Volume 37 — Nevada Reports

<p>1. Adverse Possession — Acquisition of Title — Proof.</p> <p>Proof that plaintiff had fenced and partially improved a tract of land established a sufficient possession and occupancy to support title by adverse possession under Rev. Laws, see. 4957, when supported by proof of the other essentials necessary to the acquisition of such title, and entitled him to judgment quieting his title in the land against a defendant who established no title thereto.</p> <p>2. Adverse Possession — Deeds.</p> <p>Where two claimants of uninclosed and unimproved land assert title by deed but it is impossible to tell from the evidence which deed conveys the legal title, neither can be said to have established title by adverse possession, both parties having paid taxes on the land and used the same for grazing purposes.</p> <p>[Note — This case having been submitted prior to McCarran, J., becoming a member of the court, he did not participate in the decision. ]</p>

J. L. Taber, Judge. Application by Wong Kee for writ of certiorari against H. M. Lillis, as Justice of the Peace. From an order denying the writ, the petitioner appeals.

<p>1. Appeal and Error — Assignments op Error.</p> <p>In the absence of an assignment of error to the sustaining of a demurrer to the cause of action, the ruling will not be reviewed.</p> <p>2. Mines and Minerals — Laborers’ Liens.</p> <p>Persons performing labor in the development of mining property or to facilitate the extracting of ore have a lien upon the interest of the lessee and the owner.</p> <p>3. Mines and Minerals — Laborers’ Liens — Allegations op Complaint — Knowledge op Lessor.</p> <p>Where the complaint, in an action to enforce a lien as against the owner upon mining property for services performed for the lessee, alleged that the lease was executed by the owner for the purpose of developing and extracting ore from the property, it must be presumed that the owner had knowledge that laborers were being employed and materials furnished in developing the property under the lease.</p> <p>4. Mechanics’ Liens — Laborers’ Liens.</p> <p>The general theory upon which all labor liens are based is that they are remedial in their nature and intended to assist the laborer to obtain a just price for his services.</p> <p>5. Mechanics’ Liens — Nature.</p> <p>Mechanics’ liens are purely statutory.</p> <p>6. Mines and Minerals — Construction op Statutes.</p> <p>While there must be a substantial compliance with the essential requisites of the statute in order to claim a laborer’s lien, such pleadings and notices as the statute requires should be liberally construed to promote the object to be effected, and the statute in that respect should not be construed so technically as to destroy claimant’s right to a lien.</p> <p>7. Mines and Minerals — Laborers’ Liens — Enforcement Against Lessor.</p> <p>Rev. Laws, sec. 2213, provides that all laborers and others who work upon any mine in an amount of $5 or more, or furnish material, whether done or furnished at the instance of the owner or his agent, shall have a lien upon the mine for the value of the work or materials and that every contractor, subcontractor, or other person in charge of any mining claim shall be held to be the agent of the owner for the purposes of the chapter. Held, that one who furnished labor in developing a mine at the instance of a lessee was entitled to a lien on the property for his services, whether the lessee was a contractor working on the property in the interest of the owner, or whether, under the lease, the lessee and owner were both to share in the benefits of the lessee’s work.</p>

<p>1. Replevin — -Return of Property to Defendant.</p> <p>Rev. Laws, sec. 5128, relating to actions to recover possession of personal property, declares that the defendant may, within two days after the service of a copy of the affidavit and the undertaking, give notice to the sheriff, who has seized the property, that he excepts to the sureties, and, if he fails to do so, he shall be deemed to have waived all objection to the sureties. Section 5129 declares that, at any time before the delivery of the property to the plaintiff, the defendant, if he does not except to the sureties, may claim the property upon giving to the sheriff a written undertaking executed by two or more sureties, and section 5130 declares that the defendant’s sureties, upon notice to the plaintiff of not less than two or more than five days, shall justify before the clerk or judge in the same manner as upon bail on arrest, and upon justification the sheriff shall deliver the property to the defendant. Held, that justification by defendant’s sureties upon notice to plaintiff was a condition precedent to the delivery of the property to him; the plaintiff not being required to justify his sureties unless called upon by the defendant.</p> <p>2. Courts — Mandamus—Original Writ by Supreme Court.</p> <p>In an action for the possession of personal property, where the sheriff redelivered it to defendant, although defendant’s sureties had not justified in accordance with the statute, and the trial court refused to issue a writ of mandamus compelling the sheriff to deliver the property to the plaintiff, plaintiff is entitled to petition the supreme court for the issuance of an original writ of mandamus, having exhausted his remedies below.</p> <p>3. Mandamus — Possession of Property — Duty of Sheriff.</p> <p>In an action for the possession of personal property, the sheriff, after seizing it, redelivered it to the defendant, although defendant’s sureties on his undertaking had not justified themselves before the clerk or the court as required by statute. The property still remained within the county. Held that, as Rev. Laws, sec. 5127, requires the sheriff, upon receipt of the affidavit, notice, and written undertaking executed by the plaintiff, to take the property and retain it in his custody until delivery to plaintiff or redelivery to the defendant after justification of the latter’s sureties, the sheriff will by an appropriate writ of mandamus be compelled to retake the property and deliver it to plaintiff; the defendant having waived exceptions to plaintiff’s sureties and not having established his own right to a return.</p> <p>4. Replevin — Fees and Expenses of Sheriff.</p> <p>Under Rev. Laws, sec. 5133, the sheriff may retain possession of property taken in claim and delivery until his fees and expenses are paid.</p>

<p>1. Corporations- — Transfer of Shares — Refusal to Transfer— Sufficiency of Evidence.</p> <p>In an action against a corporation for conversion of stock by refusing to register its transfer on its books, evidence held to support a finding that tbe transfer was a bona fide transaeaction.</p> <p>2. Conversion — Issues—Proof and Variance — Date of Conversion.</p> <p>In an action against a corporation for conversion of stock in refusing to register its transfer on its books, it was not necessary that the proof should be in strict conformity with the averment as to the da/te of conversion.</p> <p>3. Conversion — Refusal of Corporation to Transfer Stock— Conditions Precedent to Action.</p> <p>Where the secretary of a corporation refused to register a transfer of stock when presented by the transferee, no formal demand was necessary before bringing an action for conversion, since the refusal was an assertion of ownership by the corporation.</p> <p>4. Appeal and Error — Finding—Conolusiveness.</p> <p>Where there is a substantial conflict in the testimony, the appellate court will not substitute its judgment for that of the trial court, and will only interfere when it is clear that a wrong conclusion was reached.</p> <p>5. Conversion — Refusal of Corporation to Transfer Stock— Measure of Damages.</p> <p>In an action against a corporation for the conversion of stock in refusing to register its transfer on its books, the measure of damages was the value of the stock at the date of conversion, with legal interest from the conversion to judgment.</p> <p>6. New Trial — -Newly Discovered Evidence — -Diligence—-Affidavit.</p> <p>Where, on motion for new trial on the ground of newly discovered evidence, the affidavit of the moving party merely stated conclusions as to exercise of diligence, without setting out the facts, so -that the court could draw its own conclusions, it was insufficient.</p> <p>7. New Trial — Newly Discovered Evidence — Diligence.</p> <p>Where the alleged newly discovered evidence would consist of the testimony of witnesses who resided at the place of trial and were present at the trial to the knowledge of the moving party, or who testified as witnesses in the case, sufficient showing of diligence is not made out.</p> <p>8. New Trial — Newly Discovered Evidence —■ Impeaching Evidence.</p> <p>It is not abusive of discretion to refuse a new trial upon alleged newly discovered evidence where such new evidence is only of an impeaching character.</p>

<p>Original proceeding. Petition by the State, on the relation of Emilio Dotta, for writ of mandamus directed against George Brodigan, as Secretary of State.</p>

Petition for a writ of mandate by the State of Nevada, on the relation of C. E. Haviland and others, against S. J. Bonnifield, County Auditor. From a judgment dismissing the petition, relators appeal.

<p>1. Appeal and Error — Review—Verdict.</p> <p>This court will not disturb a verdict if there is any substantial evidence to support it, especially where a motion for nonsuit has been overruled and a motion for a new trial has been denied.</p> <p>2. Trial — Argument—Action oe Court.</p> <p>Counsel’s improper criticism of defendant by statements outside of the evidence, in view of the court’s direction to disregard them and of the refusal to grant a new trial after verdict for plaintiff, held not to warrant a remand for a new trial.</p>

<p>Opinion op Talbot, C. J.</p> <p>1. Receivers — Compensation—Notice op Motion.</p> <p>A party or person interested in an action wherein a receiver is appointed must be served, as provided by statute, with notice of a motion to fix his compensation, or the order is made ex parte.</p> <p>2. Motions — Notice—Ex Parte Order.</p> <p>If the statute does not provide for notice of a motion by publication, it would not be any notice, and the order made thereon would be ex parto.</p> <p>3. Banks and Banking — -Act op 1907 — Compensation op Receiver-Notice to Attorney-General.</p> <p>At the time orders fixing the compensation of the receiver, appointed under the provisions of the banking act of 1907 (Stats. 1907, p. 229) were made, there was no statute authorizing the attorney-general to oppose them, nor providing that he should be served with notice of motions to fix such compensation.</p> <p>Norcross, J., concurring.</p> <p>4. Banks and Banking — Act op 1913 — Compensation op Receiver' — • Authority op Attorney-General.</p> <p>Since the passage of the act of 1913 (Stats. 1913, c. 204) the attorney-general is authorized to appear in the State Bank and Trust Company receivership case, in the name of the state, on behalf of the creditors.</p> <p>5. Banks and Banking — Regulation op Business.</p> <p>The banking business is so essential to the public welfare that laws may be passed for its regulation.</p> <p>6. Banks and Banking — Regulation by State — Police Power.</p> <p>Under the police power the state may control the banking business and protect the depositors after a bank’s failure, and may authorize the attorney-general or other officer to do so, and so from the passage of the act of March 2, 1913 (Stats. 1913, c. 204), authorizing the attorney-general to proceed as he may deem necessary in relation to the affairs or receivership of the State Bank and Trust Company, he could intervene in an action by the state to wind up its affairs, either to' protect depositors or for the benefit of the state.</p> <p>7. Banks and Banking — Receivers—Fixing Compensation.</p> <p>Though, when orders were made fixing compensation of the receiver of the State Bank and Trust Company in an action by the state to wind up its affairs, the attorney-general was not authorized to appear therein, he became authorized by the act of March 2, 1913 (Stats. 1913, c. 204), allowing him to proceed as he might deem necessary in such action, and could move to set the orders aside because made ex parte, where the services of the receiver had not been terminated or his accounts closed.</p> <p>8. Motions — Notice by Publication.</p> <p>Publication of notice of a motion for ten days is not a service, and could not cut off or affect the rights of any party in interest unless such publication is authorized by statute.</p> <p>9. Process — Constructive Service — Compliance with Statute.</p> <p>There must be strict compliance with the statutes as to constructive service, which, under our practice, apply to both law and equity eases.</p> <p>10. Banks and Banking — Receivers — Fixing Compensation — Motion — Notice by Publication.</p> <p>With no law authorizing notice by publication, and applying Rev. Laws, secs. 5307-5370, providing only for service of notice by personal delivery, by leaving a copy, and by mail and telegraph in certain cases, .publication of notice of motions to fix compensation of the receiver of the State Bank and Trust Company did not cut off rights of the state or depositors or parties in interest from a hearing or assertion of their rights, or from proceeding to vacate the orders, by showing the allowance or claim to be excessive,</p> <p>11. Banks and Banking — Receivers—Fixing Compensation — Setting Aside Orders — Powers oe State.</p> <p>If orders fixing compensation of the receiver of the State Bank and Trust Company, in an action by the state to wind up its affairs, were made after notice, they could be regarded as final and subject to attack only by appeal, but, if made without the personal service required by law, the state, under its police power to supervise the banking business, acting by the attorney-general pursuant to the act of March 2,1913 (Stats. 1913, c. 204), providing for his intervention, and within the time prescribed by district court rule 45, could move to set them aside pursuant to Rev. Laws, see. 5084, for want of proper notice, and could appeal from an adverse decision, for the purpose of reducing excessive compensation allowed.</p> <p>12. Appeal and Error — Review—Insueeicient Record.</p> <p>Where a receiver’s accounts are not made part of the record on appeal from an order refusing to set aside an order fixing liis compensation, it is not shown on such appeal that the petition for compensation misled the court by misstating his accounts, so that a mistake in its action appeared as a matter of record below.</p> <p>Norcross, J., dissenting.</p> <p>Opinion of McCarran, J.</p> <p>1.Banks and Banking — Act of 1907 — Compensation of Receiver —Notice to State.</p> <p>The receivership, being the essence of the judgment entered in pursuance of the statute of 1907 (Stats. 1907, e. 119) at the instance of the state as the party plaintiff, the state was interested in orders affecting the compensation of the receiver, by reason of the police powers exercised in furtherance of public welfare, and was entitled to notice, as a party in interest, of any motions, subsequent to the final order creating the receivership, to fix the compensation of the receiver, for the reason that the same affected the force of the original judgment creating the receivership.</p> <p>ON PETITION FOR REHEARING</p> <p>1. Action —■ Process — Service — Publication — Chancery Proceedings.</p> <p>Civil Practice Act (Rev. Laws, sec. 4943) section 1, providing that there shall be in the state but one form of- civil action for the enforcement or protection of private rights, renders the practice act applicable to chancery proceedings, so , that process may be served by' publication only in -such cases as is authorized by statute; the court having no jurisdiction in other cases to order such service.</p> <p>2. Motions — Process—-Vacation of Orders — Service—Statutes— Court Rules.</p> <p>Civil Practice Act(Rev. Laws, sec. 5367)section 425,providing that written notices and other papers, when required to be served on a party or his attorney, shall be served in the manner prescribed in the next three sections, when-not otherwise provided, and district court rule 10, relating to service of notice, and rule 45, providing that motions.to vacate orders may be made within six months on notice to the adverse party, are applicable to chancery proceedings.</p> <p>3. Receivers — Compensation—Allowance—Notice.</p> <p>The act of 1913 (Stats. 1913, e. 204) authorized the attorney-general to institute an investigation of-all the affairs of a certain bank and trust company and of the receivership thereof, and to take necessary legal proceedings in any action then pending in any court affecting the affairs of the receivership of the bank, etc. Meld that, where orders were entered in the receivership proceeding prior to the passage of such act allowing compensation to the receiver and his attorneys without notice served on the attorney-general otherwise than by publication, such orders were ex parte as to him, and he was authorized by the act to appear on behalf of the state and contest their validity.</p> <p>Noeckoss, J., dissenting.</p>

<p>1. Divorce — Sufficiency of Pleading — Cruelty.</p> <p>A husband’s complaint alleging the wife’s persistent gross uncleanliness, both as to her person and in the performance of her household duties, her vituperation of him upon his remonstrance with her because of her conduct, that against his protest, she persistently exposed her person to the view of neighbors and to men servants in a manner grossly immodest, if not indecent, and used profane and vulgar language and told vulgar,' obscene, and licentious stories in the presence of the children, so that he felt compelled to remove his daughter from her influence, and deprive himself of her society, to give her an opportunity to properly develop her character, that such cruelty was inflicted daily, and frequently several times a day, and extended continuously through their married life, that it was wholly unprovoked, that it destroyed his happiness, wrecked his home life, impaired his health, and caused great and grievous mental worry and torment, that it was unendurable, and had turned his feeling for her into repulsion and disgust, and that he had ceased to live with her, sufficiently stated a cause of action for divorce upon the ground of extreme cruelty.</p>

Somers, Judge. Herbert Towers was indicted for obtaining money under false pretenses. The indictment was set aside, and the State appeals.

<p>1. Criminal Law — Escape Pending Appeal — Dismissal.</p> <p>A rule similar to that adopted by the California courts, under statutes similar to those of this state, of dismissing appeals taken by a defendant who thereafter escaped and who does not return to custody within a time specified, ought to be and, in future, doubtless will be applied.</p> <p>2. Criminal Law — Evidence.</p> <p>Where there is no witness to a homicide other than the defendant who becomes a witness in his own behalf and asserts self-defense and that deceased was the assailant, his version of the killing is subject to be tested by all the physical facts and such evidentiary facts and circumstances as would reasonably tend to throw any light upon the question, such as the relationship and the degree of affection and regard which the parties bore toward each other as bearing upon the question of the probability of who made the first assault.</p> <p>3. Homicide — Evidence—Declarations oe Deceased.</p> <p>In a prosecution for homicide, where the defendant, 'who was the only witness to the shooting, testified that he shot deceased, with whom he was living in adultery, in self-defense, a letter written to him by the deceased a short time before, in which she manifested the strongest affection for him, was admissible as tending to show the improbability of her attacking him.</p> <p>4. Criminal Law — Instructions—Reasonable Doubt.</p> <p>In a prosecution for homicide an instruction on reasonable doubt, which contrasted the rule as to burden of proof in civil and criminal cases, and gave as the reason for the latter rule that “the charity of the law and its solicitude for the safety of the innocent are such that an artificial presumption of innocence attends a person accused of crime,” was not an incorrect statement of the law because of the use of the words “charity” and “artificial,” and could not have misled the jury, where it was one of nine instructions on the subject of presumption of innocence and reasonable doubt.</p> <p>[Note — Petition for a rehearing was filed March 25, 1915.]</p>

Moran, Judge. Action by Robert S. Peterson against the Pittsburg Silver Peak Gold Mining Company. From a judgment for plaintiff, and an order denying a new trial, defendant appeals.

<p>1. Liens — Object oe Statute.</p> <p>The object of the lien law is to secure payment to those who perform labor upon mining property, or who perform labor upon or furnish material for the construction of other works specified in the statute, for such labor performed or material furnished.</p> <p>2. Statutes — Construction.</p> <p>In construing or applying the provisions of any statute, the purpose or object of the statute should ever be kept in mind, and a construction or application should be avoided which sacrifices substance to a mere matter of form.</p> <p>3. Hines1 — Construction oe Lien Law — Mines and Minerals.</p> <p>The lien law for securing payment for labor on mining property is not to be construed strictly, as in derogation of common law, but liberally, as remedial.</p> <p>4. Mines and Minerals — Lien Claims' — Joinder oe Claims.</p> <p>The statute giving right of lien to both contractors and laborers, a lien claim against mining property is not void for joinder of a claim of lien under a contract of employment by the day with one under a contract of employment for a specified amount of work, at an agreed price per foot; the work being continuous and of the same character under both contracts.</p> <p>5. Mines and Minerals — Lien Claims — Parties.</p> <p>Where under a joint contract of two for work on mining property, half the contract price is to be paid each severally, they need not join in a lien claim, but one of them may alone file such a claim for half the amount.</p>

<p>1. Crime Against Nature — Sodomy—Offenses—Indictment.</p> <p>Rev. Laws, sec. 6459, punishing the “infamous crime against nature” either with man or beast, includes all unnatural acts in whatever form or by whatever means they are perpetrated, and an indictment charging that accused did unlawfully commit “the infamous crime against nature” with a man, stating the manner of the act, was sufficient.</p> <p>2. Crime Against Nature — Sodomy—Statutes—Construction.</p> <p>Rev. Laws, sec. 6459, punishing the infamous crime against nature, must be construed according to the fair import of its terms, so that its objects may be effective.</p>

<p>1. GUARDIAN AND WARD-CUSTODY AND CARE OX WARD’S ESTATE-Community Property — Divorce.</p> <p>By a divorce decree and also by agreement of the. parties, community property of husband and wife — a house and lot— was “set aside for the use, support, maintenance, and education of the minor children.” Held, that the purposes of the trust included any disposition necessary for the support and education of the children, and hence the execution of a mortgage by the guardian for $3,000 for the purpose of paying off a prior mortgage and saving the property as a home for the children was within the purposes of the trust and authorized.</p>

<p>1. Waters and Watercourses — Appropriation eor Irrigation — Statutory Provisions — Applicability.</p> <p>Stats. 1913, c. 140, making water for beneficial purposes appurtenant to tbe place of use, unless it becomes impracticable to beneficially use water at tbe place, in wbicb case the right may be severed and transferred, and become appurtenant to another place, does not affect the rights acquired by one obtaining, for several years prior to the act, water for irrigation from a water company engaged in selling water for irrigation.</p> <p>2. Waters and Watercourses — -Water Companies- — -Obligations.</p> <p>A company owning and operating an artificial waterway and diverting water from a natural stream solely for gain by the sale of water to others, who actually apply it for irrigation, acquires no right to the water except the right to dispose of it for a reasonable compensation, and when water is once disposed of to a landowner applying the water for irrigation the control of the company over the water terminates. ■ •</p> <p>3. Waters and Watercourses — Water Rights — Appropriation.</p> <p>There is no absolute property in the waters of a natural stream, and the only right one may acquire thereto is by diverting the waters for a usufructuary purpose, and a water right, to be available, must be attached to the land and become in a sense appurtenant thereto by actual application.</p> <p>4. Waters and Watercourses — Appropriation op Water — Rights Acquired — “Appropriator.”</p> <p>One who obtains water for irrigation from a water company, diverting water from a stream into an artificial waterway for sale, is an appropriator of water within the rule that a prior appropriation is a prior right, and the company is but his agent, and the right of user is. equivalent to an easement in the artificial way of the company to the extent of the amount of water delivered by the company, which right is contingent only on the acts of the actual appropriator in paying a reasonable compensation for the water obtained.</p> <p>5. Waters and Watercourses — Appropriation op Water — Rights Acquired.</p> <p>The right of an actual appropriator of water for beneficial use, whether he obtains the water by diverting it from a natural watercourse or by purchase from a water company, is a part of the freehold.</p> <p>6. Waters and Watercourses — Appropriation op Water — Rights Acquired.</p> <p>Where a consumer of water for irrigation obtained the water from a company engaged in the business of diverting water from a natural stream and delivering the same to lands by means of a canal for a valuable consideration, and the company delivered to the consumer annually for several years a specified quantity of water, all used to irrigate the land of the consumer, who improved his property on the faith that the company would continue to deliver water, he obtained an implied contract to obtain water from the company for a reasonable compensation.</p> <p>ON PETITION EOR REHEARING</p> <p>7. Waters and Watercourses — Rights op Ditch Owner and User —Issues.</p> <p>Whether or not the appellant, as owner of the canal, has a property interest in the right to furnish water, is not an issue in the case at bar, and observations made in the opinion are not to be considered decisive of this question.-</p>

<p>1. Prostitution — Indictment—“Permit.”</p> <p>An indictment charging that the defendant permitted his wife to be in a house of prostitution, is sufficient to charge an offense under Rev. Laws, sec. 6445, making it a felony for a person to connive at, consent to, or permit his wife being in any house of prostitution, the word “permit” in such indictment and statute meaning not merely failure to prevent, but requiring an active wish, or at least willingness in defendant’s mind that his wife remain in such house after knowledge that she is there.</p> <p>2. Evidence — Judicial Knowledge — Husband and Wife — Statutes.</p> <p>Courts judicially know that both the husband and wife usually have a powerful moral suasion over the actions of each other, and it is in this sense that the word “permit” is used in Rev. Laws, sec. 6445.</p>

<p>1. Corporations — Representation by Oeeicers and Asents.</p> <p>In- an action against a corporation upon a note, defended upon the ground that the person executing the note was not its president, either Ae jure or Ae facto, because not a stockholder, evidence held to sustain a finding that he was a stockholder and president with authority to execute the note.</p>

<p>1. Judges — Salary — Apportionment — Counties — “Assessment Roll.”</p> <p>General revenue act (Rev. Laws, sec. 3623), section 7, provides that the board of county commissioners of each county shall cause to be prepared suitable books for the use of the assessor, in which he shall enter his tax list and assessment roll as thereinafter provided, and in that list and roll shall be assessed and included all taxes levied by authority of law for county purposes, the book to contain suitable printed heads and be ruled to conform with the form of the assessment roll as provided by the act. Section 4902 declares that each county in each district in the state shall contribute annually to the fund required to pay the salary of the district judge its proportionate share of the money necessary to pay such salary-, based on the assessment roll of each county for the previous year. Held, that the term “assessment roll,” as used in section 4902, means the whole roll for the assessment of taxes, including not only the assessment of real and personal property mentioned in Rev. Laws, sec. 3633, but the assessment of the proceeds of mines mentioned in Rev. Laws, sec. 3696, as well.</p>

<p>1. Appeal and Error — Review — Findings oe Trial Court — Evidence.</p> <p>Where, in an action for attorney’s services, the court found that plaintiffs were entitled to recover fees on the basis of a schedule claimed to have been submitted by them to defendant before the services were rendered, and that the schedule rates were the reasonable value of the services, the case would be so considered on appeal, and the opinions of experts, placing a different value on the services rendered, would not be regarded as controlling.</p> <p>2. Trial — Findings—Duty to Propose.</p> <p>Though a party is entitled to specific findings regarding material issues on which a judgment is based, if he prepares and submits them to the court with a request therefor, the court is not required to draw them.</p> <p>3. Appeal and Error — -Findings on Conflicting Evidence — • Review.</p> <p>The supreme court will not disturb the finding of the trial court on conflicting evidence, if there is any substantial evidence to support it.</p> <p>4. Appeal and Error — -Trial to Court — Findings—Review.</p> <p>In cases tried to the court without a jury, the same consideration is given to the court’s findings as to a verdict, and the same rules apply as to reversing them on appeal, on the ground that they are contrary to the evidence, as apply to a verdict.</p> <p>5. Attorney and Client — Action for Services — Schedule of Fees.</p> <p>Where attorneys, before rendering services, submitted to defendant a schedule of fees that would be charged, and the court, in an action for services rendered, found on expert evidence that the services were reasonably of the schedule values, such finding was sufficient to sustain a judgment to the extent of such values, without reference to whether the schedule was itself binding on defendant.</p> <p>6. Attorney and Client — Action for Services — Evidence..</p> <p>Where, prior to the rendition of services by attorneys, they submitted a’schedule of fees calling for a retainer of $200 a month to cover office work, including adjusting claims or settling suits out of court, as well as advising, drawing contracts, making forms, etc., and in an action for services testified that their office work for defendant amounted to an average of two hours a day, the court did not err in admitting evidence to show the value of such services.</p> <p>7. Interest — Open Account.</p> <p>In an action on an open account for attorneys’ fees, plaintiffs cannot recover interest prior to judgment, as provided.by Rev. Laws, sec. 2499.</p> <p>[Note — McCarran, J., not having become a. member of the court until after the argument and submission of the case, did not participate in the opinion.]</p>

<p>1. .Principal and Agent — Agreements Between Agent and Others —Validity.</p> <p>An undisclosed agreement between the superintendent of a mining company, who acted as its agent with respect to all workings within the ground of the company, and inspected the works of lessees, etc., and a lessee of the company, whereby the superintendent was to receive a percentage of the profits of the lessee, is in its very nature a fraud upon the mining company because it would tend to place the superintendent in a position antagonistic to his principal.</p> <p>2. Pleading — Admissions in Pleading — Necessity oe Prooe.</p> <p>Where defendant’s answer admitted a fact, proof of that fact was wholly unnecessary.</p> <p>3. Principal and Agent — Liability of Agent — Rights of Principal.</p> <p>Where an agent enters into a contract with one who has dealings with his principal which gives him an interest antagonistic to his duty towards his principal, the principal may recover from the agent any sum so received.</p> <p>4. Principal and Agent — Duty of Agent — Rights of Principal.</p> <p>Though, where an agent fully discloses the facts, his principal cannot require him to account for any sum which the agent may receive from a third person as consideration for an agreement with such third person which places him in a position antagonistic to his principal, yet, if the agent fails to disclose all of the facts pertaining to the transaction, the principal may recover any sum received by the agent.</p> <p>5. Principal and Agent — Rights of Principal — Actions — Evidence.</p> <p>In an action by a mining company to recover from its agent sums received from a lessee under an agreement which caused the agent to assume a position antagonistic to the company, evidence held sufficient to show that the mining company was not fully informed as to the agreement.</p>

<p>Appeal from the Fifth Judicial District Court, Nye County; Mark R. Averill, Judge.</p> <p>Action by James Golden against H. A. McKim. From a judgment for defendant, plaintiff appeals.</p>

Original proceeding. Mandamus by Alfred Worthington against the Second Judicial District Court in and for Washoe County and Judge thereof to compel respondents to issue an order for the publication of a summons in an action by petitioner for divorce.

<p>1. Statutes — Evidence—Enrolled Bill.</p> <p>The court will not look beyond the enrolled bill in the office of the secretary of state to ascertain the terms of a law.</p> <p>2. Constitutional Law — Judicial Department — Encroachment on Legislative.</p> <p>While the courts may give effect to statutes by a fair and liberal construction of the language used, they cannot supply language to make them operative for a presumed purpose, unless from the reading of the entire act the intent is manifest.</p> <p>3. Evidence — Judicial Notice — General Conditions.</p> <p>Courts take judicial notice of the general conditions in a state.</p> <p>4. Statutes — Construction—Purpose oe Change.</p> <p>In the construction of statutes, courts may consider the purpose of the change, sought to be effected, as it may be deduced from a consideration of the whole subject-matter.</p> <p>5. Statutes — Construction—Prior Law.</p> <p>In the construction of statutes, courts may consider prior existing law upon the subject under consideration.</p> <p>6. Statutes — Construction—Intent—Matters Omitted.</p> <p>Stats. 1913, c. 144, sec. 1, divided the state into ten judicial districts and provided that for each of them judges should be elected at the general election in 1914, and, as compiled, that “for each of said districts except the Second judicial district there shall be [elected one judge. For the Second judicial district there shall be] two judges elected” — the words in brackets being omitted from the enrolled bill. Section 3 fixed the salary of the judges in the different districts, referring to “the judge” of different districts mentioned, and section 4 provided that the Second judicial district should have two district judges, with concurrent jurisdiction and power to make rules and regulations for the transaction of business in that district. Held, that the manifest intent was to provide for the election of but one judge in other than the Second district; and hence that the words in brackets, necessary to give it that effect, would be read into the act in order that it might express the true legislative intent.</p>

Somers, Judge, presiding. Action by Alexander McVeigh Miller against Mittie Point Miller for divorce. From an order setting aside defendant’s default and from an order denying plaintiff’s motion to amend the affidavit of mailing of copies of the summons and complaint, plaintiff appeals.

<p>Appeal from the Second Judicial District Court, Washoe County; Peter Breen, Judge, presiding.</p> <p>Action by Grace Clow against N. H. West, as administrator of the estate of B. G. Clow, deceased, and others. From a judgment for plaintiff, defendants appeal.</p>

H. A. Pike, Judge. Action by Eugene Schuler against Frank Golden, revived after the death of defendant pending an appeal against Mamie L. Golden, executrix. From a judgment for plaintiff, defendant appeals.

<p>Appeal from the Fourth Judicial District Court, Lincoln County; E. J. L. Taber, Judge.</p> <p>Action by A. L. Scott against the Day-Bristol Mining Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Judgment — Default—Entry—Authority of Clerk.</p> <p>Where a married woman sued to recover property held by her husband in trust for her from persons who had obtained it from her husband at a gambling game while he was intoxicated, the action being one on implied contract and not for a tort or for an uncertain sum or for relief requiring the exercise of judicial discretion, a default judgment was properly entered by the clerk.</p>

<p>1. Statutes' — Construction oe Penal Statutes.</p> <p>Penalties or forfeitures in addition to those stated in a statute should not be implied or imposed by the court.</p> <p>2. Corporations — Foreign Corporations • — ■ Forfeitures • — • Violation of Domestic Regulations.</p> <p>Where a Maryland fidelity and guaranty company has secured a license to do business in Nevada, its right to foreclose a mortgage, taken to indemnify it for loss incurred as surety on an appeal bond, will not be denied because such corporation has failed to pay a gross earnings tax imposed on foreign insurance companies doing business in Maryland, and which tax might be enforced in Nevada under general corporation law (Stats. 1003, c. 88), sec. 106, providing that foreign corporations doing business in the state shall suffer such penalties and taxes as may be imposed by the laws of the foreign state on corporations of Nevada; the Maryland statutes containing no provision that the failure to pay the tax shall result in any forfeiture of the corporation’s property rights, the only penalty imposed being a fine.</p> <p>3. Mortgages — Purchasers'—Acquisition oe Tax Title.</p> <p>A purchaser of mortgaged land from the mortgagor cannot acquire title as against the mortgagee by failing to pay the taxes and bidding in the property at the resulting tax sale.</p> <p>4. Constitutional Law — Determination oe Constitutional Questions.</p> <p>The supreme court will not determine constitutional questions which are not essential to a decision of the case.</p>

No. 2107. Original proceeding in prohibition by Ormsby County to prohibit the State Engineer from proceeding under the water law of 1913 (Stats. 1913, c. 140) to determine the relative rights of the appropriators and users of waters of Clear Creek. No. 2115. Appeal from the Sixth Judicial District Court, Humboldt County; Edwin A. Ducker, Judge.

Somers, Judge presiding. Action for an injunction by Frank L. Knox and others against W. M. Kearney, as State Engineer, and L. Tanner, as Water Commissioner of Muddy River District. From orders overruling a demurrer to the complaint and refusing to set aside a temporary injunction, defendants appeal.

<p>Original proceeding in mandamus by the State, on the relation of A. L. Martha Howe, against Thomas F. Moran, District Judge of the Second Judicial District, in and for Washoe County.</p>

<p>1. Homicide — Trial—-Instructions.</p> <p>An instruction that self-defense is an affirmative defense and that before the jury can “acquit” on that ground it must appear that the killing of the deceased was “not” in necessary self-defense, is a clear misstatement of the law.</p> <p>2. Criminal Law — Appeal—Harmless Error — Clerical Errors.</p> <p>That a misstatement of the law in the court’s instructions in a murder case was due to a clerical error will not render the error harmless.</p> <p>3. Criminal Law — Appeal—Harmless Error — Presumptions.</p> <p>Where the court gives several instructions on the same subject, some being correct and others erroneous, injury must be presumed, unless the record clearly shows otherwise.</p> <p>4. Homicide — -Prosecution—Evidence—Sufficiency. .</p> <p>In a prosecution for homicide, evidence held insufficient to sustain a conviction of murder in the first degree.</p> <p>5. Homicide-Appeal — Harmless Error.</p> <p>Where the evidence was insufficient to justify accused’s conviction of murder in the first degree and the court erroneously charged on his contention of self-defense, a conviction of murder in the first degree shows that the charge was prejudicial.</p> <p>6. Homicide — Self-Defense—Right Of.</p> <p>One attacked by another has the right to use his own judgment in determining what is necessary to repel the attack, and his right to kill his assailant in self-defense cannot be limited by what may appear to the jury to have been absolutely necessary.</p> <p>7. Homicide — Evidence—Dying Declarations.</p> <p>The preliminary proof necessary for the admission of a dying declaration is for the court alone, and a request that the jury be withdrawn while such evidence is being heard should be granted.</p> <p>8. Homicide — Evidence—Dying Declarations.</p> <p>Where the admission of a dying declaration is sought, it is not the province of the court to determine from the preliminary proof whether such declaration has been made, but whether the preliminary evidence warrants its submission to the jury, who are to judge whether the declaration is entitled to weight as a dying declaration.</p> <p>9. Criminal Law — Trial—Statements of Judge — -“Instruction”—■ What Are.</p> <p>In a prosecution for homicide, where the state offered a purported dying declaration, oral statements by the court as to the nature of dying declarations and as to the weight of the one offered, made in the presence of the jury upon admitting the declaration in evidence, must be considered as an uncalled-for instruction.</p> <p>10. Criminal Law- — Trial—Instructions as to Dying Declarations — Weight oe Evidence.</p> <p>It is-error for the court to inform the jury that a dying declaration is entitled to the same weight as testimony under oath subject to cross-examination, because of the -imminence of death doing away with the necessity of an oath.</p> <p>11. Criminal Law — Trial-—-Instructions-—-Weight oe Evidence.</p> <p>Remarks by the trial court, upon admitting in evidence a purported dying declaration, as to the weight of the declaration, and on the question whether it was made when the declarant believed death imminent, are erroneous, invading the province of the jury in violation of Const, art. 6, sec. 12, directing that the court charge only on matters of law.</p> <p>12. Criminal Law — Trial—Conduct oe Counsel eor State.</p> <p>While a prosecuting attorney should be vigorous in the prosecution of crime, his duty is not solely to convict, and he should protect the rights of an accused person and not seek to take unfair advantage.</p> <p>Talbot, C. J., dissenting.</p>

<p>1. Elections — Registration—Designation oe Political Party-Right to Change.</p> <p>Under the election laws of 1913 (Stats. 1913, c. 284, snbc. 3, sec. 18), relating to primary elections, and subchapter 2, secs. 4, 5, relating to registration, an elector who has registered, so as to be entitled to vote at a primary election, by designating his political party and having same entered on the registry, cannot subsequently require the registry agent to change such designation.</p> <p>2. Elections — Registration-—-Designation oe Political Party.</p> <p>Under the election laws of 1913 (Stats. 1913, c. 284, sube. 3, sec. 18), relating to primary elections, and subchapter 2, secs. 4, 5, relating to registration, where an elector has registered, but has failed to indicate his politics or party designation, he may, prior to the time fixed for closing registration, apply to the registry agent and have an entry made on the registry of his politics or party designation so as to entitle him to vote at a primary election.</p> <p>3. Elections — Registration—Designation oe Politics — “I-Ieretoeore.” .</p> <p>As used in the election laws of 1913 (Stats. 1913, e. 284, sube. 3, sec. 18), providing that an elector shall not be entitled to vote at a primary election “unless he has heretofore designated to the registry agent his politics,” the word “heretofore” relates to the time in which an elector may lawfully be registered for the primary election.</p>

<p>1. Time — Computation—Excluding Sunday.</p> <p>Stats. 1913, c. 61, sec. 1, providing that whenever a secular act is to be performed on a particular day, and that day is a nonjudicial one, the act may be performed on the next judicial day, does not permit a nominee at a primary election to be held September 1 to file his papers on August 3, though August 2 falls on Sunday; section 7 of subchapter 3 of election law of 1913 (Stats. 1913, c. 284) providing that such papers shall be filed at least thirty days prior to the primary election.</p> <p>2. Elections — Withdrawal of Candidates at Primary Election.</p> <p>Election law of 1913 (Stats. 1913, c. 284), sube. 3, sec. 7, requiring a candidate filing nomination papers for the primary election to make affidavit that he will not withdraw, does not prevent a candidate who has filed his papers from withdrawing prior to the election, but he cannot withdraw where he is without opposition and becomes the nominated candidate by virtue of Stats. 1913, c. 284, sube. 3, sec. 14, subd. 9, providing that the names of candidates who are without opposition shall not be printed on the primary ballot, but shall be certified as the party nominees.</p> <p>3. Elections — Nominees at Primary — Effect of Withdrawal.</p> <p>Where, in such case, one of two opposing nominees withdrew after the time for filing nomination papers, but before the primary election, the other nominee became the candidate by operation of Stats. 1913, c. 284, sube. 3, sec. 14, subd. 9, and the secretary of state must certify his name as the candidate of his-party, though he filed withdrawal papers before the primary election, but after the withdrawal of the other candidate for nomination.</p> <p>4. Elections — Nomination Papers — Right to Change Party.</p> <p>Under election law of 1913 (Stats. 1913, c. 284), sube. 3, sec. 7, providing that a candidate at a primary election shall declare in his nomination papers that he intends to support the principles of the party of which he is a candidate, and that he voted for a majority of the candidates of such party at the last election, one who has filed nomination papers as a candidate of a designated party at the primary election cannot file another nomination paper designating himself as a candidate of another party for the same office.</p> <p>5. Elections — Filing Fee — Withdrawal—Refundment.</p> <p>One who files nomination papers under the election law of 1913 (Stats. 1913, c. 284), sube. 3, sec. 9, providing that the candidate filing such papers “shall pay” to the secretary of state “a fee for such filing,” is not entitled to' a return of such fee on his withdrawal as a candidate prior, to the primary election, though such fee is required to be paid into the state treasury.</p> <p>Norcross, J., dissenting, except as to 4, supra.</p>

<p>1. Waters and Watercourses — Irrigation Ditches — Injury erom Escaping Water.</p> <p>The injury to plaintiff’s premises from water being from percolation near the surface, regardless of defendant’s irrigation ditch, and from overflow caused by plaintiff decreasing the size of the ditch and lowering its banks, defendant is not liable.</p>

<p>1. Appeal and Error — Record — Striking Out — Considering Minutes of Court.</p> <p>Whether there shall be stricken from the files on appeal from an order refusing a new trial, a transcript of the testimony and proceedings certified by the reporter, but with nothing to indicate that it had been agreed on by counsel or settled and allowed by the court as a statement on appeal, or that it was used at the hearing on the motion for the new trial, depends on whether or not the minutes of the court, offered by appellant under the rule as to diminution of the record, when admitted, show it is in some way properly connected with the appeal.</p> <p>2. Exceptions, Bill of- — -Settlement—Contents.</p> <p>The bill of exceptions under which, in some instances, an appeal may be taken, is to be settled by the court, and, unlike a memorandum of exceptions for motion for new trial for errors of law at the trial, need not contain a statement of counsel that in his judgment the exceptions are well taken.</p> <p>3. Exceptions, Bill of — Improper Titling.</p> <p>Though improperly labeled a memorandum of exceptions, an instrument is a bill of exceptions on which appeal may be taken, if properly settled as such.</p> <p>4. Appeal and Error — Denial of New Trial — Exceptions Considered.</p> <p>An exception, properly before and considered by the court in denying a motion for new trial, may be considered on appeal from the order denying the motion, though it might have been made the basis of a direct appeal from the judgment.</p> <p>5. Appeal and Error — Time of Taking — Dismissal.</p> <p>The appeal from the judgment, not being taken within the six months from its rendition limited by statute, will be dismissed.</p>

<p>1. New Trial— Motion • — Service —■ Filing • — Time — Extension— Statutes.</p> <p>Though the provisions of Cutting’s Compilation, sec. 3292, authorizing an enlargement of the time for service and. filing of a motion for a new trial by stipulation of the parties, or on good cause shown, by the court or judge before whom the cause was tried, was not carried forward into the Revised Laws, yet where the parties stipulated for an extension of time beyond the ten days specified in Rev. Laws, sec. 5323, within which defendant might serve and file his notice of intention to move for a new trial, such stipulation was a waiver of plaintiff’s right to object that the motion was not in time.</p> <p>2. Appeal and Error — Review—Findings—Conflicting Evidence.</p> <p>In a suit to establish and enforce a trust a finding of the existence of the trust, based on substantially conflicting evidence, will not be reversed on appeal.</p> <p>3. Trusts — Resulting Trust — Personal Property — Evidence.</p> <p>In a suit to establish a resulting trust in corporate stock, evidence held insufficient to sustain a finding that the trust existed as to more than fifty shares of the stock.</p> <p>4. Witnesses — Competency — Transactions witi-i Person Since Deceased.</p> <p>In a suit to declare and enforce a resulting trust as to corporate stock alleged to be held by defendant as trustee for plaintiff’s testator, defendant was precluded by Rev. Laws, sec. 5419, from testifying as to any transactions between himself and testator.</p> <p>5. Witnesses —• Competency — Disqualification ■— Transactions with Person- Since Deceased.</p> <p>Rev. Laws, see. 5419, disqualifying a witness to testify to any transactions between himself and a person since deceased, does not disqualify the witness to testify as to matters brought out by opposing witnesses outside the transaction and out of the presence and hearing of the person who had since died.</p> <p>6. Trover and Conversion — Damages—Value of Property.</p> <p>In a suit to compel an alleged trustee to account for the value of corporate stock alleged to have been converted by him, plaintiff’s measure of damages was the market value of the stock at the time of the conversion, and evidence of its value at a subsequent time, more than two years thereafter, was inadmissible and insufficiency on which to predicate judgment.</p>

<p>1. Carriers — Transportation of Baggage — Limit of Liability.</p> <p>A carrier, by reasonable regulations brought to the knowledge of a passenger, may limit its liability as an insurer for the transportation of baggage to a specified value, except when paid additional compensation proportional to the risk, and $100 is a reasonable amount in value above which an additional charge may be made.</p> <p>2. Carriers — Transportation of Baggage — Limited Liability— Negligent Loss.</p> <p>A stipulation limiting a carrier’s liability for loss of baggage to $100, in the absence of payment of an excess charge for additional valuation, is unavailable, where the carrier has wilfully taken or withheld the baggage from the passenger, or has negligently delivered it to the wrong person.</p> <p>Norcross, J., dissenting.</p>

<p>Original proceeding. Petition by the State, on relation of H. B. Maxson, for a writ of - prohibition against George Brodigan, Secretary of State, and Richard A. McKay.</p>

<p>1. Constitutional Law — Pbesumttion as to Validity oe Statutes.</p> <p>All acts of the legislature are presumed, to be valid until it is clearly shown that they are unconstitutional.</p> <p>2. Elections — Filins Fee- — Validity.</p> <p>Stats. 1913, c. 284, sube. 3, sec. 9, imposing upon candidates for state offices a fee of $100 as a condition to filing nomination papers so that their names will go on the ballot, is valid, being a regulation, and not an additional qualification, and it being within the scope of the legislature’s power to impose a substantial fee to prevent persons from placing their names on the ballots for fraudulent purposes, such as to draw strength in small localities from one candidate to benefit another.</p> <p>Noeceoss, J., dissenting.</p>