Volume 6 — Nevada Reports

The policies of insurance upon which suit was brought were issued in March, 1868, upon a brick building in Virginia City and certain furniture, bedding and merchandise. A fire occurred in November, 1868, by which the building and merchandise were totally destroyed, and the furniture and bedding damaged and in part destroyed. Other facts are stated in the opinion.

The action was for divorce. Judgment was rendered November 23d, 1869, in favor of the plaintiff for a dissolution of the marriage, for one-half of the common property, and for costs. A notice of motion for new trial was served on November 24th, 1869, and a proposed statement filed on December 1st, 1869.

<p>Payment oe Gold Coin Warrants in Treasury Notes. Where the holders of county warrants calling for gold coin accepted treasury notes for them, though protesting against payment in that currency, and surrendered the warrants: Held, that they could not afterwards recover the difference in value between the treasury notes and coin.</p> <p>Acceptance oe Treasury Notes on Gold Coin Contracts. If a creditor accepts treasury notes at par, in payment of a contract calling for coin, it is a complete satisfaction of the debt; and no action can, after the acceptance of such money, be maintained to recover the difference'in value between it and coin.</p> <p>Estoppel — Acceptance oe Performance oe Contract. The acceptance of a performance differing from that contracted for, will estop the party so accepting, from afterwards taking advantage of the failure to perform in accordance with the contract.</p> <p>Receiving Payment in Treasury Notes under Protest. When a person entitled to be paid in coin receives payment in treasury notes, though at the same time protesting against payment in that kind of currency, he cannot retain such notes at a value not assented to by the other party, nor recover the difference in value between them and coin.</p> <p>Protesting by Words and Consenting by Acts. A protest by a person against receiving payment in treasury notes, at the same time that he does receive them, places him in no better position than if nothing had been said, for the reason that, though he protests with his tongue, he consents by his acts.</p>

This was an original application made in the Supreme Court for a writ of mandamns. It was made in behalf of Humboldt County against J. M. Sanford, James S. Gregory and J. S. Hall, county commissioners of Churchill County.

This was an application for a mandamus, made to the Supreme Court April 2d, 1870.

The facts are fully set forth in the opinion. I. Gold coin and legal tender paper currency are equivalent or equal in law. (Beatty v. Rhodes, 3 Nev. 240 ; Beese y. Steams, .'29 Cal. 273.) II. A contract to pay gold coin or its equivalent in paper currency cannot be enforced for gold.

This action was commenced October 12th, 1869, by C. J. Hillyer, W. S. Wood and W. E. E. Deal, composing the law firm of Hillyer, Wood & Deal, against the defendant, a corporation organ-' ized under the laws of California, but engaged in the business of mining in Storey County. It appears that the law firm of Hillyer & Whitman had been employed by the defendant as its attorneys for the year 1868, at the rate of $250 per month.

Storey County. Edward Cabill and Dennis Driscoll, the plaintiffs, were stock brokers in San Francisco, California, where most of the business referred to in the opinion was transacted in the year 1868.

It appears from the referee’s report that the marriage ceremony took place in Hamilton City, White Pine County, on September 2d, 1869, before a justice of the peace. The plaintiff, whose maiden name was Jennie C. Dirks, was the daughter of Mrs. Theresa Dean, wife of James Dean by a former marriage.

This was an original application in the Supreme Court for a peremptory writ of mandamus against W. Buncher, W. Byron and J. F. Roney, County Commissioners of Lyon County. The facts are stated in the opinion. I. The terms of the statute have been complied with literally as well as substantially, unless they require the road to pass a line drawn west from Trench’s- mill and cross that line within twelve hundred feet of the mill.

Tbis was an information filed in tbe Supreme Court on May 16th, 1870, against Abrabam Curry and P. H.- Clayton, bis as-signee in bankruptcy, alleging the illegal erection of a toll gate, and tbe collection of tolls on a public highway, running from Carson City, by the way of “ Curry’s Warm Springs,” to Empire City; all in Ormsby County.

It appears from the complaint that the plaintiff in constructing the “ Seven-Mile Canon Flume,” from near the Mariposa quartz mill in Storey County to certain points in Lyon County, found it necessary to carry it over certain public land, near Booth’s quartz mill in Storey County, in the possession of the defendant; that he proceeded under the State law to condemn the right of way, and had appraisers appointed, who valued it at $500 ; that he had tendered that sum to…

The facts are fully stated in the opinion. I. The defendant so using the water after it had passed plaintiff’s mill as not to interfere with plaintiff’s rights, became as to that use the prior appropriator, and the rights of the parties could not be changed by any subsequent act of plaintiff, or any other person. (Gary v. Daniels, 8 Met. [Mass.] 478 ; MoKenney v. Smith, 21 Cal. 374.) II.

It appears that on the night of December 15th, 1868, 0 street in Virginia City, at the intersection of Flowery street, was so much out of order that there was nothing to protect a person unfamiliar with the streets, in a dark night, from falling a distance of three feet; and that plaintiff, who had recently become a resident o f the city, in passing along the street on that night, which was dark, fell that distance and broke his right leg at the ankle.

This was a certiorari issuing out of the Supreme Court to the board of county commissioners of Ormsby County, consisting of H. E. Rice, S. E. Jones and A. B. Driesbach. The return contained the minutes of the board, showing the facts as stated in the opinion. I. The powers of the county commissioners are limited, and the jurisdiction must specially and affirmatively appear. (Finch v. Tehama Co., 29 Cal. 455; Rosenthal v. Madison Ind. Turnpike Co., 10 Ind. 358.) II.

This was a certiorari issued out of the Court below, on the petition of John C. Fall, Thomas J. Hadley, and Joseph Branham. The board of county commissioners of Humboldt County at the time consisted of Robert McBeth, Thomas Thompson, and Henry G. Cavin. After consideration, the Court found in favor of the commissioners, and the petitioners then appealed. The commissioners had no power or authority to take any action in the premises, if the petitioners were not legal voters.

This was a certiorari issued out of the Third District Court on the petition of Lewis Hess and II. H. Beck, against the board of county commissioners of Washoe County, consisting of M. J. Smith, W. R. Chamberlain, and Gr. W. Brown. A petition had been presented praying a removal of the county seat of Washoe County, from Washoe City to Reno, and an election was ordered as stated in the opinion.

The assault, out of which the prosecution arose, took place about eleven o’clock of a star-light night, in June, 1869, near Erlanger’s corner, in Washoe City. Several witnesses were -attracted to the spot, only one of whom testified to seeing a pistol in defendant’s hands. The only testimony introduced in defense was that of two witnesses, as to defendant’s previous good character for peace.

The difficulty out of which this prosecution arose occurred in the-main street of the town of Eureka, in Lander County, on February 15th, 1870. On the morning of that day, defendant and George Lambert seem to have had some words. In the afternoon, Lambert was driving a mule team, when Napper and one “ Buffalo Bill” approached, and the alleged assault took place.

This was an action against John 0. Fall and D. H. Temple, for •the recovery of a silver-bearing lode, claimed to be a portion of the Arizona Ledge near the town of Unionville, in Humboldt County, and for an injunction to restrain them from working it. The issues having been submitted to a jury, there was a verdict and judgment for defendants. Plaintiff appealed from the judgment.

This was an original petition for mandamus in the Supreme Court. The bill of the plaintiff amounted to one hundred and forty dollars and fifty cents, and accrued in an action instituted in the District Court in Ormsby County, against Henry A. Rhoades, the administrator, and the sureties on the official bond of Eben Rhoades, late State treasurer, to recover one hundred thousand dollars, moneys of the State received by him, and alleged to have been converted to his own use.

This was an action against James H. Richardson and Robert O’Keefe to recover damages for alleged conversion of certain cans of butter, coffee, lobsters, sardines, etc., worth altogether, 1665.24. There was judgment for plaintiff for the amount claimed. A motion for new trial being overruled, defendants appealed.

.The judgment against the defendant was for $846.22 and costs. The execution was levied upon certain lots of land and the “ Cold Spring Water Works,” in Carson City. Sweeney bid off Hawthorne’s right, title and interest in the water works for $250, but refused to make any payment thereon, whereupon the motion which is the subject of this appeal was made. I. The Court acquired no jurisdiction over the person of Sweeney.

The plaintiff McBeth having commenced a replevin suit in the Second District Court against O. C. Wade for certain horses and cattle, and the sheriff Bollen having taken them into his possession under the replevin writ, the undertaking upon which this action was based was given by the defendants, Henry Van Sickle and J. W. Duncan, and the property replevied was thereupon delivered back to Wade.

<p>Seizure by Sheriff of Goods attached by Constable. Where a sheriff seized and sold on execution out of a District Court goods which were held by a constable on attachment out of a Justice’s Court: Held, that the sheriff, though he was responsible to the constable, was not so to the creditor in the attachment suit.</p> <p>Special Property of Officer in Property Attached. An officer who has seized goods upon attachment has a special property in them, coupled with the right of possession; and any interference therewith gives him a right of action against the wrong-doer.</p> <p>Rights of Attachment Creditor as to Property Attached. An attachment creditor has no interest or property in or possession of the attached goods by reason of the levy, and cannot maintain an action in his own name for interference therewith against a wrong-doer, his only remedy being against the officer.</p>

Defendant, together with A. Strauss, T. B. Stewart, Frank Weidenholdt, G. D. Hauser and A. S. Prior, was indicted in White Pine County, February, 1870, of the crime of grand larceny, in stealing fire oxen, the property of W. 0. Reeves and R. W. Bunington. Being tried separately, defendant was convicted and sentenced to imprisonment in the State prison for the term of three years. A motion for new trial having been overruled, this appeal was taken.

The action was by Thomas H. Williams and David Bixler, attorneys at law in Virginia City, to recover one thousand five hundred and fifty dollars in legal tender notes for legal services, being ten per cent, agreed to be paid on moneys received by defendant on certain indebtedness held by him against Virginia City. I. Defendant had a right to have the action tried in the county of his residence.

This was an action on a note for $9,650, and interest at the rate of two per cent, per month, made by defendant Yan Sickle to Mary Crow, October 26th, 1868, and a mortgage of even date to secure. the same on the “ Kinney Ranch,” the “ Bob Lyons Ranch ” and “Van Sicklels Hotel” in Douglas County. ■ Wells, Fargo & Co., H. F. Dangberg and J. J. Jones were made parties defendant, as having some interest in the property mortgaged subsequent to the lien of the mortgage.

Plaintiff was the executor of X. V. C. Rollins, deceased. The Court found that there had been a gift of the property in controversy by the deceased to F. X. Banks, as claimed in the answer, and rendered judgment in favor of defendant. A motion for new trial having been overruled, plaintiff appealed.

This was an action by George W. Dorn, M. M. English, and Joseph Demont, partners under the firm name and style of Dorn, English & Co., and G. W. Dorn & Co. against John D. Winters and William T. O’Neale, partners under the firm name and style of Winters & O’Neale, and of the Independence Mill Company, on a certain book account and various bills of exchange, amounting in all to two thousand eight hundred and one dollars and twenty-five cents, and interest.

A>eal from the District Court of the Second Judicial District, Ormiy County. This was an action to recover four hundred and fifty dollars, rent of certain premises known as the “ Half-Way House,” between Carson and Virginia City. The defendant admitted an indebtedness of two hundred dollars, and pleaded a tender of that amount, and a deposit of the same with the cleric, and offered to allow plaintiff to take judgment therefor.

This was an action against Louis A. Hauck, principal, and L. B. Frankel and J. A. Winterbaum, sureties on the official bond given by Hauck on his appointment as deputy assessor of Storey County. The term of office of the assessor Kruttschnitt, by. whom the appointment was made, was two years from January 1st, 1867.

The plaintiff had judgment in the Court below for a foreclosure of his mortgage as against the entire eighteen hundred feet of mining ground claimed bj him to be “ the Pocotillo Mine.” A motion for new trial having been overruled, defendant appealed. I. The recitals of the contract are controlling and conclusive on the question of construction.

Defendant, together with A. Strauss, P. Duffy and others, was indicted for grand larceny for alleged stealing of certain cattle, the property of W. C. Reeves and R. W. Burmington. On a separate trial and conviction, defendant was sentenced to imprisonment in the State prison for the term of five years.

This was an action by E. D. Brown and Thomas Eagar, partners doing business under the firm name and style of Brown & Eagar, for an injunction to restrain H. C. Lillie, the defendant, from selling, transferring, delivering, or otherwise disposing of three certain promissory notes for one thousand dollars each, and to compel him to transfer and deliver them to plaintiffs.

It appears that defendant at the time the check was drawn was in the employ of W. S. Hobart, and had authority to fill up the body of cheeks, but not to sign them. The cheek in question was one of a number said to be forged, and others of them were introduced in evidence to show guilty knowledge. Defendant was sentenced to imprisonment and hard labor in the State prison for the term of two years.

This was an action brought in the name of the State by the district attorney of Lander County, against the Eberhart Company, F. Drake, E. Applegarth, — Sprowl, — Barría, J. W. Crawford, and the Eberhart mine and ledge, to recover one thousand eight hundred and forty-five dollars and fifty-eight cents, a balance of taxes on the proceeds of the Eberhart mine for the last quarter of 1868.

The plaintiff commenced his replevin suit against Clarkson Apple-garth, S. L. Baker, Robert Kelly, Thomas Luther, Frank Drake and others,' to recover certain ore taken from the “ Ohio State Claim,” on Bromide Flat, in White Pine County. The amount taken was alleged. to be forty-two tons and upwards, of which twenty-six tons and upwards had been crushed and washed at the Eberhart Quartz Mill.

This was an action of replevin brought against W. S. Edwards and C. A. Comstock, constable and deputy constable of Reno Township, Washoe County, to recover the property referred to in the opinion, alleged to be of the value of two thousand six hundred and forty dollars.

This was an action brought December 17th, 1868, against Moses Job, Margaret Job, (his wife) and S. T. Swift, to foreclose a mortgage for $2,000 and interest, given in 1864 by Job and wife to plaintiff on certain property in Carson City. It appears that after making the mortgage, and before suit brought, Job and wife made a deed of the same property to Swift, who was the only person that answered.

This action was instituted by James Fitton as trustee of Mary Jane Allen, against “ P. C. Hyman, E. T. Estes, Reuben Barney, E. H. Sanderson and H. S. Sanders, styling themselves Trustees of Hamilton City, and the Inhabitants of Hamilton City.” After the execution of the lease by R. M. Peters, he sold the property leased to Richard N. Allen, who afterwards conveyed it to the plaintiff Fitton, trustee as aforesaid.

<p>Appeal in case op Conflict op Evidence. The rule that a judgment will not be disturbed as being against evidence, where there is a conflict of evidence, has been often enough announced to be considered settled.</p> <p>Prospective Damages. Prospective damages in actions, such as for overflowing meadow lands and thereby injuring grasses for time to come, are allowed only upon proof that they are reasonably certain to occur.</p> <p>Damages to Hay Lands for Future Crops. Where in a suit for unlawfully overflowing plaintiff’s grass lands, and thereby destroying crops, a judgment was given for damages already sustained, and also damages for loss of crops for the next two cropping seasons: Held, that the damage for the loss of future crops was entirely too prospective and conjectural, and that the judgment should be modified by striking it out.</p> <p>Erroneous Indivisible Part of Finding. If a finding contains erroneous matter, which cannot be divided from the remainder, the whole must fall.</p> <p>Gold Coin Judgments for Damages. Under Sec. 202 of the Practice Act (Stats. 1869, 228) a judgment in gold coin for damages is proper.</p> <p>Claims for Damages not Debts payable in Currency. A claim for damages is not (any more than a tax) a “ debt ” within the meaning of the Act of Congress relating to treasury notes, and the Legislature might therefore provide that a judgment therefor should be in gold coin, and not to be satisfied by payment in legal tender currency. _</p>

In March, 1870, one M. Manseau commenced an attachment suit in the United States Circuit Court against E. D. Eeusier. Under the writ of attachment issued in the case, a stock of goods in a store in the town of Hamilton, White Pine County, was seized as the property of E. D. Eeusier. The seizure appears to have been made by Plenry A. Van Praag, Deputy Marshal, assisted by M. Buxbaum. This suit in replevin was commenced against them, as well as Marshal Lammon.

Defendant was. the constable of Silver City Precinct, in Lyon County. It appears that he seized the property referred to in the opinion, by virtue of a writ of attachment issued by a justice of the peace, in a certain suit of C. Osborn against J. A. Waddell and S. Lewis, claiming it to be and seizing it as the property of Waddell. There was a judgment for the plaintiff; and a motion for new trial being denied, defendant appealed. The judgment was not warranted.

The plaintiffs, Lemuel Leet, Franklin Learned, Samuel C. Fleming, John Bicknell, G. N. Leet, Edward Green, Charles Stimpson, A. J. Gove, Beatty Elliot and W. H. Stars, sued the defendant to recover the “ Happy Jack Ledge,” at Treasure Hill, White Pine County; and also prayed for an injunction to prevent the removal of ore therefrom, and for damages for ore already removed.

It appears that the wood and timber referred to in the opinion were cut in Alpine County, California, and were then put into the Carson river for tbe purpose of being “ driven ” to market in this State. Having come first into the County of Douglas, they were there assessed, and the taxes paid, the assessor refusing to allow them to pass beyond that county until such payment. They then were driven to Ormsby County, where they were again assessed, and the owner refused to pay.

Plaintiff was a passenger in one of defendant’s coaches running from Elko to Hamilton, in March, 1869. On the way and near Jacob’s Wells, it was discovered that one of the axles had heated; and upon the wheel being taken off, to pour water upon the spindle, the driver remarked that he was afraid the axle would “ weld ” before the coach could reach Newark, eleven miles distant, where hé could change for another coach.

This was an action to have certain territory near the northeasterly corner of Storey County, claimed by Washoe County, declared to be a part of Lyon County and subject to its exclusive jurisdiction for judicial, election, taxation and other county purposes. The other cause referred to in the opinion of the Court is that of Storey County v. Washoe County. The mis-trials in Ormsby County resulted from disagreement of the juries.

Brown & Eager, tbe plaintiffs, being tbe owners of a saw mill known as tbe Eagle Mill, in Wasboe County, about October 1st, 1869, employed tbe defendant to sell it and dispose of tbe proceeds as stated in tbe opinion. Defendant sold tbe property, and as a portion of the price received promissory notes to tbe amount of three thousand dollars, which be refused to account for.

The original indictment in this case was as follows : “State op Nevada, County of Elko, ss. To the District Court of the Eleventh Judicial District.

This was an action by the Meadow Valley Mining Company, John H. Ely and W. H. Raymond, against Elliott Dodds, William Dodds, Frank Dodds, Thomas Dodds and other parties unknown, to recover restitution of the “ Floral Spring Ranch ” in Highland District, Lincoln County, and damages for the loss, of the rents and profits thereof; and also for an injunction to restrain defendants from further interfering with or taking away the valuable waters of the springs upon said ranch,…

The plaintiff was injured by a collision of cars on the Central Pacific Railroad at a point near Toano, in March, 1869, his skull being fractured, and being otherwise wounded and lamed. He 'obtained a verdict and judgment for the sum of eight thousand 'dollars in gold coin. Plis costs were taxed at the sum of nine ¡hundred and ninety-eight dollars and thirty-five cents. I. If the first service was good, the second is a nullity.

This was an original proceeding in the Supreme Court. It was instituted by the relator on behalf of Judge Fuller, and the petition was signed by the Attorney General. At the time of Judge Go-rin’s appointment, the County of Lincoln constituted the Ninth Judicial District; but it now constitutes the Seventh, and it was for a district judge of the Seventh Judicial District that the election of 1870 was held.

Defendant was indicted with John G. Watson, for the crime of robbing Charles Haynes of three thousand and three hundred dollars and other property, belonging to Wells, Fargo & Co., in Elko County, on. May 1st, 1870. Being convicted, defendant was sentenced to the State prison for the term of twenty-five years.

<p>Instruction to Jurv Not to Find Higher Grade or Crime. On a murder trial, the judge instructed the jury that under the law and evidence it would ' not be justified in finding a verdict for any higher grade of offense than manslaughter : Held, on appeal by defendant, not necessarily a charge that the State had made out a case of manslaughter.</p> <p>Criminal Law — Charge in Defendant’s Davor. Where a jury in a murder case was charged that it would not be justified under the law and evidence, in finding a verdict for any higher grade of offense than manslaughter; Held, that though the instruction (which was -authorized by section three hundred and seventy-six of the Criminal Practice Act) might bo repugnant to the constitutional clause against charging as to matters of fact, yet it was not to defendant’s prejudice, and he could not complain.</p>

This was an action to recover five hundred dollars alleged to be due as a balance of rent for the year 1869, for the upper part of the “ County Building ” in Carson City, occupied by the State for public offices.

This action was originally commenced by John O’Connell and Philip Splain, to foreclose a mechanics’ lien in their favor, for blacksmith work and articles furnished upon a building erected by William Ivers, in Hamilton, White Pine County. The amount of their bill and lien was three hundred and ten dollars and ninety-one cents.

The plaintiff, a corporation, organized under the laws of California, commenced this action in February, 1870, against James Showers,' O. C. Steel, B. F. Kenny and Goodwin Jones, to recover possession of a portion of the “ Hearst and Meredith Ledge,” and the “ Sacramento Ledge,” at Virginia City, upon which they were alleged to have intruded; for damages in the sum of 1600 on account of such intrusion, and for an injunction to prevent interference with the property.

This was one of two actions commenced in 1868, against II. C. Howard, William R. Armstrong and others, to foreclose mortgages. The mortgage in this case was for the sum of ten thousand two hundred and forty-four dollars, upon- the undivided half of the “ Devil’s Gate Toll Road,” in Storey, Lyon and Ormsby Counties; and in ad- . dition to Howard and Armstrong, John Sime, B. F. Hastings, Joseph M. Douglass and Charles L. Low were made defendants.

The defendant, after his conviction, was sentenced to imprisonment in the State Prison for the term of eighteen years. The charging part of the indictment, which is commended in the following opinion, was as follows: “ That A. J. Davis, E. B. Parsons^.

This was an action of replevin to recover the possession of a wagon, five mules and six sets of harness, said to be worth one thousand, two hundred dollars. The defendants were the constable and attaching creditors referred to in the opinion. The case was tried by jury, and a verdict rendered for the plaintiff. A motion for a new trial having been made by defendants, the Court below granted it; and plaintiff appealed from the order.

Defendant was indicted for the crime of an attempt to commit arson in attempting to fire and buim a building in Austin, Lander County, known as the “ Masonic and Odd Fellows’ Hall Building,” and a stock of goods therein belonging to himself, worth four thous- and dollars, but insured in various insurance companies in the aggregate sum of thirteen thousand dollars.

This action was instituted in March, 1870, by the then Attorney General, and judgment rendered, in pursuance of the prayer of the complaint against the defendants, in November, 1870.

The property, the subject of this action, is situate in the town of Cold Hill, Storey County, about a half mile northerly from the Devil’s Gate Toll House. The verdict and judgment were in favor of plaintiff, for possession of the property and one dollar damages. The action was commenced in January, 1867, and the appeal taken in December, of that year. The briefs were put in long before Judge Whitman, one of the counsel for plaintiff, took his seat upon the bench.

<p>Appeal from the District Court of the First Judicial District, Storey County.</p> <p>The facts are stated in the opinion of the Court.</p>