Volume 38 — Nevada Reports

<p>Original proceeding in prohibition by Emilio Dotta against A. W. Hesson, and others, as County Board of Education of the County of Elko, State of Nevada.</p>

<p>1. Elections — Party Offices — ”De Facto Officer” — Wi-io Are.</p> <p>One purporting to act as a member of a county central committee of a political party, and wlio held proxies of other members, is at least a cle facto officer, although disqualified by Stats. 1913, c. 282, sec. 18, because the holder of an appointive .public office; a “cle facto officer” being one whose acts, though not those of a lawful officer, the law upon principles of policy and justice will hold valid, because of the circumstances under which he acts or for the benefit of third persons.</p> <p>2. Prohibition — Scope of Remedy — Collateral Attack.</p> <p>Prohibition will not lie to restrain the county clerk froln placing upon the official ballot the name of a nominee for justice of the peace selected by the county central committee to fill the vacancy upon the death of the original nominee, because the chairman of the committee, who held three proxies, was disqualified under Stats. 1913, c. 282, sec. 18, being the holder of an an appointive public office, for the chairman was at least a cle facto officer, and his right to the office cannot be tested by prohibition against another officer.</p>

<p>1. Adverse Possession — Recovery oe Real Property.</p> <p>Where defendants and their predecessors had continued under a deed executed in 1887 in the sole, open, and notorious possession of a strip of ground by the side of a lot the boundary of which was in dispute, an action by the holder of the record title thereto to recover its possession was barred.</p> <p>2. Estoppel — Acquiescence.</p> <p>Where purchases by defendants and their predecessors were intended to include a strip of land and a house thereon, their continued, open, and notorious possession of the strip and the house was notice of their claim to plaintiffs or their predecessors subsequently obtaining their deeds to the lot; and in equity the subsequent purchasers, with such notice, were estopped, by long acquiescence in the complete acts of ownership exercised by the prior purchasers, from recovering the strip.</p>

<p>1. Trial — Reception of Evidence — Restriction to Special Purpose.</p> <p>In a trial, without a jury, of a husband’s action for criminal conversation, the admission in evidence of letters to plaintiff from his wife containing matters competent and matters incompetent was not error, where the court stated that the letters were admitted merely to contradict any inference that the husband and wife were living together, and there was other and competent evidence relative to the adultery relied on as the basis of the action.</p> <p>2. Appeal and Error — Ground for Reversal — Admission of Evidence.</p> <p>Where incompetent evidence is admitted in a trial without a jury, a reversal is warranted only when the record shows that the competent evidence was insufficient to support the findings, or that the improper evidence affected the result.</p> <p>3. Appeal and Error — Harmless Error — Admission of Evidence.</p> <p>A party cannot complain on appeal of the admission of incompetent evidence which inures to his benefit.</p> <p>4. Witnesses — Competency—Husband and Wife — Consent to Testify.</p> <p>Under Rev. Laws, sec. 5424, providing that a wife cannot testify for or against her husband “without his consent,” a wife was competent to testify for her husband in his action for criminal conversation, where the husband and wife had each consented in open court that the other might testify to anything existing between them having a bearing on the case.</p> <p>5. I-Iusband and Wife — Action for Criminal Conversation — Sufficiency of Evidence.</p> <p>Evidence in a husband’s action for criminal conversation, tried without a jury, held to sustain a judgment for plaintiff.</p> <p>6. I-Iusband and Wife — Action for Criminal Conversation — Issues.</p> <p>In a husband’s action for criminal conversation, the issue is whether the wife has been guilty of adultery without his consent or connivance.</p> <p>7. Husband and Wife — Criminal Conversation — Damages Recoverable — Mitigation.</p> <p>In a husband’s action for criminal conversation, lack of consortium is an element of the damages, but the fact that the breaking up of the home or the destruction of the marital relation has been only partial, and that there has been a reconciliation, may be considered in mitigation of damages.</p> <p>8. Appeal and Ebbob — Findings—Evidence.</p> <p>The judgment in a case tried without a jury will not be disturbed on appeal, though the evidence is conflicting, where it is supported by any substantial evidence.</p>

Orr, Judge. Action by M. J. Howard and another against John Wright and another. From judgment for defendants and denial of new trial, plaintiffs appeal.

Original proceeding. Petition for mandamus by the State of Nevada, upon the relation of J. F. Shaughnessy and others, constituting the Nevada Tax Commission, against Henry Boerlin and others, as the Board of County Commissioners of Esmeralda County.

<p>1. Sales — Conditional Sales — Title of Buyer.</p> <p>Under a conditional sale contract which stipulates that the chattels shall remain the property of the seller until paid for, title does not pass to the buyer obtaining and retaining possession, but not paying the price.</p> <p>2. Sales- — Conditional Sales — Bights of Assignee of Seller.</p> <p>Where a seller in a conditional sale contract reserving title until the price was paid assigned the contract, the assignee succeeded to the rights of ownership of the seller until the price was paid.</p> <p>3. Sales- — Conditional Sales — Retention of Title Until Payment of Price — Performance.</p> <p>A conditional contract for the sale of mining machinery bound the buyer to deposit with a third person all bullion extracted from his mining properties until the price was paid, and provided that the title should remain in the seller until the price was paid. The buyer deposited bullion in excess of the price, under an agreement that the third person should apply the same in payment of labor claims, royalties on ore produced, and supplies furnished to the buyer for the operation of the property. Held, that the deposit of the bullion was not a payment of the price because the original contract was modified by the subsequent agreement.</p> <p>4. Sales — Conditional Sales — Reservation of Title — Subsequent Agreements.</p> <p>A conditional contract of sale which reserved the title in the seller until the price was paid was assigned by the seller, and thereafter the buyer gave a chattel mortgage of corporate stock to secure the price and for other claims due the assignee. The mortgage recited that the buyer had possession, but no title. Attached to the mortgage was an exhibit of the original contract which was also made a part of the mortgage. Held, that the mortgage reserved the title as against an execution creditor of the buyer.</p> <p>•5. Sales — Conditional Sales — -Reservation of Title — Subsequent Agreements.</p> <p>A conditional sale contract of mining machinery stipulated that the title should remain in the seller until the price was paid, and recited that the buyer had deposited 50,000 shares of the capital stock as security. The seller assigned the contract and thereafter the buyer executed to the assignee a chattel mortgage on 71,000 shares of stock including the 50,000 shares as security for the payment of the price and other debts due him. The mortgage expressly recognized that the conditional sale was in force and that the title remained vested in the assignee. Held, that the mortgage did not operate as a waiver of the original conditional sale, and the assignee was not bound to exhaust his mortgage security before asserting title to the machinery to recover the price as against an execution creditor of the buyer levying on the machinery.</p> <p>6. Replevin — Damages—Evidence.</p> <p>Where, in replevin, there was no proof that the property had any rental value or that the plaintiff had sustained any special damage because deprived of its use, a judgment for plaintiff should be for the value of the property, with interest thereon from the date of its wrongful seizure until the date of the judgment.</p> <p>7. Replevin — Attorney’s Fees and Expenses.</p> <p>A plaintiff in replevin who obtains a judgment is not entitled to recover attorney’s fees or expenses incidental to the action other than the costs properly accruing to the prevailing party in any action.</p>

<p>1. Elections — Contests—Board of County Commissioners— Statute.</p> <p>Rev. Laws, sec. 1513, providing for recount of votes by the board of county commissioners, was not repealed by Stats. 1913, c. 284, the general election law, under Const, art. 4, sec. 21, providing that, where a general law can be made applicable, all laws shall be general and uniform in operation; since a general statute will not repeal particular provisions of a former act unless the two conflict irreconcilably.</p> <p>2. Statutes — Public Officers — Constitutionality—Title.</p> <p>Under Const, art. 4, sec. 17, providing that each law enacted shall embrace but one subject, which shall be briefly expressed in the title, Rev. Laws, sec. 1513, which is section 13 of an act entitled “An act to create a board of county commissioners in the several counties of the state, and to define their duties and powers,” and establishing the duties of boards of county commissioners as election officers, was constitutional.</p> <p>3. Constitutional Law — -Elections—Election Contests — Departments of Government — Judiciary.</p> <p>Rev. Laws, sec. 1513, defining the election duties of boards of county commissioners, providing for recounts by them, is not void as vesting judicial powers in such board.</p> <p>4. Elections — Contest—Recount—Statute.</p> <p>Under Rev. Laws, sec. 1513, defining election duties of boards of county commissioners, such a board may reconvene after adjournment as a board of canvassers to conduct a recount, even in the absence of express authority in the statute; the imposition of a specific duty always implying power and function to perform it in a reasonable manner.</p> <p>5. Prohibition — Election Contests — Action by Boards of County Commissioners.</p> <p>Where a board of county commissioners has no legal power to act in the matter of an election recount, writ of prohibition, issuing on xietition of xiresumably successful candidate, is a proper remedy.</p> <p>6. Elections — Contests—Concurrent Remedies — Statutes.</p> <p>Where various remedies as to election contests were afforded, at common law, under the code of civil procedure,-and the general election law (Stats. 1913, c. 284), and under Rev. Laws, sec. 1513, concerning the powers of boards of county commissioners in regard to elections, these remedies are concurrent, not being incompatible, and the party seeking relief may use any.</p>

<p>1. Jury — Challenge for Actual Bias — Sufficiency—“Actual Bias.”</p> <p>Rev. Laws, secs. 7145, 7146, allow a challenge for cause on the general ground that a juror is disqualified for want of any qualification prescribed by law, and on the particular ground that he is disqualified from serving in the action on trial. Section 7147 allows a challenge for such a state of mind on the part of the juror as leads to a just inference that he will not act with entire impartiality, designated “actual bias.” Section 7150 provides that in a challenge for actual bias it must be alleged that the juror is biased against the party challenging him, but that no one shall be disqualified by reason of a formed or expressed opinion on the matter in issue, provided that it appears to the court that he can act impartially in the.trial. Held, that a challenge “for actual bias,” not stating any ground upon which the challenge rested or any reason on which it was made or the party against whom the jury was biased, was in form insufficient. (Norcross, J., dissenting.)</p> <p>2. Jury — Competency'—Bias.</p> <p>A juror in a trial for murder who, from what he had read and heard, had formed and expressed an opinion going to the merits of the case, and had talked about it with several persons, none of whom had witnessed the homicide, and who on inquiry stated that he had an opinion as to defendant’s guilt which would require testimony to remove, but that he would lay such opinion aside and try the case on the evidence, was not incompetent on the ground of actual bias.</p> <p>3. ITomicide — Harmless Error — Admission of Evidence.</p> <p>In a prosecution for homicide, where the age of the deceased girl was not a material issue in the case, error, if any, in allowing a state’s witness to answer a question calling for her apparent age, was harmless.</p> <p>4. Criminal Law — Opinion Evidence — Age of Decedent.</p> <p>In a trial for murder, a witness for the state was competent to express his opinion as to the age of the deceased girl, based upon his observations made at the time of the homicide, where such evidence was not very important under the issues.</p> <p>5. Homicide — Evidence—Acts and Declarations.</p> <p>A statement by accused a very short time after the stabbing, which he was seen to do, that he had no knife and had not cut decedent, was admissible as showing a consciousness of guilt.</p> <p>G. Criminal Law — Evidence—Collateral Offenses.</p> <p>In a prosecution for killing by stabbing, evidence that the defendant stabbed another man during a fight over the deceased a few minutes before lie stabbed tbe deceased was admissible under the exception to the rule excluding evidence of collateral crimes, in that it was with reference to a contemporaneous crime, the circumstances of which were inseparable from the crime charged.</p> <p>7. Homicide — Evidence—-Possession of Weapons.</p> <p>In a prosecution for killing by stabbing, evidence that defendant had had in his possession a knife similar to the one found in close proximity to the scene of the stabbing was admissible; objection thereto going rather to its weight than its admissibility.</p> <p>S. Homicide — Evidence—Defendant’s Possession of Weapon— Identification.</p> <p>The identification of a knife as that in defendant’s possession the afternoon before the homicide and as the one used by defendant when he stabbed the deceased held to warrant its admission in evideuce.</p> <p>ON REHEARING</p> <p>9.Criminal Law — Homicide—Instructions—-Irresistible Passion —Express Malice.</p> <p>An instruction was given defining “irresistible passion” as meaning “that at the time of the act the reason is disturbed or obscured by passion to an extent which might render ordinary men of fair average disposition liable to act rashly, or without due deliberation or reflection, and from passion rather than judgment,” followed with the statement: “Nor will irresistible passion, if proved to have existed, be sufficient to reduce the degree of the offense where the killing was done with express malice, as heretofore defined; under our statute express malice necessarily renders any murder murder of the first degree.” express malice having previously been defined in the language of the statute as “that deliberate intention unlawfully to take away the life of a fellow creature which is manifested by external circumstances capable of proof” : Held, error, for the reason that the instruction assumes that “irresistible passion” and “express malice” could have coexisted in the case.</p> <p>10. Criminal Law — Homicide—Instructions—Irresistible Passion • — Express Malice.</p> <p>An instruction which is the equivalent of saying to the jury: “Nor will the fact that the killing was done without due deliberation, if proven so to have been done, be sufficient to reduce the degree of the offense if the killing was done with deliberate intention,” is confusing, contradictory, and erroneous.</p> <p>11. Criminal Law — Homicide—Instructions—Irresistible Passion ■ — Express Malice.</p> <p>An instruction erroneously assuming that irresistible passion and express malice may coexist, and, if found to coexist, the element of express malice renders the killing murder in the first degree, is confusing, contradictory, erroneous, and prejudicial.</p> <p>12. Criminal Law — Homicide—Implied Malice — Sudden Passion.</p> <p>Implied, malice and sudden passion may coexist, in which case the offense is not reduced to the grade of manslaughter, but is murder of the first or second degree, depending upon the degree of passion.</p> <p>13. Criminal Law — Homicide—Irresistible Passion — Degree oe Oeeense.</p> <p>If irresistible passion is proven to have existed, the homicide could not have been committed with express malice, and would not constitute murder of the first degree.</p> <p>14. Criminal Law — Homicide—Passion—Degree oe Murder.</p> <p>Where it appears from the evidence to the satisfaction of the jury that there are sufficient facts to cause in the defendant a heat of passion insufficient to reduce the crime to manslaughter, .but sufficient to prevent the killing from being with that deliberate premeditation required to constitute murder in the first degree, it would be the duty of the jury to bring in a verdict of murder in the second degree.</p> <p>15. Criminal Law- — Homicide—Instructions—Express Malice.</p> <p>An instruction was given reading: “And if the jury should find from the evidence the existence of facts and circumstances establishing beyond a reasonable doubt that the defendant had such a reckless disregard of human life as necessarily includes a formed design against the life of Bessie Andjr, the killing, if it amounts to murder, would be on express malice, and consequently would be murder of the first degree.” Held, erroneous where the facts in evidence showing the manner of the killing are not such of themselves as to establish necessarily a formed design, so as to preclude every other consideration except that of first degree murder.</p> <p>'1G. Criminal Law — Instructions-—-Express Malice.</p> <p>Where death is produced by the common methods of stabbing or shooting, unless accompanied by other peculiar circumstances, the mere fact of stabbing or shooting would not of itself preclude other circumstances negativing a formed design against the life of the deceased.</p> <p>MoCarran, J., dissenting.</p>

Averill, Judge. Action by John Ryan against the Manhattan Big Four Mining Company. From a judgment for plaintiff and an order denying a new trial, the defendant appeals. Statement of Facts [1] John Ryan, the respondent in this case, a miner of some eight or ten years’ experience, entered the employ of the appellant corporation as a miner in their property at Manhattan, Nye County, Nevada, on or about the 1st day of June, 1912.

<p>1. Robbery — Indictment-—-Intent—“Feloniously.”</p> <p>An information, substantially following the form of the statute, charging that defendant wilfully, unlawfully, and feloniously took from a person certain goods and chattels of such person, was not defective because not specifically charging a taking with an intent to commit a larceny; the word “feloniously” being a sufficient averment of the intent necessary to constitute the offense.</p> <p>2. Indictment and Information — Language of Statute — Robbery.</p> <p>An indictment charging robbery in the language of the statute is sufficient.</p> <p>3. Criminal Law — Trial—Request for Instructions.</p> <p>Where the court defines the crime in the language of the statute, defendant desiring a more particular instruction should request it.</p> <p>4. Jury — Objections to Panel — Time for Interposing.</p> <p>Under Rev. Laws, sec. 7134, providing that a challenge to the panel must be taken before a juror is sworn, an objection to the panel, first made after the jury was sworn, on the ground that the court had issued a second venire after excusing a portion of the first venire, came too late.</p> <p>5. Jury — Excusing Jurors — Second Venire — Two Judges.</p> <p>Under Rev. Laws, sec. 4903, providing that the two judges of the district court shall have concurrent and coextensive jurisdiction, one judge of the district court has power to excuse jurors and to issue a second venire to fill out the panel.</p> <p>6. Criminal Law — Review—Presumptions.</p> <p>In the absence of a showing in the record of the grounds on which jurors impaneled were excused, it will be presumed on appeal that the court properly exercised its discretion.</p> <p>7. Jury — Challenge to Panel — Grounds.</p> <p>Under Rev. Laws, sec. 7133, providing that a challenge to the panel can be founded only on a material departure from the forms prescribed by statute in respect to the drawing and return of the jury, or on the intentional omission of the proper officer to summon one or more of the jurors, an objection to the panel, on the ground that the court having summoned a panel of jurors excused a portion of them and issued a second venire, ' is not well taken.</p> <p>S. Robbery — Evidence—Possession of Weapon.</p> <p>Evidence that defendant, a few days prior to the alleged robbery, had in his possession a revolver similar in appearance to that used in the commission of the robbery and found on his person on his arrest a few days after the offense was committed, was admissible.</p> <p>9. Criminal Law — Evidence—Other Offenses.</p> <p>Such evidence was not within the rule prohibiting evidence of a separate and distinct crime unconnected with that for the commission of which the defendant was on trial, where there was nothing to show that at the time witnesses saw the revolver in defendant’s possession he was engaged in the commission of any criminal offense.</p>

<p>1. Taxation — Assessment—Valuation—Statutes.</p> <p>Rev. Laws, sec. 3624, directing the assessor to determine the true cash value of the property, does not control section 3S3S, subsequently enacted, which provides that no patented or state contract land shall be assessed for less than $1.25 per acre.</p> <p>2. Taxation. — Assessment — Valuation — Statutes — “Cash Value.”</p> <p>Stats. 1913, c. 134, creating a state tax commission with power to district the state geographically in assessment districts according to relative uniformity of land valuation, and establish minimum acreage valuations for the classes in each district, and that if, in the opinion of the commission, any tract, by reason of special conditions, would be improperly assessed by the application of the classified acreage valuations, the tract may be excluded therefrom and specially appraised, and providing that property shall be assessed at its true full “cash value,” defined to mean the valuation in money which an investor in such character of property would be reasonably willing to pay therefor, implies that the commission may fix the valuation lower than the minimum of $1.25 per acre, as fixed by Rev. Laws, sec. 3838, and an owner feeling aggrieved on the ground that the minimum is too high, may appear before the commission and prove that the cash valuation is less than the minimum, and, on the commission so finding, they must make a deduction in the valuation accordingly, and to this extent section 3838 is superseded, but it still applies to county assessors making the original assessment.</p> <p>3. Statutes — Construction.</p> <p>Two statutes on the same subject must be construed together, so as to give effect to the language of both, as far as consistent, and where a conflict is apparent, the later statute controls.</p> <p>4. Constitutional Law — Validity oe Statutes — Necessity eor Adjudication.</p> <p>Constitutional questions, not necessary for an adjudication of the rights of the parties, will not be determined.</p>

Averill, Judge. Action by Mrs. J. W. Fapp and husband against J. S. McQuillan and C. F. Wittenberg, copartners doing business as the Wittenberg Warehouse Company. From a judgment for plaintiffs, and an order denying new trial, defendants appeal.

H. A. Pike, Judge. Action by James Mirodias and others against the Southern Pacific Company. From a judgment for plaintiffs and an order denying a new trial, defendant appeals.

Orr, Judge, presiding. Action by the First National Bank of San Francisco against Nye County. Judgment for plaintiff, and defendant appeals. Statement of Facts This action is one to recover on four distinct causes of action,' three of which are based upon three promissory notes executed by the county commissioners of Nye County to the Nye and Ormsby County Bank, dated respectively October 2, 1907, October 15, 1907, and April 8, 1908.

<p>1. Courts — Contracts eor Special Train — Interstate Commerce —Jurisdiction oe State Court.</p> <p>One contracting with'a railroad company for a special train to run from a point in the state to a point in a sister state and return may sue the company in a state court for a breach of the contract, without previous application to the Interstate Commerce Commission.</p> <p>2. Pleading — Amendments—Answer.</p> <p>Where a railroad company, when sued Cor a breach of contract Cor a siiecial interstate train, filed a demurrer which was overruled, and a motion to strike out iiarts of the complaint, which was denied, and then filed an answer, refusal to permit amendment of the answer during the trial many months after the filing of the complaint, by setting up a failure to comply with the interstate commerce act in the establishment of rates for special trains, and to plead the invalidity of the contract bj reason thereof, was proper.</p> <p>3. Carriers — Breach oe Contract — Mental Anguish.</p> <p>A railroad company, .breaching its contract to furnish a special train to carry speedily for medical treatment a son of the person contracting for the train, is liable to the person for mental anguish caused bj’ the breach causing delay in the son’s removal, where the company was, at the time of the making of the contract, advised of the necessity of the speedy removal of the son for medical treatment and the danger to his life by any delay in removal.</p> <p>4. Carriers — Contracts eor Special Trains — Breach.</p> <p>One contracting and paying for a special train is entitled to the services of the train, and the carrier running it to a farther point tinder false representations, and attaching other cars to it, is guilty of a breach of the contract.</p> <p>5. Damages — Punitive Damages — When Allowed.</p> <p>Punitive damages should be awarded only where the wrongdoer is unduly negligent or the acts are unnecessarily aggravated.</p> <p>G. Carriers — Contracts eor Special Train — Breach—Punitive Damages — Mental Anguish — Excessive Damages.</p> <p>Where a railroad company contracting to furnish a special train for the speedy removal of plaintiff’s son to a place for medical treatment breached the contract by delaying the removal for three hours with. knowledge of all the facts, a verdict for $10,000 was excessive, though punitive damages could be allowed and compensation for mental anguish Could be recovered, and-the verdict must be reduced to $5,000.</p> <p>[Note — On writ of error to Supreme Court of the United States,]</p>

<p>Appeal from the Fifth Judicial District Court, Nye County; Mark R. Averill, Judge.</p> <p>Action by the Herring-Hall-Marvin Safe Company against Letson Balliet. Judgment for defendant, and plaintiff appeals.</p>

Somers, Judge. • Joe Pierpoint was convicted of crime, and he appeals. The indictment charges no specific act constituting an attempt. It amounts only to a charge of solicitation, and, hence, is insufficient. (State v. Lung, 21 Nev. 214.)

<p>Appeal from Second Judicial District Court, Washoe County; Cole L. Harwood, Judge.</p> <p>Suit by Sylvia Boydstun against Philip Jacobs and another. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Second Judicial • District Court, Washoe County; Thomas F. Moran, Judge.</p> <p>John Clancy was convicted of robbery, and he appeals.</p>

Somers, Judge. Suit for divorce by Jesse R. Grant against Elizabeth Chapman Grant. Judgment for defendant, and,- from denial.of complainant’s motion to set aside such judgment and for an order dismissing the proceedings without prejudice, he appeals.

<p>1. Divorce — Grounds—“Desertion”—Consent.</p> <p>Separation by consent of tbe parties is not “desertion,” and will not be ground for divorce.</p> <p>2. Appeal and Error — Review—Findings oe Court — Conclusiveness.</p> <p>A judgment based on substantially conflicting testimony will not be disturbed on appeal.</p>

<p>1. Criminal Law — Former Jeopardy — Dismissal of Indictment.</p> <p>Under Rev. Laws, sec. 7101, providing that if a demurrer to an indictment is allowed, the judgment is final upon the indictment demurred to, and is a bar to another prosecution for the same offense unless the court directs the case to be submitted to the same or another grand jury; section 7090 providing that an indictment must be set aside by the court upon defendant’s motion in the cases therein specified; section 7092 providing that if such a motion is granted the court must order that the defendant be discharged, or that his bail be exonerated, or that money deposited instead of bail be refunded, unless it directs that the case be resubmitted to the same or another grand jury: section 7094 providing that an order to set aside an indictment as provided in that act is no bar to a further prosecution; section 7399 authorizing the court on its own motion or on the application of the district attorney to order an action after indictment to be dismissed; and section 7401 providing that an order for the dismissal of an action as provided in that chapter shall bar another prosecution for the same offense if it be a misdemeanor, but not if the offense be a felony — an order dismissing an indictment on motion of the district attorney because of a clerical error therein did not bar a new prosecution, though no order was entered resubmitting the case to the grand jury.</p> <p>2. Indictment and Information — Dismissal of Indictment — Resubmission.</p> <p>As on tlie dismissal of an indictment on motion of the district attorney because of a clerical error therein, the failure to order a resubmission of the case to the grand jury did not bar a new prosecution, an order directing the district attorney to take such steps, by indictment or information, as he might deem advisable was not void as divesting the court of its discretion in the premises and imposing such discretion upon the district attorney,</p> <p>o. Indictment and Information — Amendment—Resubmission to Grand Jury.</p> <p>Under Rev. Laws, see. 7060, providing that no indictment shall be deemed insufficient, nor shall the trial, judgment, or other proceeding be affected by reason of any defect or imperfection in matters of form which shall not tend to the prejudice of the defendant, and that the court may, on application, direct the indictment to be amended to supply the deficiency or omission when, by such amendment, the nature’ of the charge shall not be changed and the defense on the merits will not be prejudiced, .where in an abundance of precaution the court, instead of directing an indictment to be amended to cure a clerical error, dismissed the indictment and reconvened the grand jury, which thereupon returned a second indictment, the new indictment should be regarded in effect as simply an amendment of the first indictment.</p>

<p>1. Domicile — “Residence.”</p> <p>“Residence” is a settled or fixed abode of a character indicating permanency, or at least an intention to remain for an ■indefinite time, being made up of the physical fact of abode and the intention of remaining.</p> <p>2. Statutes — Acts Relating to Same Subject-Matter — Construction — “Repugnancy.” .</p> <p>Two statutes relating to the same subject-matter are to be read and construed together, with a view to harmonizing them, if possible, to give effect to both, unless the later act expressly repeals the earlier, or is so repugnant to it as to repeal it by necessary implication; “repugnancy” being inconsistency or conflict with something else.</p> <p>3. Divorce — Jurisdiction—“Legal Residence” — Statute.</p> <p>The action'was for divorce; defendant denying the jurisdictional allegation of the complaint of the plaintiff’s residence for the statutory period of six months prior to the suit brought. Upon trial to a jury, special findings were made that plaintiff had established her residence solely for the purpose of obtaining a divorce. Rev. Laws, sec. 5838, provides that divorce from the bonds of matrimony may be obtained, etc., in the county in which the plaintiff shall hare resided six months before suit brought; while section 3610 provides that the “legal residence” of a person with reference to his right of suffrage and eligibility to office, is that place where his habitation is fixed and permanent, and to which, whenever he is absent, he has the intention of returning. Stats. 1911, c. 158, provides that the “legal residence” of a person “with reference to his or her * * * right to maintain or defend any suit at law or in equity” is that place where he or she shall have been actually, physically, and corporeally present within the state or county during all of the period for which residence is claimed by him or her. Hehl, that there is no necessary repugnancy between the provisions of the Revised Raws relating to residence and the act of 191.1; the latter merely adding the requirement of physical presence to the former general requirement of the intention permanently to reside, so that the plaintiff, taking up her residence solely for the purpose of maintaining a divorce action, did not acquire such residence as was necessary to give the court .iurisdiction of her suit.</p>

<p>1. Divorce — Vacation oe Decree — Evidence.</p> <p>The court, on application to vacate a divorce decree on the ground of fraud, may not grant relief based on a private letter addressed to him and the contents of which are unknown to the opposing party or his counsel until it is filed' as a basis of the order, and the court, if deeming the matters stated in the letter of sufficient importance, should direct counsel of the parties to investigate the same and present the matter by affidavits.</p>

<p>1. States — Officers and Employees — Eligibility—“Office.”</p> <p>Under Stats. 1913, c. 128, sec. 1, creating the office of exposition commissioner of the state for the Panama-Pacific and the Panama-Oalifornia expositions, and authorizing the governor to appoint an exposition commissioner, and section 2, creating the board of directors for the state for such expositions, whose duty it shall be to employ superintendents, clerks, and other persons upon such terms as may be deemed just and equitable to carry out the provisions of that act, and to cooperate and advise with the exposition commissioner, the position occupied by a superintendent so employed was not an “office” • within Const, art. 4, sec. 8, providing that no senator or member of assembly shall, during the term for which he shall have been elected, uor for one year thereafter, be appointed to any civil office of profit under the state, which shall have been created or the emoluments of which shall have been increased during his term, except such office as may be filled by election by the people, as the term “office” embraces the ideas of continued duration, fees, or emoluments and duties, and such superintendent was intrusted with none of the sovereign power of the state, his compensation, period of employment, and the details of his duties being all matters of contract with the board of directors, especially as he was not required to take an oath as required by Const, art. 15, sec. 2, in the case of officers, indicating that the state officers did not consider him an officer.</p> <p>2. Constitutional Law — Statutes — Construction — Practical Construction by Other Departments of the Government.</p> <p>Where a doubt exists as to the proper construction to be placed on a constitutional or statutory provision, courts will give weight to the construction placed thereon by other coordinate branches of the government.</p> <p>3. Mandamus — Claims for Salary — Refusal to Audit — Remedy.</p> <p>Where the state controller refused to draw his warrant for the salary of a superintendent, employed by the board of directors for the Panama-Pacific and Panama-California expositions, pursuant to Stats. 1913, c. 128, he could not be compelled to do so by mcmclarmis, the remedy being by action, notwithstanding section 6 of such act, making appropriations for the state’s exhibits at such expositions, and providing that all disbursements from such appropriations should be on certificates of the exposition commissioner, approved by a majority of the directors and by the state board of examiners, when the state controller should draw his warrant and the state treasurer pay the same, as the controller is a constitutional officer and his duty to audit all claims against the state, except obligations fixed by law, is a constitutional one, and cannot be infringed upon by legislative enactment.</p>

Somers, Judge. Action by A. Marshon against P. H. Toohey. From an order refusing to set aside an injunction pendente lite, defendant appeals. The complaint does not show that the injury complained of is irreparable.

J. L. Taber, Judge. Frank Huber was convicted of murder in the first degree, and he appeals. The evidence in regard to a certain order drawn upon appellant by deceased, and sent through the mail to witness Rutherford some time during the fall of 1911, was too remote, and could in no way bind this appellant; and such testimony was not admissible under any rule of evidence. This testimony was necessarily prejudicial to the defendant. (12 Cyc. 390; Peoples.

Original proceeding in mandamus to compel the respondent to levy a tax for certain school purposes. The provision of section 3618, Revised Laws of Nevada, requiring the county commissioners to fix the rate of county taxes on or before the first Monday of March each year, is directory.

<p>Appeal from Second Judicial District Court, Washoe County; A. N. Salisbury, Judge.</p> <p>Action by Maria Yori against George S. Phenix. From a judgment for plaintiff, defendant appeals.</p> <p>The underlying principle in forcible entry, regardless of the rights of the parties, is preservation of peace and good order; in unlawful detainer, the right of possession is the very thing to be litigated. (13 Am. & Eng. Ency. Law, 2d ed. 753, 756; Beck v. Glenn, 69 Ala. 121; Doty v. Burdick, S3 111. 473; Rabe v. Eyler, 48 Am. Dec. 763; Forsythe v. Bullocks, 74 N. C. 135; 19 Cyc. 1145, 1164; Taylor, Landlord and Tenant, pars. 707, 717; Lachman v. Barnett, 16 Nev. 154; Fitchett v. Henley, 31 Nev. 326.)</p> <p>The California cases relied upon by the trial court are not authority. {Bostick v. Mahoney, 74 Cal. 239; Knowles v. Murphy, 107 Cal. 107; Fish v. Benson, 71 Cal. 437; Rev. Laws, sec. 5501; Peralta v. Ginochio, 47 Cal. 259.)</p> <p>There is no estoppel where the relation of landlord and tenant is denied. {FranklinY. Merida, 35 Cal. 558; Smith v. Smith, 16 S. W. 637.)</p> <p>Enacting of express statute in some states does not affect the rule of pleading and proof. (N. Y. Code C. C., sec. 2245; Rev. Laws, sec. 5595; Johnson v. Chely, 43 Cal. 299; Reitze v. Humphreys, 125 Pac. 522; Hamill v. Bank, 45 Pac. 411; Brown v. Burdick, 25 Pa. St. 260; Mattox v. Helm, 15 Am. Dec. 64.)</p> <p>Nevada is not bound by California construction of the unlawful detainer act. (36 Cyc. 1156; Oleson v. Wilson, 53 Pac. 372, 63 Am. St. Rep. 639.)</p> <p>The district court was without jurisdiction, as is this court. {McDonald v. Stiles, 54 Pac. 487.)</p> <p>The rule that the tenant cannot deny his landlord’s title, taken at its face value, is supported by many authorities, but it is qualified, at least in some jurisdictions, to the effect that where the tenant did not acquire possession by virtue of the lease, he may deny the landlord’s title. {Johnson v. Chely, 43 Cal. 299; Tewksbury v. Magraff, 33 Cal. 237; Franklin v. Merida, 35 Cal. 558.)</p> <p>A person who, while in possession of real estate, executes a statutory deed of warranty to another, and still remains in possession, even without a lease, holds possession for the grantee, becomes a tenant at the will of the grantee, and is estopped by his deed from setting up an independent title in himself. (Blake v. O’Neal, 16 L. R. A. n. s. 1147.)</p> <p>Unlawful detainer in Nevada is a summary proceeding, taking the place of an action of ejectment, abolished as between landlord and tenant. In case of a written lease, and in the absence of allegations of fraud, mistake, etc., in the procurement and execution of, the lease, the only questions to be litigated are: Was the lease executed? Has the term expired? Does the lessee hold over against the will of the lessor and after demand for possession made and refused? (24 Cyc. 1418.)</p> <p>In an action under our unlawful detainer statute, equitable defenses cannot be pleaded or introduced. {Perkins v. Barnes, 3 Nev. 357; Lucich v. Medin, 3 Nev. 99; Brady v. Husby, 21 Nev. 433; South End M. Co. v. Tinney, 22 Nev. 19.)</p> <p>In unlawful detainer, equitable defenses cannot be pleaded or introduced. In suits between landlord and tenant, claim that deed given was intended as a mortgage is an equitable defense, and cannot be pleaded or introduced as a defense in unlawful detainer proceedings. The defendant in such cases must resort to another and independent suit. (24 Cyc. 1423; Cottrell v. Moran, 138 Mich. 410; 32 Cent. Dig. secs. 1211-1276; Felton v. Millard, 61 Cal. 540; Knowles v. Murphy, 107 Cal. 107; Rev. Laws', sec. 5514.)</p> <p>Title, or right of possession under color of title, cannot be tried under our statutes in actions of unlawful detainer between landlord and tenant. {Peacock v. Leonard, 6 Nev. 84; Lachman v. Barrett, 16 Nev. 154; Paul v. Armstrong, 1 Nev. 70; Hoopes v. Meyer, 1 Nev. 336; Schroeder v. Franklin, 10 Nev. 355; Fitchett v. Henley, 31 Nev. 129; Phenix v. Bijelich, 30 Nev. 259.)</p> <p>Appellant is estopped from denying respondent’s title. The general doctrine of estoppel applies fully to the case at bar. (24 Cyc. 881-949; 17 Cyc. 622, et seq.; Hatwell v. Black, 48 111. 301; Stewart v. Murray, 13 Minn. 426; Sawyer v. Sargent, 7 Pac. 120; Tilyon v. Reynolds, 108 N. Y. 558; Bigelow on Estoppel, 6th ed. 547-553; Jones on Landlord and Tenant, secs. 682-697; Jones on Evidence, sec. 284.)</p> <p>Upon a review of the pleadings and evidence, the attempt of the appellant to repudiate the relation of landlord, which, admitting the, execution of the lease, in the absence of pleading fraud in its procurement and execution, precludes the additional matter pleaded as a defense, and renders his attempted denial of the relation of landlord and tenant under his written lease noneffective. Attempt to deny by parol the effect of the lease cannot be allowed in this action of'unlawful detainer, and there are no facts stated in the answer upon which to base defendant’s claim of ownership and title of the demised premises. (Hoopes v. Meyer, 1 Nev. 366; Fitton v. Hamilton City, 6 Nev. 519; Lachman v. Barrett, 16 Nev. 154; Fitchett v. Henley, 31 Nev. 326; Felton v. Millard, 81 Cal. 540; Knowles v. Murphy, 107 Cal. 107; Bingham v. Thompson, 4 Nev. 240; Pierce v. Traver, 3 Nev. 531.)</p> <p>The quit-claim deed of August 11, 1913, from defendant to plaintiff, purporting to convey the premises demised in the lease of the same date from plaintiff to defendant, was an offer of the defendant, upon the presentation of his proof, and was properly excluded. (Felton v. Millard, 81 Cal. 540; Knowles v. Murphy, 107 Cal. 107.)</p>

Moran, Judge. Action by Charles E. Week against the Reno Traction Company, for damages to an automobile. From a judgment for plaintiff and denial of motion for a new trial, defendant appeals. Questions of the conflict of evidence with known physical facts have frequently been passed upon by courts. (Hayne, New Trial and Appeal, sec. 238; Elliott on Evidence, sec. 39; Bomseheuer v. Con. Tr. Co., 47 Atl. 872; Hunter v. N. Y.,0. & W. Ry.

H. A. Pike, Judge. Bernard Clark was convicted of murder in the second degree, and appealed. Judgment affirmed (36 Nev. 472, 135 Pac. 1083). Aside from the question whether the remarks of the court to the jury were given in writing, as required by section 355 of the criminal practice act, the language of the court was such as to prejudice the jury against the appellant. If the language means anything, it means that the court was anxious for the jury to agree on a verdict.

Orr, Judge. Condemnation proceedings by the Truckee River General Electric Company against F. E. Durham. From a judgment assessing defendant’s damages in the sum of $600, plaintiff appeals. The proceeding should have been continued under the act of 1907, p. 279, under which it was commenced, without a jury.

<p>1. Prohibition — Right to Relief — Adequate Remedy.</p> <p>Prohibition is an extraordinary remedy which is available only in cases of extreme necessity to restrain a court from proceeding in a matter over which it has no jurisdiction, and where there appears no adequate remedy by appeal.</p> <p>2. Prohibition — Right to Relief — Adequate Remedy.</p> <p>Where a district court had granted a temporary injunction against taxing officers of the county and state, and had overruled the attorney-general’s demurrer to the complaint, the latter had an adequate remedy under Rev. Laws, sec. 5143. authorizing a motion to set aside the temporary injunction, and Rev. Laws, sec. 5329, giving an immediate appeal from an order refusing such motion, so that he cannot maintain prohibition, even though the public interests are so great that he cannot rest on his demurrer and appeal from the judgment thereon, thereby losing his right to plead to the merits.</p>

Application by George Oliver Roberson for a writ of habeas corpus. Petitioner is not a fugitive from the justice of the State of North Carolina, in that he is not legally married. (Section 2088, Rev. Laws N. C. 1905; section 1560, Id.) Venue must be laid in the county in which the crime is alleged to have been committed. (State v. Patterson, 5 N. C. 443; State v. Pray, 30 Nev. 206, 208.) A crime committed in one county or district cannot be tried in another county.

Orr, Judge. Action by the Turner Lumber Company against the Tonopah Lumber Company. From a judgment for plaintiff, defendant appeals. Statement of Facts The respondent, Turner Lumber Company, plaintiff in the court below, was a corporation engaged in the wholesale milling and manufacturing of lumber and its various products. Their mill was located in the vicinity of Sattley, Sierra County, Cal.

Coleman, Judge. Action by the Coppermines Company against H. A. Comins. Prom a judgment for plaintiff, defendant appeals. The burden of proof is upon the respondent to show its title to the land in dispute. .

<p>1. .Criminal Law — Discharge on Preliminary Examination — Bar to Second Examination and Commitment.</p> <p>In the absence of statute, the fact that a defendant accused of felony has been discharged on preliminary examination does not bar examination and commitment upon another complaint, charging the same offense.</p> <p>2. Criminal Law — Discharge on Preliminary Examination — Bar to Second Examination and Commitment — Statute.</p> <p>Stats. 1913, c. 209, provides that if upon preliminary examination on information the accused has been discharged, the district attorney, upon affidavit of any person who has knowledge of the commission of an offense, and who is a competent witness to testify, setting forth the offense and the name of the person charged, upon being furnished with the names of the witnesses for the prosecution, may, by leave of the court, file an information, and process shall issue thereon. An information was filed, charging defendants with grand larceny. Upon preliminary examination they were discharged, and thereupon, a second information, charging the same offense being filed against them, they were committed, and sought habeas corpus, contending that the statute rendered such commitment invalid. Held, that while such statute was necessary to authorize prosecution on information, since it contained nothing negativing the magistrate’s power to hold a second preliminary examination after the accused’s discharge, the mere fact that it provided a method whereby an information could be filed against one so previously discharged did not operate to change the nonstatu- ■ tory rule that discharge on a prior examination is no bar to another examination and a commitment for the same offense.</p> <p>3. Criminal Law — Preliminary Examination — Credibility of Witnesses.</p> <p>The credibility and weight of the testimony of a witness on the preliminary examination of one accused of crime is a matter for the examining magistrate.</p> <p>4. Habeas Corpus — Appeal—Presumptions Favoring Court Below —Evidence on Preliminary Examination.</p> <p>On appeal or habeas corpus the supreme court must assume that the magistrate, committing one accused of crime on preliminary examination, gave credence to any testimony supporting his decision.</p> <p>5. Criminal Law — Evidence—Testimony of Accomplice — Necessity for Corroboration — -Preliminary Examination.</p> <p>The general rule of Rev. Laws, sec. 7180, providing that a conviction of crime cannot be had on the uncorroborated testimony of an accomplice, is to be applied where the sole witness against the defendant on his preliminary examination is an accomplice, and a commitment cm his uncorroborated testimony is not on reasonable or probable cause. '</p>

Original proceeding. Charles S. Crosby was arrested in Washoe County for a violation of the fish and game laws, and he applies for a writ of habeas corpus. The state has no jurisdiction to prosecute for an alleged offense committed within an Indian reservation. Under the territorial enabling act approved March 2, 1861, jurisdiction over Indians and their property was not included.

N. Salisbury, Judge. Action by the Bank of Italy against C. P. Burns and A. A. Burke, as Sheriff of Washoe County. Judgment for defendants, and plaintiff, appealing from denial of its motion for new trial, made late filing of its statement in the trial court.

Harwood, Judge. Action by H. C. Christensen against C. H. Duborg and others to recover for services alleged to have been rendered in procuring the sale of mining stock. From a judgment for defendants and an order denying a new trial, plaintiff appeals.

Ducker, Judge. George Fronhofer was convicted of murder in the first degree, and he appeals. A foundation sufficient to establish prima facie a conspiracy must be laid before the acts and declarations of alleged coconspirators man ■ be admitted in evidence, and such acts and declarations must be those only which were done and made in furtherance of the alleged conspiracy. (Greenleaf, Ev. 16th ed. vol. 1, sec. 184; Met-calf v. Connor, 12 Am. Dec. 340; OsmunY.

Orr, Judge. Suit by George R. Bidleman and others against William C. Short and wife. From a judgment for costs in favor of defendants, rendered on sustaining a demurrer to the complaint, plaintiffs appeal. Water reduced to possession becomes the property of the person having the possession; it is his property, and will be protected by the courts.

Langan, Judge. Action by A. E. Smith and others against the State of Nevada to recover a reward offered by the Governor for the apprehension of certain alleged murderers. From a judgment for plaintiffs, defendant appeals. It is essential to the recovery of a reward that the party claiming it knew of and acted upon the offer before he performed the service on which he basés his claim. There is no mutual assent or agreement unless such knowledge exists.

Original proceeding. Application by Arthur Bowman and Henry Best for a writ of habeas corpus. Every person concerned in the commission of a felony is an accomplice.

Original proceeding. Mandamus by the State, on the relation of W. K. Freudenberger, against George A. Cole, State Controller. Respondent demurs to the petition. The act of the legislature of 1913, upon which the state controller bases his authority for drawing petitioner’s warrant at the reduced salary of $2,500 a year, is unconstitutional, being violative of section 17, article 4, of the state constitution.

Original proceeding by the State, on the relation of George A. Cole, as State Controller, for a writ of mandamus against Major H. Miller, as County Treasurer of the County of Elko. The taxpayers who paid under protest have not complied with the provisions of section 7 - of the act of 1913, creating the Nevada Tax Commission.

Harwood, Judge. Suit by Joseph Buehler against Alice C. Buehler. From a decree granting the defendant a divorce on her cross-complaint, the plaintiff appeals, and pending appeal the defendant moves for an order requiring plaintiff to pay attorney’s fees and other sums.

Ducker, Judge- Action by the State of Nevada against Wells, Fargo & Company for the recovery of taxes. From a judgment for the state and an order denying motion for new trial, defendant appeals. Statement of Facts This is an action to recover taxes assessed against the appellant in the county of Humboldt, amounting to the sum of $694.53, which appellant permitted to go delinquent, together with penalties for nonpayment and costs.

Harwood, Judge. Action for divorce by Laura A. Neven against James H. Neven. From an order denying a motion for a new trial, after judgment for plaintiff, defendant appeals. The rule as to continuances is that the discretion confided to the court is a legal discretion to be exercised, not capriciously or arbitrarily, but by fixed legal principles, and in a manner to subserve and not defeat the ends of substantial justice.

Orr, Judge. ' ■ Action by Ctesar Ramelli against Nick Sorgi. From a judgment in favor of the plaintiff, the defendant appeals. The judgment following the evidence and findings fails to fix the quantity of water to which any of the parties is entitled, and fails to determine the priorities. A decree of the court in this respect must be definite.