Volume 21 — Nevada Reports

A. L. Fitzgerald, District Judge. The facts sufficiently appear in the opinion. I. By the portion of the answer stricken out the issue was properly raised as to whether an equalization had ever been made; and hence that issue should have remained as made by the pleadings, and the other parts of the answer were improperly stricken out, for the reason that the same constitute a full, valid and legal defense to plaintiff’s cause of action.

Original application for writ of mandate-. The facts sufficiently appear in the opinion. I. Respondents being charged by law with the duty of acting upon relator’s demand, and having neglected and refused to do so may be^ compelled to act thereon by mandate of this court. II. The act of March 5, 1887, is irreconcilably repugnant to-the act of February 23, 1887, so far as Elko county is affected, and being a later statute must be given effect. (Sedgwick on Const, and Stat.

Original application for writ of certiorari. The facts sufficiently appear in the opinion. I. The justice had no jurisdiction to make the order until Walsh had established his claim and obtained a judgment therein by “ due process of law.” (Ooscia v. Kyle, 15 Nev. 89 7.) II. No person can be deprived of his liberty or his property without “ due process of law.” (Const.

The facts are stated in the opinion. I. Even though a court be one of general jurisdiction, if it attempts to pronounce a judgment not warranted by law is judgment is an absolute nullity, and the writ of habeas corpus is a proper one to invoke.

Original application for the writ of prohibition. The facts sufficiently appear in the opinion. I. The action was dismissed. The plaintiff filed a proper precipe of dismissal with the clerk on February 7, 1890, and the clerk did not demand fees until February 9, 1890, and not then as a condition precedent to filing or entering the dismissal.

B. B. Bigelow, District Judge, presiding at trial. The facts sufficiently appear in the opinion. I. The appellant proved his ownership and possession of the land at the time respondent’s wood was hauled upon it, and after such proof it was error for the court to grant a non-suit. II.

Original application for the writ of mandate. The facts sufficiently appear in the opinion. (Oral argument. No brief on file.) (Oral argument. No brief on file.)

<p>School Taxes — School District Organization — Estoppel.—Where a school district has been in existence since 1871 and has continued during that time to receive public funds for its support and has had three special taxes levied and collected for its benefit without its legal organization ever having- been questioned, a taxpayer on whose property such a tax is levied is precluded from attacking the legality of the organization of the district.</p> <p>Assessment Oe Railroads. — Under the statute assessors are required to estimate the value of railroads with reference to their position, connections and use, and “as an integral part of a complete, continuous, and operated line of railroad, and notas so much land covered by the right of way merely, nor as so many miles of track consisting of iron rails, ties and couplings.”</p>

Thomas H. Wells, District Judge. The facts are stated in the opinion. I. The non-suit was improperly granted. Appellant had proved both his ownership of the ores and his right to their immediate possession. [Mintarn v. Barr, 16 Cal. 107; Frost v. Molt, 3á N. Y. 253.) II. It can make no difference whether the bill of sale was made to West or to his principals, as West testified that all of his acts were done as an agent for the party claiming to be his principal.

Ameal from the District Court of the State of Nevada, Eureka ■county. ,,A. L. Fitzgerald, District Judge. I. There was no valid assessment of the taxes here sued for by the assessor of Eureka county, for the year 1888. The Diamond Valley Live Stock and Land Company, or its property, can not be bound by the assessment in the name of the Diamond Valley Stock Company.

A. L. Fitzgerald, District‘Judge. The facts sufficiently appear in the opinion. I. The court erred in ordering judgment for respondent for the whole amount of the tax together with all of the statutory penalties added thereto.

<p>Appeal from the District Court of the State of Nevada, Humboldt County.</p> <p>A. L. Fitzgerald, District Judge.</p> <p>The facts sufficiently appear in the opinion.</p> <p>I. The depositions were neither signed nor authenticated as required by law, and their admission in evidence was error prejudicial to defendant.</p> <p>II. The court erred in admitting parol testimony to show that the depositions were regularly taken. The record of the proceedings at the preliminary examination itself should show compliance with the statutory requirements.</p> <p>III. The verdict was not recorded as required by law, and until so recorded was without force or validity. (2 Thompson on Trials, 2635; Bishop v. Mugler, 33 Kan. 145; Hoot v Sherwood, 6 Johns, N. Y. 68; Proff. Jury Trials, 460.)</p> <p>IV. There was no proof of penetration. At most, the proof shows no more than an attempt to commit rape. The authorities all agree that penetration is necessary to constitute rape. (2 Bishop Grim. Law, 6th. Ed. 1132.)</p> <p>I. Defendant having questioned them, it was entirely competent to prove by parol testimony the occurrence of facts at the examination which were not apparent of record. It was proven by competent evidence'that the depositions were properly taken and that defendant was accorded every legal right.</p> <p>II. The objection to the testimony of the physician is not well taken. The exemption of physicians from testifying to privileged communications applies solely to civil procedure and has no relation to criminal procedure.</p>

A. L. Fitzgerald, District Judge. The facts sufficiently appear in the opinion, taken in connection with the facts appearing in Haley v. Eureka Bank et als., in 20 Nev. 410. I. The court erred in denying plaintiff’s application for judgment on the pleadings! This action is not governed by the section of the statute relating to the entry of judgments upon failure to answer.

Richard Rising, District Judge. The facts sufficiently appear in the opinion. I. The tax was paid to Lander county by authority of the legislature, and it cannot be recovered by Eureka county, unless by authority of -the same power. It certainly will not be contended that the legislature’s power and control over all the revenues of the counties is not unlimited. Tire courts have no jurisdiction over such matters.

<p>Appeal from the District Court of the State of Nevada, Ormsby county.</p> <p>Richard Rising, District Judge.</p> <p>The facts- are stated in the opinion.</p> <p>I. Even if the court should refuse to consider the testimony ■of defendant on the ground that the opposite party to the transaction is dead, the testimony of disinterested witnesses, coupled with strong circumstances, make it clear that the bill of sale was given as security for a sum. of borrowed money not involved in this ease.</p> <p>II. The court erred in excluding the offered testimony of defendant as to payment and satisfaction on the ground that Hampton, of the firm of Hampton & Co., with whom she negotiated, was dead. (Crane, Hastings é Co. v, Gloster, 13 Nev. 279; Vesey v. Benton, 13 Nev. 285.)</p> <p>I. The court did not err in sustaining respondents’ objections to the testimony of appellant as to the transactions between her and Hampton, deceased. The legislature has so .amended the statute since the decision in Crane v. Gloster»and Vesey v. Benton that those decisions are inapplicable to the facts in this case.</p> <p>II. The rules of evidence do not permit appellant to show the bill of sale to have been anything else except what it wms, without some allegation of fraud or mistake, and counsel for appellant claimed nothing of the kind. (Meneies v. Kennedy, 9 Nev. 159; Saunders v. Stewart, 7 Nev. 200; Feusier v. Sneath, 3 Nev. 120; Bingham v. Thompson, 4 Nev. 224; Berlhold v. Fox, 97 Am. Dec. 245; Adair v. Adair, 71 Am. Dec. 779.)</p>

Richard Rising, District Judge. The facts sufficiently appear in the opinion. I. If a trust exists, the daughter of plaintiff is the cestui que trust, and not the plaintiff. Any other interpretation defeats the manifest intentions of the parties and reduces the averments of the complaint to grotesque absurdity. II.

E. E. Bigelow, District Judge. The facts are stated in the opinion. I. The declaratory statements and affidavits of Groten and Meyers were not competent evidence against plaintiff to show that a pre-emption had attached to the land. II. A “ pre-emption right ” does not attach by tbe mere filing of a pre-emption claim. There must be a pre-emption and a bona fide settlement before “ a pre-emption right ” attaches. III.

A. L. Fitzgerald, District Judge. The facts are stated in the opinion.

T. R. Wells, District Judge. The facts sufficiently appear in the opinion. I. No claim is made that defendant had acquired any right to the possession of the land in question.. Nor has it been shown that he was qualified to enter upon or acquire the title to the same from the government of the United States or the state of Nevada, or that he is a citizen of the United States.

The facts sufficiently appear in the opinion. I. The rule is that the lower court ought to have, in its sound legal discretion, opened the default. (Howev. Goldren, 4 Nev. 171; Johnson v. Eldred, 13 Wis. 482; Hill v. Crump, 24 Ind. 291; Chicago & N. W. R. B. Co. v. Gille.lt, 38 Iowa 434; Montgomery v. Ellis, 6 How. Pr. 326; Benedict v. Spend iff, 22 Pac. Rep. 500.) II.

Richard Rising, District Judge. The facts are stated in the opinion. ■ I. The county commissioners erroneously certified claims for mileage to the full amount named in the various statutes, both going and coming-. The board of examiners allowed for going only, which was clearly correct. II. Respondent is not the real party in interest in this case and has no standing in court. ' She has not paid any of the claims rejected by the board of examiners.

A. E. Cheney, District Judge. The facts sufficiently appear in the opinion. I. After an appearance, either general or special, and answer, demurrer or motion is filed, it is improper to enter default imtil after its disposition. The legal effect of appellant’s motion to quash the summons, or notice thereof, was to put the case in such shape that appellant was entitled to be heard and the plaintiffs to no default.

A. E. Gheney, District Judge. The facts sufficiently appear in the opinion. I. Iu an indictment for an attempt to commit a crime it is essential to aver that the defendant did some act which directed by a particular intent, to be averred, would have apparently resulted in the ordinary and likely course of things in a particular crime. (Wharton’s Crim. Law,- 9th Ed., Yol. 1, p. 192.) II.

<p>Statutory Construction — General and Special Statutes. — In 1891 the legislature enacted a general statute, revising, codifying-, and repealing the previous revenue laws of the state. Section 133, providing that sheriffs may retain six per cent, of the proceeds of each license sold, is substantially an amendment of section 85 of the revenue law of 1S85, which also provided for sheriffs’ compensation. In 1SS9 the legislature passed a special and local act limiting the compensation of the sheriff of Eureka county to an annual salary of four thousand dollars, for any and all services and ex-officio services of every kind and character by him rendered. Held, that the general act of 1891 did not repeal or modify the special and local act of 1889.</p>

A. L. Fitzgerald, District Judge. The facts sufficiently appear in the opinion. I. The court erred in not remanding the cause from Eureka county to Nye county, the county in which the real estate defendant is situated, for trial upon appellant's motion, the latter being the county in which the cause was properly triable. (Gen. Stats. 1105.) II. An order of court changing or refusing to change the place of trial is not an appealable order under the statute. III.

Lincoln county. Thomas E. Wells and G. F. Talbot, District Judges. The facts are stated in the opinion. I. This court in determining the question as to whether the order appealed from should be reversed should proceed as though hearing the motion for a new trial in the first instance. The judge who made the order appealed from was not the judge who tried the ease.

Original application for a writ of mandamus requiring the • board of commissioners of Humboldt county to allow the relator’s salary as clerk at the rate of two hundred dollars per mouth.

R. R. Bigelow, District Judge. The facts sufficiently appear in the opinion. T. The statute to secure liens to mechanics and others should be liberally construed so as to give to lien claimants the benefits intended by the legislature. {Skyrme v. Occidental Go., 8 Nev. 220, 239; Pu'namv.

Cross appeals from the District Court of the State of Nevada, Lander county. G. F. Talbot, District Judge. The facts sufficiently appear in the opinion. I. Upon the admitted facts there can be no question thatthe state is entitled to recover the taxes on the surveyed aud patented lands, and also forty por cent, thereon in penalties and district attorney’s fees. (Stale v. G. P. 11. 11. Go., 20 Nev. 373; Slate v. G. P. It. B. Go., 25 Puc.

Cross appeals from the District Court of the state of Nevada, Lander comity. G. F. Talbot, District Judge. The facts sufficiently appear in the opinion. I. Our brief in appeals Nos. '1353 and 1356 are equally applicable here, and are referred to and made a part of this brief. II. The state can not be estopped from collecting its taxes or revenues. There can be no estoppel by judgment except judgment on the merits.

Cross Appeals from tbe District Court of tbe State of Nevada, Dander county. G. F. Talbot, District Judge. Tlie facts sufficiently appear in tbe opinion. I. Tbe eomplaint stands admitted as to everything except the reduction, and no proof was made or stipulated as to any other defense set up in tlie answer. The tax therefore on the land is admitted. The defendant failed to show that it was unsurveyed. II.

R. R. Bigelow, District Judge. The facts are stated in the opinion. I. The action is not barred by the statute of limitations. The court finds that the deed was a security and was a mortgage. Appellant paid the taxes on the property for 1880-83. Respondent paid the taxes in 1884 and each year thereafter to the date of the commencement of this suit and since.

R. R. Bigelow, District Judge. The facts are stated in the opinion. I. The law of this state is well settled that money at interest of a non-resident of this state, secured by mortgage or otherwise, is a chose in action and that such choses in action follow him to his abode and are not taxable in this state. Therefore the tax on appellant’s choses in action was illegal and void and should have been returned to him by judgment of the lower court.

<p>JudicIxVL Sale — Failure to Pay Bid. — In a suit for partition, the sheriff was ordered to sell property at public auction for the highest cash price, and as property is sold under execution. At the sale the property was struck off to defendant J. as the highest bidder, but on his failure to pay the amount of his bid, the sheriff becoming satisfied that the bid was not made in good faith, re-advertised the property, and it was bid in by defendant N. who asked for and was granted fifteen minutes in which to pay his bid, and was told at the time that it was not a sale unless the money was paid down. The sheriff waited thirty minutes, and failing to receive the money; sold tho property to L. Held, that as the property was ordered to be sold for cash, and as property is sold under execution, the sheriff acted rightly in re-selling on failure of J. and N. to pay the amounts of their bids in cash, and that the sale to L. should be confirmed.</p> <p>Idem — Next Highest Bidder. — If the highest bidder at a sheriff’s sale fails to pay the amount of his bid, the next highest bidder is not bound by his bid.</p> <p>Idem — Inadequacy op Price in Absence op Fraud. — A sheriff’s sale of property will not be set aside for inadequacy of price, in the absence of fraud.</p>

Original application for a writ of mandate. The facts sufficiently appear in the opinion. I. The amendatory act of March 7, 1889, by implication repeals sections one and six of the original act. (My v. Holton, 15 N. T. 595; O. P. R. R. Go. v. Shackelford, 63 Gal. 261.) II. The amendatory act contemplates the payment of bounties for an entirely different class of wells from those provided for in the original act.

A. E. Cheney, District Judge, The facts sufficiently appear in the opinion. I. The statute exempts “ two horses,” not two workhorses, or plow horses, as is contended for by respondent. Not two-horses of any particular gender, or age, or size, or value, but “two horses” without qualification. It is not the kind of horses but the calling of the person claiming the exemption, and the use to which the. horses are put or can be put, that must determine the contention. II.

Richard Rising, District Judge. The facts sufficiently appear in the opinion. I. Proceedings to impose and enforce mechanic’s and labor’s liens have no foundation in the common law, but rest and must find support entirely upon statutes authorizing them. (Benton v. Wickwire, 54 N. Y. 226; Grant v. Vandercook, 57 Barb. 165; Huxford v. Bogardus, 40 How. Pr. N. Y. 94; 8 Abb. Pr. N. S. 455; Skyrme v. Occidental Oo., 8 Nev. 228.) II.

A. E. Cheney, District Judge. Action by Thomas E. Hayden against Samuel Brown and the Reno Electric Light and Power Company to abate a nuisance caused by the construction of a dam across a stream. Judgment against the light and power company. Brown appeals. The plaintiff and defendant Brown owned land on either side of the Truckee river. The plaintiff alleged that his land extended to the middle thread of the stream. This was not denied in the answer.

Richard Rising, District Judge. The facts are stated in the opinion. I. The Ormsby county fee bill of 1887 is special legislation, being made for one county alone when a general fee bill was in force, and is in direct contravention of section 20 of article TV) of the constitution, as that section stood when the act was passed. (State v. Boyd, 19 Nev. 43; State v. California M. Co., 15 Nev. 234; Evans v. Job, 8 Nev. 322.) II.

<p>Appeal from the District Court of the State of Nevada, Storey county.</p> <p>Richard Rising, District Judg'e.</p> <p>The facts sufficiently appear in the opinion.</p> <p>(No brief on file.)</p> <p>(No brief on file.)</p>

Nevada, Ormsby county. Richard Rising, District Judge. The facts are stated in the opinion, I. Appellant is not an officer within the meaning of the constitutional provision. The position of notary public is not a civil office. The constitution was intended to prevent the holding of inconsistent offices, the duties of which are incompatible. The duties of notary public and receiver of public money are not incompatible. II.

<p>Appeal from tbe District Court of the State of Nevada, Eureka county.</p> <p>G. F. Talbot, District Judge.</p> <p>The facts fully appear in the following statement by the justice delivering the opinion.</p> <p>Action brought to recover fifty thousand dollars damages, as the value of one thousand tons of ore unlawfully extracted from the Colorado mine, and for an injunction restraining defendant from entering upon or further extracting any ore therefrom. The complaint alleged the plaintiffs' ownership and possession, the defendant’s trespass, and set up facts looking* to equitable relief. The material parts of the answer are as follows: The defendant “ denies that at the time mentioned in said complaint or at any other time, it wrongfully or unlawfully entered into or upon the mining claim described in the plaintiffs’ complaint, or that at said time or at any other time it excavated or removed from said mining claim any ore or mineral-bearing rock, or that at said time or at any other time it converted any ore or mineral-bearing rock excavated or removed from said mining claim to its own use; or that the ore plaintiffs allege defendant excavated and removed from said mining claim was of any value whatever, or that plaintiffs have been damaged by the entry into or upon said mining* claim by defendant, or by the excavation or removal of any ore therefrom, or by the conversion of any ore excavated or removed therefrom by the defendant, in any sum whatever.</p> <p>And for a further defense defendant admits that plaintiffs are the owners of all that portion of the Colorado mining claim described in their complaint except that portion hereinafter described. And for a further defense defendant alleges that on the- — -day of-, 1875, it was the owner of, in the possession of and entitled to the possession of a certain tunnel situated upon the public mineral lauds of the United States, on and under the western slope of Prospect mountain, in Eureka mining district, Eureka county and state of Nevada, run for the purpose of developing veins and lodes of rock hearing valuable mineral and for the discovery of mines, and to fifteen hundred linear feet of all veins or lodes within three thousand feet from the face of said tunnel, discovered in said tunnel, on the line thereof, not discovered previously to the commencement of said tunnel, on the-day of-, 1875, and said defendant ever since said date has been, and now is, the owner of, in the possession of and entitled to the possession of said tunnel, and of all the veins and lodes discovered within three thousand feet of the face of said tunnel, discovered in said tunnel not discovered previously to the commencement of said tunnel to the extent of fifteen hundred feet; that said tunnel in its course enters into and under and crosses the said Colorado mining claim, and one of said veins or lodes, discovered in said tunnel on the line thereof, about eighteen hundred and fifty feet from the face thereof, having its top or apex outside of the exterior limits of said Colorado mining claim on its course downwards, dips under and through said Colorado mining claim, and certain excavations made upon said vein or lode last above described are under and within the surface limits of said Colorado mining claim, extended downward vertically.</p> <p>And defendant denies that plaintiffs are the owners of or in the possession of, or entitled to the possession of said tuunel, or any portion thereof or of said vein, or any portion thereof or of the excavations thereon, or of any portion thereof.” The answer then sets up five years “ quiet, peacable, actual and exclusive possession of all of said tunnel and of said vein or lode and of the excavations thereon above described,” by the defendant, and follows with denials of the equitable cause of action.</p> <p>The evidence shows that the Colorado had been worked downward from the surface a distance of about one hundred and sixty-six feet. The ledge in controversy was struck in defendant’s tunnel nine hundred feet below the surface and had been worked upward a distance of three hundred and ninety-four feet. The two workings were separated by between three hundred and four hundred feet of unexplored ground.</p> <p>At the plaintiffs’ request, the court gave the following instructions: “No. 2. It is admitted by the pleading's that the plaintiffs were, when the alleged wrongs were committed, and now are, the owners in fee and in possession of the Colorado mine. It is also admitted that the defendant entered beneath the surface of said Colorado mine, and extracted ore from a lode and converted the ore to its use, which lode at the point of entry is within the boundary lines of said Colorado mine, extended vertically downwards. These admissions are conclusively upon the defendant.” “No. 4. A vein, lode, ledge or deposit within the meaning of the law, is a crack, cavity or fissure in the earth crust, filled with rock in place, bearing gold, silver or other valuable mineral. The mineral or rock containing the mineral must be in place; that is to say, in the place where it was originally formed or deposited. Loose, broken rock, or wash, sand or gravel, float or soil is not sufficient; the rock containing the mineral must be in place between walls or defined boundaries. The rock must also contain valuable mineral.” “No. 9. * * * You are instructed that under the admission and averments of defendant, the burden of proof rests upon the Prospect Mountain Tunnel Company to prove to you that the lode or deposit so admitted to be within the limits of the Colorado mine has its top or apex outside of the exterior lines of the Colorado mine extended vertically downward.”</p> <p>Defendant’s instruction No. 3, refused, was as follows: -‘The court instructs the jury that in order to entitle plaintiffs to recover they must show by a preponderance of evidence that they were the owners of the lode, vein or ore body out of which the ore in controversy was taken at the time it was taken, and to do' this it was necessary for them to establish by' a preponderance of evidence that the top or apex of said lode was within the exterior limits of the Colorado mining claim, extended downward vertically; and if they have failed to do this the jury should find a verdict in favor of the defendant, the Prospect Mountain Tunnel Company.”</p> <p>The jury found a verdict in favor of the plaintiffs for five thousand dollars, for which amount judgment was entered in their favor, and an injunction granted restraining the defendant from entering upon the Colorado. The injunction was subsequently modified so as to exclude the tunnel from its operation.</p> <p>I. The admissions of counsel for respondents, and the testimony, shows that the adverse possession of that portion of the lode out of which the ore came had been as open, notorious, and continuous as the adverse possession of the tunnel.</p> <p>II. The evidence is insufficient to support the verdict. It is admitted that the lode disclosed in the workings from the Prospect Mountain Tunnel extends upward from the lower workings to the foot of raise nine. Taking that for granted, all of the testimony, both for respondents and appellant, shows that the top or apex of all that portio'n of the lode out of which the ore came lies east of the east line of the Colorado. (Evidence reviewed.)</p> <p>III. The title of the respondents to the lode and the quantity of ore taken out and its value having been denied by appellant, it was incumbent upon the respondents to establish by a preponderance of testimony that they owned the lode or that portion of it out of which the ore was taken, the quantity that was taken out of that portion and its value.</p> <p>IV. The evidence of the plaintiffs’ own witnesses shows that the apex of that portion of the lode out of which the ore came lies east of the east line of the Colorado. The plaintiffs’ own maps show that the general inclination of the lode is eastward.</p> <p>V. The court erred in excluding the notice of the location of the Prospect Mountain Tunnel. The notice tended to show, in connection with the other evidence offered, that the defendants were acting in good faith in extracting the ore under appellant’s claim and color of title to the lode out of which the ore was taken.</p> <p>VI. The court erred in striking out the testimony of Wren. It tended to show the good faith of the appellant.</p> <p>VII. The court erred in instructing the jury that “ it is admitted by the pleadings that the plaintiffs were, when the alleged wrongs were committed, and now are, the owners in fee and in possession of the Colorado mine.” The pleadings do not admit that the plaintiffs, when the alleged wrongs were committed, were or now are the owners of the Colorado mine. Appellant’s answer explicitly denies that the plaintiff at such time, or now are the owners of or in the possession of that part of the Colorado embraced by the tunnel, or of the lode out of which the ore came, or the excavations thereon.</p> <p>VIII. The court erred in instructing the jury in effect that the plaintiffs are the owners of the Colorado mine. This was equivalent to an instruction that the plaintiffs owned the tunnel, and entirely ignored the plea of the statute of limitations in regard to the ownership of the lode and the excavations thereon.</p> <p>IX. The court erred in instructing the jury that: “A vein, lode, ledge or deposit within the meaning of the law, is a crack, cavity, or fissure in the earth’s crust filled with rock in place, bearing gold, silver and other valuable mineral; the mineral or rock containing the mineral, must be in place; that is to say, in the place where it was originally formed or deposited. Loose, broken rock, or wash, sand or gravel, float or soil, is not sufficient. The rock containing the mineral must be in place between walls or defined boundaries. The rock must also contain valuable mineral.” The instruction is entirely too narrow. The error in the instruction is in the attempt made to define what is meant by rock in place in the United States statutes, and in the statement that “ loose, broken rock, or wash, sand or gravel, float or soil, is not sufficient.” The accepted and universal theory in regard to the formation of lodes like the one in controversy is that the crack, cavity or fissure, is first formed by natural forces and subsequently filled with the mineral matter that constitutes the lode.</p> <p>X. The court erred in instructing the jury that under the admission and averment of defendant the burden of proof rests upon the tunnel company to prove that the lode or deposit so admitted to be within the limits of the Colorado mine has its apex outside of the exterior lines of the Colorado mine, extended downward vertically. If appellant had admitted in its answer that the ore had all been taken from within the limits of the Colorado, the instruction might possibly have been correct. But the answer of appellant denies that appellant ever entered into or upon the Colorado or any portion thereof and broke down, excavated or removed from the said mining claim or any portion thereof any mineral-bearing rock or ore. This cast the burden of proof upon the plaintiff to show that defendant had extracted and removed ore from the Colorado.</p> <p>I. The verdict being a general verdict, it covers every issue in the case, and being for respondents, finds every material fact in respondent’s favor. The ownership of the vein from which the ore was extracted was a material issue. The jury, therefore, found upon this issue in favor of respondents, and that the vein from which the ores were extracted was respondents’ vein. Since the vein is respondents’ it is not material where it apexed.</p> <p>II. It is of no consequence that appellant “ entered into and passed through the Colorado mining claim more than ten years prior to the commencement of this action and has been in the actual and exclusive possession of said tunnel, using the same across and through said Colorado raining claim, during all of said period, and said defendant made the excavations from said tunnel within the vertical side lines of said Colorado mining-claim, extended downward vertically, except those made by said defendants, Kitchen and Dunltle, more than five years prior to the commencement of this action.” These facts, if true, would not constitute appellant the owner of the Colorado mine, or vein, or any part thereof, nor would they justify or excuse the wrongs and trespasses complained of.</p> <p>III. The evidence is ample to sustain the verdict. It is admitted by tlie pleadings that the vein and excavations from which the ore came “ are under and within the surface limits of said Colorado mining claim extended downward vertically.” The ‘proof without contradiction shows that the wondugs from which the ore came are all upon one and the same vein.</p> <p>IV. There is positively nothing to support the claim that the verdict is excessive. Appellant’s secretary testified that there was shipped during the time laid in the complaint four hundred and ninety-five tons of ore, for which appellant received thirteen thousand nine hundred and eighty-five dollars. Of this amount apellant received its royalty and its lessees the balance.</p> <p>Y. The court did not err in refusing to admit'the notice of . location of the Prospoct Mountain Tunnel. Appellant’s ownership of the tunnel was not involved, indeed it was distinctly admitted. The notice, as a tunnel site location, was incurably bad, and conferred no lode rights. No tunnel site notice of location could vest in appellant the rignt to run its tunnel into respondent’s patented ground, or give appellant the right to mine upon veins found therein. (Laws CJ. S. Sec. 2323; Wade’s Am. Mining Law, 15.) A tunnel location creates no right in the vein discovered, except the right to locate the vein included in a piece of public mineral land. The vein when discovered must be located and the location must be made under and in conformity with the mining laws, national, state and local. (Wade’s Am. Mining Laws, 68; Corning Tumid Co. v. Pell 4 Colo. 507; Wade’s Am. Mining Laws, 151-152; Laws U. S. Sees. 2323, 2325, 2320, 2324; Copp's Mineral Lands, 2d ed, 35, 36, 90, 220, 221, 231, 232; Sickels’ Mining Laws, 24; Weeks’ Mineral Lands, 417, 418; Hope Mg. Co. v. Brown, 28.Pac. Rep. 732.)</p> <p>YI. No testimony given by Wren supporting the good faith, of appellant was stricken out. On the contrary, all evidence offered and tending to prove defendant’s good faith was admitted.</p> <p>YII. The definition given of a vein by the court in its instruction is correct, viewed either from a scientific or legal standpoint.</p>

Richard Rising, District Judge. The facts are stated in the opinion. I. It was clearly error on the part of the court below to subordinate the lien of appellant to that of the Langley & Michaels Company as to the property embraced in appellant’s mortgage. II.

Original application for a writ of mandate. ' I.- The mode of publishing proposed amendments is vested in the discretion of the legislature. -This section of our constitution is taken from that of California, which provided for the publication of proposed amendments in a newspaper. The omission of such provision in our constitution shows that the mode of publication was left to the legislature.

Cr. F. Talbot, District Judge. Tbe facts fully appear in tbe following statement by the justice delivering the opinion. Action brought to restrain defendant, as tax collector of Lincoln county, from selling certain property of tbe plaintiff for taxes delinquent for tbe year 1891, amounting to fifty dollars and five cents. Tbe agreed facts are that tbe plaintiff was tbe owner of certain pro]:>erty which was duly assessed by the assessor of that county for the year 1891.

A. L. Fitzgerald, District Judge. I. The language of the statute (Gen. Stats. Sec. 3160) made it imperative upon the court to grant the order asked for vacating and discharging the attachment. In California, under an identical statute, the supreme court has held that a judgment in favor of defendant operates as a dissolution of the attachment and gives the defendant the absolute control and right to dispose of the property relieved of any claim or lien.

<p>National Banks — Taxation.—National banks are only subject to taxation upon the shares of stock owned by the shareholders therein, and upon their real estate. Mortgages held by such banks are not subject to taxation.</p> <p>Absolute Deed, When a Mortgage. — An absolute deed made by the owner of property for the purpose of securing money due to third persons, in connection with a written acknowledgment by the grantee that he holds it for that purpose, is a mongage.</p> <p>Mortgage — Reconveyance.—Where property so held is deeded hack to the grantor, with the consent of the beneficiaries, the lien of the mortgage is lost, and such consent need not he in writing.</p> <p>(Syllabus by Bigelow, J.)</p>

The facts sufficiently appear in the opinion. I. The district court never had any jurisdiction in the matter by appeal, but if the dismissal was erroneous it was an excess of jurisdiction and either a writ of certiorari or mandamus was the proper remedy for plaintiff to employ. II. An appeal from a justice’s court will not lie until a case has been tried upon its merits. (Martin v. District Court, 13 Nev. 91.) I. The appeal to the district court was properly taken.

<p>Indigent Poor — Liabilities Between Counties for Support. — The liability of a county for the relief and support of its indigent poor is purely statutory, and to render one county liable for such relief granted by another county to one of the former’s indigent residents, the case must come fairly within the statute.</p> <p>Idem — Nature of County’s Liability. — There are noue of the elements of a contract, express or implied, in a demand for the relief or support of the poor. The liability exists only in pursuance of the positive provisions of the statute.</p> <p>Idem — Pauper.—A county in this state is only liable for relief furnished by another county to .one of its indigent residents where such indigent is a pauper.</p> <p>Idem — Who Not a Pauper. — A laboring man who has always beeD able to make a living, and who, until his last sickness, had never had occasion to ask or receive charity, is not a pauper, although without money or property with which to pay the expenses of that sickness. (Syllabus by Bigelow, J.)</p>

Bichard Rising, District Judge. The facts sufficiently appear in the opinion, I. The indictment is insufficient. The facts averred do not constitute a public offense. The court had no. jurisdiction of the subject matter. The act of 1887, under which the indictment was drawn, is entirely silent as to intent and there is no intent alleged in the indictment. The act of 1887 was intended to amend the Gen. Stats, on the subject of embezzlement in which an intent is essential.

<p>Election Contest — Sufficiency of Complaint. — Section 10 of art. 4 of tlie constitution declares that any person ■“ who may he convicted of having given or offered a bribe to secure his election or appointment to office” shall be disqualified to hold any office of profit or trust in the state. Section 1560 of the general statutes authorizes a contest of election “ when the person whose right to the office is contested was not, at the time of election, eligible to such office.” Held, that a complaint to contest the election of a district attorney which alleged that the eontestee offered before election to make a honcl conditioned that, if elected, he would return to the county treasury each month a portion of his salary, but does not allege that the eontestee had been “ convicted ” of offering such bribe, does not show that the eontestee was disqualified to hold the office, and is fatally defective on demurrer.</p>

A. E. Cheney, District Judge. The facts sufficiently appear in the opinion. I. The complaint failed to allege that respondent was entitled to'the possession of the land. The possessor of land is not necessarily entitled to the possession. II. The district court had no jurisdiction. Public lands cannot be entered in the state of Nevada until the quota of tiie state is full, except under the homestead laws. (U. S. Stat. at Large, Vol. 14, p. 85; Gen. Stats, of Nev.

Bichard Bising, District Judge. The facts sufficiently appear in the opinion. I. If the presentation of the claim to the attorney of the estate be held to be a presentation authorized by law, it was barred before suit was commenced. It was handed to the attorney on August 14, 1891, and ten days expired ou August 24, 1891, without the claim having been acted upon and it became rejected under the statute.

<p>Practice — Findings, When Not Considered on Appeal. — Where the findings are not included in the statement they can not be considered upon an appeal from an ordor overruling a motion for new trial.</p> <p>Idem — Statute Construed. — The statute of 1889, p. 22, requiring the court to presume that the statement contains all the matters pertinent to the proper presentation of the appeal, does not require that we snould so presumo when the contrary appears from the statement itself.</p> <p>Idem — Idem.—The amendment to the practice act (Stats. 1893, p. 8S), is not retroactive, and does not apply to a case where the motion for anew trial had been heard and disposed of by the lower court before its enactment.</p> <p>Mining Law — Notice or Location and Record. — The mining law does not require that a notice of location of a mine shall contain a reference to a natural object or permanent monument. It is the record of the location that must contain such reference, and only then when the district laws require the record to bo so made.</p> <p>Judicial Notice — Local Mining Rule. — The court can not take jucli-eial notice of the existence in a particular district of a rule requiring claims to be recorded. Such rule, if it exists, must be proven the same as any other fact in the case.</p> <p>(Syllabus by Bigelow, J.)'</p>

A. L. Fitzgerald, District Judge. The facts fully appear in the following statement by the justice delivering the opinion. Action in ejectment to recover possession of the Eagle Pass mine, situated in Cortez mining district, Eureka county, Nev. The plaintiff located the claim August 5, 1885, by plainly marking the boundaries, and placing thereon the following notice of location: “Notice.

Richard Rising, District Judge. The facts fully appear in the following statement by the justice delivering the opinion: Action to recover one thousand and eleven dollars and ninety cents alleged to be due on a certificate of deposit issued by defendant, and for one hundred and fifty dollars, subsequently deposited with it. Verdict and judgment for the plaintiff.

A. L. Fitzgerald, District Judge. The facts fully appear in the following statement by the justice delivering the opinion. The testator, a resident of Eureka county, in this state, died October 25, 1892, leaving a wife and six minor children, his mother, and a sister, Mrs. Isabella M. Loucks. By his will, executed in 1889, the widow was appointed executrix, but it is alleged that she left this country for Germany in September, 1892, and has never since been heard of.

Original application for a writ of mandate. The facts sufficiently appear in the opinion. (No brief on file. Case argued orally.) (No brief on file. Case argued orally.)

Richard Rising, District Judge. The action was begun by S. C. Wright, but upon his death his executors were substituted as parties plaintiff. The other facts sufficiently appear in the opinion. I. The note sued upon was executed by the president and the secretary of respondent, as had been the custom of respondent, commencing with the note of 1875.

' Appeal from the District Court of the State of Nevada, Humboldt county. A. E. Cheney, District Judge. The facts are stated in the opinion. I. To bind or to affect appellant’s rights the findings should have shown that appellant had knowledge of respondent’s equities before appellant’s purchase. (McNeil v. Tenth National Bank, 46 N. Y. 329; Graff v. Middleton, 43 Cal. 341; 1 Storey’s Eq. Jur. 413.j II.

Original application for writ of mandate. The facts fully appear in the following statement by the justice delivering the opinion; Original application to compel the respondents as respectively land register and treasurer of the state of Nevada, to receive from the relator the interest due upon a certain forty acres of land which the state had, along with other lands, contracted to sell to him.

Richard Rising, District Judge. The facts sufficiently appear in the opinion. I. The act of March 19, 1891, under and by virtue of which respondent claims to be a regent of the State University, is unconstitutional. It is in direct contravention of section 7 of article XI of the constitution. II. The office of regent of the State University is a constitutional office and cannot be legally filled in any other mode than that prescribed by the constitution itself.