Volume 1 — Nevada Reports

P. B. Looke, presiding. The complaint in this case contains two counts, one- for money had and received,, the other for work and labor. Tbe other facts of the case are stated in the opinion.

J. W. Nobth, presiding. If a party will either gain or lose by the direct legal operation and effect of the judgment, or if the record will be legal evidence lor or against him in some other action, he is not a competent witness, otherwise he is, so far as interest is concerned. (1 Greenleaf, 386-390.) A witness may be interested in the question to be decided and still be competent. (1 Greenleaf, 389.) The interest, too, must be real and not merely apprehended by the party.

J. W. Nobth, presiding. The facts in this case appear in the opinion of the Court. The transcript of the appellant does not purport to contain the entries which were made by the Clerk of the District Court in his register of actions. I think it devolves upon the appellant to exhibit these entries to the Court before he can ask the Court to pass upon their sufficiency, or upon the question whether they are the entries required by law.

P. B. Looee presiding. The facts of the case are sufficiently stated in the opinion. The appellant makes the following points: That the Court erred in charging the jury orally, and cites the following authorities: Section 355 of Criminal Practice Act, which is identical with section 362 of California Act as amended in 1855. (People v. Beebe, 6 Cal. 246; People v. Page, 8 Cal 341-4; People v. DeMerritb, 8 Cal. 423-4; People v. Ah Fong, 12 Cal. 345; Peoples.

R. S. Messick presiding. The facts of the case are fully stated in the opinion. Points of Appellant. First — The functions of respondent as County Auditor ceased when the Constitution went into effect. (Statutes of Nevada, p. 295, sec. 1; Constitution, sec. 32, art. IV. — secs. 2 and 13, art. XVII,, and Oolm v, Wright, 22 Cal, 312.) • Second — Appellant, by adoption of tbe Constitution, became ex officio County Auditor. Respondent’s Points.

. Appeal from the District Court of tlie First Judicial District of Nevada Territory, Storey County, Hon. J. W. Noetii presiding. With, exception of tlie following agreement the facts of this ease sufficiently appear in the opinion of the Court.

<p>APPLICATION FOE WRIT OE ENRON.</p>

J. ~W\ North presiding. The facts appear in the opinion of the Court. We think the acts found by the referee, without considering any other circumstances (there being no pretense of abandonment in the case), are sufficient of themselves to constitute such a possession, or ownership, in the defendants as to entitle them to a reversal of judgment in this case.

J. W. Nokth, presiding. Tbe affidavit on motion for continuance in tbis case shows that affiant is tbe Superintendent of tbe Bullion Mining Company, tbe defendant; that defendant could not safely proceed to trial' during that term of tbe Court because of tbe absence of one M. E. Letts, a material witness on tbe part, of defendant ; that Letts left tbe Territory of Nevada for tbe State of California in tbe month of November, 1862, and left said State in March, A. D. 1863;…

Geoege Tuenee presiding. The facts of the case are fully stated in the opinion of the Court.

L. W. FekRis, presiding. The-facts appear in the opinion of the Court. This is a proceeding on certiorw'i, by which a case which Fad been determined by it magistrate was brought before the Civil Probate Court; the case was one begun under the Act concerning forcible entry and detainer, for an enforcement of forfeiture of a lease by a landlord against his tenant for breach of conditions. The proceeding by certiora/ri is not the proper remedy.

Caleb BuebakK presiding. The facts are stated in the opinion of the Court. The only cases cited were 12 Cal., Slate of California v. Moore, p. 56; and-22 Cal., People v. Morrison, p. 78; sec. 6 of Organic Act; sec. 1, art. X. of •Constitution, and the various sections of the Revenue Act bearing on the points in the case.

<p>Appeal from the District Court of the First Judicial District of the State of Nevada, Storey County, Hon. R, S. Messiok presiding.</p>

Geo. TubNER presiding. ¥e contend that the retaining of a license properly issued in the first place, with the felonious intent of putting it in cir-dilation, is precisely the same in effect as if the party so felo-niously retaining it bad abstracted it from tbe office of tbe Auditor in tbe first place with snob intent. It is precisely tbe same in principle as tbe crime of larceny by a servant of his master’s goods.

Cm TujkNek presiding. The facts of the case are statedTn the opinion. The appellants made the following points: First — The notes being taken after maturity, are subject to all the equities. This point is not contested by respondent. Second — The rule that written instruments cannot be varied by parole evidence is subject to many qualifications. Parol evidence may be introduced to prove the instrument is void for fraud, etc., or for want of consideration.

Apphal from the District Court of the First Judical District of the Territory of Nevada, lion. J. W. North presiding. This case was originally brought by Gaylord as plaintiff, in the Territorial Court for Storey County. The judgment was in his favor. The defendants brought the case by appeal before the Supreme Court of the Territory.

R. S. MesicK presiding. Tbe. facts of tbe. case are stated in the opinion. This cause was argued orally, and no brief is on file on the part of appellant. The brief of respondent is an argument as to the construction of the several sections of the State Constitution and Territorial statutes bearing on this case, and cannot well be abridged so as to bring it within such reasonable space as to allow of its insertion in these reports.

L. W. EeRRis presiding. The facts of this case sufficiently appear in the opinion; The appellant will rely upon the following points and authorities : Fvrst — The Court below erred in dismissing the case, for the following reasons: No Revenue stamp was required upon the summons, under the Act of 1864. (See secs. 151, 152, 153, 158, 163 and schedule B.) The Act refers only to cases involving -a direct money demand.

H. M. Jones presiding. Appellants’ brief assigns as error the several instructions which were given to the jury in the Court below, all of which are noticed in the opinion of this' Court, and that the verdict was not sustained by the evidence. The respondents filed no brief.

S. II. Weight presiding. This was an action for money had and received. The defendant answered the complaint, but upon the trial objected to any evidence by plaintiff, because, as claimed, the complaint did not state facts sufficient to constitute a cause of action. The Court sustaining tlie objection, ordered judgment to be entered in favor of defendant, the plaintiff’s counsel excepting.

S. H. Weight presiding. The facts are stated in the opinion. Points and authorities of Cox’s counsel: First — Any rate of interest the parties may agree on in writing is lawful. (Statutes of 1861, p. 100.) ■ There being no legal restriction on contracts for interest, contracts for compound interest must be lawful. (2 Parsons on 0. 384-5.) ' Such contracts are not against public policy.

P. B. LooKE presiding. Tbe facts are stated in opinion. Points and authorities of appellant: Tbe instruction in regard to character is bad, for two reasons. 1st. Tbe jury are instructed only to regard evidence as to character, where there is a reasonable doubt of guilt, which is equivalent to instructing the jury they must only consider defendant’s character in those cases where they would be bound to acquit without considering it. 2d. It was error to confine tbe effect of…

Richard RisiNG presiding. The facts of the cáse are stated in the opinion of the Court. Points of Appellants. There are two reasons why the Court should have appointed a receiver. First — To collect the rents. Second — To make repairs and prevent waste. The purchaser at Sheriff’s sale is entitled to the rents and profits. A bill in equity in such case as this, is the only proper method of enforcing his rights.

Riohaed Rising presiding'.. The facts appear in the opinion of the Court. The acts of defacto officers are valid as to third persons. .(Cowen’s Treatise, 590, sec. 1,386; Culbertson v. City of Ca-leña, 2 Gil. 131; People y. Collins, 7 John. R. 519, 11 Cal. 188.) The .complaint, summons and return had been properly admitted.

Points and authorities of petition for rehearing: ■Fipst — This Court was in error in supposing that alienation of the property pending suit did not prevent the Court from giving judgment of restitution. (See sec. 256 of Practice Act.) Second — The judgment in tbis case is a joint judgment for land held in severalty by at least three different and several owners. Third — The Court below instructed tbe jury to bring in separate verdicts against each defendant.

Riohaed RisiNG presiding. The facts in this case are substantially the same as those in the case of Mallett v. The Unele Sam Gompanvy, decided by this Court at the same term, with the exception that the record of judgment by the Justice of the Peace was not introduced in this case. No brief on file.

Geo. TuRNEb presiding. This action was brought to recover the possession of a certain number of cattle, and damages for their detention.

J. W. Nobth presiding. The defendant was indicted for murder by the Grand Jury of Storey Conty, and upon the trial it appeared that one Bet-tinger, having entered the saloon of defendant for the purpose of collecting a bill of him, a dispute arose between them, and defendant reached under the bar and toot out a pistol and struck Bettinger on the head with it.

, Washoe County, Hon. C. C. Goodwin presiding. The facts of this case are stated in the opinion of the Court. Points and authorities for Appellants: The plaintiffs claim the timber only by reason of their ownership of the land. Waiving the point as to whether proof of ownership of the land entitles plaintiffs to recover timber in replevin, they cannot maintain this action for several reasons.

C. C. Goodwin presiding. The facts appeal’ in the opinion of the Court. Briefs were filed upon the merits of this cause by counsel for appellant and respondent. But as nothing was decided on these points by this Court, it is not deemed advisable to introduce those briefs in this report. Respondent made the point that the stipulation (which is quoted in tlie opinion of the Court in this case), did not make an appeal.

C. C. Goodwin presiding. The facts of the ease are stated in the opinion of the Court. That portion of briefs in relation to statute of limitations is omitted, as that part of the case was never examined or passed on by the Court. The other points made by Appellants were: First — No default was ever ‘entered against defendants as required by Practice Act. Second — The judgment is not such a one as a Clerk may enter up. It is a decree directing certain things to be done.

Caleb Buebanic presiding. The facts are stated in the opinion of the Court. Points by Appellant and Plaintiff: . Fi/rst — The Act of March 20,1865, repeals all former school laws. Second — The continued existence of the Board of Education would be inconsistent with Section 2, Article XI., of the Constitution. This must override the more general provisions of Section 13, Article XVII.

Tlie facts are stated in the opinion. Points made by Appellant: Fwst — There was no legal service of summons. Second — The proof of service was defective, because the affidavit of service was taken before a Deputy Clerk, not in his ■ own name, but in that of his principal. Memorandum of Appellant’s authorities : POINT I. The act of the Clerk in entering a judgment by default is merely ministerial, and his authority is strictly construed.

<p>Macadamized road is a technical term well understood.</p> <p>A charter authorizing one to collect tolls upon the making of a macadamized road between two points, will not authorize the collection of tolls until such improvement has been completed from one end to the other of the road.</p> <p>A failure to comply with the requirements of the law in regard to finishing the road works a forfeiture of the charter.</p>

S. H. 'Weight presiding. Appellants made the following points : First — No grounds for granting a new trial can be considered in this case, except that of “ insufficiency of evidence to justify the verdict.” 1st. Because there is a statement on appeal by the appellants.

This petition for a mandamus was an original proceeding in the Supreme Court. Points made by Petitioner: Was it not tbe dnty of the County Commissioners to make the levy, without stopping to inquire whether it was or not a constitutional law, which required them to act.

J. W. Noeth presiding. At, or a short time after tbis case was submitted to tbe Court on briefs, tbe case of Burling v. Driscoll c& Goodman was also submitted, involving nearly tbe same questions as in tbis case. Elaborate briefs were filed in that case.

HABEAS CORPUS. This was an application for writ of hciheas corpus made originally to the Supreme Court. The most important question involved in this case is, whether section 90 of the Revenue Law of this State, approved March 8, 1865, is in conflict with any of the provisions of the Constitution of the United States. If so, it is void, and the proceedings had under it must fall in such conflict.

RiohaRjd Rising presiding. The respondent recovered judgment in tbe District Court for tbe County of Storey, against tbe appellants, and also obtained a decree of foreclosure of a mortgage and an order for tbe sale of tbe mortgaged premises. Tbe judgment and decree were upon default, and tbe notes upon which this suit is brought being made payable in gold or silver coin, tbe order for tbe sale of tbe premises requires tbe property to be sold for coin.

HABEAS CORPUS. This was an application for writ of habeas corpus made directly to tbe Supreme Court. Points for Petitioner: The sentence originally passed on prisoner did not direct him to be hnng by the neck, nor until he was dead. It would not have been a justification to the Sheriff to execute the prisoner. The warrant issued by the Governor of the Territory was unauthorized by law, and did not justify the Warden in receiving or holding the prisoner in custody.

<p>Appeal from the District Court of the First Judicial District of the State of Nevada, Storey County, Hon. R. S. Mesioe presiding.</p>

MANDAMUS. Original application for writ of mandamus in the Supreme Court. The facts appear in the opinion of the Court. The compensation fixed by the Constitution is only as President of the Senate, not as Lieutenant Governor, ~We admit that cannot be increased or diminished during his term, as per Section 9 of Article IV. of the Constitution. But other duties can be imposed upon and payment allowed therefor to the Lieutenant Governor.

MANDAMUS. Appeal from the District Court of the First Judicial District, State of Nevada, Storey County, Hon. Richard RisiNG presiding.

Comity, lion. W. HaydoN presiding. Tbe defendants, A. Johnson and J. Waddell, were partners, doing business at Dayton, Lyon County, during the year 1863.

Petition to Supreme Court for mandamus. This was a petition to this Court on behalf of the School Trustees of School District No. 1 of Ormsby County, praying for the issuance of a writ of mandamus against the Commissioners of Ormsby County, to compel them to set apart certain portions of the money collected for taxes in that county to the School Fund. The mandamus was granted, affording a portion of the relief asked.

<p>Appeal from the District Court of the Eirst Judicial District, State of Nevada, Hon. Caleb Bubbanic presiding.</p>

O. 0. GoodwiN presiding. This was an action of ejectment, where the judgment was for the plaintiff. The facts of the case are not deemed material to be stated, because the Court having concluded that the District Court never had jurisdiction of the appeal, went into no investigation of the case, nor consideration of the various legal propositions connected therewith, except those points in regard to the taking of the appeal.

C. C. Goodwin presiding. Tbe facts of tbe case are fully stated in tbe opinion of tbe Court. made tbe following points in their brief. They are believed to be all which throw any light on tbe questions decided in tbis case: Tbis land was not obtained by deed in tbe name of either partner, but by mutual possessory acts.

C. C. Goodwin presiding. Tbe facts of tbe case are stated in the opinion of tbe Court. Tbe counsel on both sides filed elaborate briefs, but as they discuss rather tbe evidence than tbe principles of law involved, no abstract can be made from them that will elucidate' tbe principles settled in this decision.

S. H. Weight presiding. The demurrer being general to the complaint as a whole, if any cause of action is sustained by its allegations the judgment must be reversed. (10 Howard’s Practice R. 222 ; Martin v. MatUson, 8 Abbott’s, 3.) Nor is it material whether the complaint shows a right on the part of the plaintiff to the exact relief claimed; demurrer does not lie to the prayer for relief. {Beal v. Hayes, 2 Sand. 640; Andrews v. BKaffer, 12 How.

S. IT. Weight presiding. It is alleged in the complaint.in this action that on the 22d day of June, A. D. 1863, one John Wagner, at the special instance and request of the Board of County Commissioners, loaned to the County of Ormsby, and for its use and benefit, the sum of five hundred dollars in gold coin of the United States.

<p>A survey of agricultural land, made in accordance with the provisions of section 261 of an Act entitled “An Act to regulate Surveyors and surveying,” gives the person for whom such survey is made a right of possession for one year from the time the certificate is recorded. For that period the survey is equivalent to actual and continuous possession where there is no survey, and is sufficient to enable a recovery in ejectment.</p>

S. H. Weight presiding. On tbe 27th. day of January, A. D. 1864, tbe defendant Tjader, executed and delievered bis promissory note to tbe plaintiff, Yan Doren, by which, in thirty days after date, he promises to pay the sum of three hundred dollars. Before tbe delivery of this note tbe defendants, Hopkins and Winters, for tbe accommodation of Tjader, indorsed it in blank.

Judicial District, State of Nevada, Ormsby County, Hon. S. H. Weight presiding. The facts of tbe case are fully stated in the opinion. made tbe following points: Tbe Revenue Law only provides for tbe taxation of real and personal property within tbe State.

S. H. Weight presiding. Tbe facts of tbe case are stated in tbe opinion. Easterbrook having purchased seventeen days before tbe expiration of plaintiff’s lien, purchased subject to bis lien. By obtaining tbe legal estate, be cannot deprive plaintiff of bis equity. (2 Leading Cases in Equity, 135.) Easterbrook having purchased with notice before expiration of old lien, bolds subject to tbe new or continued lien created or extended by tbe levy.

Appeal Rom the District Court of the First Judicial District, State of Nevada, Storey County, Hon. Richard Rising presiding. The facts appear in the opinion of the Court. That portion of the charge of the Court which referred to a supposed consent on the part of plaintiff’s grantor to the occupancy of the land in controversy was calculated to mislead fhe jury, as there was no evidence tending to make such proof.

Appeae from the District Court of the Eighth Judicial District, State of Nevada, Douglas County, Hon. Daotel YiegiN presiding. In the agreement upon which this action was brought the plaintiff and the defendants bound themselves in the penal sum of ten thousand dollars for the performance of its stipulations and agreements.

W. H. Beatty presiding. Tbe defendant, E. S. Davis, was duly elected County Becorder for tbe County of Lander on tbe 8th day of November, A. D. 1864, and entered upon tbe discharge of bis duties on tbe 2d day of January, A. D. 1865. On tbe same day be duly qualified as Auditor of Lander County, which office be claimed to exercise by virtue of being Becorder.

S. H. Weight presiding. The facts of this case are fully stated in the opinion. The demurrer should have been sustained, because the complaint did not contain the averment of want of probable cause. “Without foundation in law or fact” is not equivalent. (Drake on Attachments, secs. Y32, Y34, Y36.) It has been held that the expression, without legal or justifiable cause, is insufficient.

Richabd RisiNG presiding. First — The Court!;',below erred in ruling out the evidence offered by appellant of the books of the company showing the positions of the respective plaintiffs therein, and all matters tending to show a knowledge of and compliance in by such plaintiffs, of the action of the company in dividing the so called discovery claim.

Riohaed RisiNG- presiding. The facts of this case are stated in the opinion of the Court. filed the following assignment of errors: Fvrst — The District Court, in the absence of any statute applying to and governing this class of cases in respect to that Court, could not entertain jurisdiction of the action.

filed the, following points: The transcript of judgment is authority for the State Prison Warden to hold the prisoner. (Laws of 1861, p. 484, sec. 45.) If that is not sufficient, the record of the judgment shows sufficient authority. ' The commitment is but the evidence of his authority. In criminal cases the sentence is the judgment. In this case the judgment is intelligible and sufficient, rendered by a competent tribunal, and imposes a punishment prescribed by law.

Daotel Virginpresiding. The facts in this case appear sufficiently in the opinion of the Court. Errors in law occurring at the trial in criminal cases can only be brought to the Supreme Court for review by bill of exceptions signed by the Judge. The only variation from this rule is in the matter of the Judge’s charge.

C. C. GoodwiN presiding. The facts are stated in the opinion. referred to the different sections of the statute bearing on the controversy, and contended the Commissioners could only exercise that authority sjiecially conferred on them, and the Legislature gave them no authority to create new funds, or to divert the county revenue from those purposes to which by law it was devoted.

Richabd Rising presiding. The facts of the case are stated in the opinion of the Court. made the following points: The complaint is defective because it does not aver the money was expended for the use and benefit of defendant or at his request. (2 Cal. 105; 3 Seld. 4IQ.) There is no proof that any particular amount of money was expended for repairing mill. The bill of particulars and proof shows that money was expended for repairing and running the mill.

<p>Appeal from tbe District Court of tbe Second Judicial District, State of Nevada, Ormsby County, Hon. S. H. Weight presiding.</p> <p>Tbe plaintiff filed bis bill in tbe usual form to foreclose a mortgage on real estate. Tbe defendant, George D. Houston, answered, and among otlier defenses set up that bis wife, Ellen Houston, wlio was joined as a defendant with Mm, died on tbe Jtb day of May, A. D. 1864, which was prior to tbe commencement of this action. Upon tbe trial, tbe defendant, Houston, was called as a witness on bis own behalf, who testified to tbe fact of bis wife’s death, and thereupon bis counsel moved tbe Court to dismiss the action, for tbe reason, as claimed, that her representatives should have been joined as defendants. Tbe plaintiff, upon such motion being made, ashed leave to amend bis complaint by adding an allegation to tbe effect that tbe defendant, Ellen Houston, bad no interest in tbe premises upon which the mortgage was executed, and by striking out her name from tbe bill. The Court refused to allow tbe amendment, and ordered the action to be dismissed, for tbe reasons that to entitle tbe plaintiff to foreclose tbe mortgage, tbe representatives of Ellen Houston should be made defendants, and that as the plaintiff’s claim did not exceed three hundred dollars, tbe Court bad no jurisdiction to render judgment on the note. Judgment for defendant, Plaintiff appeals.</p> <p>In tbe absence of any statutory provisions on the subject, the rights and liabilities of the wife are to be determined by the principles of the common law as applicable to a femme covert. Under that law she was incapable of holding or owning real or personal' property, and the legal presumption is, that the property described in the mortgage was the property of the husband, George D. Houston.</p> <p>(Chitty’s Black, vol. 1, pp. 434-5 (side paging); Claucy on Rights of Married ’Women, p. 1, et. seq.-, 2 Kent’s Com. p. 129, et. seq). And at common law the husband is administrator of the wife. (2 Black. Com. 515-16 ; Kent’s Com. vol. 2, p. 161 (note); 1 Yes. Jun. 186; Ferguson v. Smith, 2 John. Ch. 139; 2 Storey’s Eq. Jur., sec. 1318 ; Chitty’s Plead., vol. 1, p. 59; JBrumsldll v. James eb al., 1 Ker. 294; Pixleyv. Utoggms et al., 15 Cal. 127; 15 Cal. 308.)</p> <p>The Court erred in dismissing the action, since they did not set up that any other party was -interested in the premises, nor did it appear by the answer that there was a nonjoinder of parties in interest.</p> <p>If such were in fact the case, the defendant waived it by pleading to the merits.</p> <p>In any event the defendant Houston is a proper party to the action, and it was error to dismiss as to him. (Pepple v. GiTbone, 8 How. Pr. R., p. 457; Eclcerson v. Yolbner, 11 How. P. R. 42; Wallace v. Eaton, 5 How. P. R. 99; Oroolce v. Jliggms, 14 How. P. R. 154; UilTmwi v. EUlmam, 14 How. P. R. 456; Stat. 1861, p. 321, sec. 45; 6 How. 259; Chitty on PL, vol. 1, p. 452.)</p> <p>It was an abuse of discretion in the Court in not allowing the amendment offered by the plaintiff on the trial. No delay was asked by plaintiff, and no prejudice to the defendant was claimed or would have resulted from the allowance of the amendment.</p> <p>The judgment of dismissal was wrong any way. The case was not one which the Court had a right to dismiss under the statute. (Stat. 1861, p. 338, sec. 148.)</p> <p>The plaintiff was entitled to have the case go to the jury, as be had proved a sufficient case to the jury. Resides, the 'defendant admits in the answer that he is owing seventy-eight dollars on the note, and we were entitled to judgment for that amount on the pleadings.</p> <p>The Court did not err in dismissing the action so far as the mortgage was concerned, as one of the defendants had been dead a long time before tire action was brought. (Chitty on Pleadings, pp. 19, 50.)</p> <p>The Court did not err in refusing to allow the plaintiff to amend the complaint, for if he had been allowed to amend, the proposed amendments would not maintain his action; besides, the fact of the death of one of the defendants was set forth in the sworn answer of the other defendant, and the plaintiff, if he had a right to amend his complaint, ought to have done so before going into the trial of the action.</p> <p>The Court did not err in dismissing the action as far as the note was concerned, as the Court had not the jurisdiction of the action, a,s the amount claimed did not exceed three hundred dollars.</p>

R. S. Mesice pre-° siding. The Court below found the following facts: Fwst — That the defendant is the County Cleric of Storey County, Statd*of Nevada, and ex-officio Cleric of the District Court, Eirst Judicial District, in and for Storey County, State of Nevada. Second — That the plaintiff was summoned as a juror in said District Court aforesaid, on the 21th day of December, A. D. 1864, after having been duly drawn as provided by law.

C. 0. Goodwin presiding. The plaintiff filed his bill for an injunction to restrain the defendants from opening a road through his ranch in the County of Washoe. • He alleges in his bill that he is the owner of certain land in Washoe Yalley, which is of the value of fifty dollars per acre in United States gold coin; that E. C. Sessions, D. J. Gloyd, and I. N. Mundell, the defendants, are the County Commissioners of the County of Washoe, that on the 3d day of July, A. D.…

S. H. Case presiding. The facts appear in the opinion. The notice of appeal in this case was made, served and filed July 11, 1865; the appeal cost bond filed July 15, 1865, and the judgment appealed from is dated July 12, 1864, A party lias one year to take an appeal from a final judgment. (Act 1864, p. 81, sec. 30.) An appeal- is made or taken by tlie filing of the notice and service of a copy.

C. Goodwin presiding. Tbe facts of the case, so far as they are discovered by the record, are stated in the opinion, of the Court. A release, having all the force and effect of a deed could not be qualified, or have conditions attached thereunto by oral contract. It is not material whether plaintiff knew when he bought the land in controversy, that it was released from the judgment. The only material point to be considered was, had it in fact been released.

<p>Appeal from tbe District Court of the Eirst Judicial District, State of Nevada, Storey County, Hon. Riohaed Rising presiding.</p>

<p>Appeal from tbe District Court-of tbe Second Judicial District, State of Nevada, Ormsby County, Hon. S. H. Weight presiding.</p>

S. H. Weight presiding. Tbe facts of tbe case are stated in the opinion. If Martin was a trustee for Gibson (which we utterly deny), then Gibson should have proceeded to enforce tbe trust, and not to foreclose tbe mortgage, which would defeat the trust. But Martin was not a trustee — tbe evidence shows lie never intended to occupy that position.

R. S. MesigK presiding. Tlie case made out by tlie testimony of tlie plaintiff and bis witnesses ivas substantially as follows: That tlie lot in question was taken up by him and one George May in December, A. D. 1860; that at that time the lot was without improvements and unoccupied, that lie fenced the lot and built a.hay and feed stable thereon, and remained in possession by himself or tenants from that time up to about the 2oth day of August, A. D. 1862, when it is…

S. H. Weight presiding. Tbe defendant was indicted on tbe 15th day of March, A. D. 1865, by tbe Grand Jury of Ormsby County.

R. S. Mesioe presiding. The facts are stated in the opinion. The real point in this case is which are to be paid first, the funeral expenses and expenses of last sickness or the expenses of the administration. The great discrepancy between the amount realized by the administration and the appraised value of the property is not charged to have been caused by any culpable conduct of the Administrator.

g. H. Case presiding. Tbe language used by tbe Assessor indicates that tbe body of tbe mine, tbe realty itself, was assessed. It does not indicate that tbe mere possessory right to work in that mine was taxed. It was error in tbe Court below allowing evidence to be introduced varying and adding to tbe language of tbe Assessor. Under such a practice property might be subjected that was never thought of by tbe Assessor.

S. LI. Weight presiding. Tbe facts of tbis case are fully stated in tbe opinion. Tbe defense of vendor’s lien is not available to Martin in tbis case, for tbe following reasons: That point was decided in a former case in a Court of competent jurisdiction, and is res acbjudieata. A vendor’s lien is not assignable. (1 Leading Cases in Equity, 367-8; 1 O. B. 318; 2 0.

E. F. DuNN presiding. The complaint in this action substantially contains the following allegations: That on the 20th day of January, A. D. 1865, the plaintiffs, at the special instance and request of the defendant, loaned him the sum of three hundred and twenty-five dollars, which he promised to pay in the following manner : Seventy-five dollars in two months from the 20th day of January, A. D. 1865, and the remaining sum of two hundred and fifty dollars in three months,…

Riohaed Riseug presiding. The facts appear in the opinion of the Court. With regard to the measure of damages the Court substantially charged the jury that the true measure of damages was the amount that would be required to place the lot in the same condition it was before the nuisance was committed. We contend that this instruction was not erroneous, but was substantially correct.

Richabd RisiNG-presiding. The facts of the case are fully stated in the opinion of the Court. After the opinion was published a petition for rehearing was filed, and a response was made thereto by the Court. Fi/rst — Inadmissibility of the testimony of Mrs. Haines.

C. C. Goodwin presiding. The facts of this case are stated in the opinion. The. mortgage executed by defendant did not create a lien on the premises in dispute. There is no finding of facts to sustain the judgment of foreclosure, and it is therefore erroneous. The homestead law does not exempt property from a mortgage properly executed. It is not necessary the wife should join in a mortgage executed before the mortgaged property becomes a homestead.

Riohabd Bising presiding. The Court had no power to render a judgment for gold coin as decided by this Court in Maynard v. Newman and Burling v. Goodman. Tbe Act of Congress being supreme, the State law, which, is in direct conflict, must- be null and void. (Const. United States, 2d clause of Art. VI.) This case must be governed by the decisions of this Court above referred to.

R. S. Mesioic presiding. The facts are fully stated in the opinion of the Court. The Court erred in admitting in evidence the two confessions of judgment of Bromberger v. Bromberger, and Paxton First — Because respondents in both cases appeared as attorneys of record for the plaintiffs in those actions, and not for the defendant. Second — Because no man can be attorney upon both sides of a case.

<p>Erecting a house and residing therein with one’s family dedicates that building as a homestead. It makes no difference that the house erected is large or suitable for a lodging house and used for such purpose.</p> <p>Being once dedicated as a homestead, it can only be divested of that character by the joint deed of husband and wife. A married woman can only convey by following prescribed forms. No conveyance by the husband alone, and no lease made by him, could divest the property of its character as a homestead.</p> <p>The statute which requires the owner of the property to make his claim of homestead is merely directory, and if the husband does not make such claim and point out the homestead property to the officers when it is levied on, the wife may do so.</p> <p>The Constitution and the law has given the wife certain rights; the failure of the Legislature to point out the particular manner in which she shall assert them is immaterial. She may come into a Court of equity according to the established forms and usages of that Court, and obtain any equitable relief to which she is entitled.</p>

<p>Appeal from tbe District Court of tbe First Judicial District, State of Nevada, Storey County, Hon. Richard Rising presiding.</p>

<p>Appeal from tbe District Court of tbe Ninth Judicial District, State of Nevada, Esmeralda County, Hon. J. H. Case presiding.</p>

S. H. Weight presiding. In this case there were three several judgments against the defendants rendered at different periods, on three several notes. When the judgments were entered np they included the amount of principal and interest to date of judgment on each note sued on. Two of the judgments did not, however, in terms, provide for any future interest.

R. S. Mesioic presiding. cited the case of SpcurTcs dk Kelsey v. Kieo, 1 McAllister, page 497, for the proposition that the equitable remedy on the mortgage was not extinguished by the statute which barred the debt. cited for Respondents the case of Lord, v. Morris, 18 Cal. 484, and also the affirmation of that case in several California cases of later date, as follows : 21 Cal. 493; 23 Cal. 143, and L&nt v. Grogan, not yet reported.