Volume 13 — Nevada Reports

. The defendant was convicted of murder in the first degree. The facts appear in the opinion. I. The court erred in denying the defendants motion to be discharged on the ground of former jeopardy. (The State v. Rover, 10 Nev. 388; The People v. Webb, 38 Cal. 479; Ex parte Maxwell, 11 Nev. 418; cases cited in petitioner’s brief: 11 Nev. 420; O'Leary v. People, 4 Parker Or. 187; State v. Brannon, 55 Mo. 63; State v. Pitts, 57 Mo. 85.) II.

I. The verdict is contrary to, and unsupported by, the evidence, and is against law. The defendant is not liable, because if his promise be construed to pay his own debt to plaintiff out of the funds or goods of MeAvoy, or to pay McAvoy’s debt to plaintiffs out of McAvoy’s goods, there must be a sufficient existing consideration between the plaintiffs and MeAvoy on one side, and the defendant on the other. If MeAvoy had no title certainly the consideration failed.

Tbe facts are stated in tbe opinion of tbe court. Petitions for a rebearing were filed by both parties and refused. The answer to the petition of respondents for a rehearing, contained a corrected statement of facts. The answer to appellant’s petition, was only with reference to the question of estoppel. The opinion as published, contains the substance of the opinion of the court on rehearing.

Tbe facts appear in tbe opinion. Boisot’s homestead only embraced the land upon which his dwelling-house stood, the dwelling-house and out-buildings used in connection with it, necessary to the proper-enjoyment of the dwelling itself. The primary object of the legislature is to exempt a homestead, that is the dwelling-place of the family, and not simply property to the value of five thousand dollars.

Admitting that the relation existing between plaintiffs and defendants are those of licensors and licensees, then, under the evidence in the case, the license granted is executed, and is not revocable at the pleasure of the licensor.

<p>Rindings — No Part or the Record. — The findings of the district judge cannot be considered on appeal, unless they are embodied in the statement of the case.</p>

The facts are stated in the opinion. I. Under the rules of the common law it was necessary to specify the names of the defendants; but the statute sets, aside the common law rule and provides that where several persons are associated under a common name, they may be sued by that common name. The district court therefore exceeded its authority, under the statute, in setting the rule aside. (1 Comp.

Judicial District, Storey County. The facts are stated in the opinion. I. The petition was the proper proceeding in the premises. (Spring Valley Water Worlcs v. San F'ancisco, 22 Cal. 442; S. F. & S. J. B. B. Co. v. Mahoney, 29 Cal. 118; 2 Comp. Laws, 3461, 3462.) II. There can be no claim for compensation on the part of respondent as abutting lot owner, provided the use by appellant be a public use.

<p>Costs against Garnishee nota “Tax, Impost, op. Fine. ” — An order of a justice’s court imposing costs against a garnishee that had refused to make a statement, is not a “tax, impost, assessment, or municipal fine,” within the meaning of those words as used in section 4, article vi, of the state constitution.</p>

The complaint, with reference to the question whether E street is a public street — alleges: “That on or about the twenty-fifth day of February, 1876, between the hours of six and seven o’clock in the morning of said day, the said plaintiff was returning to his home from his work as a miner in the North Consolidated Virginia mine, in the Virginia Mining District, Storey county, and state of Nevada, and for the purpose of returning 'as aforesaid, was walking along “E” street,…

Tbe defendant, after having introduced evidence tending to sbow tbe gross amount and value of tbe bullion wbicb could be extracted from eacb ton of said ore, for tbe purpose of showing tbe real value of tbe ore, proposed to prove tbe cost per ton of extracting and working the same, and for this purpose bis counsel asked of defendant while on tbe stand as a witness, tbe following question: “What was tbe necessary expense per ton of digging down tbe ore taken by you from tbe…

The facts appear in the opinion. I. The complaint in this case alleges facts sufficient to constitute a cause of action; as a motion for nonsuit should be denied when there is any evidence tending to prove the issue on the part of plaintiff.

The facts appear in the opinion. I. The affidavits used in support of the motion were not entitled in any cause, nor in any court; nor did they intelligibly refer to any cause pending or determined in any court; nor did they set out any facts from which the court could infer that a default had been entered in any specific cause or court. (Pike v. Powers, 1 How.

<p>Rule Bight — Argument or Counsel. — The “argument” mentioned in rule eight of the supreme court refers to an oral argument before the court. Agreeing to waive argument, and taking time to file brief on the merits of the case is the same, in effect, as an oral argument.</p> <p>Tax Suits — Control oe by Attorney-General — Appearance oe other Attorneys. — The attorney-general has the entire control of all tax suits in the supreme court, on the part of the state. Other attorneys may appear by consent of the attorney-general, but not otherwise. If nothing to the contrary is shown, the court will always presume that an attorney appearing for the state in such suits is authorized by the attorney-general to act in the case.</p> <p>Undertaxing on Appeal — Sufficiency oe. — An undertaking which complies with section three hundred and forty-two of the civil practice act (1 Comp. Laws, 1403), for the stay of execution, with the exception of binding the sureties to pay in gold coin: Held, to be a sufficient undertaking on appeal, as required by section three hundred and forty-one (1 Comxi. Laws, 1402), for the payment “of all damages and costs ” awarded on appeal.</p> <p>Idem — Executed on Sunday. — An undertaking on appeal executed on Sunday is valid. The execution of such a bond is not “transacting judicial business,” and is not prohibited by the statute. (1 Comp. Laws, 4.)</p> <p>Tax on Proceeds oe Mines — Collected Quarterly. — In construing section ten of the act providing for the taxation of the net proceeds of mines (2 Comp. Laws, 3254): Held, that there is nothing in said section to prevent the collection of such taxes quarterly. [State v. Eureka Con. M. Qo., 8 Nev. 16, affirmed.)</p> <p>Idem — Ten Per Cent. Penalty. — In construing the various sections of the revenue law relating to the collection of delinquent taxes: Held, that the per centum penalty imposed by section twenty-four (2 Comp. Laws, 3148), does not apply to suits brought for the collection of delinquent taxes on the proceeds of mines, and that such percentage is not imposed or authorized by section one of the act prescribing an additional penalty for non-payment of taxes. (2 Comp. Laws, 3238.) (Hawley, C. J., dissenting.)</p>

<p>Tax on Proceeds or Mines — Collectible Quarterly — Ten Per Cent. Penalty does not apply to such Suits. (State v. California M. Co., 853, ante, affirmed.)</p>

<p>Contract bob the Sale oe Obe Construed — Assays to be Sampled when. — la a contract for the sale of ore at prices regulated by the assay value per ton, and the ores delivered to be paid for monthly: Held, that the assays of the ore were to be averaged at the end of each month, and not taken in separate lots and quantities as delivered.</p> <p>Idem — Non-compltance ob Terms oe a Contract — Amount to be Recovered. — The xdaintiff agreed to deliver to defendant one thousand tons of ore within three months. The defendant, on his part, agreed to pay for each one hundred tons, as soon as delivered, one thousand dollars. In an action brought to recover the value of the ores delivered to the defendant: Held, that if the defendant had failed to comply with the provisions of the contract, the plaintiff would be entitled to recover the full contract x>riee of all ores delivered; but if the plaintiffs had failed or refused to comply with its terms, they could only recover for each and every one hundred tons of ore indivisible, and would be liable for damages, if any were sustained by reason of their non-compliance with the terms of the contract.</p>

<p>Appeal from the District Court of the Second Judicial District, Ormsby County.</p> <p>The facts appear in the opinion.</p>

I. There is nothing in the evidence in this case to justify the court below in granting a new trial. The verdict should not be disturbed in cases of this character, except it appears that flagrant injustice has been done. It is the undoubted right of the jury to Aveigh the evidence, and they are the exclusive judges of its effect. The presumptions of law are that the evidence warranted the verdict.

This was a suit for taxes delinquent upon an assessment of tlie proceeds of defendant’s mine, for the quarter ending March 81, 1877. In making the assessment the assessor deducted, from the gross yield of the ore extracted, the total cost of extraction, transportation and reduction, and computed the tax upon the balance remaining after those deductions. (2 Comp.

This was an action brought by plaintiff against the defendant, for the alleged wrongful conversion of water. The complaint is in the usual form, and prays judgment for damages; a decree that plaintiff is entitled to the water; that defendant be enjoined from diverting it; for costs and for general relief. The defendant filed an answer denying the allegations of plaintiff’s complaint, asserted ownership in himself, and asked for judgment for his costs.

The facts appear in the opinion. In issuing an execution the justice acted ministerially and not judicially. (27 Cal. 495; 17 Cal. 464.) Certiorari reviews acts of a judicial nature only, not those which are merely ministerial. (4 Cal. 344; 5 Wait’s Pr. 459-60; 4 Cowen, 297; 3 Wend. 468-70; 17 Wend. 15; 2 Hill, 9; 5 Barb. 43; 65 Barb. 170.)

The facts are stated in the opinion. 1. That portion of the verdict touching the right of the plaintiff to the possession of the property, is surplusage, and should be disregarded. (Gregory v. Froihingham, 1 Nev. 262; Bacon v. Callender, 6 Mass. 303; Wyndham v. Williams, 27 Miss. 318; People v. Ah Kim, 34 Cal. 189; Dunlap et al. v. Hayden, 29 Ind. 303; Goversr.

Tbe facts are sufficiently stated in tbe opinion of tbe court. I, Tbe Truckee river is a navigable stream witbin tbe meaning of tbe acts of congress, its status as sucb is established, so far as tbe United States is concerned, by tbe refusal of tbe government to extend its surveys over it. (Sec. 2395-6.) A recognition of the Truckee as navigable is found in tbe act of tbe legislature of tbe territory of. Nevada.

The facts are stated in the opinion. I. The judgment against Smith, rendered at the January term, merged and extinguished the notes in controversy in the higher security thus obtained. The order of the court, at the July term setting aside the judgment of the previous January term as to Mann, left such judgment in full force as to Smith.

The facts appear in the opinion. I. The appeal from the judgment should be dismissed. It was not taken in time. (Comp. Laws Nev., secs. 1388-1391; Waggenheim v. Soolc, 35 Cal. 216; Bornheimer v. Baldwin, 42 Id. 27; 36 Id. 671; McOourtney v. Fortune, 42 Id. 387; WetJierbee v. Dunn, 36 Id. 249.) II. The statement in the record should be stricken out. It is not authenticated as required by statute. (Comp.

The facts are stated in the opinion. The testimony of defendant in his own behalf was inadmissible, tbe plaintiffs being the representatives of a deceased person. (Davis v. Davis, 26 Cal. 34; Kishing v. Shaw, 33 Cal. 446; Satlerlee v. Bliss, 36 Cal. 512; 1 Comp. Laws, sec. 1440; Roney v. Buelclancl, 4 Nev. 45.)

The facts are stated in the opinion. The court erred in excludiug the testimony of the defendant. He was a competent witness. (Stat. 1877, sec. 1; Honey v. Buchland, 4 Nev. 45.)

A rehearing was granted iu this case. Pending tbe rehearing, tbe case was settled and dismissed. Tbe opinion as here published does not contain any portion of tbe decision of tbe court touching tbe questions upon which tbe rehearing was granted. The instruction given by tbe court was erroneous. (Hessing v. McCloslcy, 37 111. 352; Mayor ds Go. v. Trimble, 25 Md. 34; State v. Olara, 8 Jones L. 27; SivanJc v. Adm’rs, 24 Ind. 201; State v. Harrison, 5 Jones, N. C. 121; WatJcinsy.

The facts appear in tlie opinion. I. The complaint shows that another action is pending between the same parties for the same cause of action. The demurrer was therefore properly sustained. (Pr. Act, sec. 40; Rev. Act, sec. 36; Barnett v. Kilbourne, 3 Cal. 327; Living v. McNairy, 20 Ohio St. 318. II. An entire cause of action cannot be made the subject of separate suits. (2 Smith’s Leading Cases, 774; Simes v. Zane, 12 Harris, 242; Logan v. Qajjrey, 30 Pa. 197.) III.

The facts appear in the opinion. I. The parties settled all the issues of fact upon the pleadings by stipulation. (Sioift v. Muygridge, 8 Cal. 445; Fox v. Fox, 25 Id. 587; Taylor v. Palmer, 31 Id. 242; Burnett v. Stearns, 33 Id. 468; Virgin v. Brubaker, 4 Nev. 31; Brotan v. Tolies, 7 Cal. 399; Cooper v. Pac. M. Life Ins. Co. 7 Nev. 116.) II.

<p>(Judgment reversed upon the authority of The State v. California M. Co., Wo. 887, ante, 289.)</p>

The petition, among other things, alleged that Twohig and Fitzgerald were jointly tried “upon an indictment, regular upon its face, purporting to have been found by the grand jury of Nye county, for the crime of an assault with intent to kill,” committed upon the person of James Jones; that the said indictment was never found by the grand jury, and was presented to the court either by fraud or mistake; that after their trial and conviction, but before sentence, they were…

Tbe facts appear in tbe opinion. I. If appellant had any right of action, Harriet M. Smith ■was not a necessary party. (1 Comp. Laws, 1077.) II. The present constitution and laws of Nevada, touching the matter at bar, are similar to the corresponding originals in California. (Const. Nev. art. 4, sec. 30; Comp. Laws, secs. 187-189, 602-609; Const. Cal. art. 11, sec. 15; Stats.

The eighth instruction referred to in the opinion of the court reads as follows: “If you find that the plaintiff took passage on the stage of the defendants to be transported from Cherry creek to Bobinson, and while on the road the driver of the coach became so intoxicated as to incapacitate him for driving, and an accident occurred by which plaintiff was injured, the defendants are liable for the injury, no matter who was driving.

The facts are stated in the opinion. I. The terms of the- bond could not be changed by a parol agreement between Boeder and Travis, neither could Boeder and Travis enter into any agreement to bind the defendants Glissan and Sultan without their consent. (Quillen v. Arnold, 12 Nev. 234; Miller v. Steioart et al., 9 Wheat. 680; Boioers v. Beck et al., 2 Nev. 152; 10 Johnson, 180.) II.' The judgment of Gaudette v. Glissan et al. is a perfect bar to this action.

Tbe facts are sufficiently stated in tbe opinion. I. Tbe plaintiff bad tbe right to bave tbe status of tbe several liens determined in tbis action. II. Tbe court erred in bolding that actual notice by tbe lien-holders of tbe existence of plaintiff’s mortgage was not sufficient. (2 Hill on Beal Prop. [4 ed.], 676; 3 Wasbburne on Beal Prop. 282 et seq.; Stat. 1875, 122.) III. There was no defect in tbe acknowledgment. An acknowledgment should be liberally construed.

The facts sufficiently appear in the opinion. I. The court erred in admitting the testimony of the witness Higgs as to the existence or fact of his agency, and as to his authority to draw the bank checks in question. (Civ. Pr. sec. 379; Stat. 1869, 255; Roney v. Buckland, 4 Nev. 45.) II. The complaint alleges a joint demand. In such a case, there must be a joint demand or claim proved. (Barbour on Parties, 31-4; Civ.

Instructions 2 and 3 offered by defendant and referred to in the opinion, read as follows: No. 2. “If the jury believe that prior to the making and presentment to D. H. Jones as agent for the defendant, of the order of July 21, for ten thousand dollars, it had been agreed between this defendant by said Jones as agent of the defendant, and M. Pettinelli & Go., that the defendant should guarantee to pay the workmen of said Pettinelli & Co., the amount due from said firm, and…

The facts are stated in the opinion. I. The right of stoppage in transitu is an equitable privilege not provided for by our statutes. (Hilliard on Sales, .248, sec. 3.) It only accrues under extraordinary circumstances. (Parsons on Cont. [6 ed.] 395 et seq.; Hilliard on Sales [3 ed.], 279 et seq.) The complaint in this case fails to show the existence of such circumstances.

<p>Reasonable Doubt — Instructions.—The court refused the following instruction asked by the defendant: “The jury is instructed that unless they are satisfied beyond a reasonable doubt that the defendants are guilty; that is to say, if yon entertain a reasonable doubt upon any material point in the testimony essential to a conviction, you must give the defendants the benefit of the doubt, and acquit them:” Held, that the instruction was correct and ought to have been given. Upon rehearing: Held, that the same principles having in substance been given in other instructions asked by the defendants, the refusal of the instruction was noterror. (State v. O’Connor, 11 Nev. 425, affirmed.)</p> <p>Indictment — Depositions of Witness to be Indorsed on. — The names of witnesses whose depositions are read before the grand jury must be inserted at the foot of, or indorsed on, the indictment. (1 Comp. Laws, 1899.)</p> <p>Motion to set aside Indictment must be made before Demurrer or Plea — Waiver.—By the provisions of sections 274-79 a motion to set aside the indictment must be made before demurrer or plea. If not so made, it will be deemed to have been waived.</p> <p>Testimony of Grand Jurors will not be Received to Impeach their Acts. — The testimony of grand jurors is not admissible to impeach their acts in finding an indictment.</p> <p>Instruction — Grime Committed in one County when one of Defendants is in Another County. — The court refused to give the following instruction asked by defendant Laurie: “ The jury is instructed that if they believe that an attempt was made to rob, as alleged in the indictment, and that at the time such attempt was made, the defendant, Laurie, was in Eureka county, Nevada, then they cannot convict him: Held, in the absence of any evidence showing the facts, not to bo error.</p> <p>Idem — Principal or Accessory Before the Fact. — Admitting the facts to be, as claimed by Laurie, that a plan was arranged between Laurie and others to rob the treasure of Wells, Fargo & Co., on the road between Eureka and some point in Nye county; that Laurie was to ascertain when the treasure left Eureka, and signal his confederates by building a fire on the top of a mountain in Eureka county, which could be seen by them in Nye county, thirty or forty miles distant; that the signals were given by him and his confederates attacked the stage and attempted to rob the treasure: Held, that Laurie would be not only an accessory before the fact, but a principal, at least in the second degree.</p> <p>Idem. — Where several confederates act in pursuance of a common plan, in the commission of an offense, all are held to be present where the offense is committed, and all are principals.</p>

The facts sufficiently appear in the opinion. I. The court erred in not dismissing the action on the ground that no demand had been made before suit. (Datemiel v. Gorham, 6 Cal. 43; Taylor v. Seymour, 6 Id. 512; Killey v. Scan»ell, 12 Id. 73; Dudley v. Hayes, 1 Id. 160; Paige v. O'Neal, 12 Id. 483; Moore v. Murdoch, 26 Id. 524.) II. A person having possession of personal property should be held to be the owner, else an innocent person must suffer.

The facts appear in the opinion. I. The perpetual injunction must be dissolved. {Thorne v. Sweeney, 12 Nev. 251 and cases cited; 5 Cal. 119; 7 Johns. Ch. 331; 12 Eng. Oh. 165; 17 N. H. 137.) II. This land is a part of the public domain, and Burbank had the right, under the act of congress of July 26, 1866 (sec. 2339 Bev. Stat. U. S.), to construct the ditch for agricultural purposes.

<p>Injunction — Nominal Damages — Costs.—An appeal having been taken in this ease from an order refusing to dissolve the temporary injunction, and that order having been reversed upon the ground that an injunction should not issue to prevent merely nominal damages (12 Nev. 251), and the court below having, upon the same facts, at the final trial, rendered1 judgment in favor of plaintiff for one dollar damages, for costs, and a perpetual injunction: Held, that the court erred inrendering judgment for costs and decreeing a perpetual injunction.</p>

<p>State Prison — Warden Authorized to employ Physician — Statutes 1877, 66, Construed. — In construing the acts to provide for the government of the state prison (statutes 1877, 66): Held, that the authority to employ a physician is vested in the warden under the clause conferring upon him the power to appoint “all necessary help.’</p>

<p>Defense to Promissory Note — Existence of Judgment Cannot be Shown by Parol Testimony. — The defendant claimed that the consideration of the note sued on was the sale of certain timber and other property, and offered by parol testimony to show that the timber was lost in an action, at law to determine the right of property therein: Held, that the fact of such a suit or the judgment therein, could not be proved by parol.</p> <p>Idem — Counter-claim.—A demand of one of several defendants cannot be pleaded as a counter-claim to a demand upon which they are jointly liable unless there is an agreement that it shall so operate.</p> <p>Idem — Agreement Construed. — The agreement relied upon to establish a counter-claim, provided that any sum found to be due from Davis & Preeman to W. P. Davis (defendant) should remain in the hands of D. & P. until the note sued on has been paid, and until all claims against D. & P. for certain indebtedness are paid: Held, that by the terms of said contract the indebtedness therein mentioned was not to be credited upon the note.</p>

<p>Tax on .Foreign Insurance Companies — Constitutional.—In. construing the provisions of the act to regulate and tax foreign insurance companies (2 Comp. Laws, 3917): Held, that the imposition of the percentage on premiums is a tax upon the business of the insurance companies, and is not repugnant to the provisions of article 10 of the state constitution. (Exparte Robinson, 12 Nev. 263, affirmed.)</p>

<p>Contract for cutting Wood — Assignment by Sub-Contractors. — One Johnson, had a contract with the P. W. L. & F. Co., for cutting wood. Smith (plaintiff) and one Russell were sub-contractors under him. Johnson assigned the contract to the defendant, who agreed to pay the subcontractors; they assenting to the arrangement released Johnson and accepted Mayberry in his place; subsequently Russell assigned his rights under the contract to plaintiff: Held, that the court did not err in overruling a demurrer to the complaint, on the ground that it did not aver that the assignment from Russell was made with defendant’s asssent.</p> <p>New Trial — Conflict on Evidence. — An order of the district court refusing to grant a new trial will not be reversed by the appellate court, upon the ground that the verdict is not sustained by the evidence when there is a substantial conflict in the testimony.</p> <p>Knowledge of Sub-Contractor as to terms of Principal Contract Immaterial. — If a sub-contractor has knowledge of the terms of the principal contract, that fact does not tend to prove that he contracted upon the same terms.</p>

<p>Criminal Action — Judgment eor Costs — When Nugatory. — Relators were found guilty of assault and battery, fined in the sum of one hundred dollars each “and the costs of this action: ” Held, that this was only a judgment for the amount of the fine; that the judgment relating to costs, the amount not being stated, was surplusage and nugatory.</p>

The facts are stated in the opinion. I. The proofs totally fail to support the averments of the complaint. There is no pretense of any carelessness or negligence in using the ditch; nor that the waters brought into the ditch by the defendant caused any break in the banks of the ditch, or did the plaintiffs any damage whatever, nor that the ditch was not in good repair.

Tbe facts are stated in tbe opinion. I. Tbe proviso in tbe act evidently governs tbe whole act relative to Arick’s claim, tbat be must surrender or offer to surrender bis evidence of indebtedness, etc., before be could get bis demand. (Potter’s Dwarris on Stat. & Const, p. 118, notes; Minis v. U. S., 15 Peters, 423; Voorhees v. Bank of U. S., 10 Id. 471.) Tbe legislature cannot make contracts for municipal corporations.

Tbe facts are stated in tbe opinion. There can be no valid location of a claim on a mineral lode since tbe passage of tbe act of May 10, 1872, without marking tbe boundaries of tbe surface ground. (Sec. 2320 Rev. Stat. U. S. (sec. 2 of act of May 10, 1872); sec. 2324 Rev. Stat.

f The facts are sufficiently stated in the opinion. Upon a review of the facts, counsel claimed that: the court below had no legal right to grant a new trial; that it had abused its discretion and that its order ought to be reversed.

<p>Pleadings — Admissions in Answer — Authority oe President oe. Coreoration — Nonsuit.—Plaintiff testified that lie was employed by one Hew-son, who claimed to be the president of the defendant; the answer was verified by Hewson as defendant’s president, and admitted that plaintiff went into defendant’s employ, etc.: Held, that such admissions and proofs were prima, facie evidence that Hewson was authorized to employ the plaintiff, and that the court did not err in refusing a nonsuit.</p>

Tbe fa.cts are stated in tbe opinion. Under tbe laws of this state (secs. 233-35 of tbe Civ. Pr. Act, 234, Stat. 1869) tbe unsatisfied judgment under wbicb tbe sale was made'is expressly excepted from payment by a redemptioner. This matter is discussed in 1 Hill, on Mort. 407, par. 3 et seq.; 2 Id. 278, 501; see also, Herman on Executions, secs. 141, 142. (1 Hill.

<p>Pleadings — Waiver oe Objections to Form. — Objections to the form of a complaint are waived by a failure to demur.</p> <p>Idem — Sdeeioiency oe Complaint. — A complaint alleging that plaintiff is a sub-contractor for the erection of the walls of a state prison, and responsible for the labor thereon; that defendant (the architect for the state) had, pursuant to an agreement with plaintiff and the principal contractor, received from the state, for the use and benefit of plaintiff, the sum of fifteen thousand dollars, and had only paid out on plaintiff’s account ten thousand dollars, and refused to pay over or account for the remaining five thousand dollars; states facts sufficient to constitute a cause of action.</p> <p>Conflict of Evidence. — Testimony reviewed and held sufficient to sustain the verdict.</p> <p>Error — Must be Prejudicial. — An error in refusing to admit testimony is cured by the admission of the same testimony at a subsequent stage of the trial.</p> <p>Immaterial Testimony — When Admissible. — Where the defendant was permitted to show that he had overdrawn his bank account for the purpose of showing that he had loaned his credit to plaintiff: Held, although the testimony was immaterial, that plaintiff had the right to show by the same witness that the overdrafts were on account of defendant’s stock speculations.</p>

The facts sufficiently appear in the opinion and head notes. The agreement of dissolution and settlement is final and conclusive between the parties in this form of action. The plaintiff’s remedy, if any, is in equity, for fraud or mistake, and for an accounting, and in an action Lippman would be answerable only for half.

<p>Substantial Conflict of Testimony Sufficient to Sustain Bindings of the Court.</p>

The facts are stated in the opinion. I. Depositions taken in a criminal case on preliminary examinations, prove that the testimony which purports to have been given, in fact, was given. The only point open to denial is the identity of the person making the deposition. (Eoscoe’s Crim. Evid. 73; Bex v. Wylde, 6 Carr. & Payne, 380; 25 E. C. L. 346, cited Eoscoe, 816, 817; Bex v. Thornton, cited 2 Eussell on Or. 894 in notes; 2 Phill. Ev. 235-37; 1 Green.

<p>Judgment — Form or Substance — Res Adjudioata. — A judgment should always be tested by its substance rather than its form. (Hawley, J.) Judgment in Humboldt M. M. Co. v. Terry, 11 Nev. 237: Held, to be res judicata as to the plaintiffs in that suit and all parties claiming under them.</p> <p>Deed from Town-site Trustee — Sufficiency of. — The facts authorizing the grantees to receive a deed from the trustee need not be recited in the deed. A bargain and sale-deed in the usual form, reciting a consideration of one dollar is sufficient to convey the title'to the land, and is prima facie evidence that it was delivered to the party intended to receive it.</p> <p>Statement not Containing all the Evidence — Findings of Fact. — Where the statement fails to show that it contains all the evidence the appellate court will presume that there was sufficient evidence at the trial to susaint the findings of the court.</p> <p>Deed — Parol Evidence Admissible to Explain. — It is admissible to prove by parol that land sold under execution was situated in township thirty-six instead of township thirty, as described in the sheriff’s deed.</p> <p>Idem — References and Monuments. — The references and monuments contained in the deed, in the event of any discrepancy or mistake, control the other parts of the description.</p> <p>Homestead — Partnership Property. — A homestead cannot be carved out of land held and claimed by parties as copartners.</p>

The facts sufficiently appear in the opinion. I. The court below erred in permitting defendant to attempt to prove fraud by witness Pierce, as it was not alleged in the answer. (Maynard v. F. F. Ins. Co., 34 Cal. 48, and cases cited.) II. The court erred in permitting defendants to amend their answer, after the trial, argument and submission of the case. (Gillam y. Sigman, 29 Cal. 637; MeMinn v. O’Connor, 27 Id. 238; Stringers.