Volume 15 — Nevada Reports

Tbe facts appear iu tbe opinion. I. Tbe constitutional provision which declares that every law shall embrace but one subject and matter properly connected therewith, which subject shall be briefly expressed intlie title, is mandatory. (Cooley’s Con. Lim., 74, 78, 148, 150; People v. Lawrence, 36 Barb. 177; State v. Silver, 9 Nev. 227.) II. An act containing subjects not expressed in its title is unconstitutional and void.

The facts appear in the opinion. I. The Court erred in refusing to grant a new trial on account of the bias of the juror Watson. II. The court erred in its instructions to the jury. In this case, the gist of the offense is, the intent unlawfully to kill. The unlawful intent is a material criminal fact, which, like every other fact, must be proved.

The facts are stated in the opinion. The board of county commissioners had the power to make the orders mentioned and set out in the return to the writ of certiorari, and did not exceed the jurisdiction conferred by law upon the board. (Yol. 2, Comp. L., secs. 3077, 3105; Stats, of Nev. 1879, 45; Yol. 2, Dill. Munic. Corp., secs. 371, 373, 388;-54 Miss. 240.

The facts are stated in the opinion. The sole trader’s act is in derogation of the common law and should be strictly construed. That provision of the act, which prohibits the husband from managing or superintending the business, was designed to protect the creditors of the husband against fraud and collusion between him and his wife (Porter v. Gamba, 43 Cal. 105), and should be rigidly enforced against the wife, and liberally construed in favor of the creditors.

Tlio defendant was convicted of murder in the first degree and sentenced to be hanged.

<p>Attorney-at-law — Motion to Strike Name from Roll — Court of Record. — Held, that the statute authorizing the court to remove an attorney who has been convicted of a felony or misdemeanor, and that “the record of his conviction shall be conclusive evidence, ” contemplates a conviction in a court of record; that the docket of a justice of the peace is not conclusive.</p>

The district court, as conclusions of law, found that the defendants Cook and Miller were justly indebted to plaintiffs in the sum of two thousand seven hundred and eighty-four dollars and sixteen cents, and to other lien claimants in the sum of one hundred and sixty-three dollars and ninety-eight cents, and that the defendant, the Carson Opera House Association, was, at the time this suit ivas commenced, and at the time the several claims of lien were made, and now is,…

<p>Bill op Exceptions — Order Continuing Matters in Court. — Held, that the general order of the court continuing “all matters in court not disposed of until the next term,” did not extend the time for settling and signing a bill of exceptions.</p> <p>Bill op Exceptions — When must be Settled and Signed. — Under the statute (Civ. Prac. Act., sec. 190, et seq.) a bill of exceptions, in order to be available on motion for a new trial, or on appeal from the judgment, in a civil case, must be reduced to writing and settled by the judge, at or before the conclusion of the trial.</p> <p>Idem — Adjournment op Term. — The bill of exceptions can not be reduced to writing and settled after the adjournment of the term at which the judgment is rendered, if there is no order of the court made at such term extending the time therefor.</p> <p>Nonsuit — When Granted. — A nonsuit can only be granted upon the grounds stated in the statute and in the manner therein provided.</p>

The facts are stated in the opinion. I. In order to render a pardon valid, it must express with accuracy the crime intended to be forgiven. (4 Black. Com. 400; 2 Hawk. P. C. 533; State v. Leah, 5 Ind. 359; State v. Mclntire, 1 Jones (N. C.) L. 1.) And the effect of a pardon is to protect from punishment the criminal for the offense pardoned, but for no other. {State v. Itichardson, 18 Ala.

The defendant was indicted, tried, and convicted, of the crime of murder in the first degree for the killing of Humphrey Symons, a policeman, in Gold Hill. The evidence on the part of the state showed that the defendant and a woman, with whom he was living, and called his wife, resided on the divide between Gold Hill and Virginia City, in a portion of the house owned by Mrs. Casey.

Tbe facts sufficiently appear in tbe opinion. I. As to wbat constitutes a bona fide purchaser, counsel cite tbe following authorities. (2 Story Eq. Jur., secs. 1282, 1502; 2 Lead. Cas. Eq. 36, 43, 63, 73, 80, 82; Union Canal Co. v. Young, 1 Whart. 432; Jaclcson v. Summerville, 13 Pa. St. 359; Story Eq. PI., sec. 604a; 3 Serg. & B. 422-432; 32 Mass. 87.) II. Tlie money must be wholly paid before notice. (Bump on Fraud. Con. 477; Wade on Notice, secs. 60, 93; Willard’s Eq.

The facts are stated in the- opinion. I. The mortgage in ibis case was executed in the name of J. H. Latham for the purpose of defrauding the revenues of the State of Nevada. Upon this point there is no conflict of testimony, for Drexler’s own testimony shows that to have been the object. Such being the fact, the mortgage should be held to be void.

<p>Motion to Redeliver Possession oe Property made before Appeal is Perfected, Denied. — At the time the motion was made, no notice of appeal from the judgment had been given, and at the time the court denied the motion for the redelivery of the possession of the premises, the appeal from the judgment had not been perfected: Held, that the order of the court denying the motion was correct.</p>

<p>Sunday — Non-judicial Day. — A judgment of a justice of the peace, rendered upon the trial of a criminal case, on Sunday, is null and void.</p>

The facts are sufficiently stated in the opinion. I. The act under which the land described in the record was condemned is unconstitutional and void. The petitioner is a mere private corporation, organized to carry on the business of mining for its own benefit, in which the'public has no interest, and to permit it to take appellants’ property, is to permit private property to be taken for private use.

The second instruction referred to in tbe opinion of tbe court reads as follows: “If tbe jury believe from the evidence tliat tbe defendant, McLeod, saw the plaintiffs while engaged in tbe construction of tbe mill, dam, and ditch, and was advised 'of their purposes, and saw plaintiffs expending large sums of mone}? in such improvements; and if defendant permitted plaintiffs to mate such improvements and expenditures without objection, and if defendant silently acquiesced in…

The facts appear in the opinion. .1. Belator is entitled to a jury trial. (1 Comp. L. 2221, 2227; Stat. 1864-5, 216, sec. 31; Id. 1869, 121; People v. Smith, 9 Mich. 194.) I. Belator is not entited to a jury trial. (Coust., art. 6, sec. 13; 1 Dill. Mun. Corp. sec. 358, note 1; Davenport v. Bird, 34 Iowa, 524; Williamson v. CommomueaUh, 4 B. Mon. 146; State ex rel. Roseusloclc v. Swift, 11 Nev. 141; Byers v. Commonwealth, 42 Pa.

The facts sufficiently appear in the opinion. I. E. E. Eicord is the plaintiff in this suit. The words “mother and guardian of W. C. Eicord, a minor,”is a mere descriptio persona} of the plaintiff. (Rogers v. Hatch, 8 Nev. 38; Tahnage’s AdrrCrs. Ghapel, 16 Mass. 71; MerritY. Seaman, 6 N. Y. 168; Boot v. Price, 22 How. Pr. 372.) The action must he brought in the name of the infant by his guardian. (Fox v. Minor, 32 Cal.

The facts appear in the opinion. I. An indictment upon the statute must state all the facts and circumstances which constitute the statutory offense, so as to bring tbe accused perfectly within tbe provisions of tbe statute. . (Woody. People, 53 N. T. 511; People y. Phipps, 39 Cal. 326; Cliitty Cr.

The facts appear in the opinion. I. The district court erred in excluding the evidence offered on behalf of defendant touching his general disposition and character for peace and quietness. Such evidence is relevant and important in all criminal cases. It was admissible in favorem vitae, as reflecting upon the probability or improbability of the evidence adduced against him, and •also upon the truth or falsity of his defense.

The facts are stated in the opinion. I. For tbe publication of a defamatory libel the law gives an action and permits but two defenses: the truth of the libel, and that it was privileged. For the purpose of maintaining the action in the absence of legal excuse, the law infers malice, and only allows proof or pleading relative to' actual malice, or bad intent, in mitigation of primitive as distinguished from compensatory damages.

The facts appear in the opinion. I. Lopez having continued in possession and control of the property as to Winter, ivho ivas an attaching creditor, the bill of sale to Davis is void. (Comp. L., sec. 292, 294; 4 Nev. 361; 15 Cal. 503; 1 Nev. 222; 10 Id. 422.) Xl. The sheriff having returned that he seized the property in attachment, his return is conclusive and can not be collaterally attacked.

' Appeal from the District Court of the First Judicial District, Storey County. The facts appear in the opinion. I. The consent of parties did not authorize the court to enter a judgment for less than the law demanded. The statute controls judicial officers as well as ministerial or executive officers. (Secs. 3153-3159, and 3232, 3233, 3238, 2 Comp. Laws; Cooley on Tax. 358, 359, and cases cited; Thatcher v. Poiuell, 6 Wheat. 119; Stale v. O. P. li.

<p>A Judgment eor Delinquent Taxes must include the penalty.</p>

' The facts appear in the opinion. I. Plaintiff was in possession; possession alone is sufficient to maintain trespass. (Althouse v. Rice, 4E. D. Smith, 347; Smith v. Miles, 1 Term, 480; 2 E. D. Smith, 200.) II. The right of the owner to the possession of his propperty is inalienable and exclusive. (State Const.; Jackson v:R.&B.R.R.,25Y1.150; Walshv. V.-&T. R., 8 Nev. 114.) III.

The facts are stated in the opinion. I. The assignment is not made in accordance with .the provisions of the statute of this state, regulating assignments by insolvent debtors. (1 Comp. L. 426-464.) II. The state insolvent laws are in force, until proceedings in bankruptcy are actually instituted under the national bankrupt law. (Mallbie v. Hotchkiss et al., 38 Conn. 80; Beed v. Taylor, 7 Am. Bep. 180. In re Zieqenfuss'' Case, 2 Ired.

I. The law does not provide for the redemption of any portion of a warrant. It must be redeemed in full, if at all. “ Purchased and redeemed,” must be written on the face of it. (Stat. 1877, 54.) II. Mandamus does not lie in this case. The board had already acted in the premises. (Treadway v. Wright, 4 Nev. 119.) Certiorari would correct the error, but mandamus would be fruitless. {McGuire v. Waterman, 5 Nev. 323.)

Tbe instructions asked by plaintiff, and refused by tbe court, referred to in tbe opinion, read as follows: 1. “ Tbe jury are instructed, that if tbe defendant Welter, or John Wagner, acting as tbe lawful agent, in tbe transaction for Welter, bad notice, before the giving of tbe note sued on, that the stock mentioned, in defendants’ answers had been purchased by Eice & Peters, on account of defendant Welter, and that the note in question was then given, after having such…

The facts appear in the opinion. I. That part of the judgment which excludes from the decree the amount of indebtedness found due to the individuals constituting the board of directors of the corporation, is erroneous. (Ang. & Ames on Corp., sec. 297; Twin Lick Go. v. Martury, 91 U. S. 587.) II. The corporation was especially authorized to act anywhere in the United States. The board of directors being only agents, can act as such at any place.

<p>Judgment or Dismissal, when no Summons has been Served, should be without Prejudice. — When a case is not at issue, the merits can not he considered. ,</p>

<p>Application for mandamus. The facts appear in the opinion.</p>

The facts are stated in the opinion. No brief on file. The staying of an execution is iVithin the general authority of an attorney-at-law. (Willard v. Goodrich, 31 Yt. 600; 20 Me. 183; 7 Cow. 739; 3 Watts & Serg. 426.)

<p>Appeal from the District Court of the First Judicial District, Storey County.</p>

The conclusions of law drawn by the district court, and referred to in the opinions, are as follows: 1. Such judgment of William Solen against defendant drew no interest, for that the same was not specified therein, and for that the attorneys of said Solen waived the same by the form of judgment by them prepared. 2.

Motion to reinstate appeal. The facts sufficiently appear in the opinion. I. The right of appeal should be liberally construed. (1 Comp. Held: that they must be regularly performed. (Lyon Go. v. Washoe Go., 8 Nev. 177; Peran v. Monroe, 1 Id. 484; Lambert v. Moore, 1 Id. 344; Johnson v. Badger M. & M. Go., 12 Id. 261; Aram v. Shallenberger ', 42 Cal. 275.) As bearing upon the same question, we refer to the following cases: 24 Cal. 96, 229, 603; 22 Id. 650; 26 Id. 263; 19 Id.…

The facts appear in tbe opinion. I. The court erred in overruling tbe motion for a change of the place of trial. (1 Comp. L. 1931; State v. Millain, 3 Nev. 409.) The court can not grant or refuse the application as a mere matter of discretion. (Freleigh v. The State, 8 Mo. 606; Clark v. The People, 1 Scam. 117; Brennan v. The People, 15 111. 511; People v. Long Island It.

Appeals from the District Court of the Sixth Judicial District, Lincoln County. The facts sufficiently appear in the opinion. [No. 1016.] I. The judgment appealed from is void. The clerk was not authorized to enter the same. (Providence Tool Go. v. Trader, 32 Cal. 634; Wilson v. Cica,viand, 30 Id. 192; Kelly v. Van Austin, 17 Id. 564; 1 Comp. L. 1213). A demurrer is an answer within the meaning of the statute. (Oliphant v. Whitney, 34 Cal. 25.) II.

<p>Mining Claim — Sufficient Marking of Boundary Lines. — Where stakes and stone monuments were put at each corner of the claim, and at the center of each of the ond lines: Held, to be a sufficient marking of the boundaries.</p> <p>Idem — Record of Claim, When not Necessary. — A record is not, under the laws of congress, essential to the validity of a mining claim, unless made obligatory by local regulations.</p> <p>Idem — Notice of Location. — A notice of location, which called for stone monuments at each corner of the claim, and described it as being bounded by four other well-known claims : Held, sufficiently definite, as to the locus of the claim.</p> <p>Assays of Rock Taken after Location of Claim — Competent Evidence to Prove Existence of Mineral Vein. — Assays of rock -which was taken from a mining claim, long after the date of its location, are competent evidence, as tending to show that the locators had discovered a vein at the time of the location.</p>

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

The facts are stated in the opinion. I. No attachment was ever levied. The sheriff was never in possession. There was no consideration to support the promise of the undertaking. (Laveaga v. Wise, 13 Nev. 296.) II. The paper in suit is not an undertaking to release attached property. It is not so recited in the paper. It does not run to the plaintiff. It was not made upon the order of the court or judge discharging the attachment. (1 Comp.

The facts are stated in the opinion. I. It is not claimed that Huntington, Hopkins & Co., or their attorneys, or the Humboldt Mill & Mining Company, gave any notice to the lien claimants that the indebtedness was denied, or that the demand of the lien claimants was disputed. The notice, if any was given, was given by the sheriff. Notice must be given by the party, or his attorney.

The facts are stated in the opinion. I. The court erred in ruling out the testimony, that the land, upon which the wood was cut, had been returned, and denominated as mineral land. (Patterson v. Winn, 11 Wheat. 380; Railroad Go. v. Smith, 9 Wall. 98, 100; Doll v. Meador, 16 Cal. 325; People v. Stratton, 25 Id. 251; Read v. Carulhers, 47 Id. 181; McLaughlin v. Powell, 50 Id. 64.) II.

Tbe facts appear in tbe opinion. I. The conversations held by the jurors with Chris. Walsh were concerning a subject connected with the trial, and constitute a fatal error. It was not the intention of the law that the jury should be allowed to roam around and pick up any information out of court.

<p>Date of Note — Discrepancy—When not Sufficient to Declare Testimony False. — Witness testified that a certain note was executed and delivered August 5, 1875. The note, being produoed, appeared to bear date August 5, 1878: Held, in the absence of any opportunity being given to the witnesses to explain, that this circumstance was not sufficient to authorize the district court to pronounce their testimony false.</p> <p>Rule as to Conflict of Evidence, Enforced.</p>

The land owned by plaintiff is not agricultural, or grazing land;' but is valuable only for the timber growing upon it. On. the ninth day of October, 1873, the land was patented by tbe state of Nevada, and granted, by its patent, to the grantor of plaintiff. Alder creek flows in its bed'and channel through, over, and upon the lands of plaintiff. Plaintiff never appropriated or used the water of Alder creek for any purpose whatever, and has not any use therefor.

The facts are stated in the opinion, I. The lien of a judgment never attaches on a homestead claim. Upon a conveyance thereof, the purchaser takes the land, clear of any judgment lien, docketed whilst the homestead claimant was occupying it. (Green v. filarles, 25 111. 225; Bliss v. Glarlc, 39 Id. 590; Wiggins v. Chance, 54 Id. 175; Civil Practice Act, 206; Ackley v. Chamberlain, 16 Cal. 183; Boioman v. Norton, Id. 220; Houghton v. Lee, 50 Id. 101.) II.

<p>Authenticated Statement — Where no Amendments are Filed. — The certificate of the clerk, that no amendments were ever proposed, is a sufficient authentication of a statement, to 57111011 no amendments are proposed, and is sufficient proof of that fact.</p> <p>Statement — Must be Filed in Statutory Time. — The record shows that the statement was not filed or served until nineteen days after the verdict of the jury: Held, too late.</p> <p>Transfer of Cause from Justice’s Court to the District Court— Question of Bight of Possession. — Where the trial of a case, in a justice’s court, involves a question of possession, and right of possession of real estate, the case should he transferred to the district court.</p>

The facts are stated in the opinion. I. The fifth instruction given to the jury is not only too broad, and therefore misleading, but is entirely erroneous in point of law. Where the representations were express, and in writing, the purchaser has a right to rely upon them, and is not bound to “ test their truth or falsehood,” by any “vigilance or attention.” (Mead v. Bunn, 32 N. Y. 275; Rischv.

The facts are stated in the opinion. I. The laws of this state give a vendor of real estate a lien on the property sold, for the purchase money, or any part thereof, remaining unpaid after a conveyance has been made to the vendee, and the lien is good against all persons succeeding to the rights of the vendee, who had n'otice. {Sparks v. Hess, 15 Cal. 186; Chance v. McWhorter, 26 Ga. 315; 14 Abb. 57, sec. H97; 7 Ohio, 222; 14 Abb. 57, sec. 1203; Truébody v. Jacobson, 2 Cal.…

<p>Statement must be Served in Time. — A statement, on motion for new trial, must be served within the statutory time, or it will not be considered on appeal.</p> <p>Idem — Evidence as to Serving must be Produced in District Court.— The supreme court, on appeal, has no right to consider any evidence as to the time when the statement on motion for new trial was served, except such as was produced in the district court and made a part of the record of the case.</p>

<p>Action on Promissory Note — Pleadings—Averment “ Lawful Holder,” Immaterial. —In an action on a promissory note, the averment in the complaint, that plaintiff “is now the holder and owner of said promissory note, ” is immaterial.</p> <p>When Case may be Set for Trial. — In the absence of any rule of court to the contrary, a case may be set for trial at any time during the term, if it is at issue upon questions of law or fact, although the suit was not commenced until after the beginning of the term.</p> <p>Change of Venue — Bias of Judge. — Bias or prejudice on the part of the judge constitutes no legal incapacity to sit on the trial of a cause, and is not sufficient ground to authorize a change of the place of trial.</p> <p>Continuance — Presence of Witness at Trial — Error Cured. — Where a continuance is asked for, upon the ground of the absence of a material witness, and the witness afterwards appears and testifies upon the trial: Held, that the presence of the witness cured the error, if any was committed by the court, in refusing to grant a continuance.</p> <p>Idem — No Injury. — Defendant moved for a continuance, on the ground that II. Man, an absent witness, would testify to a payment of five hundred dollars upon the note sued on. The defendant, testifying in his own behalf, declared that he did not consider the payment of this five hundred dollars to be made upon the note. The affidavit of the absent witness was presented by the plaintiff, denying all knowledge about the payment of the five hundred dollars:' Held, that defendant was not injured by the absence of the witness,</p> <p>Evidence of Other Indebtedness. — A payment of five hundred dollars to plaintiff being shown: Held, that the court did not err in allowing plaintiff, in rebuttal, to testify to the existence of other indebtedness due from the defendant to the plaintiff at the time of said payment.</p> <p>Mistake in Pavor of Appellant. — An appellant can not complain of a mistake in his own favor, as to the amount of interest due on a note.</p> <p>Form of Verdict — Amount of Interest. — Where the verdict of the jury, although irregular in form, is sufficient to enable the court to understand their intention, and the judgment is entered in accordance therewith, except as to the rate of interest on the note: Held, that the court had tlie right to allow interest on the amount found due by the jury at the rate expressed in the note.</p> <p>Conflict of Evidence. — Hule as to weight and conflict of evidence enforced.</p> <p>Indemnity upon Lost Note. — Indemnity is not required in an action upon a lost non-negotiable note.</p>

The facts are stated in the opinion. A mortgage, under our statute, is not a conveyance of lands, nor does the mortgagee take any estate in the land mortgaged. He acquires a lien upon it simply for the security of his demand, which can only be enforced by a judgment for the sale of the property mortgaged, and a sale in pursuance of the judgment.

The facts are stated in the opinion. I. There was no evidence to sustain the verdict. It was evidently rendered under a misapprehension of the law, and of the evidence, or as the result of prejudice. In either event a new trial should be ordered.

The facts sufficiently appear in the opinion. I. The evidence was insufficient to justify the verdict. There is no substantial conflict in the testimony. The fact that there is some evidence to sustain the verdict does not precludo this court from ordering a new trial on the ground that the evidence is insufficient. There must be a substantial conflict. (State v. Yellow Jacket S. M. Oo., 5 Nev. 415; 49 Cal. 375.) II.