Volume 20 — Nevada Reports

The court gave judgment in favor of appellant for ninety seven dollars. It arrived at this result by allowing for fifty-seven days’ services as jailer at four dollars per day and deducting therefrom an offset of one hundred and thirty-one dollars. Judgment was rendered in favor of respondent for costs taxed at $96.27. I. The judgment being unsupported by the evidence and being rendered upon a total misapprehension of the law, a new trial should- have been granted.

I. The register, when acting on applications to purchase land of the character set forth in petition, acts judicially — with judgment and discretion. (Litchfield v. Register and Receiver, 9 Wall. 577; Gaines v. Thompson, 7 Wall. 347; U. S. v. Seaman, 17 How. 225; U. S. v. Guthrie, 17 How. 284; IT. S. v. Commissioner of Land Office, 5 Wall. 563:) II. Neither occupancy or possession of the premises, nor any part thereof is shown by the affidavit.

<p>Application for mandamus.</p>

The facts sufficiently appear in the opinion. I. The court erred in allowing the plaintiffs to amend their statement on motion for a new trial after the time had expired to make the same. (Hutton v. Reed, 25 Oal. 483; Barrett v. Tewksbury, 15 Oal. 354; Haggin v. Clark, 28 Oal. 163; Partridge v. San Francisco, 27 Oal. 416; Ferrer v. Home M. Ins.

Appeal — Absence oe Statement. — Where the statement on .motion for new trial contains no specifications of error, as required by Civ. Pr. Act, See. 197, there is virtually no statement before the appellate court, and as no error appears in the judgment roll, the judgment and order of the trial court, denying a new trial, should be affirmed. Appeal from the District Court of the Sixth Judicial District, Eureka county.

Richard Rising, District Judge. The facts are stated in the opinion. I. Proceedings in insolvency are not stricti juris, either proceedings at law or in equity, but special proceedings, a new remedy created by statute, the administration of which is vested in the courts independent of their common law or chancery powers. In such proceedings the court must pursue the statute strictly, and its jurisdiction must clearly and affirmatively appear.

I. Section two of the act of 1887 does not apply to any member of the Emmett Guard except Rourke. All the others became members before the approval of the act, and the section in plain terms only requires persons on becoming members to take the oath. II. Section two does not impose any punishment or penalty for failure to take the oath, and the legislature did not intend any punishment, as they did not fix any. (Sedg. Const. Law, 287; Maxwell v. State, ex rel.

The facts are stated in the opinion of the Court. I. No fraud was pleaded. The mere recital of the statute of frauds is insufficient to justify the introduction of evidence as a predicate of fraud.

<p>Appeal — Foe. Delay — When .Judsment will be Affirmed. — On appeal, when there is no assignment of errors and no appearance by either party, and it is evident that the appeal was taken merely for delay, the .judgment of the lower court will be affirmed.</p>

The facts appear in the opinion and briefs of counsel. On motion to dismiss appeal, on the ground that no record has been filed which entitles appellant to be heard upon the merits. I. The papers contained iir the so-called transcript are not properly authenticated, and should be disregarded. They are not “ certified copies.” The statute clearly contemplates that each paper shall be duly certified. (Gen. Stat. 3362.) II.

<p>General Appropriation Acts, Construed — Dutx op State Controller — Mandamus Denied. — The general appropriation acts passed at each biennial session of the legislature are confined to the purpose of carrying on the state government for two years, and are limited to that time, and to the liabilities incurred during these years. The unexpended balances against which no warrauts have been drawn are considered as having lapsed and are carried to the general fund of the treasury. Held, that the controller properly refused to settle a liability incurred during the twenty-second fiscal year from a fund appropriated for the support of the government during the twenty-third and twenty-fourth fiscal years. Mandcmus denied.</p>

The facts are stated in the opinion. I. The provision, in section 7, “ that in any county in which at the general election next preceding the time of application, were polled less than fifteen hundred votes, or in any county created after said general election,” is both local and special legislation, and is prohibited by sections 20 and 21, Art. IY, of the constitution.

The. facts are stated in the opinion. Brief, reviews the evidence in the case and discusses the appeal upon its merits. Discussed the case upon its merits and also contended that the appeal being from the judgment alone could not be considered for any purpose except to determine whether the judgment is supported by the findings of facts.

<p>Appeal from the District Court of the State of Nevada, Eureka County.</p> <p>A. L. Fitzgerald, District Judge.</p>

A. L. Fitzgerald, District Judge. ■ The facts are sufficiently stated in the opinion. I. The plaintiff’s motion for judgment should have been denied for laches, negligence and inexcusable delay. The principle of law is universal that all rights of action may be lost by a lack of diligence in asserting them. The case at bar is one of the most proper cases for the application of the doctrine which could possibly arise.

Richard Rising, District Judge. The facts are stated in the opinion. t I. The court erred in sustaining objections to the questions propounded to the prosecutrix relative to her previous acts of unchastity with other persons. The questions were proper as reflecting upon her consent. Proof of actual lewdness is better and more satisfactory evidence than proof of general reputation. (Benstine v. State, 2 Lea, 168; 31 Am.

R. R. Bigelow, District Judge. The facts are stated in the opinion. I. The complaint shows a sufficient case for relief within the well settled principles of equity jurisprudence. (United States v. Throckmorton, 4 Saw. 51; 98 IT. S. 65.) II. A motion to set aside a judgment by default cannot be made after the expiration of the term at which the judgment is entered.

<p>Murder. — Indictment for — Habeas Corpus — Examination of Testimony Before Grand Jury — When Defendant Entitled to Release on Bail — Constitution and Statutes, Construed. — Petitioner was indicted, by the'grand jury of Storey county for murder in the first degree. He applied to the district judge to be admitted to bail upon habeas corpus, and his application was refused on the ground that the indictment found by the grand jury made the proof evident and presumption great that the offense charged therein had been committed. He then applied to the chief justice of the supreme court for the same relief: Held, by Leonard C. J., in construing Art. I, Sec. 7 of the constitution, and 3687, 4141, 4378 and 4602, of the general statutes, that as the petition, for the writ of habeas corpus, contained allegations which, if true, showed the offense of petitioner to be manslaughter only, the petitioner was entitled to have the evidence of the witnesses before the grand jury reviewed for the purpose of enabling the court or judge to ascertain whether the proof is evident or the presumption great, and thereby to determine whether the offense committed — as shown by this and other testimony — is a bailable offense.</p> <p>Idem — Testimony Conflicting — Bail Refused. —Upon the testimony taken: Held, that it was conflicting upon material points, and that bail should be refused.</p>

<p>Quo Warranto — When Lies — Fictitious Controversy — Appointment of Warden of State Prison. — An information in the nature of quo warranto, filed against the incumbent of an office for the sole purpose of having a judicial determination as to who possesses the power of appointment to such office, it being apparent that defendant will remain in office whatever may be the decision, will be dismissed.</p>

R. R. Bigelow, District Judge. The facts are stated in the opinion. The time for appeal from an order denying a motion for a new trial does not commence to run until the order is actually entered in the minutes. (Civ. Pr.

<p>Construction op Lease — Renting on Shares. — A clause in a iease of both real and personal property that the lessee “is to have the privi. lege to sell any of the horses, and replace the same with horses out of his share of the increase of said horses,” is properly construed to mean that for horses sold by the lessee “he should return of the increase * * * animals of about the same'value. ”</p> <p>Idem — Conditional Acceptance op Property — When not Settlement-Value op Horses and Mules. — The lessor, in lieu of horses sold by the lessee, refused to accept an equal number of mules because they were not of equal value with the horses; but did accept them conditionally, with the understanding that the facts should be submitted to the district judge and his decision should govern both parties. The lessee, thereafter, refused to submit the case to the judge: Held, that the conditional acceptance of the mules did not amount to a settlement under the lease, and that, upon the facts, the question whether mules could be returned instead of horses was properly eliminated from the case.</p> <p>Idem — Action to Recover Value op Certain Horses — Pleadings— Verdict. — In this action to recover the value of the horses sold by the lessee, the jury found for plaintiff in the sum of two hundred dollars — the difference in value between the horses sold and of the mules delivered: Held, that the verdict was sustained by the evidence and was responsive to the issues raised by the pleadings. Executors and Administrators — Validity op Appointment — Collateral Attack — Failure to take Oath. — The authority of an administrator cannot be attacked in a collateral proceeding, because the oath provided by statute (Gen. Stat. 2739) was not taken until after the letters were issued, and was then taken before a notary public, since the letters, having been regularly issued, are valid until revoked; the irregularities complained of were cured by taking the oath before the proper officer before the trial of the case.</p>

Richard Rising, District Judge. The facts are stated in the opinion. I. The court erred in overruling plaintiff’s demurrer to defendant’s answer. The claim for wages is not a . defense to a claim for the delivery of the property. The action sounds in tort■ — the alleged counter-claim in contract. The contract set up in the counter-claim to a tort' was made before the tort was committed — and the wages claimed accrued before the wrong complained of was perpetrated.

<p>Appeal from the District Court of the State of Nevada, Lincoln County.</p> <p>A: L. Fitzgerald, District Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from the District Court of the State of Nevada, Nye County.</p> <p>R. R, Bigelow, District Judge.</p>

County. R. R. Bigelow, District Judge. The facts are sufficiently stated in the opinion. I. The rights of the parties are to be clearly distinguished from the rights which would have accrued to them had the transaction been a trust. The mortgagee’s possession is adverse as soon as he enters for condition broken, and the statute of limitations then commences, to run against the mortgageor’s equity of redemption.

Richard Rising, District Judge. The facts are stated in the opinion. I. This case is entirely dissimilar in its facts from Thompson v. Reno Sav. Ranh, 19 Nev. 103, 3 Am. St. Rep. 797. (Evidence in each case reviewed and distinctions pointed out.) In this case the evidence fails to show that there ever was any legal board of trustees, any legal by-laws, and any legal subscription for stock, or any book open for stock subscriptions. II.

The facts are stated in the opinion. The constitution contains all of the requirements and qualifications which are or can be required of, or prescribed for, an elector in this state. The statute of 1887. contains other and different and additional qualifications, and is therefore unconstitutional and void. (State ex rel. v. Williams, 5 Wis. 308; 68 Am. Dec. 67; State v. Lean, 9 Wis. 283; State v. Tuttle, 53 Wis. 49; Barker v. The People, 3 Cow. 686; 15 Am. Dec. 325.)

A. L. Fitzgerald, District Judge. The facts are stated in the opinion. I. The motion to dissolve the attachment should have been granted. Every material fact alleged in the affidavit for attachment was squarely denied by the affidavit in support of the motion, and no additional proofs were offered by the plaintiff.

R. R. Bigelow, District Judge. The facts are sufficiently stated in the opinion. I. The court erred in admitting the telegram in evidence. It did not tend to prove preparation for flight, because the time as to conversation for sale of horses was not shown. Without this foundation the evidence was wholly'irrelevant. (State v. Soule, 14 Nev. 453; State v. Daugherty, 17 Nev. 376.) II. The court erred in admitting testimony of bad character of defendant in state of California.

<p>1. Constitutional Law — Taxation — Collection op Poll-taxes — Payment oe Commission — Statutes Construed. — The act providing for the payment of a commission by the state of ten per cent, of all poll-taxes collected to the county, (Stat. 1885, 62) does nob violate Art. 2, Sec. 7, providing that one-half of the poll-tax collected shall be paid to the state, and one-half to the county; the commission being an allowance for the expenses of collection, and the state being liable for its share.</p> <p>Idem — Payment oe Salaries by State — Statute—Repeal.—The act providing that for the services rendered under the revenue act by the county officers the state shall pay such proportion of their salaries as the state tax bears to the county tax, allowing such payment in addition to the commission already given by the act of March 5, (see Stat, 1885, 85, Sec. 21) is not repugnant to and does not repeal the latter act; there being no provision in the fox-mer that counties shall receive no other compensation than is therein px-ovided.</p>

<p>Constitutional Law — Amendments—Publication—Notice to Voters.— The constitution (Art. 16, Seo. 1,) provides that the legislature shall submit proposed amendments to the people “in such manner and at such time as the legislature may prescribe.” Stat. 1887, 122, provide-! for the publication of proposed -amendments in one daily newspaper of general circulation, for ninety days next preceding the general election at which the amendments are to be voted on, and that as many copies of such paper shall be sent, without extra compensation, to the clerk of each county as there are registered voters therein, and by the clerk mailed to the voters. Held, that this act is a reasonable requirement, sanctioned by the constitution, and that amendments voted on without compliance with such requirement are inoperative. (Hawley, J., dissenting.)</p>

R. R. Bigelow, District Judge. The facts are stated in the opinion. I. The judgment in Powell v. Powell is invalid because the court granted relief in excess of what the pleadings warranted. (Gen. Stat. 495, 496, 3172, 3174.) . II. The pendency of the divorce suit did not of its own force deprive Kichard Powell of the power to dispose of his property.

A. L. Fitzgerald, District Judge. The facts are stated in the opinion. I. The judgment, upon the facts agreed upon, should have been for the plaintiff. The issuance of the patent to defendant, and its validity were put in issue, and the burden of establishing its validity was upon the defendant. (Rose v. Richmond M. Gó., 17 Rev. 25; 1 Green. Ev., Sec. 74; Gilson v. Price, 18 Nev. 117.) II. The facts agreed upon show that the patent of defendant was void.

R. R. Bigelow, District Judge. The facts are stated in the opinion. I. The court -erred in refusing a new trial as to the demand of Morgan Williams. II. The delivery of the account book to deceased vested in him the title, and clothed him with full power to transfer the demand against the bank to defendant, Thompson. Its delivery was sufficient to authorize the enforcement of the demand against the bank without a written assignment. (1 Pars.

<p>Water Rights — Irrigation — Findings — Evidence. — Findings of the trial court, based upon conflicting testimony, and aided by a personal inspection of the subject of controversy, will not be disturbed on appeal.</p> <p>Idem — Findings Sustained by the Evidence. — The various findings of the court reviewed and evidence held sufficient to sustain the findings. (See opinion.)</p> <p>Idem — Finding, as to Flow and Use op Water, Construed. — A finding that “defendant is entitled to a decree that during the non. irrigating months the waters of Jack’s Valley creek shall flow in equal portions in the north and south beds or channels of said stream, and that both plaintiff and defendant may use said water in the non-irrigating season for stock and domestic purposes, as it flows across their respective land, in the natural beds or channels,” is not a finding that defendant has the right to use one-half of the water flowing in the stream, nor any given quantity thereof, except sufficient for his stock, etc..</p> <p>Idem — Evidence — Opinion op Witness — Facts. — A question asked a witness as to which of two channels the water of a creek would flow in if unobstructed does not call for the opinion of the witness, but for a fact derived from personal observation, and is not an inquiry calling for expert testimony.</p> <p>Error — When Cured. — Error in excluding testimony is cured by its admission at a subsequent stage of the trial.</p> <p>■On Rehearing — Appeal—Rehearing—Modifying Judgment. — On petition for rehearing, where complaint as to a portion of the judgment is for the first time made, and it appears that such portion was not author zed hy the pleadings, the judgment will be modified in that respect, and the rehearing denied.</p>

Washoe County. R. B. Bigelow, District Judge. The facts are sufficiently stated in the opinion. I. The judgment and decree, rendered herein should be reversed. It is not supported hy the allegations of the complaint.

The facts are stated in the opinion. I. The act under which petitioner was convicted. is unconstitutional. It embraces more than one subject, viz., the subject of selling liquors, and the subject of gambling and games of chance, and the subject of the duties and punishment of peace officers. (Davis v. State, 7 Md. 151; 61 Am. Dec. 331; Cool. Con. Lim., Sec. 173.) The act applies to grocery stores and restaurants where liquor is sold. II.

<p>Action por Malicious Prosecution — Malice—Probable Cause. — In order to sustain an action for malicious prosecution both malice and want of probable cause must be shown.</p> <p>Idem — Evidence.—In an action for malicious prosecution, where plaintiff alleges that defendant instigated a prosecution against him for wounding cattle, the property oí another, evidence by plaintiff that the cattle alleged to have been wounded belonged to himself is not admissible to show want of probable cause, where no offer is made to show that defendant knew, or should have known, that the cattle did not belong to another.</p> <p>Idem— Nonsuit. — Where plaintiff in such action fails to establish want-of probable cause, a nonsuit is properly granted.</p>

<p>Action to Recover Damages — Injury to Passenger — Sufficiency op Evidence. — Plaintiff claimed to have been ruptured, while a passenger on defendant’s train, by a collision. The train on which defendant was riding, he being seated in a rear car, was run into from behind by a train running at the rate of from one to three miles per hour. The pilot slid under the hind end of the rear car, raising it up about eight or ten inches, and shoving the entire train about twenty feet. Plaintiff testified that his first sensation was a push in his back, and was then thrown on his stomach on the back of the seat in front, and he sank down between the seats, becoming insensible; that when he came to he tried to get up, and found that he could not use liis right arm; that he managed with difficulty to get out of the car, and with the assistance of some one unknown to him he got into another car; that he felt terrible pains in his groin, and that it was only by pressing the affected part that he obtained any relief; and that he kept his hand pressed against that part until he reached his destination. A passenger and several of the defendant’s employes testified that the shock was not severe enough to disturb any one; that after the accident they made inquiries all through the train as to whether any one was. hurt, but heard no complaints. The medical experts testified that rupture could have been produced by such an accident. Witnesses also testified to complaints by plaintiff after reaching Reno, and visits to physicians, and his subsequent condition as compared with his former. Held, that the evidence was sufficient to justify the jury in finding that plaintiff had been hurt in the collision.</p> <p>Idem — Amount oe Damages. — Plaintiff was fifty-eight years of age, engaged in the piano trade, which required some lifting. He testified that he had been unable to do any work after the accident; that he had earned before that time ¡¡¡>300 per month. The experts agreed that the effect of the rupture would be to prevent violent exercise, and would to some extent deprive the person injured of the physical strength required to earn a living, though some testified that it would not shorten life. Held, that a verdict for seven thousand dollars would not be disturbed.</p>

A. L. Fitzgerald, District Judge. The facts are stated in the opinion. I. Appellant was in the employ, of respondents as a miner, ■and consequently a contract relation existed between the parties to this action.

A. L. Fitzgerald, District Judge. I. With reference to the evidence it may be that plaintiffs cannot contradict their own witness; but they can show what the facts really were. (Coulter v. American etc. Ex. Go., 56 N. Y. 585; Sewell v. Gardner, 48 Md. 178; Dowdell v. Wilcox, 58 la. 199; Smith v. Ehanert, 43 Wis. 181; Pennsylvania li. B. Go. v. Eorlney, 90 Penn. St. 323.) II. This action was to enforce plaintiff’s vendor lien, not to rescind the contract of sale.

<p>Act Defining Duties of State Controller — Title Misleading— Subjects of Act — Imposition of Penalty, Unconstitutional. — In construing the provisions of the “act defining the duties of state controller,” which impose penalties upon other officers for delinquencies in making settlements with the controller, Held, (1) that the title of the act is misleading; (2) that’ the act contains two subjects — one relating to the duties of the controller and the other to the imposition of penalties against other officers — and that it, in both respects, conflicts with the provisions of section 17 of article IV of the constitution, and that the act, in so far as it undertakes to impose a penalty upon other officers, is unconstitutional. (Hawley, C. J., dissenting.)</p>

The facts are stated in the opinion. I. The board of examiners had no jurisdiction to examine-into or pass upon the accounts certified by the board of county commissioners. (Provisions of constitution and the various statutes referred to in opinion discussed at length.) II. Every reasonable doubt must be resolved in favor of the constitutionality • of an act of the legislature. (State ex rel. Lewis v. Doran, 5 Nev. 408; State ex rel.

<p>Discharged prom Imprisonment Under Civil Process — Sueeiciency oe Evidence. — Respondent was discharged from imprisonment under the provisions of the 11 Act for the relief of persons imprisoned on civil process,” (Gen. Stat., 3835-3844). Evidence reviewed and held sufficient to authorize his discharge. (See opinion for facts.)</p> <p>Idem — Pleadings — Judgment — Res Ad judicata. — The complaint alleged a fraudulent removal and disposal of ten thousand dollars, and a fraudulent transfer of certain lands by defendant, and judgment was rendered against him. Held, that the judgment is not res adjudicata upon the question of the amount or value of defendant’s property, as the character and value of the property disposed of was immaterial, except as tending to make the cause of aeti'in intelligible.</p>

R. R. Bigelow, District Judge. The facts are sufficiently stated in the opinion. I. The court erred in refusing to allow defendant’s witness, Anna Bates, to testify to a certain conversation had with defendant during his confinement in the county jail. This evidence of the state of the mind both before and after the act done is admissible. (2 Green. Ev., Sec. 371; Dickinson v. Barber, 9 Mass. 225; 6 Am.

Richard Rising, District Judge. I. Respondent acquired no title to the land in dispute by virtue ■of either of her deeds, as her grantor was not in possession of that portion of the lot in dispute at the time, and appellant was in the adverse possession, and had been so for a longer period than was required by the laws of this state. (Tyler Eject., 935; Peabody v. Hewett, 52 Me. 33; 83 Am. Dec. 498.) II.

11. B. Bigelow, District Judge. The facts are stated in the opinion.

R. R. Btgelow, District Judge. The facts are stated in the opinion. I. It is not necessary for a plaintiff in ejectment to show both a legal and equitable right to possession before a recovery can be had. II. A tender sufficient to discharge a contract must be so complete and perfect as to vest the absolute property in the person to whom it is tendered. (Schrader v. Wolflin, 21 Ind. 238.) Tender must be always of a definite character.

<p>Appeal from the District Court of the State of Nevada, Elko County.</p> <p>R. R. Bigelow, District Judge.</p> <p>The facts are stated in the opinion.</p> <p>. I. The court erred in allowing the prosecution to introduce the. bills of sale. These documents were admitted to show that Mrs. Potts possessed the ability to counterfeit the signature of Faucett, and neither had any relevancy or pertinency to the issues in the ease. The testimony must be confined to the allegations and the point in issue. A person on trial for one crime cannot be. presumed to be guilty because he hals at another time committed a different crime, nor is the latter admissible in evidence against him. (People v. Jones, 31 Cal. 570; People v. Tyler, 36 Cal, 526; People v. Bowen, 49 Cal. 654; People v. Bournes, 48 Cal. 551; Bom'ton v. State, 18 Ohio, 221; Farrer v. State 2 Ohio St. 72; Coble v. State, 31 Ohio St. 100; Cesure v. State, 1 Tex. App. 19; Commonwealth v. Wilson, 2 Cush. 590; Coleman v. People, 55 N.Y.81; People v. Corbin, 56 N.Y.363; 15 Am.Eep.427. Nor can tlie error be avoided on the ground that it might possibly not have influenced the jury in its deliberations. The reception of incompetent and immaterial'evidence which may work prejudice is a fatal error. (Bavrd v¡ Gillett, 47 N. Y. 186; Worrall v. Parmlee, 1 N. Y. 519; 49 Am. Dec. 350; Sta/rin v. People, 45 N. Y. 341; Ross v. Ackerman, 46 N. Y. 210.) Recognizing the evil and specious character of this testimony, the English courts, the Supreme Court of the United States, and a large number of the courts of last resort in the different states have held that: “ A document or writing cannot be put in evidence simply for the purpose of comparison of handwriting,” even where that comparison is sought to be made with the contested signature. (Ros. Or. Ev. 209; Randolph v. Loughlin, 48 N. Y. 460; 1 Greenl. Ev., Sec. 580; People v. Spooner, 1 Den. 343; 43 Am. Dec. 672; Strother v. Lucas, 6 Pet. 763; Van Wyck v. McIntosh, 14 N. Y. 442; Clcvrh v. Wyatt, 15 Ind. 271; 77 Am. Dec. 90; Woodard v. Spiller, 1 Dana, 180; 25 Am. Dec. 139; 1 Pliill. Ev. 490; Moore v. United States, 91 II. S. 270; Hynes v. McDermott, 82 N. Y. 50; 37 Am. Rep. 538.)</p> <p>II. The court erred in giving to the jury the instruction on the subject of reasonable doubt.</p> <p>III. The court erred in refusing to give the jury the seventh instruction asked for by the defense. (Castle v. State, 75 Ind. 146.)</p>

The facts are stated in the opinion. Relator claims that the trustees of said district should he elected each year, in May, whereas respondents were elected at the general election in November, 1888. (See Stat. 1887, 139, Sec. 2;, Maynard v. Johnson, 2 Nev. 25; Hayclon v. Boa/rd etc. Ormsby Co., 2 Nev. 371; O’Neil v. New York S. P. M. Go., 3 Nev. 141;.

R. R. Bigelow, District Judge. The facts sufficiently appear in the opinion and head notes. I. The testimony in this case introduced as corroborative of the testimony of the prosecuting witness, is wholly insufficient to connect the defendant with the commission'of the offense. (Testimony reviewed.) The necessity of corroboration, and the character and extent of such corroboratory evidence, is the subject of statutory law in this state.

<p>Djdfatjlt — When it Should Not be Set Aside. — On application, to set aside the default of defendants, it appeared that the defendants procured the suit to be instituted against themselves. They employed one-attorney for both sides, paid all fees, and managed the entire case for a time, withdrew a demurrer they had filed, and asked for and obtained ten days to file an answer, but filed none, and, after allowing nearly a year to pass without further action, a default was entered against them., They alleged that the action was an amicable one, instituted for their benefit, on plaintiff’s verbal agreement to convey to them on obtaining judgment, and that plaintiff agreed not to take a default against them. Held, that this did not excuse their delay in filing an answer, and their negligence in having one attorney only to manage both sides of the case, and plaintiff’s subsequent action in assigning the judgment to a third person, was not ground sufficient to authorize the court to set aside the-default.</p> <p>Idem — Rules of Court — Effect of. — The rules adopted by the district court and by the supreme court, were intended to be supplemental to-the provisions of the statute as rules for the government of all proceed., ings in the district court, and have the same force and effect as if they were incorporated in their statutory provisions.</p> <p>Idem — -Yerbal Stipulation — Not Binding Evidence. — Evidence of an oral agreement by plaintiff’s attorney not to take any default against defendants is inadmissible on the application to set aside the default, as this would be in effect an enforcement of such agreement in violation of Rule 27 of the district court.</p>

The facts are stated in the opinion. I. The submission of constitutional amendment number twenty-three by the legislature and its ratification by the people at the special election, held February eleventh, 1889,. cured the constitutional defects in the statute of January eighteenth, 1887, and perse revitalized it. (King v. Course, 25 Ind. 202; Commonw. v. Marshall, 69 Penn. St. 328.) II.

<p>Action to restrain a Nuisance — Pleadings — Special Injury. — To enable the plaintiffs, who are the separate owners of three certain town lots in Reno, to maintain this action, it must be clearly shown that they have sustained, or will sustain, a special and peculiar injury, irreparable in its nature and different in kind from that sustained by the general public.</p> <p>Idem — Statute Construed. — Held, that the statute of this state (Gen. Stat. 3273,) simply affirms the rule above stated.</p> <p>Idem — Invasion oe Common Right. — The controlling principle, which gives the right of action to private individuals to abate a public nuisance, is the invasion, impairment or destruction of a common right which they possess, independent, separate and distinct from the rights enjoyed by the general public.</p> <p>Idem — When a Public Nuisance is Also a Private Nuisance.— If the facts alleged and proven constitute an injury to the health, or is indecent or offensive to the senses, or creates an obstruction to the right of enjoyment and use of the property of individuals which is common to them, then the nuisance becomes to them a private nuisance, constituting a special and peculiar injury, distinct from that of the public, for which they can maintain an action.</p> <p>Idem — Insufficiency oe the Complaint. — The averments of the complaint reviewed. Held, that the complaint does not state facts sufficient to enable plaintiffs to maintain this action. (See opinion for facts.)</p> <p>Idem — Misjoinder oe Parties. — The plaintiffs being the owners of separate and distinct town lots, having no common interest, Held: That the complaint was also demurrable for misjoinder of parties.</p>

<p>Appeal from the District Court of the State of Nevada, Ormsby County.</p> <p>Biohard Bising, District Judge.</p> <p>The facts are stated in the opinion.</p>

Thomas H. Wells, District Judge. The facts are stated in the opinion. I. The finding of the court that the money sued for was paid involuntarily, under protest and under compulsion, is fully sustained by the pleadings, the evidence and the law. (Burr. Tax. 266-269; Cool. Tax. 568, 569; Maxwell v. Griswold, 10 How. 242; Lamborn v. County Commissioners, 97 U. S. 185; State Tonnage Tax Cases, 12 Wall. 209; First Nat.

<p>Taxation — Situs op Personal Property. —■ The principles announced in Barnes v. Woodbury, 17 Nev. 383, and Ford v. McGregor, ante, as to the situs of personal property, consisting of live-stock, for the purpose of taxation, approved and followed.</p>

R. R. Bigelow, District Judge. The facts are stated in the opinion. I. The decision of the district court, upon the evidence and findings, should have been in favor of appellants. (Evidence reviewed.) II. The district court erred in permitting this case to be tried without making Adam Bay a party thereto. He was the real party in interest.