Volume 7 — Nevada Reports

This was an application to the Supreme Court for a writ of mandamus requiring Schooling, as treasurer of state, to furnish, on tender of the price, six stamped bank checks, issued under the state revenue Act of 1865, and in accordance with the schedule of stamp duties therein contained, as amended in 1866.

Application to the Supreme Court for a writ of mandamus to compel the State Board of Examiners to take action upon a claim presented by relator Torreyson.

The defendants, officers of Washoe County, against the removal of whose offices from Washoe city to Reno the injunction was obtained, were Charles W. Pegg, Sheriff; H. L. Fish, Recorder ; J. S. Shoemaker, Clerk ; Robert Fraser, Treasurer ; Wm. Thompson, Assessor; and Wm. M. Boardman, District Attorney. The complaint was filed March 21st, and the injunction pendente lite ordered April 1st, 1871.

<p>Evidence — Subscribing Witness. Where a lease having a subscribing witness was admitted in evidence without calling such witness, or accounting for his absence, and the opposing party objected thereto: Held, error.</p> <p>Making Parties Witnesses does not change Rules of Evidence. The statute making parlies competent witnesses does not abrogate the rule of evidence requiring- a subscribing witness to a written instrument to be called, or his absence accounted for.</p> <p>Testimony of Party not Best Evidence where Subscribing Witness. Wherfe a party desiring to introduce in evidence a written agreement signed by himself -with a subscribing witness, took the stand and testified to its execution ; hut the opposite party objected to its admission on account of the subscribing witness not being called, nor his absence accounted for: Held, that such testimony, not being the best evidence, was not sufficient to authorize admission of the paper.</p> <p>Record on Appeal must show Action Appealed Prom. Where an appeal purported to be from an order overruling a motion for héw trial, and the record failed to show that the motion had been disposed of, or acted on: Held, that the appeal was premature and should be dismissed.</p>

This was an action against William Sharon and Joseph A. Ri'gby to recover damages for alleged trespass in removing a saw-mill, including its boiler, engine and machinery, from the southeast quarter of section 34, township 16 north, range 19 east, in Ormsby County. The land is the same which was in controversy in the ease of O'Weale v. Cleveland, reported in 3 Nev. 485.

<p>Criminal Law — Recommendation by Jury to Poll Extent or Punishment. Where the jury in a criminal case rendered a verdict for manslaughter, and recommended that defendant should receive the full extent of punishment allowed by law for that crime; and it was objected that such verdict showed on its face-that the jury was prejudiced to. defendant’s injury: Held, that such recommendation did no injury, unless it could be shown that the court' was influenced thereby.</p> <p>'Instruction in Murder Case that Certain Pacts would not Amount to more than Manslaughter. Where in a murder trial, in which the verdict was manslaughter, the court in its charge set forth the law bearing upon the case in all its possible phases, and also gave an instruction, that “ if defendant and deceased were engaged in a violent struggle, in which deceased repeatedly struck defendant on the head with a champagne bottle, and that deceased made the first assault in retaliation of offensive and insulting language, such struggle and striking of defendant would be deemed sufficient provocation to excite an irresistible passion in a reasoning being; and if such passion was actually excited in defendant, and no interval occurred sufficient for the voice of reason and humanity to be heard, but immediately, and without malice or revenge, and simply in obedience to such sudden violent impulse of passion, defendant stabbed and killed deceased, such killing would not amount to more than manslaughter and it was objected that the instruction led to the verdict of manslaughter: Held, that the objection was not valid, and that there was no error.</p>

The appellants, E. B. Parsons, Tilton Cockerell and John Squires, together with A. J. Davis, J. O. Roberts, James Gilchrist, R. A. Jones and J. E., Chapman, were indicted at the November term, 1870, of the District Court for Washoe County, for the crime of robbing Frank C. Minskull, express messenger of Wells, Fargo & Co., of 141,485. Upon arraignment, Jones pleaded guilty, and afterwards Davis did the same.

The tax suits, to restrain the executions in which this action was instituted, were brought in the justice’s court for Pioche Township, Lincoln County; and the defendant was sheriff of that county. I. The bill sets forth no sufficient cause for the granting of an injunction. It shows that the judgments had been appealed from.

The facts are stated in the opinion of the court. I. The oath is not in violation of the constitution. It is not an additional qualification. It does not require the elector to have something, to possess some physical, intellectual or moral attribute or quality: but to pe'rform an act in every particular consistent with his conscience and duty. The distinction between having a qualification and doing an act in proof of it, is too apparent for discussion.

Application to the Supreme Court for a writ of mandamus requiring the defendant, as recorder and ex-officio auditor of Lander County, to issue and deliver the warrants referred to in the act copied in the opinion. The defendant, in answer to the petition, set up the unconstitutionality of the act.

The plaintiffs, Robert M. Clarke and Thomas Wells, composed the law firm of Clarke & Wells. The verdict and judgment in their favor was for $4,500. The material facts are fully set forth in the opinion. I. The refusal to give the instruction asked by defendant was error.

Certiorari from the Supreme Court to the Board of Equaliza tion of Washoe County. Prom the affidavit of the relator, it appears that the effect of the action of the board complained of was to reduce the amount of taxes to be paid by the Central Pacific Railroad Company in that county from $28,723.31 to $14,055.25. The facts material to the decision are fully stated in the opinion.

This was an action against the Central Pacific Railroad Company and its real estate in Washoe County, to recover $16,402.50 alleged to be due for taxes for the year 1869, and ten per cent, thereon as damages for non-payment. The valuation of the property of the company was the same referred to and involved in the case of The State v. Commissioners of Washoe County, 5 Nev. 317.

This was an application to the Supreme Court by Daniel G. Corbett and William H. Corbett, partners under the firm name of Corbett Brothers, for a mandamus to require L. R. Bradley; Governor, J. D. Minor, Secretary of State, and L. A. Buckner, Attorney General, comprising the State Board of Examiners, to take action upon certain claims amounting to §711.12, presented by relators, as assignees of various persons, for services rendered and materials furnished to Peter Cavanaugh…

This was an action commenced by John Wood and Edward B. Kenyon, partners doing business in California under the firm name of Wood k Kenyon, against Charles E. Olney, The Washoe Gold and Silver Mining Company, Imperial Silver Mining Company, B. W. Pyle and a great number of other defendants, bn two certain promissory notes, one for $4,000 and the other for $3,000, signed by various of the members of the firm of Olney & Co., and intended, as was alleged, to bind the said firm…

The defendant is a corporation organized 'under the laws of the state of California, and having its principal place of business in the city of Sacramento in that state. The application for insurance was made at the town of Winnemucca, Nevada, in October; the policy appears to have been issued at Sacramento, California, on or about November 5th; and James A. Cooper, the husband of plaintiff, died November 7th, 1870.

It appears' that a judgment and decree of foreclosure were rendered in this action on March 19th, 1866, for $4,000 principal, $1,882.66 interest, accruing interest and costs. An order of sale was issued, and in September, 1866, the mortgaged property was sold for $50.

The defendants, after the overruling of their demurrer, pleaded not guilty. Being convicted, they were sentenced to imprisonment in the state prison for four years. Their appeal was from the judgment. The indictment charges with sufficient legal certainty two separate and distinct offences, which should not have been united in the same indictment under our laws. Stats. 1861, 465, Section 286, sub. 3.

. This was an action brought- by Charles N. Schultz, H. F. Dang-berg, Henry Ross, Emanuel Penrod, A. W. Burrill and H. H. Bence as administrator of the estate.of Wm. Wilford, deceased, against William II. Winter and John Noal, alleging a diversion of the waters of a small stream of water known as Clear Creek, and forming the boundary line between Douglas and Ormsby Counties, and praying relief as stated in the opinion. The official term of Hon S. II.

The plaintiff in this action sued on the promissory note referred to in the opinion, demanding a judgment for the full amount thereof with interest. Defendant set up want of consideration, and that the only object of giving the note was to satisfy plaintiff of his intention to transfer the Truckee Ditch Company stock mentioned in the agreement executed with the note, and that such stock was only worth $100.

<p>State Revenue Stamps on Foreign Bills. The statute requiring the fixing of revenue stamps to foreign bills of exchange (Stats. 1871, 142) is not a regulation of commerce between this and other states, nor does it lay an impost or duty on exports within the meaning of Art. I, Sees. 8 and 10 of the United States constitution.</p> <p>Constitutionality oe State Stamp Act. The enactment of the statute imposing a revenue stamp upon bills of exchange drawn in this state upon another state, (Stats. 1871, 142) was a legitimate exercise by the state of its inherent and unsurrendered power of taxation.</p> <p>Habeas Corpus before the Supreme Court. It appears that the petitioner in-April, 1871, at the city of Virginia, drew and issued a bill of exchange for $500, made payable at the city of San Francisco, California, without affixing a stamp thereto in accordance with the provisions of the state stamp act. Being prosecuted therefor before Wm. Livingston, a justice of the peace in Virginia City, and found guilty of misdemeanor, he was sentenced to pay a fine of $50, in default of which payment he was imprisoned in the county jail of Storey County. It was from such imprisonment that he was taken before the Supreme Court on this writ.</p>

This was an action, as originally commenced, by the Meadow Valley Mining Company, John H. Ely and W. H. Raymond against Elliott Dodds, William Dodds, Frank Dodds and Thomas Dodds, to recover possession of the “ Floral Spring Ranch ” in Lincoln County, damages for the withholding thereof, and for rents and profits ; and also for an injunction to restrain working on said ranch, or removing any of the valuable waters from the springs thereon.

The defendant was convicted of the murder in the first degree of Ah Wy, committed by shooting with a pistol on May 11th, 1871, at Carson City. He was sentenced to be hanged. The word “ vindicate,” as used in the charge, means to punish for an infraction of the law. It assumes that the law has been broken, that a crime has been committed; and the instruction points out the defendant as the party charged with its commission.

The defendant having been convicted of an assault with intent to murder, as stated in the opinion, was sentenced to imprisonment in the state prison for the term of fourteen years.

This action was commenced by Charles Lambert, IT. J. Mason and M. L. Yager, against Samuel McEarland, W. W. Savery, John Rothenbuchen, A. Cornwall and J. Roth, partners under the firm name of W. W. Savery & Co., to rec.over $823.41 and interest. on a promissory note, dated June 1st, 1868, signed “ W. W. Savery & Co., per Savery,” and $72.36 for goods sold and delivered in the same month.

The defendant, Wixom, was public administrator of Lander County; the other defendants, sureties on his official bond, were A. Haas, M. A. Sawtelle and Mark McKimmins. The complaint was very full, and among other things set out the inventory, the final account and its settlement, and the decree of distribution; also demand for the amount found due on settlement and ordered to be distributed, refusal to pay the same, and its conversion by the administrator.

This cause, which was before the Supreme Court on a previous appeal, (reported 6 Nev. 15) was an action on two policies of insurance, one in the sum of $5,000 on a brick building in Virginia City, the other in the sum of $7,000 on the furniture and merchandise therein contained, all of which were consumed by fire November 14th, 1868. There was a verdict and judgment in favor of plaintiff in the sum of $9,500, with interest thereon from the date of the fire.

It appears from the complaint in this action that in April, 1870, the plaintiffbeing the owner of two wagons and ten horses with their harness, worth $1,400, for the purpose of securing M. C. Lake the payment of-$598.20, caused a bill of sale of the property to be executed to him by P. Belton, to whom plaintiff had previously conveyed the same also by way of security.

The facts are stated in the opinion of the court. I. Plaintiffs are entitled, under and by virtue of the agreement, to have a lien upon the defendant’s interest in the dam and flume for one-half the amount expended by them in making the repairs. II. ■ The deed made June 5th, 1862, and the agreement made six days thereafter, are cotemporaneous papers affecting the same property, and are to be taken and construed together. III.

The claim taken up by the plaintiffs, John L. Rogers, Richard Trotter and John R. Rogers, consisted of a tract of land containing one hundred and twenty-two acres in Lyon County. The facts are stated in the opinion. I. Plaintiffs cannot recover upon the weakness of defendant’s rights; but must recover, if at all, upon the strength of their own.

This was an action on two checks, one for $785.90 and the other for $102.00, 'dated Carson City, May 15th, 1871, and drawn on Wells, Fargo & Co. by defendant in favor of plaintiff. Wells, Fargo & Co. refused to pay for want of funds of defendant. The defense was want of consideration. There was a judgment for plaintiff for the amount of the checks and interest; but it seems that the judgment ivas entered for $5 too much.

Henry Sticknoth died on February 10th, 1869, at Empire City, in Ormsby County, leaving about $4,000 in gold coin, and a paper written six days previously in the German language, which he intended to he his last will and testament, and which he delivered to Seibo Muntinga, the person intended under the name of Sibo to be his legatee.

This was an action for judgment on a promissory note for $3,000 and interest at the rate of two per cent, per month, and to foreclose a mortgage therefor given by James M. Lamb to J. S. Lamb in December, 1869, on certain lots in the town of Verdi, Washoe County, and a one-fourth interest in the “ Verdi planing mill and factory.” Plaintiff was the assignee of such note and mortgage.

This was an action by The State of Nevada ex rel. William Sharon and Joseph A. Rigby, and William Sharon and Joseph A. Rigby, against A. D. Treadway and T. J. Edwards for an injunction to restrain Treadway from collecting a judgment recovered by him in the case of Treadway v. Sharon and Rigby, (ante, 37) and Edwards, the clerk of the district court, from issuing execution thereon ; also for a decree declaring the patent issued to Treadway null and void.

This was an application to the Supreme Court for a mandamus requiring John Sharp, the county auditor of Nye County', to draw his warrant on the treasurer of that county in favor of the petitioner Gillette for $28.50, for his fees and mileage as a juror at the August term, 1871, of the fifth district court.

It appears that in 1857, the plaintiff Vansickle diverted, by a ditch for irrigating and domestic purposes, one-fourth of the water of Daggett creek; a small tributary of the Carson river in Douglas County. He made the diversion at a point then on the public land, but which in 1864 was patented by the United States to the defendant Haines. In 1865, Vansickle obtained a patent for his own land where he used the water.

This was an' action by A. C. Ellis and S. D. King, composing the law firm of Ellis & King, to recover their fees for professional services in the case of Hess v. Pegg et als., reported ante.

The facts are fully stated in the opinion. I. If Lake’s right or franchise could be made exclusive as to wagons and horses, or the ordinary primitive modes of transportation, so also it could be as to railroads or any of the improved modes of transportation.

Appeal 'from the District Court of the Seventh Judicial District, Lincoln County.

The plaintiff in its complaint in this action, which was commenced June 4th, 1869, set forth that it was and had been for more than five years the owner and possessor and entitled to the possession of a certain mining claim and quartz lode in the Gold Hill Mining District, in Storey County, commencing on the Comstock Ledge at the southern boundary of the claim of the Segregated Belcher Mining Company and running southerly twelve hundred feet; that it and those under whom it…

This was an action against Andrew Goodenough, Samuel Bell and Edward Cassity, fop diversion of the waters of Hartshorn Creek, in Douglas County, asking damages in the sum of five hundred dollars, and for an injunction to restrain further diversion.

On account of the objections raised to the indictment in this case, it is deemed advisable to present it 'in full. Held: did assault and shoot Benjamin Elsworth, with the intent him, the said Benjamin Elsworth, then, and there feloniously, willfully and with malice aforethought, to murder. All of which is contrary to the statutes in such cases made and provided, and against the peace and dignity of the State of Nevada.

The property of the plaintiff consistéd of 1,750 cords of wood and 30,000 feet of timber, and is the same referred to in Conley v. Qhedic, 6 Nev. 222. It was cut in Alpine County, California, and there thrown into the Carson river and “driven” down through Douglas County into Ormsby County. While passing through Douglas County it was there assessed for the year 1870, at the valuation of $5,900, and the tax, $169.63 paid.

This was an original application to the Supreme Court on the relation of,David Stoutmeyer, a colored minor appearing by his father and natural guardian,' Nelson Stoutmeyer, for a mandamus requiring James Duffy, S. H. Wright and M. C. Gardner, the board of trustees of the public schools in school district No. 1, in Ormsby County, to admit him into the public schools of that district.

Four different actions were commenced by the plaintiffs, Samuel Mosier and M. Gpptil, two at law and two in equity. In one action, plaintiffs demanded damages in the sum of $100 against James Wilson, and in another, damages in the sum of $385 against Edwin Caldwell and Albert Caldwell, for diversion of water from their spring, at Hamilton City, in' May, 1869.

' .It appears that the plaintiff, in 1865, held a certificate of deposit for $1,000, issued to him by Wells, Fargo & Co., at San Francisco, California. In 1869, he delivered'it to J. W. Sweeney, Wells^ Fargo & Co.’s agent at Shermantown, in White Pine County, with instructions to forward it by express to San Francisco, there to be renewed, and the renewed certificate to be returned to him at Shermantown, at the same time paying the charges.

The defendant was indicted for the murder of John Keeland,' alleged to have been committed on February 15th, 1871, at the town of Pioche. He was convicted of the crime of murder in the second degree, and sentenced to imprisonment at hard labor in the State prison for the term of fifteen years. A motion for new trial having been overruled, he took this appeal. The instruction given by the court to the jury was 'error.

The difficulty, which resulted in the killing of deceased, occurred in a place known as the Snug Saloon, in Genoa, Douglas County. Several persons were present, besides deceased and defendant. Hardwick was under the influence of liquor. After some conversation with Harkin about twenty dollars which Hard-wick owed Harkin, Hardwick referred to threats that he said Harkin had made against him. Harkin denied making any threats.

<p>Denial of Eight of Proper Cross-Examination Error. Where on the trial of an action of assumpsit for work and labor, in which defendant pleaded a general denial and a special contract which had not been complied with, plaintiff testified as a witness on his own behalf to a contract different from that claimed by defendant, and to the performance of the work and labor and its value •, wlierenpon defendant claimed the right to show, by cross-examination of plaintiff, the existence and terms of the special contract as he claimed it, which was denied on the ground that it was not prop'er cross-examination : Helderror.</p> <p>Province of Cross-Examination. A defendant cannot on cross-examination of plaintiff draw out proof of “ new matter but he may properly elicit all such particular facts as can tend to disprove the essential or ultimate facts in the plaintiff’s case, which the direct examination tended to prove.</p> <p>“ New Matter ” in Action on Contract. As “ new matter ” is matter in confession and avoidance, such as cannot be introduced in evidence under an answer simply denying, the allegations of the complaint, it follows ihat in an action on a contract it is not proving new matter for the defendant to show that there are other terms in the contract relied on besides those shown by plaintiff, whether such proof be calculated to defeat the action or only to reduce the damages.</p> <p>Cross-Examination may. be Thoroughi, Searching and Exhaustive. So far as a party lias a right to cross-examine, it is his privilege to make a thorough, searching and exhaustive examination.</p> <p>Right o® Defendant on Cross-Examination of Plaintiff. Whore in an action on contract the plaintiff took the stand and testified to the existence and terms of the contract as claimed by him: Held, that the defendant had the right to draw out, on cross-examination and by leading questions, anything which would tend to contradict, weaken or modify the direct testimony of plaintiff, or any inference which might have resulted from it, tending in any degree to support his case.</p>

This was an original proceeding, on certiorari, in the Supreme Court.

The bond sued on in this action was as follows : “ Whereas John W. Morris, William D. Morris and John S. Morris have this twenty-first day of July, 1869, conveyed to me, W. W. McCoy, by good and sufficient deed, all their right, title and interest in and to all the personal and real property known as the property of the Eureka Smelting and Mining Company, situated, lying and being •in Eureka Mining District, Lander County, state of Nevada.

The defendant were indicted for the stealing on June 17th, 1871, of two horses from J. R. Cunningham, and one horsq from James Barney, at Pioche City, in Lincoln County. It appears that they were arrested with the horses in their possession some fifteen miles from Pioche, and that they were at the time on their way towards Idaho, having started before daylight.

.The facts are stated in the opinion. At common law, originally a special indebitatus assumpsit might be maintained for money won at gaming; for the contract was not •unlawful in itself, and the winner venturing his money was a sufficient consideration to 'entitle him to the action. Burling v. Frost, 1 Esp. 235 ; 2 Bacon’s Abridgement, 450; Bryant v. Mead, 1 Cal. 441.

This was an action by Louis Schissler, Edward W. Hooper and L. L. Alexander, against Robert Chesshire, L. Yerk and George H. Allen, to recover possession of sixteen hundred feet of mining ground, known as Burning Moscow, in White Pine Mining District. There was a verdict and judgment for the defendants.

This was an action by the' state against Henry A. Rhoades, administrator to the estate of Eben Rhoades, deceased, late state treasurer, and twenty-eight other defendants, who were sureties on the official bond of said Rhoades, deceased, as such treasurer. The action was commenced on March 19th, 1870. A former appeal in the same case will be found, reported under the same title, in 6 Nev. 352.