Volume 33 — Nevada Reports

trict of the State of Nevada, Ormsby County; John S. Orr, Judge, presiding. Action for personal injuries by Theresa Barnes against the City of Carson. Judgment for plaintiff, and defendant appeals. The facts sufficiently appear in the opinion.

Original proceeding. In the matter of Smith H. McKim against the District Court of the Second Judicial District of the State of Nevada, and others. On a petition praying that respondents be required to permit petitioner to file a certain plea in abatement. The facts sufficiently appear in the opinion. I. ' Jurisdiction of subject of action may be challenged at any time by court of its own motion, by defendant or by stranger to suit. II.

<p>1. Appeal and Error — -Judgments Reviewable — Order oe Dismissal — Appeal from Justice’s Court.</p> <p>Since an order dismissing an appeal from a justice’s court, whether erroneous or not, would be within the jurisdiction of the district court, it could not be reviewed by the supreme court by certiorwi; being a final determination of the appeal.</p> <p>2. Justices oe the Peace — Appeal—Disposition.</p> <p>The district court may either dismiss an appeal from a justice’s court, or may try the case de novo, but cannot refuse to do either, so that if the justice’s court had jurisdiction to enter its judgment, the district court could not on appeal to it remand the case and compel the justice’s court to again assume jurisdiction.</p> <p>3. Justices oe the Peace — Appeal—Dismissal—Want oe Jurisdiction oe Trial Court.</p> <p>If a justice’s court did not acquire jurisdiction of defendant’s person, the district court would not have jurisdiction of an appeal from its judgment, and should dismiss the appeal.</p> <p>4. Justices oe the Peace — General Appearance.</p> <p>The answer of a defendant in an action before a justice’s court stated that defendant objected that no copy of the complaint was served upon him, and prayed that service of summons be set aside as void, and further stated that defendant, without waiving his objection to want of service of a copy of the complaint, for answer thereto denied each allegation thereof. Held, that the justice’s court acquired jurisdiction of defendant’s person.</p>

Original proceeding. Mandamus by the State on the relation of Joe Josephs against W. G. Douglass, as Secretary of State of the State of Nevada. The facts sufficiently appear in the opinion. I. Relator contends that the office of clerk of the supreme court, as created by the constitution of this state, is an elective office, the incumbent to be elected at the same time and in the same manner as other state officers are elected.

Original proceeding. Application by Silver Peak Mines and others for a writ of prohibition against the Second Judicial District Court of Washoe County, Nevada, and the Honorable W. H. A. Pike, Judge… Held: The duty did not rest upon the successful party to furnish the facts necessary to move the defendant’s discretion.

In the matter of the application of Leonard B. Fowler, for an order directing the County Clerk of Ormsby County, Nevada, to correct certain omissions in primary election ballots. The facts sufficiently appear in the opinion.

<p>Appeal from the District Court of the First Judicial District of the State of Nevada, Esmeralda County; J. P. O’Brien, Judge, presiding.</p> <p>Action by L. C. Van Riper and another against Charles H. Botsford and others. From a judgment for plaintiffs and from an order refusing a new trial, defendant Botsford appeals.</p> <p>The facts sufficiently appear in the opinion.</p> <p>First — There was no joint ownership, nor a community of property, between the plaintiffs and the defendant Botsford in either the option, or in the proceeds from the sale of the option.</p> <p>The respondents in their brief merely assert that plaintiffs and defendant Botsford were joint owners of the stock. They give no reasons for this assertion, except that the trial court found the alleged contract as stated in the complaint. They admit that plaintiffs contributed no money to the venture. They claim that defendant Botsford excluded the plaintiffs from all participation, and withheld all information from them. But they do not claim, and do not show, that the plaintiffs were ready, able or willing to join in the purchase of the option, and to make a new contract to meet the unexpected conditions. All they do claim is this: “In the early stages of the negotiations, when it became manifest that considerable sums would be necessary to promote the venture, the matter of its provision was ‘discussed,’ and the plaintiffs ‘recommended’ that ‘the defendant see’ Mr. Davis in that regard.” This is but a sample of the turgid phraseology found everywhere in respondents’ brief. The plaintiff Van Riper puts it in a more prosaic light. His language on the witness stand was as follows: “Mr. Botsford said: It is going to take some money to secure this option; and Mr. Hutchinson said: ‘Well, you can get somebody here who has money.’ ” And the plaintiff Hutchinson expresses the situation even more tersely. He testified: “Of course, he knew that I was unable after my first failure to raise money, and that I was not in a position financially to raise money, and I suggested that if he secured the option he was working for — it was a suggestion or idea — to present it to Loftus and Davis, and possibly raise money locally.”</p> <p>That shows that the plaintiffs could not be of the least assistance financially. In fact, counsel admit that the plaintiffs had no means. Perhaps that explains why they were “kept in the dark.” They could not come in on the deal. But the appellant provided and furnished fifty thousand dollars. Twenty-five thousand dollars of' that amount was paid to Mr. Moore and has already been discussed. The other twenty-five thousand dollars was paid on account of installments on the option. This amount did not come from Mr. Haskell in the first instance, and was not procured from him on the promise of delivery tc him therefor of five thousand shares of the stock, as stated by counsel for respondents. The appellant and Mr. Davis had given their j oint note in part payment for one of the options in the sum of twenty-two thousand five hundred dollars, and when the note fell due Mr. Davis took it up and charged the appellant with one-half of that amount. About the same time the appellant obtained a loan of fifteen thousand dollars from Senator Nixon through his bank, to enable him to make another installment payment then becoming due on one of the options. It was then that the appellant telegraphed to Mr. Haskell at New York and from him received the sum of twenty-five thousand dollars, which he used in repaying the loan from the Nixon and Wingfield bank and the amount he owed to Mr. Davis on account of the note taken up by the latter as above stated. Thus'Mr. Haskell sent to the appellant twenty-five thousand dollars, with which the appellant paid his personal obligations and liabilities incurred by him in the purchase of the options. Afterwards the appellant repaid and compensated Mr. Haskell for this money by transferring to him five thousand shares of the stock. But there is no evidence showing what promises or inducements, if any, the appellant held out to Mr. Haskell, or upon what terms he obtained this money from him, otherwise than as a personal loan.</p> <p>Now, the findings of fact of the trial court find substantially the facts as here stated, without, however, going into the details. True, the court finds that “the plaintiffs and defendant Botsford” secured the option. And the trial court finds that parties other than the plaintiffs advanced moneys to enable “the plaintiffs and the defendant Botsford” to make the initial payments on said options. And the court also finds that the plaintiffs furnished the defendant with “such information and money,” etc., “as were required of them.”</p> <p>But these findings cannot be taken literally. There is no pretense that the respondents contributed any money to the venture. It is admitted by respondents in their brief that they contributed none. The complaint does not allege the “purchase” of an option, and does not allege that respondents joined in or contributed to the purchase of the option. And in their brief the respondents complain in this court that “they did all they were permitted to do,” but that “as soon as the probable success of the venture became apparent, the defendant Botsford withdrew himself more and more from the plaintiffs and refrained from affording them any information as to the progress of the negotiations.” And counsel also state: “The plaintiffs were without knowledge of, or participation' in, the transaction.” The respondents also plead entire ignorance, at the time of bringing suit, of the fact that the option was purchased and cost money, and their counsel state: “If the plaintiffs failed to take these items of proper charge against the venture (meaning the money expended in the purchase of the option) into consideration in the allegations of their complaint, it was as above stated due to the fact that the defendant had kept them entirely in the dark as to those matters, as well as all other matters respecting the negotiations for the purchase and sale of the option.”</p> <p>Clearly, upon the admitted facts, the findings in the particulars referred to must be deemed findings of conclusions. The court evidently concluded that if the option was secured by the defendant Botsford pursuant to the terms of the parol agreement, that in legal effect the option was secured by him and the plaintiffs. Evidently, the court treated all the money employed in the acquisition of the option as money advanced to the appellant and by the appellant for the use and benefit of the joint venture. But that is a question of law under the evidence and facts of the case, there being no express contract to that effect and no evidence that the appellant voluntarily intended it as such an advance. The question would depend upon the proper construction and legal effect to be given to the alleged parol contract and to the facts and circumstances surrounding the subsequent transactions.</p> <p>The specific facts found by the court are entirely in harmony with this contention. The court finds as one of the terms of the parol agreement that “the defendant Botsford should have the exclusive charge and control of all the negotiations,” and further finds that “the plaintiffs agreed to render services only as required and under the direction of the defendant Botsford.” The court also finds that the defendant Botsford did carry on all of the negotiations in his name exclusively. Also, respondents admit “that from the first defendant Botsford insisted that all active negotiations should be conducted solely by himself.” Hence, the finding that parties other than the plaintiffs “advanced moneys to enable the plaintiffs and defendant to make the initial payments,” is not equivalent to a finding that said parties advanced said moneys to the plaintiffs and the defendant Botsford. There is no express finding saying so in direct terms. The finding is pregnant with the admission that the appellant obtained the money and that the other parties advanced it to him; and in view of the other findings leaving the appellant in the exclusive charge of the negotiations, and conducting them solely in his own name, that must be the construction to be placed upon the. language employed in the finding. The money having been advanced by the third parties to appellant, he could in turn advance it to the joint venture. But whether he did or did not involves in this case a conclusion and not a finding of actual fact. The language that the plaintiffs “furnished such information, money, etc., as were required of them,” likewise is a conclusion; of, to be more exact, it is evasion and a subterfuge,, and not a finding of fact at all. No money was “required” of them by the contract; and the contract contemplated that none of the parties to it should furnish or provide any money or capital. The law did not impose an implied obligation upon them to do so (see authorities cited below). It is admitted that appellant did not “require” any money of them; and they had none and could not have furnished, raised, borrowed or otherwise procured any, according to their own testimony. And the court nowhere finds specifically, or affirmatively and in direct language, any sum or amount of money to have been furnished by the plaintiffs. Therefore, coupled with the fact that neither by the contract, nor by law, nor by express request, the plaintiffs were required to furnish any money, the finding means that they furnished no money, because not required to do so. Thus construed, the finding is in harmony with the other findings, the pleadings, the evidence, the admissions of counsel, and the truth; if not so construed it would be in conflict with all of them.</p> <p>, The trial court finds that the defendant Botsford did not expend any money “of his own” in securing the option. The court had already found that he had so expended the sum of twenty-five thousand dollars in cash (finding 13). And in the 17th finding the court finds that the plaintiffs should reimburse him in cash for this expenditure, pro rata. Hence, the 14th finding clearly means that outside of the money mentioned in the 13th finding the defendant Botsford expended no money of his own, but that the necessary money was advanced to him by third parties, and that he repaid the advances mentioned in the 14th finding out of the stock received.' A mere reading of findings 13, 14 and 17 together will prove this contention.</p> <p>But even then the finding is a conclusion upon its face in regard to the words “no money of his own.” It admits, inferentially, that the defendant Botsford did expend money. Now, construing the finding strictly upon the facts stated within the four corners of the findings of fact, and without looking for information elsewhere as to who the parties were who advanced the money, or as to the terms and conditions upon which the advances were made — all of which the court below failed to find— we have a finding that money was advanced to appellant by third parties, that he expended this money in securing the option, and that he repaid the advances out of the stock received. The court found nowhere who were these parties, and did not find that the advances were made for an interest in the venture or in the profits. Nor did the court find that the advances were not made upon the credit and personal responsibility of the appellant. The mere fact that they were repaid out of stock and by the delivery of stock does not even raise the presumption of an agreement to pay in stock. The court did not find the amount of the advances, and it is impossible from the findings to determine whether or not the value of the stock given in payment was in excess of the amount of the advances, with interest. A bonus might have been paid, and the parties might have preferred to take stock, instead of money. But the court did find that the moneys were “advanced,” and. that the parties were “repaid for money advanced.” These terms, in their ordinary significance, import a loan with a promise to repay, and imply a lender and a borrower, and the relation of debtor and creditor. There is no express finding, and there is no presumption from the facts as found, that the parties, who advanced money to be repaid, advanced it to be repaid only in case of success, and that in the event of failure they would assume the loss. The defendant Botsford, under the alleged parol agreement, had exclusive charge and control of all negotiations, and the plaintiffs agreed to render services only, and as required by him and under his direction. The negotiations were carried on by the defendant Botsford in his own name, exclusively, and the option was taken in his name. Clearly, therefore, the findings of fact show that the defendant Botsford employed moneys secured upon his personal credit and obligation in securing the option. What are moneys of his own? Surely, it can make no difference, so far as the results in this case are concerned, whether the appellant used his own personal money, or money obtained by him upon his credit and personal responsibility.</p> <p>But we do not mean to keep this court from looking to the evidence to ascertain the real facts.</p> <p>It has been already pointed out that the finding under discussion, the 14th finding, excludes the money paid by appellant in cash to Mr. Moore. Therefore it is referable’ only to the Davis and Haskell money, also already discussed. The parol agreement did not require the appellant to furnish, provide or procure any money. The court does not find that through the appellant’s mere efforts, or through the joint efforts of plaintiffs and appellant, these two parties were brought into the venture and became associates of the original three. The parol agreement did not provide for, nor contemplate the bringing in of capital, or associates with capital, on any basis. And Mr. Davis or Mr. Haskell did not come into the venture on the basis that Botsford should give his time and skill, and they provide the capital with which to operate, for a share of the profits. Mr. Davis came in on the basis that the defendant provide a part of the money required, and that himself provide the other part. The defendant then already had something inchoate which he could and did assign to Mr. Davis, and that something the defendant had acquired by personally promising to pay money for it. It makes no difference that when it came to making the actual payments 'the defendant gave his promissory note in part, and in part secured a loan or advance from Nixon & Wingfield’s bank, and that Mr. Davis paid for his own part. It was the condition of the assignment of a one-half interest in the options to Mr. Davis, that he should pay fifty thousand dollars on account of the initial payments, and that the defendant should pay the remainder of the amount due and to become due on the initial payments. The obligation to pay for the entire, undivided option went to the consideration for agreeing to pay for a part of its cost on the part of Mr. Davis. The option was upon a controlling interest in the corporation, and without all the stock covered by it, control could not have been had, the merger could not have been effected, and the .venture would have failed. Thus as to Mr. Davis, at least, the transaction, and the consideration for coming into it, was entire and indivisible, and conditioned upon the appellant’s paying of his share of the initial payments. This involves a matter entirely different from a mere use of efforts to secure an option through personal services. As to the money coming from Mr. Haskell, it is clear that it was not furnished or received until after the appellant had given his promissory note, jointly with Mr. Davis, and had secured the use of other money from the Nixon & Wingfield bank, with which he did pay for installments on the options; and that the Haskell money was used to pay off the personal obligations of the appellant. Supposing the venture had failed after appellant had signed a promissory note, and after the bank had advanced him fifteen thousand dollars. The appellant and Mr. Davis stood the risk of losing this money. The Winslow or Patrick option provided for the forfeiture of the first installment paid in case the second was not forthcoming on time. And the other option was given in consideration of a fifty thousand dollar payment, which probably could not have been recovered if the deal had failed of consummation. The contract effecting the merger, by which the options were taken over by the Goldfield Consolidated Mines Company, was not executed until November 26,1906. There were at least two weeks during which the success of the venture remained doubtful and uncertain.</p> <p>Thus, to come back to the findings, it is at once manifest that finding 14, in stating that the defendant Bots-ford expended no money “of his own,” is not equivalent to finding that he did not employ or use his credit in the purchase and acquisition of the option. It is a half finding, evasive and misleading, and embodies a conclusion rather than a fact.</p> <p>All through the findings there are conclusions, such as that the defendant Botsford secured the option “under the alleged parol agreement”; that he took and held the option in his name “for the joint benefit of himself and plaintiffs”; that he received the hundred thousand shares of stock “for the joint benefit of himself and plaintiffs”; etc. All these findings of conclusions must be disregarded. Construing the findings by themselves, they would be contradictory of each other unless construed as above. The findings clearly show a mere constructive, implied or passive, participation of the plaintiffs in any of the transactions between the defendant and third parties. The findings show that the appellant paid twenty-five thousand dollars to Mr. Moore in cash, and not out of the stock. They find that third parties advanced money, and were repaid for money advanced to appellant. Suppose the venture had failed and there had been no stock. The moneys advanced would have had to be repaid, anyway, presumptively at least. The terms “advance” and “repay” imply an absolute obligation to repay. The court does not find that there was no such obligation. All these facts would have to be taken into consideration if this court confined itself within the four corners of the findings in construing them.</p> <p>The record discloses no facts showing that the plaintiffs would have been or ever were liable for any part of the advances (see authorities below). The complaint, or the evidence, does not show that the alleged original agreement was ever modified, changed or enlarged by the parties to it. The court does not find that the plaintiffs and defendant Botsford subsequently agreed to employ capital in the venture and to share the losses, if any; nor who was to provide this capital, and in what proportion the parties should contribute to it. Presumptively none of them would agree to contribute an amount beyond his means. The plaintiffs confessedly had no means and no credit or financial ability to raise any money. There was no duty upon the appellant to provide money for all three, or any money at all.</p> <p>These premises being conceded, how could the trial court find that with all the risk and liability to repay the advances resting upon the appellant he purchased the option for the benefit of himself and plaintiffs, and under the contract alleged and found as alleged, unless we construe the findings as we have done? It is not to be assumed that the court acted in disregard of- all law. Neither have we any right to impute to the appellant such violent spasms of insanity, magnanimity or charitable instincts as we would otherwise have to impute to him.</p> <p>Besides, unless we thus limit the meaning and effect of the findings, there would be a fatal variance between the pleadings and the proof. The findings, taken literally, would imply that the option was purchased with money provided by appellant for the account of all three; which would involve a contract, express or implied, on the part of the plaintiffs as well as the defendant Botsford to contribute capital and to share the losses, if any. The contract alleged and found by the court avowedly, and by reference to its terms, does not and did not contemplate the provision of capital by the parties thereto. •</p> <p>“The courts will not by implication impose upon the parties to the contract of joint adventure any duty or obligation which is not reasonably or naturally inferable from the terms thereof.” (23 Cyc. 457; Haiokes v. Taylor, 175 111. 344, 51 N. E. 611.)</p> <p>Unless there had been an express promise on the part of respondents to repay to appellant their alleged share of the advances made by appellant, the law would have presumed that he was to be repaid out of the property acquired or its proceeds. (23 Cyc. 457; Bell v. McAboy, 3 Brewst. 81; Williams v. Henshaw, 11 Pick. 79; Wilson v. Anthony, 19 Ark. 16; Lafon v. Chinn, 6 B. Mon. 305; Daw v. Darragh, 48 N. Y. Super. Ct. 138.)</p> <p>“Where one agrees to furnish the capital, and-1 another services, to a joint venture, the latter is not liable for any part of the losses sustained.” (Ranv.Boyle, 5 Bush. 253.)</p> <p>“Contribution cannot be demanded where the party claiming it had no authority from the others to incur the expenses.” (23' Cyc. 458; Petri v. Tarrant, 100 Mich. 117; 58 N. W. 690; 59 N. W. 941; Norris v. Leavitt, 61 N. H. 109; Parshall v. Conklin, 81 Pa. St. 487.)</p> <p>Thus it would be obvious that the contract which the court finds by the finding of fact numbered 6, and which the court further finds by the 15th finding, “was acted upon by all the parties thereto,” is an entirely different contract and would involve a transaction dissimilar from the purchase and sale of an option for a money consideration, set forth in findings 8, 13, 14 and 17. Hence, if we were to take the findings literally, all the findings of the court referring to the advance and expenditure of money, the purchase and sale of an option, the attempted allowance for expenditures and the direction that plaintiffs contribute in cash, and the attempted ascertainment of net profits, and all of findings 7, 8, 9, 10, 11, 12, 13, 14 and 17, would be inconsistent with and outside of the issues made by the pleadings and coram non judice, and the conclusions of law and the judgment based thereon would be null and void.</p> <p>Such a result should be avoided if possible. General findings must give way to findings of specific facts, and such a construction of the findings will be adopted as will render them consistent with the pleadings, and with each other, and as will bring them within the issues tendered by the pleadings in the case. (8 Ency. PI. & Pr. 949; Barnes v. Sabron, 10 Nev. 217; Bank v. Lawrence, 37 Pac. 936; Whitlock v. Mauciet, 10 Or. 166; Brown v. McHugh, 36 Mich. 433; Edivardsv.Nelson, 51 Mich. 121; White v. Abbott, 87 Cal. 245; Marshall v. Golden Fleece Co., 16 Nev. 156.)</p> <p>Therefore, there is neither evidence, nor finding, nor pleading to show that respondents had any property in the option or in the proceeds from the sale of the option. No trust of any kind arises in their favor, since there was no title, interest or estate in or to any of the stock in the appellant’s name or under his control, which in equity or good conscience belonged to the respondents.</p> <p>If this be the correct conclusion, then there was no joint ownership or community of property, no trust of any kind, and no equitable interest or estate in the respondents, in or to any part of the stock, and the cases cited by respondent are inapplicable. (Warwick v. Stockton, 36 Atl. 490; Simmons v. Lima Oil Co., 63 Atl. 260; Dowv.McKinney, 9 Allen, 359; Petriv. Tarrant, 58 N. W. 690; Hughes v. Ewing, 62 S.W. 474-477; Coward v. Clan-ton, 122 Cal. 451; Prince v. Lamb, 128 Cal. 128; Miller v. Butterfield, 79 Cal. 62; Kayser v. Mongham, 6 Pac. 803; Yaeger & Grim’s Appeal, 100 Pa. St. 88; and other cases cited in our opening brief.)</p> <p>All the connection claimed by respondents with any of these payments is that they “discussed” the fact that money was necessary with the defendant Botsford, but that they could not assist him in any way financially. They had a mere “idea or suggestion” that somebody with money could possibly be interested by appellant in the venture. But this evidence was manifestly an afterthought, and untrue, since the plaintiffs in preparing their complaint in this action omitted all reference to disbursements and expenditures. And outside of this evidence there is not even the remotest connection shown between plaintiffs and the purchase of the option.</p> <p>The cases cited in respondents’ brief are not applicable to the facts of this case. Not one of them holds that there can be any trust or other equitable estate or interest in property, or in profits as property, unless the party claiming such estate or interest can show that he has either directly or indirectly contributed money or property to the venture. There is no resulting trust in this case. There is no trust ex maleficio. There is no other kind of implied or constructive trust; for the mere reason that the respondents are not shown to have had any property rights in the option or in the capital used in acquiring the option. (Latta v.Kilbourn, 150 U. S. 524; 37 Law Ed. 1169; 15 Am. & Eng. Ency. Law, 1186, and cases cited under note 10; Butts v. Cooper, 44 South. 617,619; Smith v. Smith, 45 South. 168.)</p> <p>In Camden Land Co. v. Lewis, 63 Atl. 529, the court say: “The plaintiff claims that Sagamore and Sherman farms should be conveyed to it, because it says that the farms were bought for it; that W. D. Lewis, in making the original agreement to purchase, was then acting as its officer and agent. We have no doubt that at the beginning of the negotiations and during the greater part of the time after the owners agreed to sell, and until the deeds were given, Lewis intended that these farms should go to the complainant eventually. All the payments, however, were made by him out of his own funds, or at least out of funds which he thought belonged to him. He charged none of these payments to the company. The company never became bound to purchase either farm, or to repay Lewis for his disbursements. Before the deeds were obtained, and at a time when it was exceedingly doubtful whether the Lewises would be able to complete the payments, a new trust was formed. Money was raised from persons who had had nothing whatever tc do with the previous transactions with the company, and with it was paid a balance due on the purchase of each farm. Upon a careful study of the evidence we are unable to find that any enforceable trust is established in favor of the plaintiff.”</p> <p>See also: Miller v. Butterfield, 79 Cal. 62; Prince v. Lamb, 128 Cal. 120; Cotoard v. Clanton, 122 Cal. 454.</p> <p>There is not a single case, and we challenge the attorneys for the respondents to cite one, which holds that under the circumstances and facts of this case a party standing in the position of respondents has an interest in the property acquired by another with his own funds or credit, or in the proceeds from a sale thereof.</p> <p>Jones v. Davis, 21 Atl. 1035, relied upon by respondents, does not so hold. In that case there was a declaration of an express trust, and the agreement was that one of the joint adventurers should furnish capital and the other personal services. The court said: “Davis had the title, and as between himself and the world was the sole owner; but under his declaration of trust he had that title subject to an interest of Jones in a moiety of the speculation, to be adjusted when his advances were reimbursed.” Besides, in that case the court merely ordered the ascertainment of the money value of the profits for the purpose of enabling the court to award a general pecuniary recovery.</p> <p>In Delmonico v. Roudebush, 5 Fed. 165, the plaintiff had advanced the money to pay for certain contracts, which were used in acquiring an interest in the mine. The court said: “But the fact remains that at the time of the appropriation by Roudebush the plaintiff was interested in the contract, and the use of it by Roudebush was without his consent. This is enough to enable the plaintiff to share in the advantages secured by Roudebush from the use of the contract. The ground of relief is the wrong done to the plaintiff in the use of his means.”</p> <p>The case of Boqua v. Marshall, 114 S. W. 714, which counsel for respondents claim to be “practically on all fours with the present case,” is so different in its facts and in the law applicable to them, that it has absolutely no bearing on the case at bar. In that case there was no question of ownership of property involved. The action was brought by a member of a dissolved partnership firm to recover a share of a broker’s commission earned by the firm while it was in existence. The action was to recover a sum found due upon an accounting and statement of the net profits. The option in that case was paid for out of partnership funds. Said the court, on page 718 of the ■ report: “Mordoff and his associates paid Boqua Jr. $1,000, which was' forfeited when they failed to consummate their purchase. Boqua used this money as a payment to Latham when he secured the October option.”</p> <p>It is true that Boqua, one of the partners, borrowed the sum of $4,000, which he paid to Latham to prevent the option from lapsing, the option then being partnership property. He was allowed credit for this amount, with interest, upon the accounting had to ascertain the net profits. That was merely an advance by one partner for the benefit of the firm, and the partnership thereafter was the debtor, and the partner advancing the money to the partnership was its creditor.</p> <p>What possible similarity that case has with the case at bar is not readily seen. This is an action to recover specific property, which the appellant was about to receive in payment for other property acquired with his own funds, and to which the respondents neither as individuals nor as members of an alleged joint adventure contributed a single cent. If this action had been brought for an'accounting of net profits, and for the ascertainment of respondent’s alleged share therein, and to recover a sum of money, then the case of Boqua v. Marshall, supra, might be said to contain some features which resemble some of the features claimed by the respondents in this case. But even then it would not be authority in the case at bar. Here, the purchase of the option was not made for a partnership by one of its members with partnership funds, or with funds advanced by one of the partners to the partnership or for its benefit. The purchase of the option by appellant was not made under the terms of the contract alleged in the complaint. That contract did not contemplate the use of capital or the “purchase” of an option. Appellant, not having the power or authority of a general partner, could not have bound the respondents by his acts, and the latter did not offer or agree to be bound thereby, when they had an opportunity to claim the right to j oin in the purchase by virtue of the parol contract. Therefore, it could not be said, as was said in Boqua v. Marshall, 114 S. W. on page 717: “He was still a member of the firm when the new deal was made with Latham on October 27th, which was clearly but a continuation of the previous arrangement.”</p> <p>On the contrary, as was said in Miller v. Butterfield, supra: “Neither was obliged by the agreement to contribute to the purchase of a mine, though each may have been entitled to the opportunity to so contribute and to share in the purchase. Certainly they could not, one or more 'of them, allow another to make a purchase with his own funds, and at his own risk, and without being obliged to reimburse him in case of loss, claim the advantages of the bargain in case of gain.” (Miller v. Butterfield,, 79 Cal. 64.)</p> <p>If, however, this court should hold that the appellant must in law be deemed to have furnished and procured all this capital under the alleged parol contract, then we insist that under the authorities and for the reasons stated in appellant’s opening brief, the action should be dismissed.</p> <p>See also: Prince v. Lamb, 128 Cal. 120; Stiles v. Cain, 134 Cal. 170.</p> <p>Second — There can be no accounting of any kind in this action. The complaint should be dismissed.</p> <p>It is very difficult to ascertain just what the contention of respondents’ counsed is in their brief with reference to an accounting. Indeed, it seems that they have no definite theory upon which to justify an accounting of any kind in this case. Their understanding of the law and jurisprudence relating to accounting appears to be in a state of chaotic confusion, since they cite in one breath such widely distinctive cases as Cowardv. Clan-ton, 122 Cal. 451, and Kayser v. Mongham, 6 Pac. 803.</p> <p>The question raised by appellant in his opening brief does not go to the power of the court, in a given case, to mete out either legal or equitable relief. That is too elementary under the system of practice and procedure prevailing in code states to admit of discussion in this court.</p> <p>On the outset it must be remembered that the plaintiffs did not ask for an accounting in the court below, either in their complaint, or at the' trial of the action; nor did the trial court proceed to an accounting, or order the parties to proceed to an accounting, before or during the trial of the action.</p> <p>The circumstances surrounding this case are rather anomalous. The complaint shows no case for an accounting at all. It alleges a right in the plaintiffs, based upon a parol contract, to receive from the defendant Botsford two-thirds of the gross amount of a certain broker’s commission, payable in shares of stock, which the plaintiffs aver to have been earned by the defendant Botsford through personal efforts, and with the assistance of personal services rendered by the plaintiffs to the defendant Botsford under the alleged parol agreement.</p> <p>The complaint further alleges that the defendant Bots-ford had denied the right of plaintiffs to share in said commission; that he was about to collect it; that he was insolvent, and absent from the state; and that the plaintiffs had no adequate remedy at law.</p> <p>The plaintiffs therefore by their complaint sought to intercept the stock, before it was delivered to the defend-’ ant Botsford by the party for whom it was payable, and the complaint prayed for purely equitable relief. It asked that the plaintiffs be decreed to be the owners, and entitled to the possession of two-thirds of the stock, and for an injunction to prevent the stock from being delivered to the defendant Botsford.</p> <p>Assuming for the sake of argument, without admitting, that the complaint shows an equitable estate or interest, arising from some kind of an implied trust, in favor of the plaintiffs in two-thirds of the gross number of shares of stock alleged to be due and receivable, it is clear that the complaint alleges no occasion for an accounting. There was nothing to ascertain, according to the complaint; and the defendant had nothing to account for, since the stock had not yet been delivered to him. In fact, an accounting would he inconsistent with the allegations of the complaint.</p> <p>Likewise, the complaint excludes the possibility of damages, for the same reasons.</p> <p>Therefore, the action being purely equitable, and no damages being alleged or possible under the facts shown, the district court would- have been powerless under the pleadings to give final relief in this action in the form of a judgment at law for the recovery of a sum of money equal to the value of plaintiff’s alleged proportion of the stock. (Prince v. Lamb, 128 Cal. 125-126; S. F. P. Co. v. Fairfield, 184 Cal. 225; Hawes v. Dobbs, 38 N. E. 560; 1 Pomeroy’s Eq. Juris., 3d ed., secs. 170,171.)</p> <p>See note to Bradley v. Aldrich, 100 Am. Dec. 534.</p> <p>It follows that, even if the evidence had disclosed that the. defendant Botsford had already received the stock at the time of the commencement of the action and converted it into money before the injunction was issued, the plaintiffs could not have recovered the value of the stock in money under the pleadings in this action. {Prince v. Lamb, swpra; Faulkner v. Nat. Bank, 130 Cal. 258; Hawes v. Dobbs, 33 N. E. 560; Dykeman v. Keeney, 154 N. Y. 483.)</p> <p>It is claimed, however, that since the defendant Bots-ford obtained possession of the stock during the trial, and still had it in his possession or under his control at the trial and when the second injunction was issued, that the court below had the power to make the defendant Botsford account for the stock itself in kind, if not for its value in money, and as if it were trust property in his hands belonging to the plaintiff.</p> <p>In our opening brief, we have cited authorities to show that there was no trust and that the plaintiffs had no property right in the stock, under the facts alleged in the complaint. The contract relied upon left the plaintiffs merely the creditors, at the end, of the defendant Botsford.</p> <p>See also: Coward v. Clanton, 122 Cal. 451; 1 Pomeroy’s Eq. Juris., sec. 178; Kammermayer v.Hilz, 82 N.W. 689; Hopkins v. Hopkins, 37 Atl. 371.</p> <p>But, be that as it may, the court did not order the defendant to so account for the stock, by producing the same and delivering to the plaintiff the share claimed by them. On the contrary, the decree is in rem and orders a cancelation of the stock on the books of the corporation, and the transfer and issuance of the stock by the corporation. However, the disposition of the question depends upon entirely different principles, whereby it becomes immaterial to inquire whether or not that error in the judgment could be cured by merely ordering a new trial of the action.</p> <p>The evidence and the findings show that the stock was not earned as a broker’s commission, and that the personal efforts dr services of the parties were powerless to start the venture contemplated by the alleged oral agreement. The owners of the controlling interest in the Combination Mines Company did not desire the services of brokers or .agents to find a purchaser for their property. They were not looking for a purchaser and had no present intention to sell at all. In other words, the parties .found no market for their services, and the venture concerning which they had agreed was at an end, so far as a broker’s commission was concerned, when it was found that the option could not be secured except by the use of large sums of money.</p> <p>The plaintiffs had no money nor the ability to procure any. The defendant Botsford took a partner into the new venture, who furnished a part of the money required to purchase the option. The remaining part of the purchase fund, including the sum of money paid to Mr. Moore, was furnished and provided by the defendant Botsford. The plaintiffs did nothing, provided nothing. They submitted in silence to being “excluded” by the defendant from the purchase and sale of the option, and were willing to be “kept in the dark.” In other words, according to their own story, the plaintiffs sat by in silence and awaited the result.</p> <p>From these premises we draw several conclusions:</p> <p>1. The findings and the evidence show that the alleged parol agreement was either abandoned, or else that while it remained executory the defendant Botsford repudiated it, because of the unexpected conditions, and proceeded to conduct the enterprise at his own cost, in his own name and for his exclusive benefit, and excluded the plaintiffs from it because they could not and did not provide any of the necessary money.</p> <p>In either event, the plaintiffs had no legal interest in the venture, and were not part owners of the option, nor entitled to any of the proceeds derived from the sale thereof. And they were not entitled to an accounting of any kind. The purchase and sale did not transpire under the alleged parol agreement. (Powell v. Maguire, 43 Cal. 11; Mann v. Bowen, 85 Ga. 618; Prince v. Lamb, 128 Cal. 127, 128; Hyer v. Richmond T. Co., 168 U. S. 484; Haioes v. Dobbs, 33 N. E. 560; Latta v. Kilbourn, 150 U. S. 524; 15 Am. & Eng. Ency. Law, 1186-1187; Camden Land Co. v. Lewis, 63 Atl. 529-530; Butts v. Cooper, 44 South. 619; Smith v. Smith, 45 South. 168; Kay ser v. Mongham, 6 Pac. 803; Miller v. Butterfield, 79 Cal. 62; Emery v. Mason, 75 Cal. 222.)</p> <p>As was said in Miller v. Butterfield, 79 Cal. 62, 64: “As to mines bought, the parties were tenants in common only upon the condition (necessarily implied), that they should contribute equally to the purchase fund.</p> <p>“Neither was obliged by the agreement to contribute to the purchase of any particular mine, though each may have been entitled to the opportunity to so contribute, and to share in the purchase.</p> <p>“Certainly they could not, one or more of them, allow another to make a purchase with his own funds, and at his own risk, and without being obliged to reimburse him in case of loss, claim the advantages of the bargain in case of gain.</p> <p>“We think that the fact that the defendant alone provided the funds for the purchase of the properties in question, that the plaintiffs not only did not, but could not, and were in no wise bound to, contribute any share of the purchase money, is fatal to their claim to an interest in such properties.”</p> <p>2. But, even if this court were inclined to hold that the purchase and sale of the option took place under the alleged parol agreement, and that it was a continuing and single transaction, the contract itself would be so unfair to the appellant, and the assistance given him by the plaintiffs so grossly inadequate, that no court of equity would enforce it in any form. (Prince v. Lamb, 128 Cal. 128, and authorities cited in appellant’s opening brief.)</p> <p>3. Moreover, the “profits” alleged and the “profits” proved and found are two widely different propositions.</p> <p>The contract relied upon deals with conventional profits. It contemplates no outlay of capital; hence there could be no “real profits,” as that term is usually understood among merchants. (Coward v. Clanton, 122 Cal. 454.)</p> <p>As was said in another case, “the contract, taken as a whole, is not one for a division of profits, but rather for a moiety” of whatever might be received in compensation for the services pooled under the alleged parol agreement. (Prince v. Lamb, 128 Cal. 126.)</p> <p>The contract alleged in the complaint provided for no capital. Within the contemplation of the parties to it no money would be required to carry it out.' They expected to merely give time and services. Hence the profits they expected were the emolument, the compensation, the commissions paid to brokers or agents effecting the sale of property belonging to other persons. The business covered by the contract was of such a character that loss could not occur. They were neither to purchase nor sell property. They were to incur no expense. They were to act simply as brokers, finding vendor and purchaser and bringing the two together. The option in the alleged parol agreement was nothing more than an agent’s authority to negotiate the sale of the property of his principal. Hence the “profits” of the contract meant the gross amount to be received, without any deduction, and of that each was to have one-third. Thus the contract of the parties fixed the “profits” of each as definitely as could be, having reference to a future event.</p> <p>But the “profits” indicated by the findings of fact and the evidence were “net profits,” or real profits; or so much of the entire difference between the advances and the value of the returns, as arose exclusively from the capital employed. (23 Cyc. 586, and authorities cited.)</p> <p>Those profits were based upon the use of capital, and involved a purchase and sale of property by the appellant, and his associate, Davis, as principals.</p> <p>Obviously, the complaint sets forth no cause of action with reference to such profits; and the “profits” attempted to be determined by the trial court in its findings of fact constituted a subject, and involved a transaction, entirely foreign to and outside of the issues in the case.</p> <p>No such “profits” could legally be ascertained or distributed in this action. (Bachman v. Sepulveda, 39 Cal. 688; Perkins v. Sierra'Nevada, 10 Nev. 413; Frevert v. Henry, 14 Nev. 195'; Hopkins v. Orcutt, 51 Cal. 537; Riverside Water Co. v. Gage, 89 Cal. 410; Prince v. Lamb, 128 Cal. 126-128; Booker v. Aitken, 140 Cal. 472; San Luis v. Estrada, 117 Cal. 182; Sigourney v. Zellerbach, 55 Cal.'431; Sterling v. Hansen, 1 Cal. 478; Marshall v. Golden Fleece, 16 Nev. 156, and authorities cited in appellant’s opening brief.)</p> <p>If the foregoing premises are correct, then it follows that no accounting of any sort could be had in this action.</p> <p>The remedy of accounting, in a case like this, is a mere incident to the main relief which the court might possibly grant in the action. (Root v. L. S. & M. S. R. Co., Í05 U. S. 208-217; 1 Pomeroy’s Eq. Juris., sec. 237, p. 341.)</p> <p>If the court cannot grant any relief, because the plaintiffs have not shown a right to any relief in the action, the remedy of accounting must naturally fail as well. It is not a question of power in the district court to administer both legal and equitable remedies, as erroneously assumed by counsel for respondents. It is a question of whether or not the plaintiffs have shown a cause of action entitling them to any relief. (Hawes v. Dobbs, 33 N. E. 560, 561; Prince v. Lamb, 128 Cal. 120.)</p> <p>But, apart from the question of power to retain the case for the purpose of administering any suitable remedy, the court below could not have properly retained the case, and this court could not now properly reverse the judgment for the mere purpose of granting a new trial.</p> <p>The plaintiffs testified, and their counsel admit, that before the option was even acquired by the defendant Botsford, the plaintiffs had knowledge that large sums of money were required to secure the same. Yet they failed to allege such fact in their complaint and to ask for an accounting of “net profits.” Clearly, therefore, they did not bring this action for a share of the gross receipts in good faith. They came into equity without offering to do equity. Under those circumstances the court will not retain the case for the purpose of giving relief by way of damages or any other pecuniary relief. (4 Pomeroy’s Eq. Juris., sec. 1410.)</p> <p>And the evidence discloses no case for an accounting. (Dorr v. McKinney, 9 Allen, 359; Corbin v. Holmes, 154 Fed. 598-601; Simmons v. Lima Oil Co., 63 Atl. 260.)</p>

<p>Appeal from the District Court of the Fourth Judicial District of the State of Nevada, Lincoln County; Geo. S. Brown, Judge.</p> <p>Action by John Hochschultz against the Potosi Zinc Company. From a judgment for plaintiff,' defendant appeals.</p> <p>The facts sufficiently appear in the opinion.</p>

Court of the First Judicial District of the State of Nevada, Esmeralda County; Frank P. Langan, Judge. Action by the Western Engineering and Construction Company and another against the Nevada Amusement Company and others, in which the Interstate Lumber and Mill Company and another intervened. From a judgment denying relief to the intervener named, it appeals. The facts sufficiently appear in the opinion.

P. O’Brien, Judge. Action by Sutherland Murray and another against Charles H. Osborne and another. From a judgment for plaintiffs, defendants appeal.

<p>1. Sheriffs and Constables — Attachment oe Property- — Care oe Property — Duty oe Deputy.</p> <p>Where a sheriff gave to his deputy au attachment to execute, without saying anything as to the employment of a keeper, and the writ could not be executed without taking possession of personal property, the deputy, empowered by Comp. Laws, 2242, to perform the duties devolving on the sheriff, could employ, if necessary, a keeper of the attached property.</p> <p>2. Sheriees and Constables — Attachment oe Property- — Care oe Property — Duty oe Deputy.</p> <p>A deputy, receiving from the sheriff a writ of attachment to execute, remained in charge of the personal property attached for a time, and then employed a third person as keeper, and notified the sheriff, who expressed approval. The attached property thereafter remained in the possession of the third person with the sheriff’s knowledge, and was finally delivered by the third person to another on the sheriff’s order. Held, that the sheriff ratified the deputy’s employment of the third person as keeper, and was liable for the third person’s services, if such ratification was necessary to bind him.</p> <p>3. Attachment — Protection oe Property — Employment oe Keepers — Liability.</p> <p>A keeper of attached property must ordinarily look to the sheriff attaching the property for his compensation, and in the absence of an express agreement with the plaintiff in the action he cannot recover from him.</p> <p>4. Attachment — Protection oe Property — Employment oe Keepers — Liability.</p> <p>A settlement by a sheriff with his deputy for services as keeper of attached property, made without the knowledge of a third person employed by the deputy as keeper, is not binding on the third person, and does not preclude him from suing the sheriff for his services.</p> <p>5. Attachment — -Protection oe Property — Employment oe Keepers — Liability.</p> <p>Where a sheriff, in possession through a keeper of attached property, remained in possession after the debtor was adjudged a bankrupt, without notifying the keeper of any change in the status of the property, the keeper could recover from the sheriff for his services after the adjudication, though the sheriff thereafter was a mere bailee for the trustee in bankruptcy.</p> <p>6. Attachment- — Care oe Property Attached — Liability.</p> <p>A sheriff, incurring expenses in preserving attached property, may recover from plaintiff in attachment or from the trustee in bankruptcy of the debtor, adjudged a bankrupt after the attachment, and he must look to one or both for reimbursement.</p> <p>7. Appeal and Error — Questions Review able — Questions Not Raised in Trial Court.</p> <p>The supreme court, on appeal, will not consider questions, not jurisdictional, raised for tlie first time on appeal.</p> <p>ON PETITION FOR REHEARING</p> <p>1. Appeal and Error — Presumptions—Time oe Filing Petition.</p> <p>The presumption, if any, as to time of filing the petition in bankruptcy, is that it was filed on the day of the adjudication of bankruptcy; the act of July 1, 1898, c. 541, 30 Stats. 551 (U. S. Comp. St. 1901, p. 3429), requiring no notice of the hearing, but contemplating a hearing forthwith and an adjudication or a dismissal of the petition.</p> <p>2. Bankruptcy — Attachment Liens — Dissolution by Adjudication.</p> <p>Under the bankruptcy act of July 1, 1898, c. 541, 30 Stats. 565 (U. S. Comp. St. 1901, pp. 3422, 3450), only the attachment liens obtained within four months of the filing of the petition in bankruptcy are dissolved by the adjudication in bankruptcy.</p>

County; John S. Orr, Judge. Action by Fred L. Small and others against Ida Robbins. Judgment for defendant, and plaintiffs appeal. On petition for rehearing, rehearing granted; but former opinion affirmed by Sweeney, C. J., Talbot, J., concurring, Norcross, J., dissenting. The facts sufficiently appear in the opinion. The respondent has no prescriptive title.

Action by the Rawhide Balloon Fraction Mining Company against the Rawhide Coalition Mines Company. Judgment for defendant, and plaintiff appeals. The facts sufficiently appear in the opinion.

<p>1. Habeas Corpus — Scope of Writ.</p> <p>A writ of habeas corpus cannot be used, to perform tbe functions of an appeal or writ of error, but can only .review questions going to the jurisdiction of the court to enter the particular judgment, and not as to whether the court erred in the exercise of such jurisdiction.</p> <p>2. Indictment and Information — Exceptions.</p> <p>In an indictment or criminal complaint it is not necessary to allege that defendant is not within an exception specified in the statute.</p> <p>3. Criminad. Law — Courts—Jurisdiction—Exceptions.</p> <p>Where, on trial for a criminal offense, the evidence without conflict shows that defendant is exempted from the penal provisions of the act (Stats. 1903, c. 114), the court is without power to' render a judgment of conviction.</p> <p>4. Habeas Corpus — Scope of Writ — Judgment—Jurisdiction.</p> <p>Where the evidence without conflict establishes that the defendant belongs to a class not within a penal statute, habeas corpus is available to bring up for determination the court’s jurisdiction to render judgment of conviction, and to obtain defendant’s discharge.</p> <p>5. Weapons — Carrying Concealed Weapons —• Statutes — Construction — Exceptions—“Acting or Engaged in the Business of Common Carriers.”</p> <p>The act (Stats. 1903, c. 114) regulating and prohibiting the carrying of concealed weapons declares (section 4) that it shall not apply to peace officers in the discharge of their duties, nor to persons acting or engaged in the business of common carriers in the state, or to persons traveling through the state. Held, that the words “acting or engaged in the business of common carriers” did not limit the exemption to persons engaged “in common carrying,” but that the exemption included persons acting or engaged in other business of common carriers than actual transportation of freight or passengers, such as the guarding of trains, depots, or property of common carriers, and that watchmen employed by a railroad company, though not engaged in train service, were within the exception.</p>

<p>Original proceeding. Application of Hans Legume for a writ of habeas corpus.</p>

<p>Original proceeding. Application of B. Allen for a writ of habeas corpus.</p>

<p>Original proceeding. Application of George Van Hoeston for a writ of habeas corpus.</p>

Somers, Judge. Action by Billy E. Sherwin against Minerva Sherwin. From an order denying defendant’s motion to open a default and set aside a judgment of divorce, defendant appeals. The facts sufficiently appear in the opinion.

Original proceeding. Application by J. Marymont for writ of mandate against the Nevada State Banking Board and another. The facts sufficiently appear in the opinion. The entire section in question is absolutely unconstitutional, and is in direct conflict with the federal and state constitutions.

Original proceeding. Application of Douglass Shelor for a writ of habeas corpus. The facts sufficiently appear in the opinion.

<p>Original proceeding. Application of J. W. Connella for a writ of habeas corpus.</p>

L. Mitchell, Judge. Primary election contest by Henry C. Nicholson against H. A. Comins. From an order dismissing the contest, contestant appeals. The facts sufficiently appear in the opinion.

<p>1. Jury — Ground for Challenge — “United in Business.”</p> <p>The relation of landlord and tenant between a juror and a party authorizes the sustaining of a challenge to a juror under Comp. Laws, 3259, subsec. 3, making it ground for challenge for cause to a juror that he is “united in business” with either party.</p> <p>2. Appeal and Error — Harmless Error — Sustaining Challenge to Juror.</p> <p>Any error in sustaining a challenge to a juror is harmless if no objectionable persons are on the jury as finally constituted.</p> <p>3. Carriers — Injuries to Passenger — Complaint—Negligence.</p> <p>The complaint alleging injury to plaintiff while a passenger on defendant’s train, through the derailment thereof, caused by the negligence of defendant and its servants, is sufficient, without pointing out the specific facts going to establish the negligence; a prima facie case of negligence being made out by showing the derailment.</p> <p>4. Damages — Personal Injuries — Suffering—Evidence.</p> <p>A witness may testify to the manifestations of pain he saw plaintiff exhibit while in a hospital because of the injury for which he sued.</p> <p>5. Witnesses — Cross-Examination.</p> <p>A conductor of defendant who in an action for injury to a passenger from derailment of a train has testified for the carrier that, immediately after the accident, he made an investigation of the railroad bed, cars, etc., and was unable to come to a conclusion as to the cause of the accident, may, to test his knowledge as to how thorough an examination he made, be asked as to whether or not the smoker was more broken or its occupants more frequently injured than íd any other cars.</p> <p>G. Appeal and Error — Harmless Error.</p> <p>Allowing a witness, who had testified to making an examination immediately after the derailment of a train to be asked on cross-examination as to whether or not the smoker was more broken or its occupants more frequently injured than in other cars was harmless; his answer being that he did not know.</p> <p>7. Witnesses — Cross-Examination.</p> <p>The roadmaster who, in an action against a carrier for injury to a passenger from derailment of a train, had testified for defendant as to the perfect condition of the road, and gone into detail with reference to the amount of work done on the roadbed, the material used, and when the rails were put down, was properly allowed on cross-examination to be asked why it was necessary to put heavier rails down in a certain year, to which he answered that it was on account of the increase of weight of the rolling stock and the loads; plaintiff who contended the improvements had not kept pace with the increase of business, having the right, if he could, to shake witness’s testimony by cross-examination so long as he confined it to the subject-matter brought out in the direct examination.</p> <p>8. Trial — Argument of Counsel — Inference from Absence of Witnesses.</p> <p>Permitting counsel for plaintiff in an action for injury to a passenger from derailment of a train to draw an inference in his argument that because the engineer and conductor of the train were not called or their absence explained their testimony would have been adverse to defendant was not error.</p> <p>9. Evidence — Opinions—Speed of Train.</p> <p>A nonexpert may testify to the speed of a train.</p> <p>10. Carriers — Injuries to Passenger — Negligence—-Evidence.</p> <p>It is incumbent on the carrier in an action for injury to a passenger from derailment of a train to repel by satisfactory proof every imputation of the slightest negligence.</p> <p>11. Carriers — Duty to Passengers.</p> <p>The carrier owes to a passenger the duty to exercise the highest practical degree of care, skill, and foresight in the selection and use of suitable cars, motive power, appliances, and servants, and in the proper construction of its roadbed and track, and the operating and running of its train.</p> <p>12. Carriers — Injury to Passenger — Negligence—Evidence.</p> <p>The derailment of the car in which a passenger is riding is prima facie evidence of the carrier’s negligence, and it is its duty to know and show the facts.</p> <p>ON PETITION EOR REHEARING</p> <p>1. Appeal and Error — Review—Harmless Error.</p> <p>Where, on the trial of an action against a railroad for injuries to a passenger by collision, plaintiff’s attorney in his argument inadvertently referred to the nonattendance of witnesses for defendant, when, in fact, they were present and testified, it is no ground for reversal, where the statement is withdrawn and defendant failed to account for the accident to the satisfaction of the jury, and to overcome the prima facie presumption of negligence which arises from the derailment of the car in which plaintiff is riding.</p> <p>2. Carriers — Presumption of Negligence — Derailment of Car.</p> <p>A presumption of negligence arises against a carrier immediately on plaintiff proving that he was injured by the derailing of the car in which he was riding, and it is for the jury to determine from the evidence in rebuttal as to whether defendant sufficiently overcame this presumption.</p>

Somers, Judge. Mandamus by the State, on the relation of J. P. Donnelley, as Chairman of the Republican County Central Committee of Esmeralda County, against Joseph Hamilton, as County Clerk of the county, to direct the removal ■'of the name of a candidate from the official ballot. From an order granting relief, defendant appeals. The facts sufficiently appear in the opinion.

Somers, Judge. M. J. Smith was convicted of larceny, and appeals. On motion in the Supreme Court to be admitted to bail. The facts sufficiently appear in the opinion.

Somers, Judge. M. J. Smith was convicted of grand larceny, and, from the judgment of conviction and an order denying a motion for a new trial, he appeals.. Held: no burglary. To the same effect is Allen v. State, 40 Ala. 334; Speiden v. State, 3 Tex. App. 163; Dodgers v. Brittain, Meigs, 84; Kemp v. State, 11 Humph. 320; State v. Chambers, 6 Ala. 855; Zink v. People, 77 N. Y. 114; Saunders v. People, 38 Mich. 218.

Original proceeding. Application by Oscar J. Smith for a writ of habeas corpus for release from commitment under an indictment. The facts sufficiently appear in the opinion. The intention of the legislature controls the courts. (.Maynard v. Newman, 1 Nev. 271; Maynard v. Johnson, 2 Nev. 25; Brown v. Davis, 1 Nev. 409.) Effect shall be given to all the language of the statute of March 13, 1909. (Stats. 1908-09, 95; 26 Am. & Eng. Ency.

<p>Original proceeding. Application by Bert L. Smith for a writ of habeas corpus for release from commitment under an indictment.</p>

<p>Original proceeding. Application by W. E. Griffin for a writ of habeas corpus for release from commitment under an indictment.</p>

<p>1. New Trial — Insufficiency of Evidence — Duty of Trial Judge.</p> <p>Under the statute making insufficiency of the evidence to justify the verdict ground for a new trial, the refusal of the trial judge to pass on such ground in support of a motion for new trial is error.</p> <p>2. Appeal and Error — Disposition on Appeal.</p> <p>Under Comp. Laws, 2513, empowering the supreme court to review on appeal an order granting or refusing a new trial, and section 2515 providing that such court may reverse, affirm, or modify the judgment or order appealed from, and may, if necessary, order a new trial, etc., the court on reversing an order denying a new trial demanded for insufficiency of evidence to support the verdict may remand the case, with diree- ’ tions to the trial court to consider and pass on such ground anew.</p>

Somers, Judge. Jesse C. Vertrees was convicted of maliciously threatening an injury with intent to extort money, and he appeals. The facts sufficiently appear in the opinion.

Averill, Judge. Ascension Mangana was convicted of murder in the first degree, and he appeals.

Somers, Judge. Mandamus by Edward C. Jennett against Theron Stevens, trustee of a townsite. From a judgment for plaintiff, defendant appeals. The facts sufficiently appear in the opinion.

Somers, Judge. S. P. Grimmett was convicted of voluntary manslaughter, and he appeals. The facts sufficiently appear in the opinion. ' Appellant’s first proposition is that the verdict of the jury in convicting appellant of the crime of voluntary manslaughter is contrary to the evidence. The question as to who was the agressor, and the question whether the defendant acted in self-defense are peculiarly for the jury to determine.

<p>1. States — General Appropriation Bills — Construction.</p> <p>Tlie setting apart in a general appropriation bill of various funds to cover payment of salaries and other expenses of the state government, while it may reserve the money for that purpose, does not, in itself, authorize the payment of the money from the fund.</p> <p>2. Officers — Construction—Retroactive Effect.</p> <p>Words in a statute simply specifying that an officer shall receive a designated compensation have no retroactive effect, unless there is something in the language indicating it.</p> <p>3. Attorney-General — General Appropriation Bill — Construction — Retroactive Effect.</p> <p>A general appropriation bill approved March 22, 1909 (Stats. 1909, c. 140), appropriated for the years 1909 and 1910, $4,800 for salary of a deputy attorney-general. An act approved on the following day (Stats. 1909, c. 159) provided that the salary of a deputy attorney-general should be $2,400 a year,, payable out of the general fund in the same manner that salaries of other state officers are paid, which, under an earlier statute, was monthly. There was nothing in either of the acts in the nature of a relief bill. Held, that the intent was that the deputy attorney-general should be paid monthly in the future, and an incumbent who, during the part of the year before the approval of the act, had acted as stenographer in the attorney-general’s office, drawing a salary from the state therefor, and had also acted as deputy attorney-general under a previous statute not providing compensation for such office, was not entitled under the acts to receive the designated salary for the portion of the year previous to their passage.</p>

Original proceeding. Mandamus by the State, on the relation of L. F. White, against D. S. Dickerson, Lieutenant-Governor and Acting Governor of Nevada.

Original proceeding. In the matter of the application for the disbarment of William H. Schnitzer as an attorney at law. Statement of Facts The respondent, William H. Schnitzer, was admitted to practice in all the courts of this state upon the 18th day of January, 1907, upon motion based upon a license to practice in the courts of the State of New York and upon a showing of good moral character.