Volume 17 — Nevada Reports

The specification of errors referred to in the opinion are as follows : I. Error of the court in adjudging that the claim, of title and right of possession of the plaintiffs to that portion of the mining lode, claim and. premises in controversy, described in plaintiffs’ complaint as the Uncle Sam, lying between the end lines of the Victoria patented claim of defendant, extending from the quartzite foot wall to the shale hanging wall, and lying southeasterly of the line “ E.…

Application to the chief justice to fix the amount of bond required to make the writ of error to the supreme court of the United States, from tlie judgment of tlie supreme court of tlie state, operate as a supersedeas. Tlie bond required by the chief justice was not given.

<p>Assignment of Errors — When Sufficient. — When the notice of motion for new trial specified as one of the grounds relied upon: “ That said decision, findings and decree arc against law.” and the specification of error in the statement, which would have been proper if classed under this sub-division of error, was referred to as an error “ committed by the court on the trial of the caseSold, that the specification was sufficient under proper sub-division of error.</p>

Defendant moved the court below to discharge the attachment, which had been issued in the case, upon the ground that the goods, wares and merchandise mentioned in plaintiffs complaint, and to recover the price of which this action was. brought, were sold in Carson City, Nevada, by plaintiff, F.. Mandlebaum and .Win.

The facts- are- stated in the opinion. I. It is the duty of the board of commissioners to transfer the surplus moneys remaining in the railroad interest and sinking fund of Storey county, under the provisions of the act of the legislature of the state of Nevada, approved February 14, 1879. (Stat. 1879, 35.) II.

The facts are stated in the opinion. I. The evidence is insufficient to justify the decision of the court. (Testimony reviewed.) II. The court erred in overruling the objection of defendants to the admission of the judgment roll and findings, of the jury in the case of Lee et al. v. McLeod, because it appeared upon the face of the complaint and answer in that case, that the adjudication was upon an entirely different subject.

The facts appear in the opinion. I. Under the statute (1 Comp. L. 151) the widow is entitled to one-half of the community property in her own right, absolutely independent of any attempted testamentary dispositions thereof by the husband, subject only to the payment of debts. ,i{Beard v. Knox, 5 Cal. 252; Payne v. Payne, 18 Cal. 291; Morrison v. Bowman, 29 Cal. 337; Estate of Silvey, 42 Cal. 210.) As to separate estate. (1 Comp. L. 794.) II.

<p>When Statement Must Contain the Evidence. — A judgment will not be reversed upon the ground of insufficiency of the evidence unless tlie statement purports to contain all of the evidence given at the trial.</p> <p>Erroneous Kulins in Excluding Evidence — I-Iow Cubed. — Whore the court makes an order excluding- certain testimony, and thereafter, during- the trial, the objection to the testimony is withdrawn: Held, that the error, if any, excluding the testimony, was cured by the withdrawal of the objection.</p> <p>Idem — Absence of Witness — Postponement.—If the witness whose testimony was excluded was absent when the objection was withdrawn, that fact should have been affirmatively shown by appellant. In such a case it would bo the duty of the party to ask for a postponement in order to secure the attendance of the witness before he could take advantage of the ruling of the court.</p>

The facts sufficiently appear in the opinion. I. Neither the verdict of the jury nor the judgment of the court are supported by the evidence or law in the case. (Testimony reviewed.) II. The first appropriator of the waters of a stream running through public lands has a right to the water flowing therein during the irrigating season, and it is subject to his use and enjoyment to the full extent of his original appropriation and beneficial use.

<p>Habeas Corpus — Validity of Sentence — When Immaterial. — If a prisoner is held under a legal and valid commitment, the illegality of other commitments need not be considered until his term of service under the valid commitment has expired.</p>

<p>Pailuke to Pile Bmees on Appeal. — Appellant's counsel failed to file a bz-ief within tizo time allowed by stipulation. No extension of time was asked for. Judgment affirmed without examination.</p>

The facts bearing upon .the question decided are sufficiently .•stated in the .opinion. L The statute is positive that all property not exempt may be levied upon under attachment. (Civil Pr. Act, secs. 127, 129, 219.) Under these sections a debtor can have no prop- II. E. C. Hardesty’s interest in this agreement was valuable property not exempt from execution, and could certainly be attached in some manner.

The facts are stated in the opinion. I. Under the revenue law -of this state mortgages are not taxable. Mortgages, by the express terms of the statute, axe not subject to taxation.

The facts are stated in the opinion. I. An account stated is conclusive between the parties, and can only bo impeached for fraud or mistake — something that is neither pleaded nor relied on by the defendant in this case. (Lockwood v. Thorne, 11 N. Y. 170; Branger v. Chevalier, 9 Cal. 353.) II. The persons drawing the check were trustees of the corporation.

<p>Deed Executed to Defraud Creditors — Fraudulent Grantor Cannot Take Advantage of His Own Fraud — Pleadings—Demurrer.—In an action of ejectment to recover a town lot, the defendant filed an answer alleging that he voluntarily executed and delivered the deed, upon which plaintiff relies, without consideration, for the sole purpose of hindering, delaying and defrauding his creditors; that plaintiff accepted the deed with full knowledge of the facts, and agreed, upon demand and without consideration, to reconvey the property to defendant; that defendant did not surrender the possession, and that the plaintiff has never been in the possession thereof: Held, that the averments in the answer, setting up the fraud, did not constitute any defense to the action, and that plaintiff’s demurrer to the answer was properly sustained.</p> <p>Idem — Indivisibility of Facts Alleged. — Defendant, in his answer, denied that plaintiff ivas the owner of the property; that defendant withheld the same except as the true owner thereof and as hereinafter set forth, and then “ for- other and further answer ” the facts relating to the mutual fraud are stated: Held, that the facts constituted but one transaction, and are indivisible.</p>

The facts sufficiently appear in the opinion. It is one of the oldest and most salutary rules of equity that a trustee cannot deal with the trust estate.

Tbe facts appear in tbe opinion. 1. The sections of tbe criminal practice act, irpon which petitioner relies, when read together (1 Comp. L., secs. 1904, 1906, 1914, 1916), create a clear limitation upon tbe powers of the grand jury. Taken as a whole these provisions amount to a grant of power.

The case was presented to the district court -upon the following agreed statement of facts, viz: I. The land mentioned in the complaint, as that on which the hay in question was grown and cut, is within the inclosure, a wire fence about four feet high, placed around by the plain-, tiff, which inclosure has existed around said land, together with a large quantity of other pastura,ge an#d hay land, for several years, and still is existing.

<p>Pbe-empticot Claim ITndee IT. S. Laws.—</p>

<p>When Statement ’Will be Disregarded. — A statement must specify the particulars in which the evidence is alleged to bo insufficient to sustain the findings, or it will be disregarded.</p> <p>"Water Rights. — Former Judgment. — Judgment Sustained by- Findings.— Held, upon review of facts set forth in opinion that the findings are sufficient- to sustain the judgment of costs in favor of defendant.</p> <p>Error nr Favor op Appellant. — Held, that appellant cannot complain of a ruling of the court where the error, if any, is in his favor.</p> <p>Order op Admitting Evidence — Reopening Case. — Held, that plaintiffs having- offered evidence in chief upon a certain point, should have produced all their evidence before closing their ease, and should not in rebuttal bo allowed to offer any additional testimony unless, in the discretion of the court, the case was reopened.</p>

The facts appear in the opinion. After reviewing the evidence, claim that in any view that may be taken of this case, Hill is the owner of the reservoir and the system of pipes to which we are attached, or else be is a tenant in common of the whole system with the plaintiff. In either case our right is good; for if it belongs to Hill alone, then the plaintiff has no right to claim the water after it turned into our reservoir and pipes.

<p>Sale and Delivery of Personal Property — Charcoal in Pits — Change of Possession — Sufficiency of Evidence. — R., N. & Co., being in failing circumstances, and being largely indebted to T. & Co'., executed and delivered to them a bill of sale for twelve thousand bushels of charcoal in pits situate on the land of the vendors. No attempt was made to remove the coal, but within a few days after the sale, T. & Co. sent a person to the coal pits and caused the pits to be marked with their name.' This person remained in charge of the pits for several days, and, upon his leaving, another person, who lived upon a neighboring ranch, was requested to look after the property. This person made occasional visits each day to the coal pits. The property was attached by other creditors as the property of R. N. & Co.: Held, that the evidence was sufficient to constitute a change of possession . of the property.</p> <p>Objections Must be Made in the Court Below. — The question as to alleged variance between the pleadings and the proofs must be made in the court below. It will not be considered for the first time on appeal.</p> <p>Bill of Sale Subsequent to Attachment — Not Admissible' in Evidence.— Subsequent to the levying of the attachment, and while the sheriff was holding the property under the writ, R., N. & Co. executed and delivered to the attaching creditors a bill o.f sale of the charcoal attached: Held, that this bill of sale was inadmissible in-evidence.- The justification of the creditors’ levy being based upon the ground that the property was subject to attachment, the case, upon the facts, necessarily turned upon the question whether the-property was liable to attachment.</p> <p>Instructions Assuming Eacts Should be Refused. — An instruction which assumes that an issuable fact is proven is in violation of the constitution, and should be refused:</p>

Tire facts are stated in the opinion. I. The cruelty of the plaintiff, upon which this decree is founded, is not a counter claim within the meaning of the civil practice act. (Secs. 46, 47.) II. The courts have no power to decree divorces a,t the instance of defendants. (1 Bish. on M. & D., sec. 3, et seq.} III. Marriage is a contract sui generis, and the rules of law applicable in enforcing other contracts do not apply to it. (Duntze v. Levett, 3 Eng.

<p>Appeal from the District Court of the Seventh Judicial District, Elko County.</p> <p>The facts are sufficiently stated in the opinion.</p> <p>I. Falsely is one of the most material words in our statute against forgery, but it does not appear in this indictment, nor does any word of similar meaning. An indictment under a statute must state all the circumstances which constitute the offense as set down in the act, and pursue the exact words’ of the statute or the equivalent, else it will be defective. (1 Bish. Crim. Pr., sees. 612, 613, and note; Arch. Crim. Pr. & PL, sec. 87; 1 Whar. on Crim. Law, sec. 371 a; People v. Logan, 1 Nev. 110, 115, 116; Kearney v. State, 48 Md. 16, 23; lice v. State, 23 Miss. 525; Gaddy v. State, 8 Tex. Ap. 127; State v. Gove, 34 N. H. 510; People v. Allen, 5 Denio, 79; State v. Petty, Harper, S. C., 59; State v. Casados, 1 Nott. & McC. 91; State v. Ckeatwood, 2 Hill, S. C., 459.) Forgery is “false making; a making malo animo of any written instrument for the purpose of fraud and deceit.” (1 Bish. Cr. L., sec. 572; 1 Bouv. Law Die. 514; State v. Shurtliff, 18 Me. 368; Regina v. White, 1 Den. C. C. 208, 214.) It is certainly fatal to an indictment if any essential element in the definition of the offense in the statute is omitted. The defendant must be brought within all the material words of the statute. There is a want of a direct allegation of something material in the description of the substance, nature and manner of the offense, and it cannot be supplied by any intendment or implication. An indictment drawn upon a statute for obtaining money under false pretenses, which omitted the word “ falsely” and used “ feloniously,” was held insufficient. (2 Bish. on Crim. Pro., sec. 163; Rex v. Walker, 6 Car\ & P. 657.)</p> <p>. II. The indictment was originally in two counts, viz: the forging of the word “John How” and the “uttering, publishing and passing ” of the draft. The court erred in striking out the second count of the indictment. It should have set aside the whole indictment. A material part was taken away, and it was no longer the indictment of a grand jury. (State v. Chamberlain, 6 Nev. 257.)</p> <p>III. The draft copied into the indictment purports to have been made by a corporation, but there is no allegation that such a corporation ever existed. The corporation must be averred and proved. (2 Bish. Crim. Pro., secs. 456, 457: Owen v. Si,ala, 5 Sneed, Term., 493, 495; Kennedy v. Commonwealth, 2 Met., Ky., 36, 38.) This court cannot know of the legal existence of the corporation. Evidence was required in regard to it, and therefore, upon principle, the fact should have been pleaded.</p> <p>IV. The court erred in giving the instruction relating to ■circumstantial evidence.</p> <p>I. The indictment is sufficient. The use of the word .“falsely” is not essential. The words “made, forged and counterfeited ” are sufficient. They state the acts constituting the offense in ordinary and concise language, and in such manner that the defendant could not be misled thereby.</p> <p>II. It is not necessary in an indictment for forgery to allege that the banking house issuing the draft, or upon which the same was drawn, was an incorporate company. It was not one of the issues- in the case, and if it was this court cannot say but what there was sufficient evidence introduced to satisfy the minds- of the jurors that it was an incorporated company, as there is nothing in the transcript to show what evidence was introduced in the court below. (People v. Ah Sam, 41 Cal. 645; Murry v. Commonwealth, 5 Leigh, 720.)</p> <p>III. The defendant specially demurred to the second count in the indictment, and the court sustained the demurrer, and that portion of the indictment .was thereafter disregarded. It would be similar to an indictment charging two offenses. The district attorney would be permitted to- choose upon which offense he would prosecute. If error was committed it is in favor of the defendant, and he cannot say he was injured thereby. (Sec. 2-868, Comp. L.)</p> <p>IV. There being no evidence before this court, it is fair to presume that the instructions given to the jury were applicable to the testimony given upon the trial in the court below.</p>

The rights of the shareholder in a corporation, under the articles of incoi'poration and the trust deed, never depended, and do not now depend, upon their respective necessities for the water, but each and every of said shareholders always were and now are absolutely entitled to the number of inches of water represented by their stock, at the rate of one inch to each share.

The facts are stated in the opinion. I. The records of the board does show that a complaint was made for reduction..

<p>Motion to Quash Indictment — When Should be Made — Selection of Gband Jury. — A motion to quash an indictment, because the grand jurors were not selected according to law, ought to be made before plea.</p> <p>Idem — When May be Withdrawn. — If the plea has been entered and the motion to quash thereafter made in good faith, before the trial commences, the court should allow the plea to be withdrawn, and give defendant an opportunity to be heard upon his motion.</p> <p>Idem — Challenge to Panel of Grand Jurors. — The right of challenge to the panel of the grand jurors is restricted to the three grounds enumerated in the statute (Civ. Pr. Act, 179; 1 Comp. L., 1807), and-the fact that these statutory grounds have no application to the present method of selecting a grand jury does not authorize the court to consider the motion as a challenge to the panel.</p> <p>Idem — When Indictment Will Not be Set Aside for Irregularities in the Mode of Selecting Grand Jury. — The statute requiring grand jurors to be selected from the “jury list” was not intended simply as a protection to parties who might be brought before the grand jury. When the persons selected by the proper officers were qualified jurors, whose names ought to have been on the jury list, and the selection was made without fraud or collusion, the mere failure of the officers to keep the jury list reformed does not furnish a sufficient ground to authorize the court to set aside an indictment.</p> <p>Indictment for “Assault With Intent to Kill ” Sufficient to Sustain Conviction for “An Assault With a Deadly Weabon.” — The sufficiency of an indictment must be determined with reference to the crime charged, and if the indictment is good for the crime of “ an assault with intent to kill,” it is sufficient to sustain a conviction of “ an assault with a deadly weapon, with intent to inflict a bodily injury.” The graver charge includes the less.</p> <p>Idem — Deadly Weabon Need Not be Averred. — In an indictment for an assault with intent to kill it is not necessary to allege in direct terms that the instrument used was a deadly weapon.</p> <p>Idem — Evidence.—The means of effecting the criminal intent, or the circumstances of evincing the design with which the assault was made, are matters of evidence, and need not bo set forth in the indictment.</p> <p>Idem — Doubt as to Deadly Weapon. — When there is any doubt as to whether the instrument used in committing the assault was a deadly weapon, it is a question for the court and jury to decide. ■</p> <p>Yeedict — Omission oe Woeds “With Intent” Does Not Vitiate. — The jury found defendant guilty of “ an assault with a deadly weapon, to inflict a bodily injury,” etc.: Held, that the omission of the words “ with intent,” after the word “ weapon,” did not vitiate the verdict.</p>

Judicial District, Nye County. The facts are stated in tbe opinion. I. The usual ingredients of a contract are: a consideration, parties and a subject matter. What is called the obligation óf a contract is a duty which the law imposes upon a party not to disturb any of the legal rights conferred upon the other party. The extent of the rights of one party, therefore, is the measure of the obligation of the other.

Ateeal from the District Court of the Sixth Judicial District, Eureka County. The facts sufficiently appear in the opinion. I. One of the main objects “ intended to be secured by the registration act of this state (2 Comp. Laws, 2701, 2702,' 2704, 2705, 2713 and 2714) and by sections 14 and 24 of the act “ relating to elections” (2 Comp. Laws, 2517, 2527), was the prevention of repeating.

The complaint, after alleging the making of the contract and the manufacturing of the coal, and the amount due plaintiffs for said work, labor and services, avers: “That tbe same is now due plaintiffs from defendants, no part of wbiclr lias been paid.

. The facts are stated in the opinion. I. The object of the act was to regulate, in certain counties, the number of county commissioners by the number of votes, polled at the election at which such commissioners are voted for.' II. The registration determines the maximum of votes that can be polled.

<p>Assault With Intent to Kill — Testimony Insufficient to Sustain Conviction. — A verdict in a criminal case, finding defendant guilty of an offense, cannot be sustained unless there r is some fact shown tending to establish his guilt, which is inconsistent with his innocence. Testimony reviewed and held insufficient to sustain conviction.</p>

<p>Arson — Indictment—Demurrer.—The indictment charged that on a certain day, in Verdi, Washoe county, Nevada, the defendant feloniously, wilfully and maliciously did bum and consume a certain lot of cordwood of the property of F. Kate and P. Henry, then and there being of the value of four hundred dollars: Held, that the demurrer to the indictment was properly overruled.</p> <p>Separation of Jury by Consent — Statute—Waiver.—The statute of this state provides that the jury sworn to try an indictment for felony “shall be kept together until they are finally discharged by the court.” 'At the different adjournments during the trial the counsel for the defendant and the state, in open court, consented that the jury might separate, and the defendant waived all objection to such separation: Held, that the statute (1 Comp. L. 2004) prescribes the mode of procedure, without reference to consent or waiver; that it does not prevent a waiver of its privileges, and that the separation of the jurors under the facts of this case did not invalidate the verdict.</p> <p>Affidavits Must be Embodied in Bird of Exceptions or Statement. — Affidavits, as to misconduct of jurors, not embodied in bill of exceptions, or in any properly certified statement, cannot be considered.</p> <p>Arson — Testimony of Other Fires. — P. Henry, one of the owners of the wood, was allowed to testify that he took extraordinary precaution against fire, “because of other fires,” and gave the dates of ten other fires within two months: Held, that this testimony was admissible because it tended to show that the fire charged in the indictment was not accidental, but of wilful origin.</p> <p>Idem — Conversations With Defendant. — A witness was allowed to testify to a conversation with defendant relative to previous fires, which occurred about one month previous to the fire charged in the indictment, and that defendant then said “ he did not pity Kate and Henry a bit, that they were going to build him a cabin and they ought to have a watchman:” Held, that this testimony was admissible because it tended to show a motive on the part of the defendant.</p> <p>Statements Not Justified by the Evidence — Must be Objected To. — Held, that the question whether counsel for the prosecution made statements not justified by the evidence, would not be considered, because it does -not appear that any objection was made in the court below.</p>

The facts are stated in the opinion. I. The district court 'erred in admitting the statements and declarations of Davis, the party alleged to have been assaulted. These statements and declarations are shown to have been made some time after the termination of the acts to which they refer, and after the defendant had been arrested and all action on his part ceased, and iñ his absence, and were merely narrative of a past transaction, and were merely hearsay and incompetent.

The facts are sufficiently stated in the opinion. I. It is no defense to this proceeding to say that Kirman’s term of office had expired before the proceeding was instituted, because his term of office expired at the same time when, by the commands of the statute, he should have presented the treasurer’s quarterly report for the last quarter year of the year 1880; and, under the rule laid down by this court in' Sicote v. Gracey, 11 Nev. 223, the petition for a writ of…

The facts are stated in the opinion. By a fair construction o-f these sections (2 Comp. L. 3130, 3132-3), it would seem that if a resident of Eureka county should permit his property to remain in the county of White Pine, between the first Monday in April and the first Monday of September, the assessing season, that the tax thereon for such year would rightfully belong to White Pine county.

<p>Statement — Manner of Inserting Testimony — Use of Word “Proved:”— Instead of setting out the testimony of witnesses the language of the statement is that the plaintiff, to support the issues upon his part, proved certain stated facts, and the defendant proved, etc.: Held, that, as neither party made any effort to contradict the other upon questions of fact, the contest being upon questions of law alone, it was entirely proper to use the form of expression adopted in the statement.</p> <p>Chattel Mortgage — Possession and Delivery of Cord Wood — Statute of Frauds — M. made and delivered to W. a chattel mortgage of three hundred and twenty-four cords of wood, situate upon the roadside without any inclosure. They went to the place where the wood was piled, and M. said to W.: “There is the wood. I deliver it to you as security for the money loaned.” The wood was not marked. No person was put in charge. Once each day, for a week after the mortgage, W. went to the place where the wood was piled to see that it was not interfered with, and thereafter went from one to three times a week, when the property was: attached as the property of if.: Held, that the delivery and possession was not sufficient to comply with the statute (1 Comp. L., 292, 294.)</p>

The facts are stated in the opinion. I. The action is for the wrongful conversion by the Manhattan company of an eight thousand dollar check, two thousand dollars whereof was plaintiff’s money. Plaintiff’s title and notice to defendant are undisputed. Also, the contract under which the check was deposited with the treasurer.

<p>New Trial — Accident and Surprise — Neglect oe Attorney — Affidavit— When Insufficient — Probative Pacts. — The defendants, on motion for new trial, presented their affidavits to the effect that they had retained an attorney and had reason to believe and did believe that he would attend to then- case and hence they did not give the case their personal attention. The affidavits only stated the ultimate fact: Held, that the affidavits were insufficient to authorize the court to grant a new trial; that defendants should have stated the probative facts upon which their belief was based, so as to enable the court to determine the existence of the ultimate fact.</p> <p>Continuance — Power to Impose Conditions Other Than'Payment of Costs.— The court, upon the application of defendants, made an order continuing the cause upon condition that defendants pay certain costs, and if such costs were not paid within a stated time, that the answers of the defendants should be stricken from the records without the right to defend the action. The continuance was accepted upon the terms imposed. The costs were not paid. The answers were then stricken out and judgment, after hearing upon part of plaintiff, rendered for plaintiff: Held, that the court had authority to impose the conditions and enforce the same by rendering-judgment for plaintiffs.</p>

<p>City Jailer — Commissioners Cannot Appoint — Statutes Construed. — In construing the statute disincorporating the city of Virginia (Stat. 1881, 79) and the consolidation act (Stat. 1881, 68): Held, that the office of city jailer was abolished and that the board of county commissioners have no authority to create the office.</p>

. Appeal from the District Court of the Fourth Judicial District, Humboldt County. The facts are stated in the opinion.

<p>Attachment — Must be Sebved by Shebiff of County Whebe Pbopebty is Situated — Exceptions.—Under the statutes of this state an attachment must he served hy the sheriff of the county where the property is situated, except in cases where one county is attached to another for judicial purposes.</p> <p>Idem — Counties Attached fob JudiciauPueposes. — A county is not “ attached ” to another county for judicial purposes simply because it and another county, or counties, form one judicial district. To he so “attached” both counties must, under the law, he treated as one county in all matters pertaining to the courts. ’</p>

<p>Criminal Law — Instructions—Justifiable Homicide — Unlawful Act.— The court was requested to give an instruction, that if the jury should find certain facts, then the defendant was justified unless the danger to him was brought about by himself, in “ doing, or attempting to do, an unlawful act, amounting to a felony.” The court struck out the words quoted, and inserted “ unlawful shooting, or attempting- to shoot, said Kicard with a deadly weapon:” Held, upon review of the evidence, that if defendant did, or attempted to do, any unlawful act amounting to a felony, it was in shooting, or attempting to shoot, Kicard; and that the court had the right, in its instructions, to specify the acts which would, if found true, deprive defendant of the justification claimed.</p> <p>Idem — Province of Instructions. — The province of instructions from the court is to inform the jury what the law is, connected with the case in hand, and show them how to apply it to the particular facts involved.</p> <p>Idem — Property Unlawfully Detained. — The court instructed the jury: “ The law provides a remedy to a person if his property is unlawfully detained by another, and does not justify such person in assaulting the person or persons detaining it, in order to recover it:” Held, correct, and applicable to the evidence.</p> <p>Idem — When Court Should Give Instructions. — Where evidence is offered to prove a certain state of facts, and the claim is made that they are proved, the court should, if requested so to do, charge the jury what the law is as applicable to the facts claimed to he proved.</p> <p>Idem — Possession of Property Immaterial — Manslaughter.—In reviewing an instruction: Held, that it mattered not which of the parties owned the ore, or was in possession of it, lawfully or unlawfully, since the verdict was manslaughter only; that in any event the defendant was guilty of that unless, without his own fault, he had reason to believe, and did believe, as a reasonable man, at the time of the fatal shot, that he was in serious danger of receiving great bodily injury or of losing his life at the hands of Kicard.</p> <p>Deadly Weapon — When Question of Law. — When the character of a weapon is not doubtful and does not depend upon its use, as, for instance, a loaded pistol, the court has the right to declare it a deadly weapon.</p> <p>Instructions — Assumptions of Pact — Assault—The court, in an instruction, used the following language: “If you believe ® ® * that after Rieard had resisted the assault of said defendant, and by the assistance of one Bizans, taken away the pistol from defendant,” etc.: Held, upon reviewing the entire instruction, that the jury could not have understood the court to assume, as a fact, that the defendant first assaulted Rieard, or assaulted him at all.</p> <p>Idem — Good Character. — The court, of its own motion, instructed the jury: “ If you believe from the evidence that the defendant is guilty, then if the defendant has proved a previous good character for peace and quietness, such good character would be of no avail to him, and would not authorize an acquittal:” Held, not erroneous, and not in conflict with the instructions given at request of defendant.</p> <p>Idem — Testimohy oe Good Character. — Testimony as to the previous good character of a defendant is admissible in evidence and should always be considered by the jury in connection with all the other facts and circumstances ; but if the jury believe from the evidence that the defendant is guilty, they must so find notwithstanding his good character.</p>

The facts appear in the opinion. I. The surviving partner is entitled to the possession of the copartnership property as against all others for the purpose of paying the debts by sale of the copartnership property, and finally closing the copartnership business. (1 Comp. L. 680; 3 Kent, 37, 74, 75; Colly, on Part., sec. 129; Murray v. Mumford, 6 Cow. 441; Story on Part., sec. 346; 3 Kent’s Com. 37; Burnside v. Merrick, 4 Met. 540.) II.

The facts are stated in the opinion. I. The plaintiff in this case must recover, upon the strength of his own title, as in ejectment or trespass. If the plaintiff has neither title nor right- of possession, he cannot maintain an action to quiet the title, nor to remove a cloud therefrom. It is a legal impossibility to quiet a title or to remove a cloud from a title which has no existence.