Volume 14 — Nevada Reports

The facts sufficiently appear in the opinion. I. The defendants are in no sense joint wrong-doers. Their acts were several and distinct. There was no co-operation or concert of action between them. (2 Hilliard on -Torts, p. 247, sec. 10; 19 Johnson, 381; 26 Pa. 482; 57 Id. 142.) II.

The facts appear in the opinion. I. The alteration of Manning & Duck’s notice was an unlawful act, Stat. 1871, 75, and could not confer any rights upon the claimants. It was a new notice and was never sworn to. II. The liens were filed before the completion of the building. This was premature and unauthorized. (Stat. 1875, 122.) III. Boyd & Courtois’ notice of lien did not show that materials were used or furnished for the building. It should have been excluded.

<p>Mieitia Roll — Expenses ojt, how Paid.— In construing the provisions of the statute: Held, that the bills of county assessors for making the militia roll must be passed upon by the state board of military auditors and paid out of the militia fund of the state.</p>

<p>Appeal Taken eoe Delay — Damages.—Where an appeal is taken merely for delay, damages will be awarded equal to ten per cent, of the judgment. ( Wheeler v. Floral M. <& M. Oo., 10 Nev. 200, affirmed.)</p>

<p>Violation or Town Ordinance — Criminal Cause — Jurisdiction.—The trial of a party charged with violation of a town ordinance is a criminal case. The charge does not amount to a felony, and this court has no jurisdiction in such a case.</p>

The- material averments of the complaint are as follows: That in 1871 Alonzo Dodge agreed with the defendant, John Larcombe, one James Sullivan, Patrick Kelly, George Snively, T. P. Myers and Daniel Powell, to construct a water ditch from the Truckee river, about three and a half miles above the town of Beno down to the lands of said parties; that in order to construct said ditch, said Alonzo Dodge agreed to purchase from Henry Orr, a certain small ditch then owned by him,…

<p>Construction or Deed — Sumtciency oe Descrimion. — Where a deed described the property as “that certain piece or parcel of timber land lying and being about forty-five miles, northerly direction, from the town of Eureka, * * * and the said timber land being known as McLeod Wood Ranch, and containing about five hundred acres more or less:” field, that the deed sufficiently describes the property by name.</p> <p>Ejectment' — Possession oe Purchaser Prior to Deed. — In an action of ejectment it is admissible for ijlaintiff to introduce evidence that he took possession of the property after his agreement to purchase and before he received a deed, and to state what his acts of possession were.</p>

The facts sufficiently appear in tlie opinion. I. Tbe errors appearing in the judgment-roll necessitate a reversal. The court could not proceed after the death of Cardenas without repairing the breach caused by his death. II. The court erred in amending the judgment after the term had expired at which it was rendered, upon its own motion, and when there was nothing in the record to amend by. (3 Cal. 255; 9 Id. 172; 19 Id. 227; 25 Id. 79; 27 Id. 791; 33 Id. 780.) III.

Applioation for writ of certiorari. The facts sufficiently appear in tbe opinion. I. The board of county commissioners has no authority conferred upon it to allow any claims not legally chargeable against the county. (2 Comp, Laws, 3077; People v. Supervisors El Dorado Go. 8 Cal. 59; Id. 11 Id. 174; Linden v. Case, 46 Id. 174; El Dorado Go. v. Elstner, 18 Id. 148; Bobinson v. Supervisors, 16 Id. 208; People ex rel. Merritt v. Laiorence, 6 Hill, 244.) II.

The facts of this case are substantially as follows: On the twenty-sixth day of February, 1878, there was upon the stage of Gilmer, Saulsbury & Co., five bars of bullion. Each bar was in a leather sack, used by Wells, Fargo & Co., for the shipment of bullion. The bars were numbered and marked “ Christy Mill & Mining Co.,” in plain letters. The sacks were also numbered and bad a tag of Wells, Fargo & Co. upon them.

<p>Certificate of Acknowledgment — Testimony of Notary. — Where the certificate of a notary public conforms to the provisions of the statute and the notary is called as a witness and fails to state from memory the exact amount for which the mortgage was given: Held, that his testimony is not entitled to any greater weight than his certificate.</p> <p>Idem. — Where the property mortgaged is situate in a compact body, and the notary and party executing the mortgage are upon the premises and the notary informs the party that the mortgage is “on all this property here:” Held, that this language must have been as clearly understood as if he had read the description in the mortgage.</p>

The facts sufficiently appear in the opinion. I. The court erred in compelling defendant to exhibit the tattoo mark on bis arm to the jury. This was compelling bim to testify against himself. (Cons, of Nevada, sec. 8, 18; Comp. Laws, sec. 2305, 2306; U. S. Dig. 1st series, vol. XIV., p. 693, sec. 4630, 4643, 4659; Cooley’s Cons. Lim. (1868), 305; State v. Jacobs, 5 Jones (N. C.), L. 259; lie* v. Worsenham, ILd. Bayra.

<p>Sufficiency OF Sheeiff’s Return — CLERICAL Mistake. — Where the sheriff made return that he personally served the summons upon James May-berry, and further certified that he “ delivered to the said Jame May a certified copy of the complaint, etc.: Held, that the word ‘ ‘ said ” preceding the words “Jame May,” shows that they were written by mistake for James Mayberry, and that the return is sufficient.</p> <p>Appeal Takes for Delay — Rule as to Damages Enforced.</p>

Petition for mandamus. The facts appear in the opinion. I. Petitioner bases his claim to a commission, and his right to hold said office of district judge of the first judicial district, upon the provisions of sec. 5, art. 6, of the constitution; and claims that all legislation intended to deprive said district of three district judges, is unconstitutional and void, under said sec. 5, art. 6, and that, therefore, his said election was regular and legal.

Tbe facts are stated in the opinion. • I. The treasurer of Washoe county had no authority to pay the witness fees. The order for their payment was mack) by the judge instead of by the court. (1 Comp. L., 2169.) II. The allowance of attorneys’ fee for three hundred dollars was illegal. (Stat. 1875, 142; Roioe et al. v. Yuba Co., 17 Cal. 61.) III. County commissioners have no jurisdiction to examine, settle, or allow any accounts not legally chargeable against the county.

Petition for writ of certiorari. The facts are sufficiently stated in the- opinion. I. The petition shows upon its face that Lake is the party beneficially interested. The action, though in the name of the state, is substantially brought for Lake’s benefit. II. The affidavit of Hymer can not be considered. The statute does not provide for the preservation of testimony in these cases. (G. P. B. B. Co. v. Placer Go., 34 Cal. 352.) III.

<p>Appeal from tbe District Court of tbe First Judicial District, Storey County.</p> <p>Tbe facts sufficiently appear in tbe opinion.</p> <p>I. The complaint was sufficient. (Gutridge v. Vanatla, 27 Ohio St. 366; 1 Comp. Laws, 1116; Union Banky. Bell, 14 Ohio St. 208; Trustees y. Odlin, 8 Id. 293; Lewis y. Coulter, 10 Id. 451; Slaterly y. Hall, 43 Cal. 191; Hiemmelman v. Spanigal, 39 Id. 401; Reynolds y. Hosmer, 45 Id. 616; Treadioay y. Wilder, 8 Nev. 91.)</p> <p>II. Appellant was led astray by the ruling of tbe district court, on tbe general demurrer. He bad a right to rely on tbe sufficiency of bis complaint. Tbe findings of tbe court is a reversal of tbe court’s former decision. Tbe court bad tbe power and should have allowed an amendment of tbe complaint in this respect, so as to conform to tbe proof made; and bis refusal to do so was an abuse of discretion. (Practice Act, sec. 68, 70, 71; McMannus v. The Ophir Silver Mining Company, 4 Nev. 15; 1 Van Sanford’s Pleadings, 834; Treadioay v. Wilder, 8 Nev. 91; Smith v. Yreka Water Company, 14 Cal. 201; Connolly y. Peek, 3d Id. 75; Barth v. Walther, 4 Duer, 228; Sherman v. Fream, 8 Abbott, 33; Pollock v. *Hunt, 2 Cal. 193; Cooke v. Spears, Id. 409; Stearns y. Martin, 4 Id. 227; Clark v. Phcenix Ins. Co., 36 Id. 168; Stringer y. Davis, 30 Id. 31'8; Kirstein v. Madden, 38 Id. 158.)</p>

The facts are stated in the opinion. I. The court erred in charging the jury that the sheriff could recover if he received nothing on his contract. II. The courts of bankruptcy are not dependent to any extent upon the state courts.

The facts appear in the opinion. The heir can bring suit in ejectment before distribution of estate. (Comp. L.Mich., vol. 2, 882; Comp. L., sec. 2904, ed. 1857; TJpdegvaff v. Trask, 18 Cal. 458; Beckett v. Selover, 7 Id. 215, 229; Streeter v. Patón, 7 Mich. 341; Marvin v. Schilling, 12 Id. 356; Campan, v. Campau, 19 Id. 116; liasterson v. Girard's Heirs, 10 Ala. (N. S.) 61; Carrulhersv. Bailey, 3 Kelly (Ga. Sup.

The facts sufficiently appear in tbe opinion. I. The decree in this case is void for uncertainty. It is essential to tbe validity of any decree or judgment that it should show with reasonable certainty the nature and extent of the relief granted. (Freeman on Judgments, sec. 50; 1 Bailey (S. 0.) 7; 16 Iowa, 47; Honoré v. Colmesnil, 1 J. J. Marsh. 525.) II.

<p>Dick v. Bird affirmed. The points decided in this case are substantially the same as in Dich v. Bird, ante, 161.</p> <p>Appropriation op Water — Beneeicial Purpose. — A party cannot acquire any right to water not used for any beneficial purpose.</p>

<p>Conflict of Evidence — Eindings.—Where there is a substantial conflict of evidence, the findings of the lower court will not be disturbed.</p> <p>Statement not Containing all the Evidence. —Where the statement does not show that it contains all the evidence, it will be presumed that the findings were supported by the evidence.</p> <p>Affeal fob Delay — Rule as to Damages Enforced.</p>

<p>Appeal from the District Court of the Eourth Judicial District, Humboldt County.</p> <p>The facts are stated in the opinion.</p>

The facts are stated in the opinion. I. The contract between plaintiff and defendant is opposed to public policy, in contravention of the election law of this state, and wholly void. The salary of an office of trust, or of an office concerning the administration of justice, are not the subject of sale; such sale is opposed to public policy and void at the common law. (Wells v. Foster, 8 M. & W. 148; Palmer v. Bate, 2B&B. 673; E. 0.

I. The objection that the judgment is not supported by the pleadings can be taken and heard upon the judgment-roll alone. (Putnam v. Lamphier, 36 Cal. 151, 158; Jones v. Petaluma, 36 Cal. 230; Bachman v. Sepulveda, 39 Cal. 688.) II. The payment of a note by any one of the makers, extinguishes the note, and renders it functus officio: The surety can not sue upon the contract expressed in the note to recover money of the principal which he has been compelled to pay.

<p>Rule as to Conflict and Weight of Evidence Enforced.</p> <p>Contract — Collateral Evidence Inadmissible. — When there is a conflict of evidence as to whether plaintiff was to receive one dollar and ninety cents or two dollars per cord for cutting wood: Held, that testimony that defendant let contracts to other parties for one dollar and ninety cents per cord was inadmissible.</p>

Tlie facts appear in the opinion. I. The act approved March 17, 1879, is constitutional. (Secs. 1, 3, Art. XIII; Sec. 2, Art. XVII., of Con.; Devlin v. Coleman, SO N. Y. 531; Exline v. Smith, 5 Cal. 112.) II. The constitution must be so construed as to give effect to all of its provisions. (State v. Scott, 9 Ark. (4 Eng.) 277, 282; Slate v. Dayton T. R. Co., 10 Nev. 160.) III. The contemplated asylum is an institution required by the public good.

The facts appear in the opinion. When an information in the nature of quo warranto is filed against a party, the onus of proof is upon him, not upon the informant. (Angel & Ames on Corp., 784, 749, 751, 756; 15 Johnson, 358.) The judgment of the lower court is right. The burden of proof was upon the state to establish the forfeiture alleged in the complaint, not upon defendants to prove a negative. (C. L. Nev. 392-394; State v. Broion, 34 Miss. 688; 2 Doug.

Appeal, from the District Court of the Sixth Judicial District, Lincoln County. The facts are stated in the opinion. I. The instructions given by the court were erroneous. (State v. Duffy, 6 Nev. 139.) II. The oral remarks of the court.in the presence of the jury were improper. They amounted to an instruction upon the facts, and were in violation of sec. 12, art. 6 of the state constitution.

<p>' Appeal from the District Court of the S ewe nth Judicial District, Lincoln County.</p> <p>The facts appear in the opinion.</p>

The facts appear in the opinion. I. The action is properly brought in the name of the state. (2 C. L. Nev. 3261, 3231, 3232; State ex rét. Drakev. Hobart, 12 Nev. 408, 411; State v. Yelloiv J. S. M. Co., 5 Nev. 416.) II. The complaint does not improperly unite several and distinct causes of action. The several demands stated in the complaint constitute but one cause of action, and may be united in one complaint.

<p>Cposs-Examination oi? Witness. — The testimony of a witness upon cross-examination should be confined to matters testified to upon his examination in chief.</p>

<p>Statement Must Be Piled in Time. — A statement on motion for new trial which was not filed within the time allowed hy law should, on motion, be stricken out. ( Williams v. Rice, 13 Nev. 235, affirmed.)</p>

The question referred to in the fifth assignment mentioned in the opinion as immaterial, propounded to John A. Cook, was as follows: Question — “Prior to July, 1869, did you ever have any knowledge or ever consent to the establishment of any business at Hamilton, by Cook Bros., or Lewis Cook, in the firm name ?” The question propounded to J. Barnett, and referred to in the opinion as the ninth assignment, was as follows: Question — -“At the time John A. Cook settled Cook…

The facts appear in the opinion. The demurrer ought to have been sustained. The indictment charges two distinct offenses. The statute is imperative that the indictment shall charge but one offense. (1 Comp. Laws, 1862; see, also, Id. 1858,1860; 1 Wharton C. L. 414, et seq.; The People v. Thompson, 28 Cal. 217: People v. Shotioell, 27 Id. 400.)

At the request of the sureties the court gave the following instructions, which are referred to in the opinions. 8. “The defendants, C. A. Bragg, A. C. Bragg, L. L. Crockett, and J. C. Hagerman are sureties, and tlieir contract with the plaintiff is to be construed strictly; their liability is not to be extended beyond the terms of their contract; to the extent and in the manner, and under the circumstances pointed out in their obligation, they are bound, and no further.

<p>Eights oe Stockholders — Duty oe Superintendent — Statute Construed. — In construing the provisions of the act to protect the rights of stockholders in the mines of this state (Stat. 1877, SO; Stat. 1879, 57): Held, that the superintendent can not bo held guilty of a misdemeanor for refusing to permit the qualified stockholders to examine the mine.</p> <p>Idem — Penal Statute. — Penal laws should be plainly written, so that every one may know with certainty what acts or omissions constitute the crime</p>

Tbe complaint in this case alleged, among other things, that plaintiff is a citizen of the United States, a resident of Esmeralda county, and eligible to the office of district attorney; that at the general election held on the fifth day of November, 1878, plaintiff and defendant were candidates for the office of district attorney; that the plaintiff received the highest number of legal votes and was duly elected to said office; that against the protest of plaintiff, the…

The facts are sufficiently stated in the opinion. I. The court erred in excluding defendant’s questions to the witnesses Bovard, Stadtmnllev, Hoover and others, to the effect that Bovard claimed the property as his own. II. The court erred in excluding the sworn complaint of the witness Bovard against S. T. Swift, defendant, for a portion of the property in controversy. (Gallagher v. Williamson, 23 Cal. 331; 12 Nev. 38; 7 Cal. 391; 8 Id. 109; 12 Pick. 89 and 306.) III.

Tbe facts appear in tbe opinion. I. A reward offered for tbe apprehension of a thief and money can not be claimed by a sheriff or constable, who arrests the thief, by virtue of a warrant delivered to him for that purpose. (12 Ohio, 281; 15 Wend. 44; 16 Minn. 408; Smith v. Whildin, 10 Pa. 39.) II. A public officer can not receive, for performing an official duty, any other compensation or reward than that which is prescribed by law.

The facts are stated in the opinion. I. The remedy by application to the district court is substantially tbe same as an application for a mandamus. - This court can not be deprived of a jurisdiction expressly conferred upon it by tbe Constitution. (Levy v. Inglish, 4 Ark. 66.) II. A writ of mandamus will be issued although petitioner may have some other remedy. (Stale v. Wright, 10 Nev. 175; Jones v. McMahon, 30 Tex. 730. . Belator has another appropriate and adequate remedy.

The facts are sufficiently stated in the opinion. I. There is no allegation on part of defendant of any fraud, actual or constructive. Defendants can not recover upon that ground. (Kent v. Snyder, 30 Cal. 606.) II. The intervenor alleges his own fraud only, or at least a collusive fraud, and is not entitled to recover. (AUisouv. Hagan, 12 Nev. 38.) III. The representations of Ivancovich could only be mere expressions of opinion, and did not amount to fraud in law.

The facts appear in the opinion. The supreme court has jurisdiction of this appeal. (State v. Boroiushy, 11 Nev. 119.) Defendants were indicted for a felony, and convicted of a felony. The defendants were sentenced to be confined in the county jail, and to pay fines.

The facts are stated in the opinion. I. Solen v. V. and T. R. B. Co., 13 Nev. 106, is conclusive in favor of appellants. II. Where a railway is carried across a public highway so that those approaching on the highway can neither distinctly see nor hear approaching trains, the company is required to use a greater degree of care than in other places. (Richardson v. N. 7. Cent. B. B. Co., 45 N. Y. 846; 35 Id. 75.) III.

The facts are stated in the opinion. Tbe plaintiff baying clothed her creditors with all the in-dicia of ownership and enabled them to transfer the stock to innocent parties without notice of her interest, should suffer any loss occasioned by her own act. (Brewster v. Sime, 42 Cal. 139; Thompson v. Toland, 48 Id. 99; Crocker y. Croclcer, 3.1 N. T. 507; BleNeÜY. Tenth Nat. Bank, 46 Id. 325; Winter v. Belmont i)1. Co., 53 Cal. 428.)

Habeas Corpus. The facts appear in the opinion. I. The charter of a municipal corporation must be strictly construed. (Sedgwick on Stat. Const. 281-83.) If there be any doubt the doubt must be resolved in favor of the petitioner. (1 Dillon on Munic. Corp. sec. 55 and n.) The mode and manner of taxation must be strictly followed. (1 Dillon on Munic. Corp. sec. 620.) II. Persons in the petitioner’s business are never known as, or called, solicitors.

Tbe facts sufficiently appear in tbe opinion. I. Even under tbe evidence of defendants, the contract constituted them partners in tbe special enterprise between themselves, though White was to have all the profits, as £here was a joint venture, with a joint liability to loss.

The reason given by the court for the refusal of the fifth instruction asked by appellant (referred to in the opinion) was: “That tbe law asked for bas been given in tbe instructions asked for as modified by tbe court.” Tbe fourth and fifth instructions given for respondents, and referred to in tbe opinion, are inserted in full in tbe bead notes.

<p>Appeal from the District Court of the Sixth Judicial District, Eureka County.</p> <p>The facts appear in the-opinion.</p>

<p>Order Granting New Trial — When it Will be Sustained. — Where, on appeal from an order granting a new trial, the record shows that the motion was made upon two grounds, without showing upon which of them the action was based, the order will be affirmed, if the action of the court can be sustained upon either ground.</p> <p>Idem — Conflict of Evidence. — If a now trial is granted upon the ground that the evidence is insufficient to sustain the verdict, the action of the court will be sustained by the appellate court, if there is a substantial conflict in the evidence.</p>

<p>Execution Must Polloav Judgment — Interest.—An execution must follow the judgment, and if the judgment does not call for interest, the execution can not. (Bastings v. Johnson, 1 Nev. 617, affirmed.)</p>

Tbe instructions complained of by appellant, and referred to in tbe opinion of the court, are as follows: Instruction given by tbe court of its own motion: “A reasonable doubt, in the law, is one founded upon a full and fair consideration of all tbe evidence in tbe cause and circumstances surrounding tbe transaction, shown and adduced by either tbe state or defendant, or both, and is not a doubt resting upon mere conjecture or speculation.

Tbe facts appear in tbe opinion. I. In construing a statute every clause and provision shall 'avail and bave tbe effect contemplated by tbe legislature. {Peek v. Jenness, 7 How. 623; Knowles v. Teates, 31 Cal. 82; Gullerton v.' Mead, 22 Cal. 95.) II. Taking tbe various provisions of tbe.act for relief of insolvent debtors, it is clear that no valid, personal judgment, can be rendered against an insolvent-after tbe surrender of bis property. III.

The facts are stated in the opinion. The evidence shows a consideration for the deed made by McKay to appellant. A trust can not be shown by parol evidence. (2 Leading Cases in Eq. 670, 715.) To allow the defendant to attack the deed by parol evidence, would be clearly in contravention of the statute of frauds. (Wilkinson v. Willcinson, 2 Dev. Eq. 376; Morris v. Morris, 2 Bibb. 311; 2 Eq. L. C. 716, 717; Hill on Trustees, 171; 2 St. Eq.

The facts sufficiently appear in the opinion of the court. Petitioner is entitled to the writ of mandamus. ■ The writ is granted where a person has a legal right to insist that a certain act shall be done, the performance of which is by law made the duty of a public officer. (Treadway v. Wright, 4 Nev. 119; 3 Stephens’ Nisi Prius, 2292; Redfield on Railways, 441 n. 5; People v. Judge Wayne Go. 1 Manning’s; Michigan Rep. 359; In the matter of Jas.

The facts appear in the opinion, The power to issue the writ is expressly enumerated in the statute, and this by implication carries the power to do everything necessary to the issuance of the writ. Any other interpretation would destroy the act and overthrow the intention of the law-makers. The act in terms only provides that the writ may issue. The law grants the right to have the writ issue. It therefore grants also the right to do all things necessary to that end.

' The facts sufficiently appear in the opinion of the court. I. The act under which defendant was convicted (1 Comp. Laws, 589) is unconstitutional. (Const. Nev., Art.IY., sec. 17; State v. Silver, 9 Nev. 227; FarMnson v. State, 14 Md. 194.) II. Defendant had a right to show, in mitigation and defense, that an absolute necessity for his leaving the jail existed. It was for the jury to decide whether the facts were sufficient to justify.

<p>Commitment — Reasonable or Probable Cause. — Upon the preliminary examination of petitioner upon the charge of being accessory to the murder of P. L. Traver, testimony was given to the effect that T. was deliberately killed by one Owen, on the fifth of January, 1880, in front of petitioner’s saloon; that three days prior to the killing, petitioner told O. that he would give him a month’s whisky, and that another man then present would give him a month’s board, if he would whip or kill T. Held, sufficient to authorize his commitment.</p> <p>Eorm oe Commitment. — A commitment which recites that petitioner has been held to answer the charge of murder, by being accessory before the fact, to the killing of P. L. Traver, at Metallic City, Esmeralda county, state of Nevada, on or about the fifth day of January, A. D. 18S0, satisfies the requirements of the statute. (1 C. L. 1794.)</p>

I. A deposition can not be introduced (save to correct or dispute the party who made it), unless the party be dead, out of the state, or absent. (1 Comp. Laws, 1779.) II. Every person on trial in a criminal case has the right to a full and perfect cross-examination of every witness who is called to testify against him. (State v. Larldn, 11 Nev. 315; 1 Comp.