This is a digital copy of a book that was preserved for generations on library shelves before it was carefully scanned by Google as part of a project
to make the world's books discoverable online.
It has survived long enough for the copyright to expire and the book to enter the public domain. A public domain book is one that was never subject
to copyright or whose legal copyright term has expired. Whether a book is in the public domain may vary country to country. Public domain books
are our gateways to the past, representing a wealth of history, culture and knowledge that's often difficult to discover.
Marks, notations and other marginalia present in the original volume will appear in this file - a reminder of this book's long journey from the
publisher to a library and finally to you.
Usage guidelines
Google is proud to partner with libraries to digitize public domain materials and make them widely accessible. Public domain books belong to the
public and we are merely their custodians. Nevertheless, this work is expensive, so in order to keep providing this resource, we have taken steps to
prevent abuse by commercial parties, including placing technical restrictions on automated querying.
We also ask that you:
+ Make non-commercial use of the files We designed Google Book Search for use by individuals, and we request that you use these files for
personal, non-commercial purposes.
+ Refrain from automated querying Do not send automated queries of any sort to Google's system: If you are conducting research on machine
translation, optical character recognition or other areas where access to a large amount of text is helpful, please contact us. We encourage the
use of public domain materials for these purposes and may be able to help.
+ Maintain attribution The Google "watermark" you see on each file is essential for informing people about this project and helping them find
additional materials through Google Book Search. Please do not remove it.
+ Keep it legal Whatever your use, remember that you are responsible for ensuring that what you are doing is legal. Do not assume that just
because we believe a book is in the public domain for users in the United States, that the work is also in the public domain for users in other
countries. Whether a book is still in copyright varies from country to country, and we can't offer guidance on whether any specific use of
any specific book is allowed. Please do not assume that a book's appearance in Google Book Search means it can be used in any manner
anywhere in the world. Copyright infringement liability can be quite severe.
About Google Book Search
Google's mission is to organize the world's information and to make it universally accessible and useful. Google Book Search helps readers
discover the world's books while helping authors and publishers reach new audiences. You can search through the full text of this book on the web
at|http : //books . google . com/
HARVARD I ^. W SCHOOL
LixJ:»w*ucY
Digitized by
Google
Digitized by
Googk
Digitized by
Google
Digitized by
Google
Digitized by
Google
Digitized by
Google
Digitized by
Google 1
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.
Digitized by
Google
^
D^. a. z^^^"
Digitized by
Google
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
Digitized by
Google
Digitized by
Google
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
Digitized by
Google
Digitized by
Google
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
Digitized by
Google
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
Digitized by
Google
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
Digitized by
Google
Digitized by
Google
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
Digitized by
Google
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.
Digitized by
Google
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 ;
Digitized by
Google
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,
Digitized by
Google
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-
Digitized by
Google
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.
"»"
Digitized by
Google
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-
VoL.xvni-3 ^ ^^[^
Digitized by VjVJiJV
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-
Digitized by VjUUV IC
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.
Digitized by VjOOQ IC
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.
Digitized by
Google
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.
Digitized by VjOOQ IC
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.)
Digitized by VjOOQ IC
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
Digitized by VjOOQ IC
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
Digitized by
Google
)
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
Digitized by VjOOQ IC
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
Digitized by
Google
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
Digitized by VjUU^'IC
18
28.
1*8871
18
«
8*T98|
18
350
4*4981
ao
117
17*757|
r—
— 1
IB
«8
83
J^
1ft
28
24
488
24
480
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-
Digitized by VjOOQ IC
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
Digitized by VjUUV IC
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-
Digitized by
Google
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
Digitized by VjUU^IC
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.
Digitized by
Google
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
Digitized by VjOOQ IC
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 1011 . [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-
Digitized by
Google
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.
Digitized by VjOOQ IC
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-
Digitized by
Google
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
Digitized by VjUU^IC
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.
Digitized by
Google
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
Digitized by
Google
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-
Digitized by
Google
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
Digitized by VjOOQ IC
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
Digitized by
Google
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
Digitized by
Google
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.
Digitized by
Google
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
Digitized by
Google
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
Digitized by
Google
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
Digitized by
Google
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.
Digitized by
Google
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 ^ .
Digitized by VjOOQ IC
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.
Digitized by
Google
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.)
Digitized by
Google
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
Digitized by
Google
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
Digitized by
Google
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
Digitized by
Google
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
Digitized by
Google
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
Digitized by
Google
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
Digitized by VjOOQ IC
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
Digitized by
Google
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.
Digitized by VjOOQ IC
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.
Digitized by
Google
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.
Digitized by
Google
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.
Digitized by VjOOQ IC
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
Digitized by Vj
oogle
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
Digitized by
Google
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^]^
Digitized by VjOO^ IC
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
Digitized by
Google
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.)
Digitized by
Google
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
Digitized by
Google
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
Digitized by
Google
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
Digitized by
Google
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.
Digitized by
Google
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
Digitized by
Google
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
Digitized by
Google
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
Digitized by
Google
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.
Digitized by
Google
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
Digitized by
Google
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,
Digitized by
Google
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
Digitized by
Google
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
Digitized by
Google
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
Digitized by
Google
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
Digitized by VjOOQ IC
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
Digitized by
Google
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.
Digitized by
Google
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
Digitized by
Google
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
Digitized by
Google
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
Digitized by
Google
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-
Digitized by
Google
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.
Digitized by VjOOQ IC
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
Digitized by
Google
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.
Digitized by
Google
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
Digitized by
Google
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
Digitized by
Google
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
Digitized by
Google
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
Digitized by
Google
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,,
Digitized by VjOOQ IC
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
Digitized by
Google
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
Digitized by VjOO^ IC
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
Digitized by
Google
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-
Digitized by
Google
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^
Digitized by
Google
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
Digitized by
Google
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
Digitized by
Google
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
Digitized by VjOOQ IC
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
Digitized by
Google
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
Digitized by
Google
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.
Digitized by
Google
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.
Digitized by
Google
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
Digitized by
Google
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 ;
Digitized by
Google
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
Digitized by
Google
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
Digitized by VjOOQ IC
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-
Digitized by
Google
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
Digitized by
Google
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
Digitized by
Google
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
Digitized by
Google
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
Digitized by
Google
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 ;
Digitized by
Google
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.
Digitized by
Google
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
Digitized by VjOOQ IC
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,
Digitized by
Googk
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
Digitized by VjOOQIC
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-
Digitized by
Google
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
Digitized by
Google
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.
Digitized by
Google
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,
Digitized by VjOOQ IC
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-
Digitized by VjOOQ IC
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
Digitized by
Google
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-
Digitized by VjOOQIC
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
Digitized by
Google
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
Digitized by
Google
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.
Digitized by VjOOQ IC
. 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
Digitized by
Google
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
Digitized by VjOOQIC
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
Digitized by
Google
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
Digitized by VjOOQ IC
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
Digitized by
Google
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
Digitized by
Google
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.
Digitized by
Google
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
Digitized by VjOOQIC
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-
Digitized by
Google
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
Digitized by
Google
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
Digitized by
Google
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
Digitized by VjOOQ IC
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,
Digitized by
Google
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
Digitized by
Google
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-
Digitized by
Google
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
Digitized by VjOOQ IC
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 0 ; 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,
Digitized by
Google
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
Digitized by VjOOQ IC
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,
Digitized by
Google
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
Digitized by VjOOQ IC
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
Digitized by
Google
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-
Digitized by VjOOQIC
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
Digitized by
Google
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
Digitized by
Google
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
Digitized by
Google
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.
Digitized by
Google
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
Digitized by
Google
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
Digitized by VJVJL/V Iv
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-
Digitized by
Google
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
Digitized by VjOOQ IC
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
Digitized by
Google
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
Digitized by
Google
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,
Digitized by
Google
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,
Digitized by
Google
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
Digitized by VjUUV IC
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
Digitized by VjOOQ IC
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-
Digitized by
Google
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
Digitized by VjOOQIC
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.
Digitized by
Google
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.
Digitized by VjUUV'IC
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,
Digitized by
Google
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-
Digitized by
Google
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
Digitized by
Google
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 ^
Digitized by VjOOQ IC
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-
Digitized by
Google
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
Digitized by
Google
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
Digitized by
Google
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.
Digitized by
Google
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-
Digitized by
Google
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
Digitized by
Google
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
Digitized by
Google
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
Digitized by VjOOQ IC
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.)
Digitized by
Google
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.
Digitized by
Google
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
Digitized by
Google
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
Digitized by
Google
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
Digitized by
Google
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
Digitized by
Google
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
Digitized by
Google
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
Digitized by VjOOQ IC
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
Digitized by
Google
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
Digitized by
Google
\
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
Digitized by
Google
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
Digitized by
Google
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.
Digitized by
Google
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
Digitized by
Google
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
Digitized by
Googk
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^
Digitized by VjOOQ IC
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
Digitized by
Google
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.)
Digitized by VjOOQ IC
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-
Digitized by
Google
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
Digitized by
Google
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-
Digitized by
Google
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.
Digitized by Vj
oogle
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
Digitized by
Google
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
Digitized by VjOOQIC
18
900
21
244
2*
50
8»»l(»ll
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.)
Digitized by
Google
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.)
Digitized by
Google
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
Digitized by
Google
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-
Digitized by
Google
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.)
Digitized by VjOOQ IC
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.
Digitized by
Google
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
Digitized by
Google
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^
Digitized by VjOOQ IC
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.
Digitized by
Google
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
Digitized by
Google
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-
Digitized by VjOOQ IC
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
Digitized by
Google
^ 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
Digitized by
Google
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.)
Digitized by
Google
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.
Digitized by
Google
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
Digitized by VjOOQ IC
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.
Digitized by
Google
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.)
Digitized by VjOOQ IC
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
Digitized by
Google
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
Digitized by
Google
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
Digitized by
Google
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,
Digitized by VjUU^IC
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.)
Digitized by
Google
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^^^]^
Digitized by VjOOQ IC
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
Digitized by
Google
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
Digitized by
Google
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*
Digitized by
Google
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.
Digitized by
Google
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.)
Digitized by
Google
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-
Digitized by
Google
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.)
Digitized by
Google
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
Digitized by VjOOQ IC
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^^
Digitized by
Google
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.
Digitized by
Google
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
Digitized by
Google
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.
Digitized by
Google
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.
Digitized by
Google
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
Digitized by
Google
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
Digitized by VjOOQ IC
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
Digitized by VjOOQ IC
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.
Digitized by VjOOQIC
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.
Digitized by
Google
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,
Digitized by
Google
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
Digitized by
Google
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.
Digitized by
Google
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.
Digitized by
Google
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-
Digitized by
Google
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 ^ .
Digitized by VjOOQ IC
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
Digitized by
Google
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
Digitized by
Google
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,
Digitized by
Google
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
Digitized by
Google
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
Digitized by
Google
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
Digitized by
Google
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-
Digitized by
Google
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
Digitized by VjOOQ IC
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
Digitized by
Google
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
Digitized by
Google
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
Digitized by
Google
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.
Digitized by VjOOQ IC
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
Digitized by
Google
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
Digitized by
Google
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
Digitized by
Google
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
Digitized by VjOOQ IC
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,
Digitized by
Google
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
Digitized by
Google
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
Digitized by
Google
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
Digitized by
Google
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
Digitized by VjUUV IC
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;
Digitized by
Google
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. &
Digitized by
Google
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^
Digitized by VjOOQ IC
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
Digitized by
Google
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.
Digitized by
Google
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.
Digitized by
Google
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
Digitized by
Google
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.)
digitized by
Google
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
Digitized by VjOOQ IC
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,
Digitized by
Google
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
• Digitized by VjOOQ IC
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.)
Digitized by
Google
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
Digitized by
Google
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.
Digitized by'vjOOQlC
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-
Digitized by
Google
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
Digitized by
Google
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-
Digitized by
Google
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
Digitized by
Google
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^
Digitized by VjOOQ IC
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
Digitized by VjOOQ IC
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.
Digitized by
Google
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
Digitized by
Google
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.)
Digitized by VjOOQ IC
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.
Digitized by VjOOQ IC
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.''
Digitized by
Google
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
Digitized by
Google
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
Digitized by VjOOQ IC
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
Digitized by
Google
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.
Digitized by VjOOQ IC
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
Digitized by
Google
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.
Digitized by
Google
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.
Digitized by
Google
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 ;
Digitized by
Gobgle
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.
Digitized by
Google
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
Digitized by VjOOy IC
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
Digitized by
Google
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.
Digitized by VjOOQ IC
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
Digitized by
Google
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
Digitized by
Google
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
Digitized by VjOOQ IC .
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,
Digitized by
Google
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
Digitized by
Google
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 ^ .
Digitized by VjOOQ IC
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
Digitized by
Google
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,
Digitized by
Google
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
Digitized by
Google
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
Digitized by VjOOQ IC
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
Digitized by
Google
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
Digitized by VjOOQ IC
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
Digitized by
Google
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^
Digitized by VjOOQ IC
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
Digitized by
Google
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.
Digitized by
Google
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
Digitized by
Google
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-
Digitized by
Google
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
Digitized by
Google
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-
Digitized by
Google
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.)
Digitized by
Google
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 •
Digitized by VjOOQ IC
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
Digitized by
Google
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
Digitized by
Google
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
Digitized by
Google
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
Digitized by
Google
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
Digitized by
Google
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-
Digitized by
Google
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.
Digitized by
Google
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
Digitized by
Google
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 ;
Digitized by
Google
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."
Digitized by
Google
18
ai8i
4*m\
90
I17t
17* 7571
t
18"
1
848
Zl
451
4»4»7
3J»e80
18
348
^2Z_
_11»
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
Digitized by VjOOQ IC
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-
Digitized by
Google
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
Digitized by
Google
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
Digitized by
Google
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
Digitized by VjOOQ IC
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
Digitized by VjOOQ IC
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
Digitized by
Google
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
Digitized by
Google
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
Digitized by
Google
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
Digitized by
Google
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.
Digitized by
Google
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
Digitized by
Google
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
Digitized by
Google
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
Digitized by VjOOQ IC
18
861
4* 7111
7*
74
20
238
aO» 1581
20
241
20» 160
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-
Digitized by
Google
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
Digitized by
Google
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
Digitized by
Google
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
Digitized by VjOOQ IC
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,
Digitized by
Google
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
Digitized by
Google
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,
Digitized by
Google
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
Digitized by VjOOQ IC
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
"Digitized by
Google
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
Digitized by
Google
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
Digitized by
Google
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
Digitized by
Google
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-
Digitized by
Google
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
Digitized by
Google
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."
Digitized by
Google
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
Digitized by VjOOQ IC
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
Digitized by
Google
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
Digitized by
Google
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
Digitized by
Google
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-
Digitized by
Google
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
Digitized by
Google
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
Digitized by
Google
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
Digitized by
Google
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,
VoL.XVIII-19 " Digitized by V^OOgle
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.
Digitized by
Google
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-
Digitized by VjOOQ IC
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
Digitized by
Google
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
Digitized by
Google
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
Digitized by
Google
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
Digitized by VjOOQIC
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
Digitized by
Google
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 .
Digitized by VjOOQ IC
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
Digitized by
Google
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
Digitized by
Google
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
Digitized by
Google
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
Digitized by
Google
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-
Digitized by
Google
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
Digitized by
Google
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,
Digitized by
Google
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
Digitized by VjOOQ IC
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-
Digitized by
Google
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
Digitized by
Google
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
Digitized by
Google
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.
Digitized by VjOOQ IC
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
Digitized by
Google
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
Digitized by
Google
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
Digitized by
Google
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
Digitized by VjOOQ IC
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-
Digitized by
Google
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
Digitized by
Google
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-
Digitized by VjOOQ IC
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,
Digitized by
Google
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
Digitized by
Google
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
Digitized by
Google
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
Digitized by
Google
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
Digitized by VjOOQ IC
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.
Digitized by
Google
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
Digitized by
Google
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
Digitized by
Google
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."
Digitized by VjOOQ IC
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,
Digitized by
Google
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-
Digitized by VjOOQ IC
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.
Digitized by
Google
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
Digitized by >
y Google
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
Digitized by
Google
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-
Digitized by
Google
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."
Digitized by
Google
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.
Digitized by
Google
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.
Digitized by VjOOQ IC'
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.
Digitized by
Google
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-
Digitized by
Google
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
Digitized by VjOOQ IC
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-
Digitized by
Google
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-
Digitized by
Google
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
Digitized by
Google
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-
Digitized by
Google
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-
Digitized by
Google
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-
Digitized by
Google
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.
Digitized by
Google
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
Digitized by VjOOQ IC
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
Digitized by
Google
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
Digitized by
Google
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-
Digitized by
Google
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,
Digitized by
Google
18 446
I 28 801i
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.
Digitized by
Google
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
Digitized by
Google
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
Digitized by
Google
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
Digitized by VjOOQ IC
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
Digitized by
Google
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.)
Digitized by
Google
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-
Digitized by
Google
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-
Digitized by VjOOQIC
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
Digitized by
Google
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-
Digitized by
Google
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-
Digitized by
Google
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
Digitized by VjOOQ IC
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
Digitized by
Google
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. ,
Digitized by VjOOQIC
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
Digitized by
Google
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.
Digitized by
Google
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
Digitized by
Google
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
Digitized by
Google
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.
Digitized by
Google
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
Digitized by VjOOQ IC
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.
Digitized by
Google
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-
Digitized by
Google
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
Digitized by
Google
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
Digitized by VjOOQIC
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,
more applicable to the facts of this case than are the prin-
ciples announced in the cases cited in the opinion of the
court.
I have, so far, only considered the question whether the
remarks of the judge, of themselves, justify a new trial, and
have arrived at the conclusion that they do not. This sub-
ject has been discussed independent of the question whether
the instructions, with reference to which the remarks were
made, were correct or not. Of course the judgment should
be reversed if the instructions refused were in all respects
correct, and there was any evidence in the case tending to
show an assault upon the defendant. But I am of opinion that
the instructions were not correct. The use of the word
*'aftray " in lieu of "homicide** was calculated to mislead
the jury with reference to the disputed question whether
deceased, prior to the homicide, assaulted the defendant.
An "afiray" is defined to be "the fighting of two or
more persons in a public place to the terror of the
people." (Desty, Amer. Crim. Law, sec. 95a: Simpson v.
State, 5 Yerg. 357 ; Hawkins v. State, 13 Ga. 324 ; Wilkes
V. Jackson, 2 Hen. & M. 360 ; Slate v. Sumner, 5 Strobh.
56; McClellan v. State, 53 Ala. 640.) An assault is any
unlawful physical force partly or fully put in motion which
creates a reasonable apprehension of physical injury to a
human being. (1 Bish. Crim. Law, sec. 548 ; 2 Bish. Crim.
Law, sec. 23; State v. Hampton, 63 N. C. 14; State v. Van-
noy, 65 N. C. 533 ; State v. Oorham, 56 N. H. 168 ; Com. v.
Digitized by
Google
Oct. 1884.] State v. Warren. 471
Opinion of Hawley, C. J., dissenting.
White, 110 Mass. 409.) The use of the word '' affray " im-
plied that an assault had been made. The instructions
assumed the existence of a fact that was in dispute, and
were, therefore, properly refused. The mere fact that the
court gave a wrong reason for a correct ruling is not, of
itself, sufficient to justify a reversal of the case.
Digitized by
Google
Digitized by
Google
INDEX.
ABATEMENT,
The failure to join a dormant partner as defendant in an action against the
partnersliip cannot be pleaded in abatement. (See Partnership, 5.) 99.
ACCOUNT STATED.
Action to Recover Balance Due to Foreman of a Mining Company —
Account Stated — Finding. — The finding upon "account stated" referred
to : Held, correct as presented by the record. Martin v. Victor M. & M,
Co., 303.
ACKNOWLEDGMENT.
Assignment of note and mortgage by a married woman need not be acknowl-
edged. (See Married Women, 4.) 311.
ACTION.
Action against parties under firm name — Dormant partner. (See Partnership,
6.) 99.
Action against sureties for damages on injunction bond — Sufficiency of com-
plaint. (See Pleadings, 4.) 129.
Action for diversion of wat^ — Necessary parties to — Who may maintain
action. (See Parties, 1, 2.) 149.
Action to foreclose mortgage — When administrator is Tg>i a necessary party.
(See Parties, 3.) 216.
Action at law — Stockholder in bank not liable to garnishment for his unpaid
subscription. (See Corporation, 3.) 246.
Action of forcible entry and unlawfnl detainer— Sufficiency of pleadings and
evidence. (See Pleadings, 7.) 269.
Effect of adjudication of insolvency on pending actions in another county.
(See Jurisdiction, 3.) 286.
Action to recover balance due foreman of a mining company — Evidence
reviewed. (See Evidence, 13, 16.) 303.
Arrest and bail — Imprisionment for fraud is a coercive means of enforcing
judgment. (See Constitution, 6.) 332.
Action for breach of warranty title — Measure of damages. (See Damages, 2.)
360.
Action of divorce — Statute defining the rights of husband and wife — Rents,
issues and profits of separate property. (See Husband and Wife, 1.) 361.
Action of divorce — Discretion of court in making allowance to the wife. (See
Divorce, 3.) 362.
Vol. XVIII— 60
Digitized by
Google
474 Index.
Party in possession of land may maintain action for an interference with his
rights. (vSee Water Rights, 5.) 432.
. Parties to action of trespass — Seizure of property exempt from execution. (See
Execution, 3.) 446. .
ADMINISTRATORS.
Foreclosure of mortgage — When claims against estate need not be presented
to administrator. (See Mortgage, 3.) 215.
When administrator is not a necessary party to action for foreclosure of mort-
gage. (See Parties, 3.) 216.
Instates of deceased persons— When executor cannot be garnished. (See Ex-
ecution, 2.) 247.
ADVERSE POSSESSION.
Adverse use of wat4}r— Prescriptive rights. (See Water Rights, 2.) 149.
AFFIDAVIT.
1. Notice of Appeal — Affidavit of Service, Sufficiency of — "Conspicuous
Place."— An affidavit which alleges the service of the notice of appeal
upon respondent's attorney, at a time when he was absent from his office
and had no clerk, or other person, in charge, "by leaving a copy thereof
in a conspicuous place in the office of said attorney » * *" is insuf-
ficient. The affidavit should set forth the probative facts touching the
place where the notice was left, so that the ultimate fact, whetiier such
place was conspicuous, may be determined by the court in the exercise of
its judicial functions. Elder v. Frevert^ 279.
2. Idem— Amendment of Affidavit— When May be Allowed.— The courts
should liberally exercise the power of amendment for the purpose of
establishing the truth and sustaining the substance of the proceedings
before them; and when a decision upon the sufficiency of an affidavit
might operate an a surprise and deprive appellant of a substantial right,
leave will be granted to amend the proof of service. Id.
Affidavit for publication of summons — Sufficiency of. (See Summons, 3.) 21.
Affidavit for publication of .summons must state the cause of action. (See
Summons, 6.) 22.
Affidavit for new trial on ground of newly discovered evidence — When insuf-
ficient. (See New Trial, 3.) 99.
Affidavit of service of notice of appeal — When may be made. (See Api)eal,
6.) 279.
Affidavit for contempt^ — Who may verify. (See Contempt, 5.) 430.
Affidavit for contempt — When sufficient. (See (l!ontempt, 6.) 430.
New trial on grounds of surprise — Oedibility of evidence presented in affida-
vits. (See New Trial, 10.) 454.
AGENT.
(See Principal and Agent.)
ALIENS.
Purchase of State lands by Chinese is constitutional. (See Land, 1.) 251.
AMENDMENT.
When affidavit of proof of service of notice of appeal may be amended. (See
Affidavit, 2.) 279.
Digitized by
Google
Index. 476
APPEAL.
1. Notice of Appeal. — The notice should state that appellants do api)eal, not ,
tliat they will appeal. Simpson v. Ogg, 28.
2. Appeal prom 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. Kelly v. Kelly, 49.
3. Failure 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 apr>ealed from should be affirmed. Robin-
son V. Longley, 71.
4. Jurisdiction— Appeal — This court, under the practice act, has jurisdiction
only in cases commenced in and tried by a court. The legislature may
enjoin upon a judge the performance 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. Lyon County v.
Esmercdda County, 106.
5. Idem — Court Proceedings — Chamber Orders— No appeal lies to the supreme
court from an order of the district judge requiring tlie county assessor of
Elsmeralda county to file in the district court a statement of taxes, as
required by section 6 of the act of March 1, 1883. (Stat. 1883, 100.) The
proceedings required by the statute were in no sense court proceedings, as
such, and the fact that the order was made by the court- instead of the
judge, does not change its character. Id.
6. Motion to Dismiss Appeal— Proof op Service of Notice — When May
BE Made. — When the transcript on appeal fails to show that the notice of
appeal was served, as retiuireil by statute, and a motion is made to dismis.s
the appeal on that ground, this court may grant leave to appellant to sup-
ply this omission by filing an affidavit of the proof of service upon the
argument of the motion. FAder v. Frevert, 279.
7. 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. State ex ret. Bamett v. Fifth Dis-
trict Court, 286.
8. Appeal— Deposit of Money in Lieu of Appeal Bond — Certificate of Bank
Deposit. — The presentation to and acxieptance by the clerk of the court of
a certificate of deposit is a sufficient compliance with the statutory require-
ment, that to render an apx>eal effectual the appellant 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.
All V. California Fig Syrup Co., 423.
When errors in judgment roll cannot be reviewed. (See Judgment Roll, 1.) 28.
Statement on appeal must be authenticated. (See Statement, 1.) 60.
When statement on api)eal must be filed. (See New Trial, 6, 7.) 278.
Conffict of Evidence. (See Evidence, 3.) 99.
Statement on new trial and on appeal — How considered. (See Statement, 2.)
279.
Sufficiency of affidavit of service of notice of appeal. (See Affidavit, 1.) 279.
Digitized by
Google
476 Index.
ADiendment of affidavit of service of notice of appeal — When allowed. (8ee
Affidavit, 2.) 279.
Findings not considered unless embodied in statement. (See Findings, 2.) 348.
APPROPRIATION.
Appropriation of water by trespasser. (See Water Rights, 1.) 149.
Evidence of prior appropriation. (See Water Rights, 3.) 432.
When rights of appropriation begin. (See Water Rights, 6.) 436.
ARREST AND BAIL.
1. Habeas Corpus — Arrest and Bail — Fraudulent DisposmoN of Prof-
ERTY — Second Action — Jurisdiction. — Petitioner was sued for malpractice.
The plaintiff obtained judgment. He subsequently commenced a second
action setting forth the former judgment and, as grounds for a judgment
against the person of petitioner, alleged that petitioner had, prior to the
former judgment, without his know^ledge, fraudulently disposed of and
removed his property without this state with intent to defraud his credit-
ors : Held, that under subdivision five, of the act relating to arrest and
bail, the district court had jurisdiction to arrast and detain petitioner in
the second action. Ex parte Bergman, 331.
2. Idem — Voluntary Surrender— Notice by Plaintiff — Release — Subse-
quent Arrest Under Execution — Statute Construed. — Petitioner volun-
tarily surrendered himself into custody before any process had been issued
against him, and thereafter, while he was so in custody, the plaintiff noti-
fied the sheriff that he did not demand the arrest and detention, and
petitioner was allowetl to voluntarily depart : Hdd, in construing the pro-
visions of the statute (1 Comp. Laws 416, 424), that such surrender, notice
and release, did not prevent the plaintiff from causing liis subsequent
arrest and detention under an execution issued on the judgment in the
second action. Id.
Fraudulent disposition of property — When fraud is carried out. (See Fraud,
1.) 331.
Fraud committed when absent from the state — When considered as committed
within the state. (See Fraud, 2.) 331.
Imprisonment for fraud is a coercive means of enforcing judgment. (See CJon-
stitution, 6.) 332.
Imprisonment may be for costs as well as the principal debt. (See Constitutioii,
7.) 332.
ASSAULT.
Evidence as to assault in case of homicide — Remarks by the judge in reftising
instructions— Error. (See Criminal Law, 4.) 460.
ASSAYS.
Assay of battery samples — Contract for reduction of ores. (See Contract, 4, 5. )
133.
ASSESSOR.
(See County Assessor.)
ASSIGNMENT.
Assignment of note and mortgage by a married woman need not be acknowl-
edged. (See Married Women, 4.) 311.
Digitized by
Google
Indbx. 477
Consideration for assignment of note and mortgage by married woman. (See
Statute of Frauds, 1.) 311.
ATTORNEY.
Failure to file brief— Judgment will be affirmed. (See Appeals, 3.) 71.
Contract of attorney — Fees contingent on success. (See Contract, 2, 3.) 120.
Allowance of counsel fees in foreclosure of mortgage. (See Mortgage, 4.) 216.
BANK.
Stockholder not liable to garnishment, for his unpaid subscription, in an action
at law. (See Corporation, 3.) 246.
BANKRUPTCY.
(See Insolvency.)
BILLS AND NOTES.
1. Negotiable Note — Rights of Pledgee and op Owner. — A pledgee of a nego-
tiable note, as collateral security, is entitled to be protected as a bona 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 interest.
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 liis advances. ITaydon v. Nicoletti^ 290.
2. Idem — Title. — Title to a negotiable note, payable to order, passes only by
indorsement and delivery . Id.
3. 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 either. 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. Id,
Value of notes — Measure of damages. (See Partnership, 4.) 89.
Negotiable notes held by parties are not evidence of partnership between them.
(See Partnership, 8.) 89.
Assignment of a note and mortgage by a married woman as security for her
husband. (See Married Women, 1, 2, 4.) 310.
BOARD OF EDUCATION.
State Board of Education— Text Books — When Resolutions May be
Reconsidered.— The state board of education may, after it has passed a
resolution prescribing a certain series of text books, reconsider its action
and rescind such resolution at any time before the adoi)tion of such books
by the different school districts. State ex rel. Nevniham v. Board of Educor
turn, 173.
BOND.
Damages recoverable in action against sureties on injunction bond. (See
Pleadings, 4.) 129.
Liability of sureties on injunction bond. (See Sureties, 1.) 129.
Purchase of territorial bonds— Interest. (See Statute, 2.) 352.
Digitized by
Google
478 Index.
BRIEFS.
Judgment should be affirmed if no brief Ls filed by appellant. (See Appeal,
3.) 71.
BURDEN OF PROOF.
Burden of proof— Allegations of complaint. (See Pleadings, 3.) 109.
Evidence of former action — PJstoppel. (See Estoppel, 1.) 110.
Prosumi)tion is that property acciuired during coverture belongs to the com-
munity—Burdeji of proof. (See Husband and Wife, 2, 3.) 302.
BURGLARY.
1. Chimin AL Law— Burglary — Inhabitancy of Building — Statutes Con-
strued.—In construing the statutes of this 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 inhabitancy. ,
State V. Dan, 345.
2. Idem — Description of Premises — Owner— Tenant — Variance. — Where the
premises are descril)cd in the indictment, as belonging to a certain iwrson,
the further allegation that the premises were occupied by a particular ten-
ant is immaterial, and a failure to prove the latter allegation is not a vari-
ance, as its only office was to further identify premises already sufficiently
described. Id.
CASES CITED AS AUTHORITY,
Alderson v. Gilmore, 13 Xev. 84, in Sinipstm v. Ogg, 30.
Allen V. Rcilly. 15 Nev. 453, in Gillson v. Price, US.
Barnes v. Woodbury, 17 Nev. 383, in Robinson v. Longley, 73.
Carson Opera House v. Miller, 16 Nev. 328, in Simps(m v. Ogg, 30.
Clark V. Strouse, 11 Nev. 78, in Polder v. Frevert, 282.
Conley v. Chedic, 7 Nev. 341, in Robinsfm v. Longley, 73.
Corbett v. Rice, 2 Nev. 303, in Rickards v. Hutchinson, 223.
Evans v. Job, 8 Nev. 338, in State ex rel. Cardwell v. Glenn, 44.
Ex parte Winston, 9 Nev. 75, in Ex parte Bergman, 344.
Golden Fleece Co. v. Cable Con. M. G)., 12 Nev. 321, in Steel v. Gold Lead
G. & S. M. Co., 88.
Howard v. Winters, 3 Nev. 542, in Pinschower v. Hanks, 108.
Huguet V. Owen, 1 Nev. 466, in Victor M. <fe M. Co. v. Justice's Court, 28.
Hunter v. Truckee Lodge, 14 Nev. 28, in Malter v. Falcon M. Co., 212: Gould v.
Wise, 263.
Imperial S. M. Co. v. Barstow, 5 Nev. 254, in Boyd v. Anderson, 340.
Little V. Currie, 5 Nev. 90, in Victor M. & M. Co. v. Justice's Court, 24.
Lonkey v. Wells, 16 Nev. 271, in Malter v. Falcon M. Co., 212; Hammersmith
V. Avery, 230.
McManus v. Ophir S. M. C-o., 4 Nev. 16, in Victor M. & M. Co. v. Justice's
Court, 28.
Meyer v. V. <fe T. R. R. Co., 16 Nev. 343, in Hirschfeld v. Williamson, 71.
People V. Bonds,.! Nev. 36, in State v. Warren, 466.
Philliiw V. Welch, 11 Nev. 187, in Ex parte Sweeney, 76.
Reese v. Kinkead, 17 Nev. 447, in Reese v. Kinkead, 128.
Rose V. Richmond M. Co., 17 Nev. 25, in Steel v. Gold Lead G. <fe S. M. Co.. SH.
Roy V. Whitford, 9 Nev. 372, in Victor M. <fe M. Co. v. Justice's Court, 24.
Scorpion S. M. Co. v. Marsano, 10 Nev. 382, in Victor M. & M. Co. v. Justice's
Court, 24.
Digitized by
Google
Index. 479
Simpflon v. Ogg, 28, in Boyd v. Anderson, 360.
Simpson v. Williams, 432, in Irwin v. Strait, 436.
Skyrme v. Occidental M. & M.Co., 8 Nev. 221, in Malter v. Falcon M. Co., 212.
Solomon v. Fuller, 13 Nev. 28, in Simpson v. Ogg, 'U.
State V. Ah Tong, 7 Nev. 152, in State v. Warren, 466.
State V. Harkin, 7 Nev. 381, in State v. Warren. 466.
State V. Tickel, 13 Nev. 510, in State v. Warren, 4W, 466.
State V. Millain, 3 Nev. 468 (dissenting opinion), in State v. Warren, 466.
State ex reh Chase v. Rogers. 10 Nev. 250, in State ex rel. Cardwell v. Glenn, 39.
State ex rel. George v. Swift, 10 Nev. 176, in State ex rel. Cardwell v. Glenn, 39.
State Telegraph Co. v. Patterson, 1 Nev. 150, in VicUir M. & M. Co. v. Justice's
Court, 28.
Wick V. O'Neale, 2 Nev. 303, in Rickards v. Hutch instm, 223.
Whitmore v. §hiverick, 3 Nev. 306, in Pinachower v. Hanks. 104; Beck v.
Tnickee Lodge, 246.
('A8E8 RbFERRBD TO AND DlSt^USSED.
Denver v. Hobart, 10 Nev. 28, in J^tate ex rel. Perry v. Arrington, 420.
Elder v. Williams, 16 Nev. 416, in Kldcr v. Frevert, 453.
State ex rel. Clarke v. Irwin, 5 Nev. Ill, in State ex rel. Perr>' v. Arrington, 420.
State ex rel. Rosenstxx'k v. Swift, 11 Nev. 128, in State ex rel Perry v. Arrington,
420.
State ex rel. Quinn v. District Court; 16 Nev. 77. in Ex parte Bergman, 343.
Wuest V. Wuest, 17 Nev. 221, in I^ke v. Bender. 402.
CERTIFICATE.
Certificate of deposit in lieu of money — Undertaking on appeal. (See Appeal,
8.) 423.
CERTIORARI.
1. Judicial Officers—What Acts (^an bk Rkvikwed. — The action of u
judicial officer in regard to matters which ai-e exclusively executive or
administrative in their nature, even when the act of the legislature reijuir-
ingsuch duties to he performed is in violation of the constitutional pro-
visions, cannot he reviewed hy certiorari. Esmeralda County v. Third Din-
trict Court, 438.
2. Idem — Act Annexing Portion of Esmeralda Cofnty to Lyon County.—
The act reciuired hy section 6. Stat. 1883, Ot), to ])e performed hy the district
judge, in the event of the hoards of county commissioners failing to agree,
are not of such a judicial natiin* or character as to authorize the sui>reme
court of the state to review them ujwn certiorari. Id.
Adjudication of insolvency— Effwt of cm pending actions in another county.
(See Jurisdiction, 3.) 286.
CHINAMEN.
Under the consitution and laws of this state citizens of China who are bona
fide residents may purchase land from the state. (See Land, 1.) 251.
CIVIL pra(tice act.
(See Practice Act.)
CLAIMS.
Claims against estate of deceased i)ersons— When need not he presented to
administrator— Foreclosure of mortgage. (See Mortgage, 3.) 21 o.
Digitized by
Google
480 Index.
When claims against the estate of deceased persons cannot be levied upon and
sold. (See Execution, 2.) 247.
COMMUNITY PROPERTY.
Presumption is that property acquired during coverture belongs to the commu-
nity—Burden of proof. (See Husband and Wife, 2, 3.) 362.
Profits of separate property — When belongs to the community. (See Husband
and Wife, 4.) 362.
CONSIDERATION.
Contracts of married women— Consideration for assignment of note and mort-
gage. (See Statute of Frauds, 1.) 311.
When parol evidence is admissible to prove consideration for a deed — Exchange
of property. (See Deed, 2.) 362.
CONSTITUTION.
1. Provisions of. Mandatory. — The provisions of section 18 of article IV of
the constitution, requiring the signing of. bills and joint resolutions by the
presiding officers of the respective houses, and bj' the secretary of the senate
and clerk of the assembly, are mandatory and must be complied with.
State ex rel. Car dwell v. Glenn, 34.
2. Section 18, Article IV, Construed — Assistant Secretary May Sign Bills.
— Held, that the signature of the assistant secretary of the senate is a sub-
stantial compliance with the provisions of the constitution requiring all
bills to be signed by the secretary of the senate. Id. 35.
3. Idem. — These provisions of the constitution must be construed with refer-
ence 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 the provisions of the constitution by
the co-ordinate departments of the state government. Id.
4. Purchase of State Lands by Chinf«se — Public Policy. — No act authorized
by the constitution can be said to be against tlie public policy of the t>tate.
Stale ex rel. Fook Ling v. Preble, 251.
5. Imprisonment for Debt. — Article 1, section 14, of the constitution does not
prohibit the arrest and detention of a defendant for the fraudulent disposi-
tion of his property with intent to defraud his creditors, under a judgment
in an action for tort. Ex parte Bergman, 332.
6. Idem— Imprisonment for Fraud — Coercive Means of Enforcing Judg-
ment.— The imprisonment of petitioner is for the fraud practiced in
attempting to evade the payment of tlie judgment, and, while in the
nature of a punishment, is only a coercive means given by the statute, and
sanctioned by the constitution, to enforce the collection of the judgment.
Id.
7. Idem—Costs. — The imprisonment is authorized for the costs which are
incurred in using the coercive means, as well as for the amount of the
principal debt or demand. Id.
8. Legislative Power — Prohibitions, Limitations and Restrictions. — It is
the duty of courts, in construing the constitution, to ascertain the intention
of those who framed the instrument, and of the i>eople who ratified it.
The legislature has the power to enact any law not prohibited by the con-
stitution ; but in seeking for limitations and restrictions courts must not
confine themselves to express proliibitions. Negative words are not indis-
pensable in the creation of limitations to legislative power. If the con-
stitution prescribes one method of filling an office, the legislature cannot
adopt another. Staie ex rel. Perry v. ArringUm^ 412.
Digitized by
Google
Art.
I.
Sec.
14.
Art.
I.
Sec.
16.
Art.
III.
powers,
438.
Art.
IV.
Sec.
12.
Art.
IV.
Sec.
18.
Art.
IV.
Sec.
20.
Art.
IV.
Sec.
21.
Art.
IV.
Sec.
26.
Art.
IV.
Sec.
32.
Art.
VI.
Sec.
4.
Art.
VI.
Sec.
6.
Art.
X.
Sec.
1.
Art.
XV.
Sec.
10.
Art.
XVII.
Sec.
2.
Art.
XVII.
Sec.
13.
Index. 481
9, Statute Unconstititional.— Section 2 of the statute of 1883, 123, extending
tlie term of county assessors beyond tlie time for which they were elected,
is unconstitutional and void. Id.
PRovrJ«ioNS Cited.
Xo imprisonment for debt, 341.
Riglits of foreigners, 253.
Distribution of executive, judicial and legislative
Courts cannot charge juritw upon the facts, 467.
Signing of bills and joint resolutions, 38.
Special laws regulating elections. 418.
Laws to have general and unifonn operation, 418.
Boarcb< of county commissioners, 419.
Election of officers by the people, 41.").
Api>ellate jurisdiction of supreme court, 161).
Juri.'^dic'tion of courts upon legality of tax, 73.
Taxation, 414.
Officers chosen as provided by law. 420.
Continuance of territorial laws, 201.
Territorial officer? continued in office. 419.
(CONSTRUCTION.
Provisions of constitution (construed. (See Constitution, 1, 3.) 34.
Mortgage upon railroad proi>erty— How construed. (See Mortgage, 1.) 35.
Statutes relating to contempts construed. (See Contempt, 1, 2.) 74.
Contracts for cutting cord-wood. (See Contract, 1.) 109.
Contract for reduction of ore. (See Contract, 5.) 133.
Covenants in deed for the use of water. (See Contract, 7. ) 141.
Statute in relation to mechanics' lien — Name of owner must be .stated. (See
Mechanic's Lien, 1, 3.) 209.
Statute of limitations— Foreclosure of mortgage. (See Limitations, 1. 2.) 216.
Statute relating to sale of lands by the State— Chinese, who are bona fide resi-
dents, may be purchasers. (See Land, 1.) 251.
Section 19 of mechanic's lien — Clerical mistake of words "or" and ''on."
(See Mechanic's Lien, 8.) 254.
Judicial and legislative constniction of statute. (See Statute, 1.) 254.
Statute relating to arrest and bail. (See Arrest and Bail, 1. 2.) 331.
Statute defining the crime of burglary. (See Burglary, 1.) 345.
Statute authorizing purchase of territorial bonds — method of calculating inter-
est. (See Statute, 2.) ^52.
Statute defining the rights of husband and wife — Rents, issues and profits of
sejmrate property . ( See H usbau c I and Wife, 1 . ) 36 1 .
Statute relating to marriage and divorce, and to husband and wife — Amount
of allowance to wife for her support. (See Divon*e, 4.) 362.
Constitutional prohibitions, limitations and restrictions of legislative power.
(See Constitution, 8.) 412.
CONTEMIT.
1. CoNSTEUCTioN OF STATUTES. — The Statute relating to contempts and punish-
ments must be strictly construed, and no interpretation should be given
beyond its obvious meaning. (Stats. 1869. 267.) Ex parte Sweeney, 74.
Vol. XVIII— 61
Digitized by VjOOQ IC
482 Index.
2. Idem — Statutes Applicable to Cases of Contempt. — ^The provisions of sec-
tion 449 of the criminal practice act (1 Comp. 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. Id.
3. Criminal Proceeding. — 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 criminal proceeding.
Id.
4. Fine — Imprisonment for Non-Payment ov.—Held, that the fine imposed
in such cases is punitive, inflicted for the public good ; that imprisonment
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 regarded in the light of punishment. Id.
5. Contempt— Affidavit for— Verification of.— The aifidavit for contempt
need not show, upon its face, that the party verifying the same is bene-
ficially interested in the proceedings. Strait v. Williams, 430.
6. Idem — Sufficiency of Affidavit. — In ca.se of an alleged contempt for the
violation of a decree of the district court, an affidavit is sufficient to give
the cdurt jurisdiction, if it substantially states the fact of the rendition of
judgment restraining the party from doing certain acts, that the judg-
ment is in full forcie and effect, and that the party enjoined has disobeyed
the decree, and threatens to continue a violation thereof. Id.
CONTINUANCE.
Contract of attorney— Fees contingent on success — Continuance of case to
awiait decision in supreme court. (See Contract, 2, 3.) 120.
CONTRACT.
1. Contract for Cutting Cord Wood, Construed — Liability of Defend-
ant.— The contract provide<l that the wood should be delivered, at a cer-
tain 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 com-
plaint alleges 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 :
Ileldy that the test of defendant's liability' at the time the former action
was brought, was whether he liad then received returns of sales of wood,
although it had not been shipped or <lelivered on the cars. GilUon v. Pnce,
109.
2. CoNTR.Acrr of Attorney — Fees Contingent on Success: — Held, upon a
review of the testimony, that respondent was liable for the fees of appel-
lant, 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
successful, if he gains substantially everything of value involved in the
controversy, without winning everything that is asked for. Cole v. Rich-
tnond M. Co., 120.
3. Idem — Continuance. — 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 : HM,
upon a review of the testimony, that the fact that one case was tried and
Digitized by
Google
Index. 483
the others continued by consent, and that no reason was given for such
continuance, except as stated by the attorney, entitled hlra to his fees under
the contract. Id.
4. CoNTBACT — Reduction of Ore — Assay Value — Battery Samples — Plead-
ings.— Action on contract for reduction of ores requiring payment toplain-
tiflfe of "sixty-five per cent, of tlie 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: Heldf that the averments in. the
answer raise<l an issue as to the terma of the contract and the correctness
of the assays taken from the battery samples. Phipps v. HuUy, 133.
5. Idem — Construction of Contract : — Hdd, that by the terms of the contract
the assays from tlie 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 die 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 a.s a guide for the settlement. Id.
6. 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.) Id.
7. Contract — Covenants in Deed — Use of Water. — In construing the con-
ditions of a deed which gives the grantee the right to take sufficient water
from certain ditches "to irrigate tlio 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 the grantee
has tlie option of using whatever amount of water he deems sufficient for
these puriKJses, and is not liable for the expenses incurred in repairing the
ditches beyond a }iro rata proportion, based upon the quantity of water
actually used or demanded by him. Brown v. Evans, 141.
8. Idem — Notice of A.vount of Water Needed — Ektoppel — Evidence. — If
the grantee gives notice to the grantor that he recjuires 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 tlie exjwnses of repairing the ditches,
such notices, as long as they remain unchanged, are. admissible in evidence
to show the quantity of water required and used by him. Id.
9. Married 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 being her separate property, as collateral security for
the payment of her husband's debts, without any fraud or improper in-
ducements, and with the intention of binding her separate estate, is a valid
contract, and is enforceable in equity against her separate estate. Cartan
V. David, 310.
10. Idem— Intention to Bind Separate Estate— How Expressed.— The inten-
tion of Mrs. Roberts to make the debt a charge upon her separate estate
Digitized by
Google
484 Index.
* 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 indorse-
ment 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. Id.
Contracts of marrietl women — When statute of frauds has no application. {See
Statute of Frauds, 1.) 311.
Statute of frauds has no application to executed contracts. (See Statute of
Fraud.s, 2.) 311.
CORPORATION.
1. WuKN President of ( 'orpor.\tion May Execute .v 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 tlie com-
pany, 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 cf)rporation, to exe(*ute a deed and donate the land therein conveyed,
t^> a county. State ex rel. Cardwell v. Gletin, .'i5.
2. Agents — Railway Cori»orations — Judicial Notice of Authority — Receipt
OF (\)RD Wood. — Courts will take judicial notice of the authority of the
managing agents of a railroad c()r])oration, and, in the ab.«k?nce of any
evidence u\nm the subject, will presume that its superintendent is em-
powered to conduct its ordinary biLsiness transactitms, such as the rece]>ti<»n
of cord-wood. tSacalans v. Eureka d- P. R. R. Co., 15.5.
3. Stockholders of (Corporation — Liability .\s (tarnikhhe — Unpaid Sub-
scRiiTioNs. — A stockholder in a banking cor])oration cannot be held liable
for his unpaid and uncalled subscriptions, in an action at law against him
as the garnishee of the principal debtor. McKelvey v. Crockett, 23^<.
Publiaition of summons against a foreign corporation. (See Summons, 3.) 21.
Power and authority of agents of railroad coriMjrations. (See Princii>al an<l
Agent, 1.) 155.
Declanitions of agent— When admissible in evidence. (See Evidence, 8.) 155.
Foreman of mining corporation not entitled to wages when absent from the
mine cm jury duty. (See Mining Claims, 3.) 303.
COSTS.
Wlien imprisonment for fraud may include costs as well as the principal debt.
(See 0)nstituti(m, 7.) 332.
COUNTER CLAIM.
When jiidgment is not a counter claim — Seizure of property exempt from ex-
c»cution. (See Judgment, 2.) 447.
COUXTY ASSESSOR.
Extension of Term op Office. — County assessors are necessarj' officers, within
the meaning of the constituticm, (Art. IV, Sec. 32), and must be elected by
the peoj)le. The legislature has no j)Ower to extend the terms of such
officers beyond the time for which they were elected, except temporarily in
cases of emei*gency. State ex rel. Perry v. Arriufjtnn, 412.
C^OURTS.
Jurisdiction of district court— Legality of tax. (See Juris(Uction, 1.) 71.
Digitized by
Google
Index. 485
Judicial notice of authority of agents of railway corporations. (See Corpora-
tion, 2.) 155.
Jurisdiction of supreme court on appeal — Court proceedings, {^ee Appeal,
4, 5.) 166.
Courts of this state have no jurisdiction of crimes committed by indians against
• each otlier while living in their tribal relations. (See Jurisdiction, 1.) 182.
Courts are not bound to take judicial notice of insolvency proceetlings pending
in another county. (See Jurisdiction, 4.) 2H6.
Dismissal of appeal from justice's court by district court — Effect of (See
Appeal, 7.) 286.
Discretion of court in granting allowance to wife in action of divorce. (See
Divorce, 3.) 3()2.
Discretion of court in issuing open venire for jurors in criminal cases. (See
Jurors, 1.) 425.
Only judicial a(±s of courts can be reviewed \i\Hm certiorari. (See Certio-
rari, 1.) 438.
Supreme court hiis no jxjwer over the settlement of a statement by the district
judge in a criminal case. (See Statement, 3.) 459.
Remarks of the district judge in refusing instnictions in a criminal case — When
erroneous. (See Criminal Law, 4.) 4&).
CRIMES AND PUNISHMENTS.
Courts have no jurisdiction of crimes committed by indians against each other
while living in tribal relations. (See Criminal Law, 1; Jurisdiction, 1.)
182.
Construction of statute defining the crime of burglary. (See Burglary, 1.)
345.
CRIMINAL LAW.
1. Crimes Committed by Indians Living in Tribal Relations — Jurisdiction
OF Courts. — It was not the intention of the legislature that the tenitorial or
state laws defining crimes and j)roviding for their punishment should apply
to crimes committed by indians, tigainst each (^ther, living in their tribal
relations. The courts of this state could only obtain jurisdiction of such
oflFenses by an affinnative act of the legislature, or a self-acting clause of
the constitution. State ex rel. Truman v. McKenney, 182.
2. Burglary — Inhabitancy of Bi'Ilding — Statutes Construed. — In constru-
ing the statutes of this state defining burglary (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 inhabitancy. State v. JJan, 345.
3. Overt Attempt TO Escape from Prison — 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 or innocence, was properly excluded from the jury. State v.
Angela, 425.
4. Self-Defense — Evidence as to Assault — Remarks by the Judge in Re-
fusing Instructions — Error. — In a prosecution for murder where the de-
fendant relies upon a justification, and evidence tending to establish such
defense is given, it is error for the judge, in refusing to give certain instruc-
tions concerning the law of self-defense, to remark to counsel, in the
presence of the jurj', 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 decciiscfl ever made an assault u|K)n the defendant, or that
Digitized by
Google
486 Index.
there was any attempted assault made by deceased at the time of the kill-
ing; but the jurors are the exclusive judges of the facts in the case."
^aie V. Warren, 460.
When proceedings for contempt are in the nature of a crimuial offense. (See
Contempt, 3.) 74.
Sufficiency of description of premises in indictment for burglary — Name of
owner and tenant. (See Burglary, 2.) 345.
Overt attempt to escape from state prison — Sufficiency of indictment. (See
Indictment, 1.) 425.
Jurors may be selected by open venire — Discretion of courts. (See Jurors, 1 . ) 425.
Oath of jurors in criminal case — When sufficient. (See Jurors, 2.) 425.
Supreme court has no power over tlie settlement of a statement by the district
judge in a criminal case. (See Statement, 3.) 459.
DAMAGES.
1. Value of Notes — Measure of Damages. — The surety surrendered certain
notes, executed in his favor by his copartner, to the creditors of the firm
in order to release himself from liability : Held, in an action by the
surety against his copartner, that the measure of damages, which he is
entitled to recover, is the face value of the notes surrendered. His loss is
not to be measured by the ability of his copartner to pay. Barber v.
QiUson, 89.
2. Action for Breach of Warranty of Title— Measure of Damages. — In
an action to recover damages for breach of warranty of title to real estate,
the measure of damages is the value of the 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. Hoffman
V. Boschj 360.
3. Seizure op Property Exempt from Execution— Measure of D.amages fob
Detention of Prorerty. — 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. Elder v. FreverL 447.
4. Idem — Detention of Property After Judgment— Dam. \aES For. — The
judgment in the former action, against the sheriff, was rendered N.ovember
20, 1880. It was satisfied in full April 14, 1H82 : Held, that the satisfaction
of that judgment i» no bar to an action to recover damages for the deten-
tion of the pi-operty during the period of time between the rendition of
the former judgment and its satisfaction ; that the detention of the prop-
erty during this time was a new trespiiss and tlie damages a fresh cause of
action. Id,
Sufficiency of complaint in action for damages against sureties on injunction
bond. (See Pleadings, 4.) 129.
Seizure of barber's tools exempt from executicm— Wages of barbers — Offer for
property. (See Evidence, 0. 10.) 225.
DEC^LARATIONS.
Declarations of vendor, after sale, are not admissible in evidence. (See
Evidence, 2.) 66.
DEED.
1. 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
Digitized by
Google
Index. 487
the purpose of erecting thereon county buildings, to which the same \s
hereby dedicated for the use and benefit" of thft county : Held, that the
deed comph'es with the statute, that it amounts to a donation of land to the
county for the purpose therein expressed, and if the land is used for such
purpose the county will own tlie land as absolutely as if it had obtained
the same by purchase. State ex rel. CardweU v. Glenn, 35.
2. CoxsiDERATiON — Parol EVIDENCE— EXCHANGE OF PROPERTY. — Parol evi-
dence 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. Lceke v. Bender, Adm. of estate of LaJce, 362.
3. Description in — Intention of Grantor to Convey Land — Presump-
tions.— The deed conveyed "all that certain lot, piece, or parcel of land
situated ♦ » * and particularly described as follows, to wit: one stock-
ade cabin and adobe front. Said cabin is known as the Eagan cabin.''
Then follows the usual habendum clause : Held, that the intention of the
grantor was to convey, not only the cabin and adobe front, but the land
on which they stood, and it being admitted that these buildings were on
the lot and block in dispute, this court, in the absence of any testimony,
will not presume that they did not cover the entire lot. Langworthy v.
Colenmn, 440,
When president of a corjwration may execute deed and donate lands to a
county. (See Cori)oration, 1.) 35.
Construction of covenants in deed for the use of water. (vSee Contract, 7.) 141.
Objections to admissions of deed must be made in the court below. (See
Objections, 2.) 440.
Evidence of existence of deed. (See Evidence, 17.) 440.
DEMAND.
Action against sureties on injunction bond — Demand need not be alleged.
(See Pleadings, 5.) 129.
DEMURRER.
The question of misjoinder of parties raised by demurrer is waived by filing an
answer. (See Pleadings, 6.) 226.
DEPOSIT.
Publication of summons — When copy of complaint and summons must be
deposited in postofflce and directed to the residence of the defendant. (See
Summons, 4.) 22.
Order for deposit must be made by the court. (See Summons, 5.) 22.
DEPOSITION.
Exclusion of deposition, when not prejudicial. (See Evidence, 4.) 99.
DISCRETION.
Discretion of court in making allowance to wife for her support in an action
of divorce. (See Divorce, 3.) 362.
Discretion of court in issuing open venire for jurors in a criminal case. (See
Jurors, 1.) 425.
DIVORCE.
1. Extreme Cruelty.— The element of danger to life, limb and health, or the
Digitized by
Google
488 Index.
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. Kdly v.
KeUy, 49.
2. 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. Id.
3. Allowance to Wife— Discretion of Court. — Ui)on granting a divorce the
question a« to the amount of allowance for the support of tlie wife is left
to the legal discretion of the trial court, and should not be interfered with
in the appellate court, unless the dis<Tetion ha.s been abused. Lakt v.
Bender^ Adm. of estate of Lake, 362.
4. Idem — Construction of Statute. — Ui^on rehearing, in construing sections*
25 and 27 of the act relating to marriage and divorce (1 Comp. I^ws, 218,
220) in connei'tion with section 12 of the statute defining the rights of hus-
band and wife (1 Comp. Laws, 162) and a review of tlio evidence: Held.
that it was the duty of the district court t^ allow such sum for the wife's
support ais was just and equitable under all the circumstances of the case
and surrounding of the parties, and that the amount of one Imndred and
fifly dollars per month, as allowed by the district court, should be increased
to two hundred and fifty dollars per month. Id.
When new trial may be granted for a portion of the issues involved in an action
for divorce. (Sec New Trial, 9.) 362.
DONATION.
When president of a corporation may execute deed and donate lands to a
county. (See Corporation, 1.) 35.
EASEMENT.
Easement of way over land does not give ixxssession. (See Forcible Entr>' and
Unlawful Detainer, 1.) 269.
EJECTMENT.
When forfeiture need not be pleaded in action of ejectment. (See Mining
Claims, 1.) 80.
ELECTION.
County tkssessors must be elected by the jwople. (vSee County Assessor, 1. ) 412.
ERROR.
Error Without Prejudice— Exception to Time of Filing Findings:— iWd,
that ff an error occun-ed in tlie time of filing the execution, appellant could
not have been prejudiced thereby, as all the additional findings were favor-
able to him. Smith v. Logan, 149.
When error in judgment roll is not reviewable. (See Judgment Roll, 1.) 28.
Exclusion of immaterial evidence is not error. (See E\idence, 11.) 269.
ESCAPE.
Overt attempt to escape from state prison — Sufiiciency of mdictment. (See
Indictment, 1.) 425.
Digitized by
Google
Indbx. 489
ESMERALDA COUNTY.
Statute annexing jwrtion of Esmeralda county to Lyon county. (See
Certiorari, 2.) 438.
ESTATES OF DECEASED PERSONS.
When claims against the estate need not be presente<i to the administrator-
Foreclosure of mortpape. (See Mortgage, 3.) 215,
When executor of estate cannot be garnished. (See Execution, 2.) 247.
When claims against estate cannot be levied upon and sold. (See Execution,
2.) 247.
ESTOPPEL.
B(iRDEN OF Proof — Evidence — Estoppel. — Plaintifls offered in evidence the
judgment roll in former suit for the puri)ose of proving, as allege<l in the
complaint, that the cause of action was not identical with that litigated
and determined in former action. Defendant's defense wa.s estoppel:
Held, that plaintiffs were not obliged to prove that the wood referre<i to
in this action was not include<l in the former action ; that the <lefendant's
plea of estoppel was new matter, and he was bound to plead and i>rove it.
Gillsony. Price, llO.
0)venants in deed for the use of water — Notice of amount of water needtd.
(See Contract, 8.) 141.
EVIDENCE.
1. Evidence of the Existence of a L.\w. — This court will not look beyond
the enrolled bill in order to a.scertain the tenns of a law. The fact that it is
signed by the proper officers of each house, approved by the g<jvenior and
filed in the office of the secretary of rtatc, 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.) State ex rel. Cardwell v. Glenn, 3o.
2. Sale — Declabatioks of Vendor — When Not Admissible — Res Oect^. —
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 puq^ose of affecting or inii)eaching the bona jides
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 admb*-
sible as being part of the res gestx. liirschfvld v. WiUiamson, 66.
3. Conflict op Evidence. — There must be a clear preponderance of evidence
against the verdict to warrant any interference by this court. If there is
a substantial conflict in the testimony, upon material points, the vertiict
will be sustained. Pinschower v. Hanks, 99; Sacalans v. E. <t P. R. R.
Co.^ 155 ; Simpson v. Williams, 432 ; Langsvorthy v. Coleman, 4^1 ; Sultan
V. Sherwood, 454.
4. Action Against Partners Under Firm Name — Excltsion of Deposition —
Error Not Prejudicial.— It appearing that the acts and declarations of
Lsadorc Rich, relative to the matters in controverey, were all admitted
without objection : Held, that the ruling of the court in excluding cer-
tain depositions showing that hcwas a member of the firm of Rich Bros.,
was not prejudicial to defendant. Pinschowor v. Hanks, 99.
5. Refreshing Memory of Witni-:ss — Reading Statement. — An attcirney in
testifying to statements made by a witness, in his presence, was allowed
to refresh his memory by rcfei-ring to, and reading, a written statement
Vol. XVIII— 62
Digitized by VjOOQ IC
490 Inbbx.
made by himself. He testified to the correctness of the facts set forth in
the statement : Held, that it was not the written statement, but the recol-
lection of the witness, that was given in evidence and that it was not
erroneous to allow the witness to refresh this recollection by reading the
statement. Id.
6. Evidence— Anticipating Defense:— jHcZd, 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. Gillson v. Price, 110.
7. Immaterial Evidencp:— 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 : HeJd, that the error, if any, was not of sufficient import-
ance to justify a reversal of the judgment. Phipps v. HuUy, 135.
8. Railway Corporations — Declarations of Agent— When Admissible.—
Declarations of an agent m'ade in the course of the transaction out of
which the action arose are admissible in evidence against hi? principal.
Sacalaris v. E. & P. R. R. Co., 155.
9. Damages— Seizure of Property Exempt from Execution— Evidekcr—
Wages of Barber. — In an action to recover damages against an officer
for closing a barber shop and taking the implements of the barber's trade,
which were exempt from execution : Held, 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. Hammersmith v.
Avery, 225.
10. 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. Id.
11. Forcible Entry and Unlawful Detainer— Immaterial Evidence—
Exclusion of. — The exclusion of evidence which merely tended to prove
the use of the easement by the defendants and their tenants : Held, not
erroneous or prejudicial to defendants. Lachnian v. Barneit, 269.
12. 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 the jmyees such
evidence. Evidence reviewed: Held, that no partnership or agency
existed between the payees of the notes in question. Haydon v. Nico-
leUi, 290.
13. 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 : Held, insufficient to sustain the judgment.
Martin v. Victor MiU <&. M. Co., 303.
14. Idem— Evidence— Pay-rolls— Alterations.— The pay-rolls of tlie mining
company : Held, admissible in evidence for the purpose of showing that
the plaintiff and otlier employes of the mining company were accustomed
to receipt for amounts due each month without receiving the money, not-
withstanding alterations and interlineations therein. Id.
15. Idem — Letters of President — Receipts of Employes: — Held, admissible
in evidence ; the letters as tending to establish an indebtedness ; the receipts
as tending to prove payments. Id.
Digitized by
Google
Inbkx. 491
16. Idem — Loan of Money — Finding. — ^The finding as to loan of money: Heldy
unsustained by the evidence. Id.
17. Existence op Deed— Evidence Of.— A deed is the best evidence of a con-
veyance of property ; but if an agent of the party claiming title to the
property is. permitted to testify fb the existence of such deed, without
objection, showing that claimant 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. Langivorthy v. Colenian^ 440.
18. Seizure of Property Exempt from Execution — Former Judgment-
Evidence OF, Admissible to Show Character of Property:— -ffieW, that
the judgment roll in the prior suit of the judgment debtor against the
sheriff the judgment creditor having controlled the proceedings in that
action, was admissible in evidence to show the character of the property
and was conclusive upon that is.sue. Elder v. Frevert, 447.
Party bound by his pleadings. (See Pleadings, 2.) 66.
Affidavit for new trial on ground of newly discovered evidence— When insuf-
ficient. (See New Trial, 3.) 99.
Burden of proof under allegations of complaint — Evidence of former action.
(See Pleadings, 3; Estoppel, 1.) 109.
Contract for reduction of ore — Assay of battery samples — Other evidence
admissible. (See Contract, 6.) 133.
Covenants in deed for the use of water — Notice of amount of water needed —
Estoppel. (See Contract, 8.) 141.
Omisjions in notice of mechanics' lien cannot be aided by extrinsic evidence.
(See Mechanics' Lien, 2.) 209.
Knowledge of owner of reduction works that repairs are being made thereon.
(See Mechanics' Lien, 5, 6.) 254.
Land necessary for convenient use of reduction works. (See Mechanics' Lien,
9.) 254.
Forcible entry and unlawful detainer— Sufficiency of evidence. (Sec Plead-
ings, 7.) 269.
Evidence that property acquired during coverture does not belong to the com-
munity—Burden of proof. (See Husband and Wife, 2, 3.) 362.
Parol evidence is admissible to show that the consideration for a deed was an
exchange of property. (See Deed, 2.) 362.
Overt attempt to escape from prison — Punishment received at prison inad-
missible. (See Criminal Law, 3.) 425.
Evidence as to prior appropriation of water. (See Water Rights, 3.) 432.
New trial on ground of surprise — Credibility of evidence determined by lower
court. (See New Trial, 10.) 454.
Evidence as to assault — Remarks of the judge in refusing instructions. (See
Criminal Law, 4.) 460.
EXCEPTIONS.
Exceptions to time of filing findings. (See Findings, 1.) 149.
EXECUTION.
1. Seizure of Property Exempt from Execution— Right of Exemption-
Personal Privilege— Officers Not Trespassers.- The right of exemp-
tion 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. HammertmUh v. Av€ry, 226.
Digitized by
Google
492 Index.
2. ESTATR OP DECEA8RP PEB30K6 — WhEN ExECDTOB CaNNOT BE GaRKISHKD—
Claims— Levy' and Sale. — In an estate, where no order for distribution
has been made, neither the executor or administrator is liable to tlie pro-
cess of garnishment, nor can an allowed and approved claim against the
estate be levied upon and sold under an execution against the claimant.
Norton v. Hay don, 247.
3. Seizure of Property Exempt from Execution — Liability of Exbcutiok
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. Elder v.
Frevert, 446.
Seizure of barber's tools exempt from execution — Wages of barbers not ad-
missible in evidence. (See Evidence, 9.) 225. •
Seizure of property exempt from execution— When officer is a trespasser.
(See Office and Officers, I.) 225.
Arrest and bail — Voluntary surrender of fraudulent debtor and subsequent
arrest under execution. (See Arrest and Bail, 2.) 331.
Seizure of property exempt from execution— When judgment cannot be set up
as a counter claim, (See Judgment, 2.) 447.
Seizure of property exempt from execution — Evidence of former judgment
admissible to show character of property. (See Evidence, 18.) 447.
Seizure of proi>ei'ty exempt from execution — Measure of damages for detention
of property.' (See Damages, 3, 4.) 447.
EXECUTORS.
(See Administrators.)
EXEMPTION.
{Seizure of barbers' tools exempt from execution. (See Evidence, 9.) 225.
Right of exemption is a personal privilege which, if not (claimed, is waived by
the debtor. (See Execution, 1.) 225.
.■Vn officer who seizes property exempt from execution is not a trespasser ab
initio. (See Execution, 1.) 225.
FEES.
Contract of attorney — Fees contingent on success. (See Contract, 2, 3.) 120.
Witness fees. (See Witness, 1.) 230.
FINDINGS.
1. Findings— ExcEiTiONs to Time OF Filing. — In construing the statute rela-
tive to defe(!tive findings : Held, that the exceptions recpiired to be filed in
court within five days are the cxce])tions of the party dissatisfied with the
findings. Smith v. Logan, 149.
2. Appeal— Statement on Motion for New Trial — Findings. — Findings not
embodied in tlie statement on motion for a new trial, and not referred to
therein, except by a statement that the "findings of fact and conclusions
of law are hereby referred to and made a part of this statement, and will
be use<l upim tlie hearing of the motion for new trial," cannot be con-
siderotl on aj)peal. Boyd v. Ander»on, 318.
3. Implied Findings- Pre.«<umptions. — In the absence of an express finding it
is the duty of appellate courts to presume the findings of the lower courts
to have been such as were necessary to support the judgment. Langworthy
v. Coir man. 440.
Digitized by
Google
Index. 498
4. Findings— Conclusions of Law.— If the findings of the court are objection-
able as only stating conclusions of law the party dissatisfied with them
must ask to have them corrects. If he fails to do so he is not in a position
to complain on appeal. Id. 441.
Findings of facts should be embodied in the statement. (See New Trial, 1.)
2S.
Findings will not be reviewed unless there is a statement on motion for new
trial. (See New Trial, 5.) 246.
When statement on motion for new trial must be filed. (See New Trial,
6, 7.) 278.
FINE.
Imprisonment for non-jmyment of fine in cases of contempt. (See Contempt,
4.) 74.
FORCIBLE ENTRY AND UNLAWFUL DETAINER.
1. Possession of Land — Easement of Way Over, Does Not Give. — The mere
enjoyment of an easement of the right of way over land does not give the
owner of the easement possession of the land over which the easement
of way exists. Lachman v. Barnett, 269.
2. Force. — Every entry into the lands or tenements in the actual possession of
another, with strong hand, or with a multitude of people, is forcible. Id.
Sufficiency of pleadings and evidence, (See Pleadings, 7.) 269.
FOREIGNERS.
Right of foreigners to purchase land from the state. (See Land, 1.) 251.
FORFEITURE.
When forfeiture need not be pleaded in action of ejectment. (See Mining
Claims, 1.) 80.
FRAUD.
1. Arrest and Bail — Fraudulent Disposition of Property — Fraud when
Carried Out. — Petitioner sold his real estate, within this state, and depos-
ited the money realized therefrom in a bank in the state of California, prior
to the rendition of the first judgment. Subsequently, when temporarily
absent from this state, he transferred this money to Europe : Held, that
the fraud of petitioner was not merged in the firs't judgment, because the
fraudulent purpose was not fully carried out until after the rendition of
such judgment. Ex parte Bergman^ 331.
2. Idem— B^raud Committed when Absent from the State — When Consid-
ered AS Committed within this State. — As i)etitioncr was a resident of
this state, the act of the removal of t!ie money from California to Eiu"ope
was, in contemplation of law, a fraud committed by him in thix state, and
the plaintiff i.s not prevented from enforcing the payment of his judgment,
by the means authorized by statute, because some of the alleged fraudident
acts were committed by jxititioner during his temporary absence from the
state. Id.
Arrest and bail — Imprisonment for fraud is a coercive means of enforcing judg-
ment. (See Constitution, 6.) 332.
Arrest and bail— Voluntary surrender of fraudulent debtor — Effect of. (See
Arrest and Bail, 2.) 331.
Digitized by
Google
494 Index.
garnishee.
A stockholder in a banking corporation is not liable to garnishment, in an
action at law, for his unpaid subscriptions. (See Corporation, 3.) 246.
When executor of an estate cannot be garnished. (See Execution, 2.) 247.
HABEAS CORPUS.
Errors not Reviewable. — Alleged errors and irregularities in the proceedings
of the court cannot be reviewed by fiabeas corpus. Ex parte Bergman, 332.
HUSBAND AND WIFE.
1. Husband and Wife — Common Law — Separate Property — Rents, Issues
AND Profits — Statute. — In construing the statute defining the rights of
husband and wife (Stat. 1864-5, 239): Held, 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 owned by
the husband at the time of his marriage and all that was subsequently
acquired with funds derived from t!ie rents and profits of such property,
or by an exchange of property owned by him at the time of his marriage,
is his separate property, and that tlie rents, issues and profits of his separate
estate did not become common property under the provisions of the statute.
Lake v. Bender, Adm. of estate of Lake, 361.
2. Idem— Property Acquired During Coverture — Community Property-
Presumption — Burden of Proof — Evidence. — The presumption is that all
property acquired during coverture belongs to the commuiiity, and the
burden rests on the person claiming it as separate property to overcome
this presumption by proof sufficiently clear and satisfactory to c*onvince
the court and jur>' of the correctness of such claim, /d., 362.
3. Idem — Joint Efforts — Community Property — Evidence. — It is not neces-
sary to prove that property is the product of the joint efforts of the hus-
band 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 com-
munity. Id.
4. Idem — Profits — Separate Property. — The profits of separate property
which accrue mainly from the property rather than from the joint efforts
of the husband and wife, or either of them, belong to the owner of the
property, although the labor and skill of one 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. Id.
5. Idem — Toll-road — Ranch — Hotel, Profits From— Separate Estate:—
Held, upon the facts stated in the opinion, that the rents, issues and profits
arising from a toll-road and bridge, a hotel and bar, and the Lake ranch,
were the separate property of the Imsband. (Hawley, C. J., dissenting.) Id.
Cruelty of wife. (See Divorce, 2.) 49,
A married woman who holds title to separate property may execute a mortgage
thereon in her own name. (See Mortgage, 2.) 215.
Contracts by a married woman as security for her hasband — When valid. (See
Married Women, 1, 2.) 310.
Rights and liabilities of married women. (See Married Women, 3.) 310.
Statute relating to husband and wife — Allowance for wife's support. (See
Divorce, 4.) 362.
Digitized by
Google
Inbbx. 496
IMPRISONMENT.
Imprisonment for non-payment of fine in cases of contempt. (See Contempt,
4.) 74.
Arrest and bail — Imprisonment for fraud is a coercive means of enforcing judg-
ment. (See Constitution, 6.) 332.
Arrest and bail — When party may be imprisoned for the costs as well as for
the principal debt. (See Constitution, 7.) 332.
INDIANS.
Indians Living in Tribal Relations — 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 discussed at length. State ex rel. Truman v. Mc-
Kenney, 182.
INDKTTMENT.
1. Overt Attempt to Escape from Prison. — An indictment for an attempt
to escape from the state prison, which alleges that the prisoner, while law-
fully confined in the state prison under a judgment of a comi>etent court
for the crime of bui-glarj', did make an overt attempt to esctipe therefrom,
and did unlawfully, forcibly, and feloniously break out of the cell in said
prison in whicli he was confined, and out of the building in which said
cell was and is, contains a suflieient statement of facts to show the com-
mission of the crime charged. State v. Angela^ 425.
Burglary — Description of premises — Name of owner and tenant of building.
(See Burglary, 2.) 345.
INJUNCTION.
Damages on injunction bond — Sufficiency of complaint in action against
sureties. (See Pleadings, 4.) 129.
Liability of sureties upon injunction bond. (See Sureties, 1.) 129.
INSTRUCTIONS.
1. Instruction. — Appellant dannot complain of the instructions of the court,
as to his liability, which were given at his own re(|uest. Oillson v. Price,
109.
Instructions upon nuiterial facts not in issue authorizes a new trial. (See
New Trial, 2.) 61.
Seizure of property exempt from execution — When officer is a trespasser.
(See Office and Officer, 1.) 225.
Remarks by the judge in refusing instructions — When error. (See Criminal
Law, 4.) 460.
INSOLVENCY.
Efiect of adjudication of insolvency on pending actions in another county.
(See Jurisdiction, 3.) 286.
Courts are not bound to take judicial notice of insolvency proceedings in
another county. (See Jurisdiction, 4.) 286.
INTEREvST.
Method of calculating interest on purchase of territorial bonds, (See Statute,
2.) 352.
Digitized by
Google
496 Inbbx.
judgment.
1. Meroer ok Fraud in Judgment — When Waived. — When the principle of
merger applies the party relying upon it must plead it in the second action,
or he will be deemed to have waived the right of this defense. Ex parte
Bergman, 331.
2. Seizure of Property Exempt from Execution— Counter Claim. — In an
action against a judgment creditor for the unlawful seizure of property
exempt from execution, the defendant ctmnot set up the judgment under
which the seizure was made, as a counter claim to the action. Eider v.
Frevert, 447.
Presumptions on appeal from judgment. (See Appeal, 2.) 49.
Arrest and bail — Imprisonment for fraud is a coercive means of enforcing judg-
ment. (See Constitution, 6.) 332.
Merger of fraud in judgment — When waived. (See Pleadings. 8.) 331 .
Arrest and bail — Judgment for fraud — Jurisdiction of court. (See Arrest and
Bail, 1.) 331.
Presumptions of implied findings to support judgment. (See Findings, 3.) 440. ^
Seizure of property exeml^t from execution — Evidence of former judgment
admissible to show character of property. (See Evidence, 18.) 447.
Seizure of property exempt from execution — Measure of damages for detention
of property after judgment. (See Damages, 3, 4.) 447.
JUDGMENT ROLL.
Judgment Roli^ — 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. Simpson v. Ogg, 28.
JUDICIAL NOTICE.
When courts will take judicial notice of authority of agents of railroail cor-
porations. (Sec CorjKmition, 2.) 155.
Courts are not bound to take judicial notice of in.solvency procee<iings in
another county. (See Jurisdiction, 4.) 286.
JURISDICTION.
1. Jurisdiction of District Coirt — 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 leajs than three hun-
dred dollars. Robinson v. Longley, 71.
2. Indians Living in Tribal Relations— Crimes By— Jurisdiction of Courts.
— The courts of this state have no juri.sdiction to try an Indian belonging
to a tribe which is rccognizerl and treated yf'iXh as such by the government
of the IT. S., having its chief and tribal law.s,' for killing another Indian
belonging to the siime tribe. Stale ex rel. Tninmn v. McKenney, 182,
3. Insolvency, Adjudication Of— Effect on Pending Actions — Jurisdiction.
— When an apix^l is taken from a judgment rendered in a justice court,
and, pending the apix^al in the district court, the debtor is adjudged
insolvent by the di.strict court of another county, a motion to stay pro-
ceedingi?, without a ])roper showing of the adjudication of insolvency, or
of the order staying i)rocee(lings issued therein, .does not divest the district
court to which the appeal is taken of its authority to i)rocecd, ho as to nmke
its subscHjuent action void. Staie ex rel. Bwmett v. Fifth District Court, 280.
Digitized by
Google
Index. 497
4. Idem— Judicial Notice Of. — The district court is not bound to take judicial
notice of the i)roceeding:s of the district court of another county ; and a
disreganl of an adjudication of insolvency there made, even if properly
proven, would amount to no more than error. Id.
Geetiorari — Judicial Acts.— Under the laws of this state, the supreme court
is only authorized to review the record and proceedings of inferior courts,
officers, or tribunals acting in a judicial capacity and exercising judicial
functions. Esmeralda County v. Third District Court, 438.
No presumption in favor of jurisdiction of justice of the peace — Publication of
summons. (See Summons, 1.) 21.
Jurisdiction of supreme court on appeal — Court proceedings. (See Api">€al, 4,
5.) 166.
Jurisdiction of district court — Dismissal of appeal from justice's court. (See
Appeal, 7.) 286.
Arrest and bail — Jurisdiction of court in action for fraudulent disposition of
property. (See Arrest and Bail, 1.) 331.
Sufficiency of affidavit for contempt to give tlie court jurisdiction. (See
Contempt, 6.) 430.
Certiorari — Jurisdiction of courts is confined to reviewing acts and proceedings
of courts and officers of a judicial nature. (See Certiorari, 2.) 438.
JURORS.
1. Trial Jurors— Open Venire— Discretion of Court— The question as to
the necessity of selecting additional trial jurors by an open venire is
within the discretion of the district court. State v. AngelOy 425.
2. Oath of Jurors — When. Sufficient. — The form of oath as prescribed by
statute should always be followed; its substance cannot be dispensed
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 Grod :" Hdd, sufficient.
Id.
JUSTICE OF THE PEACE.
No presumption In favor of jurisdiction — Publication of summons. (See Sum-
mons, 1.) 21.
Sections of civil practice act applicable to justices* court. (See Summons, 2. ) 21.
KNOWLEDGE.
Knowledge of owner of reduction works that repairs are being made thereon.
(See Mechanics' Lien, 5, 6.) 254.
LAND.
1. State Lands— Purchase by Chinese.— A citizen and subject of the cliinese
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. I&ate ex rel. Fook Ling v. Prebk, 251.
Land necessary for convenient use of reduction works. (See Mechanics'
Lien, 9.) 254.
Easement of way over land does not give possession. (See Forcible Entry and
Unlawful Detainer, 1.) 269.
Party in possession of land may maintain action for an interference with his
rights. (Sec Water Rights, 5.) 432.
Vol. XVIII— 63 ^ .
Digitized by VjOOQ IC
498 Index.
LEASE.
When lessee can create a mechanics' lien on property of lessor. (See Mechan-
ics' Lien, 4-6.) 253.
LEGISLATURE.
Bills and joint resolntions must be signed by the presiding officers of the
respective houses and by the secretary of the senate and clerk of the
assembly. (See Constitution, 1.) 34.
Section 18, article IV, of the constitution construed — Authority of assistant
secretary of the senate to sign bills. (See Constitution, 2.) 35.
Evidence of the existence of a law. (See Evidence, 1.) 35.
L^slative construction of statute. (See Statute, 1.) 254.
Constitution — Prohibitions, limitations and restrictions of legislative power.
(See Constitution, 8.) 412.
Legislature cannot extend terms of county assessors beyond the time for which
they were elected by the people. (See Constitution, 9.) 412.
LIEN.
(See Mechanic's Lien and Vendor's Lien.)
LIMITATIONS.
1. Foreclosure of Mortgage — Statute of Limit.\tion8— 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 slie 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 clapped since the
maturity of (he indebtedness secured, unless the right to foreclose is barred
as tigainst the mortgageor. Richards v. Hutchinson, 216.
2. Idem — Sections 1G and 23, Ojnstrued. — In construing the statute of lim-
itations : Heldj 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. LawH, 1038) was to extend the time, in certain cases,
within which action h might be commenced, and was not intended to limit
the time given by other sections of the act. Id.
LYON COUNTY.
Statute annexing portion of Esmeralda county to Lyon county. (See Certio-
rari, 2.) 438.
MARRLA.GE AND DIVORCE.
(See Divorce.)
MARRIED WOMEN.
1. Married Women— Contract« by— Separate Estate— Security fob Hus-
band.—The assignment by a marriwi woman of a note and mortgage uixm
real esttite, the same being her separate pro])crty, a.s eoUatcral security for
the payment of her husband's deists, without any fraud or improper
inducements, and with the intention of binding her seimrate estate, is a
valid contract, and is enforceable in equity against her separate estate.
Cartan v. David, 310.
Digitized by
Google
Index. 499
2. Idem — Intk>tiox to Bind Separate Estate— How Exfressed. — ^The inten-
tion 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 exhibit^, and by the written indorse-
ment and deliven* of her note and mortgage. The contract, as made, is an
express charge uj>on her s*eparate estate for the payment of her husband's
debt. Id.
3. Rights and Liabilities of Mabbied Women. — Married women, having by
statute been granted the ritrht to control their separate proi>erty, must
assume the risks which ordinarily follow. Having the right to make con-
tracts respecting their separate estates, they must be held liable to the same
extent as other citizens. Id.
4. Assignment op Note and Mortgage by Married Women — How Made—
Acknowledc?ment. — The as-iignnient by a married woman of a note and
mortgage ui>on real estate, being her separate property, may be made by
merely endorsing 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 ai)art from lier husband. Id., 311.
Married women holding title to separate property may execute mortgage
thereon in their own names. (Sec Mortgage, 2.) 215.
Contract of marrietl woman — Consideration for assignment of note and mort-
gage— Statute of frauds. (See Statute of Frauds, 1.) 311.
MECHAXIC'S LIEN.
1. MEqpANic's Lien — How Construed— A mechanic's lien, although the act
giving it is to be liberally construed, is purely of statutory creation, and
can only be maintainc<l by a substantial observance of, and compliance
with, the provisions of the statute. Matter v. Falcon M. Co.^ 209.
2. Omissions IN Notice— Ple\ DINGS— Evidence. — The omissions in the notice
and claim, of a mechanic's lien, as recorded, cannot, in essential par-
ticulars, be aided by any averments in the complaint, or by extrinsic evi-
dence. Id.
3. Name of Owner Must be Stated.— It is essential to the validity of a lien,
under the provisions of tlie 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 the repute<l owner
given. These facts should be stated, independent of the description of the
property, in a direct, clear and positive manner. Id.
4. When Lessee Can Create Lien on Property of Lessor.— The interest of
the owner of reduction works may be subjected to lien claims, notwith-
standing the labor and materials have not been performed and furnished
at his instance if, knowing that alterations or repairs are being made, by
lessee; he fails to give notice that he will not be responsible therefor. (Stat.
1875, 123, sec. 9.) Gould v. Wise, 253.
6. Knowledge of Owner— Agent. — Evidence that the owner had an agent,
residing in the vicinity of the premises, who personally visited the reduc-
tion works and knew that the work was being done and improvements
being made, is prima fade sufficient to charge the owner with knowledge
of that fact. Id., 254.
Digitized by
Google
500 Index.
6. Lease:— ^tf^, that the terms of the lease, as stated in the opinion, also,
showed knowledge on the part of the owner. Id.
7. Laboeebs— Mateeialb. — Persons performing labor, or furnishing materials
used, in operating and *' carrying on " reduction works are entitled to alien
against the property. (Leonard, J., dissenting in part.) Id.
8. Section 19 op Lien Law Construed— Words "or" and " on "— Clericu.
Mistake. — In construing section 19 of the lien law (Stat. 1875, 126): Held^
that the word "on " should read " or;" that the change of the word "or"
to "on," in the statute, was a cleriail mistake and should be disre-
garded. Id.
9. Land Necessary for Convenient Use of Reduction Works— Evidence,—
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 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 con-
venient for the use of the reduction works. Id.
MERGER.
Merger of fraud in judgment— When waived. (See Pleadings, 8.) 331.
MINING CLAIMS.
1. Mining Claims— Ejectment— 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, for failure to do
the necessary work required by the act of congress (Rev. Stat. 2326), such
forfeiture need not be specially pleaded. Sted v. Gold Lead G. dt S. M.
Co., 80.
2. 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
application 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 fonim whenever they are
questioned, whether it be in the state courts or m the land department of
the government. (Leonard, J., dissenting.) Id.
3. Action to Recover Balance Due to Foreman of a Mining Company-
Wages OF Foreman when Absent from the Mine. — A foreman of a min-
ing company 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. Martin v. Victor Mill & M. Co., 303.
Contract for reduction of ore— Battery samples. (See Contract, 4, 5.) 133.
MISTAKE.
Clerical mistake in section 19 of mechanic's lien act— Words "or" and "on."
(See Mechanic's Lien, 8.) 254.
New trial on ground of surprise— Mistake as to material facts. (See New
Trial, 11.) 454.
MORTGAGE,
1. Mortgage Upon a Railroad— How Construed.- In construing a mortgage
given by a corporation upon its railroad which minutely designates the
Digitized by
Google
Index. 501
line of road, specifies all the lands of an average width of sixty feet, upon
which the road is located, necessary for the use and operation of the road,
its rolling stock, superstructures of evcr\' kind and tlien adds "and all
rights, privileges, francliises, and property whatsoever, now belonging or
to be acquired by said party of tlic first part :'' Held, that it should be con-
strued as conveying only such projjerty as was or would be employed and
be useful or necessary in tlie construction, maintenance, operation, preser-
vation or security of the railroad mortgaged and that it did not include
other proiwrty owned by the corjxjration not used, or to be used, in con-
nection with the railroad, in promotion of the direct and proximate pur-
pose of its construction. Stale ex rel. Cardwell v. Glenn, 35.
2. Mabried Women— Mortgage. — A married woman who liolds the title to
her separate property may execute a mortgage thereon in her own name.
(Stat. 18G9, 194, sec. 9.) Richards v. IhUchinson, 215.
3. Foreclosure of MoRTCiAGE— Administrator— Estates of De(::eased Persons-
Claims Against. — In an action to foreclose a mortgage after a conveyance
of the mortgaged premises and the death of the mortgageor, when no
judgment against the estate of the latter is asked for, it is unnecessary for
the mortgagee to present the note and mortgage to the administrator of
such estate for allowance. Id.
4. 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 princii>al 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.
Id. 216.
Foreclosure of mortgage — When administratrix is not a necessary party to the
action. (See Parties, 3.) 216.
Foreclosure of mortgage— Statute of limitations. (See Limitation, 1, 2.) 216.
Assignment of note and mortgage by a married woman need not be acknowl-
edged. (See Married Women, 4.) 311.
NEW TRIAL.
1. New Triai^- Application for, How Made.— When a new trial is applied
for 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, the application must be made upon statements pre-
pared as the statute required. (Comp. Laws, 1256, 1257.) Simpson v.
Ogg, 28. . *
2. Instruction 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 wliich no
evidence was introduced at the trial : Held, upon the review of the testi-
mony, that the ruling of the district court was correct. Tognini v. Han-
sen, 61.
3. Newly Discovered Evidence— Diligence. — An affidavit for a new trial on
the ground of newly discovered evidence, which states that the attorney
"diligently searched for testimony to establish the defense," is insufficient.
It is too general. The acts performed should be particularly stated, so as
to enable the court to determine whether the conclusions stated are sup-
ported by the facta. Pinschower v. Hanks, 99.
Digitized by
Google
502 Index.
4. Idem — Nominal Party. — The nominal party to an action is required to use
the same degree of diligence as if he was the real party to the suit. Id.
5. When Findings Will Not be Reviewed.— The court will not rev-lew the
facts of the case, in ortler to ascertain whether the findings are supported
by the evident^, unlcs.s there has been a regular statement and motion for
a new trial. Beck v. Truckee Lodge, 24G.
6. Statement— When Must be Filed— Waiver.— A failure to file a statement
within five days after giving notice of intention to move for a new trial,
nothing having been done in the meantime to retain jurisdiction, operates
as a waiver of the right to move for a new trial, and no power exists in
the district court to reinstate this right. Elder v. Frevert, 278.
7. Idem — Findings — Decision. — In construing the provisions of section 195 of
the civil practice act : Held, that the findings of fact is a written state-
ment of each issuable fact e-stablished by the evidence; that the decision
is the aniKmncement by the court of its judgment, and may never be
reduced to writing; that the decision is, therefore, distinct from the find-
ings; and that the time within which notice of intention to move for a
new trial must be given begins to run fi*om the announcement ^f the
judgment. Id.
8. Verdict Contrary to Law— New Trial.— The court properly instructed
the jury as to the measure of damages, and they brouglit in a verdict con-
trary to such instruction: Held, that the court pro])erly granted a new
trial. Hoffman v. Bosch, 360.
9. New Trial of Portion of the Issues in Action for Divorce. — In an action
for a divorce and a division of the comnninity property, where a divorce
is first granted and subsecjuently tlie issues relating to the proi>erty are
determined, the district court has the power to grant a new trial of the
issues relating to the proi>erty rights alone ; provided, there is any material
error affecting that branch of the case only, without onlering a retrial of
all the issues in the case. Lake v. Bender, adm. of estate of Lake, 361.
10. New Trial — Surprise — 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 the affidavits, the district court is the sole judge of
the credibility 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. Sultan v. Sherwood, 454.
11. Idem — Mistake .vs 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 casc^was closed and ready for submission to the
jur\'. Id.
Statement on motion for new trial must be authenticated. (See Statement, 1.)
60.
Conflict of evidence, (See Evidence, 3.) 99.
Statement on motion for new trial and on ap])eal — How considered. (See
Statement, 2.) 279.
Findings must be embodied in statement. (See Findings, 2.) 348.
NOTICE.
(See Bills .\nd Notes.)
NOTES.
Notice of appeal should state that appellants do appeal. (See Appeal, 1.) 26.
Digitized by
Google
brax. 508
Covenants in deed for nse of watei^-Xoticc of amount of water required-
Estoppel. Sec Contract. 8. \ 111.
Judicial notice of autiioritr of agents of railroad corporations. (See Corpora-
tions. 2. ' 155.
Omissions in notice of mechanic's lien cannot be aided by pleadings or
extrinsic e\idence. See Mechanic's Lien, 2.^ 209.
When pnx»f of -strviw of noiit'c of apin-al njay l>e made. < Sih? Apj>eal» 6.^ 279.
SaflQciency of alli'lavit of ;scrvi<-e of nt»tit'c of apin^^l. S<.v Affidavit. 1.) 279.
Courts are not bouml to take jiuiicial notice of ins4>lvency pnxwxlings pend-
ing in another county. -See Jurisdiction, 4.) 256.
OATH.
Oath to jurors in criminal cases — When sufficient. iSee Juror?, 2.) 425.
OBJEl^IOXS.
1. Objbctioxs — Geoctcds of. Must be Stated. — An olyection to the ruling of the
court will not be reviewed unless the ground of objection is stated in the
district court. Langworthy v. Coleman, 440.
Idem— Shocld be Made in the Corirr Below. — An objection that a deed ia
inadmissible because it does not convey the premi*5€5 in dispute should be
made in the court below. Id.
OFFICE AND OFFICER.
1. Seizure of Propebty Exempt fkom Execitiok — Instrcctioxs, — The fourth
instruction, referred to in the opinion, was as follows : ** If plaintitT » * *
was in the possession a.s a tenant of the premises described in the com-
plaint, and then and there carrie<l on his trade as a iMirbcr, an<i the defend-
ant, by virtue of a writ of attachment, cjwted i)laintiir thercfnim and
refused to allow him the u§e thereof, then the defendant wa.»« a tr^>i>a.vK?r,
and is liable to the plaintiff for all damages that he dirwtly su.staineil by
reason of said withholding the i)ostfcssion theaH>f from him :" llelii, cot-
rect. Hammersmith v. Avery, 225.
2. CoxsrrruTioN — Election of Officers. — Under the provisions of the consti-
tution of this state, all necessary* state, county and township officers must
be elected by the people of the locality immediately concerned. State ex
rd. Perry v. Arrington, 412.
Assistant secretary of the senate may sign bills and joint resolutions, (See
Constitution, 2.) 35.
When president of corporation may execute deed and donate lands to a county.
(See Corporation, 1.) 35.
Officer seizing proixrty exempt from execution is not a trespasser ah initio.
(See Execution, 1.) 22-5.
County assessors must be elected by the j^eople. (See County Assessor, 1.) 412.
What acts of judicial officers can be reviewed ui)on certiorari. (See Certio-
rari, 2.) 438.
PARTIES.
1. Water Rights—Necessary Parties to Actiox.— A flume comi>any diverted
the waters of the stream above the lands of the jxirties to this action, but
the waters thus diverte<l were returned to the stream for plaintiff's use,
undiminished in quantity : Held, that the flume company wai? not, there-
fore, a necessary party to the suit. Smith v, Logan, 149.
Digitized by
Google
504 Inbbx.
2. Idem — Who May Maintain Action. — A party to whom certain lands are
granted for the purix>se 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 sliould be reconveyed, may prose-
cute and maintain the action in his own name. Such suit is founded on
the legal title. Id.
3. Foreclosure of Mortgage— Parties to Action. — The mortgagee may main-
tain an action to foreclose the mortgage against the grantee of the mort-
gagC'fl premises alone, when no judgment against the estate of deceased is
asked for, without serving the administratrix, as she is not, in such case, a
necessary party to the action. Richards v. Hutchinson, 216.
Action against partners under firm name. (See Partnership, 5.) 99.
Misjoinder of parties — When waived by filing an answer. (See Pleadings, 6.)
226.
Party in posses.sion of land may maintain action for an interference with his
rights. (See WaterRighti-'e.) 436.
Seizure of property exempt from execution— Parties to action of trespass. (See
Execution, 3.) 446.
PARTNERSHIP.
1. Dissolution of Copartnership— Rel.\tion of Partners — Surety, and Prin-
cipal Debtor— Payment of Indebtedn£2$s. — Upon the dissolution of a
copartnership where tliere is mi 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 Jiis surety, as between themselves and all
others dealing with them with knowledge of the facts, and the surety has
the rtght to protect Jiimself by settling the indebtedness for which he is
liable, at any time, whether it is due or not. Barber v. 6iIl*on, 89.
2. Idem — P.\yment After Compromise. — If the principal debtor had made a
compromise with the creditors of the firm, then the surety could not re-
cover from the principal the amount thereafter paid by him to the creilitors
in procuring a rclea.sc of his own liability. Id.
3. Idem — Release from Creditors. — Upon a review of the evidence: Hdd,
that Barber, as surety, was entitled to recover from Gillson, the princij^al
debtor, whatever amounts he may have paid on account of tlie timi
indebtedness regardless of the question whether he procured his own
release thereby. Id.
4. Idem— Value of Notes — Measure of Damages. — The surety surrendered
certain notes, executed in his favor by his copartner, to the creditors of the
firm in order t<^) release himself from liability : Held, in an action by the
surety against his copartner, that the measure of damages, which he is
entitletl to recover, is the face value of the notes surrendered. His loss is
not to be measured by the ability of his copartner to pay. Id.
6. Action Against Partners Under Firm Name — Dormant Partner — Ab.\te-
ment. — The failure to join a dormant partner as defendant in an action
against the i>artnersliip cannot be pleaded in abatement. Upon a judg-
ment against the ostensible partners in the finn name, the interest of all
the partners, whether named or not, will pass to the sheriff's vendee.
Pinsdiower v. Hanks y 99.
6. Allbg.vtion of Copartnership— Sufficiency Of. — The averment of a co-
partnership 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 Nev. 447, affirmed.) Reese v. Kinkead, 126.
Digitized by Vj
oogle
Index. 505
7. Pabtnebship Propebtt — Salb to Copabtjceb— Veiidob's Lie^. — 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 tlie ab^^?nt•e of fraud,
entitled to a vendor's lien for the purchase price; provided there are no
creditors of the estate of his copartner. Id.
8. Negotiable Note* — Partnership— Evidence Of. — A nejrotiable note, play-
able to two or more persons jointly, is no evidence that it is owneil in part-
nership; nor i.s the fifict that such note is in the actual ptissession of one of
the payees such evidence. Evidence reviewed : Held, that no ])artnership
or agency existed between the payees of the notes in question. Haydon v.
NicoUtti, 290.
PATENT.
When party need not protest against application for a patent. (See Mining
CTaims, 2.) 80.
PLEADINGS.
1. Verification of Complaint— Sufficiency of.— When the allegations of the
complaint are made positively, and no averments stated ii]M>n infonnation
or belief, a verification, which omits the words ** except as to those matters
which are therein stated on his informaticm or belief, and, a^s to thobe mat-
ters, he believes it to be tnie," but otherwise follows the form }>rescribed by
statute, is sufficient. Krlly v. Kelhj, 49.
2. Party BorND by His Pleadings.— In reviewing the evidence and plead-
ings : Held, that defendant is b(mnd by tiie avennent in his answer and
that he cannot claim that a sale whicii he alleges therein was made at a
certain date was really made at a different time. Hirschfeld v. WiUiam-
son, 66.
3. Burden of Proof— Allegations of Complaint. — The burden of proof is on
the defendant to prove all the allegations of his (x>mplaint neces<«4iry for his
recovery ; but he is not bound to prove what goes merely to support the
defense, although he has himself alleged them. GiUson v. Price, 109.
4. Action Against Sureties — Damages — Injunction Bond — Sufficiency of
C0MPL.VINT. — In an action, to recover damages, against the sureties on an
injunction bond, the complaint alleged that " plaintiff has l>een 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 si>ecial demurrer,
that the averment was sufficient. Rosendorf v. MandeU 129.
5. Idem — Demand, When Not Necessary. — In an action against sureties on an
injunction l>ond, conditioned for the payment to the plaintiff of whatever
damages he might sustain by reason of the injunction, it is unneccssarj' to
allege a demand. Id.
6. Demurber — Misjoinder of Parties — Waiver. — The question of misjoinder
of parties, raised by demurrer, is waived by filing an answer. Hammer-
smith V. Avery, 226.
7. Forcible Entry and Unlawful Detainer — Pleadings and Evidence, Suf-
ficiency Of. — The pleadings and evidence reviewed : Held, that tlie jury
were justified, therefrom, in finding both a forcible entry and forcible
detainer. Lachman v. Barnett, 269.
8. Merger of Fbaud in Judgment — When Waived. — When the principle of
merger applies the party relying upon it must plead it in the second action,
or he will be deemed to have waived the right of this defense. Ex parte
Bergman, 331.
Vol. XVIII— 64
. * Digitized by VjOOQ IC
506 Index.
Action of ejectment— When forfeiture need not be pleaded. (See Mining
Claims, 1.) 80.
The failure to join a dormant partner as defendant cannot he plea<le<l in abate-
ment. (See Partnership, 5.) 99.
Evidence of former action — Bm*den of proof— Estoppel. (See Estoppel, 1.) UO.
Sufficiency of allegation of copartnership. (See Partnership, 6.) 126.
("lontract for re<luction of ore — Assays of hatterj' samples — Pleadings. (See
Contract, 4, 5.) 183.
When pleadings cannot aid omissions in notice of mechanic's lien. (See
Mechanic's Lien, 2.) 209.
PLEDGE.
Rights of pledgee and of owner, of negotiable notes. (See Bills and Notes, 1.)
290.
POSSESSION.
Easement of way over land does not give possession. (See Forcible Entry and
Unlawful Detainer, 1.) 269.
Party in possession of land may maintain action for an interference with his
rights. (See Water Rights, 5.) 432.
PRACTICE ACT,
Sections of civil practice act applicable to justice's court. (See Summons, 2.)
21.
Provisions Cited.
Sections 39. 46, 65, 66. What pleadings must contain. 117.
Section 195. When motion for new trial must be filed. 283.
(See Statutes Oitixg Provisions of Compiled Laws.)
PRKSCMPTION.
Adverse use of water — Prescriptive rights. (See Water Rights, 2.) 149.
PRESUMPTION.
No presumption in favor of jurisdiction — Publication of summons. (See
Summons, 1.) 21.
Presumptions on api>eal from judgment. (Sec ApiKjal, 2.) 40.
Presumption that pro}x*rty acciuired during coverture belongs to the commu-
nity—Burden of proof. (See Husband and Wife, 2, 3.) 362.
Presumption of implied findings in supportof judgment. (See findings, 3.) 440.
Conveyance of land — Presumptions. (See Deed, 3.) 440.
PRINCIPAL AND AGENT.
1. Agents of Railway Corporations— Power of. — An agent having the over-
sight and charge, with tlie jwwer to direct, has a general and discretionarj'
IH)wer within the scope of his agency. Sdcnfans v. E. dr J*. R. R. Co.^ I.Vk
2. Idem— D IX- la rations of Agent— .When Admis.sible.— Declarations of an
agent made in the course of the transaction out of which the action arose
are admissible in evidence against his principal. Id.
Agent — Knowledge of owner of reduction works that repairs are being made
thereon. (See Mechanic's Lien, 5, 6.) 254.
Digitized by
Google
Index. 507
prison-breaking.
Sufficiency of indictment for overt attempt to escape from state prison. (See
Indictment, 1.) 425.
PROPERTY.
Statute defining the property rijrhts of husband and wife— Rents, issues and
profits of separate property. (Sw» Husband and Wife, 1.) 361.
Presumption tliat proix>rty ac<iuire<l during coverture is community property —
Burden of proof (See Hu.sl)and and Wife, 2, 3.) 362.
Profits of separate pn)perty — W2ien iH'longs to owner and when to tlie com-
munity. (See Husband and Wife, 4.) 362.
Rents, issues and profits firom a toll road, liotel and ranch, owneil by the hus-
band, held to be his separate projierty. (See Husband and Wife, 5.) 362.
Property exempt from execiUion — Fonner judgment admissible to show char-
acter of proi>erty. (See Evidence, 18.) 447.
PROTEST.
When party need not protest against application for a patent. (See Mining
Claims, 2.) 80.
PUBLIC POLICY.
Purchase of state land by foreigners — No act authorized by the constitution can
be said to be agiunst the public policy of the state. (See Constitution,
1.) 25L
PURCHASER.
Chinese who are bona fide residents may become purchasers of land from the
state. (See Land, 1.) 251.
RAILROADS.
Mortgage ui)on railroad proi)erty — How construed. (See Mortgage, 1.) 35.
Judicial notice of authority of agents of railroad corporations. (See Corpor-
atioiLs, 2.) 155.
Power and authority of agenta. (See Principal and Agent, 1.) 155.
Declarations of agente — When admissible in evidence. (See Evidence, ».) 156.
RENTS, ISSUES AND PROFITS.
Statute defining the rights of husband and wife — Rents, issues and profits.
(See Husband and Wife, 1,5.) 362.
REPORTER'S NOTES.
District judge may settle statement without regard to the reporter's notes. (See
Statement, 4.) 460.
RES GEST^.
When declarations of vendor after sale are not admissible as part of the res
gestx. See Evidence, 2.) 66.
SALE.
Declarations of vendor after sale are not admissible in evidence. (See Evi-
dence, 2.) 66.
Party bound by his pleadings as to the time when sale is made. (See Plead-
ings, 2.) 66.
Digitized by
Google
608 Index.
When claims against the estates of deceased persons cannot be levied upon and
sold. (See Execution, 2.) 247.
SCHOOLS.
Adoption of text books by state board of education. (See Board of Educa-
tion, 1.) 173.
SERVICE.
When proof of service of notice of appeal may be made. (See Appeal, 6.) 279.
Sufficiency of affidavit of service of notice of appeal. (See Affidavit, 1.) 279.
When amendment to affidavit of proof of service of notice of appeal may be
allowed. (See Affidavit, 2.) 279.
STATEMENT.
1. Statement Must be Authenticated. — A statement on motion for a new
trial will not be considered on appeal unless it is authenticated in the mode
prescribed by statute. Jones v. Adams, 60.
2. Statement on Xew Trial and on Appeal — How Considebkd. — Where the
statement on new trial also pur^wrts to be a statement on appeal and was
so treated in tlie orders, extending time for filing and settlement, made by
the district court, and was filed within the time required by statute for a
statement on ai)peal, it should be considered as a st^itement on appeal by
this court. Elder v. Fr evert, 279.
3. Settlement of Statement by District Judge — Supreme Court Has no
Power Over in Criminal C.vses. — In the absence of any statute on the
subject, the supreme court has no power to settle a stiitement on motion
for a new trial in a criminal Ciuse, when the district court refuses to settle
sucli statement according to the facts claimed by the moving party. Stale
V. Warren^ 4,')9,
4. Idem — Reporter's Xotes.— 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. Id. 460.
Findings, to be considered, must be embodied in the statement. (See New
Trial, 1.) 28.
Stipulation of counsel — Statement must show^ it was read or referred to. (See
Stipulation, 1.) 28.
Findings will not be reviewed unless there is a regular statement on motion
for new trial. (Sec New Trial, 5.) 246.
When statement on motion for new trial must be filed. (See New Trial,
6, 7.) 278.
Findings must be embodied in statement. (See Findings, 2.) 348.
STATE PRISON.
Indictment for overt attempt to escape from state prison. (See Indictment, 1.)
425.
STATUTES.
1. Construction of St.\tutb--Judtcial and Legislative. — A re-enactment of
a statute, without substantial alteration, ailer an authoritative construction
by the court.s (in this case by the district court of the U. S.) is a legislative
adoption of the court's construction. Oould v. Wise, 254.
Digitized by
Google
Lndbx. 609
2. PuBCHASE or Tebritorial Bonds — Interest— Method or Calculation —
Statute Conjjtrued. — In construing the pponsions of the statute authoriz-
ing commissioners for the slate to purcliase tl»e out:«tanding territorial
bonds, bearing interest at nine and one-half per cent, per annimi, "at such
rate of premium as would guarantee to the purchaser four and one-half
per cent. \ycT annum interest on the amount paid during the life of the
bonds" (Stat. 1879, 15, sec. 3) : Ifeld, that the statute fixes the sum which
the conmiissioners are authorize<i to jxiy, and that the nieth(Hl of calcula-
tion is to take the bonds at the date of delivery, calculate the interest
thereon at nine and one-half i>er cent. ^H^r annum, until the time when
the bonds become due. add tliis interest to the principal, then discount this
amount by four and one-half per cent, jx^r annum for the same time and
the balance is the amount authorized by the statute to be piild. Livingston
V. State, 352.
3. Idem— Discount— PREMrvM — .Vritiimetical Demonstration. — The method
of ascertaining the true discount and premium, and the amount to be paid
for the bonds arithmetically demonstrated. Id.
4. Extending Term ok Office of C(^unty Assessors — Statute Unconstitu-
tional.—Section 2 of the statute of 18S3. 123, extending the terms of
county asse^ssors beyond the time for which they were elected, is uncon-
stitutional and void. State ex rel. Perry v. Arnn(/tonjt4l2.
Evidence of the existence of a law. (See Evidence, 1.) 35.
Statutes relating to contempt. ^See Qmtempt, 1, 2.) 74.
The statutes relating to crimes and punishments do not apply to crimes com-
mitted by Indians against each other while living in their tribal relations.
(See Criminal Ljiw, 1; Jurisdiction, 1.) 182.
Statute in relation to mechanics' lien — Xamc of owner must be stated. (See
Mechanics' Lien. 1, 3.) 209.
Statute of limitations — Foreclosure of mortgage. (See Limitations, 1, 2.) 216.
When lessee can create a mechanic's lien on property of lessor. (See Mechan-
ics' Lien, 4, 6.) 253.
Section 19 of mechanics' lien law — Words "or" and "on" — Clerical mistake.
(See Mechanics' Lien, 8.) 254.
When statement on motion for new trial must be filed. (See New Trial, 6, 7.)
278.
Rights and liabilities of married women. (See Married Women, 3.) 310.
Arrest and bail — Imprisonment for fraud. (See Arrest and Bail, 2 : Constitu-
tion, 6, 7.) 332.
Definition of burglary. (See Burglary, 1.) 345.
Property rights of husband and wife — Rents, issues and profits of separate
property. (See Husband and W^ife, 1, 5.) 361.
Acts relating to marriage and divorce and to husband and wife — Amount of
allowance to wife. (See Divorce, 4.) 362.
iStatute annexing portion of Esmeralda county to Lyon county— Duties of dis-
trict judge. (See Certiorari, 2.) 438.
Year.
Page.
1861.
58.
ii
66.
Sec.
St.\tute8 Cited.
Act defining the crime of murder, 189.
Act defining the crime of burglarj', 347.
Act relating to marriage and divorce. 404.
Digitized by
Google
510 Index.
Year.
Page.
Sec.
1861.
250.
374.
8.
•'
;^9.
440.
"
483.
448.
1862.
196.
1864-5.
102.
4.
"
103.
6.
"
239.
"
339.
1869.
61.
65.
96.
'•
207.
473.
1873.
155.
6.
'*
198.
4.
1875.
122.
1.5,9.
"
126.
19.
1879.
15.
3.
1881.
23.
29.
125.
1883.
95.
*'
99.
6.
-
100.
6.
"
104.
'•
105.
4.
•*
123.
Vol. I.
Sec
9.
41, 42.
50.
151.
159.
162.
169.
218.
220.
2s:i.
416.
424.
1031.
1036.
io;^,s.
1(K57.
10()8.
'•
" 1092-7.
"
"
1135.
"
"
1143.
::
iisr
1191.
1252.
"
1256
1257.
Fees of witnesses, 234.
Attendance and fees of witnesses, 234.
Fine and imprisonment for contempt, 75.
Judgment of fine and imprisonment, 76.
Memorial toCongrc*< relating to Indians, 199.
Duties of secretary of tlie senate, 42.
Secretary of tlie senate authorized to appoint assistant, 42.
Act relating to husl)and and wife, 382, 404.
Attendance and fees of witnesses, 234.
Act relating to mechanics' liens, 260.
Act defining crime of burglary, 348.
Act in reluti(m to fines, 76.
Fine and imprisonment for contempt, 75.
Duties of secretary of senate and of assistant secretary, 42.
Commissioners to give notice of election, 413.
Act relating to mechanics' liens, 212, 258, 259.
Who entitled to mechanics' lien, 261.
Act authorizing purc'hase of territorial bonds, 354.
Mode of selecting jurors, 428.
Persons of s<jund mind to be witnesses, 201.
Insolvency proceedings, 287.
Removal of county seat from Aurora to Hawthorne, 38.
Act annexing i)ortion of Esmeralda county to Lyon
county, 438.
Taxable property in Esmeralda county, 167.
Bonds for erection of county buildings at Hawthorne, 37.
Donation of land for erection of county buildings, 46.
Act extending term of office of county assessors, 414.
Compiled Laws.
Negotiable promissory notes, 298.
Forcible entry and unlawful detainer, 271.
Forcible entry and unlawful detainer, 272.
Property rights of husband and wife, 382, 404.
Rights of hu.sband and wife, 222, 325.
Disposition of property in actions of divorce, 411.
Contracts of married women resi)ecting pro|)erty, 325.
Disposition of proiKTty in actions of divorce, 405.
Disp<Ksition of projH'rty in actions of divorce, 405, 411.
Creation of express trust, 153.
Relief of persons imprisoneil in civil actions, 339.
I)is(^hargc of persons inii>rLsoned in civil actions, 339.
Statute of limitations, 220.
Statute of limitatir)n.s — Absence from the state, 222.
Statute of limitation.s — Estati-s of decea.sed ixjrsons, 222.
Actions to l)e brought by real party in interest. 152, 299,
Indorsement of negotiable notes, 299.
Publication of sumnums, 24.
Arrest and bail in civil actions, 335.
Arrest and ])ail in civil actions, 340.
Proi>erty liable to garnishment, 250.
Settlement of statement in civil cases, 461.
Statement on motion for new trial, 31.
Digitized by
Google
Inpex. 511
Vol. L See. 12.>*<. X«»tic-e of intention to move for new trial. 283.
12'<>. Property liable to garnishment, 250.
1440. 145<). Subpoena for attendance t^f wiincs^ses, 2.^.
14<)7. Certiorari, 439.
" 1522. Contempt. 430.
15.'$4. Imprisonment for contempt. 75.
164Ci. Api»eal.«< fnmija<tices' courts. 280.
•* 16'j9. Defective findings. 153.
1674. Conflictinj; rights to mining claims, 87.
l^<.38. Overt attempt t4> os^tape from prison, 426.
2073. Judgment of fine and imprisonment, 76.
" 2076. Commitment to wanlen of prison, 427.
" 2229. Oath to jurors in justices' court. 428.
** 21H)5. Definition of burglan'. Ml.
•' 2466. Indictment for overt attempt to escape from prison, 427.
Vol. II. *' 2730, Removal of secretarj' of senate, 41.
'• 2742. Witness fees, 233.
'* 32S8. Judgment of fine and imprisonment, 76.
3322. Duties of state boanl of education, 174.
'• 3361. State board of education, 174.
'* 3398. Liabilities of stockholders in banking corporations, 241.
" 4240. Compilation of laws, 202.
United St\tes Statutes.
Vol. XIII. Page 30. Enabling act of congress creating state of Nevada, 188.
Revised St.vtutes, U. S.
Sections 1839, 1840. Government control over Indians, 192.
" 1977. Rights of persons to enjoy the benefit of the laws, 208.
2050. 2058, 2059, 2066, 21)78. Goveniment control .over indians, 19S.
STATUTE OF FRAUDS.
1. Contract of Married Women — Statute of Frauds — Whex Not Applic.\ble
— consider'ation for assignment of note and mortgage. — thc statutc
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 of the indorse-
ment expressed upon the note, or mortgiige in writing. The assignment
being made by the wife for the purpose of se(*uring the note of licr husband
at the same time her husband's note was given, and as part of the same
transaction, the consideration for the husband's note will be regarded as
the consijjeration 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 he con-
sidered as a mere parol promise to pay the debt of another. Cartan v.
David, 311.
2. Idem — Executed Contract. — When a contract is fully executed on both
sides the rights of the parties become fixed, and neither party can interfere
with such rights by pleading the statute of frauds. Id.
. STATUTES OF LIMITATION.
fSee Limitations.)
Digitized by
Google
512 Index.
stipulation.
Stipulation of Counsel not in the Statement.— A Ptipulation of counsel,
entered into after the statement on motion for new trial has been filed,
which is not identified, or desipiated 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.
Simpson v. Ogff, 28.
STOCKHOLDER.
Liability of stockholder in a banking corporation in an action at law for unpaid
subscription — Garnishment. (See Corporation, 3.) 246.
SUBPCKNA.
Requiting witnesses to attend court. (See Witness, 1.) 230.
SUBSCRIPTION.
Stockholder in banking corporation cannot be garnished in an action at law
for liis unpaid subscription. (See Coqwration, 3.) 246.
SUMMONS.
1. Justice of the Peace — Summons by Publication — No Presumption in
Favor of Jurisdiction. — Nothing can be presumed in favor of the juris-
diction of a justice of the i)eace. 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 satisfiiction of the court."
Victor M. d' M. Co. v. Justice' Court, 21.
2. Idem — Sections of Civil Practice A(T Applhable to Justices' Courts.—
The civil practice act, sections 1W)3 to 10Q7, 1 Comp. Laws, both inclusive,
relating to service of summons, are applicable to justices' courts. Id.
3. Affidavit for Publication of Summons — Sufficiency of.— An affida\nt for
publication of summons against a foreign corj>oration must show that t!ie
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 pei-sonal service. An affidavit which merely states tliat the
constable had returned the summons not served, and that due tliligence
had been used to find defendant, is not sufficient. Id.
4. When Copy of Complaint and Summons Must be Deposited in PosroFricE
— Residence of Defendant. — If service is made by publication, and the
residence of the absent defendant is known, the service is void unless the
court directs a copy of the complaint and summons to be deposited in the
postoffice, directed to the j)er3on to be served, at his place of residence.
Id. 22.
5. Idem — Order for Deposit Must be Made by the CJourt. — A deposit made
by an attorney without an order of court is insufficient. Id.
6. Affidavit for Publication of Summons Must State the Cause of Action.
— The affidavit must state the facts neces.sary to show that a cause of action
exists against the defendant. An averment that the amount claimed was
"due from the defendant to i)laintiff" is simply an allegation of a legal
conclusion, and is insufficient. Id.
Digitized by
Google
Indbz. 518
sureties.
I. Liability of Suretibs Upom Injunction Bond— Application of Money-^
Rights of Creditors. — The injunction order restrained the sheriff from
applying any moneys realized from the sale of certain property of the judg-
ment debtor to the satisfaction of plaintiff's judgment. Upon the sale the
sheriff, in lawful obedience to tliLs order, refused to credit plaintiff *s judg-
ment 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.
Roiendorf v. Mandel, 129.
When relation of surety exists between copartners upon dissolution of copart-
nership. (See Partnership, 1.) 89.
Sufficiency of complaint in an action against sureties on injunction bond. (See
Pleadings, 4.) 129.
Contract by a married woman as security for her husband. When valid. (See
Married Women, 1, 2.) 310.
TAXES.
1. Circus — When Not Taxable, — A traveling circus and menagerie, owned by
a non-resident, 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. Robitiion v. Longley^ 71.
Jurisdiction of district court — Legality of tax. (See Jurisdiction, 1.) 71.
TERRITORIAL BONDS.
Statute authorizing purchase of territorial bonds — Method of calculating
interest. (See Statutes, 2.) 352.
TIME.
Time of filing findings. (See Findings, 'l.) 149..
TITLE,
Title to negotiable notes— Indoraement of one payee. (See Bills and Notes, %.)
290.
Measure of damii^^es in action for breach of warranty of title. (See Damages,.
2.) 3G0.
TRESPASS,
Appropriation of water by tresi>asser. (See Water Rights, 1.) 149.
When officer seizing property exempt from execution is a trespasser. (See
Office and Officers, 1.) 2i).
Seizure of pn»i)erty exempt from execution— Parties to action of trespass. (See
Execution, 3.) 446.
TRUSTEE.
Foreclosure of mortgage— Statute of limitations. (See Limitations, 1, 2.) 2X6.
UNDERTAKING ON APPEAL.
Deposit of certificate of bank deposit with the clerk instead of money in lieu
of undertaking on appeal. (See Appeal, 8.) 423.
Vol. XVIII-^
Digitized by VjOOQ IC
614 Index.
• variance.
Description of premises in indictment for burglary — Name of owner and
tenant. (See Burglary, 2.) 845.
VENDOR.
Declarations of vendor after sale are not admissible in evidence. (See Evi-
dence, 2.) 66.
Right of copartner to a vendor's lien for sale of partnership property to his
copartner. (See Partnership, 7.) 126.
VENIRE.
Selecting jurors by open venire — Discretion of courts. (See Jurors, 1.) 425.
VERDICT.
Conflict of evidence. (See Evidence, 3.) 99.
Verdict contrary to law. (See New Trial, 8.) 360.
VERIFICATION.
Verification to complaint — When sufficient. (See Pleadings, 1.) 49.
Who may verify affidavit for contempt. (See Contempt, 5.) 430.
WAIVER.
Right of exemption Ls a personal privilege and if not claimed is waived. (See
Execution, 1.) 225.
The question of misjoinder of parties raised by demurrer is waived by filing an
answer. (See Pleadings, 6.) 226.
Merger of fraud in judgment — When waived. (See Pleadings, 8.) 33L
WARRANTY.
Measure of damages in action for breach of warranty of title. (See Damages,
2.) 360.
WATER RIGHTS.
1. Appropeiation of Water by Trbbpasser. — 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 owner: Held, that the water so used and appropriated by respondent
while he was a trespasser did not become appurtenant to the land, and,
hence, did not pass to appellant under his contract of purchase. Smith v.
Logan^ 149.
3. 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. Id.
3. Prior Appropriation op Water — Evidence. — Upon a review of the evi-
dence : Held, that the court did not err in finding that defendant's appro-
priation of wat€r was prior in time to tliat of plaintiff. Simpson v.
WiUiamg, 432.
Digitized by
Google
Indkx. 515
4. Idem— Amount of Water Used.— The amount of water to which the first
appropriator is entitled jiiust be limited to the amount actually applied to
the purpose of irrigation. Id.
6. Possession of Land — Party in Possession May Maintain Action fob an
Interference With His Rights.— Defendant had a contract for the pur-
chase of land and was in the possession thereof. At the trial no objection
was made to the testimony showing the nature of his possession and his
right to use the water in controversy : Held, that the defendant must be
treated as the lawful occupant of the premises, and hence entitled to main-
tain the action for interference with his rights, injurious to his possession.
Id.
6. Whew Right of Appropriation Begins— Reasonable Diligence.— In de-
termining the question of the time when the right to water by appropri-
ation commences, the law does not restrict the appropriator to the date of
his use of the 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 diligence: Held^ in reviewing the evidence,
that a delay for one season in not using the water was not unreasonable.
{Simpson v. WUliams^ ante, affirmed.) Irwin v. Strait, 436.
Construction of covenants in deed for use of water. (See Contract, 7.) 141.
Necessary parties to action for diversion of water. (See Parties, 1, 2.) 149.
WITNESSES.
1. Pees of Witnesseb— Subpoena.— Fees for mileage or attendance of the oppo-
site party's witnesses cannot be taxed, and judgment therefor entered
against the losing party, when such witnesses have not been subpoenaed in
the case according to law, or swofti or examined, although present in court
at the request of the successful party. (Hawley, C. J., dissenting.) Meagher
y. Van Zandty 230.
Digitized by
Google
/Google
Digitized by >
Digitized by
Google
Digitized by
Google
Digitized by
Google
Digitized by
Google
\
t
Digitized by
Google
Digitized by
Google
BBE[ARD LAW LIBRM.*-..^^
Live Music Archive
Librivox Free Audio
Metropolitan Museum
Cleveland Museum of Art
Internet Arcade
Console Living Room
Books to Borrow
Open Library
TV News
Understanding 9/11