither that nor the substance of it was done. 
By an examination of the statement no knowledge of the 
findings could be gathered. The court and counsel had to 
go to the clerk's office if they wished to know what they 



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352 LiviN.GSTON v. State. [Sup. Ct. 



Argument for Appellants. 



contained. Can it be said tliat a mortgage would be made 
a part of the complaint in a foreclosure suit without attaching 
it as an exhibit, or embodying it therein, by the simple 
statement that it was referred to and made a part thereof? 

Counsel for appellant says it will operate as a great hard- 
ship in this case to hold that the findings must be embodied 
in the statement, instead of upholding the course pursued, 
which he claims is the universal practice. Our answer is 
that the statute is plain, and we must follow it. Besides, if 
the practice pursued in this case is followed to any extent, 
it is opposed to the well-settled law as established by 
numerous decisions of this court. 

The judgment and order appealed from are affirmed. 



[No. 1187.] 

F. LIVINGSTON et al.. Appellants, v. THE STATE 
OF NEVADA, EespondexXT. 

Purchase of Territorial Bonds— Interest — Method of Calculation- 
Statute Construed. — In construing tlie provisions of the statute autlior- 
izinj^ commissioners for the State to jmrchase the outstanding territorial 
bonds, bearing interest at nine and one-half per cent, per annum, **at 
such rate of premium as would p^uarantee to the purchaser four and one- 
half per cent, per annum interest on the amount i>aid durini; the life of 
the bt)n(ls," (Stat. 1879, 15, sec. 3): Held, that the statute fixes the sum 
which the commissioners arc authorized to pay, and that the method of 
calculation is to tiikc tlic bonds at the date of delivery, calculate the interest 
therccm at nine and one-lialf jjcr cent, per annum, until the time when 
the bonds become due, add this interest to the principal, then discount 
this amount by four and one-half per cent, per annum for tjie same time 
and the balance is the amount authorized by the statute to be ])aid. 

Idem — Discount— Premium ARiTiiMiirricAL Demonstration. — The method of 
ascertaining the true discount and premium, and the amount to be i>aid 
for the bonds arithmetically demonstrated. 

Appeal from the District Court of the Second Judicial 
District, Orinsby County. 

Tlie facts are stated in the opinion. 

Robert M, Clarke^ for Appellants : 

I. The sum of money which the plaintiff was entitled to 
receive under the contract is that sum which will guarautee 

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July, 1884.] Livingston v. State 8t53 

Argument for Appellants. 

the state four and one-half per cent, per nnnnni on the 
amount paid. To state the converse of tlie proposition : 
The state is required to pay for the bonds, including the 
coupons attached, a sum which, considering the use of 
mone}' worth four and one-half per cent, per annum, interest 
payable annually during the life of the bonds and coupons, 
will he equal to the present value of the b(>nd3 and coupons 
attached. The state, under the terms of the law, is to pay 
for the bonds a sum of money which, placed at interest for 
the period of eight years and one month at four and one- 
half per cent, per annum, interest payable annually, will 
produce a sum equal to the value of the bonds. We con- 
tend that the value of the bonds depends ujion the amount 
or face value, upon the time they have. to run, upon the 
rate of interest expressed in the bonds or number of coupons 
attached, upon the time when the interest or coupons are 
payable, upon the present value of the use of money or rate 
of interest as expressed in the law, and that each of these 
elements is essential to make up the unit of value. 

II. The rule of settlement governing the parties should 
be to compute the interest on the principal sum from the 
time when the interest commenced, to the time of the first 
payment in each case, then settle. Deduct the excess of 
interest due to Livingston from the sum due to the state; 
the balance will be a new principal ; and so on to the end. 
Thus the excess of interest accruing to Livingston will con- 
stantly reduce the principal due from him to the state, and 
so constantly reduce the amount of annual interest due on 
the demand of the state against Livingston. {Deem v. 
WilUa)7is, 17 Mass. 417; Wdcojc v. lloivlaml 23 Pick. 1G7 ; 
Leonard v. WiUh^ 36 Me. 2G5 ; Smith v. Shau\ 2 Wash. 
0. C. 167; Wricihi v. Wnejht, 2 McCord (Ch.) 185; 
Treeit v. Stanton^ 1-1 Conn. 445; Conu)io)noc((li/t v. Miller^ 
8 S. & R. 452 ; Mo.^s v. Ihtsseil, 31 N. II. 886 ; Weisson v. 
Gould, 3 Blackf. 18; iMcFadden v. Fortler, 20 III. 509; 
Riney v. Hill, 14 Mo. 500 ; Williains v. Hon ght (ding, 3 
Cow. 86 ; Stark v. Hanton, 2 Green Ch. 300 ; Parsons on 
Notes and Bills, 425; Parsons on Cont. 147, with notes.) 

Vol. XVIII-45 

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364 Livingston v. State. [Sap. Ct. 

Opinion of the CJourt^Hawley, C. J. 



III. Coupons are negotiable securities. {National Bank 
V. Mount Tabor, 52 Vt 87; Thomson v. Lee County, 3 Wall. 
327; Bank U. S. v. Macalesier , 9 Pa. 475; Murray v. 
Lardner, 2 Wall. 110; Aurora City v. West, 7 Wall. 105; 
City V. Lamson, 9 Wall. 477.) 

IV. The holder of a coupon may collect interest thereon 
after it becomes due. {Gray v. State, 72 Ind. 568 ; National 
Bank V. Mechanics N. B. 94 U. S. 437 ; Heath v. Fage, 63 
Pa. St. 108; 2 Dan'l Neg. Instr. sec. 1513 and notes; 8 
Parson Con. 102 ; City of JeffersoniHlle v. Patterson, 26 lud. 
15; Langston v. S. C. R. R. Co. 2 S. C. 2:18.) 

V. Appellants are entitled to the present worth of money 
due from the state, calculated from the date of the delivery 
of the bonds and coupons to the state's agent to the times 
when they were severally due and payable, at the i-ate or 
value of the use of money as specified in the law authorizing 
the contract. 

W. H. Davenport, Attorney General, and W. E. F, Deal, 
for Respondent. 

By the Court, Hawley, C. J.: 

The act of the legislature providing for the purchase of 
the territorial bonds, for the benefit of the school fund, 
declares that the commissioners therein named are author- 
ized to purchase the bonds, "if they can purchase the 
whole issue, (three hundred and eighty thousand dollara,) 
and not otherwise, if such purchase can be made at such 
rate of premium as would guarantee to the purchaser four 
and one-half per cent, per annum interest on the amount 
paid during the life of the bonds so purchased." (Stat. 
1879, 15 sec 3.) In pursuance of the provisions of this act, 
the commissioners purchased the bonds from appellants- 
One hundred and sixty thousand dollars were delivered 
February 1, 1870, and two hundred and twenty thousjxnd 
dollars were dehvered April 1, 1879. At the time of the 
purchase there was six thousand three hundred and thiily- 
three dollare and thirty-three and one-third cents interest 



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July, 1884.] Livingston i\ State. 855 

Opinion of the Court— Hawley, C. J. 

due on the one hundred and sixty thousand dollara bonds, 
and one thousand seven hnndi'ed and foi*ty-one dollars and 
sixty-six and two- thirds cents on the two hundred and 
twenty thoUvSand dollars bonds. The amount paid for inter- 
est to diite of purchase was eight thousand and seventy-five 
dollars. The amount paid for the bonds was four hun- 
dred ninety-one thousand six hundred and twenty-seven 
dollars and fifteen cents, making the total amount paid to 
appellants four hundred and ninety-nine thousand seven 
hundred and two dollars and fifteen cents. The territorial 
bonds so purchased were issued on March 1, 1872, and were 
made payable in fifteen yeara, with interest thereon at nine 
and one-half per cent, per annum. Interest coupons were 
attached to the bonds, and were made payable September 
1st and March 1st of each year. The bonds would be 
due March 1, 1887. At the time of the deUvery of 
the bonds to the commissioners, appellants claimed that 
there was an error in the method of computation in arriving 
at the amount that should be paid, and this suit was insti- 
tuted by them for the recovery of the sum of sixteen 
thousand one hundred and eighty-five dollars and seventeen 
cents, a balance alleged to be due them on the purchase of 
the bonds. 

Accepting as connect the theory contended for by appel- 
lants, that the amount to be paid is to be ascertained by an 
interpretation of the statute, and waiving all the prelimi- 
nary and technical objections urged by respondent's counsel 
against the right of appellants to recover in this action, we 
are called upon to answer the question : " What is the sum 
which the state, under the terms of the law, is to pay for 
the bonds?'' Appellants claim that, inasmuch as the in- 
terest on the bonds is payable semi-annually, the state must 
settle every year with itself, and must pay interest on its 
bonds every six months ; that the owners of the bonds were 
entitled to have this interest taken into the calculation at 
the end of each year, instead of at the end of the life of 
the bonds ; that the rule of settlement should be to " com- 
pute the interest on .the principal sum from the time when 



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356 Livingston v. State. [Sup. Ct. 

Opinion of the Court — Hawlcy, C. J. 

the interest commenced, to the time of the first payment 
in each case, then settle; clednct the excess of interest due 
to Livingston from the sum due to tlie state. The balance 
will be M new in-inci])a] ; and so on to the end." The author- 
ities cited in favor of this method of computation have 
reference solely to the rule of computing interest in cases 
of partial payments on notes, or other evidences of indebt- 
edness ; and the rule is stated as follows : 

"Compute the interest on the princi[)al siim from the 
time when the intej-est commenced, to the first time 
when a payment was made, which exceeds, either alone 
or in conjaction with the preceding payments, if any, 
the interest at that time due ; add that interest to the princi- 
pal, and from the sum subtract the payment made at that 
time, together with the preceding payments, if any, and 
the remainder forms a new princii)a], on which compute and 
subtract the interest as upon the first i^rincipal; and pro- 
ceed in this manner to the time of the judgment." (2 Pars. 
Bills and N. 425, and authorities there cited.) 

This rule is one of almost universal application in the 
class of cases referred to, and is always to be applied in 
such a manner as to prevent the interest forming a part of 
the principal so as to cari'y interest. It cannot, therefore, 
be invoked in favor of the rule as claimed by a])pellant3 in 
a case like this, because if the interest on the bonds in 
question is to be added to the principal each year, a settle- 
ment then made, and a new principal given, it requires no 
argument to show that such a computation would result ia 
the interest drawing some interest. 

Other authorities are cited to the eflect that the interest 
coupons attached to the bonds were negotiable securities, 
and that the holders thereof might collect interest thereon 
after they became due, if the same was not paid at maturity. 
These principles will be admitted as correct, as they have 
not been questioned, and have no special application to the 
facts of this case. Xo question is raised as to the power of 
the legislature to pass a law authorizing a computation to 
be made upon the method claimed by appellants. The 



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July, 1884.] Livingston v. State. 357 

Opinion of the Court — Hawley, C. J. 

question is whether the hiw, as ])assed, autliorizes such a 
method of computation. If tlie bonds had not been pur- 
chased, the state would only have been required to pay the 
holders the amount of the ]»rincipal and interest thereon at 
the rate of nine and one-half i»er cent, per annum for the 
life of the bonds. Of course, the bonds were of greater 
value to the holders on account of the interest being made 
payable semi-annually, because the interest when paid 
could be reinvested in other securities. A banking-house 
or capitalist engaged in tlie business of loaning money and 
discounting debts, due at a future time, would naturally 
take this fact into consideration in ascertaining the present 
value of the bonds, and would, doubtless, give more for the 
bonds than if the interest was not to be paid until the 
maturity of the bonds. Appellants might, therefore, have 
refused to sell the bonds to thestxite on the ground that they 
were of greater value than the sum oflcred, and if they 
thought the method of computation invoked by the com- 
missioners and other experts was not just and equitable, 
they ought to have refused to deliver the bonds upon such 
terms. The law could not, and did not attempt to, compel 
appellants to sell the bonds. The sale was optional upon 
their part. They were at liberty, if they saw fit, to sell 
the bonds for a less amount than they received; but in no 
event can they recover any greater amount than the statute 
authorizes to be paid. Upon what method of calculation is 
this sum to be determined ? 

Whatever may be the rules of banking houses, or -the 
methods adopted in the United States treasury department, 
as to the computation of interest on bonds, it is evident, to 
our minds, that the statute in question did not contemplate 
that the method of computation, as claimed by appellants, 
should be adopted in arriving at the amount to be paid by 
the commissioners for the sUite. The statute is clear, plain 
and unambiguous. The purchase was to be made at such 
rate of premium as would guarantee to the state four and a 
half per cent, per annum interest during the life of the 
bonds- It is not a question as to the real marketable value 



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358 Livingston i\ State. [Sup, Ct. 

Opinion of the Court— Hawley, C. J. 

of the bonds. The law itself fixes the sum which the com- 
missioners are authorized to pay. It may be that the 
bonds would have commanded a greater premium in the 
financial markets than the state was willing to give. But 
the law is positive and direct in its terms that the purchase 
is to be made *' at such rate of premium as would guarantee 
to the purchaser four and one-half per cent, per annum 
interest on the amount paid, during the life of the bonds so 
purchased.'' 

The question is one of computation, to be determined by 
the ordinary rules of arithmetic governing the method of 
ascertaining the true discount on notes and bonds. Take 
the bonds at the date of delivery, calculate the interest 
thereon at nine and one- half per cent, per annum until 
March 1, 1887, (when the bonds would become due,) add 
the interest to the principal, then discount this amount by 
four and one-half per cent, per annum for the same time, 
and we will have the sum that is to be paid under the pro- 
visions of the statute. By this method tlie stiite realizes 
four and one-half per cent, per annum interest on the 
amount paid during the life of the bonds, which the statute 
says must be guaranteed to it. To ascertain the true dis- 
count, divide the amount of the debt (principal and interest 
on (he bonds) by one dollar, plus the product of the rate 
multiplied by the time in years; the quotient will be the 
sum that the state will pay for the bonds. Subtract this 
sum from the amount of the debt, and you have the true 
discount. Subtract the i)rincipal sum (without interest) 
from the quotient, and you have the i)remium. Under this 
method, what is the result ? One hundred and sixty thou- 
sand dollars purchased February 1, 1879, with interest at 
nine and one-half per cent, per annum until March 1, 1887, 
(eight years and one month,) amounts to two hundred and 
eighty-two thousand eight hundred and sixty-six dollars 
and sixty-six and two-thirds cents. The interest on one 
dollar at four and one-half per cent, per annum for eight 
years and one month would be thirty-six and three hun- 
dred and seventy-five thousandths cents. Plus one dollar. 



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July, 1884- ] Livingston v. State. S59 

Opinion of the Court — Hawley, C. J. 



under the rule above stated, makes one dollar and thirty- 
six'and three hundred and seventy-five thousandths cents. 
Divide two hundred and eighty-two thousand eight hun- 
dred and sixty-six dollars and sixty-six and two-thirds cents 
by one dollar and thirty-six and three hundred and seventy- 
five thousandths cents, and we have the sum of two hun- 
dred and seven thousand four hundred and eighteen dollars 
and twenty-seven and sixty-nine thousandths cents. This 
subtracted from the amount of the principal sum and 
interest leaves seventy-five thousiind four hundred and forty- 
eight dollars and thirty-nine and five hundred and ninety- 
six thousandths cents as the discount, which is equal to the 
interest on the sum of two hundred and seven thousand 
four hundred and eighteen dollars and twenty-seven and 
sixty-nine thousandths cent« at four and one-half per cent, 
per annum for eight years and one month. The premium 
to be paid is forty-seven thousand four hundred and 
eighteen dollars and twenty-seven and sixty- nine thou- 
sandths cents. Two hundred and twenty thousand 
dollars delivered April 1, 1879, with interest at 
nine and one-half per cent, per annum until March 1, 
1887, (seven years and eleven months,) amounts to three 
hundred and eighty-five thousand, four hundred and fifty- 
eight dollars and thirty-three and one-third cents. The 
interest on one dollar at four and one-half per cent, per 
annum for seven years and eleven months would be thirty- 
five and six hundred and twenty-five thousandths cents, plus 
one dollar makes one dollar and thirty -five and six hundred 
and twenty-five thousandths cents. Divide three hundred 
and eightj'-five thousand four hundred and fifty-eight dollars 
and thirty-three and one-third cents by one dollar and thirty- 
five and six hundred and twenty-five thousandths cents and 
we have the quotient two hundred and eighty- four thou- 
sand, two hundred and eight dollars and ninety and nine 
hundred and thirty-seven thousandths cents as the sum 
which the st4ite is to pay for the bonds. This subtracted 
from the principal amount, with interest, leaves one hun- 
dred aud one thousand two hundred and forty-nine dollars 



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360 Hoffman v. Bosch. [^"P- Ct. 

Opinion of the Court — Hawley, C. J. 

and forty-two and three hundred and ninety-six thousandths 
cents as discount, which is equal to the interest on the sura 
paid for the purchase, at the rate of four and one-half per 
cent, per annum during the life of the bonds. The pre- 
mium to be paid is sixty-four thousand two hundred and 
eight dollars and ninety and nine hundred and thirty-seven 
thousandths cents. Tiiis was the method adopted by the 
commissioner in making the computation, and, in our 
opinion, it is the only method of computation that is war- 
ranted by the statute. 

The judgment of the district court is affirmed. 



[1190.] 

WILLIAM HOFFMAN, Respondent, v. F. BOSCH, 

Appellant. 

Action for Breach of W^arranty of Title— Measure of Damages.— In 
an action to recover damages for breacli of warranty of title to real estate, 
the measure of damages is the value of tlic property at the time of sale, to 
be ascertained by the purchase money, with interest thereon, and reason- 
able costs, if any were expended in defense of title by plaintiff. 

Verdict Contrary to Law — New Trial. — The court properly instructed the 
jury as to the me«isure of damages, and they brought in a verdict contrar>' 
to such instruction ; Held, that the court properly granted a new trial. 

Appeal from the District Court of the Seventh Judicial 
District, Washoe County. 

Win, Webster^ for Appellant. 
J. F. Alexander^ for Respondent. 

By the Court, IIawley, C. J.: 

Ui)on the trial of tliis action, to recover damages for 
breach of warranty of title to real estate, the court gave the 
following instruction : 

^'If the jury find that there has been a breach of war- 
ranty of the title to (he real estate in question * * * 
the measure of damages is the value of the property at the 



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July, 1884.] Lake v. Bender. 861 

Points decided. 

time of sale, to be aBcertained by the purchase money, with 
interest* thereon, and reasonable costs, if any were expended 
in defense of titl6 by plaiiitiftV* 

The jury found a verdict in favor of plaintift'for the sum 
of one hundred and fifty dollars. The court, upon motion 
of plaintitf, granted a new trial upon the ground that the 
jury in assessing the damages, failed to determine the 
amount, from the testimony, upon the rules announced in 
the instruction. The instruction stated the measure of 
damages correctly {Dalton v. Bowker^ 8 Nev. 190), and it 
was the duty of the jury to have followed this instruction in 
assessing the damages. The verdict, as rendered, was not 
justified by the law or by the evidence. From the undis- 
puted testimony in the case, the plaintift', if he recovered 
in the action, was entitled to a larger sum than was awarded 
him by the jury. 

The order of the district court granting a new trial is 
affirmed. 



[No. 1138.] 

JANE LAKE, Appellant, v, C. T. BENDER, ADMIN- 
ISTRATOR OF THE ESTATE OF M. C. LAKE, 
DECEASED, Respondent. 

New Trial of Portion of the Issues in Action for Divorce. — In an action 
for a divorce and a division of the community property, where a divorce is 
first granted and subsequently the issues relating to tlie property are deter- 
mined, the district court has the power to grant a new trial of the issues 
relating to the property rights alone; provided^ there is any material error 
affecting that branch of the case only, witliout ordering a retrial of all the 
Issues in the case. 

Husband and Wife— Common Law — Separate Property — Rents, Issues 
AND Profits — St.\tute.— In construing the statute defining the rights of 
husband and wife (Stat. 1864-5, 239) : Hekh that the property rights of 
the parties to this action, prior to the adoption of the statute, were gov- 
erned by the common law and that all the property which was ow^ned by 
the husband at the time of his marriage and all that w*as subsequently 
acquired with funds derived from the rents, and profits of such prop- 
erty, or by an exchange of property owned by hi in at the time of his mar- 
riage, is liis separate property, and that the rents, issues and profits of his 
separate estate did not become common property under the provisions of 
the statute. 
Vol. XVIII— 46 

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362 Lake v. Bender. [Sup. Ct. 



Argument for Appellant. 



Idem— Property Acquired Ditrino Coverture— Community Property — 
Presumption — Burden of Proof — Evidence. — The presumption is that 
all property acquired during coverture belongs to tlie community, and the 
burden rests on the person claiming it as separate proi>erty to overcome 
this presumption by proof sufficiently clear and satL«^factory to convince 
the court and jury of tlie correctness of such claim. 

Deed — Consideration — Parol P^vidence—Exchange of Property. — Parol 
evidence is admissible to show that the consideration of a deed was other 
property given in exchange, instead of a money consideration as expressed 
in the deed. 

Husband and Wife — Joint Efforts — Community Property — Evidence. — It 
is not necessary to prove that property is the product of the joint efforts of 
the husband and wife in onier tliat it may be declared community estate. 
If it is acquired after marriage by the efforts of the husband alone, but not 
by gift, devise or descent, or by exchange of his individual property, or 
from the rents, issues or profits of his separate estate, it belongs to the com- 
munity. 

Idem— Profits— Separate Property.— The profits of separate property which 
accrue mainly from the property rather than from tlie joint efforts of the 
husband and wife, or either of them, belong to the owner of the property 
although the labor and skill of (me or both may have been given to the 
business ; but if the profits come mainly from the efforts of their labor and 
skill, they belong to the community. 

Idem— Toll-road— Ranch— Hotel, Profits From— Separate Estate.— ITeW, 
upon the facts stated in the opinion, that the rents, issues and profits aris- 
ing from a toll-road and bridge, a hotel and bar, and the Lake ranch, were 
the separate property of the husband. (Hawley, C. J., dissenting.) 

Divorce — Alix)wance to Wife — Discretion of Court. — Upon granting a 
divorce the question as to the amount of allowance for the supjwrt of the 
wife is lefl to the legal discretion of the trial court, and should not be inter- 
fered with in the appellant court, unless the discretion has been abused. 

Idem — Construction of Statute. — ITj>on rehearing, in construing sections 
twenty-five and twenty-seven of the act relating to marriage and divorce 
(1 Comp. Laws, 218, 220) in connection with section twelve of the statute 
defining the rights of husband and wife (1 Comp. Laws, 102) and a review 
of the evidence : Held, that it was the duty of the district court to allow 
such sum for the wife's support as was just and equitable under all the 
circumstances of the case and surrounding of the parties, and that the 
amount of one hundred and fifty dollars per month, as allowed by the dis- 
trict court, should be increased to two hundred and fifty dollars per month. 

Appeal from the District Court of the Second Judicial 
District, Washoe County. 

C S, Varian, and Lindsay ^ Dickson^ for Appellant : 

I. All i)roperty acquired after marriage by either hus- 
band or wife, or by both, except that acquired by gift, be- 



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July, 1884.] Lake v. Bender. 363 

Argument for Appellant. 

quest, devise or descent, is presumed to be community 
property, and the burden is on that party who would claim 
it as separate property, to overthrow this presumption. 
[Althof \\ Conkeim, Ss'^Cal. 230; Lewis \\ Lewis, 18 Cal. 
654 ; Seoit v. Ward, 13 Cal. 458 ; Pixlei/ v. Huggins, 15 
Cal. 127; Moii v. Smith, 16 Cal. 533; Koliner v. Ashe- 
nauer, 17 Cal. 581 ; Burton v. Lies, 21 Cal. 91 ; Adams v. 
Knoiclton, 22 Cal. 288 ; Tustin v. b\iughi, 23 Cal. 241 ; Me- 
Donald v. Badger, 23 Cal. 398 ; Landers v. Bolton, 26 Cal, 
420 ; Meyer v. Kinzer, 12 Cal. 248 ; Smith v. Smith, 12 Cal. 
216.) The presumption that property acquired by pur- 
chase after marriage is community property, is a cogent 
one, and can only be overcome by evidence altogether clear 
and indisputable, showing that the means used in its acquisi- 
tion belonged to the separate property of the spouse, who 
claims it as separate estate. {Chapman v. Allen, 15 Tex. 
278; Love v. Hobertson, 7 Tex. 11 ; Lott v. Reach, 5 Tex. 
394 ; Huston v. Curl, 8 Tex. 242 ; GilUard v. Chesney, 13 
Tex. 337 ; 23 Tex. 29 ; 26 Tex. 196 ; 25 Tex. 270 ; 12 Tex. 
54 ; Schmeliz v. Gareg, 49 Tex. 49.) 

II. With respect to the funds of the community, the con- 
trol and management whereof are, by the statute, given 
into the hands of the husband ; and in which the wife has 
no interest ; the relation of the husband to the wife is that 
of quasi trustee to a cestui q%d trust. The trustee should be 
held to a strict accountability. If he has mingled the funds 
of the trust estate with his individual proi)erty, so that it 
can no longer be determined, with any degree of accuracy, 
whether any particular piece of property was purchased 
with trust funds, or how much of the purchase money 
thereof belonged to the trust fund and how much to the 
individual property of the trustee ; if, in short, the trustee 
himself could not show distinctly and satisfactorily the 
rights of the two funds, we apprehend there could be no 
doubt of the right of the cestui qui trust to claim the whole 
of such property. If one intermingle his goods with those 
of another in such a manner that the property of each can 
no longer be distinguished, and in such a manner that it 



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864 Lake v. Bender. [Sup, Ct. 

Argument for Appellant. 

can no longer be determined what proportion the respective 
parties are entitled to, the innocent party is entitled to the 
whole. ( Taylor v. Jones, 42 N. H. 25 ; Boot v. Bonnemaj 
22 Wis. 539; 1 Hill, on Torts, 502; 2 Kent. Com. 364; 
Smith V. Smith, supra,) 

III. Testimony reviewed at great length and claim is 
made that it is impossible to say how much of the increase 
of defendant's property, after marriage, came from the 
rent5, issues and profits of his property, as the profits real- 
ized by his skill, labor and industry, and the joint efforts of 
himself and wife were mingled thenceforth. 

IV. That which would be held to be community prop- 
erty in a contest between the wife and creditors of the hus- 
band, must also be held to be community property in a 
contest between husband and wife. The statute does not 
contemi)late one rule for one case and another and diiierent 
rule for the other. (De Blanc v. Lynch, 23 Tex. 25 ; White 
V. Lynch, 26 Tex. 195 ; Werner v. Kelly, 9 La. An. 60 ; 
Bateman v. Bateman, 25 Tex. 270 ; Hoioard v. York^ 20 
Tex. 670.) As confirmatory of the position that the whole 
of such increase must be taken to be community property 
(see 3 C. E. Green, 472; 5 C. E. Green, 13; 37 III. 247; 
55 111. 354; 16 Ohio, 509-521; 18 Pa. St. 421; Leiois v. 
Leiois, 18 Cal. 634). 

V. Whether it is permissible to show, by parol evidence, 
that the deed does not express the true consideration, and 
that another and difterent consideration was given, when 
the effect of such evidence would be, as here, to change the 
effect and operation of the deed, is at least doubtful. 
[McCrea v. Purmont, 16 Wend. 465 ; Westbrookv. Harbison^ 
2 McCord, Oh. 112 ; Pyan v. Goodwin, McMullin Eq. 451 ; 
Gullet y, Lamherton, 1 Eng. (Ark.) 109; Setcell v. Baxter^ 
2 Md. Ch. 454; Notley Youngs E^U 3 Md. Ch. 
467 ; Crawford v. Spencer, 8 Cash. 418 ; Logan v. Bond^ 
13 Qa. 197; Cook v. Whiting, 16 111. 483; Aify-Gen. v. 
Clapham, 31 Eng. L. and Eq. 163; Peck v. Vandenberg, 30 
Cal. 11 ; Salmon Ex. v. Wilson, 41 Cal. 595.) 

VI. This case is one, if any there be, where the wife 



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July, 1884.] Lake v: Bender. 365 

Argument for Appellant. 

should have been awarded a sum in solido, or where there 
should have been some division of the property, instead of 
awarding an annuity — as alimony — based upon defendant's 
income ; because we find from defendant's testimony that 
his net income is iniinitisimal with his wealth. The plain- 
est principles of right and justice proclaim that an injustice 
has been done the plaintitt' by the decree herein. After 
many years of married life, without fault on her part, she 
is forced by the wrongs and misconduct of her husband to 
seek a dissolution of the marriage. The divorce is granted, 
but she is turned from the doors of the court with a pittance 
that is miserably insignificant in comparison with the 
wealth of the defendant accumulated during the existence of 
the marriage relations. Upon the point that the court had 
authority to divest the defendant of title . to portions of 
his estate, and that the allowance made by the court is 
based upon erroneous principles and is entirely inadequate 
and unjust, the following authorities are cited : (2 Bish. 
on Mar. and Div. sec. 481 ; Thonibcrrj/ v. Thornberry^ 4 
Litt. 251 ; Darrenberger v. Haiipi^ 10 Nev. 43 ; Wuest v. 
Wuesi, 17 Nev. 217 ; 1 Comp. L. 218, 220 ; Barrow v. 
• Puryle, 107 Mass. 428; Ale Clung v. Mc Clang, 40 Mich. 
493 ; Donavan v. Donavan^ 20 Wis. 586 ; Williams v. 
Williams, 36 Wis. 363.) 

VII- The district court, finding that respondent, at the 
time of his marriage, owned a franchise to take tolls, 
assumed as a matter of law, and so held, that all the tolls 
received by him during coverture, and amounting to 
seventy- eight thousand six hundred and twenty-five dollars, 
were his own separate property, and consequently that all 
property purchased with such tolls was also his separate 
property. The reasoning which leads to such a conclusion 
is fallacious; it fails to include the very principle upon 
which the community system is founded, i. c, that what- 
ever is acquired by the joint ettbrts of the husband and 
wife is their common property. {De Blanc v. Lynch, 23 
Tex. 28.) The franchise to take tolls was simply a privilege 
— a right ; its fruits were always necessarily dependent upon 

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366 Lake v. Bender. [Sup. Ct. 

Argument for Respondent. 

the skill, energy and labor of the owner. The road and 
bridge were to be kept in repair, the tolls were to be ex- 
acted and collected ; the business enterprise and ingenuity 
of the owner were called in play to divert and keep the 
travel. Accounts were to be kept — men to be fed and 
paid. In fact, the successful management of this franchise 
was a business in itself, requiring the labor of hand and 
brain — the labor belonging to the community. To this 
business both spouses contributed, each in his and her 
appropriate sphere. 

VIII. Upon the question of new trial, upon a single issue, 
we cite 1 Comp. Laws, 1255 ; Winn v. Columbian Ins. Co. 
12 Pick. 279 ; Bicknell v. Borion, 16 Pick. 478 ; Bobbim 
V. Townsend, 20 Pick. 345 ; Allen v. Feland, 10 B. Mod. 
306 ; Roberts \\ Hefner, 19 Tex. 129 ; Holmes v. Godwin, 
71 N. C. 306 ; Hiliiard New Trials, 56, sec. 8.) 

Robert M, Clarke, for Respondent : 

I. The new trial appHed for is not of the case, nor of a 
cause of action in the case, nor of an entire issue ; but of 
one of several incidental or collateral issues to the cause of 
action pleaded. A new trial cannot be granted for a part , 
only of the cause of action. (1 Comp. Laws, 1255, 1256 ; 
Bouviers, L. 1). 619 ; Edie v. East India Co. 2 Burr. 
1216, 1224 ; Swain v. Hall, 8 Wilson 45 ; 1 Blackstone, 
198; Dale v. Mosely, 4 Stew. & Por. 371; Edwards v. 
Leiois, 18 Ala. 494 ; 3 Wait's Pr. 400 ; Tidd's Pr. 911 ; 
BicknelFs Civ. Pr. 386.) 

II. It was admissible to show, notwithstanding the deeds 
expressed ^ moneyed consideration, that the real considera- 
tion was other property given in exchange. [Meyer v. 
Kinzer, 12 Cal. 247; Peck v. Brummagim, 31 Cal. 447; 
Ramsdell v. Fuller, 28 Cal. 37 ; Feck v. Vandeiiburg, 30 
Cul. 11 ; Salmon Ex. v. Wilson, 41 Cal. 595.) 

III. The property belonging to the husband at the time 
of marriage, and all property thereafter acquired by gift, 
devise or descent, togetlier with the rents, issues and profits, 
is separate property. (1 Comp. Laws, 151 ; Smith v. Smith, 



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July, 1884.] Lake v. Bender. 867 

Opinion of the Court — Leonard, J. 

12 Cal. 216 ; Martin v. Martin, 52 Cal 235 ; Kraemer v. 
Kraemery 52 Cal. 302.) Property received in exchange for 
separate property is separate. (Wells Sep. Prop. sees. 75, 
117; 50 Ala. 221 ; Merritt v. Lyon, 3 Barb. 114.) The 
proceeds or increase of separate property remains separate. 
(Wells on Sep. Prop. sec. 112; Williams v. McGrade, 13 
Minn. 52 ; Hansen v. Milleti 55 Me. 189 ; Knapp v. Smith., 
27 N. Y. 280; Lewis v. Johns, 24 Cal. 101.) The rents 
and profits of a hotel, and croi)S raised on a farm which is 
separate property, are also separate. (Wells on Sep. Prop, 
etc. sec. 213, p. 169. and cases cited.) It is immaterial 
that appellant assisted in managing the separate estate of 
respondent ; the proceeds are not the less separate property. 
(Wells on Sep. Prop. etc. sec. 113; Feller v. Alden, 28 
Wis. 305 ; Bucldejf v. Wells, 33 N. Y. 520 ; Gage v Dauchy, 
34 N. Y. 297; Dean v. Bailey, 50 111. 484; McLntyre v. 
Knowlton, 6 Allen 566; George v. Ransom, 15 Cal. 323; 
Leicis V. Johns, 24 Cal. 101 ; Durham v. Williams, 32 La. 
An. 162.) 

IV. The allowance of alimony to support appellant is 
ample. If hereafter the support should prove inadequate, . 
it may be increased by the district court. (Bish. Mar. and 
Div. sees. 429, 430.) " 

V. The property being the separate i>roperty of respond- 
ent, and the divorce having been granted for cruelty, and 
not for adultery or imprisonment, the court had no power 
to divest the title out of him and vest it in appellant. (1 
Comp. Laws Nev. sec. 220 ; 2 Bish. Mar. and Div. sec. 
427 ; Maguire v. Magidre, 7 Dana 187 ; Rogers v. Vines, 6 
Ire. 293; Darrenberger v. Haupi, 10 Nev. 43.) 

By the Court, Leonard, J.: 

This is an action for divorce on the ground of cruelty. 
In her complaint plaintiff alleges that there is a large 
amount of property belonging to the community, and prays 
for an equal division thereof between herself and defendant. 
Defendant denies that any of the property described belongs 
to the community, and alleges that it is all his individual 



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368 Lake v. Bender. [Sup. CL 

Opinion of the Court — Leonard, J. 

estate. When the cause came on for trial it was agreed by 
the respective parties, and ordered by the court, that the 
issues relating to the disposition of the property should be 
withdrawn from the consideration of the jury, and reserved 
for future consideration and determination hy the court, iu 
case a divorce should be granted. Upon the special find- 
ings and the verdict of the jury the divorce prayed for was 
granted. Subsequently, the court, sitting without a jury, 
tried the issues relating to the character and disposition of 
the property, and found that it belonged to the defendant, 
individually. Thereupon a formal decree was entered, as 
follows : 

*' Upon the verdict of the jury heretofore returned iu this 
case and the order of the court made thereon, and in con- 
sideration of said verdict and order, it is adjudged and 
decreed that the marriage relation heretofore existing 
between the said Jane Lake and M. C. Lake be, and the 
same is hereby set aside and annulled, and the said parties 
be, and they are hereby released therefrom. And upon 
the findings an<l decision of the court heretofore made upon 
the issues joined between the parties concerning the prop- 
erty, * * * it is ordered, adjudged and decreed by the 
court, that the property, real and personal, descril)ed in the 
complaint, is, and that it be and remain, the separate 
property of the defendant, M. C. Lake, and that the plaint- 
iflt'take no part thereof or interest therein except as here 
after specifically decreed." 

Then follows an order that the defendant pay plaintitt' 
monthly, so long as she shall remain unmarried, the sum of 
one hundred and fifty dollars, and fifty dollars for the child, 
and that said sums be and remain a charge and lien upou 
certain real property described. In the decree the court 
reserved jurisdiction to modify the allowance at any time. 
Defendant did not move for a new trial, or appeal from the 
judgment or any part thereof. But plaintitt* so moved as to 
the issues respecting the property rights alone. She did 
not ask for a new trial of the issues touching the alleged 
cruelty and her right to a divorce. The motion was denied, 



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July, 1884.] Lake v. Bender. 369 

Opinion of the Court — Leonard, J. 

and this appeal is from the order denying a new trial, and 
from ''that part of the judgment * * * affecting the 
questions of idimony and the property rights of the parties 
to said action." 

It is first urged, by counsel for respondent, that a new 
trial is a re- examination of al] the issues of fact raised by the 
pleadings ; that it could not have been granted in this case 
as to property rights alone ; that a motion to retry a part of 
the case was a nullity, and consequently that the court did 
not err in overruling the motion made. The question is 
squarely presented, then, whether the court below had the 
power to order a new trial of the issues rehiting to the 
character and disposition of the pro])erty alone, if material 
error was shown in the trial of, and affecting, that branch of 
the case only ; or, is it tr»ie that all the issues made by the 
pleadings, if any, must have been retried ? This question 
is not only exceedingly imjiortant in the matter of practice, 
but it is also of great moment in the case in hand, if, as 
claimed by appellant, the court erred in deciding that tiie 
property belongs to defendant individually; and, for the 
purposes of the present discussion, we must assume that the 
claim of error is well founded. And, too, the legal pre- 
sumption is that the issues upon the principal branch of the 
case, the divorce, were tried and determined according to 
law. 

Defendant is presumed to have known the law ; and if it 
is true, as claimed by him, that a new trial could not be 
had of one part of the case, then he knew that the court 
could not grant plaintift"s motion, and if he wanted a new 
trial of the other part, he should have applied upon the 
entire case. Failing to do so, or to appeal, the presump- 
tion is that the divorce was pro^ierly granted. On the 
other hand, if the lower court had the power to grant a new 
trial of a part of the case, then defendant should have 
applied also for a new trial of the issues determined against 
him, and, failing to do so, the presumption is as above 
stated- It follows, therefore, that we must proceed upon 
the presumption that the principal issue was tried and 
Vol. XVIII— 47 

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870 Lake v. Bender. [Sup. Ct. 

Opinion of the Court — Leonard, J. 

determined without error, and, as to that issue, that there 
is no cause or ground for a new trial. If it is true that in 
this case the district court could not grant a rehearing of 
the issues toucliing the property rights without disturbing 
the decision upon the principal issue, then it is certain that 
in every instance where a new trial is granted the order 
must embrace the entire case, however distinct the issues 
may be, and although it may be admitted as to one cause 
of action that the trial was free from error or exception. 
For here we have a case where plaintiff must show herself 
entitled to a divorce before she can claim any separate 
property rights, and that she has done already. At another 
trial, before she could ask the court to retry the portion of 
the case wherein error is alleged, she would be obliged to 
establish a right which is already determined in her favor 
without any suggestion of error. She would be obliged to 
take the risk of defeat at another trial, as to the principal 
issue, in order to obtain rights incident to those already 
estabhshed. She would have to do over again what is 
already well done, and then, if successful, establish such 
property rights as she might have, instead of commencing 
at the issue, the trial of which alone is claimed to have 
been affected by error. 

Plaintiff* applied for a divorce, and a division of alleged 
common property. There were separate trials however, of 
the issues presented by the pleadings, those relating to the 
divorce, by a jury ; and those touching property rights, 
by the court. The special findings of the jury, adopted by 
the court, established plain tiff' 's right to a divorce. The 
verdict of the jury and the order of the court thereon were 
complete before the trial fixing the property rights, and if 
error crept in at the last trial, it could not have affected the 
result of the first. The trial of the issues relating to the 
divorce was as unaffected by any errors that occurred at the 
trial had in relation to the property, as it would have been 
if plaintiff had filed her bill for divorce, prosecuted it to 
judgment in her favor, without any showing by either 
party of the existence of community property, and had 



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July, 1884.] Lake v. Bender. 371 



Opinion of the Court — Leonard, J. 



afterwards brought an action to recover her share of such 
property. That she could have pursued such a course we 
do not doubt. {De Godey v. Godey, 39 Cal. 157.) If she 
had, and the result of the trials had been the same as in 
this, she could undoubtedly have applied for a new trhil in 
the case relating to the property, without making application 
also in the other ; and yet there would have been just as 
much reason in that case for a double application, in order 
that justice might be done, as there is now in requiring her 
to include in her motion a request for a new trial of the 
issues relating to the divorce. 

It is urged by counsel for respondent that the practice of 
retrying less than the entire case would result in splitting 
one cause of action into many parts, thus increasing ex- 
penses, multiplying trials, burdening courts, and producing 
confusion and uncertainty. If these results would follow in 
a given case, they might be urged against such practice in 
that case ; but the argument does not apply here. In this 
ease, if the decree granting the divorce is correct, what 
reason cati be urged against allowing that to stand, and cor- 
recting the balance att'ected by error? There is none, 
unless the law prohibits such practice in every case. Sup- 
pose the court had found in favor of plaintitt* as to both 
issues — that is to say, had decided that plaintiff was entitled 
to a divorce, and that the property belonged to the com- 
munity ; that both parties agreed to the correctness of the 
divorce proceedings and decree, but that defendant, believ- 
ing the court erred in its decision concerning the property, 
had aiiplied for a new trial as to that onl}-. In that case 
plaintiff could not have had cause for, or desired, a new trial 
of the issues relating to the divorce, because the decision 
was already in her favor. Would not the defendant have 
had the right to say: "I concede the correctness of the 
decree granting a divorce, but the court erred in deciding 
that the property belonged to the community. I desire a 
retrial of that question?" Could the plaintiff have 0[>i3osed 
the application because it did not include a request for a 
retrial of an issue already decided in her favor ? If such is 



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872 Lake r. Bender. [Sup. Ct. 

Opinion of the Court — Leonard, J. 

the law it ought to be changed, and yet that is the theory 
of counsel for respondent. 

New trials are permitted for tlie correction of errore, 
whether they are ordered by the appellate or trial court. 
Undoubtedly, if an eri'or aftects the entire case, a new trial 
should be granted of all the issues; but when it could not 
have attected bat one of several separate, independent 
causes of action, or when, as in this case it occurred, if at 
all, in the trial of an issue not invols'ing the main issue of 
fact in the case, and the eri'or can be corrected without dis- 
turbing the verdict or decision not attected thereby, we 
think it can be done. The statute provides that in case a 
divorce is granted the court sliall make disposition of the 
property as therein stated. The division of proi)erty is but 
an incident to, or consequence of, a divorce upon which it 
depends; but the divorce does not depend upftn the i»roi> 
erty. It is the constant practice of the United States circuit 
courts, in patent cases, fii'st, to settle the question of in- 
fringement, and if, upon that question, the decision is in 
favor of the comi)lainant, a decree is entered that he shall 
recover the rents, profits, and damages resulting from in- 
fringement. The case is then referred to a master to ascer- 
tain the rents, etc., and upon the report coming in it is 
either confirmed, if satisfactoi^, or re-referred to correct 
errors; but the decree settling the rights of the parties 
upon which the accounting depends is not disturbed. When 
the master's report is satisfactory, it is added to the partial 
decree before made. 

The statute provides that **upon an appeal from a judg- 
ment or order, the appellate court may reverse, affirm, or 
modify the judgment or order appealed from, in the respect 
mentioned in the notice of appeal, and as to any or all of 
the parties, and may set aside, or confirm or modify any or 
all of the proceedings subsequent J:.o, or dependent upon, 
such judgment or order, and may, if necessary or proper, 
order a .new trial." ''Under that section," says the 
8Ui)reme court of California, *'the appellate couit has full 
power to do, or cause to be done, what, according to the 



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July, 1884.] Lake r. Bender. 373 

Opinion of tlie Court— Leonard, J. 

rules of law and equity, ought to have been clone in the 
lower court, as to any or all of the parties pluintift* or defend- 
ant." (Rieketson v. Richardson^ 26 Cal. 155.) If a new 
trial ought to have been granted by the lower court, the 
appelhite court will reverse the order denying it, and order 
a new trial. The statute permits this court to grant a new 
trial. Now, if a new trial necessarily means a re-examin- 
ation of all the issues made by the pleadings, what power 
has this court to remand a case for a new trial upon one or 
more issues, leaving the findings upon the other issues 
standing? But that has been and is done in California 
under a similar statute. {Soale v. Dawes, 14 Cal. 247 ; 
Soule V. Rittei\ 20 Cal. 522 ; Marziou v. Pioche, 10 Cal. 
545 ; Jungennan v. Bovee, 19 Cal. 864 ; Argenti v. City of 
Han Francisco, 30 Cal. 464; Billings v. Everett, 52 Cal. 
663 ; Glasscock v. Ashman, Id. 422 ; Watson v. Cornell^ 
Id. 91 ; Le Clert v. Onllahan, Id. 254 ; Fhipps v. Harlan, 
63 Cal. 87 ; Ecans v. Jacob, 59 Cal. 628.) 

The statute does not provide, in terms, that either this or 
the trial court may grant a new trial of a part of a case, 
but it permits both to order a new trial. It does not pro- 
vide whether the motion shall include the entire case or not. 
It is evident, however, that the motion should be as broad 
as the order, but it need not include more. If in this case, 
the trial court could have granted a new trial upon the 
second and dependent branch of the case alone, had the 
motion embraced the whole case, it could have done so upon 
the motion made. It is idle to claim that the motion must 
include all the issues, if the court can grant it in i>art and 
deny it as to th* balance. It would bo a vain thing to 
require the applicant to ask for more than is, or ought 
to be, granted. If counsel for respondent is correct, had 
the court below ordered a new trial upon the property 
issues alone, this court tnust have reversed the order on 
appeal therefrom, upon the ground that the trial court had 
not power to make it, although the appellate court could 
have made the same order, on appeal by appellant from an 
order refusing to grant a new trial upon that issue. Unless 



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374 Lake v. Bender. [Sup. Ct 

opinion of the Court — Leonard, J. 

the Statute so provides, would it not be strange, if a remittitur 
should go from this court directing a change in a judgment 
or order, when, had it been so made and entered below, it 
would have been reversed on appeal? It is true tliat in 
Coombs V. Hibberd, 43 Cal. 453, it was held that when au 
application for a new trial has been made in due form, upon 
a settled statement, and the court has passed on the motion 
denying it, the court cannot afterwards vacate the order and 
grant a new trial, although, on appeal from the first order, 
the appellate court might have reversed it and granted a 
new trial, as the district court did. The court said the 
plaintitt* could not make two successive motions for a new 
trial upon identical grounds, and that to vacate the order 
denying a new trial was equivalent to a renewed motion for 
a new trial ; that the time within which a new trial could 
be apnUed for was Umited by statute, which would be 
practically enlarged if a new trial could be granted after it 
had once been refused. In short, it was held that the 
district court was prohibited by statute from making its 
second order for the reasons given. So the same court has 
held that where the lower court has granted an injunction 
upon an order to show cause, it cannot afterwards dissolve 
the injunction, or entertain a motion for that purpose, 
although the appellate court, on appeal, may reverse the 
order granting the injunction, and direct it to be dissolved. 
{K'atoma Water Co. v. Parker, 16 Cal. 84.) 

The ground of the decision was that by statute the privi- 
lege of moving for a dissolution upon the filing of the 
answer, was limited to cases where the injunction was origi- 
nally granted without notice to the adv#i-se party. It is 
patent that those decisions do not militate against appel- 
lant's views of the law of this case ; for here there is not an 
intimation in the statute that the power of the trial court is not 
co-extensive with that of the appelljite court in the matter of 
granting new trials. But it is said by counsel for res[)ou- 
dent that, under the common law, a new trial could not be 
granted for a part only of a case, and that the civil practice 
act provides no different rule, and, consequently, that the corn- 



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July, 1884.] Lake v. Bender. 875 

Opinion of the Court— Leonard, J. 

mon law rule must prevail. It is not necessary at this time 
to note the many changes wrought by the code as to court 
practice. It is enough to say that they are numerous and 
far-reaching. " Artiticial forms and rules are abolished and 
simple methods adopted, with a view of dealing out justice 
between the parties, regardless of any error or defect in the 
pleadings or proceedings which shall not affect their sub- 
stantial rights. It is also true that, under the common law 
practice, a new trial could not be granted in a civil case at 
the instance of one of several defendants. {Bond v. Sparky 
12 Mod. 275; Berrington' s Case, 8 Salic. 362; Parker v. 
Godin, 2 Strange 813; Bac. Abr. *' Trial'' L.) 

It was held that if the verdict was set a^ide, the ease 
must come to trial, just as it did before, againt^t all the de- 
fendants. {Sawyer v. Merrill, 10 Pick. 18 ; Brown v. Bur- 
rus, 8 Mo. 28.) The ground of the rule was stated by Mr. 
.Justice Lawrence in Jiex v. Mawbey^ 6 Term R. 640, 
where he said : '' Arguments drawn from civil cases are 
not applicable, because in those cases there is only one 
venire on the I'ecord and one assessment of damages ; but 
that is not sq in criminal cases." 

And commenting upon the rule in Bicknell v. Dorion, 16 
Pick. 483, the court said: *'This probably discloses the 
ground of the rule in civil cases, when a verdict is set aside, 
a venire facias de Jiovo is awarded, and no notice is taken of 
the first venire and the proceedings under it, and there 
would be nothing on the record to su|)port the verdict in 
favor of those who have obtained one. * * * g^t^ 
however this may be in the English courts, and in those 
courts which conform strictly to common law practice, we 
have no difficulty here, because, from tb.e earliest times, 
we have departed from that practice ; no venire is awarded 
in making up the record, and the record is made to exhibit 
a plain narrative and history of the proceedings as they 
occur." 

And the court held that it had power to set aside a verdict 
as to one defendant without disturbing it where it was in 
favor of others, although there was no statute authoiizing 



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376 Lake v. Bender. [Snp. Ct. 

Opinion of the Court — Leonard, J. 

such action. Another reason of the rule that a new trial 
could not be granted of a part of a case, was that every 
judgment was composed of an entirety of adjudication, and 
nothing less than the whole could be objected* to on appeal 
or otherwise. But, under the Code, the reason of the rule 
uo longer exists, and consequently, in a proper case, courts 
are not bound by the rule. [Lake v. Lake^ 17 Nev. 236.) 
An appeal can be taken from some specific portion of a 
judgment or order. 'Judgment may be given for or 
against one or more of several plaintiffs, and for or against 
one or more of ccveral defendants ; and it may, when the 
justice of the case requires it, determine the ultimate rights 
of the parties on each side as between themselves." 
In Lake v. Lake^ supra, we said : "Under our practice, 
dissimilar judgments may be pronounced in the same action. 
For instance, in an action upon two promissory notes, the 
final determination of the rights of the parties in the action 
may comprise a judgment in favor of the plaintiff upon one, 
and against him, and in favor of the defendant upon the 
other." 

Under the present statute of Iowa, a new triaMs defined to 
be "a re- examination in the same court of an issue of fact, 
or some i)art or portion thereof, after verdict by a jury, 
report of a referee, or a decision by the court." The 
statute also provides that '*the former report, verdict, or 
decision, or some jKirt or j>ortion thereof ^ shall be vacated and 
a new trial granted on the application of the party aggrieved, 
for the following causes: * * *" (Code of Iowa, 1873, 
sec. 2837.) Section 2849 provides that *' every final adju- 
dication of the rights of the parties in an action is a judg- 
ment, and su.ch adjudication may consist of many judgments, 
one of which judgments may determine for the plaintiff or 
defendant on the (tlaim of either as an entirety ; or, when a 
claim consists of several parts or items, such judgment may 
be for either of them on any specific part or item of such 
aggregate claim, and against him on the other part thereof ; 
or a judgment may, in any of these ways, determine on the 
claims of co-parties on the same side against each other." 



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July, 1884.] Lake v. Bender. 877 

Opinion of the Court — Ijconanl, J. 

"Any party wlio succeeds in part of his cause, or in part 
of his causes, and fails as to part, may have the entry 
in such case express judgment for him for such part as he 
succeeds upon, and against liim on the other." (Sec. 2850 ; 
and see revision for 1860, section 3121.) These provisions 
are substantially like ours on the subject of judgments, 
altliough our statute does not provide in terms, that a 
parfy who succeeds in part, may have the entry exi>ress 
judgment for liim for such part as he succeeds upon, 
and against liim on the other part. But the court m:iy 
undoubtedly instruct the jury to designate upon what issue 
they find, and also how they find upon each issue (1 Tifi'. & S. 
Pr. 566), and judgment must be entered in conformity with 
the verdict. In actions tried by the court without a jury, 
the decision may embrace findings upon each issue, and the 
judgment must be entered accordingly. Upon the subject 
of judgments the code of Iowa for 1800 was substantially 
like that of 1873. It went into efi:ect September 1, 1860. 
Prior to that time the code of 1851 was in force. The 
code last mentioned provided that " all final adjudication of 
civil actions are judgments.'' (Sec. 1814.) "Judgments 
may be rendered for or against one or more of several 
plaintifts or defendants, or the court, when practicable, 
ma}' determine the ultimate rights of the parties on each 
side as between themselves, and give judgment accord- 
ingly." (Sec. 1815.) 

It will be seen that the sections just quoted are in cftect 
like ours. The only provision that we are able to find in 
the code of 1851, upon the subject of new trials, is that 
** motions in arrest of judgment or for a new trial must be 
made within a reasonable time, and at the term of court at 
which the trial took place." (Sec. 1808.) Now, in 1859, 
when the code of 1851 was in force, the su])reme court of 
Iowa, in Woodward v. Horst, 10 Iowa 120, said : "It may 
be admitted that, as a general rule, a new trial, wdien 
granted, is awarded for the entire case, and that ordinarily, 
courts will not dispose of a case by piecemeal. And yet, 
when not attended with too much confusion or iucon- 
voL. xvm-.48 X- T 

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878 Lake v. Bender. [Snp. Ct. 

Opinion of the Court— Leonard, J. 

venience, or when it can be done without prejudice to the 
rights of parties, there is no substantial or valid objection 
to departing from the general rule. In this case there need 
be no confusion, and certainly there is no prejudice. 
Defendant admits, in his answer, both accounts, but pleads 
in avoidance. The jury found properly that this plea was 
sustained as to one count, but erred in their finding upon 
the second count. What purpose is to be gained then, by 
awarding a new trial as to a part of the case not necessarily 
depending upon, or connected with the other, and which has 
already once been properly decided?" 

(And see Dawson v. Wisne7\ ll Iowa 8 ; Berner v. Frazier^ 
8 Iowa 77 ; Zaleski v. Clark, 45 Conn. 404 ; Holmes v. 
Godwin, 71 N. C. 309 ; Merovy v. Mclntyre, 82 N. C. 
106; Peo-ple v. New York C P., 19 Wend. 118; Price v. 
Harris, 25 Eng. Com. Law, 160 ; Kent v. Wliiiney, 9 Allen 
65 ; Pation v. Springfield, 99 Mass. 635 ; Hubbell v. Bissell, 
2 Allen 201.) 

In Hodapp r. Sharp, 40 Cal. 69, the action was to re- 
cover possession of two distinct quarter sections of land, and 
for damages for its use. Plaintifi' recovered judgment for 
restitution of both quarter sections, together with two hun- 
dred and forty dollars damages. Defendants moved for a 
new trial, which was denied, and the appeal was taken from 
the judgment and order denying a new trial. The supreme 
court decided that as to the south-west quarter the plaintiff 
was not entitled to recover, and inasmuch as the record did 
not furnish the data for the apportionment, in respect to 
the quarter sections, of the damages recovered for the use 
aud occupation of the premises, the judgment would have 
to be reversed unless such damages should be remitted. 
It was also ordered "that, upon the plaintiff's remitting 
such damages, * * * the judgment for the recovery of 
the possession of the north-west quarter * * * be 
affirmed ; and that the jndgment for the recovery of the 
possession of the south-west quarter of the same section 
* * * be reversed, and the cause be remanded for a 
new trial as to the last-mentioned tract of laud." If the 



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July, 1884.] Lake v. Bknder. 879 

Opinion of the Court— Leonard, J. 

damugea liad been apportioned in the court below, it is 
plain that the court would have affirmed the judgment as to 
one tract, and reversed it and ordered a new trial as to the 
other ; and the result would have been that as to one tract 
plaintitf would have had judgment entitling him to posses- 
sion, while a new trial would have been had as to the other. 
Had the damages been apportioned, the court would have 
ordered a new trial of one cause of action, and affirmed the 
judgment as to the other. Tlie result in the lower court 
would have been precisely the same as though that court 
had granted a new trial as to the south-west quarter and 
refused it as to the other. The statute says the supreme 
court may order a new trial ; so may the district court. 
But the supreme court may order a new trial as to a part of 
a case ; then, why may m^t the district court ? What 
reason was there for compelling a litigant to go to the 
supreme court in order to get his rights as to a part of a 
case, but permitting him to get them in the trial court if 
the entire case is att*ectt9d by error? 

In considering an api)eal from an order granting or refus- 
ing: a new trial this court has the record before it that was 
before the court below, and in our decision we say whether 
or not, upon that record, the court below erred. Since 
there is nothing in the statute concerning new trials author- 
izing the conclusion, how could we say, in any case, that the 
trial court erred in granting a new trial as to the entire 
case, or an independent part thereof, when, if it had been 
done otherwise, we would have reversed its rulings and 
ordered it to proceed according to tlie order apjiealed from ? 
Our opinion is that the court below had power to grant a 
new ti'ial of the issues relating to the property alone, if the 
statement showed error in the trial thereof which materially 
allected the rights of plaintitt*. 

The court found that, at the time of marriage, plaintiflt 
was without property, and that she has not since acquired 
any by gift, devise, or descent ; that, at the time of mar- 
riage, defendant owned and possessed, in his own right, 
valuable real estate and personal property which embraces a 



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880 Lake v. Bender. [Sap. Ct 

Opinion of the Court— Leonard, J. 

large portion of the property in controversy, and which has 
yielded hirge ren-ts, issues, and profits, aggregating about 
two linndred and six tliousand dollars ; that defendant ex- 
changed a portion of said real pro[)eity, so owned by him at 
the time of marriage, for other real i)ropcrty which he now 
owns, and a portion he has, since his marriage, sold, and 
invested the proceeds thereof, together with the rents, 
issues, and [)rofits, in other property now owned by him ; 
that, since their marriage, plaintitf and defendant have 
neither jointly nor severally engaged in any profitiible or 
remunerative business out of which any of the money or 
property in controversy was acquired, and that there is now 
no common property ; that the rents, issues, and profits of 
the separate propeity of defendant, owned by him at the 
time of marriage, accruing since, after deducting therefrom 
all losses and depreciations suffered b}- defendant, aggregate 
more than the total cost of all the j)roperty acquired since 
the marriage, and more than the present total value of all the 
property in question, the title to which has been ac- 
quired by defendant since the marriage ; that all the prop- 
erty in controversy, except that which defendant owned at 
the time of marriage, has been acquired by him by purchase 
or exchange, part by actual barter or exchange for real 
property owned b}' him at the time of marriage, and all the 
balance by purchase with moneys arising from sales 
and rents of separate real estate and personal property, tolls 
arising from separate property, and interest received from 
loans of moneys that belong to defendant alone ; that at the 
time of marriage, defendant owned a toll road and bridge, 
collected tolls thereon, conducted the Lake House hotel and 
a merchandise business therein, cultivated some lands, and 
had certain moneys at interest; that after the marriage and 
until March, 1872, he conducted and maintained said toll 
road and bridge, and collected from tolls about seventy-five 
thousand dollars net; that plaintiff contributed no labor, 
advice, or assistance in the oi>eration of said road or bridge, 
or in the farming business mentioned ; that immediately 
after marriage plaintiff* and defendant commenced to reside 



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July, 1884.] Lake v. 13exdeii. 381 

Opinion of the Court— Leonard, J. 

at the hotel, where defeiulant conducted the hotel business 
until the fall of 1868, when the premises were rented until 
January, 1870, at which time defendant resumed possession 
and conducted the business thereof until the summer of 
1871 ; that during all of said times plaintift* resided with 
defendant, and contributed, by her labor and advice, to the 
business; that defendant hud his board and lodging out of 
the hotel business, and plaintitf was maintained, and her 
children by a former husband educated, therefrom ; that 
the crops raised by defendant on his own lands, up to 1868, 
were either used in the hotel or sold and the proceeds had 
by him; that in 1865 defendant kept a hotel or eatinq;- 
house at Meadow Lake, California, for four or five months; 
that he constructed certain buildins^s necessarv for lisc in 
the business, which were afterwards destroyed by fire ; 
that plaintitf labored as a cook and in serving upon the 
table, and contributed greatly to the business; that there 
was no profit in the hotel business at either place ; that 
during all of said times defendant was engaged in loaning 
money at interest, collecting interest money, renting build- 
ings and lands of liis separate estate, selling such lands, and 
investing the proceeds of such interest, sales, and rents in 
loans, purchases of other lands, and in the construction of 
buildings, and that, in these operations, plaintitt' contributed 
110 labor or assistance ; that since 1871 defendant has con- 
ducted farming operations on the Lake ranch, consisting of 
nine hundred and seven acres of improved land, of the value 
of about forty thousand dollars ; that thirty-three acres of 
this land was acquired by exchange of lands owned by 
defendant before marriage, and the balance by purchase 
since marriage. 

The evidence is undisputed that three hundred and fifty- 
four acres of this land was acquired by deed, March, 1870, 
for a consideration of four thousand two hundred and fifty 
dollars; one hundred and sixty acres, September, 1871, for 
eight hundred and fifty dollars; thirty-three acres from 
Hatch, by exchange; eighty acres by patent from the 
state, May, 1874, and forty acres, also by patent, Deeem- 



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382 Lake i\ Bexder. [Sup. Ct. 

Opinion of tlie Court— Leonard, J. 

ber, 1875, both in the name of plaintiff. The court found 
thiit this property was tlie separate estate of defendant, 
evidently upon the ground that tliey were paid for out of his 
individual funds. Large ci'ops have been raised on this 
ranch, which were fed to stock tliereon or sold, and cattle 
and horses were raised and marketed. Plaintiff and defend- 
ant resided on the ranch several years, advised together, 
and contributed their labor in their respective departments. 
Plaintiff' faithfully performed all the duties of a wife. We 
deem it unnecessary to state other findings. 

The question presented to the court below was whether, 
in law, the legal title to the whole or any part of the prop- 
erty described in the complaint was in the community or 
the defendant, and we are called upon to say whether or 
not the evidence is suflScient to support the findings. Prior 
to the statute of 1865 (Stat. 1864-65, 239) tlie property 
rights of husband and wife were governed by the common 
law. That statute only affected jn-operty subsequently 
acquired. {Darrenberger v. Haupt, 10 Nev. 46.) It follows 
that all i)roperty owned by defendant at the date of mar- 
riage, as well as that purchased by him, and the rents, 
issues, and profits of the same up to March 7, 1865, the date 
of the first statute, belonged to defendant as his separate 
estate. But it is claimed by counsel for plaintiff' that under 
that statute the rents, issues, and profits of defendant's sei> 
arate estiite, until the passage of the statute now in force, 
(Comp. Laws, 151,) became common propei'ty. The statute 
of 1865 was passed pursuant to the constitution, which pro- 
vided that ''all property, both real and pei'sonal, of the 
wife, owned or claimed by her before marriage, and that 
acquired afterwards by gift, devise, or descent, shall be her 
se|)arate property ; and laws shall be passed more clearly 
defining the rights of tlic wife, in relation as well to her 
separate proi>erty as to that held in common with her hus- 
band." Under a similar constitutional provision the legis- 
lature of California passed an act defining the rights of hus- 
band and wife, (Stat. 1850, 254,) wherein, like our statute 
of 1865, it was declared ''that all property, both real and 



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July, 1884.] Lake i\ Bender. 888 



Opinion of the Court — Leonani, J. 



personal, of the wife, owned by her before marriage, and 
that acquired afterwards by gift, bequest, devise, or deseeut, 
shall be her separate property ; and all property, both real 
and personal, owned by the husband before marriage, and 
that acquired afterwards by gift, bequest, devise, or descent, 
shall be his separate property. All property acquired after 
the marriage by either husband or wife, except such as 
may be acquired by gift, bequest, devise, or descent, shall 
be common property." But the California statute also 
provided that ''the rents and profits of the separate prop- 
erty of either husband or wife shall be deemed common 
property." This provision was left out of our statute, 
although the first part of the section of the Cahfornia act 
containing it was copied verbatim. 

In George v. Bansom^ 15 Cal. 323, the supreme court 
held that the legislature had not power, under the con- 
stitution, to say that the fruits of the property of the wife 
should be taken from her and given to her husband or his 
creditors; that the sole value of property is in its use. 
Counsel for appellant admit the correctness of that decision, 
but they say there is no such constitutional provision as to 
the property of the husband, and inasmuch as the statute 
of 1865 did not make his rents, issues, and profits separate 
estate, they belong to the community, because acquired 
after marriage, and not by gift, devise or descent. It is 
said, also, that the supreme court of California affirmed 
this theory of the law in Lewis v. Lewis, 18 Cal. 659. But 
it must be remembered that when thjit case was decided 
the statute of 1850, before referred to, was in force, except 
as aflected by the decision in George v. Hansom., It was 
the law then that the rents, issues, and profits of the hus- 
band's separate property should be deemed common proj:- 
erty. If we concede that the legislature might make the 
profits of his separate estate common property, still the fact 
remains that it did not do so, but on the contrary, ex- 
punged the very words of the California statute that pro- 
duced this result. 

Again, since under the constitution the legislature could 



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384 Lake v. Bender. [Sup. Ct. 

Opinion of the Court— Leonard, J. 

not lawfully make tlie rents, issues, and profits of the wife's 
estiite comipon property, in the absence of affirmative words 
making them sucli, the presumption is that there was no 
intention of doing so. Now, the first and second sections of 
the statute of 1865 must be construed together. If, under 
the first, the profits of the wife's separate estate belonged 
to her, then we cannot say that, under the second, they 
belong to the community. And if, under the fii-st, the 
profits of her estate belong to her, it cannot be said that a 
ditterent rule should prevail as to him, for the language is 
precisely ahke as to both. Besides, it would be unfair to 
take from one what is given to another. And, too, it is 
evident from section three that the legislature intended that 
the wife's [jrofits fiom her separate property should remain 
hers. It provided that an inventory of the wife's separate 
property-, except money in specie, should be executed and 
recorded, and thereafter a further inventory should be made 
and recorded of all other separate property afterwards 
acquired, excepting money while in specie and unconverted, 
and excepting the rents and j)rofits of her separate property 
included in the original or any subsequent inventory, if the 
same wat^ money, so long as it should remain in specie and 
unconverted. When the rents and profits of her separate 
property were converted into property other than money, 
it was her duty to record an inventory of the same ; but the 
rents, issues, and profits of her estate, while in specie, 
belonged to her without an inventory. And, under section 
five, all property belonging to her included in the inventorj', 
as well as money in specie not so included, was exempt from 
seizure for the debts of her husband. Thus we find a plain 
recognition of the wife's right to the rents, issues, and 
profits of her separate estate. We are satisfied that, under 
the statute of 1865, the rents, issues, and profits of defend- 
ant's separate estate did not become common property. 
{Williams v. McGrade, 13 Minn. 51; Wells, Sep. Prop. 
Mar. Wom., sec. 112; Glo^-er v. AlcotU 11 Mich. 482 ; Bish. 
Mar. Wom., sees. 50, 94, 632, 776.) 

It is conceded that property acquired during coverture 



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July, 1884.] Lake v. Bender. 886 

Opinion of the Court— Leonard, J. 

presumably belongs to the community. The burden is on 
the defendant in this case to overthrow this presumption, by 
proof sufficiently clear and satisfactory, to convince the court 
and jury of the correctness of his claim, as in other cases. 
Respecting the amount and character of evidence required 
to overcome the presumption mentioned, the supreme court 
of Michigan has expressed our views in Davis v. Zimmer- 
man, 40 Mich. 27, where it is said : '• Some Pennsylvania 
cases are cited, in which the court has used somewhat strong 
language respecting the evidence which sliould be required 
to make out a gift from husband and wife. Chief Justice 
Black said, in Oamher v. Gamher, 18 Pa. St. 303, 866, that 
a married woman claiming property, must show her right 
'by evidence which does not admit of reasonal)Ie doubt. ' 
This is a very strong statement, and lays down a much 
more severe and stringent rule than is applied to other 
persons. In this state no such distinction is recognized. 
Convincing proof is required, but nothing more. No doubt 
the circumstances of the relation, and the facility with which 
frauds may be accomplished under the pretense of sales or 
gifts between husband and wife, ought to be carefully 
weighed in determining whether or not a gift hfis been 
made ; but, when all are considered, the one question, and 
the only question, is whether the wife has established her 
right by a fair preponderance of evidence; if she has, no 
court has any business to require more." (And see 2 Bish. 
Mar. Wom. sees. 136, 188, 140 ; Tripner v. Abrahams, 47 
Pa. St. 229 ; lieeds v. Kahlcr, 76 Pa. St. 267 ; Earl v. Cham- 
pion, 65 Pa. St. 195 ; Glorer v, Alcott, 11 Mich. 493.) 

The court did not err in admitting the testimony of wit- 
ness Lake to show that the real consideration was other 
property given in exchange, instead of the money stated in 
the deeds from Crocker and ()^^biston. (Peck v. Brumma- 
gim, 81 Cal. 447 ; Ham^dcll ^. Fuller, 28 Cal. 37; Peck v. 
Vandenburg, 30 Cal. 11; Salmon v. Wilson, 41 Cal. 595; 
Higgins v. Higgins, 46 Cal. 259 ; Wedel v. Herman^ 59 Cal. 
516.) 

It is admitted that all property described in the complaint, 

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386 Lake v. Bender. [Sap. Ct 



opinion of the Court — Leonard, J. 



which was owned by defendant before marriage, remains 
his. Tt is equally true that property purchased with, or 
taken in exchange for, such property is his also, as well as 
the rents, issues, and profits of his separate estate. But the 
question arises, what are properly rents, issues, and profits, 
under the facts proven ? The contention in this case comes 
mainly from a difference of opinion as to the proper solution 
of this query. The subject is beset with difficulties, which 
must be met as the cases present themselves, and each must 
be decided upon its own peculiar facts. Extreme cases may 
be suggested upon both sides, in which it would be diffi- 
cult to mete out exact justice by following the theory of 
either plaintiff or defendant ; but such examples are nut 
uncommon in the law, and courts have never considered 
them sufficient to justify a departure, in an individual case, 
from well-established legal principles. We are satisfied it 
is not necessary to prove that property is, in fact, the pro- 
duct of the joint eftbrts of the husband and wife in order 
that it may be declared community estate. If it is acquired 
after marriage by the efforts of the husband alone, but not 
by gift, devise, or descent, or by exchange of his individual 
property, or from the rents, issues, or profits of his separate 
estate, it belongs to the community. Such property is 
common, although the wife neither lifts a finger nor advances 
an idea in aid of her husband. She may be a burden and a 
detriment in every way, or she may absent herself from the 
scene of his labors, know nothing of his business, and do 
nothing for him, still it is common. On the other hand, 
property acquired by either spouse in any one of the ways 
mentioned in the statute — that is to say, by gift, devise, or 
descent, or by exchange of individual property, or coming 
from the rents, issues, or profits of separate property — 
belongs to him or her, as the case may be, and the other 
has no more right to share it than a total stranger. After 
marriage it was defendant's duty to support his wife, but 
he was under no legal obligation to accumulate community 
property. He could attend to his separate estate and sup- 
port his family from that, if he was so inclined. 



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July, 1884.] Lake v. Bender. 387 

opinion of the Court — Leonard, J. 

If coramon property is acquired, the wife has her statu- 
tory rights therein, but she has no vested rights in or lieu 
upon his time or labor. If he is indolent and barely sup- 
ports the family, or if he spends his time in increasing his 
separate estate, instead of enriching the community, her 
remedy is an appeal to his better nature. The law fur- 
nishes no aid. And since the law gives to each spouse the 
rents, issues, and profits of his or her separate estate, it 
cannot be true that they become common property by 
reason, simply, of the marriage relation. But the record 
shows, and the court finds, that the plaintift* assisted, in her 
department, in carrying on the Luke Hotel business, the 
Meadow Lake Hotel or eating-house, and the Lake ranch ; 
and after the old Lake House was destroyed by fire, the 
men employed upon defendant's toll-road boarded at his 
private house, and plaintift' cooked and washed for them. 
She also advised with defendant at times about his business. 
Do these facts make tlie profits from the sources just named, 
if any there were, community estate, provided the property 
used and out of which the profits came belonged to de- 
fendant alone ? Most of the cases to which we shall refer 
upon this question involve the right of a wife to claim 
profits arising from the use of her separate estate, as against 
creditors of the husband, when they have been increased 
by his labor and skill. There are cases intimating, at least, 
that in a contest between husband and wife, where the hus- 
band has increased the income of the wife's estate by his 
labor, she might claim the entire product, although she 
could not do so as against her husband's creditors. (See 
Wells, Sep. Prop. Mar. Wom. sec. 47- ; Hockeii v. Bailey^ 
86 111. 77 ; Wilson v. Loomis, 55 111. 355 ; Skillman v. Skill- 
marf^ 13 N. J. Ch. 409.) But we think the principles of 
law that control those cases should govern this. {Farroii v. 
Nimmo, 28 Ark. 358.) Such, also, is the opinion of coun- 
sel for plaintiff. 

Lewis V. Johns^ 24 Cal. 100, shows that wheat raised 
upon land of the wife was seized under an execution 
against her husband. He had employed men, pur- 

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388 Lake v. Bender. [Sup. Ct, 

Opinion of the Court — Leonard, J. 

chased seed -wli eat, made contracts to be paid out of the 
crops, superintended the farm labor, and performed some 
himself. After referring to George v. Hansom, supra, the 
court said: "That the husband cannot, by any manage- 
ment, supervision, or labor, acquire any interest io the 
estate itself, is conceded, and, by parity of reason, he cannot 
acquire any interest in the increase, for that is hers also, 
and upon the same terms, the latter being a corollary of 
the former proposition. There is no magic in the touch or 
manipulation of the husband, by force of which separate is 
transformed into community property. If he acquires, as 
contended by respondents, any right whatever, as against 
his wife, by virtue of his supervision and laboY, it is not his 
right in the nature of a Hen on the thing supervised, or 
upon which the labor is bestowed, but merely a right to 
compensation, and his creditors could only proceed by the 
process of garnishment. In the absence of an express agree- 
ment to that effect, there is no implied obligation on the 
part of the wife to compensate the husband for his services, 
and in either case there would be only an imperfect obliga- 
tion which neither husband nor his creditors could enforce. 
The doctrine contended for would banish the husband from 
the premises of the wife, and deprive her of his counsel 
and guidance, for his presence there might bring ruin 
instead of attbrding protection." 

In Webster v. Hildreih, 33 Vt. 457, it appears that Mi-s. 
Hildreth, one of the defendants, became the owner of wild 
land by deed from her father. Hildreth and wife moved 
onto the land, and there lived until the suit. With the help 
of their children they cleared up a large part of it, erected 
buildings and made valuable improvements. The land was 
originally worth two or three hundred dollars, but at time 
of suit was valued at twelve or fifteen hundred, the increased 
value having been in part from tlie rise of the land in price, 
and i)art in the improvements. Hildreth contributed to 
the improvements by his labor and money, but during the 
whole time the title to the land was in his wife. This fact 
so api)eure(1 of record, and was generally known. The 



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July, 1884.] Lake v. Bendbr. 389 

opinion of the Conrt — Leonard, J. 



plaintift*, having a judgment against Hildreth, levied on 
seven undivided twelfths of the farm, claiming that the 
husband's labor, earnings and money had contributed to the 
imj»rovements, and made up that mueli of its value. The 
supreme court held that in the absence of an agreement, in 
some legal form, that his labor and improvement of the 
farm should vest in him some interest therein, or entitle 
him to compensation, he had no equitable claim upon the 
farm, and could claim nothing for his services, and that 
creditors had no greater right against the wife's estate than 
' her husband had. 

In Hush V. Vought, 55 Pa. St. 442, the evidence showed 
that the husband and wife lived on the hitter's farm. tShe 
took the entire management, but he assisted somewhat, her 
children doing most of the work. He generally sowed the 
grain. The trial court charged the jury that '' the labor on 
the farm was bestowed by her husband and his children^ 
and the grain, hay •and other crojis raised, were the joint 
products of such labor and the land ; and if the personal 
property now claimed by the wife was [)aid for out of the 
products, the husband had an interest in it. It cannot, 
therefore, be said to have been purchased and paid for out 
of the separate funds of the wife." Commenting upon that 
instruction, the supreme court said: "Thus the sowing of 
thiB grain, which was Jacob Rush's chief labor, minghng 
with- the tillage, carried away from Mrs. Rush not only. all 
the products of the soil (hay as well as grain), but the stock 
purchased with their proceeds, when converted by Mrs. 
Rush into money or bartered. A deduction which leads to 
such wholesale destruction of the wifejs rights of property 
cabinet be founded in correct principle. The error arose 
from an oversight of the true foundation of the wife's right. 
This is not the case of property purchased during coverture, 
where the ]>rice of it, presumptively, if not actually, came 
from the husband. But here, the title to the ])ro(lncts 
grows out of the title to the land itself. The ownership of 
the farm carries with it at law, and in equity, the right to 
itsf products. No change can take |)lace in the title to the 



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390 Lake v. Bender. [Sup. Ct 

Opinion of the Court — Leonard, J. 

. fruits of the soil, without the owner parts with his title or 
possession, or permits its cultivation for the benefit of 
another. But the labor of others for the owner, though 
mingling in the production, creates no title to the products. 
The owner may be a debtor for the labor which tills his 
soil, or that labor may be given without a required equiva- 
lent, or for an equivalent in maintenance, which is con- 
sumed in its use ; but this gives no usufruct or ownership 
in the product of the tillage. It matters not, therefore, 
whether the labor, when thus rendered, be that of the hus?- 
band or another ; without contract for the product, or cul- 
tivation by the husband for himself, it confers no title or 
usufruct, ' * 

(To the same effect are Hanson v. Milieu^ 55 Me. 188 ; 
Holcomb V. Savings Bank, 92 Pa. St. 342 ; Silveus' Ex'rs 
v. Porter, 74 Pa. St. 451 ; Wieman v. Anderson, 42 Pa. St. 
317 ; Manderbach v. Mock, 29 Pa. St. 46 ; Hamilton v. Booth, 
55 Miss. 61 ; Bongard v. Core, 82 III. 19*; Garvin v. Gaebe, 
72 III. 448 ; Coon v. Migden, 4 Colo. 283 ; Russell v. Long, 
52 Iowa 250 ; Dayton v. Walsh, 47 Wis. 117 ; Feller v. 
Alden, 23 Wis. 303 ; Noe v. Card, 14 Cal. 607 ; Mclniyre 
V. Knowlton, 6 Allen 566 ; Knapj) v. Smith, 27 N. Y. 279 ; 
Abbey v. Deyo, 44 N. Y. 348 ; Gage v. Dauchy, 34 N. Y. 
295 ; Whedon v. Champlin, 59 Barb. 65 ; Buckley v. Wells, 
33 N. Y. 520 ; Picquet v. Swan, 4 Mason 455 ; Wells* 
Sep. Prop. Mar. Wom. sees. 113, 162, 176.) 

In the case of Buckley v. Wells, supra, the property in 
question consisted of a stock of goods in a countrj' store, of 
which the wife was the- sole proprietor. The husband con- 
ducted the business iaher behalf in the name of " E. Smith, 
Agent,*' and nominally, if not really, for her as his principal. 
The entire capital was contributed from her separate estate, 
except money borrowed in the name of ''E. Smith, Agent,'* 
and the profits accruing from the use of such capital. The 
business was carried on for several years. The wife took 
no part in the management of the store. The point was 
made that the goods belonged to the husband, and were 
liable for his debts, since his labor entered into and formed 



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Jaly, 1884.] Lake v. Bender. 391 

Opinion of the Court — Leonard, J. 

a part of the property and increased its value. The court 
held that the goods belonged to the wife. In Abbey v. Deyo, 
supra^ plaintiff, the wife, was engaged in the business of 
buying and selling flour, etc. Her husband was her agent, 
and as such, bought and sold and cjirried on the business for 
her. The decision of the court of appeals was the same as 
in Buckley v. Wells. In Whedon v. Champlin, supra, plaint- 
iff", the wife, owned a boat and carried on the business of 
boating. In Weiman v. Anderson^ supra, the proof was 
clear that the stock of goods in Anderson's store, in January, 
1858, became the separate property of his wife by gift from 
her brother. Those goods were sold and others purchased 
in her name, so that in November, 1859, when plaintiff* 
levied his execution, issued upon a judgment against the 
husband, few, if anj-, articles of the original goods remained. 
The stock levied on was an entirely separate and distinct 
stock from that given to Mrs. Anderson, although it was 
purchased with the proceeds of the former stock. Mrs. 
Andereon did not do business as a sole trader. Both hus- 
band and wife attended to the business. Most of the pur- 
chases were made in the name of the wife, but the husband 
continued to attend to the store. He made sales and 
received moneys. The Pennsylvania statute then in force 
declared that property which accrued to a married woman 
should be owned, used and enjoyed by her as her separate 
property. The court said: ''The use and enjoyment 
here referred to must be such as are consistent with the 
nature and kind of property. A store of liquors and cigare 
cannot be used and enjoyed in the same manner as house- 
hold furniture. They are merchandise, and it is the nature 
of merchandise to be sold and exchanged. When, there- 
fore, the statute authorizes married women, to own, use and 
enjoy merchandise as their separate property, it legalizes 
trade by them ; it makes them merchants." 

In Mavderbach v. Mock, supra, the wife bought livery 
stock on credit, rented a stable, and carried on a livery 
business in her own name. Her husband and children 
attended to the stable, taking care of the horses and 

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392 Lake ?'. Bender. [Snp. Ct. 



opinion of the Court — Leonard, J. 



vehicles, but she controlled the business. The court sus- 
tained her claim to the property. In most of the other 
cases cited it was l\eld tliat the title to crops followed the 
title to tlie land, although they were produced by the joint 
efforts of the husband and wife, or by the husband alone, if 
the wife owned the land. But under our statute the sole 
question is, whether property claimed by either spouse 
belonc^ed to him or her at the time of marriage, or has sinco 
been acquired by gift, devise, or descent, or has come froni 
the rents, issues, or profits of separate estate. And in this 
or any other case, if profits come mainly from the property, 
rather than the joint efforts of the husband and wife, or 
either of them, tliey belong to the owner of the property, 
althougii the labor and skill of one or both may have been 
given to the business. On the contrary, .if profits come 
mainly from the efforts or skill of one or both, they belong 
to the community. It may be diflSicult in a given case to 
determine the controlling question, owing to the equality of 
the two elements mentioned, but we know of no other 
method of determining to whom the profits belong. In the 
use of separate propert3' for the purpose of gain, more or 
less labor or skill of one or both must always be given, no 
matter what the use may be ; and yet the profits of property 
belong to the owner, and in ascertaining the party in whom 
the title rests, the statute provides no means of separating 
that vvhidi is the product of labor and skill from that which 
comes from the property alone. In this case we are not 
burdened with the only question involved in the case of 
Glover v. Alcoit, H Mich. 480, wherein the court siiid: 
'' But it does not necessarily follow that because the statute 
has secured to her (the wife) the income and profits of her 
separate proi)erty, it has therefore authorized her to engage 
in any and every kind of general business which might be 
carried on with it or upon it^ and give her the protit-s and 
income of the husoiess as well as the property. Here is a 
distinct element enteriiig into the product, beyond that of the 
income of her separate property." 

In that case the only question was whether the wife had 



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Jiih', 1884.] Lake v. JJexder. 893 

Opinion of the Court — Leonard, J. 

legal capacity to carry on the general business in which she 
was engaged ; while here, it cannot be doubted that defeni- 
ant had that power. In relation to the decision in Vhe case 
referred to, as well as in Glidden v. Ihylor, 16 Ohio St. 509, 
and similar decisions, we content ourselves with u reference 
to Mr. Bishop's criticism at section four hundred and sixty- 
five of volume two of his work on the Law of Married 
Women. The old hotel, with its furniture, including the bar 
and its fixtures, belonged to defendant. The new one was 
built from the proceeds of his separate property. Part of 
the time they were rented, and it is admitted that the rents 
belonged to him. At other times he carried on the busi- 
ness himself. In either case, if there were profits, they 
were the result of the ordinary use by him of the jiroperty 
belonging to his sejiarate estate. [EaUtte of Mif/r/his^ 3 \V. C. 
R. 358.) Having the hotel, he was obliged to rent it or run it 
himself. If he could make more from it by one use than 
another, surely there was no legal incapacity to prevent him 
from using it in the most profitable way ; and the profits of 
the business belonged to him, if they came mainly from the 
property rather than from his personal ettbrts, or those of 
himself and wife. Any other conclusion would compel a 
husband, under certain circumstances, to remain idle, or 
make him divide profits which the law gives to him alone. 
Without further discussion, our opinion is that the rents, 
issues and f)rotits which accrued from the toll road and 
bridge, the Lake House and the Lake ranch, belonged to 
defendant. Such profits, if any there were, came nuiinly 
from the ordinary use of his individual property. The 
Meadow Lake venture was in 1865-G6. Prior to that time 
there had been no community business in the sense that the 
proceeds thereof belonged to the community. Defendant 
went there to keep a hotel. Whatever expense was 
incurred in the beginning must have l)een borne by him 
out of his separate finids. He carried on business there 
five or six months, and during the time built a hotel or 
boarding house. The record fails to show the extent of the 
outlay or the amount of business done. We are therefore 

Vol. XVIII— 50 . 

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394 Lake v. Bender. [Su\\ Ct. 

Oviirinn of the Court — Leonard, J. 



unable to say tliat the profits belonged to defendant. He 
testified, however, that "the hotel there made no money ; 
we came out about even, owing to the fire.'* From this it 
is argued that, i)rior to the fire, they must have made 
money, and that if any property was purchased with such 
profits, it belonged to the community. Defendant advanced 
money or obtained credit for the business, and received the 
proceeds. The building of the hotel was as much a legiti- 
mate expense chargeable to the business, and to be paid 
from its proceeds, as was the cost of supplies or the wages 
of hired help. Defendant had as much right to repay his 
advances, or satisfy any indebtedness incurred by him for 
the business, as he had to pay any other demand. The 
advances were made, or the indebtedness was incurred, for 
the business, and it is fair and proper that they should be 
paid from the [)r()ceeds. The meaning of defendant's testi- 
mony is that, the proceeds of the business were about us 
much as the entire expense, including the cost of i)roperty 
burned ; that by reason of the fire there were no profits ; 
in other words, that the property burned, represented the 
profits. By reason of the Mciidow Lake enterprise defend- 
ant at no time had more money to invest in property than 
he had before engaging in it, or than he would have had if 
it had not been undertaken. If we are correct so far, it 
cannot be said that the court erred in its. findings as to the 
balance of the property in controversy. 

Ln view of the result now reached, it is urged by counsel 
for appellant that, this court may and should order a division 
of defendant's sei)arate property. After divorce granted to 
plaintift', the law imi)oses upon defendant the duty of support- 
ing her according to his ability and condition in life. The 
court allowed plaintiff one hundred and fifty dollars a month 
for herself and fifty dollars a month for the child, and retained 
jurisdiction to increase the allowance at any time upon 
proper showing. We deem it unnecessary to decide, in this 
case, whether or not, upon graniing a divorce on the ground 
of cruelty, courts have power to divest the husband of the 
title to his separate estate. The division of property, by 



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July, 1884.] Lake i\ Bender, 395 

* Opinion of Hawley, C. J., dissenting. 



the statute, is left to the legal discretion of the trial court, 
and this court ought not to interfere unless the discretion 
given has been abused. Upon the evidence before us we 
cannot so say. It ai)pearing by the records of this court 
that defendant, M. C. Lake, has died t^ince the taking of 
the appeal in this case, and that by order of the court, C. 
T. Bender, administrator of his estate, has been substituted 
as defendant and resi)ondent in the place of said deceased, 
the said C. T. Bender, administrator, is hereby substituted 
herein as party defendant and respondent, and the judgment 
and order appealed from are affirmed. 

Hawley, C. J., dissenting: 

I agree with the conclusions reached by the court that the 
conii: below had the power, and it was its duty, to grant a 
new trial of the issues relating to the property rights of the 
parties, if there was any error which materially aftected 
the rights of the plaintiff; that all property owned by the 
defendant at the time of his marriage, and all property 
which has since been acquired with funds derived from the 
rents, issues and |)rofits of such property, and all property 
acquired by an exchange of pro[>erty owned by him at the 
time of his marriage, is his separate property. But I am 
unwilling to give my assent to the proi)osition that the 
profits, if any, derived from the hotel and saloon business, 
in which the defendant was engaged, would be his se[)arate 
property. I am of ojiinion that the profits, if any, made in 
the hotel and saloon business would belong to the com- 
munity. There is a distinction that must be kept constantly 
in view between a business which does not, necessarily, 
derive its profits from the fact of the ownership of the 
property in which it is conducted, and a business which 
depends entirely for its i)rofits u[)on the fact of the owner- 
ship of the property. If the owner rents a house, the 
money collected for the rent belongs to him because of his 
ownership of tlie property. The profits from the property 
in such a case do not, necessarily, depend upon the eftbrts or 
skill of either spouse,* although some labor would be 



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396 Lake v. Bender. [Snp. Ct. 



Opinion of Hawlcy, C. J., dissenting. 



required. If, instead of renting the house, the owner 
thereof enijaires in a business which is in a sve&t descree 
dependent Upon the skill and labor of the parties, or either 
of tliein, the profits (or a portion of them, at least) realized 
from that business would be community property. 

Several authorities are cited to sustain th« proposition that 
the fact that the pro[)erty was acquired by the joint ettbiis 
of tiie husband and wife does not necessarily make it com- 
munity property. This is true with reference to cases 
where the accumulations of property were derived from con- 
ducting and carrying on the farming business, and other 
business of like character. In such cases it is almost uni- 
versally held that tlie crops growing upon and produced 
from lands which are the separate property of the wife, do 
not become community property by the mere fact that the 
husband gave his time, labor, and- skill in the production 
thereof. Why? The reason given is that, in the absence 
of any agreement to tlie contrary, the title to the products 
belongs to the owner of the land; that the ownership of a 
farm necessarily carries with it the right to the products 
grown thereon. In such a case the skill or labor of either 
spouse has nothing to do with the question of the ownership 
of the crops. It is also held in many cases, upon the same 
reasoning, that the increase of personal property follows the 
ownership. In Jiiish v. Vougkt the court of common pleas 
was of ojiinion that the fact that the labor on the farm was 
bestowed by the husband and his children, necessarily gave 
the husband an interest in the products of the soil ; but the 
supreme court took a different view, and said that the error 
of the court below arose from an oversight of the true 
foundation of the wife's right. "This is not the case of 
property purchased during coveyture, where the price of it, 
presumptively, if not actually, came from the husband. 
But here the title to the products grows out of the title to 
the land itself. The ownership of the farm carries with it, 
at law and in equity, the right to its products. No change 
can take place in the title to the fruits of the soil without 
the owner parts with his title or possession, or permits its 



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July, 1884.] Lake i\ Bender. 397 

Opinion of Hawley, C. J., dissenting. 

cultivation for the benefit of another. But the labor of 
others for the owner, though minor]ing in the productit^n, 
creates no title to the products. The owner may be a 
debtor for the labor whi(;h tills his soil, or that labor may 
be given without a required equivalent, or for an equivalent 
in maintenance which is consumed in its use, but this gives 
no usufruct or ownership in the product of the tillage. It 
matters not, therefore, whether the labor, when thus 
rendered, be that of the husband or anoth-er; without a 
contract for the product or cultivation by the husband for 
himself, it confers no title or usufruct.'* (55 Pa. St. 443.) 
This is the key-note of the entire decision. It is the 
reasoning upon which the opinion is based, and the ground 
upon which the conclusion is reached. The authorities 
cited are all alike. They declare that the title to the crops 
follows the title to the land, even if produced by the joint 
labor of both husband and wife, or by the labor of the hus- 
band alone, if the wife owns the land ; that the care, con- 
trol, and management by the husband of his wife's prop- 
erty, and his labor upon it, does not change the title to the 
land. Thus, it is said, *'A husband may devote his time 
and skill to the management of his wife's property and the 
products will belong wholly to the wife, because they are 
but the accretions of her property^ and he has a right to give 
her his labor." (Hamilton v. Booths 55 Miss. 62.) The 
fact that her husband may have done some work about 
raising the crops *' Joe.9 7iot affect her title to the property.'' 
[Garvin v. Gaebe, 72 111. 448.) "The right to the profits 
and natural increase of tangible personal property is incident 
to and results from the ownership.'' {Williams v. Mc Grade ^ 
13 Minn. 52.) But the princi[)le upon which these and 
kindred cases were decided does not apply to cases where 
a business is conducted, the profits of which are derived by 
means of the joint labor and skill of the husband and wife, 
or either of them, independent of the title to the property. 
It does not apj/ly to a business carried on in the wife's name 
with her money, where "the profits arose in part from his 
time and skill." So held in relation to the business of 



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398 Lake v. Bender. [Sup. Ct. 

Opinion of Hawley, C. J., dissenting. 

buying and sliipping grain and stock, {Wort7nanv. Pricey 
47 III. 23,) the lumber business, {WilsoJi v. Loomis, 55 111. 
355,) and the foundry and machine business, {Glidden v. 
Taylor, 16 Ohio St. 509.) 

In Woriman v. Price the court said : '* We have no hesita- 
tion in saying that if she advances capital to her husband, 
with which he engages in trade, such capital and its fruits 
ill the business will be subject to the husband's debts, even 
though he may claim to be acting as his wife's agent, and 
doing business in her name.** Referring to a former case, 
whore the court liad said the husband might act as agent 
for his wife, the court said this simply meant ''that he may 
act as her agent for a [»articular transaction, or, generally, 
for the control of her property or the investment of her 
funds. He may lease her property and collect the rents, or 
invest her money, or change the character of her invest- 
ments, if authorized by her, and he may dc this without 
subjecting her jjroperty to his debts. But we did not say 
* * * that she could make him her agent for the [nir- 
pose of engaging in trade, to be managed by iiim, and to 
which all his time and energy might be devoted, and that 
the property embarked in such trade and its profits would 
be beyond the reach of his creditors. Such is not the law. " 

In Glidden v. Taylor the court said : "Disrobing, then, 
the transactions of all matters of form, and looking at the 
naked facts, it appears that Mr. Taylor, being skilled in 
the business, establi bed a manufactory for the manufacture 
and repair of various kinds of machinery, which was con- 
ducted under his sole charge for several years ; that under 
his energetic, skillful and i)rudent management the business 
was profitable ; that, after ap[»Iying so much of the profits 
as was necessary to kecj) up the establishment, he applied 
the remainder to the [)urchase, in his wife's name, of tlie 
real estate described in the petition ; * * * ^^^^^ ^lj^ 
entire accumulations from the business, above ex]»enses, 
amounted to six or seven thousand dollars; and that in 
establishing and conducting the business he had used the 
money of Mrs. Taylor, his wife. The foregoing is the sub- 



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July, 1884.] Lake v. Bender. 899 

Opinion of Hawley, C. J., dissenting. 



stonce of the transaction ; and the question is whether the 
title of Mrs. Tsiylor to the property thus acquired is, in 
equity, uninipeuchable by the i)laintitts, who are nntecedent 
creditors of the husband. The property in controversy can, 
iv no just sense, be said /o be eilher the income, increase or 
profits of the money s^iven to Mrs. Taylor.** 

In New Jersey, the court, in deciding that the wife is 
entitled to the rents and products of her farm or other prop- 
erty, and the products of the labor of herself and minor 
children, distinguishes these from the proceeds of trade 
carried on by her with her separate pro[>erty. (Johnson v. 
Vaa, 14 N. J. Eq. 429 ; Quidori v. Pergcaux, 18 N. J. Eq. 
480.) 

In Quidort v. Pergeaux the court said: "The law was 
intended to prote<tt tlie property* and earnings of a married 
woman, and not the propej'ty or earnings of her husband, 
against his creditors ; and when, as in this case, they mix 
up the earnings of the wife with those of her husband, so 
that they cannot be separated, the husband cannot make a 
clear, distinct gift of her own earnings to the wife, and they 
remain, as at common hiw, his pro[)erty." 

Numerous other cases might be cited, but the above are 
sufficient to show that a distinction, such as I have stated, 
exists. This distinction should not be lost sight of in apply- 
ing the principle of law to the special facts of the (!a8e. 
The profits, if anj-, of the hotel and bar business would 
come in part from the fact of ownershi[) of the property in 
which the business was conducted ; but the success of the 
business would, in a greater degree, depend upon the tact, 
time, skill, labor, and ettbrts of the husband or wife, or 
both. In my opinion, the evidence in this case does not 
justify the findings of the court that no profits were realized 
from the hotel and saloon business conducted by the defend- 
ant and his wife. It is true that the defendant testified in 
general terms that the Lake House, as conducted by him, 
"did not pay expenses;" that "the hotel did not make 
anything." Why? When the testimony is carefully re- 
viewed, it will be ascertained that the hotel business, in the 



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400 Lake v. Bender. [Sup. Ct. 

Opinion of Hawley, C. J., dissenting. 

Opinion of the defendant, was conducted for the benefit of 
his toll- road, and hence, in hid estimation of recei[)ts, he 
gives the toll road, instead of the hotel, the credit of all the 
profits. With reference to the property purchased after the 
marriiige, the defemlant testified as follows : ''In making 
purchases of property which I have purchased since my mar- 
riage with plaintift', I did not borrow any money, but used 
my own money." He further testified that when the^- 
were married he was possessed of considerable property, 
which afterwards became of great value, and from which 
he derived large sums of money, and that at the time of his 
marriage his wife had nothing but her clothes. The infer- 
ence to be drawn from this testimony is that the property 
purchased after his marriage was acquired by his separate 
means; but it is questionable, to say the least, whether it 
is, independent of the question of profits in the hotel busi- 
ness, of so positive, clear, and convincing a character as to 
overcome the presum[.>tion of the law that all property 
acquired during coverture is community property. 

In Schmeliz v. Garey, 49 Tex. 60, the court decided that 
the mere fact that at the time of the marriage the husband 
had considerable money and. the wife had nothing; that 
after the marriage the parties lost money — without ex- 
plicitly tracing the purchase money or consideration to the 
separate property of the husband — will not rebut the 
statutory presumption that property purchased during the 
marriage is community property. Winterv, Walker, 37 Pa. 
St. 156, is substantially to the same efl:ect. But, be that as 
it may, it is api)arent that defendant's testimony in this 
resi^ect is based upon his assertion that the hotel business 
did not make any money, and hence his testimony upon 
this point must be considered subject to the question whether 
or not there were any i)rofits derived from the hotel business. 
I am of opinion that the testimony shows that there might 
and would have been a profit in that business if it had been 
credited with the business it transacted. If there were any 
profits legitimately arising from the hotel and saloon business, 
the money was mingled with the receipts from the toll road, 



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Joly, 1884.] Lakb v, Bendbr. 401 



Opinion of Hawley, C. J., dissenting. 



and from the rente, issues and profits of defendant's separate 
property, and the receipts of money were so blended 
together as to prevent the comrannity property, or the 
amount of it, from being traced. It would, therefore, be 
impossible to tell what proportion of the community funds, 
or the funds of defendant's separate estate, was thereafter 
used in the purchase of other property, and the result would 
be that the property so purchased should be treated as com- 
munity property. 

In Mef/er v. Kinzer^ 12 Cal. 251, the court said: "The 
statute proceeds upon the theory that the marriage, in 
respect to property acquired during its existence, is a com- 
munity, of which each spouse is a member, equally con- 
tributing, by his or her industry, to its prosperity, and 
possessing an equal right to succeed to the property after dis- 
solution, in case of surviving the other. To the community 
all acquisitions by either, whether made jointly or separ- 
ately, belong. No form of transfer or mere intent of par- 
ties can overcome this positive rule of law. All property is 
common property, except that owned previous to marriage, 
or subsequently acquired in a particular way. The pre- 
sumption, therefore, attending the possession of property 
by either, is that it belongs to the community ; exceptions 
to the rule must be proved. * * * This invariable pre- 
sumption which attends the possession of property by either 
spouse during the existence of the community, can only be 
overcome by clear and certain proof that it was owned by 
the claimant before marriage, or acquired afterwards in one 
of the particular ways specified in the statute, or that it is 
property taken in exchange for, or in the investment, or as 
the price of, the property so originally owned or acquired. 
The burden of proof must rest with the claimant of the 
separate estate. Any other rule )vould lead to infinite 
embarrassment, confusion and fraud. In vain would credi- 
tors or purchasers attem[>t to show that the particular i)rop- 
erty seized or bought was not owned by the claimant before 
marriage, and was not acquired by gift, devise or descent, 
or was not such property under a new form consequent 
Vol. XVIII— 51 

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402 Lake v. Bender. [Sup. Ct. 



Opinion of the Court — Leonard, J., on rehearing. 

upon some exchange, sale or investment. In vain would 
they essay to trace through its various changes, the disposi- 
tion of any separate estate of the wife, so as to exclude any 
blending of it with the particular property which might be 
the subject of consideration." 

I am of opinion that the judgment and order appealed 
from should be reversed. 

By the Court, Leonard, J., on rehearing : 

A rehearing was granted in this case upon that poi*tion 
of the decree directing the payment of one hundred and 
fifty dollars monthly, to plaintiff, during her lifetime, or so 
long as she should remain unmarried, and making the same 
a charge and lien upon certain real estate, the separate 
property of the deceased, M. C. Lake ; and in the order we 
invited argument touching the correctness of the decision 
in Wuesi v. Wuest, 17 Nev. 221. 

In that case we held that, under the statute and upon the 
facts, the court did not err in awarding all the property of 
the husband, of about the value of one thousand five hun- 
dred dollars, to the wife for her support. There was noth- 
ing in the record showing the value of the use of the prop- 
erty, or that its use would support her. The utmost extent 
of the decision was to the effect that, in an action of divorce 
for extreme cruelty, the court may award all of the guilty 
husband's property to the wife, if it is necessary for her 
support. That decision does not conflict with our conclu- 
sions in this case, and it is, therefore, unnecessary to con- 
sider it further. 

It is the law of this case that, all the property described 
in the complaint was the separate estate of Lake. It came 
mainly from the property owned by him before marriage, 
although it was increased by the labor and skill of both 
spouses. In law the property was acquired through hira, 
and in disposing of it, he was entitled to a decree appro- 
priate to cases where an innocent wife obtains a divorce on 
account of the cruelty of her husband, where there is no 
community property-, but a large amount of separate prop- 



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July, 1884.] Lake v. Bender. 403 

Opinion of the Court— Leonard, J., on rehearing. 

erty belonging to him. The facts that both plaintiff and 
Lake labored hard, and that the result of their labor was 
an increase of the latter's separate property would not have 
justified the trial court in making a disposition of the prop- 
erty different from what might have been made if there 
had been no increase on account of the labor of one or both, 
save that, in providing for her support, the facts mentioned, 
with others, were proper subjects for consideration. 

It is not claimed that, under the statute, the court was 
obliged to award to plaintiff' a portion of the property in 
question, or a sum in gross ; but it is urged that the prop- 
erty could have been divided, that it ought to have been, 
and that in making the. order for a monthly payment of 
one hundred and fifty dollars, the court abused its discretion. 
A close examination of our stiitute touching the division of 
property in divorce cases enables us to realize the truth of 
Mr. Bishop's remarks when he says: "The popular igno- 
rance, even in the legal profession, of the law of marriage 
and divorce, has, in times not long past, been so dense as 
almost to exclude from the legislation on this subject its 
proper forms. Largely the statutes contain expressions and 
provisions of whose meanings, and especially of whose con- 
sequential eftects, their makers pretty certainly had no clear 
idea whatever. Instead of consistency and verbal propriety, 
they abound in absurdities. They are often a chaos.'' 
(Bishop on Marriage and Divorce, vol. 1, sec. 89.) Still it 
is our duty to interpret these laws as we find them, accord- 
ing to well established rules. 

In the present case there are two rules of great import- 
ance, viz.: All the statutes upon the subject in hand must 
be construed together as parts of one whole ; and when 
there are general and specific provisions in a statute which 
are apparently conflicting, the latter, as a rule, qualify and 
limit the former. Says Mr. Bishop in his valuable work on 
Written Laws, at section sixty-four: '^ Where there are 
words expressive of a general intention, and then of a par- 
ticular intention incompatible with it, the particular must 
be taken as an exception to the general, and so all parts of 



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404 Lake v. Bender. [Sup. Ot. 

Opinion of the Court— Leonard, J., on rehearing. 



tlie act will stand. And, as a broad proposition, general 
words in one clause may be restrained by the particular 
words in a subsequent clause of the same statute. This 
doctrine applies even to statutes enacted at different dates." 
And see sections 112 a, 112 b and 156, same volume. 

We do not deem it necessary to consider what would have 
been a jiroper construction of sections twenty-five and 
twenty seven of the statute of 1861 in relation to marriage 
and divorce, prior to the statutes of 1865 and 1873 defining 
the rights of husbands and wives, and prior to the amend- 
ment of section twenty-seven in 1865. (See Stat. 1861, 98 ; 
Stat. 1864-5, 239 ; C. L. sec. 151, ei seq, and sec. 220.) 

It is true that when the stattite of 1861 was passed the 
common law in relation to husbands and wives was in force, 
and counsel for appellant insist that sections twenty- five and 
twenty-seven should now receive the same construction that 
should have been placed upon them prior to the passage of 
the statutes defining the rights of husbands and wives. 
Our opinion is that they must be construed according to 
our present condition, and'as much as possible in harmony 
with all laws affecting the subject under consideration. 

It is just as much the duty of courts granting divorces 
now, to ''make such disposition of the property of the 
parties as shall appear just and equitable," as provided by 
section twenty-five, keeping in view the limitations placed 
upon that section by section twenty-seven, and by section 
twelve of the act defining the rights of husbands and wives, 
as it was before the community system was adopted ; but 
in making such disj>08ition, consideration must be given to 
our altered condition. For instance, section twelve of the 
statute of 1873 defining the rights of husbands and wives 
provides that, "in case of dissolution of the marriage by 
decree of any court of competent jurisdiction, the commu- 
nity property must be equally divided between the parties, 
and the court granting the decree must make such order 
for the division of the community property, or the sale and 
equal disposition of the proceeds thereof, as the nature of 
the case may require ; provided^ that when the decree of 



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July, 1884.] Lake i?. Bender. 405 



Opinion of the Courtr— Leonanl. J., on rehearing. 



divorce is rendered on the ground of adultery or extreme 
cruelty, the party found guilty thereof is entitled to such 
jiortion of the community property as the court granting 
the decree may, in its discretion, from the facts in the case, 
deem just and allow ; and such allowance shall be subject 
to revision on appeal in all respects, including the exercise 
of discretion, by the court below.'' 

It is evident that the section just quoted controls' the dis- 
position of the community property, although section 
twenty-five has not been amended or repealed in terms. 

And if it is necessary to do so, in order to make a just 
and equitable disposition of the property of the parties, it 
is equally incumbent upon courts to consider the fact that 
now all property of husbands and wives is held in common 
or belongs solely to one or the other. 

The property in question having been the separate prop- 
erty of Lake, section twelve above quoted was inapplicable, 
and the power and duty of the court below depended upon 
sections twenty- five and twenty-seven. (C. L. 218, 220.) 

Sections twenty-five and twenty-seven are as follows : 

Section 25. "In granting a divorce the court shall also 
.make such disposition of the property of the parties as shall 
appear just and equitable, having regard to the respective 
merits of the parties, and to the condition in which they 
will be left by such divorce, and to the party through 
whom the property was acquired, and to the burdens 
imposed upon it for the benefit of the children. * * *" 

Section 27. "When the marriage shall be dissolved by 
the husband- being sentenced to imprisonment, and when a 
divorce shall be ordered for the cause of adultery committed 
by the husband, the wife shall be entitled to the same pro- 
portion of his lands and {)roperty as if he were dead*; but 
in other cases, the court may set apart such portion for her 
support, and the support of their children, as shall be 
deemed just and equitable." * * * 

This section was amended in 1865, when it was changed 
so us to read, "but in other cases the court may set apart," 
etc., thus giving the court wider discretion than it possessed 
under the original section. 

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406 Lake i\ Bender. [Sup. Ct. 



Opinion of the Ck)urt— Leonard, J., on rehearing. 



It may be admitted for the purposes of this case, as 
claimed by counsel for appellant, that under section twenty- 
five alone, it might be held that the legislature intended its 
application to all property rights existing in either spouse 
at the time of granting the divorce ; but section twenty-five 
is limited by section twenty-seven, and the result is that, 
in cases like the one under consideration, the former, 
which expresses the general intention of the legislature, 
must give way to the latter which expresses the legislative 
intent in specified cases. (See Bishop on the Written 
Laws, above cited.) It was the court's duty to make a just 
and equitable disposition of the property, but in so doing it 
had to be governed by section twenty-seven, because it was 
just such a case as that section made special provision for. 
It would hardly be claimed that, when the marriage is dis- 
solved by the husband being sentenced to imprisonment, 
or for his adultery, the court could award the wife either 
more or less of his property than she would be entitled to 
receive if he were dead. Then why can it be said that, 
''in other cases," the court may do more than the statute 
says may be done ? When the statute declares that in case 
of a divorce for extreme cruelty the court "may set apart 
such portion of his property for her support and the sup- 
port of their children, as shall be deemed just and equi- 
table,'' what authority exists for awarding more? 

It will be noticed that the word '' support " is used in the 
same sense in relation to the wife and their children. Cer- 
tainly the legislature did not intend to set apart or award 
his property to the wife for their children, or to the children 
direct, except such as might be proper and requisite for 
their supi)Ort, including education, during their minority. 
Indeed beyond that there was no legislative i>ower. (Fitch 
V. Cornell, 1 Saw. 170.) 

In our opinion the intention to limit the disposition of 
his property to her proper support in cases like the present 
is equally manifest. 

If the statute provided only that the court might set 
apart so much of the husband's property as might be 



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July, 1884.] Lake v. Bender. 407 



Opinion of the Court — Leonard, J., on rehearing. 



necessary and proper for the education of their children, it 
could not be held' that any sum beyond what might be 
needful for the purpose mentioned could be taken from 
him. 

It was the court's duty, then, to set apart such portion of 
the property in question for appellant's support as under the 
circumstances was just and equitable. If it did so, its dis- 
cretion was not abused, and this court has no right to dis- 
turb the order. If it did not, our duty is to see to it that 
the law is carried out in letter and spirit. "Support " is a 
word of broad signilication. It includes everything, neces- 
sities and luxuries, which a person in appellant's situation 
is entitled to have and enjoy. Upon receiving a divorce on 
account of Lake's misconduct, she is entitled to a support 
from his property during her life, or so long as she shall 
remain unmarried. (O'Hagan v. Executor of 0' Hayan^ 4 
Clarke (Iowa) 516 ; C. L. sec. 220.) 

An order directing the payment of a specified sum, 
monthly, and making it a charge and lien upon real ^estate 
of Lake is tantamount to setting apart so much of his 
property. That amount is appropriated to her use for her 
support. Conceding that specific property might be set ofl^ 
and awarded to her in fee, if such an order was necessary 
for her support, it does not follow that it must or ought to 
be done in this case. At any rate, admitting that the hus- 
band may be divested of his title in a proper case, there is 
nothing before us to show that appellant's support is less 
secure, according to the method adopted by the court, than 
it would have been if the aggregate amount and value of her 
allowance had been set apart to her in specific property. 
No complaint is made because the property securing the 
allowance is insufficient. 

In proper cases the statute of Illinois permits the court to 
decree a sum in gross for alimony or a part of the husband's 
real estate in fee to the wife. Yet, in several cases where 
such was the method adopted, the decree was reversed. 

In Ross V. Ross^ 78 111. 404, the court said : "The mode 
of allowance of alimony in vesting the fee of real estate in 



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408 Lake v. Bbndbr. [Sup. Ct. 



Opinion of the Court — Leonarcl, J., on rehearing. 



the wife is objectiouable. While such pmctice has, in 
some instances, been sanctioned by this 'court, it has been 
under special circumstances. In Vo7i (rlahn v. Von Glalm^ 
4^ 111. 136, and Keating v. Keating^ 48 111. 241, such pi-ao 
tice was disapproved of, and it was said, that unless there 
are special reasons to the contrary, an annual allowance, to 
be held under the control of the court, is the better mode of 
decreeing alimony. In the latter case the decree of the 
lower court, giving the complainant the fee of certain real 
estate, instead of a life estate or an annuity, secured upon 
the property, was reversed, the court remarking: 'If the 
property was not bought with her (complainant's) money, 
there was nothing in the case calling for a divestiture of 
the fee. ' ' ' 

There are many cases where the decree has beeu 
reversed because the allowance was too great or too small, 
but we have been unable to find one where it was reversed 
because a proper monthly or yearly allowance was given 
instead of a sum in gross or a part of the husband's estate 
in fee. 

There is another reason why the method adopted in this 
case is the better one. Appellant may hve many years or 
few. The court has no method of ascertaining the number 
with any reasonable accuracy, and consequently it is impos- 
sible to know what amount or value of prop>erty she is justly 
and equitably entitled to receive for her support. (See also, 
Robbins v. Robbins^ 101 111. 421 ; Dinet v. Eigenmann, 80 
111. 274, and JiusseM v. liussell, 4 Greene (Iowa) 28.) 

It remains to consider whether, from all the facts, the 
court properly exercised its discretion in fixing the amount 
that appellant ought to receive for her support. Appellant 
and Lake were married in September, 1864. She was a 
widow with three children at the time, and about twenty- 
six years of age. She is now about » forty-seven. She had 
no property — but for more than tifteen yeara she worked 
hard, and performed faithfully the duties of a wife. When 
she married Lake she was strong and healthy, but at the 
time of the trial she testified that the hard work she had 



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July, 1884.] Lake v. Bender. 409 



Opinion of the Court — Leonard, J., jon rehearing. 



done had prematurely enfeebled and aged her. She has 
one child by Lnke, a son aged about ten years. 

The record shows, and the court found, that Lake was 
worth over two hundred thousand dollars, and that his net 
income was seven thousand two hundred and thirty-two 
dollars a year. In law this property was Lake's, but during 
the fifteen years of their married life, she contributed her 
services and co-operated with him in the manifold enter- 
prises undertaken by him. Early and late she toiled for 
him, year in and year out. At the time, or a little before, 
the complaint was filed, Lake purchased a two-story hard- 
finished dwelUng house in Reno, known as the Marsh 
residence, for a home for appellant and himself, at an 
expense of six thousand dolllars. 

Li his answer he averred that he was ready and willing to 
provide appellant and their son, Charles, with that home, 
and continue to provide them with all the necessaries and 
comforts of life. During the pendency of the suit he lived 
at the Lake house, and in his answer offered the Marsh 
residence, with servants and necessaries and supplies, to 
appellant, during the pendency of the suit. In addition to 
the Marsh residence, Lake owned the Lake ranch, of the 
value of fort}' thousand dollars, whereon was a valuable 
residence, a two-story frame house, well furnished with 
carpets, pictures, black walnut sets, etc. Appellant with 
Lake lived on the ranch from 1871 to 1879. She super- 
intended the building of the ranch house during Lake's 
absence in the east. 

Lake testified that Mrs. Lake did a good deal of work, 
waited upon the table, did chamber work, but that for a 
year and a half before the suit she had a phaeton and horse 
at her disposal and a man to hitch it up, and went whenever 
she pleased. Appellant is not devoted to society and her 
habits are economical. The testimony establishing the fact 
of Lake's extreme cruelty to appellant is not before us, and 
we are unable, therefore, to state, s[)ecifically, the acts com- 
mitted. That they were suflicient, however, to justify the 
court in granting a divorce is not disputed. Appellant is 

VOJL. XVIII- 52 

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410 Lake v. Bender. [Sup. Ct. 

Opinion of the Court — Leonard, J., on rehearing. 



the injured party and she has a strong claim upon the court. 
She is entitled, at least, to be as well supported during the 
remainder of her life, as she ought to have been, artd was, 
prior to her application for divorce. She had a good house 
well furnished then, and is entitled to it now. She had, and 
ought to have had, servants, a horse and carriage, the neces- 
saries, and many of the luxuries, of life. Lake was able to 
furnish these things, and, after her long and laborious mar- 
ried Hfe, she ought to have enjoyed, and, but for his mis- 
conduct, would have enjoyed, the comforts of home and 
aflBiuence. That she can exist upon the allowance made, or 
even less, we are well aware, but we are now convinced 
that she is entitled to receive, and ought to have, more. 
When the divorce was granted she had nothing. Her home 
was taken from her, and for another she could look only to 
the generosity of the law. It is impossible to lay down a 
rule that should govern courts in cases like this, except that 
they should consider all the circumstances surrounding the 
parties, including, besides those mentioned in the statute, 
the financial condition of the husband and the requirements 
of the wife ; and to the extent of her support, she should 
not be left to suffer, pecuniarily, for having been compelled, 
by his ill conduct, to seek a divorce. 

Counsel for a[)pellant say, and quote Bishop on Marriage 
and Divorce, volume two, section four hundred and eighty- 
two as authority, that she is entitled to be placed in as good 
situation as to property, as if death, instead of divorce, had 
broken the marriage bond. Mr. Bishop does say: "If, 
on this divorce, decreed in favor of the wife, the statutes of 
the state will permit — and if they have not, and as far as 
they have not, given her, who, on the death of the man, 
will not be his widow, substantially the rights of a widow- 
in his property — the court should increase the annual suna 
which on the score of maintenance it deems she should 
receive, by what will place her, as to projierty, in as good 
situation as if death, instead of divorce, had broken the 
marriage bond." 

We have great respect for Mr. Bishop, but must be gov- 



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July, 1884.] Lake v. Bendek. 411 

Opinion of the Court— Leonard, J., on rehearing. 

erned by the statute, as he would be, if sitting in our place. 
Under our statute, upon dissolution of marriage, common 
property is divided equally between the parties, except 
when the divorce is granted for adultery or extreme cruelly, 
when the party found guilty shall receive such portion as 
the court may, in its discretion, deem just and allow. This 
is upon the theory that the common property is acquired by 
the joint efforts of the parties and should be divided equally 
between them, unless one of them has forfeited the right by 
committing an act of adultery or extreme cruelty, in which 
case the court may divide the property according to its legal 
discretion. (C. L. 162.) 

When the divorce is granted on account of the adultery 
of the husband, and when marriage is dissolved by the hus- 
band being sentenced to imprisonment, as before stated, 
the wife shall receive the same proportion of his real and 
personal property tis if he were dead ; but in other cases^ the 
court may set apart such i)ortion/or her support and the sup- 
port of their children, as shall be just and equitable. (C. 
L. 220.) 

It is too plain for argument that, the legislature intended 
to take all discretion from the court in the two cases first 
mentioned, and '-in other cases," to limit the exercise of 
its discretion to the setting apart of such portion of his 
property as might be deemed just and equitable, for her 
support and the support of their children. Our conclusion is 
that, the monthly sum of two hundred and fifty dollars was 
and is a just and equitable amount to be set apart from 
Lake's property for the supiiort of appellant, in addition to 
the amount awarded for the support of the infant son, 
Charles. 

The cause is remanded with instructions to the court 
below to modify the decree herein by inserting said sum of 
two hundred and fifty dollars as the sum to which appellant 
was and is entitled to be paid and shall be paid, monthly, 
from the date of the decree, by M. C. Lake or his pei*sonal 
representative, and by making said sum a charge and lien 
upon other real property in addition to that described in the 



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412 State i\ Arrington. [Sup. Ct. 

Opinion of the Court — Leonard, J. 



18 


412 


21 


888 


.21 


688 


21 


526 


4*7% 


«*647 


84»872 


84«878 



decree, if it shall appear to the court that the property 
already charged was insufficient to secure full and prompt 
payment, monthly, of said sum of two hundred and fifty 
dollars ; and the decree so modified is affirmed. 



18 412 

4* 735, [No. 1206.] 

19 843 

'^ THE STATE OF NEVADA ex rel. J. V. B. PERRY, 
Relator, v. WILLIAM ARlilNGTON et al., THE 
BOARD OF COUNTY COMMISSIONERS OF 
EUREKA COUNTY, Respondents. 

Constitution— Legislative Power— Prohibitions, Limitations and Restric- 
tions — It is tlic duty of courts, in constrviin*^ the constitution^ to 
ascertain the intontion of those wlio framed the instrument, and of the 
people who ratified it. Tiie legislature ha;s the power to enact any law not 
prohibited by the constitution ; but in .'ifeking for limitations and restric- 
tions courts must not (;onIine themselves to express prohibitions. Negative 
words are not indispensable in the creation of limitations to legislative 
power. If the constitution prescribes one method of iiiling an oliice, the 
le^nslaturc cannot adopt another. 

Idem — Election of Officer**. — Under tlie provisions of the constitution of 
this state, all necessary state, county and township oflicers? must be elected 
by the people of the locality hnmediately concerned. 

Idem — County Assessors — Extension of Term.— County assessors are neces- 
sary officers, within the meaning of the constitution, (Art. IV, Sec. 32j, 
and must be elected by the people. The lej;islature has no power to 
extend the terms of such officers beyond the time for which tliey were 
elected, except temporarily in easels of emergency. 

SrATUTE UN::>N3riTLri0NVL. — Sj^rion 2 of tho st.itute of 1S83, 123, extending 
the terms of county assessore beyond the time for which they were elected, 
is unconstitutional and void. 

Application for mandamus. 

The facts are stated in the opinion.' 

K JR. Garber^ for Relator. 

Bakei\ ^ Wines and lioberi 31. Clarke, for Respondents. 

By the Court, Leonard, J.: 

It is the official duty of the several boards of county com- 

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July, 1884.] State v. Ahrington. 413 

Opinion of the Court— Leonard, J. 

missioners of the state, to cause their clerks, at least twenty 
days before any general election, to make out and deliver 
to the sheiitt' of their county, or to the justice of tlie peace 
of any county attached for judicial purposes, three written 
notices for each election precinct, stating the time and place 
when and where such election will be held, and the names 
of the offices to be filled. (Stat. 1873, 198, sec. 4.) On 
the twenty-fifth of August, 1884, at a regular meeting of 
the board of county commissioners of Eureka county, re- 
spondents, acting as such board, directed their clerk to issue 
election notices for county and township officers in and for 
Eureka county, to be voted for on the first Tuesday after 
the first Monday in November, 1884, but in said notices 
omitted the office of county assessor. Kelator, a citizen of 
the United States, a resident, qualified elector and tax- 
payer of Eureka county, ajjpeared before said board, and 
in writing demanded that the office of county assessor be 
inserted as an office to be filled at said election. Kespond- 
ents refused, and still refuse, to give any notice of the elec- 
tion of said officer, on tha ground that, by an act of the 
legislature of the state, which became a law March 14, 1883, 
the terras of the several county assessors of the state were 
exte])ded from tw'o to four years; that by reason thereof, 
there is no county assessor to be elected in said county for 
the two years next ensuing the first day of January, 1885, 
and that, therefore, a notice of the election of said officer 
is not required or authorized by law. Prior to the last 
session of the legislature, in 1883, the terms of county 
assessors w-ere fixed by law at two years, and the several 
incumbents were elected at the general election of 1882 for 
the jjeriod of two years. According to the statutes in force 
at the time of their election, their terms of office w^ould 
have expired on the first Monday in January, 1885. But 
the legislature of 1883 passed an act which provided thai 
there should he elected at the general election in 188G, an 
every four years thereafter, in eacli county, one county 
assessor, and that the terms of office of county assessors 
then in office should expire on the first Monday in January, 



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414 State v. Aruington. [Sup. Ct. 

Opinion of the Court— Leonard, J. 

1887. In other words, the legisluture endeavored to extend, 
and, if the second section of the statute in question (Stat. 
18^3, 123) is valid, did extend, the terms of office of the 
several county assessors of the state two years beyond the 
time for which they were elected by the people. 

It is claimed by relator that the legislature had not such 
power, for several reasons, but mainly because, under the 
constitution, the office of county assessor must be filled by 
an election by the jieople, and that the statute under con- 
sideration violates that right. On the contrary, it is urged 
by respondents that this is not a constitutional office; 
that it is purely of legisliitive origin and creation, and that, 
therefore, the legislature may do with it as it wills; that 
under the constitution the legislature has power to declare 
by law the tenure of the office, and that, consequently, it 
may extend the term to four years. In construing constitu- 
tions, the first and last duty is to ascertain the intention of 
the fiamers of the instrument, and of the people who 
ratified it. Courts are governed by the same rules, whether 
construing constitutions or statutes. It is undoubtedly the 
duty of courts to uphold statutes passed by the legislature, 
unless their unconstitutionality clearly appears, in which 
case it is equally their duty to declare them null. From an 
examination of the entire constitution does it clearly appear 
that the peoiile intended to retain the right to elect the 
incumbents of the office of county assessor, and if they 
did, docs the second section of the statute in question violate 
that right? We deem it unnecessary to pass upon the 
question whether this office is of constitutional or legislative 
origin; for whether it be one or the other, if, as we think, 
under the constitution, it must be filled by election by the 
people, no other method can be adopted. So, for the pur- 
poses of this decision, we shall admit that it was created by 
the legislature, and therefore, that the law-making power 
could abolish it, and adopt some otiier method of complying 
with section one of article X of the constitution, concerning 
taxation. But this admission by no means sustains the 
conclusion that the legislature has power to till the office by 



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July. 1884.] State \k Arrington. 415 

Opinion of the Court— Leonard, J. 

legislative or other appointment, or otherwise thau by 
popular election, so long as the office exists. 

We admit, also, that the legislature can perform any act 
not prohibited by the constitution ; that, outside of consti- 
tutional limitations and restrictions, its power is "as abso- 
lute, omnipotent, and uncontrollable as parliament." But 
in seeking for limitations and restrictions, we must not cou- 
fine ourselves to express prohibitions. Negative words are 
not indispensable in the creation of limitations to legislative 
power, and, if the constitution prescribes one method of 
filling an office, the legislature cannot adopt another. From 
its nature, a constitution caimot specify in detail and in 
terms, every minor limitation obviously intended. It fol- 
lows that implied as w^ell as express restrictions must be 
regarded, and that neither the legislature nor any other 
department of the government can perform any act that is 
prohibited, either expressly or by fair imi>lication. {People 
V. Draper^ 15 N. Y. 543; Lowrcf/y. Grullej/, 30 Conn. 458; 
People V. Hurlbui, 24 Mich. 98.) Prohibitions implied, if 
they plainly exist in a constitution, have all the force of 
express prohibitions. For instance, it is declared in section 
32 of article IV, that the legislature shall provide for the 
election by the people, of certain officers named. There are 
no negative words employed to the cftect that the legisla- 
ture shall not elect or appoint them, or provide for their 
election or appointment in some other way ; still no one 
would claim that, a law providing for their election or 
appointment by a diflercnt mode would be constitutional. 
In fact, counsel for respondents admit that it would not be. 

After a careful examination of the entire constitution, we 
are clearly of opinion that, the framers and the people in- 
tended that all necessary state, county, and township officers 
should be elected by the people of the locality immediately 
concerned. Such, in the main, was the method of choosing 
officers prior to the adoption of the constitution, and such 
has been the construction placed upon that instrument by 
the legislature, at least before the i)assage of the statute 
under consideration, and even according to this statute, the 



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416 State v. Arrington. [Slip. Ct. 

Opinion of the (?oiirt — Ijconard, J. 

same mctliod is to continue after tlie expiration of two 
years. The constitution makes provision, in terms, for the 
election by the people of a governor, lieutenant governor, 
secretary of state, ti'easurer, controller, surve^'or general, 
attorney general, supennten<lent of public instruction, clerk 
of the supreme court, justices of the supreme court, district 
judges, boards of county commissioners, members of the 
legislature, county clerks, recorders, who are ex-qtHcio 
auditors, district attorneys, sheriits, treasurers, surveyors, 
public administrators, justices of the peace, "and other 
necessary officers/* 

It will be noticed that this list includes all state officei-s 
whose offices were created by the constitution, and all at any 
time since or now existing, with the excei>tion of state miner- 
alogist, now abolished, and state printer, both of which were 
created by the legislature subsequent to the adoption of the 
constitution. It includes, also, all county officers by name, 
for wliose selection, in any manner, constitutional provision 
was made, save such as might he chosen under and by 
virtue of the words "and other necessaiy officers,'* in sec- 
tion thirty-two of article IV. It includes all county officers 
whose offices have existed since the adoi)tion of the consti- 
tution, and all that now exist, except county assessor and 
county school superintendent. It is not claimed that the 
legislature could make provision for the elettion or appoint- 
ment, of the officers included in the ahove list, other than 
by election by the people. But the f ramers of the constitu- 
tion did not intend to name in that instrument all the 
officers that could be elected, or limit the state to such 113 
were mentioned. On the contrary, section thirty-two of 
article IV plainly shows an intention to leave it to the legis- 
lature whether officers other than those specifically named 
are required, and if they are, power is given to create them 
and to make provision for filling them, provided onlj', that 
the incumheuts sliall be elected by the people. Section 
thirty-two is as follows : " The legislature shall provide for 
the election, by the peoi)le, of a clerk of the supreme court, 
county clerks, county recorders, who shall be ex-officio 



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July, 1884.] State v. Arrington. 417 



Opinion of the Court— Leonard, J. 



county auditors, district attorneys, sheriffs, county survey- 
ors, public administrators, and other necessary officers, and 
fix by law their duties and compensation/' 

Provision for the election of the other officers named in 
the constitution is made in other sections. At the time the 
constitution was framed the law provided for the election 
of county assessors and county school superintendents. We 
cannot say why those officers were omitted from the con- 
stitution. It may be because the framers deemed it wise 
to leave the method of exercising impoi'tiuit functions of the 
government appertaining to the revenue and public schools, 
to the wisdom of the legislature, in order that it might be 
changed according to possible emergencies. But, what- 
ever the reason may have been, it cannot be said that a 
failure to make specific mention of assessor or any other 
officer in section thirty- two, or elsewhere, in tlie constitu- 
tion, justifies the conclusion that the legislature is empow- 
ered to fill a necessary office by any method other than by 
election by the people. The use of the words "and other 
officers" bars such a conclusion. Those words were 
inserted for a purpose, and they cannot be disregarded. 
They show how carefully the framers of the constitution 
intended to guard what, in free governments, has always 
been considered an inestimable privilege — the right of the 
people to select their own officers. Under section thirty- 
two it is as much the duty of the legislature to provide for 
the election by the people of "other necessary officers" — 
that is to say, officers that are necessary in exercising the 
functions of the government in running the machinery 
of the state — as it -is to provide for the election of the 
officers named. 

The upshot of the whole matter is this : the framers of 
the constitution decided for themselves that the officers 
named were necessary and should be elected by the people ; 
but they left it to the legislature to decide as to the neces- 
sity of additional ones, whether state, county or township, 
requiring only that they, like those named, should be elected 
by the people. The duty of deciding as to the necessity of 

Vol. XVIII— 53 

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418 Statb v. Arrington. [Sup. CL 



Opinion of the Court — Ijconard, J. 



any office, other than those named in the constitution, is 
placed upon the legislature, and that body, in 1866, decided 
that an assessor was necessary, by enacting that, among 
other officers, there should be elected, in each county, one 
county assessor, whose term of office should be two years ; 
and the legislature of 1883, that enacted the statute in 
question, also recognized such necessity, as before stated, 
by continuing it, by providing for the election of assessors 
in 1886, and every four years thereafter, and by endeavor- 
ing, at least, to extend the terra of the present incumbents 
two years beyond the period of their election by the people. 
Outside of the decision of the legislature as to the neces^sity 
of county assessors, it is evident that the present method of 
assessment and collection, or some other, to accomplish the 
same purpose, is indispensable. 

Section 1 of article X of the constitution declares that, the 
legislature shall provide by law for a uniform and equal 
rate of assessment and taxation, and shall prescribe such 
regulations as shall secure a just valuation for taxation of 
all property, with certain exceptions not material here. 
This mandatory provision cannot be obeyed without some 
efficient method of ascertaining the value of property. The 
duties now required of the assessors must be performed by 
some instrumentality, and the manner of perforaiing them 
is left with the legislature. From every stand-point, then, 
we conclude that assessors are necessary officers. So long 
as they are such — until the office is abolished — they must 
be elected by the people. Other portions of the constitu- 
tion are strongly corroborative of the views above expressed. 

Section 20 of article IV provides that "the legislature 
shall not pass local or special laws in any of the following 
enumerated cases ; that is to say ; * * * regulating 
the election of county and township officers ;'* and section 
21 declares that, ''in all cases enumerated in the preceding 
section, * * * all laws shall be genera] and of uniform 
operation.'' Thus it is made the duty of the legislature to 
regulate the election of township and county officers by 
general laws. 



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J uly, 1884.] State v. Arrington. 419 



Opinion qf the Courts Let)nard. J. 



In Clarke v. Irwin^ 5 Nev. 121, referring to this section, 
the court said: ^'When words are used in a constitution, 
unless so qualified by accompanying language as to alter 
their ordinary and usual meaning, they must be received in 
such meaning. The word 'elected,' in its ordinary signifi- 
cation, carries with it the idea of a vote, generally popular, 
sometimes more restricted, and cannot be held the synonym 
of any other mode of filling a position. This is clearly the 
sense of the use of the word in the clause referred to, espe- 
cially when taken in connection with sections 26 and 32, 
referring to the same subject. Section 32 has been previ- 
ously quoted. Section 26 reads thus : 'The legislature shall 
provide by law for the election of a board of county com- 
missioners in each county.* Now, although in one of those 
sections the legislature is commanded to provide for an 
'election,' and in the other for 'an election by the people,' 
it will hardly be contended that the same mode of election 
was not contemplated in both cases, and that for the reason 
that the ordinary meaning of the word 'elected' implies a 
popular vote, unless otherwise qualified. When, then, the 
legislature is prohibited from passing local or special laws 
regulating the election of county and township oflicers, the 
prohibition runs against making distinctions between coun- 
ties or townships in the matter of the popular election of 
their oflicers." 

It is plain from sections twenty-one and twenty-two that 
the method contemplated, of tilling county and township 
oflicers, is by an election under a general law. And section 
thirteen of article XVII provides that "all county ofloicers 
under the laws of the territory of Nevada, at the time when 
the constitution shall take efl:*ect, whose oflices are not incon- 
sistent with the provisions of this constitution, shall continue 
in office until the first Monday of January, 1867, and until 
their successors are elected and qualified ; and all township 
oflicers shall continue in oflHice until the expiration of their 
terms of oflice, and until their successors are elected and 
qualified. * * *" But it is argued by counsel for 
respondents that section ten of article XV justifies the action 



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420 State v, Arrington. [Sap. Ct 

Opinion of the Court— Leonard, J. 



of the legislature in extending the terms of assessora. That 
section is as follows: '*A11 officers whose election or 
appointment is not otherwise provided for, shall be chosea 
or appointed as may be provided by law.'' 

It is said that the only way to harmonize sections ten and 
thirty -two is to hold that the officers specifically named in 
the constitution, and known as constitutional officers, shall 
be elected by the people, and officers not so named, created 
by the legislature, known as legislative officers, shall be 
chosen as the legislature may direct. Such construction 
utterly disregards the words '*and other necessary officers," 
in section thirty-two, and is inconsistent with the evident 
intention of the framers of the constitution. It convicts 
that body of inserting, in a most important instrument, 
words of sweeping import, which they did not intend to 
have construed according to their usual signification. Sec- 
tion ten of article XV in no manner conflicts with section • 
thirty- two. It does not refer to state, county or township 
officers, whose election by the people is otherwise provided 
for in the constitution. Our opinion is that the office of 
county assessor is elective, and that, so long as it exists as 
a necessary office, its permanent incumbents must be elected 
by the people. It is claimed, however, that, although it is 
an elective office, the right of the legislature to extend the 
term of office has been recognized in three cases decided 
by this court, viz., Clarke v. Incin, 5 Nev. Ill ; Moseiisiock 
V. Swift, 11 Nev. 128 ; Denver v. Hobart, 10 Nev. 28. 

We are unable to find anything in either case mentioned 
that is opposed to our conclusion in this. We do not deny 
that the legislature may make provisional appointments, if 
necessary, in order to put a new system in operation. Offices 
that must be permanently filled by an election, in cases of 
emergency may be provided for temporarily by other 
means. The constitutional mandate does not apply to such 
exceptional cases. [Clarke v. Iricin, supra; People v. 
Fisher, 24 Wend. 219.) 

Clarke v. Irwin shows that certain parties were named as 
county officers in the bill creating the county of White 



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July, 1884.] State v. Arrington. 421 



Opinion of the Court— Leonard, J. 



Pine, to hold until the next general election. Irwin was 
designated as sherift*. The court held that the statute did 
not violate that part of the constitution which requires 
county officers to be elected by the people, because the 
office was filled only temporarily by the legislature until the 
next general election, and thiit the constitutional mandate 
did not apply to cases of emergency or special occasion. 
Such is the undoubted law, but it does not ajjply to the 
statute under consideration. In this case there was no 
emergency or s[)ecial occasion calling for extraordinary 
action on the part of the legislature. The several incum- 
bents of the office had been elected for two years, under a 
general law which required their successors to be elected 
by the people at the next general election in 1884. Before 
the expiration of the term for which they were elected 
there would be a general election, at which their succes- 
sors could be elected in the manner and form provided by 
the constitution. If it was desirable to change their terms 
of office from two to four years, still there was nothing to 
hinder the election of their successors at the general elec- 
tion in 1884. Nor does Jioseiistock v. Sicift militate against 
our views. The case shows that the act of the legislature 
incorporating Carson City, made certain county officers of . 
Ormsby county ex-officio city officers. Among others, 
the sherift' was constituted ex-officio city marshal. It was 
claimed that the act was unconstitutional because it con- 
ferred city offices upon county officers, and thus perma- 
nently deprived the citizens of the state residing within the 
municipal subdivision of a fundamental rigVit — the right of 
local self-government. The court said : '' The existence of a 
fundamental right of municipal local self-government is nec- 
essarily dependent upon some constitutional gmnt or manifest 
implication, neither of which can be found in the constitu- 
tion of this state. Hence a municipal corporation, in this 
state, is but the creature of the legislature, and derives all 
its powers, rights and franchises from legislative enactment 
or statutory implication. Its officers or agents, who admin- 
ister its attairs, are created by the legislature, and chosen 
or appointed by the law of its creation." 

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422 State v. Arrington, [Sup. Ct 

Opinion of the Court— Leonard, J. 

Now, whether the court was right or wrong in its conclu- 
sion that there was no constitutional inhibition agiiiu^t leg- 
islative appointments of municipal officers^ matters not in 
this case. Its decision upon the objection urged was based 
upon such conclusion, and it is not authority against relator 
in this case. On the contrary, that case shows that, if the 
court had found the constitutional inhibition against legisla- 
tive appointments to municipal offices that we have found 
against the legislative action under consideration, the de- 
cision would have accorded with oure. Denver v. Hobart 
is so plainly inapplicable we shall not review it. 

At the argument of this case we were referred to Christy 
V. Board Suprs, 39 Cal. 11, and People v. Balchelor, 22 N. 
Y. 135, in support of the doctrine that when an elective 
office has once been filled by an election, the legislature 
may extend the term of the incumbent, provided the whole 
term when extended does not exceed the time limited by 
the constitution. The prevailing opinion in People v. 
Batchelor is rejected by the court of appeals in People v. 
Bull, 46 N. Y. 59, and People v. McKinney, 52 N. Y. 376. 
We shall not stop to review these several decisions. In 
Christy's case, as well as Batchelor's, it was held that the 
term could be extended by the legislature under the power 
to fix the duration of the term. In the cases subsequently 
decided in New York, it was held that an extension by the 
legislature was, in substiince, an appointment to the office 
for the extended term, and a usurpation by that body, of 
the right to fill the office, which was secured by the consti- 
tution to the electors. We have examined these decisions 
with great care, and do not hesitate to adopt the reasoning 
and conclusions of the later New York cases, nor can we 
add anything to them. 

To our minds it is enough to say that, since the consti- 
tution gives to the people of a county the right to elect their 
assessor, and they do elect him for two yeara, under the 
existing law, they have the right also to elect his successor, 
and, if the legislature extends his term, their rights are 
abridged. Should we hold that the term could be extended, 



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July, 1884.1 Alt v. Cal. F. S. Co. 423 



Opinion of the Court— Belknap. J. 



we should have to admit that the incumbents would hol(i 
the office during the period of extension by virtue of a 
legislative act rather than by an election. The present 
assessors have been elected for two years. Should they 
hold their offices for four, they would have .to point to the 
statute as evidence of their title to the office, instead of 
their certificates of election. Our opinion is that section 
two of the statute under consideration, extending the terms 
of county assessors beyond the time for which they were 
elected, is unconstitutional and void. 

Section one provides for an election in 1886, and every 
four years thereafter, but it does not supersede the existing 
law during the next two yeare. It was not intended to go 
into effect during that time. It follows that county 
assessors must be elected at the ensuing general election, 
under the statute of 1866, for the two years succeeding the 
terms of the present incumbents. 

The writ of mandamus should issue as prayed for ; and it 
is so ordered. ir~423 

4* 743 

19 ns 

7* 174 
[No. 1198.] — 

GEORGE ALT, Respondent, v. CALIFORNIA FIG 
SYRUP COMPANY, Appellant. 

Appeal — Deposit of Mo>'ey in Lieu of Appeal Bond — Certificate of Bank 
Deposit. — The presentation to and acceptance by the clerk of the court of 
a certificate of deposit is a sufficient compliance with tlie .statutory re<iuire- 
ment, that to render an appeal eftectual the ai)pcllaiit may, instead of giv- 
ing an undertaking with sureties, deposit money equal in amount to the 
sum named in the undertaking, if the transaction is made in good faith. 

Motion to dismiss appeal from the District Court of the 
Seventh Judicial District, Washoe County. 

i?. H. Lindsay^ for Respondent, for the motiou. 

Thomas E. Haydon^ for Appellant, against the motiou. 

By the Court, Belknap, J. : 

This is a motion to dismiss an appeal because of appel- 

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424 Alt v. Cal. F. S. Co. . [Sup. a. 

Opinion of the Court — Belknap, J. 



lant's alleged failure to give the undeii:aking or deposit the 
money necessary to make an appeal efl'ectual. 

Upon the evening of the fifth day following the appeal, 
the defendant presented the clerk of the district court with 
a certificate of deposit payable to his order, and issued by 
the First National Bank of Reno, for the sum of two thou- 
sand two hundred and twenty-one dollars and ten cents, 
and requested a receipt for this amount of money. The 
clerk was disinclined to treat the ceii;ificate as money. In 
this emergency he was requested by defendant's attorney 
to accompany him to the bank that issued the certificate 
and have it cashed. The clerk had no suitable place for 
safely keeping the money, and, preferring to treat the cer- 
tificate as money, rather than have the coin or currency in 
his cnstody that night, receipted to appellant for two thou- 
sand six hundred and twenty-one dollars and ten cents, and 
received therefor the certificate. The next day the bank 
paid the certificate upon presentation by the clerk. 

We are of the ojnnion that these facts constitute a com- 
pliance with the statutory requirements, that to render an 
appeal effectual the a])pellant may, instead of giving an 
undertaking with sureties, de|)Osit money equal in amount 
to the sum named in the undertaking. This conclusion is 
reached because all of the acts of the appellant in the prem- 
ises are characterized by good faith, and an intention to 
meet the substantial requirements of the statute. Appellant 
probably employed the certificate of deposit instead of the 
actual money as a matter of safety and convenience in the 
first instance. When the clerk, consulting his own accom- 
modation, accepted the certificate, not for the purpose of 
assisting in a simulatec] compliance with the law, but 
because the amount of money called for by the certificate 
had been appropriated to its payment, the requirements of 
the statute were substantially performed. 

Motion denied. 



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r 



REPORTS OF CASES 



DETEBMINED IN 



THE SUPREME COURT 

OF THE 

STATE OF NEVADA, 
OCTOBER TKRM. 1884. 



[No. 1184.] 

THE STATE OF NEVADA, Kespondent, v. CHARLES 
ANQELO, Appellant. 

Criminal Law — Overt Attempt to Escape From Prison — Indictment. — 
An indictment, for an overt attempt to escape from the state prison, which 
allies that the prisoner, while lawfully confined in the state prison under 
a judgment of a competent couri for the crime of bui^larj', did make an 
overt attempt to escai)e therefrom, . and did unlawfully, forcibly, and 
feloniously break out of the cell in said prison in which he was confined, 
and out of the building in which said cell w'as and is, contains a sufficient 
statement of facts to show the commission of the crime charge<l. 

Idem — ^Trial Jurors— Open Venire — Discretion of Court. — The question as 
to the necessity of selecting additional trial jurors by an oi>en venire is 
within the discretion of the district court. 

Idkm — Oath of Jurors — When Sufficient. — The fonn of oath as prescribed 
by statute should always be followe<l ; its substance cannot be disjwnsed 
with. An oath to jurors, as follows : *' You, and each of you, do solemnly 
swear that you will well and truly try this cause, and a true verdict render 
according to the law and the evidence, so help you God:" Held, sufficient. 

Idem — Evidence — Punishment at Prison. — The punishment which the 
prisoner received at the hands of the prison authorities after his recapture, 
having nothing to do with the question of his guilt of innocence, waa 
properly excluded from the jury. 
Vol. XVIII— 54 

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426 State v. Angblo. [Sup. Ct. 

Opinion of the Court^Hawley, C. J. 

Appeal from the District Court of the Second Judicial 
District, Ormsby County. 

The facts are stated in the opinion. 

N. Soderberg^ for Appellant : 

I. The indictment is fatally defective. It fails to allege 
or refer to any warrant or commitment authorizing defend- 
ant's incarceration in the state prison. {State v. Hollon^ 22 
Kan. 580; 2 Wharton Prec. 923, 924; 1 Corap. Laws, sec. 
2076; Hurd on Hab. Corp. 252.) If defendant committed 
the acts charged in the body of the indictment, he was 
guilty of an escape^ a different crime altogether from that 
charged against him. [State v. Davis, 14 Nev. 445.) 

II. The jury were not properly sworn. (Proffatt on Jury 
Trials 257, 259.) 

W. H. Davenport^ Attorney General, for Kespondent. 

By the Court, Hawley, C. J. : 

Appellant, having been convicted of an overt attempt to 
escape from the state prison, seeks the intervention of this 
court for a new trial. 

1, He claims that his demurrer to the indictment should 
have been sustained upon the ground that the indictment 
did not allege the existence of any warrant or commitment, 
authorizing his incarceration in the state prison ; and also 
upon the ground that the facts alleged in the indictment 
constitute the crime of an escape from the prison, instead 
of an overt attempt to escape therefrom. Neither of 
these positions are well taken. The indictment, tested by 
the requirements of the law of this state (Comp. Laws, 
1858), is sufficient. It shows that appellant, while lawfully 
confined in the state prison, under a judgment of a compe- 
tent court, for the crime of burglary, did make an overt 
attempt to escape therefrom; that he ''did unlawfully, 
forcibly and feloniously break out of the cell in said prison, 
in which he was confined, and out of the building in which 



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Oct. 1884.] State v. Angelo. 427 

Opinion of the Court — Hawley, C. J. 

said cell was and is." This is a sufficient statement of facts 
to show the commission of the crime charged. (1 Comp. 
Laws, 2466.) It was unnecessary to aver in the indictment 
that a certified copy of the judgment against appellant for 
burglary, had been delivered to the warden of the prison. 
The statute does not make that an essential fact to be 
proved. It does require that the prisoner making the attempt 
to escape shall be ''lawfully confined, * * * under 
judgment of imprisonment, in said prison,*' and these facts 
are fully set forth in the indictment. It was the judgment 
against appellant for burglary that authorized his imprison- 
ment in the state prison, and made his confinement therein 
lawful. (Ex parte Stnith, 2 Nev. 340.) The statute requires 
a certified copy of this judgment to be given to the warden 
as evidence of his authority to receive the prisoner and to 
keep him confined in the prison. (1 Comp. Laws, 2076.) 

That portion of the indictment which designates the 
crime as an overt attempt to escape is merely formal and 
might have been omitted. It is the recital of the facts in 
the body of the indictment that constitutes the crime of 
which appellant is charged. {State v. Anderson, 3 Nev. 
256 ; State v. Johnson, 9 Nev. 178 ; State v. Bigg, 10 Nev. 
288.) Hence, if the facts alleged constituted the crime of 
an escape from the prison, appellant could have been tried 
for that ofl:ense, and the verdict of ''guilty, as charged in 
the indictment," would warrant the sentence imposed. 
The statute makes no difference in the grade of these 
offenses. It provides the same punishment for each. But 
we are of opinion that the formal part of the indictment 
correctly designated the ott'ense as an overt attempt to 
escape. The breaking out of the cell in which the prisoner 
was confined, and out of the building in which the cell was 
situate, did not necessarily constitute an escape from the 
state prison, for if he was captured within the prison walls 
he did not succeed in his attempt to escape from the prison. 

2. Appellant challenged the panel of trial jurors on the 
ground that the jurors were not ordered, drawn, oj* sum- 
moned according to law, in this; that they "were sum- 



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428 State v. Angblo. [Sup. Ct. 



Opinion of the Ck)urt — Hawley, C. J. 



moned under an open venire^ and without any necessity 
existing for not drawing or summoning the jury herein in 
the regular way," and claims that the court erred in not 
allowing him to prove the truth of his objections. The 
statute provides for the issuance of an open vemre in ceiiain 
cases, and leaves the question as to the mode of selecting 
the jurors by open venire^ or otherwise, to the discretion of 
the court. (Stat. 1881, 23.) The order of the court recites 
the statutory fact, ''that the regular panel of trial jurors 

* * * has been exhausted,*' which justified the court 
in issuing an open venire^ and it also recites the fact that it 
appeared to the court "that it was necessary to summon 
additional jurors. " The ofter as made was too general. It 
was not to prove any specific fact, as, for instance, that the 
regular panel was not exhausted, or to give the number of 
the jurors on the regular panel, if any. The law leaves the 
question of necessity to the discretion of the court, instead 
of the judgment of the prisoner. There is nothing in the 
record which tends, in the slightest degree, to show that 
the court abused its discretion. The ofl:er, as made, was 
properly overruled. 

3. The objection that the jurors were not lawfully sworn 
is without any substantial merit. The oath administered 
was as follows : "You, and each of you, do solemnly swear 
that you will well and truly try this cause^ and a true verdict 
render according to the law and the evidence. So help you 
God." 

The principle of the common law is that oaths are to be 
administered to all persons according to their opinions and 
as it most afl:ects tlieir consciences. The criminal practice 
act of this state does not provide any particular form of 
oath to be administered, exce|>t in justice's courts, (1 Comp. 
Laws, 2229), and this form is the one generally used in the 
district courts, and is substantially the oath as usually ad- 
ministered at common law. It is as follows : "You do 
swear (or affirm, as the case may be) that you will well and 
truly try this isme between the State of Nevada and A. -B., 
the defendant, and a true verdict give according to the evi- 
dence." 



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Oct. 1884.] State v. Angelo. 429 

opinion of the Court — Hawley, C. J. 

The only objection to the form of the oath administered 
in this case, worthy of notice, is in the use of the words 
"this cause" instead of '^ this issue between the State of 
Nevada and Charles Angelo, the defendant." The latter 
words are preferable, and it would always be best not to 
depart from the language of the statute in this respect. We 
do not, however, think that the change, as made, vitiates 
the solemnity of the oath, or is such a deiiarture from the 
regular form as to entitle appellant to a new trial. The form 
of the oath, as prescribed by statute, should always be fol- 
lowed. The substance of the oath cannot be dispensed 
with. (State v. Rollins, 22 N. H. 528 ; Harriman v. State, 
2 G. Greene 285 ; Maker v. State, 3 Minn. 444 ; Bawcom v. 
State, 41 Tex. 191 ; Sutton v. State, Id. 515 ; Bray v. Staie, 
Id. 561 ; Morgan v. State, 42 Tex. 224 ; Edwards v. State, 
49 Ak. 336; State v. Owen, 72 N. C. 611.) 

The oath to well and truly try "this cause " was the same 
in substance as an oath to well and truly try "this issue 
between the State of Nevada and Charles Angelo, the de- 
fendant." From an examination of the Texas cases above 
cited it will be seen that the courts of that state have been 
very strict in requiring the substance of the oath to be 
given. In Faith v. State, 32 Tex. 374, the precise point 
here presented was held insufficient to justify a reversal. 
The court said : " The jury were sworn ' well and truly to 
try the cause and a true verdict render according to law and 
evidence.' This, though not in the precise language of the 
statute, is a substantial compliance." 

4. Appellant offered to prove "the punishment he had 
received at the hands of the prison authorities after his 
recapture, for the alleged oft'ense." This was wholly 
immaterial. It had nothing whatever to do with the ques- 
tion of the guilt or innocence of the defendant, and was 
very properly refused. 

We have specifically noticed all the objections relied upon 
by appellant which are presented by the record. 

The judgment of the district court is affirmed. 



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430 Strait r. Williams. [Sup. Ct. 



Opinion of the Court — Hawley, C. J. 



B. B. STRAIT, ET ALS., Plaintiff, v. JOHN WIL- 
LIAMS, Defendant. 

Contempt — Affidavit for Verification of. — The affidavit for contempt need 
not show, upon its face, that the party verifying the same is beneficially 
interested in the proceedings. 

Idem — Sufficiency of Affidavit. — In case of an alleged contempt for the vio- 
lation of a decree of the district court, an affidavit is sufficient to give the 
court jurisdiction, if it substantially states the fact of the rendition of 
judgment r&straining the party from doing certain acts, that the judg- 
ment is in full force and effect, and that the party enjoined has disobeyed 
the decree, and threatens to continue a violation thereof. 

Application for writ of certiorari. 
The facts are stated in the opinion. 
H. K. Mitchell, for petitioner. 

By the Court, Hawley, C. J.: 

John Williams, the above named defendant, petitions 
this court for a writ of certiorari to review the action of the 
district Qonvt of the fifth judicial district in adjudging him 
guilty of contempt for diverting the waters of Duckwater 
creek, in violation of the judgment and decree of said court 
in the suit of Strait v. Williavis. It is claimed by petitioner 
that the affidavit presented to the court was insufficient to 
give the court jurisdiction in two essential particulars: 

1. The affidavit was verified by I). S. Truman. It was 
not therein alleged that Truman was a party beneficially 
interested, or that he was the attorney or agent for the 
plaintiffs. The statute does not require that the affidavit 
shall be made by a party beneficially interested in the 
proceedings. It reads as follows: "When the contempt is 
not committed in the immediate view and presence of the 
court, or judge at chambers, an affidavit shall be presented 
to the court or judge of the facts constituting the con- 
tempt." (1 Comp. Laws, 1522.) 

Undoubtedly a court would refuse to act unless satisfied 
that the party making the affidavit was authorized to do so 
by the party beneficially interested in the proceedings. 



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Oct. 1884.] Strait v. Williams. "^ 431 



Opinion of the Court— Hawley, G. J. 



The presumption, however, is that the plaintiffs, by their 
attorney, presented the affidavit, and that fact would be 
sufficient to satisfy the court that the party making the 
affidavit was authorized to do so. 

2. It is claimed that the affidavit was insufficient in this : 
that it does not allege that the decree was duly made and 
entered, and that it only sets forth conclusions of law instead 
of a statement of facts. The affidavit is loosely drawn, and 
its form is subject to criticism. It might have been and 
ought to have been more specific in many respects ; but we 
are of opinion that sufficient facts are stated to set the 
power of the court in motion. It alleges, among other 
things, that at a certain date ''a decree and judgment was 
made and entered in the above entitled cause in favor of 
plaintiff * * * and against the defendant, whereby he 
was enjoined and restrained from diverting the waters of 
Duckwater creek, or of the waters of Hot Springs thereof, 
to the injury of the plaintiffs, or either of them, * * * 
whenever the same was necessary for the use of said plaint- 
iff's;'* that the decree is in full force Jind effect, and unre- 
versed ; that the defendant, in disobedience of the decree, 
is diverting the water and depriving the plaintiffs of a large 
portion of the waters necessary for plaintiffs' use, and 
threatens to continue the diversion thereof, to the injury of 
the plaintiffs. These facts might have been stated in clearer 
terms, and the district judge might have required a more 
definite statement of the facts before issuing an order for 
the defendant to appear and show cause, if any he could, 
why he should not be punished for contempt. But the 
objections urged are more to the form than to the substance 
of the affidavit. 

It appearing that sufficient substantive facts were stated 
to give the court jurisdiction, the application of petitioner 
for a writ of certiorari must be denied. (PhiUips v. Welch, 
12 Nev. 158.) 

It is so ordered. 



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482 Simpson v, Williams. [Sup. Ct. 

Argument for Appellant. 

18 432 

4*1213 

^%vm [No. 1178.] 

''•121S J. W. SIMPSON, Appellant, v. JOHN WILLIAMS 
• ET AL., Respondents. 

Prior Appropriation of Water— Evidence.— Upon a review of the evidence : 
Held, that the court did not err in finding that defendant's appropriation 
of the water was prior in time to that of plaintiflF. 

Idem— Amount of Water Used.— The amount of water to which the first 
appropriator is entitled must be limited to the amount actually applied to 
the purpose of irrigation. 

Idem — Conflict of Evidence. — This court will not interfere with the decision 
of the lower court upon the determination of a fact if there is a substantial 
conflict in the evidence. 

P0SSES.S10N of Land — Party in Possession May Maintain Action f»r an 
Interference With His Rights. — Defendant had a contract for the pur- 
chase of Jand and was in the possession thereof. At the trial no objection 
was made to the testimony showing the nature of his jKJssession and his 
right to use the water in controversy : Held, that the defendant must be 
treated as tlie lawful occupant of the premises, and lience entitled to main- 
tain the action for interference w^ith his rights, injurious to his possession. 

Appeal from the District Court of the Fifth Judicial Dis- 
trict, Nye County. 

The facts are sufficiently stated in the opinion. 

D. S, Truman,, for Appellant : 

I. The right to<he use of water, whenever acquired by 
appropriation, or otherwise, is an interest in laud and can- 
not be granted or created except by operation of law, or by 
deed or conveyance in writing, subscribed by the party 
creating or granting the same. (Angell on Water Courees, 
sec. 168 ; Morse v. Copelaiid, 2 Gray 302 ; Selden v. Del, 
^ Hud. Canal Co., 29 N. Y. 639 ; ^ Fuhr v. Dean, 26 Mo. 
116 ; Foot V. New Haven ^ N. H. R. R. Co., 23 Conn. 214; 
Smith V. O'Hara, 43 Cal. 371; Lobdell v. Hall, 3 Nev. 
507; 1 Comp. Laws, 283.) 

XL Williams pleads the legal title in himself. He does 
not set up his equitable rights, nor does he allege an out- 
standing title in Withington. If the defendant Williams 
relies on an equitable title, it must be pleaded and the 
answer setting it up must possess all the elements and esseu- 



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Oct. 1884.] i^iMPSON V. Williams. 433 



Opinion of the Court — Belknap, J. 



tial qualities of a bill in equity. (Bliss on Code PI. sec. 
161 ; Blum v. Robe.rtmn, 24 Cal. 127 ; Clark v. Huber, 25 
Id. 693; Bnick v. Tucker, 42 Id. 346.) 

III. The defendant Williams Jiaving pleaded the legal 
title in hiniself, and not having pleaded the equitable title, 
must recover according to his pleadings or not at all. (Bliss 
on Code PI. sec. 161 ; Ro)7ie Ex. Bank v. Ea)nes, 1 Keyes 
588; Trj/on v. Sutton, 13 Cal. 493; M'trshall v. Golden 
Fleece Co,, 16 Nev. 156 ; Low v. Blackburn. 2 Nev. 70.) 

IV. Williams did not occupy the land or use the water 
until 1879. He did not show a legal title in hinit>elf derived 
from his alleged grantors at any time, and without having 
connected himself with proi)er pleadings or evidence in 
these causes, with their rights, if he had any rights at all 
they only date from his ovvn acts. His ap}»roj)riation in 
1879 must be treated as the inception of his rights in these 
actions. {Chitovich v. Dariii, 17 Nev. 133.) 

V. If the court is right in decreeing any water of Duck- 
water creek to defendant, it can only decree such portion 
as flows through the west branch, or such portion thereof 
as the evidence shows him entitled to. By the findings in 
these cases the pleadings are entirely disregarded by the 
court, and a conclusion is reached and decree given entirely 
foreign to pleadings and prayer for relief of defendant. 
The court finds defendant Williams entitled to two hundred 
inches of the water of Duckwater creek or (he we.H branch 
thereof. Such findings give defendant not only a right of 
enjoyment of what he claims, but much that he does not, 
and while by the most Hberal inter|)retation of the evidence 
and after the enlargement of the ditches upon the land, he 
claims one hundred and fifty inches, this is the greatest 
quantity shown to which any claim could be made by him. 
The defendant's evidence shows that no such quantity as 
two hundred inches was ever used by him. 

No appearance for respondent. 

By the Court, Belknap, J.: 

This is an action to determine conflicting rights to the 
Vol. XVIII— oo 

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484 Simpson i\ Williams. [Sup. Ct 

Opinion of the Court — Belknap, J. 



waters of Duckwater creek. The district court rendered u 
decree in favor of defendant, predicated upon the fact that 
his appropriation of the water was prior in time to that of 
the plaintiff. It is contended that this conclusion is unsup- 
ported by the evidence. It was shown at the trial that 
during tlie year 1866 J. D. Page had made claim to the 
land occupied by defendant, WilHams, and diverted several 
hundred inches of the waters of the creek. Page made no 
use of the water, and his diversion of it appears to have 
been for a speculative purpose. But this is immaterial, 
under the facts of the case, because in the following year he 
sold his rights to Withington, and he, as early as the spring 
of 1868, commenced using the waters for the purpose of 
irrigation. The lirst appropriation of the waters by the 
predecessors in interest of the plaintiff was made in the fall 
of 1868. There is no conflict in the testimony upon these 
facts, and the court correctly determined the question of 
priority of appropriation in favor of defendant. The district 
court awarded defendant the prior right to use two hundred 
inches of water. It is claimed that this allowance is unsuj.> 
ported by the evidence. 

The witnesses for the defendant generally testified that 
since the year 1870 about one hundrei acres of the 
lands occupied by defendant had been cultivated for grain 
and vegetables, and about fifty acres had been kept as 
meadow land. They estimated the volume of water used 
for the purpose of irrigation at from one hundred and thirty 
inches to one hundred and fifty inches. Those who testi- 
fied upon the jioint gave as their opinion that lands culti- 
vated for grain or vegetables required an inch of water per 
acre, and that hay or grass lands required about half that 
amount. One witness, however, A. M. Self, testified that 
'*one hundred acres of grass land requires one hundred 
inches of water." And it was shown that during the years 
1874 and 1875, two hundred acres of the land — one hun- 
dred of which was cultivated and the remainder meadow — 
was irrigated. This was the maximum acreage irrigated. 
The amount of water to which defendant is entitled is lim- 



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Oct. 1884.] Simpson v. Williams. 435 



Opinion of the Court — Belknap, J. 



ited to the amount actually applied to the purposes of irri- 
gation. In determining this amount the court apparently 
disregarded the testimony of the witnesses who fixed it at 
from one hundred and thirty inches to one hundred and 
fifty inches, and, accepting the testimony of the witness 
Self, concluded that the amount of water actually used to 
irrigate the two hundred acres of land must have been two 
hundred inches. The finding is further sustained by the 
testimony of Withinfi^ton, who said that from the spring 
of 1867 until the summer of 1878, two hundred and fifty 
inches of water was used throughout the irrigating season 
of each year. 

The evidence was conflicting as to the quantity of water 
used. It is the [jeculiar province of the trial court to 
determine controverted questions of fact, and this court can- 
not interfere with such determination where there is a sub- 
stantial conflict in the evidence. Appellanl also contends 
that defendant has not such an interest in the land as enables 
him to maintain the affirmative defense of ownei-ship pleaded 
by him. It appeared that the land was owned by Withing- 
ton, between whom and defendant there existed a contract 
of purchase and sale. Defendant had been in possession of 
the premises for some time, but the nature of his possession 
is not disclosed by the record. No objection, however, was 
made to the introduction of testimony proceeding upon the 
theory of a right in Williams to the possession of the land, 
and the use of the waters of the creek. Under these circum- 
stances we must disregard questions first made upon motion 
for new trial, and which could have been obviated by 
amendment of the pleadings had objections been seasonably 
taken, and consider whether the facts of defendant's 
(WiUiams') case constitute a defense to this action. The 
justice of the case requires that he should be treated, for 
the purposes of this ap})eal, as the lawful occupant of the 
premises. As such occupant he could maintain an action 
for any interference with his rights injurious to his j)Ossession. 
The rule is thus stated in Dicey on Parties, 333 : 

'*The person to sue for any interference with the imme- 



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436 Ikwin V, Strait. [Sup. Ct. 

opinion of the Court— Belknap, J. 



(liate enjoyment or possession of land, or other real prop- 
erty, is the person who has possession of it, and no one can 
sue merely for such an interference who lias not possession." 

As the result of this principle, the author states, at i>age 
340, '*that when land is in the hands of a tenant, the person 
to sue for a trespass is the tenant, and not the landlord." 

The judgment and order of the district court are affirmed. 



[No. 1182.] 

ISAAC IRWIN, Appellant, r. B. B. STRAIT et al.. 
Respondents. 

Watkr Rkjhts — When Rkjiit of Appkopriation Begins— Reakonable Dil- 
KJENCE. — In ilt'tormlnin*; tlie (juestion of the time when the riglit to water 
by a]>pr()priati<)n coinniciu'cs, tlie law (1<k»s not rt*stri«'t the appropriator to 
tliedato of his use of the water, but ap[)lyinj? tluMloctrine of relation, fix<*4 
it a.s of the tinve when he begins his dam or ditch or tiunie or other 
appliance, l)y means of which the ai)propriation is eff'ected, provideil the 
enterprise is prosecuted with reasonable dilij^ence: Held, in reviowiiijithe 
evidence, that a delay for one season in not using the yi'att^r was not un- 
reasonable, (SiMi»s()N I'. Williams, mUe, affirmed.) 

Appeal from the District Court of the Fiftli Judicial Dis- 
trict, Nye County. 

The facts are stated in the opinion. 

D, S, Tnunan,, for Appellant. 

No a[)pearance for Respondent. 

By the C'onrt, Belknap, J.: 

The original parties defendant in this cause were the 
same as in Sunpsttn v. Willitnns, (inie. The appeal" in this 
case, as in that, is directed against the decree rendered in 
favor of respondent, Williams. To each suit he defended 
as owner of the I*age or AVithington ranch, on Duckvvater 
creek. The questions presented upon a])i)eal are the same 
in each case, cxcej)t the question of prior appropriation of 
the water. The ditl'erent plaintifls acted independently of 



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Oct. 1884.] Irwin v. Strait. 437 



Opinion of the Court — Belknap, J. 



each other in diverting the stream, and their acts in this 
regard must be 8e[»arately considered. Plaintiff Irwin first 
diverted the water upon* the twentv-first day of August, 

1867. For the purpose of this case we shall treat his right 
as commencing, by relation, at this time. The premises 
in the possession of Williams, and of which he must he 
considered owner upon this appeal, were purchased in the 
month bf April, 1867, by Withington from Page for farm- 
ing purposes. During the year 18G6, Page had diverted a 
portion of the waters of the stream. This diversion may 
have been for a speculative purpose, and we shall not con- 
sider it as the inception of a right. The testimony is not 
clear as to the use made of the water by Withington during 
the year 1867, save tliat it continued to flow as diverted by 
the dam and ditch constructed by Page. In the spring of 

1868, and each succeeding year, Withington, and those 
claiming through him, have employed the water for irrigat- 
ing cultivated lands. Upon these facts, when did the right 
of respondent as successor in interest to Withington to the 
use of the water commence ? 

In determining the question of the time when a right to 
water by appropriation commences, the law does not 
restrict the appropriator to the date of his use of tlie water, 
but, applying the doctrine of relation, fixes it as of the time 
when he begins his dam or ditch or flume, or other 
appliance by means of which the appropriation is effected, 
provided the enterprise is prosecuted with reasonable dili- 
gence. During the year 1867 Withington did no particu- 
lar act manifesting an intention to appropriate the water, 
further than to maintain its flowage upon the land. It was 
unnecessary for him to do more. The diversion made by 
Page was suitable to his contenii)lated ap|>ropriation, and a 
different div-ersion would not have strengthened his claim. 
We do not think that, in exercising reasonable diligence to 
api»ropriate the water, Withington was bound to use it for 
irrigation during tlie year 1867. It may have been imprac- 
ticable by reason of the season, or the difficnlties incident 
to an unsettled country, to have ap|>lied the water to irri- 



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438 Esmeralda Co. v. District Court. [Sup. Ct 



18 438 




Opinion of the Court — Hawley, C. J. 



gation the same spring in which he made his purchase. 

Under the facts, we think his appropriation should date by 

" relation to the time he acquired the property in April, 1867. 

The remaining exceptions will not be particularly con- 
sidered. They were determined adversely to appellant in 
Simpson v. Williams^ ante, and the same ruling will be 
made in this case. 

The judgment and order of the district court are affirmed. 



[No. 1189.] 

ESMERALDA COUNTY, Petitioner, v. THE THIRD 
JUDICIAL DISTRICT COURT et al., Respondents. 

Certiorari — Ji'dicial Officers — What Acts C\y re Revif.wed. — The action 
of a judicial officer in regard to mattei's which are exchisively executive 
or administrative in their nature, even wlien the act of the lejrislaturc 
requiring such duties to be performed is in violation of tlie constitutional 
provision, cannot be reviewed by certhrnn. 

Idem— Judicial Acts. — Under the laws of tliis state, the suj^rcme court is only 
authorized to review the record and proceedinjrs of inferior courts, officers, 
or tribunals acting in a judicial capacity and exercising judicial functions. 

Idem — Act Annexing Portion of Esmeralda County to Lyon County. — The 
act required by section 6. Stat. 1883, 99, to be performed by the district 
judge, in tlie event of the boards of county comrnis.*<ioners failing to agree, 
are not of such a judicial nature or charact<}r as to authorize the supreme 
court of the state to review them upon certiorari. 

D. J, Lewis, District Attorney of Esmeralda county, and 
Wells <f Taylor, for Petitioner. 

W. E. F. Deal, for Respondent. 

By the Court, Hawley, C. J. : 

Petitioner claims that the act annexing a portion of 
Esmeralda county to Lyon county (Stat. 1883, 99) is uncon- 
stitutional in this : that it imposes duties upon the district 
judge, (section 6,) that are not judicial in their nature, in 
contravention of article III of the state constitution ; that, 
inasmuch as the boards of county commissioners failed to 
act within the time prescribed by section 2, the entire pro- 



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Oct. 1884.] Esmeralda Co. r. District Court. 439 



Opinion of the Court — Hawley, C. J. 



visions of the act are absolutely null and void. Respond- 
ents contend that if the acts conferred upon the district 
judge by the sixth section are not judicial in their nature, 
they cannot be reviewed by this court in this proceeding. 
The language of the statute relating to the writ of certiorari 
is clear and plain, and fully sustains the position contended 
for by respondents : 

"This writ rnay.be granted on application by any court 
of this state, except a justice's or recorder's or mayor's 
court. The writ shall be granted in all cases when an 
inferior tribunal, board, or officer exevcmug judicial func- 
tions has exceeded the jurisdiction of such tribunal," etc. 
(1 Comp. Laws, 1497.) 

The act under consideration requires the count}- of Lyon 
to assume and pay a portion of the indebtedness of Esmer- 
alda county as a just and fair compensation for the territory 
detached, and it specifically provides the method by which 
the amount shall be ascertained. The ascertainment of this 
amount does not involve any examination or weighing of 
testimony, or any determination of any princi[)le of law, or 
the exercise of any discretion or judgment. The act pro- 
vides that '' the county of Lyon shall assume and pay to the 
county of Esmeralda, as its portion of the debt assumed on 
the annexation of the territory detached by this act, such 
an equal and proportionate amount of the indebtedness of 
Esmeralda countj- as the taxable propeity in said detached 
and annexed territory, as shown by the assessment roll of 
Esmeralda county for the year 1882, bears to the payment 
of the entire debt." (Sec. 2.) In performing this duty 
the district judge was not required to exercise any judicial 
functions. {People v. Alameda Co, 2 » Cal. 648.) The 
duties performed by the district judge in pursuance of the 
statute did not become judicial acts merely because they 
•were performed by a judicial officer. It has often been 
decided that the action of a judicial officer in regard to 
matters which are exclusively executive or legislative in 
their nature, even when the act of the legislature requiring 
such duties to be performed is in violation of the constitu- 



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440 Langworthy v. Coleman. [8up. Ct. 

Points decided. * 



tioiial provision, cannot be reviewed by certiorari. Under 
the laws of this state, we are only authorized to review the 
record and proceedings of inferior courts, officers, or 
tribunals acting in a judicial capacity, and exercising judi- 
cial functions. 

The acts required to be performed by the district judge, 
in the event of the boards of county commissioners failing 
to agree, are not of such a judicial nature or character as to 
authorize this court to review them ui»on certiorari. (Fio- 
pie V. Board Ed. 54 Cal. 377 ; Thompson v. iS'aime Co., 45 
Mo. 55 ; People v. Superrisor.s, 43 Barb. 234 ; People v. 
Bush, 40 Cal. 345 ; Spring Valley W. W. v. Bryant, 52 
Cal. 138 ; In re Roarke, 13 Xev. 255 ; People v. Walter, 68 
N. Y. 403.) 

The writ sliould therefore be dismissed. It is so ordered. 



18 440l 

S3 aoij [Xu. 1177.] 

R. C. LANGWORTHY, Respondent, i\ JAMES COLE- 
MAN, Appellant. 

Objkctions— (iRor.NDs OF Mr8T BE Stated. — An objection to the ruling of the 
eourt will not he reviewed unless the "ground of objection is statetl in the 
district court. 

Implied Findinus — Presumitioxs. — In the absence of an exprc^ss linding it i> 
the duty of appellate courts to presume the findings of the lower c )urt5 to 
have been such as were necessary to suj^port the judgment. 

Objections— SiioiTLi) be Made in the Court Below. — An objection that a deed 
is intulniissible because it does not convey the premises in dispute should 
be made in the court below. 

Deed — r)i<>?iRiPTio\ in — Intention of Grantor to Convey Lvnd — Pke- 
sumptions. — The deed conveyed "all that certain lot, piece, or parcel of 
land situated *' * * antl i)artic\ilarly described a.s follows, to wit,: one 
stockade cabin and adobe front. Said cabin is known as tlie Egan cabin. '" 
Then follows the usual habendum clause: Held, that the intention of the 
gnmtor wa.s to convey, not only the cabin and adobe front, but tlie land 
on which they stood, and it being admitted that these building:^ were un 
the lot and l)lock in dispute, this court, in the absence of any testimony, 
will not presume that they did not cover the entire lot. 

Existence of Deed— Evidence of. — A deed is the be.st evidence of a convey- 
ance of i)roperty ; but if an agent of the party claiming title to the pn.>p- 
erty is permitted to testify lus io the existence of such deed, without objec- 
tion, showing that Maimant held a deed for the same, it cannot be said 
that there is no evidence of a conveyance of the title to the grantee by 
the grantor. 



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Oct. 1884.] Langwortht i\ Coleman. 441 

Argument for Appellant. 

Conflict of Evidence.— The decision of the lower court, upon the determin- 
ation of a fact, will not be disturbed if there is a substantial conflict of 
evidence. 

Findings — Conclusions of L\w.— If the findings of the court are objectionable 
as only stating conclusions of law the party dissatisfied with them must 
ask to have them correct-ed. If he fails to do so he is not in a position to 
complain on appeal. 

Appeal from the District Court of the Fifth Judicial Dis- 
trict, Nye County. 

The facts appear in the opinion. 

Z>. aS. Truman, for Appellant : 

I. The deed from Belyea was incompetent and wholly 
inadmissible to show a (conveyance of the premises sued for. 
It is only a quit claim deed, and simply conveyed such title 
as the grantor had at the date of conveyance. {Harden v. 
CullinSy 8 Nev. 55; San Francisco v. Lawton, 18 Cal. 465; 
Graff V. Midclleion, 43 Cal. 341.) It mentions no land in 
the premises or granting clause. As there is no ambiguity 
nor uncertainty in the instrument, no claim that anything 
more was conveyed than purported to be conveyed by the 
instrument, this court will not extend the operation of the 
instrument and hold that it conveys any specific or certain 
lot or parcel of land. (Fogiis v. Ward, 10 Nev. 275 ; Mc- 
Curdy v. Alia G. ^ S, M. Co,, 3 Id. 27 ; Well v. Lucerne 
M, Co., 11 Id. 211 ; Robinson v. Imperial S. M. Co,, 5 Id. 
70 ; Hart v. Hawkins, 6 Am. Dec. 672 ; Pitts v. Brown, 
49 Vt. 86; Niagara M. Co. v. Bunker Hill M. Co., 59 Cal. 
613; Borel v. Donahoe, 64 Cal. 447.) This instrument 
cannot be considered as a deed, as no attempt is made to 
convey the title to any parcel of land. It was not shown 
that the house had become a portion of the freehold nor its 
nature. {Mesick v. Sunderland, 6 Cal. 312, and authorities 
there cited; Brown v. Lillie, 6 Nev. 244.) The inevitable 
conclusion is that if no land is described none passes. 
{Grogan v. Vache, 45 Cal. 610.) 

II. The evidence shows that Parker Belyea never had 
authority from Mrs. Belyea to convey this property to 

Vol. XVIII-56 

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442 Langworthy v. Coleman. [Sup. Ct. 



Opinion of the Court — Leonard, J. 



Langworthy. The property was the separate property of 
the wife. (1 Comp. Laws, sees. 151, 159, 169 ; Snyder v. 
Webb, 3 Cal. 84 ; Bessie v. Uarle, 4 Id. 200 ; McKesson v. 
Stanton, 50 Wis. 297; Swain v. Duane, 48 Cal. 358.) 

in. The husband only had the absohite power of man- 
agement and disposal of the community property, for the 
purpose of facilitating transfers thereof without any claim 
of the wife. {Smith v. Smith, 12 Cal. 216.) 

IV. The right, interest or estate of the wife having once 
vested in the real estate, will under our law be divested by 
the voluntary act of the wife only. ( White v. White, 1 
Harrison (N. J.), 202; 4 Kent Com. 65; Simar v. Cana- 
day, 13 Am. Rep. 523 ; Burk's Appeal, 15 Am. Rep. 587.) 

V. The court erred in admitting the deed from Belyea 
to Langworthy in evidence, as the same is insufficient to 
convey the community property, as the signature of the 
wife must be had to make a perfect conveyance. (1 Comp. 
Laws, 182, 184.) 

VI. The court erred in admitting the oral testimony of 
Langworthy and Orr, to whom Egan made the deed. 
When they testified that the deed they had, was the deed 
made by Egan to Belyea, instead of to Hattie Bennetts, they 
were either mistiiken or have wilfully sworn false for the 
purpose of defrauding the defendant. {Judson v. Eslava^ 
12 Am. Dec. 32 ; Marks v. Winter, 19 La. An. 445 ; King 
V. Randalett, 33 Cal. 320 ; Patterson v. Keystone M. Co., 
30 Cal. 365; Folsonis Exs. v. Scott, 6 Cal. 460; McCann 
V. Beach, 2 Cal. 31 ; Jackson v. Root, 18 Johns. 60 ; Can- 
field V. Sanders, 17 Cal. 569 ; Poorman v. Miller, 44 Cal. 

275; Taylor v. Clark, 49 Cal. 671.) 

No appearance for Respondent. 

By the Court, Leonard J.: 

This is an action to recover possession of a town lot and 
buildings thereon, with damages. Plaintiff alleges owner- 
ship in himself, and ouster by defendant. Plaintiff recovered 
judgment for the possession of the premises described in 



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Oct 1884.] Langworthy v. Coleman. 443 

Opinion of the Court — Leonard, J. 

his complaint, together with one hnndred and eight dollars 
damages, the value of the rents. Defendant appeals from 
the judgment, and an order denying his motion for a qew 
trial. Plaiutili' claims title through one Parker lielyea, by 
quit claim deed, dated May 14, 1881. Defendant asserts 
that the title is m his wife, by deed from Mrs. Hattie Belyea, 
wife of Parker Belyea, dated November 9, 1882. Mrs. 
Belyea testified that prior to her marriage, she paid one 
John Egan one hundred and fifty dollars for the property, 
and received a deed therefor in her name ; that the money 
paid was her own, and that the property was purchased for 
herself alone; that the deed was put in a trunk and never 
recorded ; that she had made diligent search for the same, 
but could not find it; that Parker Belyea, her husband, had 
no authority or power to make the deed to plaintiff. On 
the contrary, plaintiff testified that the deed from Egan was 
to Belyea, and not to his wife. It was not claimed that 
Egan made two deeds, and the principal question of fact in 
the case was, whether his conveyance was to Parker Belyea 
or to his wife. 

The transcript shows that the defendant objected to the 
oral testimony of plaintiff upon the point in question ; that 
his objection was overruled and that he excepted. But it 
is not shown that any ground of objection or exception was 
stated. We cannot review the ruling under such circum- 
stances. {Sharon v. Minnock^ 6 Nev. 382; Lighilev, Bern- 
inffy 15 Nev. 389.) The record shows, also, that in view of 
the fact that plaintiff had testified that he had Egan's deed 
\n his possession, the court reserved its decision in the case 
until plaintiff" had time, after the triaJ, to return home and 
return the deed for inspection ; that after going home, plaint- 
iff' sent to the judge a deed from Belyea to Franklin, but said 
in his letter that he did not find any other, though he was con- 
fident he had in his possession the deed from Belyea to him. 
Without recognizing the propriety of such practice, it is 
enough to say that the contents of plaintiff'^s letter cannot 
be considered as evidence in the case, and the result of the 
whole matter is this: Oral testimony was admitted on 



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444 Langworthy v. Coleman. [Sup. Ct. 

Opinion of the Court— Leonard, J. 

behalf of defendant, without objection, that the deed in 
question was from Egan to Mrs. Belyea; and equally posi- 
tiv.e testimony was admitted on behalf of plaintiff, no 
grounds of objection or exception having been stated, to the 
effect that the deed was to Mr. Belyea. The court evi- 
dently gave credit to plaintiff's statement, and found 
accordingly, although that fact does not appear to have 
been found in terms. It is our duty, however, to presume 
it, since there is no finding opposed to it, and such finding 
is necessary to support the judgment. {More v. Loii, 13 
Nev. 380; JSadler v. Immel, 15 Nev. 270.) 

Counsel for appellant contends that the deed from Belyea 
to plaintitt' was inadmissible, because it did not show a con- 
veyance of the premises sued for ; that it conveyed no title 
to lot eighteen, described in the complaint ; that by it, 
Belyea did not attempt to convey more than a stockade 
cabin and adobe front ; that no land was conveyed, or, at 
most, only so much as was actually occupied by the build- 
ings described. The language of the deed referred to is as 
follows: ''* * * That said party of the first part, for 
and in consideration of * * * does, by these presents, 
♦ * * forever quitclaim unto the said party of the 
second part, * ♦ * all that ceitain lot, piece, or parcel 
of land situated * * * and particularly described as fol- 
lows, to-wit : One stockade cabin and adobe front ; said 
cabin is known as the 'Egan cabin,' and situated * * *. 
Together with all and singular the tenements * * *." 

Then follows the habendum clause usually contained in 
conveyances of real estate. The objection now made was 
not made in the trial xjourt. It cannot be presented and con- 
sidered here for the first time. So far as the record shows, 
the deed was admissible to show title in plaintitt* to the 
property described therein^ whatever it was, and no more. 
We are not required to go further than to hold that the 
grantor intended to convey the land on which the buildings 
described stood, in order to uphold the judgment. Constru- 
ing the deed most favorable to the grantee, and considering 
the character of the property, and all the circumstances sur- 



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Oct. 1884.] Langworthy v. Coleman. 445 

Opinion of the Court — Leonard, J. 

rounding the parties, we have no doubt that the intention 
of Belyea was to convey, not only the stockade cabin and 
adobe front, but at least the land on which they stood, as 
well. It was conceded, at the trial, and admitted in the 
pleadings, that the buildings occupied lot eighteen, in block 
twenty-nine ; and, for aught that appears in the record to 
the contrary, the buildings may cover the entire lot. We 
certainly cannot presume that they do not. 

It is said that the written portion of the deed must con- 
trol the printed. But there is no evidence before us showing 
what part is written and what printed. The entire instru- 
ment may be in writing. It is said, also, that the plaintift* 
ought not to recover because he showed two valid outstand- 
ing titles, so far as he is concerned, either of which defeats 
him, as they are both superior to his from Belyea, and that 
he failed to connect himself with either. It is said first, 
that he showed title in the Alexander Company, dating 
from a survey made by one Lefler, December 31, 1877, 
and deed from Lefler to the company, dated March 22, 
1878. For some reason not revealed, plaintifl:* was not 
allowed to introduce a deed of this property from the 
Alexander Company ; but without objection, his agent, Mr. 
Stocker, gave the following testimony: "I was acting as 
Mr. Langworthy's agent in this matter. I went to the 
Alexander Company to get a deed from them to these 
premises for Mr. Langworthy, and got it." The deed was 
undoubtedly the best evidence of a conveyance of the prop- 
erty, but Stocker's testimony having been admitted with- 
out objection, it cannot be said there was no evidence of a 
conveyance of the title to plaintiff by the Alexander Com- 
pany. {Sherwood v. Slssa^ 5 Nev. 349 ; Dalton v. DalioUy 
14 Nev. 426.) Besides, in his answer, and by the testimony 
of his witnesses, defendant alleged and asserted that Egan 
went onto lot eighteen and erected the cabin under a con- 
tract with the Alexander Company, and had power to con- 
vey the property to Mrs. Belyea. In fact, defendant did not 
claim any title sui)erior to Egan's. If Mrs. Belyea got a 
valid title as against plaintifl*, by acquiring Egan's interest, 



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18 446 
I 28 801 i 



446 Elder v. Frbvert. [Sup. Ct. 

Points decided. 

it is (lijfficult to see why plaintiff did not get the same, as 
against her and her grantee, if he received a valid deed 
from Belyea of Egan's interest. 

It is said, also, that the deed sent by plaintiff to the 
judge, after the trial ended, shows that the title was con- 
veyed by Belyea to Franklin long prior to the date of the 
deed from Belyea to plaintiff*. K plaintiff' sent such a deed 
it was not put in evidence, and the court had no right to 
consider it in deciding the case. But the record does not 
show that this deed purported to convey the property in 
question. This language is in the transcript: "The court 
said : Mr. Langwoi'thy has sent me a deed made by Mr. 
Belyea to Mr. Franklin, but says in his letter that he does 
not find any other, but is confident that he has it in his 
possession." 

K the deed referred to by the court should be considered 
in evidence, still the record would not show a prior convey- 
ance of the property in controversy. But there is no legal 
evidence of a conveyance antecedent to the one from Belyea 
to plaintiff'. We cannot say the court erred in refusing to 
find that Mrs. Belyea purchased the property of John Egan, 
and that she did not authorize her husband, Parker Belyea, 
to convey the same to plaintiff. The evidence was conflict- 
ing, as before stated, and w^e cannot disturb the court's con- 
clusions. It is said the court's so-called findings of fact are 
merely conclusions of law ; and so they are. But if appel- 
lant was dissatisfied with them he ought to have asked for 
others. Failing to do so, he cannot now complain. 

Judgment and order appealed from aflBirmed. 



[No. 1173.] 

GEORGE S. ELDER, Respondent, i\ FRED. A. FRE- 
VERT, ET AL., Appellants. 

Seizure of Property Exempt from Execution — Liability of Execution 
Creditor — Parties to Action of Trespass. — An execution creditor, under 
whose direction a levy is unlawfully made, is liable and may be sued with 
the sheriff in an action to recover damages for the trespass. 



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Oct 1884.] Elder v. Frevert. 447 



Argument for Appellant. 



Idem — Judgment— Counter Claim. — In an action against a judgment creditor 
for the unlawful seizure of property exempt from execution, the defendant 
cannot set up the judgment, under whiph the seizure was made, as a 
counter claim to the action. 

Idem — Former Judgment — Evidence of, xVdmissible to Show Character of 
Property:— jETcW, that the judj^ment roll in the prior suit of the judgment 
debtor against the sheriff, the judgment creditors having controlled the 
proceedings in that action, was admissible in evidence to show the char- 
acter of the property and was conclusive upon that issue. 

Idem — Measure of Damages for Detention of Property.— The measure of ^ 
damages for the detention of two horses and a wagon, exempt from 
execution, is the value of the use of the property during the period of 
detention. 

Idem — Detention of Property After Judgment— Damages For. — The ^ 
judgment in the former action, against the sheriff, w^as rendered November 
20, 1880. It was satisfied in full April 14. 1882: Held, that the satisfaction 
of that judgment is no bar to an action to recover damages for the deten- 
tion of the proiwrty during the jwriod of time between the rendition of 
the former judgment and its stitisfaction ; that the detention of the prop- 
erty during this time was a new trespass and the damages a fresh cause of 
action. 

Appeal from the District Court of the Second Judicial 
District, Ormsby County. 

The facts suflBicieiitly appear in the opinion. 

R. M. Clarke^ for Appellants : 

This action will not lie against defendants Frevert, Wag- 
ner and Boles because they were in no sense wrong-doers. 
They were neither severally nor jointly guilty with Wil- 
liams of any trespass or tort against Elder. When Elder 
took the property under his bond in replevin and Williams 
procured its re-delivery upon his re-delivery bond, his pos- 
session was no longer wrongful but lawful, and his posses- 
sion under the replevin bond was a new possession, for 
which Frevert, Wagner and Boles are in no degree respon- 
sible. Thereafter the remedy of Elder was against Williams 
and the sureties upon his re-delivery bond. 

II. There can be no recovery against the defendants, or 
either of them in this action, because the judgment of 
Elder v. William.^ was on the fourteenth of April, 1882, 
fully satisfied. That judgment was for one thousand four 



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448 Elder v. Frbvbrt. [Sap. Ct. 



Argument for Apj-iellant. 



hundred and fifty-one dollars and seventy-five cents, and 
interest thereon at ten per cent, per annum from Novem- 
ber 22, 1880, until paicl, and included the value of the 
team. The satisfaction of the judgment in full extinguished 
it in all its parts, both principal and interest. The inter- 
est is the legal damage which the law assesses for the delay 
in payment. This damage the satisfaction of the judgment 
clearly and conclusively proves has been paid. The time 
for which this damage was paid covers the exact period for 
which damage is claimed in this suit, and if plaintift' pre- 
vails he will have been twice paid. There can be but one 
rule of damages for the delay, and this the law and the 
judgment of the court fixes at ten per cent, per annum on 
the amount recovered. 

III. The property was not a team within the purview of 
the statute and was not exempt from execution. It was 
never used as a team and is not suitable for such. But 
granting the team exempt, the earnings of the team or the 
value of its use, or the damages recovered for its detention, 
are not exempt. It is the specific thing which the law 
exempts, and not the profits or earnings which the use of 
the exempt thing produces. 

IV. If at one time the property was exempt, it lost the 
character of exemi»t property bj- the judicial proceedings 
instituted. When Elder elected to bring his action of 
'* claim and delivery ** and invoked the remedy and prin- 
ciples of law belonging to that action, he subjected himself 
to all the consequences that would legally follow, and among 
them to the delivery of the property to Williams under a 
re-delivery bond. Tliereafter Williams was entitled to hold 
the property and the bond which he gave was substituted 
for it. His possession became lawful, and Elder's right of 
possession was no longer absolute. His new right was to 
have the property if he recovered judgment, or its value in 
money, at the option of Williams, and when Williams sold 
the property under judicial process and deUvered it to Fre- 
vert, Frevert became the owner and Elder's right was cut 
oft*. The judicial sale and replevin proceeding put the title 



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Oct. 1884.] Eldbr v. Frbvert. 449 

Argument for Respondent. 

out of Elder and into the purchaser, and Elder could no 
longer claim its use. The law deprived him of the posses- 
sion and title, and he thereafter had only such remedies as 
the law granted. 

V. It was error to admit the record and decision in Elder 
V, Williams^ either to establish estoppel against appellants 
or to prove the exempt character of the property in ques- 
tion. Appellants were not parties to the former record, nor 
were they otherwise so connected with that suit as to be 
concluded by its judgment. To have made that judgment 
res judicata as to them they should have had notice requir- 
ing them to defend. (Dalton v. Boioker, 8 Nev. 199.) 

Trenmor Coffin, for Respondent : 

I. Damages sued for, or money recovered for a trespass 
by levy upon property exempt from execution, is not sub- 
ject to attachment or set-oft'. The privilege of exemption 
extends to money recovered in a suit for a trespass against 
exempt property. {Buff v. Wells, 7 Ileisk. 17 ; Pueti v. 
Beard, 86 Ind. 172; Lcaviit v. Metcalf, 2 Vt. 342 ; Siebbins 
V. Feeler, 29 Vt. 289; Hall v. Penney, 11 Wend. 44; 
Wilson V. McElroy, 32 Pa. St. 85 ; Thompson on Home- 
steads and Ex. sees. 731, 734, 745, 748, 749, 750, 780, 893, 
894, and authorities cited ; Andrews v. lioican, 28 How. 
Pr. 126 ; Hudson v. Pleis, 11 Paige 184 ; Keyes v. Rines, 
37 Vt. 263-4; Mitchell v. Mdhoan, 11 Kan. 617; Houghton 
V. Lee, 50 Cal. 101 ; Cooney v. Cooney, 65 Barb. 525 ; 
Tdlotson V. Walcoit, 48 N. Y. 189; Smith v. Stewart, 13 
Nev. 67 ; Cobbs v. Coleman, 14 Tex. 594 ; Brackett v. 
Watkins, 21 Wend. 68 ; Kuntz v. Kinney, 33 Wis. 513 ; 
Cox V. Cook, 46 Ga. 302 ; Wade v. Weslow, 62 Ga. 562 ; 
Johnson v. Franklin, 63 Ga. 378 ; Washburn v. Goodheart, 
88 III. 231.) 

n. This is an action to recover damages for a trespass, 
and the oftset and counter claim set up by defendants is a 
money judgment recovered upon contract, and in any event 
not a proper oft'set under our practice in this action. (Civ. 
Pr. Act, sec. 47; 1 Comp. Laws, 1110.) 

Vol. XVIII— 67 

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450 Elder v. Frevbrt. [Sup. Ct 

Aliment for Respondent. 

n. The satisfaction of the judgment of November 20, 
1880, did not extinguish the cause of action sued on in the 
suit. That judgment was for the return of the property 
and for damages for detention which had accrued up to that 
time. (liJlder v. Williams, 16 Nev. 416.) The detention of 
the exempt team of Elder was a continuing trespass, and 
successive suits might be maintained for damages so long 
as the detention continued. (Civ. Pr. Act, sec. 501 ; 1 
Comp. Laws, 1562 ; Freeman on Judg. sec. 241 ; Leland 
v. Marsh, 16 Mass. 389.) Defendants in replevin are 
liable for the value of the use of property during the time 
execution is stayed by an appeal. {Hall v. Edringion, 8 B. 
Monroe 47; Laws of Ky., 1839-40, 173, sec. 2; WiU 
Hams V. Phelps, 16 Wis. 81.) 

III. Parol evidence may always be given to show what 
issues are embraced by a judgment, and to show that parties 
not on record were the real parties in interest, and when 
the showing is made the real parties are bound by the 
judgment. (Freeman on Judg. sees. 175, 273 ; Tarlton v. 
Johnson, 25 Ala. 310 ; Bigelow on Es. 46 ; Stoddard v. 
Thompson, 31 Iowa 80 ; Collins v. Mitchell, 5 Fla. 371; 
Rapely v. Prince, 4 Hill 122; 1 Greenl. Ev. 522, 523; 
Key V. Dent, 14 Md. 86 ; Robbins v. I'he City of Chicago, 
4 Wall. 657 ; Calhoun v. Dunning, 4 Dall. 120.) 

IV. An attaching creditor who advises and directs an 
unlawful levy and indemnifies the sherifi' against loss and 
damage resulting from such levy, makes himself a joint 
trespasser with the sherift' as to all that is done with the 
property afterwards, and if he has control of the defense 
in a suit brought against the sheriJS' to recover the property 
he is bound by the judgment as fully as if he were a party 
defendant on the record. The sheriff is his agent, and he 
— the attaching creditor — is the real party in interest. 
(Bigelow on Es. 61, 65, 68 ; Freeman on Judg. sees. 179, 
184 ; Lovejoy v. Murray, 3 Wall. 1 ; Murray v. Lovejoy, 2 
Cliff. 200 ; Stoddard v. Thompson, 31 Iowa 82 ; Bobbins v. 
The City of Chicago, 4 Wall. 658 ; Miller v. Rhodes, 20 
Ohio St. 494; Emery v. Fowler, 39i Me. 328; Glass 



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Oct. 1884.] Elder v, Frevert. 451 

Argument for Eespondent. 

V. Nichols, 35 Me. 328 ; 1 Greeul. on Ev. sees. 523-24 ; 
Oistle V. Noi/es, 14 N. Y. 329 ; Haion v. Cooper, 29 Vt. 
444 ; Carpenter v. Pier, 30 Vt. 81 ; Peterson v. Loihrop^ 34 
Pa. St. 223 ; Hancock v. Welch, 1 Stark. (N. P.) 347 ; Farns- 
worth V. Arnold, 3 Siieecl 252 ; Kent v. Hudson M. H. Co. 22 
Barb. 278 ; Cilhoun v. Dunning, 4 Dull. 120 ; Kip v. ^rt^- 
Aam, 6 Johns. 158 ; Calkins v. Allerton, 3 Barb. 173 ; War- 
field V. Davis, 14 B. Mon. 42 ; 2'arlton v. Johnson, 25 Ala. 
810 ; :/Vam v. C/oW, 5 Pick. 380 ; JRapeli/ v. Prince, 4 
Hill 122.) 

V. In actions of replevin or claim and delivery the 
measure of damages for the detention of property is the 
value of the use of the property, where it has a usable value, 
(Allen V. Fox, 51 N. Y. 562 ; Sedg. Meas. Dam. 650 ; 
McGavock v. Chamberlain, 20 111. 219 ; Yandle v. Kings- 
bury, 17 Kan. 195 ; Ladd v. Brewer, 17 Kan. 204 ; Bell v. 
Campbell, 17 Kan. 211 ; Williams v. Phelps, 16 Wis. 81 ; 
Brewster v. Silliman, 38 N. Y. 429 ; Say dam v. Jenkins, 
3 Sand. 614 ; Clapp v. Walters, 2 Tex. 130 ; Borsey v. 
Gassaioay, 2 Hi & J. (Md.) 413; Butler v. Mehrling, 15 
111. 488 ; Hudson v. Young, 25 Ala. 376.) 

VI. In the former suit of Elder v. Williams it was not at 
defendant's option to keep the property and satisfy the 
judgment by paying its value, if it was in his power to 
return the property. The property is still in the possession 
of defendant, and had he refused to surrender it and had 
tendered the value as found by the jury,' plaintiff might 
have refused to accept the value and had execution issued 
for the return of the specific property. The judgment was 
for a return of the property if a return could be had. The 
judgment for the value would be in force only after it was 
ascertained by the sheriff that a return of the articles could 
not be had. (1 Comp. Laws, 1263, 1273 ; Lambert v. 
McFarland, 2 Nev. 59 ; C.irson v. Applegarth, 6 Nev. 189 ; 
Buckley v. Buckley, 12 Nev. 429 ; Cummiyigs v. Stewart, 42 
Cal. 231 ; Wetmore v. People, 2 West Coast Rep. 885 ; 
Fitzhugh v. Wiman, 9 N. Y. 562 ; Wells on Replevin, 
aecs. 543, 545, 772-4, and other authorities cited.) 



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452 Elder v. Frevert. [Sup. Ct 

Opinion of the Court— Belknap, J. 

By the Court, Belknap, J. : 

Elder recovered judgment against defendant Williams, 
as sherift', for the recovery of a wagon and two hoi-ses 
exempt from execution, together with damages for their 
detention. The cause was appealed, and the judgment of 
the district court affirmed. Pending the appeal, Williams 
retained the possession of the property. The present action 
was brought for the recovery of damages for the detention 
during the period of time intermediate the rendition of 
the former judgment and the return of the property. The 
property was taken and held by defendant Williams at the 
instance of Frevert, Wagner and Boles, under process of 
attachment issued in actions severally commenced by them 
against Elder. Appellants claim that this action will not 
lie against the defendants other than Williams, because 
they are not guilty of trespass against the propert\- of plaint- 
iff. It has long been settled that an execution creditor, 
under whose direction a levy is unlawfully made, is liable, 
and may be sued with the sherift' in an action for the tres- 
pass. In such cases both are wrong-doera. (Marsh v. 
Backus, 16 Barb. 483; Allen v. Crari/, 10 Wend. 349; 
Acker V. Campbell, 23 Wend. 372 ; Flewster v. Hoyle, 1 
Camp. 187.) In the actions commenced by Frevert, Wag- 
ner and Boles, judgments were recovered against Elder. 
These judgments were pleaded by way of counter-claim to 
this action. The defense was disallowed. One of appel- 
lants* exceptions involves the ruling upon this point. 

The statute exempts two horses and their wagon for the 
purpose of enabling the debtor to earn a living. The 
plaintiff has been deprived of the means of earning a living 
by the use of his team by the wrongful detention for five 
hundred and one days. If the judgment recovered for this 
detention can be applied to the payment of the debts of the 
claimant, the benefits intended by the exemption laws would 
be unavailing to the debtor. The law must be construed so 
as to protect him in the possession and use of his team, as 
well as in. the property itself. This must be done by hold- 



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Oct. 1884.] Elder v. Frevert. 453 

Opinion of the Court — Belknap, J. 

iiig the judgment recovered for damages for the conversion 
not subject to counter-claim. At the trial the district court 
admitted in evidence the judgment roll and statement on 
motion for new trial in the case of Elder v. Williams, 16 
Xev. 416. A general objection was made to the introduc- 
tion of this evidence. If it was admissible for any purpose 
the objection is ineftectual. Parol evidence was first intro- 
duced for the purpose of establishing the interest of the 
defendants in the subject-matter of the litigation, and to 
show that they controlled the proceedings of the former 
suit. They were then parties to the litigation within the 
principle that they were concluded by the former judgment. 
Among the issues determined by that judgment was thfit of 
the character of the property. This was an issue in the 
present case, and the former judgment was conclusive evi- 
dence upon that issue, and admissible for this reason. It is 
unnecessary to consider the admissibility of the records 
further, because the other facts were established, by other 
testimony. 

It is urged that the district court erred in allowing the 
value of the use of the team and wagon as damages during 
the period of detention. The measure of damages in cases 
of this nature is compensation to the injured party for the 
loss of the use of his property. The team and wagon were 
valuable for a present use. Interest on the value of prop- 
erty wrongfully taken, ordinarily aftbrds an indemnity to the 
injured party for the detention of his property ; but in 
this case it is apparent that this rule would not aftbrd 
compensation. The damage suffered by the detention was 
the value of the use of the team and wagon, and the court 
was correct in adopting this measure of damages. {Allen 
V. Fox, 51 N. Y. 562 ; Williams v. Fhelps, 16 Wis. 80 ; 
Crabtree v. Clapham, 67 Me. 326.) In tliis connection it is 
said that since the judgment in Elder v. Williams was fully 
satisfied upon the fourteenth day of April, 1882, by the 
return of the property and the payment of interest to that 
date upon the damages assessed, the plaintift'has been com- 
pensated for the detention, and this action cannot be main- 
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454 Sultan v. Sherwood. [Sup. Ct. 

Argument for Appellant. 

tained. The damages assessed in that case for the detention 
of the property were for the period of time between the 
seizure and the trial. The interest paid was the plenalty 
imposed by the law for delay in the payment of these 
damages. At the time of the trial of the former suit the 
law could not presume, nor could the plaintiff have proven, 
that the detention would have continued. The detention 
from the time of the trial of the former cause was a new 
trespass, and the damage a fresh cause of action. 
Judgment is affirmed. 



[No. 1194.] 

LOUIS SULTAN et al., Respondents, v: O. P. SHER- 
WOOD, Appellant. 

New Trial — Surpribk— Credibility of Evidence. — Where an appeal is taken 
from an order granting a new trial on the ground of surprise, the order 
being based upon affidavits, the district court is the sole judge of the cred- 
ibility of the evidence, and his determination upon the question will not 
be disturbed in the appellate court if there is any testimony to sustain it 

Idem—Mistake as to Material Facts.— A new trial may be granted for a 
mistake as to a material fact if the defeated party had no knowledge thereof 
until after the case was closed and ready for submission to the jury. 

Appeal from the District Court of the Sixth Judicial 
District, Liucoln Couuty. 

The facts appear in the opinion. 

A. B, Hunt and C, H, Patching for Appellant : 

I. The court erred in granting a new trial. The granting 
or refusins: a new trial has been held not to be a matter of 
discretion. {Sacrameaio ^ M. M. Co. v. Showers^ 6 Nev. 
296.) But granting that to a certain extent, it may be a 
matter of discretion, all the authorities concur in holding 
that it is not a capricious or arbitrary discretion, but one to 
be guided and fixed by legal principles. (2 Gra. & Wat. 
New Tr. 46 ; Bailey v. Taaffe, 29 Cal. 424 ; Ex parte 



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Oct. 1884.] Sultan v. Shbrwood. 455 



Argument for Appellant. 



Hoge, 48 Oa]. 6 ; Ux parte Marks, 49 Cal. 681 ; Lybecker 
V. Murray, 58 Cal. 189.) 

II. The verdict of the jury was correct. The evidence 
clearly shows that the property was sold at much less than 
its true value. Inadequacy of consideration is an element 
of fraud. {Chamberlain v. Stern, 11 Nev. 272.) There 
was only one material fact in issue between the parties, 
which was, whether or not the sale was made with lawful 
intent, and was therefore valid; or with intent to hinder, 
delay or defraud the creditors of John Kinney of their law- 
ful suits, damages, forfeitures, debts or demands, and was 
therefore void. It was the jury's peculiar province under 
proper instructions, to decide that issue by a fair consider- 
ation of all the facts and circumstances developed at the 
trial. [Tognini v. Kyle., 15 Nev. 468 ; Thomas v. Snllkan, 
13 Nev. 249 ; Starkie on Evidence, 698 ; Blackmail v. 
Wheaton, 13 Minn. 326 ; Weisiger v. Chisholm, 28 Tex. 
780 ; 1 Gra. & Wat. N. T. 525 ; Ward v. Crutcher, 2 
Bush (Ky.) 87.) 

III. Fraud may be inferred from strong presumptive cir- 
cumstances. ( Tognini v. Kyle, 15 Nev. 468 ; McDanid v. 
Baca, 2 Cal. 337 ; 8 Gra. & Wat. N. T. 1275 ; Hilliard on 
N. T. 473; Bump on Fraud. Con. 541, 560, etseq.; 1 Story 
Eq. Jur. sec. 190.) An intent to defraud is not usually 
published to the world, but on the contrary, the usual 
courae is to give the contract an appearance of an honest 
transaction, and as far as possible to have the conduct of 
the parties correspond therewith. 

IV. If it was agreed or understood between Kinney and 
Jacobs & Sultan, that for the purpose of defrauding Eisen- 
mann, a bona fide creditor of Kinney, that Kinney's account 
should be fraudulently increased for the sake of having it 
cover in whole or in part the amount agreed to be paid as 
a consideration for the property, to-wit: the sum of two 
thousand and thirty-seven dollare and sixty-two cents ; and 
if in carrying out the intent of the ]>arties, said interest 
account was entered at the sum of eight hundred and sev- 
enty-five dollars and one cent, when in fact it was not one- 



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456 Sultan v, Sherwood. [Sup. Ct 

Argument for Respondents. 

sixth of said sum, then the sale was, for that reason alone^ 
void. {Tognini v. Kyle^ 15 Nev. 474.) The answer fairly 
raised that issue, and the jury found in favor of defendant. 
V. No fact is stated in the affidavits showing what the 
testimony would be on a new trial to in any manner explain 
raising the interest account to eight hundred and seventy- 
five dollars and one cent. {McClusky v. Gerhauser^ 2 Nev. 
47.) A new trial will not be granted upon the ground that 
the evidence of a witness took a party by surprise, unless it 
appear that such surprise is in no degree attributable to the 
negligence of such party. {U. S, v. Sniifliy 1 Saw. 278.) 
The affidavit of eleven jurors fully meets the point that they 
did not discover for the first time the overcharge of interest 
while in the jury room. The verdict of the jury is the only 
one that, under the law and the evidence, could have been 
rendered, and the order granting a new trial should be 
reversed. 

Baker ^ Wines^ for Respondents : 

I. The action of the district court in gmnting a new trial 
was proper. There was not only a preponderance of evi- 
dence in support of the bona fides of the sale from Kinney to 
plaintitt's, but there was absolutely no testimony given upon 
the trial wliich even tended to impeach it, and as fraud is 
never to be presumed in the absence of proof, the district 
judge in this case could not refuse to set avside the verdict. 
{McCyarthy v. White, 21 Cal. 495; Joyce v. Joyce. 5 Cal. 161; 
Kerr on Fraud and Mistake, 383 ; Bump on Fraud. Con. 
584 ; Thornton v. Hook, 36 Cal. 223.) Even if the evidence 
were conflicting in this case upon the question of fraud, 
instead of an entire failure of proof to establish it, it would 
have been competent for the court to grant a new trial, and 
its action in that behalf will not be reviewed here unless the 
weight of evidence clearly preponderates against the rulings 
of the court. [Treadway v. Wilder, 9 Nev. 67 ; Margaroli 
V. Milligan, 11 Nev. 96 ; Phillpotts v. Blasdel, 8 Nev. 61 ; 
State V. Yellow Jacket Co. 5 Nev. 415.) 

II. The mere fact that a mistake was made in the corn- 



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Oct. 1884.] Sultan v. Shbrwood. 457 



(>l»inioii of the Court — Belknap, J. 



putation of interest by plaintiffs in their settlement with 
Kinney, which increased the amount of their claim, did not 
justify a verdict condemning the i)laiutitfs as being guilty of 
fraud. {Mendes v. Freiter.^, 16 Nev. 388, and authorities 
there cited.) The action of the district court in granting a 
new trial was proper and ought to be affirmed. 

By the Court, Belknap, J.: 

This is an action of trover. Plaintiffs claim ownership of 
certain personal property by bill of sale and pos8.ession 
thereunder from John Kinney, in consideration of an in- 
debtedness existing between them. Defendant justifies the 
taking as sherift', under an execution issued upon a moneyed 
judgment against Kinney ; admits a pretended transfer 
of the property to plaintiffs, but claims it to have been 
fraudulent as against the execution creditor. Defendant 
recovered judgment. A new trial was granted on the 
ground of surprise. From this order defendant has appealed. 
At the trial, plaintiffs, for the purpose of establishing a 
considemtion for the transfer, introduced in evidence an 
account between themselves, as merchants, and Kinney, 
showing the purchase by him of many articles of general , 
merchandise at various times, advancements of money to 
his use, interest upon overdue balances, some credits, but a 
general indebtedness of two thousand and thirty-six dollars 
and sixty-two cents. The item of interest was eight hun- 
dred and seventy-five dollars and one cent. This item con- 
tains an error against Kinney of about seven hundred dollars. 
The charge for interest should have been one hundred and 
forty -four dollars and fifty-four cents, according to the com- 
putation made by appellani. The account showing this 
item was introduced in evidence upon two trials of this 
cause, but the error, although patent, escaped the attention 
of the court, counsel, and jury at the first trial. At the 
second trial, the district court was not advised of the error 
until after the submission of the cause to the jury, and is of 
opinion that it did not appear to the jury until after they had 
retired to deliberate upon the case. The afl[idavit of Louis 

Vol. XVIII— 58 

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458 Sultan v. Sherwood. [Sup. Ct. 



Opinion of the Ctmrt — Belknap, J. 



Sultan, one of the plaintifts, states, among other things, that 
he *'Is informed aiid believes that the only reason which the 
said jury had and based their said verdict upon, against 
said plaintifts, was the fact which was for the first time dis- 
covered by the said jury in the jury-room, after the said 
jury had retired to deliberate upon their verdict, that there 
was a large mistake in favor of said plaintifts, in the com- 
putation of interest in their (plaintift's') account with John 
Kinney, from whom they purchased the property described 
in the complaint in said action. And affiant further says 
that he did not know of such mistake until the testimony in 
the case had been closed, and the same was ready to be 
submitted to the jury, and, therefore, could not have 
informed his attorneys in relation to the same. And aflBiant 
further says that said account was made up on the thir- 
teenth day of June, A. D. 1882, by Louis Jacobs, a son of 
one of the plaintifts, and a graduate of Heald's Mercantile 
College, and in whom affiant placed confidence as a correct 
accountant ; and that affiant, being engaged in business at 
Bristol at the same time, and very busy, accepted the said 
account as correct, and never examined the same to detect 
, any errors therein ; and that if he had known of such mis- 
take before said cause had been submitted to said jury, he 
could have explained the same so as to show to said jury 
that neither himself nor Mr. Jacobs, his co-plaintift, was 
guilty of any fraud in the transaction.'* 

Counter-affidavits were presented by defendant raising an 
issue of fact as to the time when plaintift' Sultan first 
became aware of the error. The district court is the sole 
judge of the credibility of evidence upon motions of this 
nature. It determined the controverted question in favor 
of the plaintifts, and as there is testimony sustaining the 
finding we cannot disturb it. 

The only matter open for consideration is whether the 
affidavit of Sultan sets forth a state of facts entitling plaintiff's 
to a new trial. It was the duty of Sultan to have informed 
the court and jury of the error in the computation of interest 
at the earliest practicable moment after its discovery. A 



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Oct. 1884.] State v. Warrbn. 459 

Points decided. 

party cannot be allowed to take the chances of success, and, 
upon the rendition of an adverse verdict, obtain a new trial 
on the ground of surprise. The aflBidavit states "that he 
(Sultan) did not know of such mistake until after the testi- 
mony in the case had been closed, and the same was ready 
to be submitted to the jury. " The language of the affidavit 
— that the cause was ready to be submitted to the jury — 
implies that everything had been done, by way of intro- 
duction of evidence, argument of counsel, and instruction 
by the court, necessary to an understanding of tlie issues 
involved ; and that the only act remaining to be performed 
was to transfer the further consideration of the cause to the 
jury. The submission of a cause under such circumstances 
is a mere momentary act, generally contemporaneous with 
its preparation for submission. The affidavit bears out the 
view that np time for deliberation or action elapsed, and 
states that, because he learned of the error as set forth, 
plaintiff "could not have informed his attorneys in relation 
to the same." It may well have been, that, learning of the 
error at the conclusion of the trial, plaintift' did not have a 
reasonable opportunity to act further in the matter, except 
upon motion for new trial. It is extraordinary that the 
mistake should have escaped the attention of counsel upon 
each side at both trials. This, however, appears to be the 
fact ; and a matter unknown to the court, and upon which 
the verdict may have been principall3' predicated, was not 
investigated. We think that the ground of surprise, within 
the meaning of the statute, has been established, and that 
plaintitts were not guilty of laches. 

The order of the district court is affirmed. 



[No. 1183.] 

THE STATE OF NEVADA, Respondent, v. JAMES 
WARREN, Appellant. 

Settlement of Statement by District Judge — Supreme Court H.\s no 
Power Over in Cbimin.\l C.^ses, — In the absence of any .statute upon the 
subject, the supreme court hus no power to settle a statement on motion 
for a new trial in a criminal case, when the district court refuses to settle 
such statement according to the facts claimed by the moving party. , 

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460 State v. Warren. * [Sup. Ct. 



Opinion of the Court — Leonard, J. 



Idem — Reporter's Notes. — The district court has the right to settle the state- 
ment according to the facts of the case without regard to the recitals con- 
tained in the reporter's notes. 

Criminal Law — Self-Defense— Evidence as to Assault — Remarks by the 
Judge in Refusing Instructions — Error. — In a prosecution for murder 
where the defendant relies upon a justification, and evidence tending to 
establbh such defense is given, it is error for the judge, in refusing to give 
certain instructions concerning the laws of self-defense, to remark to coun- 
sel, in the presence of the jury, that he did not give the instructions for the 
reason that he does not " remember of any testimony given in this case 
tending to show that the deceased ever made an assault upon the defend- 
ant, or that there w^as any attempted assault made by deceased at the time 
of the killing; but the jurors are the exclusive judges of the facts in the 
case." (Hawley, C. J., dissenting.) 

Appeal from the District Court of the Third Judicial 
District, Esmeralda County. 

The facts are stated in the opinion. 

J. F. Bollei\ for Appellant. 

W. H. Davenport, Attorney-General, and H. F, BartinCj 
for Respondent. 

By the Court, Leonard, J. : 

Defendant was convicted of murder in the second degree. 
He appeals from the judgment, and the order denying his 
motion for a new trial. The bill of exceptions, as signed 
and settled by the court, shows that at the trial, in the 
presence and hearing of the jurors, the court remarked as 
follows : 

''I will not give defendant's instructions, numbera seven 
and eight, for the reason that I do not remember of any 
testimony given in this case tending to show that the de- 
ceased ever made an assault upon the defendant, Warren, 
or that there was any attemi)ted assault made by deceased 
on Warren, at the time of the killing ; but the jurors are 
the exclusive judt^es of the facts of the case.'' 

Before judgment was pronounced, and before filing his 
motion for a new ti'ial, defend tint objected to that part of 
the bill of exceptions which purported to state the remarks 
of the court above referred to, and claimed that they were 



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Oct. 1884.] State r. Warren. ' 461 

Opinion of the Court — Leonard, J. 



not as set out in the bill of exceptions as settled. He 
excepted, also, to the action of the court in striking out of 
the bill of exceptions what is claimed to have been a copy 
of the reporter's notes of the court's remarks, and he asked 
. leave to make proof of the remarks that were in fact made. 
There is nothing in the record showing that counsel for the 
respective jjarties agreed that the remarks of the court 
were as stated in the bill of exceptions prepared and i)re- 
sented by defendant. We need not, therefore, express any 
opinion as to what would have been the effect of such an 
agreement. It is now urged that the court erred in refus- 
ing to permit defendant to introduce evidence showing 
what remarks were made. .The civil practice act (Comp. 
Laws 1252) provides a remedy in cicil cases, when the court 
refuses to settle a statement according to the facts claimed 
by the moving party, but in the criminal practice act there 
is no such provision. In California both the civil and crimi- 
nal practice acts provide a remedy for such cases. The 
question is, whether, in the absence of a statute, this court 
has any power in the premises. We do not think it has. 
The statute makes it tlie duty of the trial court to settle the 
bill of exceptions according to the facts, and this court is 
obliged to take it, and act upon it, as signed and settled. The 
legislature has left the settlement to the lower court, with- 
out providing relief in case of real or imaginary error. 
Without affirmative legislative action this court is power- 
less. Upon the point that the court erred in striking out 
the reporter's notes of the remarks made, it is enough to 
say that the reporter's notes are not in the transcript, and 
if they were, we sliould hold that tlie court had the right to 
settle the bill according to the facts, and that such was its 
duty. {State v. Lnrkin, 11 Nev. 321.) 

We come now to the question, whether the court's re- 
marks set out above entitle defendant to a new trial. The 
record shows that defendant admitted killing Darling, but 
that he set up the defense of justifiable homicide. He tes- 
tified that the deceased threatened his life at different times, 
and especially on tlie evening previous to the homicide. 



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462 State v, Warrex. [Sup. Ct 

Opinion of the Court — Leonard, J. 

Other witnesses corroborated his statement in this respect 
Defendant's testimony is substantially this : That he met 
deceased the evening before the homicide. Decejised tapped 
defendant on the shoulder and said he wanted to see him. 
Defendant stepped aside, and deceased said there were three 
that he was going to kill, and defend- 
ant was one of them ; that he would fill defendant full of 
holes; that deceased had a big pistol in his pocket, which 
he started to pull ; that he raised his hand to hit defendant, 

and said, '' I will see you again, you dirty ;" 

that subsequently, during the evening, he was warned by 
diflerent persons to look out for deceased ; that, fearing an 
attack by deceased during the night, he put two chairs 
against the door, and threw himself down across the bed with 
his clothes on ; that he got up early the next morning and 
went to the hotel by a back way. After stoi)ping there 
about an hour he walked outside, and saw deceased down 
the street, and to keep out of his way, went into the bar- 
room and walked up and down the floor for a while ; that 
Darling came along, when defendant was within about two 
feet of the outside door, and said, "I have got you now," 
when defendant i)ulled his pistol and fired three times before 
deceased fell ; that he thought Darling had a pistol, although 
he did not know it ; that at the time of the shooting deceased 
had his hand in his pocket, where he had his pistol the 
previous evening. He also testified that "when he (de- 
ceased) saw me, he started in after me. He made a dart 
at me, and just as he came at me I fired two or three shots 
before he got down." Green testified for defendant that he 
saw Darling stop at the liotel door; that he made a move as 
if he was going in ; that he had one hand in his pocket; 
that he heard him say something, but did not understand 
the words; that somebody said, "You come to threaten 
my life again." Witnesses testified that decea^ed was 
quarrelsome, especially when drinking, and that he was 
larger and stronger than defendant. 

''An assault is an unlawful attempt, coupled with a pres- 
ent ability, to commit a violent injury upon the pei^on of 



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Oct. 1884.] Statb V, Warren. 468 



Opinion of the Court — Leonard, J. 



another." (Comp. Laws 2352.) Counsel for the state do 
not deny that there was testimony which, if credited, 
tended to prove an assault upon defendant. Whether or 
not that testimony was credible was for the jury to decide, 
as well as, whether, if credited, in connection with other 
evidence in the case, it was satisfactory proof of an assault. 
Defendant requested certain instructions, which were re- 
fused, for the sole reason, as stated, that the court did not 
remember any testimony tending to show that Darling made, 
or attempted to make, an assault upon defendant at the 
time of the killing; "but," said the court, in the same 
connection, "the jurors are the exclusive judges of the 
facts in the case." It being unnecessary, we do not decide 
whether the court might have made the oral remarks under 
consideration, if, in fact, there had been no evidence of an 
assault. The question is, was it error to make them in 
view of the fact that there was such? It was of the first 
importance to defendant to show that Darling assaulted him 
at the time, or made demonstrations which, in view of all 
the facts, justified him, as a reasonable man, in believing 
that he was in danger of losing his life oi* receiving great 
bodily harm. Former threats alone did not excuse him. 
They were of little, if any, value to him in his defense, 
except in connection with acts committed at the time 
of the homicide. It follows that, if the court's recollec- 
tion of the evidence, as stated, was correct, the defense of 
justification fell to the ground. The court was not required, 
in denying the instructions, to make these or any remarks 
tending to a misconstruction of the evidence. There was 
no occasion or demand for any comments, the natural tend- 
ency of which was to satisfy the minds of the jury upon a 
material question in controversy, witliout a careful con- 
sideration of the evidence given. That such was their 
tendency we cannot doubt. So certain was the court that 
there was no testimony tending to prove an assault, that the 
instructions were refused for the reasons stated only. The 
jury had good reason to think they would not have been 
refused, if the court was aware of any testimony tending to 



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464 State v. Warren. [Sup. Ct. 



Opinion of the Court — Leonard, J. 



prove an assault. They had good reason to think, also, 
that the court would not have refused instructions, appar- 
ently unobjectionable in other respects, without being con- 
vinced that there was no testimony of the character men- 
tioned ; and the natural tendency of the remarks that accom- 
panied the refusal was not materially changed by the use of 
the words, '* I do not remember.'' 

Jurors presume, and they have a right to presume, that 
courts remember testimony, if it is given, that is vital for 
or against either party ; and this is especially true when 
the court unhesitatingly rules as it would have done if, in 
fact, there had been no such testimony. It cannot be said 
the court would have had a right to state, in the presence 
of the jury, that there was no testimony tending to show an 
assault upon defendant, even though it had been said, also, 
that the jurors were the exclusive judges of the facts, not- 
withstanding the opinion of the court. If such remarks' 
would have been erroneous, were not those under consider- 
ation equally so ? If there is testimony tending to show an 
assault, may a court say, "I will not give this instruction 
because 1 do not remember any such testmo7v/,*' but cannot 
siiy, ''I will not give it because there is no such testimony V 
In one case, as in the other, under the constitution and laws, 
the jurors are the exclusive judges of the facts, and they are 
so told by the court. If the court says "there is no such 
testimony," still the jurors are the judges of the facts, and 
their legal duty is to examine the evidence and decide upon 
it, without reference to the judge's opinion. In TickeVs 
Oiscy 13 Nev. 510, we said : "It is entirely natural that 
jurors do, and proper that they should, listen attentively to, 
and be greatly influenced by, all remarks of the court. They 
have the right to confide in its expressed opinions, and it is 
their duty to obey its legal instructions. It may be said 
that jurors are presumed to know the law that the court 
has not the right to instruct them, or give any opinion, upon 
questions of fact ; and that, therefore, they ought not to be 
and will not be influenced thereby. In my opinion experi- 
ence does not justify such conclusion ; but, at any rate. 



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Oct. 1884.] State v. Warren. 465 

Opinion of the Court— Leonard, J. 

courts cannot presume against the natural result of remarks 
or instructions improperly made. If the court, in this case, 
had informed the jury that it had no right to comment or 
instruct them upon questions of fact, and that they must not 
be influenced by what it might say, still its expressed opinion 
must have influenced them. They would have known the 
opinion of the court then, as now, and it would have left its 
impression upon their minds." 

Suppose the court had said, "I will not give these 
instructions because I do not remember any evidence tend- 
ing to sustain defendant's claim or defense of justifiable 
homicide." Can any one doubt that the eft'ect of such 
remarks would have been to prejudice the minds of the 
jrjry against defendant? If the court fails to remember 
important facts in a case, and so states in the presence of 
the jury, is it not most natural for the latter to take the 
■ court's view without examination, instead of carefully 
weighing the testimony as it was given ? In State v. Ah 
Tong, 7 Nev. 152, this court said: ''Under our practice, 
the judge should intimate no opinion upon the facts. 'If he 
cannot do so directly, he cannot indirectly ; if not explicitly, 
he cannot by inuendo; and the eftect of such an opinion 
cannot be obviated by announcing in distinct terms the 
jury's independency of him in all matters of fact.' {State 
V. Dick J 2 Winst. 47.) One object is stated to be, to guard 
against the well known proneness of jurors to seek to ascer- 
tain the opinion of the judge, and to shift their responsi- 
bilities from themselves to the court." 

The vice of remarks like those under consideration, 
whether they be "there is no such testimony," or "I do 
not remember any such," is not that they take from the 
jury their right to judge of the facts, but is that they throw 
the weight of the court's opinion into the scale opposed to 
defendant, when he has the right to be judged by the evi- 
dence as construed by the jury, uninfluenced and unbiased 
by any opinion of the judge. The natural tendency of the 
remarks made in this case was to convey the idea to the 
jury that in the opinion of the court no testimony was given 
Vol. XVIII— 69 

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466 State v. Warren, [Sup. Ct. 



Opinion of the Court— Leonard, J. 



for the purpose of proving an assault upon defendant, or 
that the testimony oftered and admitted for that purpose 
did not tend to prove an assault. In either case, the 
impression conveyed or opinion expressed was erroneous, 
and the result may have been to lead the jury into the 
error entertained by the court. 

It is said by counsel for the state that, when the court 
refused the instructions upon the grounds stated, defend- 
ant's attorney should have refreshed the judge's memory 
by stating the testimony, and asking that the reporter's 
notes be read. This argument might or might not be sound 
(a question we do not decide,) if the question under con- 
sideration was whether the court erred in refusing the in- 
structions asked ; but it certainly has no merit where thB 
error complained of is the making of the remarks in ques- 
tion. Defendant's counsel had the right to ask the court to 
give these instructions. The court's duty was to refuse 
them if they were not law, or were inapplicable to the case; 
but it was not justified in refusing them for the reason that 
there was no evidence to support them, if such there was ; 
and it had no right to convey the idea to the jury that there 
was no evidence tending to show an assault, in the face of 
the testimony which, if believed, did tend to prove that 
material contested fact. Nor was it any part of the duty of 
defendant's counsel to correct the court's error after the 
remarks had been made. He was not there for that 
purpose. 

There are several decisions of this court that bear upon 
the question under, consideration, to which we refer : Peo- 
ple V. Bonds, 1 Nev. 36 ; State v. Ah Tong, 7 Nev. 152 ; State 
V. Harkin^ Id. 381 ; State v. Tickel^ 13 Nev. 609 ; dissenting 
opinion of Mr. Justice Lewis in State v. Millain^ 3 Nev. 
468, referred to and approved by the court in State v. Ah 
Tong^ supra. See, also, Shirwin v. People^ 69 HI. 56 ; 
Fisher v. People, 23 HI. 294; Sullivan v. People, 81 
Mich. 4. 

Judgment and order appealed from reversed, and cause 
remanded. 



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Oct. 1884.] State v. Warren. 467 

Opinion of Hawley, C. J., dissenting. 

Hawley, C. J., dissenting: 

I am unwilling to give my sanction to a reversal of this 
case upon the ground stated in the opinion of the court. 
The constitution of this state declares that "judges shall 
not charge juries in respect to matters of fact, but may 
state the testimony and declare the law." (Article VI, 
sec. 12.) The remarks of the district judge, while verging 
closely upon the prohibited line of the constitution, do not, 
in my opinion, cross it. It is claimed that the language of 
the judge, construed as it must be with reference to the 
time and manner of its use, was equivalent to a statement 
that there was no evidence tending to show ah assault. If 
these premises are correct, then the conclusion arrived at 
by the court must necessarily follow, provided there was 
any evidence, however slight, tending to show an assault. 
But it seems to me there is a marked difterence in the facts 
whether a judge states to the jury that there is no testi- 
mony upon a certain point, or simply states that he has no 
recollection of any testimony being given upon the point. 
In the former case the statement would, if there was any 
testimony, clearly invade the province of the jury, because 
the question at issue would thereby be withdrawn from their 
consideration; but in the latter case it would be left to the 
jury to decide whether there was any testimony which the 
court had overlooked, and, if any, whether it was sufficient to 
establish the fact in controversy, and hence the province of 
the jury would not necessarily be invaded. I do not think 
the time of making the remarks in question changes the 
result I have stilted. 

Under the provisions of the constitution the district judge 
may, if so inclined, " state the testimony.** If in doing so 
he leaves out some material parts thereof, at the same time 
informing the jury that he has stated all the testimony 
within his recollection, but that they are the exclusive 
judges of the facts, and that it is their duty, in deciding the 
case, to consider all the testimony adduced at the trial, 
would the omission of the judge to state all the testimony 
justify a reversal of the case ? I think not. Every prac- 



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468 State v. Warren. [Sap. Ct. 

Opinion of Hawley, C. J., dissenting. 

titioner knows that in the trial of causes there often arises 
a controverey between counsel in relation to th^ testimony. 
How is that controversy to be decided ? If a reporter has 
taken down the testimony his notes may be referred to. 
Each counsel may state his recollection. The court may 
state what its memory is in regard thereto. But, after all, 
it is for the jury to decide, and if the dis{)uted question is 
not withdrawn from their unbiased consideration, their 
peculiar province to decide the facts is not invaded. 

The principles announced in the decisions cited in the 
opinion of the court and in appellant's brief are correct 
upon the facts which existed therein. It is alwaj-s the 
province of the jury to say whether a fact is proved or not. 
They are the exclusive judges of the credibility of the wit- 
nesses, of the weight of the testimony, and of the facts 
established by the testimony. They must be left free to 
act in accordance with the dictates of their judgment. 
The final decision upon the facts rests with them, and any 
interference by the court with a view to influence them in 
finding a verdict against their convictions is unwarrantable 
and irregular. The constitutional provision is violated 
whenever a judge makes any remarks in the presence of 
the jury, or so instructs them as to force the jury to a par- 
ticular conclusion upon the whole, or any part, of the case, 
or to take away their exclusive right to weigh the evidence 
and determine the facts from all the testimony given in the 
case. But in making the remarks in this case the district 
judge did not, in my opinion, charge the jury in respect to 
a matter of fact. He did not express any opinion upon the 
weight of the testimony, or make any statement as to^ the 
credibility of the testimony as given by any witness. 

When an attorney desires an instruction to be given upon 
his theory of the case, is it not proper for him to call the 
attention of tlie court to the particular testimony upon 
which he relies to sustain the instruction ? If he omits to 
do so, and the court informs him that it has no recollection 
of any testimony having been given tending to show the 
existence of a fact referred to in the instruction, is it not 



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Oct. 1884.] State v. Warren. 469 

Opinion of Hawley, C. J., dissenting. 

the duty of counsel to refresh the memory of the court by a 
reference to the testimony ? It is true that the court is not 
usually called upon to make any remarks in giving or refus- 
ing instructions ; but, if it did not remember the testimony, 
would it be improper to request counsel to refer to the par- 
ticular testimony upon which they rely, so as to enable the 
court to act intelligently in the matter? 

In People v. Barnkart the court agreed in its recollection 
with the district attorney that no evidence had been given 
of the character claimed by defendant's counsel, and at the 
same time said " that the jury were the sole judges of what 
the testimony, if any, in that respect was.'* Defendant's 
counsel excepted to the action of the court in allowing the 
district attorney to proceed in arguing the case upon the 
theory that no such testimony had been gi ven. The supreme 
court declared the exception to be without merit : *'An 
erroneous statement of the testimony to a jury by counsel 
in the trial of a cause is not an error for which a new trial 
will be awarded. It would be strange if it was. It often 
occurs that counsel do not agree as to what the testimony is. 
Indeed, it rarely happens that they do. It is for the jury 
to determine that question, and so the court told the jury in 
this case, at the same time aftbrding defendant the oppor- 
tunity, of which he did not avail himself, to show from the 
reporter's notes just what the testimony was. ' ' (59 Cal. 402.) 

In JStaie v. Reynolds the court stated the testimony given 
by the witnesses in chief, without adverting to the facts 
elicited upon the cross-examination ; but closed its remarks 
with the injunction that the jury ''must base their verdict 
upon all the evidence." The court, in disposing of the 
exceptions to the omission of the court, said, quoting from 
the previous decision of State v. Grady ^ 83 N. C. 643: "It 
was the duty of counsel, if evidence important to the de- 
fense had been overlooked, then to call it to the attention 
of the judge and have the omission supplied. It would 
neither be just to him, nor conducive to a fair trial, to allow 
this neglect or oversight, attributable to the counsel quite 
as much as to the judge, to be assigned for error, entitling 
the accused to another trial." (87 N. C. 546.) ^ t 

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470 Statb v. Warrbn. [Sup. Ct 

Opinion of Hawley, C. J., dissenting. 

In State v. Beed the court said : "It can hardly be 
expected that a judge, in his charge, shall allude to all the 
testimony developed during a long trial, or all the circum- 
stances growing out of it, nor is it necessary after a full and 
careful analysis of it by able counsel. But if any material 
omission or misstatement occur, it is the privilege and the 
duty of counsel to call the attention of the court to it at the 
time, otherwise all grounds of complaint are waived." (62 
Me. 137.) 

These cases do not present precisely the same question as in 
the case at bar ; but the principle announced is, in my opinion