Volume 10 — Nevada Reports

<p>Appeal from tbe District Court of tbe First Judicial District,'Storey County.</p> <p>cites Story on Agency, See. 63.</p>

On the 22d day August, A. d. 1871, the plaintiff Phill-potts commenced an action of ejectment in the district court of tbe eighth judicial district against defendant Bias-del, to recover the possession of certain mining ground on the Ward Beecher claim. A restraining order was issued, enjoining and restraining defendant from extracting or removing any quartz rock, earth or ore from said mining ground.

Tbe defendants, Charles Glovery, Edward Allen, John Duggan and Charles Warren, were indicted for, tried and found guilty of, an assault with intent to commit robbery.

<p>Mandamus — Title to an Oeeice. — Mandamus is not the proper remedy to try tlie title to a public office.</p> <p>Constitutional Law — Leoislative Poweb. — The legislature, having vested certain duties upon a public officer, and allowed him a salary for his services, may take those duties and the salary away from him before the expiration of his term of office, and confer them upon another.</p> <p>Statutes — Election on Warden oe State Prison. — The act of March 7, 1873 (Stat. 1873, 181), providing for the government of the State prison: Meld, to be valid in so far as it provides for the election of a warden by the board of State prison commissioners.</p> <p>Idem — Salabv on Warden. — The legislature did not intend by section 23 of the act of March 7, 1873, to give relator a salary as lieutenant-governor, and also a salary as e» officio warden.</p>

Tbe facts are stated in tbe opinion. I. The district court erred in admitting the power of attorney from Maynard to Flagg. II. The district court erred in admitting the evidence of Tucker as to the permission given to defendants by Flagg to erect and maintain the party-wall. III. The powei; of attorney given H. H. Flagg by appellant did not authorize the attorney to enter into a party-wall agreement. (Motí v. Smith, 16 Cal. 556; Borel v. Bobbins, 30 Cal. 413.)

The defendant, having been convicted of the crime of murder in the second degree, was sentenced to confinement at hard labor in the State prison for the term of his natural life. He appealed from the judgment. In addition to the instructions-copied in the opinion, the court gave the following, as asked by defendant’s attorney, viz.: “Ninth.

<p>Appeal from tbe District Court of tbe Second Judicial District, Ormsby County.</p> <p>Tbe facts are stated in tbe opinion.</p>

The facts are stated in the opinion. I. If the property in question was the common property of the defendant and her late husband, the assignor of plaintiff, one-half thereof belonged absolutely to her, and upon the dissolution of the community by the decree of divorce, the husband lost the right to dispose of the same as community property, and hence his disposition of the same to the plaintiff after his divorce from the defendant was invalid as against her, and the verdict…

The facts material to the decision are fully stated in the opinion. I. The taxes sued for zoere never on the delinquent list, or returned as delinquent in any manner ivhatever. The whole amount of appellant’s taxes for the year 1870, after the equalization of the assessment, was $14,668.06— which sum was paid in full and marked “paid” on the assessment-roll. They, therefore, were not delinquent and were never entered on the delinquent list.

The facts material to the decision are stated in the opinion. I. In this case the taxes were originally on the delinquent list; but, before the commencement of the action, they had been stricken off the list by the board of commissioners, upon the report of the district attorney in pursuance of section 40 of the revenue act.

Tbis action was brought by plaintiff to recover of and from defendant the sum of three thousand one hundred and forty-four dollars, tbe value of certain ore claimed to have been sold and delivered by plaintiff to defendant. Tbe Jackson Mining Company was allowed to intervene without objection.

This was an origiual application to the Supreme Court for a writ of mandamus to compel the respondent, as judge of the first judicial district, Storey County, to try the defendant for the alleged offense of malicious mischief. The facts are stated in the opinion. I. The offense charged involves “a question of title to real property, or of the right to the possession thereof ” (1 Comp.

<p>Aegombnt — Close of Belongs to the State. — The privilege of closing the argument in a criminal case belongs to the State.</p> <p>Testimony oe Witnesses may be Stated by the Coget. — The district judge, upon the trial of a criminal case, has the right to state to the jury, upon their request, the testimony of any witness.</p> <p>Moedee — Instbuctions should Define both Degeees. — Instructions which clearly define murder in the first degree, and then declare that unless the circumstances bring the case within that definition the defendant cannot be convicted of murder in any degree, are erroneous in this, that they ignore the offense of murder in the second degree.</p> <p>Sele-deeense — When not Available if Defendant is Assailant. — Instructions which assume that the defendant might be the assailant, and then kill the deceased in order to avoid danger to himself, were properly refused. A man who assails another with a deadly weapon cannot kill his adversary in self-defense until he has fairly notified him by his conduct that he has abandoned the contest; and if the circumstances are such that he cannot so notify him it.is his fault, and he must take the consequences.</p> <p>Idem — Chaege of the Cooet. — The court charged the jury: “ If you believe from the evidence, that the defendant first commenced an assault upon Schooley with a deadly weapon, .in which assault a mortal wound was given to said Schooley by the defendant, and at the time such wound was given the circumstances were such as to excite the fears of a reasonable person that the defendant was about to take the life of said Schooley, or to do him great bodily harm, then the defendant’s fear of danger at said time, from said Schooley, if really entertained by the defendant -would not justify the defendant if he took the life of Schooley, for then the defendant would bring such danger upon himself.” Held, correct.</p> <p>Idem. — The court gave the following charge: “If the jury should believe from the evidence, that the defendant first assaulted Schooley, but that the defendant before the mortal shot was given (if such shot was given) really and in good.faith endeavored to decline any further assault upon said Schooley, and * * * that after the defendant so declining any further assault * * * the said Schooley attacked the defendant in such a manner that the danger was so urgent and pressing to the defendant that, in order to save his own life, or to prevent his receiving great bodily harm, the defendant inflicted the mortal shot, then the infliction of such shot was justifiable.” Held, correct.</p> <p>Instbuctions — Defendant should Ask foe, when. — If the defendant desires the court to charge the jury upon any given point, it is his right and his business to prepare such an instruction, and ask the court to give it.</p> <p>Query. — Do not sections twenty-five and twenty-six of the “Act concerning crimes and punishments ” apply exclusively to cases of justifiable self-defense, and section twenty-seven to cases of excusable self-defense? ■Wound Mediate Cause of Death Sufficient. — It is not necessary that the wound inflicted upon the deceased should have been the immediate cause of death in order to render defendant responsible for its consequences; it is sufficient if it is the mediate cause.</p> <p>Modifying an Instbuction, when not Eeboneous. — Where the court in modifying a correct instruction does not alter its sense, the modification cannot be claimed to be erroneous.</p> <p>Instbuction undeb Indictment fob Muedeb. — The court, in its charge, instructed the jury that under the indictment the defendant might be convicted of murder in the first or second degree, or manslaughter, and if he was not found guilty of either of these offenses he should be acquitted. Held, not to be erroneous.</p> <p>Judgment, when not Void. — A judgment which does not specify any time for the imprisonment to commence is not void. The better practice is not to fix the commencement of the term, but merely to state its duration and the place of confinement.</p>

District, White Pine County. The complaint in this action alleges that on the 12th day of September, 1872, the defendant made and entered into an agreement in writing that the said plaintiff should deliver to the defendant at its mill in White Pine County, three thousand five hundred cords of cord wood on or before the 1st day of February, A. D. 1873; that in consideration of the terms and conditions of said agreement being kept and performed by said plaintiff, the said…

<p>Coa.TEA.CT — Meaning of Woeds “Moee ob Less.”- — Where plaintiffs entered into a contract with defendant to run a certain drift, in a mining claim, a distance of one hundred and eighty feet more or less: Held, thht the contract was completed when they had run the drift one hundred and eighty feet.</p> <p>Cohpdaint — When Insufficient in an Action upon a Contbact. — An allegation that plaintiffs in pursuance of their agreement (to run one hundred and eighty feet), “ did run said drift three hundred and eighty-four and one-half feet,” without any averment connecting the extension of the drift beyond one hundred and eighty feet with the original contract declared upon, or that defendant ever promised to pay any sum whatever for the additional work, and where from the complaint it appeared they had been paid in full for the distance mentioned in the contract: Held, that the complaint did not state facts sufficient to constitute a cause of action.</p>

The facts are stated in the opinion. I. The by-laws of the company vest the power to call meetings in the board of trustees, and, by necessary implication, withhold this power… Held: ivas void. (Ang. & Ames on Corporations, Sees. 488, 489, 491, 492, 495.) II. There was no election: there was no inspectors or tellers appointed, no stock was exhibited, the number of shares was not ascertained, the names of candidates were not announced, opportunity for voting was not afforded.

<p>Appeal from tbe District Court of the Seventh Judicial District, Lincoln County.</p> <p>This action was brought to recover the sum of twenty-seven hundred dollars, the alleged value of the plaintiff’s services as a clerk.</p> <p>Upon the trial the defendants introduced D. B. Shank-land as a witness, who testified that he was in the employ of defendants with the plaintiff; that in the absence of the defendants the business could have been conducted better than it was; that the plaintiff was addicted to drink and was often under the influence of liquor, so much so that he would not know what he was doing; that in the absence of defendants from the store the plaintiff was generally under the influence of liquor and often incompetent to transact business, but kept the books of defendants. At this stage of the testimony the defendants asked the question referred to in the opinion. As to his competency to testify as to the manner in which mercantile boobs should be kept, the witness testified that he was never in the employ of any one as a clerk, or otherwise, until he went into defendants’ store; that he did not keep the books of defendants while in the store; that he never kept any books of account; that he Avas in defendants’ store with plaintiff about four months. The court sustained the objections of plaintiff’s counsel to the question and the defendants excepted to the ruling.</p> <p>The other facts are stated in the opinion.</p> <p>I. As the gravamen of this action was the value of respondent’s services, it became material to know how he conducted appellants’business; as, for example, what attention he gave it, what labor he performed, what his capabilities were, how successful he Avas in conducting the business in Clute’s absence. The witness Shankland was competent to ansAver the question asked. It called for fact, not opinion. . The witness had clerked in Clute’s store with respondent during a part of the time in controversy, and had personal observation of tbe “manner” in wbieli “plaintiff conducted tbe business.” Since, therefore, tbe question was material and tbe witness competent, it was error to exclude it.</p> <p>II. Tbe jury arrived at tbeir verdict by tbe vicious process of “average;” they agreed that each juror should set down tbe value per month of respondent’s services, according to bis own judgment; that tbe aggregate should be divided by twelve and multiplied by tbe number of months, and that tbe quotient should stand as the verdict. This is an “irregularity” which tbe courts have universally condemned.</p> <p>I. Tbe question ashed tbe witness Shankland called for an opinion and not for facts. Tbe question asked could only have been answered by tbe witness giving bis opinion as to tbe manner in which respondent conducted tbe business of Clute. It did not call for any fact as to what the respondent bad at any time done; all that tbe witness testified to was as to what tbe respondent did, in the conduct of tbe business of Clute, and after tbe witness bad told all be knew, as to tbe capacity of respondent, bis habits, bis drunkenness and bis gambling, be was asked for an opinion.</p> <p>II. It was not a subject upon which evidence of experts could be received. (.Enright v. 8. F. & 8. J. B. B. Co., 33 Cal. 236; Beynolcls v. Jourdan, 6 Cal. Ill; 1 Greenl. on Ev., Sec. 440, and note.)</p> <p>III. Tbe verdict was not a gambling verdict, even under tbe California statute, as to tbe ground for a new trial, to wit, tbe “misconduct of tbe jury,” which is much more full than ours. (Turner v. Tuolumne C. W. Co., 25 Cal. 473; People v. Hughes, 29 Cal. 262.)</p>

This information in the nature of a quo warranto was originally brought in this Court to obtain a decree ousting the respondent from all right, privilege and franchise in and to a certain toll-road situate in Lyon County, Nevada. The facts are stated in the opinion. I. The passage of the act of February 9,1865 (Stat. 1864-5, 144), and the acceptance by Birdsall and his associates of the franchises, constituted a contract between them and the State.

<p>Evidence Sdutcient to Constitute Mgedee. — The testimony in this case shows that there was not only some evidence tending to show that defendant shot deceased, but that there was considerable evidence, all pointing diréctly to the defendant as the guilty party.</p> <p>"When Judgment mat be Aefiemed without Aegument. — where the appellant fails to appear and file any points or authorities in a criminal case, the Supreme Court may affirm the judgment appealed from, without examining the assignment of errors in the record.</p>

This was an. original application to tbs Supreme Court for a writ of mandamus to compel respondents, W. T. Wrigbt, John Skae, L. Reynolds and Dennis Driscoll, as trustees of the Allen Company, a corporation formed and existing under the laws of the State of Nevada, to forthwith call a meeting of the stockholders of said corporation, for the purpose of holding an annual election of a board of trustees. .

Tkis was an application to the Supreme Court for a writ of mandamus to compel the respondent, S. T. Swift, as sheriff of Qrmsby County, to issue to relator a license to conduct and keep the game of faro in Carson City for the' term of three months. ■The facts are stated in the opinion. I. The act to amend “An act to restrict gaming, approved March 4, 1875,” did not pass the legislature.

Motion made by respondents to dismiss an appeal. Affidavits in support of the motion were filed showing the facts which are stated in the opinion. I. Appellant Light is estopped from ever claiming the right of appeal in this action. (Dezell v. Odell, 8 Hill, 215; Welland Canal Co. v. Hathaioay, 8 Wend. 483; Plumb v. Catt. Ins. Co., 18 N. T. 394.) II.

<p>Assignob of Account cannot Sue — When.—The assignees of an account cannot authorize the assignor to bring suit in his own name, while they retain the absolute property in the account.</p> <p>Idem — Liabilitx of Debtoe. — A debtor is not liable to the assignor and assignee of an account at the same time, aud where the assignees have an undoubted right to sue, the assignor cannot maintain an action commenced in his own name.</p>

<p>Allegations oj? Complaint not Denied in the Answer. — Where the complaint alleges that defendant agreed to pay plaintiff four dollars per day for his services, and the answer does not deny that allegation, no issue is presented by the pleadings as to the value of plaintiff’s services.</p> <p>Instructions where no Injurx Occurs. — Where it clearly appears that appellant was not injured by the refusal of the court to give certain instructions asked by him, it is unnecessary for this court to decide whether said instructions are correct or not.</p> <p>Hules or Court — How Enforced. — It is doubtfulif the district court could enforce a rule of court that was not formally recorded in the minutes and published for thirty days, as by law required. This question referred to but not decided.</p>

<p>Habeas Coupes — What Petition bob must State. — The provisions of the statute that if tlie imprisonment be alleged to be illegal, the petition must also state in -what the alleged illegality consists (1 Comp. L. 350), contemplates that the facts showing wherein the alleged illegality consists should ho stated.</p> <p>Statement, when Conclusion op Law. — A general statement that the warrant is illegal, null and void, and that it was issued without authority of law, is a mere conclusion of law, not a statement of any fact.</p> <p>Petition must make out Peima Facie Case. — Before a writ of habeas corpus is granted, sufficient probable cause must be shown to enable the court to form some judgment in the case, and if it appears from the petitioner’s statement that there is no sufficient ground for his discharge the court should not issue the writ.</p> <p>Habeas Coepus — When not made Retubnable bepobe Sopbeme Coubt.— Where it is sought to bring petitioner from a distant county, a writ of habeas corpus will not be made returnable before this court in the first instance, without a showing of the absence, disability or refusal of the district judge of the county to act, or other good cause why it should be heard by the Supreme Court, or a justice thereof.</p> <p>This Cocrt will not anticipate Arrest oe Petitioner. — Petitioner cannot be in the custody of two different officers at the same time; and whero petitioner alleges that he is in the custody of the sheriff but suggests to the court that the sheriff will deliver him to another officer upon receipt of the governor’s requisition, this court will not anticipate such arrest in order to determine the validity of the governor’s warrant.</p>

Tbe petition of A. M. Eclgington set forth that he was-nnlawfully imprisoned, confined and restrained of his liberty by the sheriff of Storey County; that said imprisonment, detention, confinement and restraint were illegal, and that the illegality consisted in this: that petitioner had been arrested upon a warrant issued from the justice’s court-of township No. 2, in Virginia City, in Storey County, upon a complaint therein filed charging him with the violation of an…

\ This was an action to recover damages for the diversion of water, brought by plaintiff against the defendants, Joseph Sabron, Alexander McCullough, David H. Lemmon, Joseph Travis, Samuel Kain, E. Shelby, Anna Whithall and Walter Whithall.

Th'e facts are stated in tbe opinion. I. Tbe act entitled “An act to define and establish tbe boundary lines of Eureka County,” embraces but one subject and matter properly connected therewith.

Habeas Corpus before tbe Supreme Court. Tbe facts are stated in tbe opinion. I. The judgment of July 15, 1871, having been pronounced and entered out of term, is void. (State v. Roberts, 8 Nev. 289; Ex parte Roberts, 9 Nev. 44; Garliclc v. Dunn, 42 Ala. 404; Brumley v. State, 20 Ark. 77; Golusha v. Butler, 2 Scam. 227; Ex parte Osborn, 24 Ark. 479.) II. Avoid judgment has no binding force, and is an absolute nullity.

<p>Habeas Corpus before tbe Supreme Court.</p> <p>Tbe facts are stated, in tbe opinion.</p>

I. The language of the deed, deliberately adopted, is the sole evidence of the intentions of the parties to the conveyance, for no other evidence, usage or otherwise, was competent or offered in the case, and the case must be decided upon the construction of the language contained in the deed. Is there any room for construction?

The defendant was indicted, tried and convicted of grand larceny, and sentenced to five years’ hard labor in the State prison. The testimony was circumstantial. One of the watches stolen was found in the defendant’s pocket, the locket was found behind a bunk at a cabin occupied by the defendant and two other Chinamen. The defendant stated at the time, that the bunk was where he slept.

' Tbe facts are stated in tbe opinion. On this appeal no question is presented upon which the court is called upon to act. ÍJo statement on appeal and no specifications of grounds upon which the parties taking the appeal would rely were ever filed in the court below.

The defendant was convicted on the 20th day of April, 1875, of the crime of an assault with intent to till one George Wallace, and sentenced to imprisonment in the State prison for the term of one year. I. The district court erred in not allowing the challenge of the defendant to the panel of the trial jury.

Tbe facts are sufficiently stated in tbe opinion. I. The land in question, being isart of tbe sixteenth section, was granted to the State-of Nevada by section seven of the enabling act of 1864. The patent issued by the State makes a prima facie case for the plaintiff. It cannot be denied that if the grant be a present grant, in the proper and legal signification of the word present, the land then passed to the State by the act granting it, and at the time it became a law.

<p>MANDAMUS before tbe Supreme Court.</p> <p>Tbe facts are stated iu tbe opinion.</p>

Habeas Corpus before the Supreme Court. The facts are stated iu the opinion. I. The act is special in a case where a general law could be made applicable. (Secs. 20 and 21 of Art. IY, Const, of Nev.) This Court has laid down the rule that a law which does not embrace all persons in the same situation or condition is a special law.

, The facts are stated in the opinion. I. The demurrer in this case was sustained on the broad ground that the complaint did not state facts sufficient to constitute a cause of action, or, in other words, that the action could not be maintained.

<p>Injunction — Suppioienoy on Complaint. — Where the complaint, in an action to recover certain shares of mining stock, alleges that plaintiff made the purchase of said stock in order to buy its peace, to save annoyance, avoid litigation and prevent a cloud upon its title; and where the value of said shares of stock are merely nominal, and where the remedy at law would he inadequate, and the injury to plaintiff be irreparable: Held, that equity will interfere by injunction and restrain the party, wrongfully in possession of the property, from disposing of it. (Beatty, J., dissenting.)</p> <p>Idem — Insolvency op Dependant. — It is unnecessary, in cases of this character, to allege in the complaint the insolvency of the defendant.</p> <p>Idem — Vebipication to Complaint. — Where the verification to the complaint is in the form required by section 113 of the Practice Act (1 Comp. L. 1174): Held, to be sufficient. ,</p> <p>Idem — When Dependant must Show that he is an Innocent Pub-chaseb. — The question whether or not due diligence had been used by . plaintiff to recover certificates of stock, alleged to Irave been stolen from it, or to put third parties on notice of its loss, cannot bo raised by defendant, unless be shows that he is an innocent, purchaser in good faith.</p> <p>Gbantino an Injunction — When within Discbetion of the Court. — If the complaint states a prima facie case, and no answer is filed, no showing made upon the merits of the case, and the district court grants a restraining order: Held, that as the granting or refusing of an injunction pendente lite rests very much in the discretion of the court, its order will not be disturbed.</p>

The facts are stated in the opinion. I. Contracts of this character have often been enforced by courts of equity where the bargain was a fair and reasonable one, untainted with fraud, and where tbe property bad not increased so greatly in value as to render it inequitable to enforce it. It can hardly be claimed that tbis contract is not a fair one, or that the property bas so greatly enhanced in value as to preclude tbe enforcement of the covenant in a court of equity.

The facts are stated in the opinion. I. The court erred in refusing to sustain our motion for a nonsuit and in finding the plaintiff to be the owner of the property in dispute when the ownership was denied by the answer, and the plaintiff offered no evidence in support of its title. Our denial of ownership of plaintiff was sufficient.

Tbis was an action of ejectment brought by plaintiff to recover an undivided interest of fifteen feet in a certain mining claim on the Comstock lode. The complaint, after alleging that the defendant is a corporation duly organized and existing under and by virtue of the laws of the State of California, contains the usual allegations in actions of ejectment. The defendant filed an answer setting up the statute of limitations as a bar to the action.

The facts are stated in the opinion. I. Notwithstanding the crime charged in the indictment may be murder in the first degree, a verdict that the jury find the defendant guilty of the crime charged in the indictment is not such a designation of the degree of murder as the statute requires. They must expressly state the degree of murder in their verdict. The verdict in this case was bad, and no valid judgment could be rendered on it. (Comp.

This was an original application before the Supreme Court for a writ of mandamus to compel the respondent to settle and sign a bill of exceptions in the case of The State of Nevada v. Samuel Watkins.

Tbe facts..material to tbe decision are -stated in tbe' opinion of tbe Court. I. Tbe court should have decided tbat tbe judgment was interlocutory and not final, and should have entered a final judgment, and authorized tbe issuance of process thereon. (Johnson v. Everett, 9 Paige, 638; Mott v. Union Bank, 38 N. Y. 18; Laiurence v. Farmers’ Loan and Trust Go., 6 Duer, 689; .Smith v. Lewis, 1 Daly, 452; Butler v. Lee, 33 How.

Tbis action was brought by respondents to recover from appellants certain personal property mentioned in the opinion. Tbe evidence shows that respondents paid fifteen hundred dollars for the property. The •answer of appellants denies that the property is of any greater value than fifteen hundred dollars, and the jury found the value of the property to be fifteen hundred dollars.

Motion to dismiss appeal. Tbe facts are stated in tbe opinion. Tbe justice’s court bad jurisdiction to try tbe cause. (Const., Art. YI, Sec. 8; 1 Comp. L., Sec. 137.) Tbe district court bas final appellate jurisdiction in all cases arising in justices’ courts.

The facts are stated in the opinion. The indictment is fatally defective. It does not in direct language charge the commission of any offense whatever. The most favorable construction that can be given it is that it charges the larceny of a jewelry-box; but nowhere is there any allegation that the box was of any value except in connection with other articles, which we respectfully submit the defendant is not charged with stealing.

The facts are stated in the opinion. I. The demurrer takes but the one statutory objection, that the complaint does not state facts sufficient to constitute a cause of action. The latter specification presents, as we think, the central point upon which successful resistance to the recovery sought can be made.