Volume 8 — Nevada Reports

Tbis was an action against tbe Eureka Consolidated Mining Company, and tbe possessory claims to tbe mines or mining claims, known as tbe “Eureka Consolidated Mines,” in tbe Eureka Mining District, Lander County, brought to recover tbe taxes imposed on tbe net proceeds of such mines for tbe quarter ending March 31, 1871.

This was an action by J. L. Carnaghan, S. E. Eisher, H. McClintock, and J. M. Crawford against B. E. Ward and the Silver Star Consolidated Silver Mining Company to recover possession of a mining claim, known as the “Wabash Lode,” on or near Pogonip Elat, White Pine County, for $5000 damages, and for an injunction restraining defendants. from extracting or removing ore therefrom.

This was an action by George H. Rogers, as administrator of the estate of James A. Rogers, deceased, upon a judgment for $1193 55, recovered by him as such administrator against the defendant on April 14, 1871, in the district court of the fourth judicial district of the State of California, in and for the City and County of San Francisco.

This was an action of replevin by Andrew Blackie, David Hemphill, and John G. Hemphill for seven head of oxen, alleged to be worth five hundred and seventy dollars, taken by defendant out of the possession of plaintiffs.

<p>Appeal from the District Court of the First Judicial District, Storey County.</p> <p>This was an action to quiet the title of a tract of one hundred and eighteen acres of land in Washoe County. The suit was originally commenced in that county, but after-wards transferred to Storey. The judgment of the court below was to the effect that defendant was the owner of so much of the land claimed as lay within the boundaries of the Steamboat Springs Ranch, and the plaintiff the owner of the balance; denying the prayer of the complaint as to the former and granting it as to the latter. The plaintiff appealed.</p> <p>I. The defendant stands in no privity with the United States, and hence can not question the validity of the patent, or claim that it inures to his benefit. Dunn v. Schneider, 20 Wis. 509; Mahoney v. Van Winlele, 33 Cal. 458; Tyler v. Green, 28 Cal. 408: Doll v. Meador, 16 Cal. 324; Kile v. Tubbs, 23 Cal. 442 ; 29 Cal. 310; 27 Cal. 484; 2 Nev. 280; 17 Cal. 58; 33 Cal. 74; 17 Cal. 60; 32 Mo. 28; 28 Cal. 501; 39 Mo. 595.</p> <p>II. The conveyance made by Cameron to defendant in 1863 was merely a quitclaim deed, and did not operate to vest the subsequently acquired title. It only passed such interest as the grantor had at the time it was made and which he could lawfully convey. Gee v. Moore, 14 Cal. 472; Morrison v. Wilson, 30 Cal. 344; Cadiz v. Majors, 33 Cal. 289; 37 Cal. 471; 1 Cow. 613; 14 Johns. 194; 39 Mo. 566; 4Mass. 688; 18 Cal. 465; 25 Cal. 154; 14 Cal. 613.</p> <p>III. At the time Cameron made his deed to defendant he had no pre-emption right. The land had not then been surveyed by the government or declared open for entry. Nor does it appear that he then was possessed of the qualifications of pre-emptioner. " Quoad the government he was a mere intruder or trespasser. Hence his deed conveyed nothing so far as the government or its grantee is concerned, and as between Cameron and defendant only the naked possession. KileY. Tubbs, 23 Cal. 442; PageY. Hobbs, 27 Cal. 286; Doll v. Meador, 16 Cal. 331; Vcmsiclde v. Hcdnes, 7 Nev. 249.</p> <p>IV. To give the defendant any-standing in court he must have shown that he was the true owner of the superior equitable title to the land, and could have demanded of the officers of the government that the patent he issued to him. The inchoate pre-emption right commenced with the entry of Cameron, after the land was surveyed. That right was a right to obtain the fee and culminated in the patent. The defendant, by Cameron’s deed to him, obtained no equitable right as to the fee, either as against the government or Cameron. Having but a bare trespasser’s right, there was nothing in the case upon which a trust could be predicated. To declare a trust under the circumstances would be a violation of the.spirit and policy of the pre-emption laws. It would have an effect of vesting the fee of the public lands in parties not possessing a single qualification, or complying with a single one of the provisions of the pre-emption laws.</p> <p>Y. Even if Cameron, when he made the deed of July 27, 1863, had expressly agreed to pre-empt the land, get the patent and convey to defendant, the agreement would have been void by the very terms of the pre-emption laws. What could not be done directly because against the policy of the law or contrary to statute, cannot be accomplished indirectly. A court of equity can recognize no such trust. See Hill on Trustees, *45, 70; 1 Brightly’s Dig. 473; Leggetts. Dubois, 5 Paige, 117; Phillips v. Hammond, 2 W. C. O. 441.</p>

This was an action to recover eleven hundred and seventeen dollars.

The facts are stated in the opinion. A verdict having been found in the court below for defendant and plaintiff’s motion for new trial having been granted, defendant appealed from the order. I. The court below erred in granting a new trial on the ground of insufficiency of evidence. The question is here, (as it' was below) is the evidence sufficient in law ?

<p>Judgment to be Aeeiemed upon Neglect to Argue Appeal. If a motion for new trial is not argued and on appeal no attention given to tile case by appellant, the judgment will be affirmed without examination of the record.</p> <p>Action against Lessees eor Labor — When Leases Relevant Evidence. Where a person sued for labor performed at a quartz mill for an association of lessees thereof : Held, that the leases and contract under which the lessees prosecuted the wort were relevant evidence to show the character of the association and establish their interest in the labor on which plaintiff was employed.</p> <p>Practice Act, Sec. 879 — Meaning oe “ Representative oe Deceased Person.” Where a person was employed by another to wort at a quartz mill for an association, to whom such latter person had assigned a lease thereof; and after the death of the assignor, the employee sued tho association for work and labor : Held, that none of the association was sued as the representative of deceased, and there was nothing in section 379 of the Practice Act to prevent plaintiff from testifying as to the conversation and employment by deceased.</p> <p>Evidence Properly Admitted nr Pertinent eor any Purpose. In an action against a number of persons for work and labor performed at the request of one of them, supposed to be the agent of all, where a letter and telegrams of such person directing the employment were admitted in evidence against the sole objection that no power was shown in him to bind the others : Held, that the evidence was pertinent at least to bind him and properly admitted.</p> <p>Instruction on Point not in Evidence Properly Refused. An instruction, based upon an assumption of fact not sustained by any proof whatever, is properly refused; for the reason that no instruction can be properly given when there is no evidence to point or sustain it.</p>

This was a proceeding on a writ of certiorari, issued out of the Supreme Court to the clerk of the district court of the second judicial district in and for Washoe County and directing him to certify up the proceedings. in that court in the case of Joseph Leonard v. J. F. Peacoch.

Tbis was an action of ejectment for a lot of about four acres of land on Minnesota Street in Carson City. Tbe cause was tried before a jury, wbicb rendered a general verdict for plaintiff and a special verdict tbat defendant by bimself and tenants bad been in tbe possession and occupancy of tbe land ever since May 10, 1866 — wbicb appears to bave been tbe date of tbe patent of tbe United States to Judge S. H. Wright, as trustee for tbe town-site of Carson City.

<p>Eminent Domain — Condemnation of Land for Railroad After Original Construction. The fact that a railroad has been constructed according to the surveys and maps originally filed, does not prevent it from condemning other land which may be necessary and proper for its purposes; and a petition for condemnation nnder such circumstances is not demurrable for setting up such construction.</p> <p>Report of Commissioners to “Set Ports their Proceedings.” A report of commissioners, appointed to assess the value of lands to be taken for railroad purposes as provided by law, (Stats. 1864-5, 427, Sec. 80) which fails to show that they or a majority of them met at the time and place ordered and before entering on their duties were duly sworn, as required by the law, is not sufficient; and it is error to confirm such a report.</p> <p>Appraisal of Land Taken by Railroad After Original Construction. It seems that when land is condemned for a railroad after its original construction, the owner is entitled to the actual market value of the property at the time of taldng, without deduction for any appreciation in value caused by tbe previous location and construction of the road.</p>

Judicial District, Ormsby County. This was an action against Thomas Wells, former district attorney of Ormsby County, and H. S. Mason, Wm. H. Corbett, James Frazer, and Jacob Sheyer, the sureties on his official bond, to recover the sum of twenty-five hundred dollars, alleged to have been collected by said Wells as district attorney for delinquent taxes during the time he held office and converted by him to his own use.

Tbis was an action to recover $301 for killing a cow wbicb bad strayed on tbe defendant’s railroad track in tbe western part of tbe town of Gold Hill, in Storey County. Tbe land at tbat point over wbicb tbe road runs, and tbat from wbicb tbe cow strayed, is uninclosed public land.

The parties had been partners in the blaeksmithing business at the town.of Eeno, -in Washoe County, under the firm name and style of Cutts & Worthing. They dissolved about February, 1870. The material facts are stated in the opinion. Defendant appealed from the order of the court below granting the plaintiff a new trial.

The facts are stated in the opinion. There was a judgment in the court below against the defendants for the sum of $1151 15 and costs, in gold coin. Defendants appealed from the judgment. I. This case comes clearly within the rule laid down in McBeth & Bollen v. Vcmsiclcle, 6 Nev. 134.

This was an action to recover $426 61, balance of rent alleged to be due on a lease for four months commencing November 11, 1869, of the McCoy Furnace at Eureka, Lander County; $521 90 for breach of contract to receive and pay for certain bullion, and $100, damages done the furnace during the lease.

The complaint in this case alleged: “1. That the said plaintiff, Jacob N. Winter and his grantors, are now and since the year 1857 have been the owners of and in the lawful and peaceable possession of a certain tract of land, situate in the County of Douglas and State of Nevada, containing about two hundred acres and known as the Jacob N. Winter Ranch, in Jack’s 'Valley, State and county aforesaid. 2.

The defendant was indicted for the murder of Thomas Kelly at Reno in Washoe County on December 10, 1871. She was tried in January, 1872, and convicted of murder in the second degree, and was afterwards sentenced to the State prison for the term of twenty-seven years. She appealed from the judgment and orders refusing motions for new trial and in arrest of judgment.

This was a prosecution for the crime of robbery, alleged to have been committed by robbing J. N. Johnson on November 5, 1870, in Elko County, of $2992 50, the property of Wells, Eargo & Go. There were four persons charged in the indictment: Daniel Baker, Leander Morton, Daniel Taylor, and George-Lee. Baker, Morton and Taylor were tried together in January, 1871; convicted as charged, and sentenced to' imprisonment in the State prison for the term of thirty years.

The main facts are stated, in the opinion. The plaintiff prayed, for an accounting as to what was owing by him and as to rents received by defendant; that defendant might be decreed to convey to him upon the payment of any amount that might be found due by him; that if nothing was due, such decree might be absolute; that he might have judgment for any balance found in his favor; and for general relief. The cause in the court below was submitted to a jury on special issues.

This was an original application to the Supreme Court for a writ of certiorari as stated in the opinion.

• Tbe plaintiff, as will be seen by reference to tbe case of Peaco'clc y. Leonard on certiorari, reported arde, p. 84, commenced a forcible entry suit against defendant before a justice of tbe peace and recovered judgment. Defendant appealed to the district court and on another trial there plaintiff again recovered judgment.

This was an action of ejectment to recover possession of the easterly sixteen inches of lot eleven in block one of McCannon’s survey of the town of Pioche, in Lincoln County, and $500 damages for alleged unlawful detention. Plaintiff relied upon prior possession.

<p>Appeal prom Judgment upon Remittitur not Entertained. Where the Supreme Court on appeal reversed a judgment for plaintiff and ordered judgment for defendant; and the court below upon the filing of the remittitur entered judgment for defendant in strict compliance therewith: Reid, that an appeal from the latter judgment would not be entertained.</p>

Tbis was a proceeding under tbe statute of March 22, 1865, providing for tbe incorporation of railroad companies and tbe management of tbe affairs thereof, (Stats. 1864-5, 427) to condemn certain land in the town of Gold Hill in Storey County, for the purposes of a side track.

This was an action to obtain a decree declaring certain territory near the north-east corner of Storey County within the boundaries of the plaintiff, Lyon County, and not within the boundaries of the defendant, Washoe County. The case was tried in the court below before a jury, which returned a verdict for defendant.

Tliis was an action against Samuel Tallman and J. N. Groves, administrator of the estate of James M. Groves, deceased, for a dissolution of the partnership of Tallman & Groves and an accounting and settling up of its affairs. The complaint alleged the partnership as set forth in the opinion.

This was an action by Robert M. Clarke and Thomas Wells, composing the law firm of Clarke & Wells, to recover $5000 for legal services performed by them on behalf of defendant in defending the suit' of The Virginia and Truclcee Railroad Company v. Lyon County, in May and June, 1870, which case was here on a former appeal and will he found reported in 7 Nev. 75.

The facts are stated in the opinion. The appeal was by defendant from the judgment and an order overruling his motion for new trial. I. The only estate conveyed by the deed from Bowker to Dalton is that described in the granting part thereof, and any covenants therein can only apply thereto. All after the granting clause in reference to the waters of Thomas Creek is mere surplusage and adds nothing to the effect or force of the deed either explanatory or otherwise.

This was an action by Henry Welland and Lewis Gross, making August Koch a party plaintiff, for the dissolution of a mining partnership • alleged to exist between them and Melchior Huber and a conveyance to said Welland and Gross of one hundred feet of mining ground, being a portion of four hundred feet located in the name of Huber in the Huber Ledge, Cliief Mining District, Lincoln County.

Court of the Eighth Judicial District, White Pine County. The defendant, having- been convicted in the court below of the crime of grand larceny and his motion for a new trial having been overruled, was sentenced to imprisonment in the State prison for the term of three years.

<p>CBiamtii. Law — Deoeaeation of Co-defendant afteb Offense not Evidence against Others. On a trial of Ah Tom and others for grand larceny, where the State was permitted, under objection, to prove the declarations of Ah Tom, made several days after the larceny and not in the presence of his co-defendants, to the effect that he was innocent but he knew them to be guilty: Held, clearly error as against such co-defendants.</p> <p>Declarations of Defendant Exculpating Himself and Inculpating Co-defendants. A mere gratuitous assertion by one of several defendants charged with crime, exculpating himself and inculpating his co-defendants, should never be received as evidence against any one but himself.</p> <p>Reversal of Conviction fob Want of Competent Evidence. If there is no competent evidence to sustain a verdict of conviction, the judgment, on the point being properly presented, will be reversed.</p>

This was au action by W. P. Warren and Olive Warren against John Quill and Timothy Oouley for damages for diversion of a stream of water from premises alleged to belong to plaintiffs in Ormsby County, and for an injunction to restrain future diversion.

<p>Complaint on Mechanics’ Liens — Omission oe Allegation oe Time oe Piling. Where a complaint to foreclose mechanics’ liens failed to show that they were filed -within six months before the commencement of the action : Held, that the omission was one which should be taken advantage of by demurrer, and that after issue joined and decision rendered on the merits the pleading would be upheld by every legal intendment.</p> <p>Sufficiency of Complaint to Foreclose Mechanics’ Liens. The sufficiency of a complaint for foreclosure of mechanics’ liens-is to be determined by the statute; -andif there is a substantial compliance with the 'requirements of the statute it is sufficient.</p> <p>Mechanics’ Liens Assignable. Mechanics’ liens are assignable and may be enforced by an action in the name of the assignee.</p> <p>Assignment of Mechanics’ Liens for Purpose of Suit. Where various holders of mechanics’ hens assigned to one upon an understanding that he was to bring suit in his own name, each assignor to bear his proportion of the expense incurred and to share pro rala in the amount realized: Held, that a suit by such assignee on all the hens might be maintained.</p> <p>Words used in Assignment of Mechanic’s Lien. Where an assignment was indorsed on a mechanic’s lien as fohows:' “ For value and in consideration of the sum of one doUar in hand paid by Wm. Skyrme, the receipt whereof is hereby acknowledged, I do sell, assign, transfer and set over to said Wm. Skyrme the within lien and all my rights thereunder. ” Held, that the language used was broad enough to include the debt secured by the lien.</p> <p>Mechanic’s Lien, What. The paper called a. mechanic’s lien is simply evidence that the acts required by statute have been performed and that therefore the lien created by the statute has attached; and an assignment of such paper with all rights thereunder is an assignment of the debt as well as of the lien.</p> <p>No Particular Wobds Necessary to Assignment. No particular words are necessary to constitute an assignment of a debt; it is sufficient if the intent of the parties to effect an assignment be clearly established.</p> <p>Assignment afteb Suit Brought by Assignee. Where mechanics’ liens had been assigned and suit brought on them in the name of the assignee, and afterwards new and more formal assignments were made: Held, that the latter were irrelevant as evidence in the case, but that their admission was immaterial error, not affecting the decree.</p> <p>Effect of New -Law on Old Mechanics’ Liens. Where suit was brought to foreclose mechanics’ liens which attached under the act of 1861 (State. 1861, 35) after the repeal of that law by the act of 1871 (Stats. 1871,123); and it was claimed that the lion, being nothing but a remedy, fell with the repeal of the law: Held, that neither the lien was lost nor the right to enforce it.</p> <p>Construction of Mechanics’ Lien Laws. The new mechanics’ lien law of 1871 (Stats. 1871, 123), which took effect simultaneously with the repeal of all former acts on the subject, was intended as a substitute therefor; but instead of entirely abrogating and annulling such prior laws it had the effect of continuing them in force so far as existing rights thereunder were concerned. .</p> <p>No Joint Mechanics’ Liens without Joint Interest. There is no provision in the mechanics’ lien law for filing joint liens when no community of interest exists; and, if an attempt has been made to file a joint lien, it does not prevent the several lien claimants from filing valid individual liens.</p> <p>Mechanic’s- Lien for Wobk Done by Miner under Various Contracts. Where miners filed mechanics’ liens for work done in the development of a mine, and it appeared that they worked a portion of the time under special contracts and a portion of the time by the day, but always under the direction of the foreman of the mine: Held, that the work was to be considered as one continuous employment and not as distinct and independent jobs or contracts, and that each miner might file one lien for all his labor within the proper time after stopping work.</p> <p>Requisites oe Notice oe Mechanic’s Lien. -Where the notice of a mechanic’s Hen recited that it was to secure the performance of a contract to pay the money specified in a certain note, given in settlement according to agreement for labor performed as a miner in extracting ore and working in a certain mine for a certain time: Held, that though it would have been better to state clearly the ^character of work and by whom and for whom done, yet it was not so defective as to prevent the enforcement of the Hen.</p> <p>Eeeect oe- Taxing and Assigning Note upon Mechanic’s Lien. Where a person, who had done work as a miner in a mine, upon settlement and adjustment of accounts with the owner took his note as evidence of the amount due, and after-wards having filed a mechanic’s Hen for the amount assigned his note and lien to another person, who brought suit: Held, that no rights of the miner or his assignee were relinquished or lost by the acceptance or transfer of the note.</p> <p>Mechanics’ Lien Law to be Liberally Construed. The mechanics’ lien law is to be liberally construed so as to give lien claimants the benefits intended by the legislature.</p>

The defendant, together with one Charles Beaver, was indicted for robbing Walter M. Thomas of $93 in coin on January 31, 1871. The cause was to have regularly come on for trial at the June term, 1871, of the district court at Reno. It was called and the trial proceeded on July 10.

This was an action by the plaintiff as administrator of the estate of John Huber, deceased, to recover $402 52 on a promissory note, made November 2, 1866, and more than four years before. the commencement of suit by defendant to Thompson Richards, and by him indorsed to plaintiff’s intestate.

By reference to the case of J. F. Peacock, Belator, v. Joseph Leonard on certiorari, -a/nte 84, it will be seen that certain proceedings of the District Court of the Second Judicial District, whereby Peacock had been turned out of possession of certain property in the 'town of Reno, Washoe County, were completely annulled.

Defendant was indicted for an assault with intent to commit murder by shooting at Erancis M. Wilder on February 19, 1873. Having been convicted as charged, and his motion for a new trial having been overruled, he was sentenced to imprisonment in the State prison for the term of seven years. The facts bearing upon the points decided are stated in the opinion.

<p>Right of Mabbied Woman to Contbact in case of Abandonment. The exception to the common law disability of a married woman to contract or maintain a suit, in case of abandonment by lier husband, does not apply except in case the abandonment is absolute and embraces a total renunciation of marital relations.</p> <p>Conveyance by Abandoned Wife, Husband must Join. The right of married women to alienate land in this State, whether their separate estate or community property, does not depend upon the common law, but upon our statutes; so that a wife’s deed or mortgage, without her husband’s joining in it, though he has abandoned her for years, is inoperative and void.</p>

The defendant John Berryman, having been indicted jointly with Joseph Oxford for the crime of grand larceny and having on a separate trial been convicted as charged, was sentenced to the State prison for the term of one year. Oxford had previously been tried, convicted and sentenced to the same term. The defendant Berryman moved in arrest of judgment and also for a new trial, both of which motions were denied. He then appealed from the judgment.

<p>Sheeifjj’s Fees in Delinquent Tax Suits. ' A sheriff cannot collect from a county his fees in delinquent tax cases commenced previous to the act of March 1,1871, which provides for suits in which his fees shall under certain circumstances be so paid (Stats. 1871, 93) — such act not having any retroactive effect.</p> <p>Delinquent Tax Suits — When Fees Pasable by County. The act of March 1, 1871, amending the revenue laws in reference to delinquent tax suits (Stats. 1871, 93), contemplates the payment of fees out of the county treasury only in cases in which suits are brought by direction of the county commissioners.</p> <p>Statutoky CoSstbuction — Plain Object oe Law. Where the object of the legislature is plain and the language unequivocal, effect should be given to the intent of the law-makers.</p> <p>New Statutes Abbly to New Cases. New statutes apply only to new cases, unless the contrary expressly appears.</p>

The toll-road franchise, which was the subject of this action and in which the judgment of ouster-was rendered in the court below, was granted to Myron Lake by act of December 17, 1862 (Stats. 1862, 19).

The complaint in this action alleged that the plaintiff was the owner in fee and in possession of certain land in Washoe County, known as “Truckee Meadows;” that he and his grantors had been in possession thereof since 1859, and had been seized in fee thereof since 1864; that a stream of water, known as Evans’ Creek, flowed through said land in its natural channel; that in 1859, plaintiff’s grantor claimed the use of all the waters of said stream by posting and recording…

Tbe defendant was indicted by tbe grand jury of Ormsby County at tbe November term, 1872, of tbe murder of George Wilson, alleged to bave… Held: which said pistol was then and there loaded with powder, caps and leaden balls, and did then and there unlawfully and with malice aforethought wound him, the said George Wilson, in and upon the breast and body of him, the said George Wilson, whereof he'the said George Wilson died at Carson City in the County of Ormsby, State of…

This was an action against Sylvester Kean, J. A. Pope, William Talbert, Henry E. Rice, A. W. Pray, Henry Williams, S. B. Maynard, and Wm. A. Bourne to recover judgment on certain promissory notes made by defendant Kean, amounting in all to some $19,200 and interest, and to foreclose mortgages therefor on certain mines and land in Esmeralda County.

<p>Organization oe Eubeea County — Election eob County Oeeioees. Under section 3 of the act for the organization of Eureka County (Stats. 1873,107) : Held, that before an election for county officers could be ordered, it had to be ascertained that five hundred persons had petitioned therefor, and that such petitioners were qualified electors — which facts had to be determined by the county commissioners acting judicially.</p> <p>Mandamus, When it Lies. Mandamus lies to compel an inferior tribunal to exercise its judgment and render a decision, when a failure of justice would otherwise result from delay or refusal to act; but it does not lie to review or correct its conclusion after it has acted.</p>

The indictment alleged that defendant was on or about January 20, 1873, lawfully confined in Nye County jail upon a charge of having committed a felony; that afterwards, to wit: on or about the 22d day of January, 1873, being lawfully confined as aforesaid, he did then and there feloniously, wilfully and without authority of law break out of and escape from said Nye County jail, etc. Defendant demurred on the ground that the indictment did not state facts sufficient to…

The defendant having been convicted of an assault with a deadly weapon with intent to inflict bodily injury, and sentenced to imprisonment in the State prison at hard labor for one year, took this appeal from the judgment. I. To constitute the crime of “assault with intent to murder,” the assault and the intent to murder must concur. It requires the act and intent combined to constitute the crime. If either be absent the offense is not committed. 1 Bishop’s Grim.

This was an action for an injunction to prevent J. H. Job, Samuel Bonnifield, Christ. Lark, C. A. Kyle, Samuel King, James Mather and Thomas V. Julian, being clerk, recorder, treasurer, assessor, sheriff, surveyor and district attorney of Humboldt County, respectively, from removing their offices from Unionville to Winnemucea.

of the First Judicial District, Storey Oouuty. It appears that Boylan, the plaintiff, on or about June 2, 1870, requested H. H. Flagg, a broker of Gold Hill, to purchase for him ten shares of stock in the Savage Mining Company. Flagg made the purchase and entered it on his books to the credit of Boylan.

<p>Action on County Commissioners — No Certiorari where no excess on Jurisdiction. Where the board of county commissioners of Eureka County entertained petitions for the holding of an election, as provided by the act creating such county (Stats. 1873,107, Sec. 3), and after hearing evidence determined as a fact that the requisite number of qualified electors had not petitioned and thereupon refused to order an election: Held, that the action of such board was within its jurisdiction, and that therefore certiorari would not lie.</p> <p>Inquiry upon Certiorari. If a board of county commissioners regularly pursue its authority and act within its jurisdiction, there can be no error in its action which can be reviewed upon certiorari.</p>