Volume 19 — Nevada Reports

The facts are stated in the opinion. I. The complaint contains “ a statement of the facts constituting the cause of action in ordinary and concise language,” and is in all respects sufficient. (1 Comp. L. 39; 2 Comp. L. 2917, 2921, 2980; Mendocino Co. v. Morris, 32 Cal. 145.) II. The specifications or particular reasons named in the first ground of demurrer are not conditions precedent; neither would they constitute matters of defense.

<p>Sale and Delivery oe Personal Proeerty. — In the sale of a wood and coal ranch with the wood chopped, and coal burned, thereon, where there are no words or acts of delivery, and no possession taken of the personal property except the receipt of a bill of sale: Held, that a delivery of the bill of sale was not even a symbolical delivery of the jiersonal property described therein.</p> <p>Idem — Discharge oe Workmen — Declarations oe Vendor. — The vendor’s discharge of his workmen, and departure from the ranch, coupled with the declaration that he left the vendee in possession of everything, was not sufficient to constitute a delivery of the wood and coal.</p> <p>Idem — Praud against Creditors. — Every sale by a vendor of personal property in his possession, or under his control, unless the same is accompanied by an immediate delivery and continued change of possession, is, under the statutes of this state, conclusive evidence of fraud, as against the creditors of the vendor.</p> <p>Idem- — Constructive Possession of Ranch. —The bill of sale did not convey the vendor’s title to the ranch, and as there was no proof that the ranch was inclosed, or had any established boundaries, the vendee did not have any constructive possession of any x>ortion thereof.</p> <p>Idem — When Nonsuit should be Granted. — Upon a review of all the facts: Held, that the vendee had neither actual nor constructive possession of any part of the ranch (except a cabin thereon), or of the wood and coal, and that the motion for a nonsuit should have been granted.</p>

Quo warranto to determine respondent's right to hold the office of county assessor of Washoe County under the provisions of the act making the county treasurer of Washoe County ex officio the assessor. (Stat. 1883, 73.)

The instructions referred to in the opinion read as follows: “The jury are instructed that if a person exposes or places poison in such a position that it is likely to be unconsciously or non-negligently taken by another person, either as food or drink, he or she is liable for the consequences. And you are further instructed that if a person, in attempting to commit suicide, unlawfully kills another, such person is guilty of manslaughter.

The facts are stated in the opinion. I. Plaintiff can have no relief not warranted by the pleadings. (1 Comp. Laws, 1211; Marshall v. Golden Fleece, 16 Nev. 156, 173, 174; Martin v. Mátfield, 4¿ Cal. 44; Bliss on Code PL, see. 164; Corry v. Gaynor, 21 Oh. St. 277; Swan v. Smith, 13 Nev. 260.) He must recover according to the case made by the complaint, or not at all. The proofs must correspond- with the pleadings. No recovery can be had upon the proofs alone. II.

The facts are sufficiently stated in the opinion. I. Irrigation in this state is a necessity to the cultivation of the soil, and therefore a right incident to the ownership and cultivation of land. If the owner of the land has the right to cultivate it, he has the right to do that -yrhich is indispensable to irrigation, to wit, irrigate. (Barnes v. Sabron, 10 Nev. 243; Union M. & M. Co. v. Ferris, 2 Saw. 191.) II.

The facts are stated in the opinion. I. Every riparian owner is entitled to a stream of water flowing through his land, without diminution or alteration. (Ang. on Wat. C., secs. 95, 120, 121, 123, 129, and notes; Godd. on Ease. 56; Wash, on Ease. 231; Phear on Water Rights, 24; Ingraham, v. Hutchinson, 2 Conn. 584; Dickinson v. Grand Junction O. Co., 7 Exch. 282, 292, 300; Chasemore v. Richards, 7 H. L. Cas. 349.) II.

The facts are stated in the opinion. I. The judgment cannot be entered until the written findings of fact and conclusions of law are filed in the cause. (Russell v. Armador, 2 Cal. 305; Polhemus v. Carpenter, 42 Cal. 382; Mulcahy v. Glazier, 51 Cal. 626; People v. Forbes, 51 Cal. 628; Smith v. Lawrence, 53 Cal. 34; James v. Williams, 31 Cal. 211; Hidden v. Jordan, 28 Cal. 301; Lucas v. San Francisco, 28 Cal. 591; Lyon v. Leimback, 29 Cal. 139.) II.

Judicial District, Eureka County. The facts are stated in the opinion. I. There is no contract, express or implied, between plaintiff ¿and defendant; neither is there any privity of contract. The general rule of law is, that there must be a privity of contract between plaintiff and defendant in order to render the defendant liable in an action by the plaintiff on the contract.

The facts are sufficiently stated in the opinion. I. This action cannot be maintained by Thompson alone without uniting the other creditors of the bank. (Barb, on Par. 431, 453; Sto. Eq.

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

The facts are stated in the opinion. I. If respondent ever had any cause of action against appellant, the same is barred. (Stat. 1861, 26, 40; 1867, 85.) II. Respondent was bound to arbitrate, or to seek to arbitrate, before bringing suit. (Contract, article 15; 1 Comp. L. 1426; President v. Penn. C. Co., 50 N. Y. 250; Holmes v. Richet, 56 Cal. 307j1 Old Saucelito L.&D. Co.v. Commercial U.A. Co., 66 Cal. 253.) III.

The facts are stated in the opinion. There is not any contract or privity of contract in this action to entitle plaintiff to recover. The complaint or testimony does not bring plaintiff within any of the exceptions of the general rule stated in the authorities.

The facts are sufficiently stated in the opinion and head-notes. I. The court erred in instructing the jury that the good character of defendant could only be considered when the jury had a reasonable doubt of his guilt. (Field v. Columbet, 4 Saw. 523; People v. Ashe, 44 Cal. 292; People -v.Lamb, 2 Keyes, 378; Fields v. State, 47 Ala. 603j1 Ros. Cr. Ev. 97; 1 Greenl. Ev. 74.) II. The court erred in giving the fourth instruction.

The facts are stated in the opinion. I. Jurisdiction in probate matters is conferred by statute, and is special and limited, and will not be presumed. (Grimes’s Estate v. Norris, 6 Cal. 621;1Smith v. Andrews, 6 Cal. 652; Clarice v. Perry, 5 Cal. 58;2 Deck v. Gerke, 12 Cal. 436;3 Town-sender. Gordon, 19 Cal. 205; .1 Comp. L. 538.) II, Administration is not.a matter of absolute right or public necessity.

The facts are stated in the opinion. I. It cannot be inferred that a livery stable-keeper, so different and distinct in business and occupation from the classes specified in the statute, was intended to be covered by the general words, “or other laborer.” (City of St. Louis v. Laughlin, 49 Mo. 562; Grumley v. Webb, 44 Mo. 444; Sedg. on Stat. and Cons. 360, note a; State v. McGarry, 21 Wis. 496; White v. Ivey, 34 Ga. 198; Brusie v. Griffith, 34 Cal. 307j1 U. S. v. Irwin, 5…

The facts are stated in the opinion. I. 2 Comp. Laws, 2917,2920, and 2980, contain all the provisions relating to the bonds of county treasurers, and these, together with 2981, 2986, and 2991, contain the provisions relating to the treasurer’s duties with respect to the public money. For the performance of these duties, the treasurer is paid a salary. He is simply the custodian of the money.

The facts are sufficiently stated in the opinion. I. The law requires the plaintiff in actions of this character to make substantial efforts to obtain corporate action, before he is entitled to proceed himself against both the corporation and its assumed debtor, and thus control the litigation. (Newby v. Oregon C. R. R., 1 Saw. 63; Memphis v. Dean, 8 Wall. 64; Hawes v. Oakland, 14 Otto, 450; Huntington v. Palmer, Id. 482; Dannmeyer v. Ooleman, 8 Saw. 51; Pom. Eq.

<p>Appeal from the District Court of the Second Judicial District, Ormsby County.</p> <p>The facts are sufficiently stated in the opinion.</p> <p>I. The statement was filed in time. (1 Comp. L.1391,1393; Connor v. Morris, 23 Cal. 447; New v. Barber, 2 Cow. 408;1 Witbeck v. Whine, 8 How. Pr. 433; Strong v. Hardenburgh, 25 How. Pr. 438; Warren v. Eddy, 13 Abb. Pr. 28; State v. Judge, 11 La. Ann. 728.)</p> <p>II. The court erred in refusing James permission to bring in Kirman as a defendant. (Tonnelle v. Hall, 3 Abb. Pr.-205; Davis v. Mayor, 2 Duer, 663; Johnston v. Neville, 68 N. O. 177; Polk v. Coffin, 9 Cal. 56; Dixon v. Dixon, 19 Iowa, 512; Beals v. Cobb, 51 Me. 348; Setiembre v. Putnam, 30 Cal. 490; Grain v. Aldrich, 38 Cal. 514;2 Sturtevant v. Brewer, 17 How. Pr. 571.)</p> <p>I. The statute contemplates that the preparation, filing, and settlement of the statement shall precede the appeal.</p> <p>III. After the complaint was amended and verified.and filed, it took the place of all preceding complaints, and became the complaint in the action, and the defendant’s .right to demur thereto for any valid reason is undeniable. (Gilman v. Cos-grove, 22 Cal. 356; Jones v. Frost, 28 Id. 246; Barber v. Reynolds, 33 Id. 497; Elder v. Spinks, 53 Id. 293; Kelly v. Mc-Kibben, 54 Id. 193; Kentjieldv. Hayes, 57 Id. 411; Thompson v. Johnson, 60 Id. 292; McFadden v. Ellsworth M. & M. Co., 8 Nev. 57.)</p> <p>IV. The dismissal of Kirman was fatal to plaintiff’s case. {Cal. State T. C. v. Patterson, 1 Nev. 150;, Merritt v. Campbell, 47 Cal. 542.)</p>

The'conspiracy charged against petitioner and others was for conspiring, combining, and uniting together, to compel the mine-owners to pay a certain stipulated price per day to all laborers, and to prevent other persons from working for a less sum, and compelling others by threats and intimidation to quit work.

The facts are stated in the opinion. I. The burden of proof of ratification, and all its essentials, rests on the plaintiff. (Clarice v. Lyon Co., 7 Nev. 76.) The person ratifying must be cognizant of the facts. (Whar. on Ag., sec. 65.) Rhodes, as mining superintendent, had no authority to borrow, or to authorize any one else to do so, and therefore could not, by virtue of his position, ratify such an act.

<p>Execotion Sale — Juugment on Appeal — Setting Sale A side. — It is only in cases where the judgment is reversed, or so far modified as to make it inequitable to allow the sale to stand, thata court would he authorized to set aside an execution sale.</p>

<p>School Trustees — Oath oe Oeeice-=Who may Administer. — A judge of an election is not authorized to administer the oath of office to a school trustee under the statute. The only oath a judge is authorized to administer is the oath to a voter when challenged.</p> <p>Quo Warranto — Collateral Questions. — In proceedings to determine the right of persons to hold the office of school trustees: Held, that the question of the qualification of the superintendent of schools cannot be inquired into; that it was enough to show that he had been elected, entered upon, and exercised the duties of his office.</p> <p>Official Oath — Indorsement oe on Cebtieicate. — -An official oath attached to a certificate of appointment, or indorsed upon the face thereof, is as valid as if indorsed upon the hack of the certificate.</p>

The facts are sufficiently stated in the opinion. I. Respondent cannot keep tbe office of ex officio state librarian and neglect to give a bond. (Hinze v. People, 92 Ills. 406; Attorney General v. Squires, 14 Cal. 12.) II. The failure of an officer to give a bond, required by statute, creates a vacancy in office which may be filled by appointment. (2 Comp. Laws, 2633, 2931; People v. Taylor, 57 Cal. 620; State v. Beard, 34 La-.

The facts are sufficiently stated in the opinion. I. The court erred in denying the motion for a change of venue. (Crim. Pr. Act, secs. 306-8; People v. Lee, 5 Cal. 353; People v. Yoakum, 53 Cal. 566; People v. Bodine, 7 Hill, 147; People v. Webb, 1 Hill, 179; People v. Baker, 3 Abb. Pr. 42; State v. Millain, 3 Nev. 409.) II. The court erred in denying defendant’s challenge to the panel of jurors brought in on the open venire.

The last subdivision of section 2 (Stat. 1885, 111) creates terms of five years for school trustees, and is, therefore, unconstitutional, and as there is no way by which this part of the section can be segregated and nullified without leaving the act partial and incomplete, we claim that all the provisions in relation to the election of school trustees are void. (Sedg. Const. Law, 413-4, and note a; Cooley Const.

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

<p>Criminal Law — Continuance—Absence of Witness — Affidavit.—An. affidavit for continuance, on the ground of the absence of a witness, is fatally defective, when it fails to show that there are not other persons by whom the defendant could prove the same facts that he expected to prove by the absent witness.</p>

<p>Executor oe Estate — Final Account — Order to Pay Money to County Treasurer — Void.—Where an executor files his final account, an order of the court directing him to pay over money in his hands to the county treasurer, to be placed to the credit of the heirs and devisees of the testator, and to bo paid to such heirs and- devisees on the order of the court after proof of identity, is void.</p>

The facts are sufficiently stated in the opinion. I. Plaintiff’s failure to make any effort to induce action by the bank corporation to collect the unpaid subscription is fatal to his right of recovery in this action. II.

Appllication for mandamus. The facts are stated in the opinion. I. The statute of 1885 is unconstitutional and void. (Jones v. jKeep, 19.Wis. 379; Const., art. 4, secs. 20, 21.) II. The act of 1885 is a law upon the subject of assessment and collection of taxes, and is not of uniform operation in any sense. It is repugnant to section 17, article 4, of the constitution. III. The law is repugnant to the proviso of section 9, article 15, of the constitution.

The facts are stated in the opinion. I. Plaintiffs’ title was one which is recognized by the courts and which is protected by our statute. (People v. Shearer, 30 Cal. 657; Moon v. Rollins, 36 Cal. 333;1 Bush y. Marshal, 6 How. 288; Sparrow v. Strong, 3 Wall. 104; Lamb v. Davenport, 1 Saw. 622; Courtney v. Turner, 12 Nev. 348; Atherton v. Fowler, 96 U. S. 513; Nickals v. Winn, 17 Nev. 194; 1 Comp.

The facts are stated in the opinion. I. An estoppel, by judgment or otherwise, to be available in an action, must be pleaded, and by failure to plead any estoppel plaintiff waived it, and it was error to admit the judgment roll in evidence against the objection of defendant for any purpose of estoppel.

The facts are- stated in the opinion. The court erred in assuming questions of fact as to the acts and testimony of defendant. (Hayne on N. T. 341, sec. 121, subd. 4.) The instructions of the court as to the weight to be given to the testimony of defendant may be open to criticism, but there is no assumption of disputed facts. The taking was admitted, and the language objected to can scarcely be deemed error.

The facts are stated in the opinion. I. On the 22d of March, 1884,. the court made and entered its judgment in Thompson v. Reno Savings Bank and G. W. Huffaker, in favor of Thompson and against Huffaker, for the amount claimed in his complaint; and ordered and adjudged that the appellant’s complaint in intervention be allowed to stand as a claim against the defendant Huffaker, and against any fund realized in the action, and that it be allowed to participate in the judgment…

<p>Appeal — Authentication op Papers — Certificate of Clerk. —In the authentication of papers to he used upon appeal, the policy of the statute is to restrict the authority of the clerk to the reeord of the case.</p> <p>Idem — Presumption — Evidence. — When the motion upon which an order was passed was one that could be made or opposed on other evidence than the records of the case, the fact cannot be established by the certificate of the clerk, and it must be presumed, in the absence of an affirmative showing to the contrary, that evidence necessary to support the order was introduced at the hearing.</p>

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

The instruction referred to in the opinion of the court as being on page 63 of the transcript reads as follows: “In the exercise of a right which the law accords to him, the defendant has testified as a witness in his own behalf, and gives you his version of the facts connected with the transaction out of which this prosecution arose.

<p>Appeal from the District Court of the Sixth Judicial District, Eureka County.</p>

The facts stated in the opinion. I. The rule that the acts of de facto officers are good and binding acts in law, so far as the public and third parties are concerned, is well settled. The following authorities bear more or less directly upon the facts and points of this case, to the effect that the peremtory writ of mandamus ought to issue: St. Luke’s Church v. Mathews, 4 Des. 578; 6 Am.

The facts are stated in the opinion. I. The court erred in instructing the jury that what was said in relation to the brands and marks of Vail Bros., not being recorded, was immaterial in this case. Until the act of 1885 was passed, the evidence in this case-to show that Vail Bros, were the owners of these cattle was not even prima facie evidence of ownership, much less proof beyond any reasonable doubt, as was necessary to authorize defendant’s conviction. (Comp.

<p>New Trial — Notice of Intention. — In a ease tried without a jury, the de-:cisión of the court is distinct from the findings, and the time within which-notice of intention to move for a new trial must be given begins to run from the announcement of the judgment.</p> <p>Idem — Statement—When It must be Disregarded. — 'When the statement on motion for a new trial has not been served or filed within the time required by statute, or within the time specified by stipulation, it must-be disregarded.</p> <p>Statement on Motion for New Trial not Effective as Statement on Appeal. — A statement which has been prepared exclusively as a statement on motion for a new trial cannot be considered as a statement on-appeal from the judgment.</p>

The facts are stated in the opinion. I. The act of 1885 is unconstitutional and void, by reason of its title not complying, with the requirements of section 17, article 4, of the constitution. (State v. Silver, 9 Nev. 227; State v. Ah Sam, 15 Nev. 30;1 Sun Mutual Ins.

<p>Trial Jurors — Compensation in Criminal Cases — Statute Construed.— Under the provisions of the act of 1885 (Stat. 1885, 25, sec. 9), trial jurors in the regular panel are entitled to receive from the county mileage, and, in addition, per diem, when accepted and sworn in criminal eases. These fees, together with those received in civil cases, constitute their entire compensation for attendance, travel, and services rendered.</p>

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

<p>Watercourses — abandonment op Water — Water Rights. — Where water from a flume — used for floating wood — has been-discharged into a natural channel, as a matter of convenience, and for the purpose of getting rid of the water, without any intention to reclaim it, it becomes a part of the waters of the natural channel, and is subject to the same rights as the water naturally flowing therein.</p> <p>Error — When does not Justify Reversal. — An error in the decree of the court which works no injury to the losing party does not authorize a reversal of the judgment.</p>

<p>Judges — Disqualification—Acts Void. — Acts of a judge, involving the exercise of judicial discretion, in a case where he is disqualified, from acting, are not voidable only, but void.</p> <p>Idem — NewTbial.—A judge who is disqualified from hearing a case cannot extend the time within which to file a statement on motion for a new trial.</p>

<p>Appeal from the District Court of the Seventh Judicial District, Washoe County.</p>

<p>Criminal Law — Misconduct of Jury — Affidavit of Juror Inadmissible. —The affidavit of a juror is not, as a general rule, admissible to show misconduct on the part of another juror.</p> <p>Challenge to Jurors for Implied Bias not Subject to Review. — The action of the court in allowing a challenge for implied bias is not subject to review. State v. Larkin, 11 Nev. 325, affirmed.</p>

<p>Appeal from the District -Court of the Second Judicial District, Ormsby County.</p>

<p>Manda sins — State Ojtioers — Salary—Appropriation-tor Two Offices in Solido. — Where a sum has been appropriated by the-state legislature providing for the payment to the lieutenant-governor of a salary in solido as ex officio adjutant-general and ex officio state librarian, and another is appointed, the state controller is justified in refusing to audit a compensation allowed such substituted official by the board of examiners, as the appropriation has become inoperative.</p>

<p>Water Ditch — Damages —Injunction—When should be Refused— Where, in an action to recover damages and to enjoin defendant from maintaining a ditch upon plaintiff’s land, it appears that the land was of little value; that the injury to the land was not real; that the damages were merely nominal; that defendant was not insolvent, and that plaintiff’s remedy at law was adequate: Held, that the court did not err in refusing to grant an injunction.</p>

The facts are stated in the opinion. The judgment offered from White Pine County was not a final judgment, and did not constitute a bar, but was immaterial and irrelevant in evidence. (Freem.

<p>Salaries oe State Oeeioees — Title oe Act — Amended Statute — Unconstitutional. — “The act to amend an act reducing and regulating the salaries and compensation of certain state officers, justices of the supreme court, and attaches of the state government” (Stat. 18S5, 99) is in violation of the provisions of the constitution requiring that each law shall embrace but one subject, which shall be briefly expressed in the title (art. 4, sec. 17), and is absolutely null and void.</p>

<p>Constitution — Amendment—Entey on Jouknals of Legislature. — An amendment was proposed to the constitution of Nevada, authorizing the investment of moneys pledged to educational purposes in the bonds of any of the states of the United States, but no entry of the same was made upon the journal of either house of the legislature: Held, that this omission was fatal to the adoption of the amendment.</p>

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

<p>Bond to Stay Execution — Approval, of: — The' district judge of the, district where the cause was tried — unless disqualified — may approve tlie' undertaking to stay execution, notwithstanding the fact that the cas? was tried before another judge.</p> <p>Judgment- -Complaint — Variance — Frivolous Objections. — An objeotion to the admission of a judgment roll in evidence, on the ground of variance between the averments of the complaint and the judgment roll, where one named the amount of the judgment and costs in solido and the other stated the amounts separately, is frivolous.</p> <p>Undertaking — “ Good and Sueetcient.” — Appellants, in order to procure a stay of execution on a judgment for seven hundred and seventy-eight dollars, pending a motion for a new trial, gave an undertaking conditioned — among other things — that if the new trial was denied, the principal should give a good and sufficient undertaking on appeal: Held, that an undertaking on appeal, given by the principal, in the sum of three hundred dollars, was not a “good and sufficient undertaking” within the contemplation of the provisions of the previous undertaking.</p>

The facts are stated in the opinion, with the exception of the question raised as to the statement on appeal, and this is embodied in the first head-note. I. The court erred in excluding the evidence of plaintiff as to his actual occupation and possession of the locus in quo. Actual possession is prima facie evidence of title, and, even if wrongful, is sufficient to base an action upon as against a naked trespasser, and no rights are claimed by defendants in their answer.

I. Section 4, stat. 1877, 142, under which the commissioners proceeded, makes no provision for the payment of compensation to the owner, and is therefore unconstitutional. (Const., art. 1, sec. 8; Cooley, Cons. Lim. 699; Curran v. Shattuch, 24 Cal. 427; Bensley v. Mountain L. W. Co., 13 Cal. 306;1 Trumpler v. Bemerly, 39 Cal. 491.) II. ' The section is also unconstitutional in omitting to provide for notice to the owner of the property.

I. A party has the right to have the jury instructed as to the law applicable to a state of facts which he claims to exist. {Moresi v. Swift, 15 Nev. 215; State v. Levigne, 17 Nev. 435; Davis v. Russell, 52 Cal. 611.1) II. The instruction refused stated the law of the case. The evidence submitted to the jury established the fact that there was no contract, express or implied, between the parties. There was no element of a contract.

<p>Appeal from the District Court of the Sixth Judicial District, Eureka County.</p>

<p>Undertaking — State Officers — Individuals—No Privitt. — An injunction suit was prosecuted for the purpose of restraining the present plaintiffs, as state officers, from exercising the authority, given by the statute, for the construction of an insane asylum. The present action is brought to recover the amount of the undertaking in the injunction suit from the sureties thereon — by the plaintiffs as individuals, and not in their official capacity as state officers: Held, that there is no privity between plaintiffs as individuals, and the sureties on the undertaking, and that no recovery can be had in the present action.</p>

The facts are stated in the opinion. I. Nevada drummer law is unconstitutional. (Robbins v. Taxing District, 120 U. S. 489; Corson v. Maryland, 120 U. S. 502; Fargo v. Michigan, 121 U. S. 230.) ■ II. The unconstitutionally of an act, under which a party is convicted, renders the judgment a nullity, and may be inquired into upon habeas corpus.

<p>Change oe Venue — Demand eor. — Defendants, residents of Eureka County, were sued, in an action for debt, in Lincoln County: Held, that the court had no authority to change the venue, because no demand in writing was made therefor, as contemplated by section 3043, Gen. Stat.</p>