Volume 22 — Nevada Reports

<p>Original proceeding on application for writ of certiorari.</p> <p>Thé facts are sufficiently stated in the opinion.</p> <p>The'Statutes of this state, Gen. Stats., sec. 1944, provide that the meetings of the board of county commissioners shall be held at the countv seat *" -* * on -the- first' Mondays,- of; January, -April, July and-.- October of - each-year*, and sjhall' continue- from- .time to .time till- all- business before them, is disposed of. The only exception from this provision is the one providing for special meetings (Gen. Stats., sec. 1945), and at such special meetings no business can be transacted except that for which the meeting was called.</p> <p>The board in this instance met and adjourned sine die October 2, 1893, and was therefore powerless in the absence of a special meeting (and none was called) to meet and allow the claim of Powning, until the next regular meeting, until the first Monday in January, 1894. (State of Nevada v. Manhattan S. M. Co., 4 Nev. 331.)</p> <p>This court has repeatedly decided that a board of county commissioners is of special and limited jurisdiction, and nothing in regard to its proceedings is to be presumed in its favor, and that its records must affirmatively show the necessary jurisdictional facts. (State v. Board of Commissioners, 5 Nev. 319; Swift v. Board of Commissioners, 6 Nev. 97; Johnston v. Eureka County, 12 Nev. 28.)</p> <p>“And when the jurisdiction of the board depends upon certain facts to -be ascertained and determined by it, its records should show that it acted upon the evidence and adjudged the facts to be sufficient.” (Johnston v. Eureka County, 12 Nev. 28.)</p> <p>• This court will not inquire into the sufficiency of the evidence upon which the board acted, and will not consider the weight or relevancy of the testimony presented to the board.</p> <p>This court will not inquire as to whether or not there was sufficient or any legal testimony before the board at the time this action was ta"ken.</p> <p>Notwithstanding all the defects claimed may have been present in connection with the action of the board, this court will not consider any of them, nor will it review, in any manner whatever, the action of the board on this application. “A want of jurisdiction is the only question which this court will examine.” (State v. Fall, et al., 6 Nev. 100; State v. Board Equalization, 7 Nev. 83; Phillips v. Welch, 12 Nev. 158.)</p>

The answer denies the plaintiff’s ownership, but admits that the plaintiff obtained a patent for the ground from the United States on March 29, 1888, and thereby acquired the legal title to the same, but sets up the following facts as avoiding the effects of this admission: That in 1876 the plaintiff’s grantors applied for a patent for the Comet mining claim, covering the ground in dispute, alleging it to have been located in 1872.

Original proceeding. Application for writ of mandate. Tbe facts are sufficiently stated in the opinion. Argued orally. (No brief on file.) Tbe board, in tbe allowance or rejection of all claims, act in a judicial capacity, except where the law governing their action has made their duty a ministerial one.

Original proceeding on application -for writ of certiorari. The facts appear in the opinion.

Appeal front the District Court, Ormsby county; Mon. Richard Rising, District Judge. The facts art' embodied in the opinion. Section 8048, den. Slats. Nevada, says there shall be inserted in the summons a notice in substance, as follows: “First — Tn an action arising on contract for the recovery only of money or damages that the plaintiff will take judgment for a sum specified therein if the defendant fail to answer the complaint.

Arrear from District Court, Eureka county; Hon. A. L. Fitzgerald, District -Judge. The facts are sufficiently stated in the opinion.

■ Original proceeding. Application for writ of certiorari. Tbe facts are sufficiently stated in tbe opinion. Tbe judgment, being by default, no issue of any kind was ever made in the justice court, and there would be absolutely nothing to try on appeal. In such case no appeal lies. {Paul v. Armstrong, 1 Nev. 82; Martin v. District Court, 13 Nev. 85.) To exclude tbe remedy of certiorari there must be something more than a mere technical right of appeal.

A. E. Cheney, District Judge. The facts, so far as they are necessary to an understanding of tbe points decided, are as follows: In- 1879 the plaintiff and M. C.’Lake formed a partnership for the purpose of’conducting a flouring mill business at the town of Reno, under the firm name of Lake & Beck, in which each was to be equally interested.

District Court, Ormsby county; Hon. Richard Rising, District .Judge. On June 4, 1891, A. E. Harris executed and delivered to tire defendant, W. H. Ghedic, a promissory note for about $4,000, which was secured by a chattel mortgage upon certain property situated in Ormsby county, Nevada.

The facts are shown in the opinion. * Plaintiffs, with the knowledge of defendant, were in possession of the land under a deed from parties, who, together with their grantors, had been in possession of it for more than fifteen years. Defendant contributed to the information which led plaintiffs to believe that their grantors had the right to sell and convey. The case is clearly within the rule of all decisions on the subject of equitable estoppel.

The facts appear in the opinion. At the time of bringing this action plaintiff and respondent well knew that appellants, nor neither of them, had either actual or constructive possession or control of the property, or any part thereof, which he sought to recover. The very gist of the action of claim and delivery is the unlawful detention of the property at the time of the commencement of the action. (Riciotto v. Clement, 94 Cal. 105; Phillips v. Schatt, 21 Mo.

C. R. Goddard to recover a money judgment upon an account. At the same time he issued an attachment, which was duly levied upon the property in dispute in this action, a piece of real estate in Carson City. I¿ Bell v. Goddard summons was issued, and served on the defendant in the state of California, but no affidavit or order for the publication of summons was made.

Aureal from judgment and order overruling motion for new trial from the District Court, Storey county; Richard Riainy, District -Judge. The facts are fully stated in the opinion. Held: that if plaintiff relied upon the contract he could not sue without joining his co-contractor. To the same effect is: Mayo v. Standmry, 3 Cal. 465; Koutz v. Vandief, 55 Gal. 345. . . Thomas Deegan has never been legally removed as guardian. His trust has not expired.

Brief practically to the same, effect as that of appellants in the case (No. 1409) of Thomas II. Deegan, an Infant, etc., v. Thomas Deegan, et al., ante. Brief also practically to same effect as that for respondent in case No. 1409, ante. Appeal from judgment and order overruling defendants’ motion for a new trial, from District Court, Storey county; Richard Rising, District Judge.

<p>Original proceeding. Application for writ of certiorari.</p> <p>The affidavit for the writ alleged that the respondents, as commissioners of Washoe county, were proceeding to let a contract for boarding the prisoners confined in the county jail, and to that end had made certain orders in relation thereto. This proceeding was brought to test their authority to make said orders. The respondents demurred to the affidavit.</p> <p>Relator claims the right to furnish all necessary sustenance, bedding, clothing and fuel for the prisoners committed to his custody, and. that the county commissioners are required to allow him out of the county treasury all necessary costs, charges and expenses thereof. He makes this claim under and by virtue of an act of the legislature of the State of Nevada, entitled “An act in relation to common jails and the prisoners thereof,” approved November 25,1861, and the act amendatory thereof, approved March 3, 1866.</p> <p>• Respondents claim that relator has no right to furnish these supplies, except upon- an order of the board of county commissioners, or a majority of them, authorizing him to do so under and by virtue of an act of the legislature .of Nevada, entitled “An act limiting the power of certain county officers,” approved March 3, 1887/ affirming that said act of 1887 repeals section 2139, Gen. Stats., heretofore empowering the sheriff to furnish such supplies.</p> <p>The act of 1887 is a general act, contains no repealing clause, and the act of 1866 is a particular, specific and special act; if the two acts can stand and be taken together, and each given their proper construction, the court will uphold them both. The act of 1866 is nowhere mentioned in the act of 1887, and if section 2139 is repealed it can only be so by implication. Repeals by implication are not favored by the courts, but it is the duty of the court to ascertain the intention of the legislature at the time when the act of-1887 was passed. At that time the act of 1866 was a law in force upon- our statute books, and the presumption is that the members of the legislature of 1887 knew of its existence, and if it was their intention to take away from the sheriff the powers and duties imposed upon him under the act of 1866, they would certainly have expressed their intention in clear and unmistakable language. That it was not their intention so to do is found in the words of the act itself. They undoubtedly intended to except the sheriff from the provisions of this act.</p> <p>If the sheriff fails to furnish the specific things mentioned in the act of 1866, or shall not allow reasonable allowance and accommodation to the prisoners in his charge, the commissioners can bring an action against him, and recover the sum of $50. Is it pretended that this section of the act of 1861, as amended in 1866, has been repealed by the act of 1887? (See sec. 2141.) How about section 2140? Must the sheriff go to the county commissioners and have them say what they will allow for the transfer of prisoners, and make a contract before he removes them? How about section 2147?</p> <p>The act of 1887 makes it the specific duty of sheriffs to furnish specific things themselves, of which the necessary cost must be specifically allowed them by the commissioners-</p> <p>To produce a. repeal by implication the two acts must be upon the same subject and there must be a plain repugnancy between their provisions. {Coats v. Hill, 41 Ark. 151, and authorities; Sutherland on Stat. Const., sec. 151, 204-205; 12 Bush. 237; also, 54 Mich. 171; 64 Md. 419-423.)</p> <p>The act of 1887 does not refer to the former act of 1866 or to any part of it, either directly or indirectly. The invariable rule of construction in respect to the repealing of statutes by implication is that the earlier act remains in force unless the two are manifestly inconsistent with and repugnant to each other, or unless in the later act some express notice is taken of the former plainly indicating an intention to abrogate it. {Bowen v. Lease, 5 Hill, 225-226.)</p> <p>It is necessary to the implication of a repeal that the objects of the two statutes be the same; if they are not, both will stand, though they may refer to the same subject. {People v. Platt, 67 Cal. 32; U. S. v. Claffin, 97 U. S. 546; Ramson v. Ramson, 52 111. 62.) Repugnant means irreconcilable.</p> <p>The law intended that the sheriff, and he alone, should have charge and control of the prisoners committed to his charge as to discipline, custody and maintenance. He is the officer upon whom this duty devolves, and no one else. The act of 1861-66 was passed in order to give the sheriff sole power and control over the prisoners in his charge. He. is responsible on his official bond.</p> <p>If respondent’s interpretation of the law is correct, the sheriff cannot give the prisoners any light, any bedding, any clothing, or any fuel without having the commissioners contract for such supplies.</p> <p>The act of 1887 never intended to repeal the law regarding the duties of the sheriff, so far as the prisoners committed to his charge were concerned, beéause in the act of 1866 the legislature was only legislating so far as prisoners were concerned, and the act of 1887 is reconcilable with this.</p> <p>If this be not true, then it is necessary for the sheriff, in case he needs a mattress for a prisoner, to go to the commissioners and ask them to get it, and for this there must be a meeting of the board -of county commissioners before he can do so.</p> <p>There • are numerous eases in which the. -law has made it the specific duty of certain- county officers to do certain things at the expense of the county, and there is no law making it the duty of the commissioners to do these things. Did the legislature by the act of 1887 intend by implication to withdraw those duties from the county officers and make no provision for any one to perform them?</p> <p>Sheriffs — Duty to board jurors in criminal cases at' the expense of the county (Gen. Stats. 4271 and 4272). Assessor — Duty to print list of taxpayers at the expense of the county (Gen. Stats. 1280). Clerks — Duty to call doctors at the expense of the county to examine alleged insane persons #hen judge is absent from the county (Stats. 1889, p. 40, in connection with Gen. Stats. 1457). Treasurer — Duty to publish delinquent tax list at expense of county (Stats. 1891, pp. 147-48). Query: Did the Legislature by the act of 1887 intend to leave the performance or non-performance of these duties entirely dependent upon the pleasure of the commissioners?</p> <p>The act of 1887 is in every sense a general one. The act of November, 1861, as since amended, is in every sense of the word a particular one, the legislature having in mind the one subject only of jails and the prisoners therein.</p> <p>A later general act never repeals an earlier particular act, except in the clearest manifestation of the intention of the legislature so to do, or when the acts are so irreconcilably repugnant that it is impossible for both to stand.</p> <p>In this respect a particular act is classified the same as a local, special, or local and special act. (Sedgwick on Stat. Construction, secs. 95-6-8-23; Sutherland on Stat. Construction, sec. 157, p. 212; sec. 158, p. 159; Dwarris, sec. 765; State v. Judge, 38 Mo. 534; 18 Md. 434, 439; Village Hyde Park v. Cemetery, 119 111. 141, 147; Home for Inebriates v. Reis, 95 Cal. 142, 148; Ex Parte Smith, 40 Cal. 420; 33 Am. & Eng. Ency. of Law, p. 424; State v. Severance, 55 Mo. 386; Thorpe v. Schooling, 7 Nev. 17; 10 Nev. 319; 20 Nev. 217; 21 Nev. 220.)</p> <p> It is really a question of intention. </p> <p>The words negative and affirmative statutes mean nothing. The question is whether they are repugnant or not to that which before existed. That may be more easily shown when the statute is negative than when it is affirmative, but the question is the same. A negative word is only one indicia noted by the courts in order to determine legislative intention. (13 O. B..33.)</p> <p>A subsequent act which can be reconciled with a former one shall not be a repeal of it, though there be negative words. (16 W. Va. 278.)</p> <p>The well-settled doctrine derived from all authorities is that “laws special and local in their application are not deemed repealed hy general legislation, except upon the clearest manifestation of an intent hy the legislature to effect such repeal; and ordinarily an express repeal or some intelligible reference to the special act is necessary to accomplish that end.” (81 Va. 367.)</p> <p>We submit that, had the legislature intended to repeal the act of 1866, it certainly would-have made some reference to it in the act of 1887.</p> <p>It is clear that the legislature, in passing the act of 1887, did not intend to limit or curtail the duties of the sheriff, and if both acts can be reconciled, one with the other, then the court will so find.</p> <p>Respondents claim that the petition does not state facts sufficient to entitle the relator to the granting of the writ, for the reason that the board of county commissioners has the right to contract for boarding the prisoners, and no other person or officer has.</p> <p>It is conceded that prior to the passage of the act of the legislature of March 3,1887, Stats. 1887, p. 108, the sheriffs of the several counties of this state were authorized to furnish all necessary sustenance, bedding, clothing and fuel for those confined in the county jail, and the county commissioners were required to allow all necessary costs, charges and expenses thereof out of the county treasury. (Gen. Stats., sec. 2139.) But the act of March 3, 1887, withdraws that right and power from the sheriff and vests it in the board of county commissioners; and that part of the act of 1861, as amended in 1866, which authorized the sheriff to furnish all necessary sustenance, bedding, clothing and fuel for prisoners, is repealed by statute of March 3, 1887. The act of March 3, 1887, is entitled “An act limiting the power of certain county officers,” and the body of the act provides that “No county officer in any county of this state, except- the board of county commissioners, shall contract for the payment or expenditure of any county moneys for any purpose whatever, or shall purchase any stores or materials, goods, • wares or merchandise, or contract for any labor or service whatever, except the board of county commissioners, or -a majority of them, shall order such officer to do the same.” -</p> <p>The title of an act can properly be resorted to in order -to determine the legislative intent. (Torreyson v. Board of Ex., 7 Nev. 19; People v. Flynn, 16 Cal. 358.) And the title is of much importance when the constitution requires that the subject matter of the act shall be briefly stated in the title. {Mazro v. Merchant & Go., 14 Wis. 295; Dodd v. State, 18 Tnd. 56; Const, of Nev., art. IV., sec. 17.)</p> <p>Looking then to the title of this act, it is manifest that the legislature passed it solely for the purpose of limiting the power of certain county officers, and the power sought to be limited is one that must have been vested in a county officer by express provision of law, otherwise, considering the nature sought to be limited, it would not exist. Now the power did exist in the sheriff, prior to the passage of this act, and that by express provision to furnish necessary sustenance, etc., for the prisoners and bound the county for the same; then considering the title of the act of March 3, 1887, in connection with its provisions, it is clear that the intention of the legislature .was to withdraw this power from the sheriff because the furnishing of sustenance, etc., involves either the contracting for the payment or expenditure of county moneys, or the purchasing of stores or materials, goods, wares, or merchandise.</p> <p>The statute is unambiguous and gives no room for construction (Odd Fellows’ Bank v. Qwillan, 11 Nev. 109), and being a negative statute is in terms a denial of all prior laws inconsistent therewith and therefore repeals them, and obviously this repeal is not by implication, but is express. (State v. Donnelley, 20 Nev. 217-218; Bishop on Stat. Crimes, sec. 153; Sedgwick on Construction, p. 31; State v. Beard, 21 Nev. 220.)</p> <p>' Negative words are indicative of a mandatory intent. (Bishop on Stat.-Crimes, sec. 155a; Sedgwick on Construction, p. 319; 1 Blackstone’s Commentaries, 89.)</p> <p>Tlie intention of the legislature controls, both as to meaning of the act and repeal of former acts, no matter how expressed. “If, therefore, it is clearly apparent that it intended to abrogate a former law, no matter whether that intention is expressly stated or not,-it must be carried out.” (Thorpe v. Schooling, 7 Nev. 17-18.) And if the intention to repeal is manifest it is not necessary that there be a direct conflict between the two acts. (Thorpe v. Schooling, 7 Nev. 17-18; City and County of Sacramento v. Vird, 15 Cal. 294; Bedgwick on Construction, p. 104.)</p>

Original proceeding. Application for alternative writ of ’ mandamus. The facts are sufficiently stated in the opinion. The only question presented for determination is the constitutionality of the act of the legislature of Nevada fixing the salary of the justice of the peace of Eureka township, Eureka county.

Judge. The facts are stated in the opinion. Held: owing to the new state of facts proven on the second trial, that plaintiff was entitled to a judgment, the omission pointed out by this court having been fully supplied, as found by the trial court.

Judge. The facts are sufficiently stated in the opinion. This is an action of ejectment to recover Comet mine. The action was commenced March 30,-1892; the complaint alleges “that said plaintiff is now, and ever since the 29th day of March, 1888, has been the owner in fee simple ” of the mining ground in contention.

L. Fitzgerald, District .Judge. The facts are sufficiently stated in the opinion. There are some rules of law that apply in this case and that are decisive of it: First — A corporation that claims a certain act to be ultra vires must show the same to be such. Second — A contract made by a corporation will not be presumed to be invalid, but it must be- shown, unless, possibly, it is a contract that on its' face is shown to be malum per se, or against public policy.

E. Cheney, District Judge, presiding: The facts are sufficiently stated in the opinion. • This action is to try the right to the waters of Mill Station creek, and for an injunction to prevent future diversion. The complaint alleges ownership and right of use in plaintiff, by appropriation made in 1860.

E. Cheney, District Judge. The facts are sufficiently stated in the opinion. The court overruled the demurrer and the defendant, not desiring to make further answer, allowed judgment to be taken against it. Appellant contends that a court of equity has no jurisdiction of this action as set forth in the complaint, but that said action should have heen brought in a court of law, as there is a plain, speedy and adequate remedy at law.

E. Cheney, District Judge, presiding: In addition to the facts stated in the opinion, there was evidence tending to prove that, when the plaintiffs refused to trust Denton further, the defendant’s superintendent requested them to continue to do so, stating that he, as superintendent of the defendant would see every dollar paid; that as the pay days would be far apart, he would give them special checks without waiting for pay day, and that defendant had accordingly paid…

<p>I — Mandamus, When Only to be Resorted To. — The writ of mandamus should he resorted to only when the usual and ordinary remedies fail to afford adequate relief, and without it there would he a failure of justice.</p> <p>'¿ — Same—Does Not Lie When Other Adequate Remedy. — Mandamus does not lie unless the party invoking it has no other adequate remedy.</p>

Original proceeding on information in the nature of quo warranto. At the general election held in November, 1892, the relator was a candidate for the position of long-term school trustee of Carson school district, and received a majority of the votes cast for that position.

<p>Appeal from order dismissing proceeding, from District Court, Ormsby county; Richard Rising, District Judge.</p> <p>The facts are sufficiently stated in the opinion.</p> <p>This appeal involves two points: (1) Are the ballots primary or secondary evidence? (2) What is the’proper foundation to lay to make the ballots primary evidence?</p> <p>■ Section 1561, General Laws, says: “ When any election held for any office exercised in and for a county is contested on account of any malconduct on the part of the board, * * * the election shall not be annulled * * * unless the rejection of the vote of such precinct shall change the result as to such office.” Section 1563 says: “The district court of the respective districts shall have original jurisdiction to try and determine all such cases, and may by mandamus or otherwise obtain all documentary evidence required by either of the parties litigant.” Section 1564 says: “No statement of the cause of contest shall be rejected nor the proceedings thereon dismissed by any court before which such contest may be brought for trial for want of form, if the particular cause of contest shall be alleged with such certainty as will sufficiently advise the defendant of the particular proceedings or cause for which such election is contested.” All the statute requires is that the opposite party should be sufficiently advised of what to meet that he may not be surprised, and that he may he prepared to meet it if he can. Section 1552 provides who shall keep the ballots. Section 1552 also states: “* * * The poll book, tally list, certified copy of the register, ballot box and ballots thus inclosed and sealed shall, after the canvass of. the votes by the board of county commissioners, be deposited in the office of the clerk of the board of county commissioners and preserved until the next general election; * * * provided, however, that the ballots so deposited with the board of county commissioners shall not be subject to the inspection of any one except in cases of contested elections, and then only by the judge, body or board before whom such election is being contested.” (As amended, Stats. 1879, 117.) There can be no doubt for what purpose the statutes were amended and required the ballots to be preserved for two years. It was to meet and decide just such cases as the case at bar.</p> <p>If there was any wrongdoing, miscalling of ballots and calling and counting them for Bray, that fact lies solely in the breast of the inspectors of the election, precinct No. 2, and in the ballots.</p> <p>The case at bar was tried before Hon. Richard Rising in exactly one minute by the watch. The summary manner in which it was dismissed is shown by the statement. The honorable court could have entertained no doubt whatever as to the correctness of his position, but let us see the terrible clash between the opinion of the honorable court and the statutes and Justice Stephen J. Field, while judge of the supreme court of California, and Judge McCreary, and other authorities. Section 1564, Gen. Stats., says: “No statement of the cause of contest shall be rejected, nor the proceedings thereon dismissed, by any court before which such contest may be brought for trial,” etc. Section 1562 provides for the character of statement under which any elector may come into court and be heard.</p> <p>Formerly ballots were destroyed in Nevada as well as in California. In Searcy v. Grow, 15 Cal. 118, similar proceedings were instituted, defendant moved to dismiss as in this case, motion overruled, defendant declined to answer and the court rendered judgment annulling the election of defendant, and defendant appealed. Justice Field said: “In this respect the ruling of the court was clearly erroneous. The public is interested in a contest of this character; it is not a matter solely between the parties to the record, etc.”</p> <p>In Lord v. Dunster, 79 Cal. 477, brought into court under a similar statement as the case at bar, the court proceeded to count the ballots, the case was appealed and the upper court said: “The public interests imperatively require that the ultimate determination of the contest should in every instance, if possible, reach the very right of the case.” How was it possible to reach the right of this case in one minute? Vide People v. Holden, 28 Cal. 129, strongly approved of in 19 Kan. 186; Qoglan v. Beard, 65 Cal. 59. In this case the ballots were recounted in the presence of the court.</p> <p>In the case at bar the honorable court held that it was utterly immaterial to show that the ballots had not been tampered with and had been kept by the proper officers, and added that if the evidence was offered, the court would throw it out on the ground that it was immaterial. What principle of public policy can be subserved by first having to prove allegations by secondary evidence before primary evidence can be introduced in election contests?</p> <p>Judge McCreary, in his work on Elections, says: “The title of the office rests upon the votes cast and not upon the boards of election” (Sec. 397). See, also, Am. & Eng. Ency. of Law, title “ Elections,” p. 424; Hudson v. Solomon, 19 Kan. 126; State, ex rel. Judge, 13 Ala. 805; People, ex rel. Holden, 28 Cal. 123; McCreary on Elections, secs. 291, 439; Cooley Const. Lim., p. 625. As between the ballots and a canvass of the ballots the ballots are controlling. (19 Kan. 190; McCreary on Elections, sec. 444; 31 Kan. 758; Doreyv. Linn, 94 111. 515.)</p> <p>The appellant in this case contests the election of Bray on the ground of the mal conduct of the inspectors of election in precinct No. 2, alleging in his petition the general allegation that the inspectors were guilty of malconduct in counting votes for Bray which were in reality cast for Schneider, and which were sufficient in number to change the result of the election.</p> <p>Appellant urges that, from this allegation and upon his showing that the ballots had not been tampered with, he has a right to have the ballots opened and counted, while respondent contends that some showing of fraud must be made before the court will order the ballots to be produced and counted.</p> <p>The facts set up in the petition are not sufficient to warrant the court in ordering the ballots to be counted. There must be a clear and precise statement of the fact upon which said petition is based, and it must be shown that the result of the election was changed. (McCreary on Elections, sec. 402; SJcerrett’s Case, 2 Parsons, 509; Kneass’ Case, 2 Parsons, 561; Carpenter’s Case, 2 Parsons, 537, 545; Whipley v. McKune, 12 Cal. 352, 359-362; Gen. Stats. 1561-64; Leading Cases on Election, Brightley, p. 360.)</p> <p>It must appear to the court from the face of the petition how and in what manner the result of the election has been changed. It is not enough to allege that votes have been counted for Bray which were in reality cast for Schneider. The allegation is too general. The petition states conclusions, not facts from which they are drawn.</p>

Original proceeding. Application for writ of habeas corpus. The facts are stated in the opinion. There are three essential elements in this proceeding requisite to render the conviction in this case valid: (1) Jurisdiction over the person of the defendant. (2) Authority of the court to render the particular judgment. (3) Jurisdiction of the subject matter. If either of these elements are lacking, the judgment is fatally defective.

<p>Appeal from judgment on verdict of murder in the first degree and order overruling motion for new trial, from District Court of Lander county; A. L. Fitzgerald, District -Judge.</p> <p>The facts are sufficiently stated in the opinion.</p> <p>The first point relied on by the appellant is: That the challenges to the jurors C. W. Hilkey, -John Tallack, D. McCloud, George Schutes, O. J. Heath and John Thorpe should have been allowed, and to deny either one was a fatal error.</p> <p>There are but two cases which we deem it necessary to cite in support of this contention: State v. McClear, 11 Nev. 39; State v. Murphy, 37 Pac. Rep. 420. The case of State v. Murphy was rendered by Dunbar, C. J., and concurred in by a full bench of the supreme court of Washington. It is useless to quote from these cases as they are full of the doctrine. The record shows that defendant asked for and was denied the privilege of an extra peremptory challenge, when in fact he was entitled by reason of the court denying his challenges to six extra peremptory challenges.</p> <p>The second point is that juror Rapley was a qualified juror in every way. We acknowledge that it seldom is error to excuse a juror, but in this case, we desire the attention of the court to the fact that when the State interposed a challenge, very little grounds were needed to have the challenge sustained; but when the defendant interposed a challenge no opinion, however strong, was sufficient to support the challenge.</p> <p>The third point is that the dying declaration of Willie Litster was not admissible under the defendant’s (appellant’s) objections. It was not made to appear that Willie Litster had any prospect of “ almost immediate dissolution,” and that is the test. (1 Greenleaf on Ev., sec. 158 and note 3; Stevens’ Digest on Ev., art. XXVI.)</p> <p>The only foundation for the introduction of this evidence, is at the time it was introduced, “he said he was going to die, and he knowed he was going to die.” Is it not a fact that we are all going to die, and that we all know we are going to die? But we do not know when, where, or of what cause. There never was a dying declaration admitted on such a foundation.</p> <p>It was error for the court to strike out the latter part of the sheriff’s testimony. If any part of the statement was admissible, it was all admissible, and the jury were the ones to judge of its truth and weight. It was an admission, and all of it, or none of it, should have gone to the jury. (Sackett’s Instructions to Juries, p. 641; Connery. State, 34 Tex. 659; Roscoe’s Crim. Ev. 55; Ril'ly v. State, 4 Tex. App. 538;' Riland v. State, 53 Ala. 322; State y. Hollinscheit, 61 Mo. 302.) And Sackett says, at the above-named place: “Where the verbal admission of a person charged with crime is offered in evidence, the whole of the admission must be taken together.”</p> <p>The question asked Charles Vaughan, about defendant’s (appellant’s) intention with regard to the shooting, was a proper question, and that, therefore, the court erred in ruling it out; right at the time the shooting transpired what was said was competent and part of the res gestm. Charles Vaughan should have been permitted to answer the question:- “ Were you in the habit of shutting these gates or not?”</p> <p>The answers of Charles Vaughan were made under duress at the coroner’s jury, and he should not have been compelled to answer on or about them. (Fifth Amendment to Const. U. S.; Rev. Stats. U. S., sec. 860; Counselman v. Hitch-cod, 12 Sup. Ct. Rep. 195; 142 U. S.; Sup. Ct. Rep. 547.)</p> <p>The question: “What religious denomination do you belong to?” should never have been answered. It was sectarian. The question asked by the defense was general and touched the old common law qualifications of the witness’ reliability, but whether he • was protestant or catholic, or how he worshiped God, has never been admissible. “Do you believe in God, the immortality of the soul, the reward and punishment for deeds done in this life?” are always pertinent and admissible. (1 Greenleaf on Ev., note 2, sec. 370, etc.)</p> <p>“I was afraid of my life of him” (Willie Litster). “State, from your observation of Willie Litster, what his general disposition was.” This question should have been allowed, to show how' the defendant regarded him. The jury are the judge of the defendant’s theory of self-defense, and in order to do so the defendant should have been allowed to testify what feelings operated upon his mind and the cause which produced such effect. Whether it was reliable or the truth, the jury was to judge of its reliability and weight, and the same rule applies to the threats and shot.</p> <p>The testimony about Lizzie Litster hearing that the Vaughan boys were going to mine the next day should have been left in the case. A girl 12 years of age knowing of the feelings which existed between the families would be sure to go home and tell it, and at any rate, the jury should have been left to judge of it.</p> <p>The testimony as to Willie Litster’s character for peace and quiet should never have been allowed in the case. It had never been attacked.</p> <p>The court takes out of the case the doctrine of self-defense by instruction No. 2, and does not say that the indictment might include justifiable homicide.</p> <p>The court takes out of the case the doctrine of self-defense by instruction No. 4, and says that the presumption that the killing is malicious unless the same proof that establishes the killing shows mitigation, to the exclusion of any other proof, which, under the law, would be sufficient, no matter from whence it comes.</p> <p>By instruction No. 5 the jury are told that they must find the defendant did voluntarily and unlawfully kill William Litster, or that he was not guilty. No intermediate course was left to them. We say such an instruction is not law and misled the jury and prohibited them from bringing in any verdict but murder in the first degree, or that the killing was justifiable.</p> <p>Instruction No. 6 misstates the law and tells the jury that it must appear that the circumstances were sufficient to excite the fears of a reasonable person. We say that it must have appeared to the defendant as a reasonable person that the circumstances were sufficient to excite his fears as a reasonable person, placed as he was at the time.</p> <p>Instruction No. 8 is misleading in not going far enough and giving the whole section 4582, Com. Laws of Nevada.</p> <p>Instruction No. 11 takes the doctrine of self-defense out of the case entirely and says “that a killing which is intentional is willful, if the intention to kill has been formed, etc., etc., will be murder in the first degree.” Now, every one who shoots in self-defense has the intention to kill formed before he shoots, and yet no one will say it is murder if done in self-defense.</p> <p>Instruction No. 14 is in the teeth of the statute, and should not have been given, because the statute says no other definition of a reasonable doubt is to be given but the statute.</p> <p>Instruction No. 16 draws the attention of the jury to the testimony of the defendant and so does No. 13, and presents to the jury his testimony alone and not in conjunction with others, and, therefore, was not correct.</p> <p>Instruction No. 17, also, takes out of the case the doctrine of self-defense and says that there need be only the intention to kill and never mentions the words “ and not in necessary self-defense.”</p> <p>Instruction No. 18, also, eliminates the doctrine of self-defense and says that “ malice aforethought means the intention to kill; and when such means are used as are likely to produce death, the legal ■ presumption is that death was intended.” This language conveys the idea that the intention to kill manifests malice no matter how much danger the slayer was in, at the time, from the person killed, and is not law.</p> <p>Instruction No. 19 is not applicable to the case and is not the law. On the contrary it is unlawful to fence up the public domain by settlers.</p> <p>Instruction No. 21 again picks out the defendant and his witnesses to the jury, and says if he or any witness for him have sworn falsely, you may disbelieve them. Such picking out of the defendant and his witnesses, and constantly holding him or them up to the jury takes the place of bold assertion; that the defendant is not to be believed, nor are his witnesses to be relied upon.</p> <p>The court tells the jury Rask may be believed, although he acknowledged to perjuring himself before the coroner’s jury, the committing magistrate and the .grand jury, and that he lied in the district attorney’s office. Yet the court tells the jury they may believe him, but does not say if you believe he has lied or sworn falsely, you may reject his testimony.</p> <p>■ Instruction No. 24 totally ignores all kind of provocation which might reduce it to murder in the second degree, or manslaughter, and just says: “ If he did the killing not in necessary self-defense, it would constitute murder in the first degree.”</p> <p>These instructions are biased, one-sided and misleading, and no instruction which is misleading is cured by an instruction which gives the law correctly afterwards. This rule is clearly set forth in the case of People v. Berlin, 35 Pac. Rep. 499, and authorities therein cited in the dissenting opinion of Smith, J., and on rehearing concurred in by Merritt, C. J., and made the opinion of the court. “The rule that when a charge is erroneous in one part, and injurious to a defendant, the mere stating of a correct rule in another part does not cure it,” is established by every authority entitled to respect. (Brown v. McAllister, 39 Cal. 577; Aguirre v. Alexander, 58 Cal. 21; Fredrick v. Allgair, 83 Mo. 602; Knoiolton v. Fritz, 5 111. App. 2.17; R'. R. Co. v. Monroe, 47 Mich. 152; 10 N. W. 179; Phillips v. Jamieson, 51 Mich. 153; 16- N. W. 318; Murray v. Com., 79 Pa. St. 311; Thompson’s Trials, sec. 2326.)</p> <p>We believe that there are many errors in the case, which is noticed in our bill of exceptions — in fact, the record bristles with them — but feel confident that each of the many we have herein pointed out, would in itself, be sufficient error to reverse the case.</p> <p>The first point relied upon by appellant is that the challenges to the jurors Hilkey, Tallack, Thorpe and others should have been allowed. They fail to show that John Thorpe was the only juror named who served on the jury. This is true, however, for Thorpe is the only one of the jurors complained of that served upon appellant’s jury, Hilkey, Tallack and others having been peremptorily challenged by appellant. Thorpe was challenged by appellant for “implied bias,” which was overruled by the court. After this proceeding as-to Thorpe, and before the jury was sworn, appellant exercised three peremptory challenges, being apparently satisfied with Thorpe as a juror. The challenge to Thorpe, Hilkey, Tallack and others complained of were all challenges for “implied bias.” The statutes.of this state (Gen. Stats. 4220, amended 1889, 83) permit a chailenge for one or more of nine causes. ' In the challenge to Thorpe appellant failed to name any one of the statutory causes. In State v. Gray, this court said: “If the challenge be considered as made for implied bias it was properly overruled, because it does not sot forth any ground upon which a challenge for implied bias may be made.” (State v. Gray, 19 Nev. 212, et seq.; 12 Cal. 492; 16 Cal. 130; 4 Denio, 31; 2 Green (N. J.) 195; 37 Cal. 258, 277; 41 Cal. 429; 2 Nev. 231; 6 Nev. 327; 11 Nev. 106.)</p> <p>These authorities are ample to dispose of the challenges; they are conclusive, but on the principle that the last should be the strongest and to clinch the point we cite Gen. Stats. 4222: “In a challenge for implied bias, one or more of the causes stated in section three hundred and forty (4220) must be alleged.” The defendant had the power and the right to use his peremptory challenges as he pleased; he was- free to use or not to use them, as he thought proper, but having resorted to them they must be followed out to all their legitimate consequences. (Freeman v. People, 47 Am. Dec. pp. 228-9; 47 Am. Dec. 238; 2 Keyes, 243; 54 Barb. 341; 6 Park. (N. Y.) 199.) He thereby voluntarily blots out all error, if any occurred, in overruling the challenges for cause, and cannot be heard to allege any exception as to those jurors.</p> <p>In accepting Thorpe while the accused had unused peremptory challenges he is estopped from complaining that Thorpe was not impartial. (Spies v. People, 3 Am. St. Rep.. 320.)</p> <p>As to juror Schutes his case was doubly cured, for before he was peremptorily challenged he was challenged for actual bias. Triers were appointed who found the challenge untrue, which was final as to his qualifications as a juror in the case. (Gen. Stats., sec. 4231; State v. Gray, 19 Nev. 213; 49 Cal. 166.)</p> <p>The second point made by appellant is “that the juror Rapley was a qualified juror in every way.” Counsel “ admit that it is seldom error to excuse a juror on challenge.” The supreme court of California in People v. Murphy, 45 Cal. 137, say: “The action of a trial court in allowing a challenge to a juror for implied bias is not open to review.”</p> <p>The defendant peremptorily challenged Schutes. “The decision of the triers is final” (Gen. Stats. 4231), and it “ is not subject to exception or review upon appeals.” (State v. Gray, 19 Nev. 213.) ,</p> <p>The juror Thorpe was a qualified juror under State v. Millian, 3 Nev. 430; 16 Cal. 162;-18 Conn. 166; 9 Fla. 215; 24 Ga. 297; 18 Ga. 333; 45 Ga. 225; 3 Gilman, 368; 7 Ind. 332; 53 N. Y. 164; 2 Dev. & Bat. 196; 42 Tex. 377.</p> <p>Where a juror states that he has an opinion that it would take evidence to remove, yet, if it appear that he could discard that opinion, and render an impartial verdict without being influenced by the opinion, he is not disqualified. (People, ex rel. Phelps, v. Oyer & Termine, 83 N. Y. 436, affirming 19 Hun. N. Y. 91; 94 111. 305; 48 Cal. 253; 49 Cal. 174; Kumli v. S. P. Go., Sup. Ct. of Or., vol. 28, p. 673, followed the sound doctrine laid down by Chief Justice Marshall, 1 Burr’s Trial, 416.)</p> <p>Before a juror is disqualified his opinion must be a fixed, absolute, positive, definite, decided, substantial, deliberate, unconditional one. The rule is almost universally laid down by these words or words of similar import. A conditional, hypothetical, contingent, intermediate, floating, indefinite, uncertain opinion will not do. (Schaeffler v. State, 3 Wis. 823; People v. Bocline, 1 Denio, 281; Staup v. Com., 74 Pa. St. 458; Willis v. State, 12 Ga. 444; Quiander v. Gom., 3 Leigh, 780; Stout v. People, 4 Parker’s Crim. Rep. 71; 1 Thomp. Tr., sec. 78; Kumli v. S. P. Go., 28 Pac. 639; Gom. v. BTcMillian, 22 At. Rep. 1029; People v. McGonegal, 17 N. Y. Supp. 147.)</p> <p>The case of State v. BTurphy, 37 Pac. 420, cited by appellant, is not in point here. In that case, when appellant was forced to take juror Kile, defendant’s peremptory challenges were all exhausted. State v. BIcGlear, 11 Nev. 39, does not support the contention of appellant. The dying declarations of Willie Litster, the deceased, were clearly admissible. (1 Bishop Crim. Proc., 3d ed., 212, sec. 1; People v. BTcLaughlin, 44 Cal. 435; People v. Vernon, 35 Cal. 49; 1 Greenleaf’s Ev., sec. 156, 158; Wharton’s Crim. Ev., 276; Swisher v. Gom., 21 Am. Rep. 330-331.)</p> <p>The foundation for the dying declarations of deceased was fully laid. (9 Nev. 394; 21 Am. Rep. 330-337; State v. Wilson, 36 Am. Rep. 257; 36 Am. Rep. 294-6; 1 Greenleaf’s Ev.., sec. 158 and note 2, p. 184; 1 East’s P. C. 357; 1 Starke Ev. 523; Bull’s Case, 14 Pratt, 613.)</p> <p>.In State v. Streeter, 20 Nev. 403, this court held: “Objections to questions asked a witness and ruled out by the court become immaterial and will not be considered in the appellate court where it affirmatively appears that the witness was afterward allowed to answer questions of the same import.</p> <p>It was not error to ask Nick Rast the question: “ What religious denomination do you belong to ? ” ■ It was brought out by the defendant.</p> <p>We notice that in copying the instructions into the bill of exceptions counsel have made a few errors and omissions. We suggest that the court use the instructions in the record that were copied by the clerk, as they are free from error. In No. 14 counsel for appellant omit the word “mathematical” entirely. The appellant alleges error in each of the twenty-seven instructions given on behalf of the state, but argue only fifteen, and we take it that they waive objection to those they do not argue.</p> <p>We are unable to find any error in any of the instructions. From Nos. 1 to 14, inclusive, were given by Judge Beatty in State v. Anderson, 4 Nev. 465, and by that judge in every murder case tried before him until he left the nisi prius bench, and after that these same instructions were given by Judges Boalt and McKenney for all the years they were judges, and not one of those fourteen instructions have ever been unfavorably criticized by this court, although presented to it on appeal times without number.</p> <p>Instruction 15, immediately following 14, gives the statutory definition of reasonable doubt verbatim, and this was the only definition of reasonable doubt given in the case. (State v. Potts, 20 Nev. 389.) No. 16 is statutory; it is a copy of our statutes of 1889, p. 27, chap. 21. Nos. 17 and 18 each state the law of this state. No. 19 is statutory. (Stats. 1891, p: 36, chap. 36.) No. 20 is not argued. No. 21 states the law correctly, and so does No. 22. No. 23 is not argued. There is no error in No. 24; it clearly says: “If from the evidence you believe that Alfred Vaughan killed Willie Litster, * * * not in necessary self-defense, but with malice aforethought, willfully, deliberately and premeditatedly, * * * then such killing would constitute murder in the first degree, and you should find this defendant guilty thereof.”</p> <p>We ask the court to read the instructions given on behalf of defendant. There are twenty-nine of them and they are each fair and favorable to him. His counsel sought and obtained every legal principle and definition known to the law to avoid to him the awful consequences of his premeditated, willful and deliberate act of feloniously slaying Willie Litster.</p> <p>If the evidence in this case does not justify the verdict, this court will never be called upon to review a case where it does. [Evidence reviewed at length.]</p> <p>The law in its majesty demands that just punishment be meted out to Alfred Vaughan for the killing of Willie Litster. He who shall, without authority of law, and with malice aforethought, either express or implied, kill a human being, shall be deemed guilty of murder in the. first degree. Alfred Vaughan so killed Willie Litster; he has be'en duly convicted of that crime.</p>

<p>Appeal from order refusing to admit a note in evidence on behalf of plaintiffs and from the judgment, from District Court, Ormsby county, Richard Rising, District Judge.</p> <p>The facts necessary to base the opinion upon appear in the opinion.</p> <p>This is an appeal from an order of the district court refusing to admit in evidence the promissory note to recover judgment for the amount of which the action was brought, and also from a judgment in favor of the defendant for costs upon the objection of defendant. Respondent’s objection to the introduction of the note, as stated by counsel, is that it was denied, first, that there was any valid subsisting debt due from defendant to plaintiff at the time of the execution of said note, and that it is denied that it is the note of the Carson Water Company. [Here follow several pages contesting this position.]</p> <p>After a number of pages on the facts of the case: “If this case had not been once appealed to this court and the principle involved in this appeal decided in the former appeal, there might be some strength and virtue in the position of counsel for appellants, but we deem the decision in Edwards v. Carson Water Co., 21 Rev. 469, and the legal principles there decided absolutely conclusive of this case. In that case this court decided the note of December 8, 1886, not to be the note of the defendant corporation.- It is no longer an open question. In addition to the decision in that case and the numerous decisions therein cited we respectfully submit, to the court that the questions in the case at bar are stare decisis. [Here follows argument on the merits and citation of authorities.]</p> <p>Counsel for respondent places great stress upon the opinion of this court in the former appeal herein — Edwards v. Carson Water Co., 21 Rev. 469 — and contend that it is decisive of every question involved in this appeal. We are unable' to agree with counsel in the conclusion at which they have succeeded in arriving. In the present case we say, without fear of successful contradiction, that the record on appeal discloses an entirely different state of facts from the record in that case, as a comparison of the testimony in the record jn this appeal with the testimony set out in the opinion in that case will show. [Here follows argument of several pages to show that the facts here are not the same as in 21 Nev., supra.]</p> <p>This case involves nothing more than the correctness of the decision of this court in the case of Edwards v. Carson Water Company, 21 Nev. 469. [Here follows argument of several pages to sustain the position.]</p>

L. Fitzgerald, District Judge. The facts are sufficiently stated in the opinion. The action is for money had and received. The gist of the action as gathered from the complaint is that appellant has in his hands $692 40 belonging to respondent. Appellant denies that he has any money belonging to respondent. Upon this state of the pleadings it became necessary for respondent to establish that the appellant had in his hands the sum above stated, money of respondent.

E. Cheney, District .Judge. The facts are stated in the opinion. The motion for a new trial was made upon the grounds: (1) Insufficiency of the evidence to justify the decision of the court and that the same is against law. (2) Errors of law occurring at the trial and excepted to by the defendants.

<p>Appeal from judgment and order denying motion for new trial, from District Court, Washoe county; A. E. Cheney, District .Judge:</p> <p>On December 16, 1879, the plaintiff and Johanna Roberts, his wife, were living upon and occupying the lands in controversy in this action, which were community property. On that day Johanna duly filed a declaration oT homestead thereon, and they continued to live on the premises until October 25, 1893, when she died. Since then the plaintiff has lived upon and occupied them. They had no children, nor has the plaintiff any dependent relatives living with him. There has apparently been no administration upon the wife’s estate. The premises do not exceed $5,000 in value. On July 25, 1893, the defendant Greer obtained a judgment against plaintiff, upon which, on October 27, 1893, an execution duly issued. Under this writ the lands were sold by defendant Caughlin, as sheriff of Washoe county, to defendant Greer, and it is alleged that upon the expiration of the period of redemption he intends to execute a sheriff’s deed for the same. Judgment was rendered in the plaintiff’s favor, to the effect that the sale was void, and enjoining the sheriff from executing any deed thereunder. The defendants appeal.</p> <p>This is an action instituted by respondent to enjoin the sheriff of Washoe county from executing a sheriff’s deed upon sale formally made by him, and for relief in the way of having such sale and the certificate issued thereunder decreed null and void.</p> <p>Respondent is, and has been for several years, the owner of the legal title to the lands described in the record and which were sold by said sheriff in satisfaction of a judgment in favor of appellants and against the respondent Roberts.</p> <p>The question is presented as to whether. or not the homestead character of the property continued after the death of the wife, and after the surviving husband ceased to be the head of the family, or whether the judgment creditors of Roberts had a legal right to subject such property to the payment of their judgment.</p> <p>The court below held that notwithstanding the fact that Roberts had ceased to be the head of the family the homestead character was still impressed upon these lands, and that a sale by the sheriff was unwarranted and void.</p> <p>The first inquiry is, what was the intention of the legislature as expressed in the statute on this subject? The first act of the legislature on this subject (Laws 1861, p. 24, sec. 9) provides that “the homestead and other property exempt from forced sale upon the death of the head of the family shall be set apart by the probate court for the benefit of the surviving wife and his own legitimate children; provided, that the exemption .as provided in this section shall not extend to unmarried persons, except when they have charge of minor brothers or sisters, or both, or brother’s or sister’s minor children, or a mother or unmarried sisters living in the house with them.” The provision in this section, where it says “ that the exemption shall not extend to unmarried persons,” refers to a period of time when the exemption is claimed or asserted, and not to the time when the declaration of homestead is filed. The evident intention of this section was that the legislature did not intend to extend the benefits of the homestead law to any one who was unmarried at the time he asserted and alleged homestead right, even although such person may have been the head of a family at the time the homestead declaration was filed. It is clear, therefore, that it was not intended to exempt the homestead from forced sale in cases where the judgment debtor had no one depending on him for support. It would scarcely be claimed that, if the above statute was still in force in this state, the respondent in this case would be entitled to the relief which he now seeks. It therefore becomes pertinent to inquire whether or not the legislature has changed the law upon this subject since the enactment of the section. We find that the next action upon the part of the legislature resulted in the passage of the act of March 6, Stats. 1864-65, p. 225. Section 4 of that act provides “the homestead and other property exempt from forced sale shall, upon the death of either husband or wife, be set apart by the court for the benefit of the surviving husband or wife, and his or her legitimate children; and in the event of there being no survivor or legitimate children of either husband or wife, then the property shall bo subject to the payment of their debts; provided, that the exemption provided for in this act shall not extend to unmarried persons except when they have the care and maintenance of minor brothers or sisters, or both, or brother’s or sister’s minor children, or a father or mother, or both, or grandparents or unmarried sisters living in the house with them.” While the first act quoted speaks of the death of the head of the family, and the second act speaks of the death of either husband or wife, the second section quoted also says that in the event of there being no survivor or legitimate children of either husband or wife, then the property shall be subject to the payment of their debts. We might concede that if section 4, act of 1865, had been omitted, then in this case the property would not be liable to the payment of the judgment in question, for the reason that such property was only made liable to "the payment of debts in cases where there was no surviving husband or wife or children. There being a survivor, however, in this case, it might, with some reason be claimed that the homestead property was not liable to the payment of debts. The proviso in section 4 of the act of 1865 is substantially the same as in section 9 of the act of 1861.</p> <p>The purposes of a proviso in a legislative enactment is to modify, limit, or restrict the operation of the general provision. A proviso is said to be in the nature of an exeception or reservation, and takes certain cases out of the operation of the general statute, which otherwise would be included within it. Therefore, the proviso in the act of 1865 declares that the exemption claimed or asserted shall not extend to unmarried persons, unless they have some of the persons mentioned in the statute under their care or support. In other words the exemption can only be asserted or claimed by tbe head of the family. The courts have frequently held that a head of a family need not necessarily be a married person. As before stated the word exemption has reference to and provides for the assertion of a right or privilege at a time when an effort is being made by virtue of legal process to subject certain property to the payment of debts. While a person may legally file a declaration of homestead, and may maintain certain homestead rights, so long as certain relations or conditions exist, as soon as these relations or conditions have ceased the exemption can no longer be successfully asserted, or, in other words, the exemption shall no longer extend to the homestead property.</p> <p>Was it not the intention of the legislature to provide that so long as the debtor was the head of a family, or had persons depending upon him for support, he could assert a homestead right, and is it not equally clear that as soon as he ceased to occupy such a position, ceasing to be the head of a family, and having no one dependent upon him, he should no longer be entitled to exempt his property from forced sale precisely as though he had attempted to assert such homestead right, although never occupying the position, which entitles him to claim such exemption? - -</p> <p>The spirit of the homestead law is that the judgment debtor shall be entitled to claim a homestead for the benefit and in the interest of those dependent upon him.</p> <p>Subsequent to the passage of the act of 1865 some doubts were expressed by the courts or by the profession as to the meaning and scope of the proviso contained in section 4 of that act. It will be remembered that we have claimed under both the act of 1861 and 1865 that the conditions and circumstances surrounding the debtor at the time he files his declaration of homestead do not determine his rights in this regard. A change in conditions and surroundings will result in taking away or defeating a right which previously existed. - •</p> <p>The next act of the legislature of this state, and the one in force during all the times mentioned in the record in this case, and which is controlling upon the question now presented, is the act of March 17, 1879, Stats. 1879, p. 140. • Section 2 of that act re-enacts substantially -section -4 -of the act of 1865. ■ The act of 1879 quotes the proviso- the same as in 1865 and then adds the following: “And in all such cases the exemption shall cease upon the cessation of the terms upon which it was granted.” It will be conceded that the right to claim an exemption is created, given or granted by the filing of a declaration of homestead. The conditions and terms upon which a homestead right is created, given or ■ granted are that the person filing such declaration of homestead is the head of a family or is, at the time of filing such declaration, residing with the family, or with certain persons, or a person under their care or maintenance. (Sec. 1, act of 1879.)</p> <p>The terms mentioned in the new proviso just quoted are the requirements which must exist and be made to appear in the declaration of homestead. If these terms have ceased to exist, such, for instance, as the party who had previously been in a position to file and had filed a declaration of homestead at the time the exemption is claimed, then, by the express provision of this proviso, the exemption, or the right to claim one, shall cease.</p> <p>The statue of 1879 makes prominent twro facts: First, that the right to claim as exempt from forced sale a homestead, and, second, that this right may cease to exist, or may be taken away from the debtor. The statute says in plain terms that the exemption shall cease upon the cessation of the terms upon which it (the exemption) is granted. It.will be seen that the idea is kept prominently in view in all statutes quoted that only a debtor who has a family of some character, or consisting of some of the persons mentioned in the statute, shall be entitled to claim an exemption. That which alters the situation and condition of the debtor is a change in the terms and conditions surrounding him at the time the homestead was created.</p> <p>At one time the state of California had a statute very much like ours, prior to 1879. In the case of Revallc v. Kraemer, 11 Cal. 66, the supreme court of that state uses this language, at page 73: “ This question may be properly considered under two aspects: (1) Whether the privilege of the homestead ceases, when the party ceases to be the head of a family. (2) Conceding that it does, in what manner, would the title inure to the benefit of the creditors? The leading idea upon which the constitution and statute are both predicated is the protection of the family. To carry out this intent, the homestead of the head of the family is protected from forced sale. Any individual of either sex may be the head of a family. It is not necessary that the head of a family should be a married person. But, unless the person is the head of a family, the right of homestead cannot exist. And cannot the same person at one time be the head of a family and not at another? And if'the privilege is an incident to a certain state and that state itself ceases, why should not the incident fall with it? At one time in California the law was that the owner of a homestead, the husband for instance, could convey the homestead without the wife joining in the deed. The existence of the homestead simply resulted in preventing the purchaser from obtaining possession under his deed. As soon as the homestead ceased to exist, the purchaser could maintain an action of ejectment under his deed, although at the time the deed was executed the premises conveyed constituted a homestead and the wife did not join in its execution.” {Gee v. Moore, 14 Cal. 472; 10 Fed. Rep. 601; 17 Fed. Rep. 88.7; 30 Fed. Rep. 886; 6_N W. Rep. 40; 31 Cal. 526, 536, 537.)</p> <p>Since these decisions in California the statute in that state has been changed so that at this time, in the event of the death of either husband or wife, the title to the homestead vests absolutely in the survivor, and shall be held by the survivor, as fully and amply as the same was held by them or either of them immediately preceding the death of the deceased, and the homestead shall not be subject to the payment of any debts or liabilities of the husband or wife, or either of them, previous to or at the time of the death of such husband or wife. {Watson v. Creditor, 58 Cal. 556, 557; Tyrrell v. Baldwin, 78 Cal. 470, 473.)</p> <p>In the case of the Estate of David Walley, 11 Nev. 260, this court discussed, at some length, and pointed out the distinction between a homestead created under the homestead law, by the filing of a declaration, and a homestead set apart by the court during the administration of an estate, and also discussed the meaning and effect of the proviso contained in section 4 of the act of 1865. This decision was rendered prior to 1879, and the position taken in it and the doubts raised by the contention of counsel in that case no doubt prompted the legislature to add the proviso found in section 2 of the act of 1879.</p> <p>While it will be conceded by appellants in this case that the respondent Roberts could hold, a homestead in question, as against the personal and individual debts of his deceased wife, the legal title of the property being in the survivor, our contention is that the survivor cannot in this case claim an exemption as against his own personal, individual debts. This court in the case just cited holds that the exemption, the one in favor of the survivor as against his own debts, is excluded by the proviso.</p> <p>We admit that certain language has been used in the act of 1879 which leads to some doubt touching its correct construction, but, when the whole section is taken in consideration and full meaning given to all of its terms, it seems that it is made to appear that the legislature did not intend for all times to exempt the lands of the owner from forced sale.</p> <p>The only question presented is: Did the homestead right and exemption survive to the plaintiff after the-death of his wife? In discussing this question we do not deem an examination of the early territorial statutes material. Section 30, article IV. of the constitution declares that: “A homestead, as provided by law, shall be exempt from forced sale under any process of law.” The statute declares to the same effect (Gen. Stats., sec. 539). This section further provides that in a case like the one at bar “from and after the filing for record of said declaration, the husband and wife shall be deemed to hold said homestead as joint tenants. See 1 Blackstone, book 2, chap. 12, page 181.</p> <p>The law contemplates three classes of homesteads: First —One initiated by the husband and wife, or either of them, upon common property. Second — One initiated by the husband and wife jointly, upon the separate property of one of the spouses. Third — One instituted by an unmarried person, who at the time of selection is at the head of a family. As to the first, it is held by the spouses in joint tenancy. The second is not so held, but is made to terminte at-the death of One of the spouses, and the third is made to terminate where the condition upon which it is granted ceases; that is, when the unmanned person ceases to be the head of a family. The first two depend solely upon' the marital relation. It is '.in no wise made to depend upon the fact that there are children or other members of the family, and if the homestead be upon the common property, it descends absolutely to the survivor, it being held in the nature of a joint tenancy," all of the incidents peculiar to the estate thus created and existing, necessarily continue to the surviving spouse. That there should be no doubt on this question, the statute further provided in the same section: “That if the property declared upon as a homestead be the separate property of either Spouse, and shall retain its character of separate property until the death of one or the other of such spouses, then and in that event the homestead right shall cease in and upon said property.” This, under the well-settled rule that “Expressio unius est exelusio alterius,” is equivalent to declaring that wdien the homestead, as in this case, is carved out of the common property, the homestead right shall not cease upon the death of either of the spouses. The learned counsel for appellants founds his argument against this plain purpose of the law upon section 542 of the general laws relating to the subject, but this cannot avail him. Should we concede that this .section was intended to vest any particular estate in the persons mentioned, still it uses language confirmatory of the" right in respondent for what we contend. It says that the homestead exemption “ shall not extend to unmarried persons except when they have the care and maintenance of minor brothers or sisters, or both, or of a brother’s or sister’s minor children, or of a father or mother, or of grandparents, or of- unmarried sisters living in the house with them; and in all such cases the exemption shall cease upon the cessation of the terms upon which it is granted.” Under the familiar rule just above cited, here we find furthér confirmation of the intention of the lawmakers, that the homestead of the husband and wife upon community property shall, with all its incidents, descend to the surviving spouse. The section further emphasizes this in a subsequent proviso, which says: “ That no exemption to the surviving spouse shall be allowed in cases where the homestead declaration has been filed upon the separate property of either husband or wife.”</p> <p>.But this provision of the law has no application to the real question at issue here. It is a provision regulating the procedure of courts in the administration of estates. (Smith v. Shrieves, 13 Nev. 306, 826.)</p> <p>This court expressly held in Estate of David Walley, 11 Nev. 260, that “ a childless widow ” was embraced within themeaning of the words “family of the deceased.” Neither the constitution nor the laws suggest that the spouses hold the homestead right by any different tenure. Their rights are equal whilst living, and the right of survivorship is the same. The husband, as the surviving spouse, has no more, nor no less, rights to the homestead than the wife, as the survivor, would have. These laws have a humane, object and demand a liberal construction. (Thompson on Homesteads and Exemptions, sec. 7.)</p> <p>In a case in Massachusetts the husband and wife acquired a homestead. They had one son; the wife died and the son became of age and left his father; the latter continued to reside on the premises. On the creditors seeking to apply it to the satisfaction of their demands, the court held the homestead exempt. (Silloway.v. Brown, 12 Allen, 34; Doyle v. Oolum, 6 Allen, 71.)</p> <p>The case of Revalk v. Kraemer, from which counsel quote extensively, is found in the 8th California, at page 66, not in the 11th as cited by them.</p> <p>As the constitution and laws of California then stood, and as is argued in that case, it was the “heads of families” alone who were entitled to a homestead. These were subse-. quently changed to conform more fully to the humane purposes of the provisions, and now, as in this state, the right is made to depend mainly upon the marital relation, and is subordinate to what is termed the heads of families. The rule in that case no longer obtains in California, nor in but few states in the' union. In Tyrrell v. Baldwin, 78 Cal. 475, the court says: “The death of one of the spouses does not alter in any way the estate or title of the homestead.”</p> <p>In Re Atterman, 80 Cal. 209, the question arose as to the rights of the surviving husband in the homestead, and the court approved the doctrine as above stated in Tyrrell v. Baldwin, and says: “ * * * The death of one of the spouses did not alter in any way the estate or character of the homestead.”</p> <p>See also Bretten v. Fox, 100 Mass. 234; Kimbrell v. Willis, 97 111. 494; Blum v. Gains, 57 Tex. 110; Stewart v. Brand, 23 Iowa, 477; Header v. Place, 43 N. H. 307; Town v. Rumsey, 35 Pac. Rep. 1025.</p> <p>We do not deem a further citation of authorities necessary to the support of the judgment in this case. The opinion of the learned judge, upon which the judgment in this case is made to rest, is incorporated in the transcript on appeal, and replete with reason and authority therefor.</p>

<p>Original proceeding on application for writ of habeas corpus.</p> <p>Oral argument. No briefs on file.</p>

<p>Appeal from judgment on verdict of guilty of murder in first degree and order denying motion for new trial, from District Court, White Pine county; George F. Talbot, District Judge.</p> <p>The defendant rests his application for a new trial upon the ground that the verdict is contrary to law and evidence. If the defendant committed a crime in the killing of the deceased, it could only amount to murder in the second degree. The evidence, without contradiction clearly establishes that the killing was done without premeditation, or any mixture of deliberation, when the situation of the parties was equivocal and the provocation offered by the deceased was very great and calculated to exasperate and greatly excite the defendant, and while the attitude of the deceased was menacing and threatening. There is no contradiction in the evidence but that the defendant was greatly excited at the time of the killing, and for some time thereafter. There is no contradiction in the evidence but that the defendant for many years prior had been, and at the time of the killing continued to be, insane, or at least of unsound mind, and hence lacking in discretion, and this, taken in connection with the circumstances surrounding the parties, establishes that the crime, if crime was committed, could not have exceeded murder in the second degree. The verdict, taken in connection with the evidence, shows that it was the result of prejudice on the part of the jury.</p> <p>Appellant having waived all legal grounds of exception save the statutory “Sixth,” Crim. Prac. Act, sec. 128, and believing that the cobwebian argument of counsel for appellant has been successfully brushed aside, we will attempt to reply to the only point in appellant’s brief that has even a semblance of foundation upon which to be based, and will confidently submit the case as appellant has done, upon the sole argued exception, namely, “ that the verdict is contrary to law and evidence,” and that the killing could amount to only murder in the second degree, if at all a crime. That the killing was a crime cannot be gainsaid; if a crime, the killing must necessaril}'- have been unlawful, and if with malice aforethought, it amounted to murder (Com. Daws, sec. 2321), and it remained for the jury to fix the degree. It has done so, and this court will not interfere therewith. The fact being that appellant relies, wholly in this court on the “ sixth ” statutory grou-ncL of exception, the court will consider the appeal only upon that question, and will, under the circumstances, not disturb the judgment of the district court.</p> <p>The court having called special attention at the oral argument of this case to one of the instructions and asked my views upon it and kindly given me permission to file the same in writing, I herewith present this:</p> <p>The indictment is for “ without authority of law and with malice aforethought ” killing deceased “ by shooting him with a pistol as charged in the indictment;” it must be murder in the first degree.</p> <p>It was laid down by this court in an opinion by one of the present justices as follows: “Indictments for murder charging the act to have been done with malice aforethought,” is “ tantamount to an averment tha,t the act was willful, deliberate and premeditated.” {State v. Hing, 16 Nev. 308-9.)</p> <p>Again, in People v. Vance, 21 Cal. 402, cited by Justice Belknap in the Hing case, supra, the matter is set forth to the same effect simply transposed. Justice Field in this decision says: “The objection that malice aforethought is not used in the indictment is met by the fact that words ‘equivalent in their import to malice aforethought are used/ viz., willfully ‘maliciously, feloniously and premeditatedly.”’</p> <p>Now let us go back to the first case decided on the Pacific coast on this subject, as early as 1858, and which is the foundation of all the cases on the subject since. There we find that the court, in passing upon “malice aforethought,” adopts Webster’s definition of “aforethought” as meaning “premeditated,” and declares “deliberate” and “premeditated” to be synonymous. (People v. Dolan, 9 Cal. 583.)</p> <p>And these cases,- except one, all resulted in convictions of capital crimes. Hence I say if these be all “ tantamount ” (State v. Hing), or “equivalent in import” {People v. Vance), and “synonymous” {People v. Dolan), as used in the indictment, then “without authority of law and with malice aforethought by shooting with a pistol as charged in the indictment,” as used in this instruction, must necessarily be, tantamount and of equivalent import to and synonymous with willfully, maliciously, feloniously, deliberately and premeditatedly. What else could it be? Could a man possibly kill another without authority of law and with malice aforethought by shootinng him with a pistol, as charged in this indictment, and be guilty of any less crime than murder in the first degree when malice aforethought as used in this indictment means or is tantamount and equivalent in import to and synonymous with willfully, maliciously, feloniously, deliberately and premeditatedly? And can we even imagine that malice aforethought does not mean and embrace every other one of these terms? Could the instruction have been made any more legal by tautologizing it so that it would have read malice aforethought with all the synonyms thus: “If you believ.e, etc., without authority of law and with malice aforethought, willfully, maliciously, feloniously, deliberately and premeditatedly kill, as charged in the indictment, by shooting with a pistol.” I submit that it would not, and if all not necessary, then none of these synonyms or tantamount words were. Again deliberation and premeditation are used neither connectively nor disjunctively, but synonymously in our statute, and if either be proven the killing will be murder of the first degree. “Under our statute,” says this court in 15 Nev. 415, “ express malice necessarily renders any murder murder of the. first degree. There may be murder of the first degree without it, but it cannot coexist with murder of the second degree.”</p> <p>In this instruction the jury is charged that it must find malice and that, too, aforethought, i. e., premeditated. (Webster and State v. Dolan, supra), and if premeditated malice and that malice express, it is murder in the first degree by this case of State v. Lopez, and in the case now submitted to this court all the evidence proves beyond a reasonable doubt that the defendant killed deceased with that deliberate and premeditated, i. e., malicious, intention unlawfully to take away the life of a fellow creature. “Manifested by external circumstances capable of proof” is defined by our statute to be express malice. (Crimes and Punishment Act, sec. 16.)</p> <p>Nowhere in the case can a scintilla of proof be found to establish implied malice, but if it were there, it would make no difference to the defendant, because any malice aforethought constitutes deliberation, premeditation, etc., etc., which, with the balance of the charge and the instructions taken altogether, constitutes murder of the-first degree.</p> <p>If this be not all sufficient, I call the court’s attention to the fact that as this court ever construes and considers the whole case together, this questioned instruction is immediately followed by others defining the degrees of murder and all the grades and classes of homicide, so that even if this instruction does not state the whole law of the case, which I dan never confess in the light of the foregoing authorities, still, any evil that might have arisen from its supposed erroneousness was wholly cured by what followed and was given in connection with it, and the defendant could not have been prejudiced by it in the light of all the testimony and all the instructions, and leaving the case I respectfully urge a consideration of section 33 of our crimes and punishments act.</p>

E. Qheney, District..Judge. The facts sufficiently appear in the opinion. Defendant herein has been deprived of her liberty without “ due process of law,” in that she was indicted by an illegal grand jury.

E. Cheney, District Judge. The facts are stated in the opinion. This is an appeal from the judgment of non-suit upon a part of the counts in plaintiff’s complaint. [After several pages of argument on facts and pleadings.] Defendant’s ground for non-suit, that plaintiff was discharged by defendant without objection or protest, and that he voluntarily quit defendant’s service, is a marvel of misconstruction.

E. Cheney, District Judge. The facts are stated in the opinion. This is a suit for a partnership accounting between respondent and appellant, and is the second trial of this case.

<p>Original application on petition for writ of habeas corpus.</p> <p>The facts sufficiently appear in the opinion.</p> <p>Argued orally.</p> <p>Robt. M. Beatty, Attorney-General, against. (Cited Gen. Stats., secs. 3691-2.)</p>

E. Mach, District Judge. The facts sufficiently appear in the opinion. The defendant demurred on the ground that the complaint does not state facts sufficient to constitute cause of action. The demurrer was overruled and defendant refused to answer. Plaintiff took judgment as prayed for in the complaint. The demurrer should have been sustained. The complaint does not state facts sufficient to constitute a cause of action.

E. Cheney, District Judge, presiding. The facts sufficiently appear in the opinion. This action was brought to obtain a judgment of the lower court declaring plaintiff and defendant partners in a mining venture. * * * The findings of fact upon which the decision is based, are outside of the issues made by the pleadings.

F. Talbot, District Judge. The facts sufficiently appear in the opinion. This was an action in assumpsit in the nature of an action for money had and received. The defendant demurred to plaintiff’s complaint on the grounds that it stated no cause of action, and was ambiguous, etc., and urged that the complaint showed that plaintiff’s remedy, if he had any, was in equity for an accounting, and that an action at law could not be maintained.

Original proceeding to obtain writ of certiorari. The facts sufficiently appear in the opinion. The facts of this case were presented before the supreme court on oral argument. The question before the court is whether the act entitled “An act to amend an act entitled 'An act for the purchase and preservation of public newspapers printed and published in the several counties of this state,’ approved February 1, 1865,” is constitutional or not.

Original proceeding on application for writ of mandamus. The facts are sufficiently set forth in the opinion. Argued orally.

<p>Petition for rehearing.</p>

Original proceeding on petition for writ of mandate. This is a proceeding to enforce the payment into the state treasury of moneys withheld by respondent, as county treasurer of Ormsby county, under a claim that said money belongs of right to Ormsby county as part of the salaries of its assessor, auditor and treasurer legally payable by the state. The question involved is whether or not the state is in law required to pay a part of the salaries of those officers.

E. Mach, District Judge, presiding. The points sufficiently appear in the opinion. Appellant relies on the proposition that the ignorance, mistake, or even fraud, of the members of the election officers (in this case there is not even a pretense of fraud) cannot deprive -the voter of his constitutional right to vote and have his vote counted.

Talbot, District Judge, presiding. The facts sufficiently appear in the opihion. The only question in this case is whether John Hayes received more lawful votes than the 561 found by the judge at the trial to have been cast for him for the office. Respondent may attempt to urge errors in the court below against him, but such errors, if any, cannot be considered by this court, as respondent has not appealed. {Chittenden v. Brewster, 2 Wall. 191; Martin v. Northern Trans.