Volume 16 — Nevada Reports

The findings referred to in the opinion of the court-are as follows; 19. “That'for upwards of five months before the said decree of distribution was made, plaintiff suspected that said William John Ford and defendant (J. C. Hampton) intended to cheat lfim (plaintiff) out of the estate of said Oliva Bosanna Ford, and knew that said William John Ford claimed that plaintiff was no relation to him (Ford).” 20. “That said plain tiff-knew, before the nineteenth day of October,…

The instruction as to reasonable doubt, referred to in the opinion, reads as follows: “You are instructed: As an example of what a ‘ reasonable doubt’ is, such an one as entitles a defendant to be acquitted, has been described as such a doubt as controls men in deciding upon the most serious affairs of life.

<p>Findings must be Embodied in Statement. — The findings of the district court will not be considered upon appeal unless they are embodied in the statement.</p> <p>Statement on Motion bob New Trial — When not Statement on Appeal. — When an appeal is taken'from the judgment alone, the statement on motion for a new trial will not be considered as a statement on appeal, unless there is a stipulation to that effect.</p> <p>Presumptions in Eavob oe Judgment. — When nothing is shown to the contrary, this court will presume that the judgment is sustained by the findings, and that the findings wgre justified by the evidence.</p> <p>Bights of Parties Who have not Appealed not Considered. — A decree in favor of persons, not parties to the suit, who have not appealed, will not be considered or reviewed by this court.</p>

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

The facts appear in the opinion. I. Defendant is estopped by the contract from denying the interest of the city in the property, or its authority to make the contract. Having made and ratified the contract and taken the benefits which it confers, defendant must also bear the obligations which it imposes. (Herman on Estoppels, secs. 467-471, 473, 474; Stevenson v. Newnham, 13 C. B. 302; Atkinson v. Neiucastle and G. W. Co., 6 Ex.

<p>Statement on Motion fob. New Trial — Authentication of. — A certificate of the clerk to the effect that no amendments to the statement have been filed, is such an authentication as is required by section 197 of the civil practice act.</p>

M., knocked at the door and woke up the defendant, and told him that he (Connor) was very sick and must have some opium. Defendant at first refused to get up, but after some threats upon the part of Connor, he got up. When he came to the door Connor handed him fifty cents and told him to go'and get some opium. Defendant got the opium, gave it to Connor, and was thereafter immediately arrested by the sheriff.

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

<p>Habeas corpus before tbe Supreme Court.</p> <p>Tbe facts sufficiently appear in tbe opinion.</p>

The facts appear in the opinion. I. Even though the court should be of the opinion that there has been a want of diligence on the part of appellant in the prosecution of this action, yet now that it is at issue' on the merits, on the calendar and ready to be set for trial, the respondent having neglected to make its motion to dismiss before it appeared in the action and before it was at issue, the court will say that it is too late now to entertain such motion, and that the…

CERTIORARI before the Supreme Court. The facts appear in the opinion. The action of the court in allowing costs is reviewable by certiorari. There is no statute restricting the office of tbe writ of certiorari, except in civil cases. The grant of power to this court, found in the constitution, relates to this remedy as it was at common law.. At common law its office was to correct errors. (Bac. Abr., Title Certiorari; Blacks tone, book 4, 320, 321; Peoples.

Tbe facts are stated in tbe opinion. I. Tbe court erred in admitting tbe deposition of Mercer, taken' before tbe committing magistrate. (Coleman v. State, 58 N. T. 555; Rosemoeig v. The People, 63 Barb. 634; Jones v. Planters’ Bank, 3 Hump. 78.) II. Tbe ownership of tbe goods was laid in A. W. Mercer, and it was incumbent on tbe prosecution to prove tbe ownership as laid. (1 Bishop Cr. Pro., 2d ed., 147; 512; 3 Greenl. Ev., secs. 10-13; Wilburn v. State, 41 Tex. 237.) III.

, The facts, appear in tbe opinion. Tbe demurrer to plaintiff’s amended complaint was improperly sustained. On tbe death of one partner tbe surviving partner is entitled to all tbe choses in action and other evidences of debt belonging to tbe firm. They must be collected in bis name. Tbe right of action in relation to all partnership demands is transferred to tbe surviving partner.

<p>Assault — Jurisdiction or Supreme Court on Appeal. — Defendant was indicted for the crime of an assault with intent to kill, and was tried and found “guiltj of an assault.” The judgment imposed a fine of five hundred dollars, and taxed the costs against defendant. From this judgment an appeal was taken. Held, that this court had no jurisdiction; Appeal dismissed. State v. MeGormich, 14 Nev. 347, affirmed. (Belknap, J., dissenting.)</p>

<p>Statement on Appeal — When not Considered. — Where it is not shown that the statement on appeal was filed With the clerk, op that a copy of it was served, or that it was agreed to, or settled by the judge: Held, that it did not comply with any of the requirements of the statute and could not be considered.</p>

<p>Section 17 or Salary Act (Stat. 1879, 136)- Construed — -Salary.of Justice of the Peace. — Held, that under section 17 of the salary act the right of every justice of the peace, elected or appointed after the act took effect, to salary or fees, should- be determined by reference to the number of legal votes cast at the last general election preceding the time when the claim for his salary is preferred.</p>

The facts appear in the opinion. I. Lake having the legal title, the defendant having failed to pay and having set up both payment and adverse possession, Lake was entitled to recover possession of the premises in this action of ejectment. (Tyler on Eject. 46; Paige v. Gole, 6 Iowa, 153; Evans v. Lee, 12 Nev. 393, 399; Story’s Eq. Jur., sec. 761; Willard’s Eq. Jur. 285.) II. Lewis’ occupancy was not adverse, but was subordinate and in privity with Lake.

<p>Habeas corpus, before the supreme court.</p> <p>The facts are stated in the opinion.</p>

The facts are stated in the opinion. I. The discharge of the juror Dorsey was a bar to a subse-sequent trial. Held: there was no jeopardy. (State v. Bell, 81 N. O. 591.) IX.

Tbe facts are stated in tbe opinion. I. Tbe indictment contains no sufficient description of tbe moneys alleged to bave been embezzled. (2 Bisb. Crim. Pr., secs. 703, 704; 2 Bisb. Crim..Law, sec. 374; Rex v. Tyers, Buss. & By. 402; Ilex v. Flower, -5 Barn. & Cress. 738; Rex v. Furneaux, Buss. & By. 335; Slate v. Murphy, 6 Ala. 845; People v. Cox, 40 Cal. 275; States.Iiroeger, 47 Mo. 530; State v. Stimson, 4 Zab. 9.) IT.

Tbe facts are stated in the opinion. I. If M. B. Dwelly pretended to act as tbe duly authorized agent of tbe California Fruit and Meat Shipping Company in the purchase of the hay, the testimony shows without conflict that be was not; and it further appears that this corporation never ratified his acts by acceptance or measurement of the hay or by paying a single dollar of the purchase money; hence, there was no contract for the sale of this hay between plaintiffs and the'…

Quo warranto, before the Supreme Court. The facts appear in the opinion. I. The Nevada Benevolent Association never has been a corporation under the laws of this state; because section 3389 of the compiled laws does not authorize the formation of corporations for the purpose of holding or conducting public entertainments or gift enterprises. II.

<p>President pro tem. op the Senate not Entitled to Extra Pay— Constitution.' — The legislature passed an act in favor of relator, for payment of his services as president pro tem. of the senate, in addition to his regular pay as a senator: Held, that this was in effect an attempt to increase his compensation as a senator, and hence, unconstitutional. (Art. 4, sec. 33.)</p> <p>Idem — Oeeicer.—No money can be drawn from the treasury as compensation to an officer of the legislature, except when the compensation has been fixed by a law in. force prior to the election of such officer. (Const., art. 4, sec. 28.)</p>

<p>Forcible Entry and Unlawful Detainer — Right of Possession not Involved — Admission of Deeds Erroneous. — In an action of forcible entry and unlawful detainer, neither title nor right of possession being involved, it is erroneous to admit quitclaim deeds in evidence, as tending to show possession.</p>

The facts are stated in the opinion. I. The court erred in granting a new trial. 'No affidavit or statement was filed within five days filter the filing of the notice-for a new trial; and the time to file the statement not having been extended by the court or the plaintiffs, the right to move for a new trial was waived. (Sec. 197, 1 Com.

Upon the part of the defendant, among other things, a certain memorandum book was offered in evidence; defendant, who was the only witness as to the time when entries were made, gave testimony tending to show that the entries were made by Henry A. Buckley and witness, and principally in deceased Henry A. Buckley’s life-time, and all of them at about the time the respective transactions occurred; that it was the book by which deceased settled with other persons with whom he…

Tbe facts sufficiently appear in tbe opinion. I. Tbe stock in controversy is personal property, and tbe owner can follow.- it and recover tbe possession of it wheresoever found. (1 Hittell’s Code and Stats. Cal., sec. 5324; 2 Comp.

The facts appear in the opinion. I. The title of the act does not embrace, the subject of sections 11 and 12. The act embraces- more than one subject. Neither the purpose to make a state loan and public debt, nor to invest school moneys, is indicated by the title.

Ou tbe trial of this cause, three witnesses, Campbell, Weill, and Mohler, .testified that at the time of tbe homicide they were at work in an adjoining field about one hundred and twenty-five rods distant from tbe bridge where tbe body of deceased, Patrick Tally, was found; that Campbell and Weill were on an elevation about eight feet, and Mohler about two feet, above tbe ground; that there was grass growing in a field between witnesses and tbe bridge, but that no-other…

<p>Pinal Judgment — Divoece—Appeal.—In an action for divorce, brought by Jane Lake against relator, the court, upon special issues of fact found by a jury, ordered that the bonds of matrimony existing between the parties be dissolved, and reserved from its decision the question of the division of the common property, and the question of the custody of their child: Held, that the judgment ordered by the court was not a final judgment in the case, and that no appeal could be taken from the orders made thereafter for alimony, and for counsel fees.</p>

The facts are stated in the opinion. I. A statute that imposes a duty and gives the means of performing it is mandatory. (Feazie v. China, 50 Me. 518; Boren v. Commissioners, 21 Ohio, 321 et seq.; 19 Id. 97, especially 108, 109; People v. Contracting Board, 46 Barb. 256.) II. Statutory requisitions are deemed directory, only when they relate to some immaterial matter, where a compliance is a matter of convenience rather than substance. (Sedg. on Stat. and Con.

The facts sufficiently appear in the opinion. No damages beyond the price paid for sending the telegram were recoverable. The dispatch was in cipher, and absolutely unintelligible except to tbe person to whom it was sent. No explanation of its contents, or even of tbe nature of its subject-matter, was made to any of the defendant’s agents.

The facts sufficiently appear in the opinion. I. The- court erred in granting a nonsuit. It was shown that Brown was at least a tenant in common with 'Boyle in the demanded premises, and as such tenant he had the right to recover. (Sharon v. Davidson, 4 Nev. 416.) II. At the time Countryman’s deed was executed, Countryman had applied for a patent, and had paid the purchase money.

Tbe facts are stated in tbe opinion. I. Tbe burden of proof was on defendant to establish bis right to tbe office. (Ang. & Ames on Corp., sec. 756; State v. Haskell, 14 Nev. 210; High on Bern., sec. 629.) II. The court did not err in striking out Gulling’s evidence. The fact that the shares stood in the son’s name by the consent of his father, entitled him to vote the' stock. {Bercich v.' Monje, 9 Nev. 316; State ex rel.

<p>Compbomise op Interest in Mining Ground — Authority to Make— Acquiescence in. — Where a compromise is made between several persons as to the respective interests which each shall have in certain mining ground, W., one of-said parties, being represented by G., and where all the parties to the compromise, including W., for a period of fifteen years, abided by its terms and acted upon it, and conveyed their interests in the ground in accordance therewith, and received the proceeds thereof: Held, that these circumstances, in connection with the fact that the defendant at the trial maintained the validity of the compromise which it alone, as the successor of W., could have attacked, rendered the question of G.’s authority to act for W. immaterial to the plaintiff’s case.</p> <p>Idem — How Interests op Parties may be Determined — Instruction.— The court instructed the jury: “ To support the statement of any of the witnesses, you can consider the probability of his evidence and the facts to which he testifies, and any facts or circumstances detailed which might tend to corroborate or sustain the statement of any witness; and you may also take into consideration any description or calls in the deeds introduced in evidence, and the manner, conduct, and action of the original owners in relation to the ground, in determining the question whether or not the plaintiff and his associates each owned more than one hundred feet in the Sides claim,” etc.: Held, upon the facts of this case, to be correct.</p> <p>Idem — Assessment Book Admissible in Evidence. — The Sides company was an unincorporated association. It had.officers, kept a record of its meetings, and an assessment book which contained a list of all the owners of the Sides claim, with each of whom was kept an account showing the amount of assessment levied and the payments made. This book was, at all times, open to inspection, and no objection had ever been made thereto. The court instructed the jury that if they believed plaintiff had actual knowledge of its contents they could then consider the entries mentioned as admissions of the extent of his ownership: Held, that the instruction was correct.</p> <p>Statdte of Limitations — Possession of Tenant in common — When Adverse- — Notice.—To make the possession of one tenant in common adverse as against the others, it is not necessary that notice should be given of the adverse intent; but the intent must be manifested by outward acts of an unequivocal kind.</p> <p>Idem — Plaintiff not- Tenant in Common. — The Sides company did not enter as tenant in common with plaintiff; but as owner of the entire claim. It never acknowledged plaintiff’s title, but held under an avowed claim to the whole and in exclusion of plaintiff: Held, that its possession was adverse to plaintiff from its inception.</p>

The facts are stated in the opinion. The plaintiffs had no lien upon the premises described in the complaint. The lien did not specify the items of account. (Heston v. Martin, 11 Cal. 41.) It did not contain a statement of the terms, time given, and conditions of the contract. The act requires this to be done. A failure to comply with this requirement invalidates the lien. (Phil, Mech.

The facts sufficiently appear in the opinion I. The evidence is insufficient to justify the verdicts in these cases; because the whole evidence shows that the appellant was guilty of no negligence, and that the respondents were. (Testimony reviewed at length.) II.

The facts sufficiently appear in the opinion. I. An action can not be maintained by a surety upon an obligation who appears to be legally bound for the identical sum for which he sues, against all or any of his co-obligors. (1 Cliitty PL 40; Westcolt v. Price, Wright, 220; Grahame v. Harris, 5 Gill & Johns. 498; Eastman v. Wright, 6 Pick. 316; Warren v. Stearns, 19 Id. 73; Livingston v. Livingston, Mills (S. C.), 428; Portland Bank v. Hyde, 2 Eairf. 196;.

<p>Deed — Recording oe Seal not Necessary — When Ensealing will be Presumed. — The recording of the seal to a deed is not absolutely essential. ' If the original instrument can not be produced, and the record thereof is offered in evidence, the existence of the seal will be presumed from the statement in the deed that the grantor did set his hand and affix his seal thereto, and from the attestation clause that it was signed, sealed, and delivered in the presence of witnesses.</p>

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

The facts sufficiently appear in the opinion. I. The owner of land upon a natural watercourse is entitled to make a reasonable use of the water for irrigation.

<p>Pjuob. Appropriation- op 'Water. — Prior appropriation gives the better right to running -waters upon the public lands, to the extent of the appropriation.</p> <p>Distinction between Running- Water and Water Percolating through the Soil. — Percolating-water existing in the earth is not governed by the same laws that pertain to running streams. No distinction exists between waters running under .the surface in defined channels and those running in distinct channels upon the surface. The distinction is made between all waters running in distinct channels, whether upon the surface or subterranean, and those oozing or percolating through the soil • in varying quantities and uncertain directions.</p> <p>Idem — Facts—Law oe Percolatin'» Waters not Applicable. — The waters of “Warm Springs,” at one time, flowed through a natural surface channel to Duckwater creek. The calcareous properties of the waters of the springs have formed a light, porous limestone by which the natural channel from the slough (near the springs) to the creek has been closed, and by some subterranean means, which are not satisfactorily established, the waters find their way to the creek. The springs are the source of the creek, and-the diversion of the water from the springs, by the defendants, appreciably diminished the volume of water naturally flowing in the creek: Held, upon the facts, that the law of percolating waters was not applicable, and that the law of appropriation must govern the case.</p> <p>Idem — Subterranean Streams. — Later appropriators can not lawfully acquire rights to the waters of the springs which constitute the source óf the creek, simply because the means by which the waters are conveyed from the springs to the creek are subterranean and not well understood.</p>

<p>Mining Ground — Discovery Interest — When one Party is Estobbed erom Denying the Interest oe Others. — G. joined with S. in claiming a discovery interest in a mining location, and afterwards recognized his claim to the mining ground, including the discovery interest, as being valid, and accepted from S., and his grantees, their proportionate share of the money expended for work and labor upon the entire claim. G. subsequently relocated the entire claim in his own name, claiming that the original location was void, because the locators were not the discoverers of the lode, and because -S. was at the time of the location an alien. ' S. became a citizen before the relocation of the claim: Held, that G. was estopped by his conduct and acts from denying the rights claimed by S. and his grantees as owners in the claim.</p>

Tbe facts are stated in tbe opinion. .1. The failure of plaintiff to make the payments at the time specified in tbe contract, is not such a violation of tbe contract as will discharge the sureties. (Brandt on Surety-ship, sees. 296, 345.) II. After tbe liens were filed in the recorder’s office, plaintiff bad tbe right under the statute to retain any sums due upon tbe contract and apply tbe same in satisfaction of tbe liens.

<p>Appeal from the District Court of the Third Judicial District, Lyon County.</p> <p>The facts are stated in the opinion.</p> <p>The points and authorities cited bj counsel appear in the opinion,</p>

I. All the essential facts must be found by a special verdict in order to enable the court to give a judgment of law upon the matter in issue. (Proffatt on Jury Trial, secs. 436, 437; Rex v. Plummer, 12 Mod. 628; Lodge v. Jennings, ■Gilbert's Eq. 255.) II. The findings do not support the judgment. Tlie issues made by the answer were material.

<p>Long-tebm County Commissionebs — Salaby oe Kegulated by Salaby Act. The compensation of county commissioners is regulated by the provisions of the salary act. (Stat. 1S79, 133.).</p> <p>Idem — Mileage.—The provision allowing mileage in the former law was intended as a part of the compensation of commissioners for their services. The language of the salary act .that the salaries fixed “ shall be in full for all services,” excludes the idea that the legislature intended to allow the former provision upon that subject to stand.</p> <p>Acceptance oe an Oeeice — Not a Contbact. — No contract is created between the government and the officer by his acceptance of the office.</p>

<p>Ejectment — Patent to Surface G-round of Mining Claim — When Non-suit Should not be Granted.— Plaintiff claimed title to a town lot ■under a patent issued for a mining claim embracing the land in controversy. The court granted a nonsuit upon the ground that it had not been alleged or proven that plaintiff required said land or-had any use for the same in the working of the mining claim: Held, that the patent made out a prima facie case for the plaintiff, an(£ that the court erred in granting a nonsuit.</p>

The facts appear in the opinion. I. In all cases where a party'has an attorney in the action or proceeding, the service of papers when required shall be on the attorney, instead of the party. (Griffith v. Gruner, 47 Cal; G44.) II. The court had before ordered tbe payment, of counsel fee generally in the case, and by such order had compensated the service and exhausted its power. (Divorce Act, sec. 27;'2 Bish. Max’, and Div. 416; Wilder. Wilde, 2 Nev. 306.) III.

<p>Fraudulent Sale— Instruction — When mat be Mislead eng. — 1The court gave an instruction correctly stating the various facts and circumstances that might be considered by the jury in determining whether the sale of personal property was fraudulent; but, after the separate statement of each fact, the court repeated the words: “And the jury are at liberty to find that the sale was fraudulent and find for the defendant: I-Ield, that by this repetition the jury may have been misled into the belief that if any of the facts mentioned as tending to prove fraud existed, they would be justified in finding a verdict for defendant independently of the other facts of the case, and that such a construction would be prejudicial to the defendant.</p>

<p>Judgment — When, and How, may be Set Aside — Jurisdiction—Statute. The maimer of vacating judgments is regulated by statute, and the statutory provisions must be complied with, in order, to authorize the court to act. The court has no jurisdiction to set aside a judgment upon a mere motion.</p>

The facts are stated in the opinion. I. The state, bj the act in question, has offered terms to the orphan asylums in this state, upon which they may receive and provide for orphans, regardless of creed or sect. Upon a compliance with those terms on the part of such asylums, and the performance of all the conditions of the act, the state obligates itself to pay the amounts specified in the act, and’has appropriated the necessary funds to make the payments.

The facts are stated in the opinion. I. Admitting that the account as stated was for a greater sum than was actually due, parol evidence was admissible to show that the settlement was not made as a final settlement, and was not so considered by the parties at the time it was made, but was approximately correct, and was to be corrected when the true balance was determined. II. Such an agreement is valid. There is neither actual nor constructive fraud in the transaction.

Refusal oí' Sheriff to Pat Monet — Section -1.Q„of “Act Relating to Sheriffs” (Stat. 1861, 104) Constrííed — Penalties.—The penalties imposed by section 10 of the “ act relating to sheriffs” was intended as a punishment for intentional wrongdoing„-aAd-.are .not to be enforced in cases of mistakes, or errors of judgment, made bjr the officer in. good faith. and his Sureties. — The sheriff and his sureties aré liable for all moneys received, by- him in his official capacity,…

The facts are stated in the opinion. I. The statute exempting “ two. horses and a wagon,” etc., is not of general and universal, but special and limited application. It does not apply to all persons, but to teamsters only; not even to all teamstdrs, but to such teamster only as habitually earns his living by using a team. (1 Comp. L. 1282, par. 6.) ' .... II.

The sureties, upon the bond sued upon, .in general terms undertook and acknowledged themselves jointly and severally bound in the full amount of the undertaking. Thereafter the following clause appears in-the bond, viz.: “And each of the sureties hereto binds.himself with his co-sureties jointly and severally that he will pay the sum as herein-agreed, to be paid by him, to wit.” Then follows the name of each surety and the amount for which he becomes bound.

The facts are stated in the opinion. 1. There is nothing conclusive or even applicable to this appeal in the former decision; as this proceeds upon a different state of facts, and is to be governed by different sections of the statute. There may be dicta in such opinion applicable to the entire statute, but .they do not constitute any portion of the law of the case.

<p>Special Law.- — (See State v. Con. Virginia M. Co., ante, 432.)</p>