nevada reports 1885-1888 (19 nev.).pdf

19 Nev. 11, 11 (1885)

RULES

of

The Board of Pardons.____________

1. The regular meetings of the board shall be held on the second Monday of Januaryand July of each year. 2. Special meetings may be called by the governor at any time when the exigencies ofany case demand it, notice thereof being given to each member of the board. 3. No application for the remission of a fine or forfeiture, or for a commutation ofsentence or pardon, shall be considered by the board unless presented in the form and mannerrequired by the law of the state, approved February 20, 1875. 4. In every case where the applicant has been confined in the state prison, he or shemust procure a written certificate of his or her conduct during such confinement, from thewarden of said prison, and file the same with the secretary of this board, on or before the dayof hearing. 5. All oral testimony offered upon the hearing of any case must be presented underoath, unless otherwise directed by a majority of the board. 6. Action by the board upon every case shall be in private, unless otherwise orderedby the consent of all the members present. 7. After a case has been acted upon, and the relief asked for has been refused, it shallnot, within twelve months thereafter, be again taken up or considered upon any of the groundsspecified in the application under consideration, except by the consent of a majority of themembers of the board; nor in any case, except upon new and regular notice as required by lawin case of original application.

19 Nev. 11, 12 (1885) Rules of the Board of Pardons

8. In voting upon any application the roll of members shall be called by the secretaryof the board in the following order: FirstThe Attorney General. SecondThe Junior Associate Justice of the Supreme Court. ThirdThe Senior Associate Justice. FourthThe Chief Justice. FifthThe Governor. Each member, when his name is called, shall declare his vote for or against the

remission of the fine or forfeiture, commutation of sentence, pardon or restoration ofcitizenship. 9. No document relating to a pending application for pardon or commutation ofsentence, or to a prior application which has been denied, shall be withdrawn from thecustody of the clerk after filing, unless by consent of the board. 10. Application for pardon or commutation of sentence must be filed with the clerk atleast two days before the regular meeting of the board, at which the application is to beconsidered. 11. All papers pertaining to applications for pardon, or for restoration to citizenship,must be properly endorsed before presentation for filing; and the name of the attorney for theapplicant must appear in such indorsement on the petition and notices to the District Judgeand District Attorney. The indorsement on each paper must begin at the top with Board ofPardons, and include the name of the document.

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19 Nev. 13, 13 (1885) Rules of the Supreme Court

RULES

OF

THE SUPREME COURT

OF THE STATE OF NEVADA

____________

rule i.

1. Applicants for license to practice as attorneys and counselors will be examined inopen court on the first day of the term. 2. The supreme court, upon application of the district judge of any judicial district,will appoint a committee to examine persons applying for admission to practice as attorneysand counselors-at-law. Such committee will consist of the district judge and at least twoattorneys resident of the district. The examination by the committee so appointed shall be conducted and certifiedaccording to the following rules: The applicant shall be examined by the district judge and at least two others of thecommittee, and the questions and answers must be reduced to writing. No intimation of the questions to be asked must be given to the applicant by anymember of the committee previous to the examination.


The examination shall embrace the following subjects: 1. The history of this state and of the United States; 2. The constitutional relations of the state and federal governments; 3. The jurisdiction of the various courts of this state and of the United States; 4. The various sources of our municipal law; 5. The general principles of the common law relating to property and personal rightsand obligations; 6. The general grounds of equity jurisdiction and principles of equity jurisprudence; 7. Rules and principles of pleadings and evidence; 8. Practice under the civil and criminal codes of Nevada; 9. Remedies in hypothetical cases; 10. The course and duration of the applicant's studies. 3. The examiners will not be expected to go very much at large into the details ofthese subjects, but only sufficiently so fairly to test the extent of the applicant's knowledgeand the accuracy of his understanding of those subjects and books which he has studied. 4. When the examination is completed and reduced to writing, the examiners willreturn it to this court, accompanied by their certificate showing whether or not the applicant isof good moral character and has attained his majority, and is a bona fide resident of this state.Such certificate shall also contain the facts that the applicant was examined in the presence ofthe committee; that he had no knowledge or intimation of the nature of any of the questions tobe propounded to him before the same were asked by the committee, and that the answers toeach and all the questions were taken down as given by the applicant without reference to anybooks or other outside aid. 5. The fee for license must in all cases be deposited with the clerk of the court beforethe application is made, to be returned to the applicant in case of rejection.

rule ii.

In all cases where an appeal has been perfected, and the statement settled (if there beone) thirty days before the commencement of a term, the transcript of the record shall be filedon or before the first day of such term.


rule iii.

1. If the transcript of the record be not filed within the time prescribed by Rule II, theappeal may be dismissed on motion during the first week of the term, without notice. A causeso dismissed may be restored during the same term, upon good cause shown, on notice to theopposite party; and unless so restored the dismissal shall be final, and a bar to any other

appeal from the same order or judgment. 2. On such motion there shall be presented the certificate of the clerk below, underthe seal of the court, certifying the amount or character of the judgment; the date of itsrendition; the fact and date of the filing of the notice of appeal, together with the fact and dateof service thereof on the adverse party, and the character of the evidence by which saidservice appears; the fact and date of the filing of the undertaking on appeal; and that the sameis in due form; the fact and time of the settlement of the statement, if there be one; and also,that the appellant has received a duly certified transcript, or that the has not requested theclerk to certify to a correct transcript of the record; or, if he has made such request, that he hasnot paid the fees therefor, if the same have been demanded.

rule iv.

1. All transcripts of record in civil cases shall be printed on unruled white paper, teninches long by seven inches wide, with a margin on the outer edge of not less than two incheswide. The printed page, exclusive of any marginal note or reference, shall be seven incheslong and three and one-half inches wide. the folios embracing ten lines each, shall benumbered from the commencement to the end, and the numbering of the folio shall be printedon the left margin of the page. Small pica solid is the smallest letter, and most compact modeof composition allowed. 2. Transcripts in criminal cases may be printed in like manner as prescribed for civilcases; or, if not printed, shall be written on one side only of transcript paper, sixteen incheslong by ten and one-half inches in width, with a margin of not less than one and one-halfinches wide, fastened or bound together on the left sides of the pages by ribbon or tape, sothat the same may be secured, and every part conveniently


read. The transcript, if written, shall be in a fair, legible hand, and each paper or order shall beseparately inserted. 3. The pleadings, proceedings, and statement shall be chronologically arranged in thetranscript, and each transcript shall be prefaced with an alphabetical index, specifying thefolio of each separate paper, order, or proceeding, and of the testimony of each witness; andthe transcript shall have at least one blank fly-sheet cover. 4. No record which fails to conform to these rules shall be received or filed by theclerk of the court.

rule v.

The written transcript in civil causes, together with sufficient funds to pay for theprinting of the same, may be transmitted to the clerk of this court. The clerk, upon the receiptthereof, shall file the same and cause the transcript to be printed, and to a printed copy shallannex his certificate that the said printed transcript is a full and correct copy of the transcriptfurnished to him by the party; and said certificate shall be prima facie evidence that the same

is correct. The said printed copy so certified shall also be filed, and constitute the record ofthe cause in this court, subject to be corrected by reference to the written transcript on file.

rule vi.

The expense of printing transcripts on appeal in civil causes and pleadings, affidavits,briefs, or other papers constituting the record in original proceedings upon which the case isheard in this court, required by these rules to be printed, shall be allowed as costs, and taxedin bills of costs in the usual mode.

rule vii.

For the purpose of correcting any error or defect in the transcript from the courtbelow, either party may suggest the same, in writing, to this court, and, upon good causeshown, obtain an order that the proper clerk certify to the whole or part of the record, as maybe required, or may produce the same, duly certified, without such order. If the attorney of theadverse party be absent, or the fact of the alleged error or defect be disputed, the suggestion,except when a certified copy is produced at the time, must be accompanied by an affidavitshowing the existence of the error or defect alleged.


rule viii.

Exceptions or objections to the transcript, statement, the undertaking on appeal, noticeof appeal, or to its service or proof of service, or any technical exception or objection to therecord affecting the right of the appellant to be heard on the points of error assigned, whichmight be cured on suggestion of diminution of the record, must be taken at the first term afterthe transcript is filed, and must be noted in the written or the printed points of the respondent,and filed at least one day before the argument, or they will not be regarded.

rule ix.

Upon the death or other disability of a party pending an appeal, his representativeshall be substituted in the suit by suggestion in writing to the court on the part of suchrepresentative, or any party on the record. Upon the entry of such suggestion, an order ofsubstitution shall be made and the cause shall proceed as in other cases.

rule x.

1. The calendar of each term shall consist only of those cases in which the transcriptshall have been filed on or before the first day of the term, unless by written consent of theparties; provided, that all civil cases in which the appeal is perfected, and the statementsettled, as provided in Rule II, and the transcript has not been filed before the first day of the

term, may be placed on the calendar, on motion of the respondent, upon the filing thetranscript. 2. When the transcript in a criminal cause is filed, after the calendar is made up, thecause may be placed thereon at any time, on motion of the defendant. 3. Causes shall be placed on the calendar in the order in which the transcripts arefiled with the clerk.

rule xi.

1. At least six days before the argument, the appellant shall furnish to the respondenta printed copy of his points and authorities, and within two days thereafter the respondentshall furnish to the appellant a written or printed copy of his points and authorities.


2. On or before the calling of the cause for argument each party shall file with theclerk his printed points and authorities, together with a brief statement of such of the facts asare necessary to explain the points made. 3. The oral argument may, in the discretion of the court, be limited to the printedpoints and authorities filed, and a failure by either party to file points and authorities underthe provisions of the rule, shall be deemed a waiver by such party of the right to orally arguethe cause. 4. No more than two counsel on a side will be heard upon the oral argument, exceptby special permission of the court, but each defendant who has appeared separately in thecourt below, may be heard through his own counsel. 5. At the argument, the court may order printed briefs to be filed by counsel for therespective parties within such time as may then be fixed. 6. In criminal cases it is left optional with counsel either to file written or printedpoints and authorities or briefs.

rule xii.

In all cases where a paper or document is required by these rules to be printed, it shallbe printed upon similar paper, and in the same style and form (except the numbering of thefolios in the margin) as is prescribed for the printing of transcripts.

rule xiii. Besides the original, there shall be filed ten copies of the transcript, briefs, and pointsand authorities, which copies shall be distributed by the clerk.

rule xiv.

All opinions delivered by the court, after having been finally corrected, shall berecorded by the clerk.

rule xv.

All motions for a rehearing shall be, upon petition in writing, and presented withinfifteen days after the final judgment is rendered, or order made by the court, and publicationof its opinion and decision, and no argument will be heard thereon. No remittitur or mandateto the court below shall be issued until the expiration of the ten days herein provided, anddecisions upon the petition, except on special order.


rule xvi.

Where a judgment is reversed or modified, a certified copy of the opinion in the caseshall be transmitted, with the remittitur, to the court below.

rule xvii.

No paper shall be taken from the court room or clerk's office, except by order of thecourt, or of one of the justices. No order will be made for leave to withdraw a transcript forexamination, except upon written consent to be filed with the clerk.

rule xviii.

No writ of error or certiorari shall be issued, except upon order of the court, uponpetition, showing a proper case for issuing the same.

rule xix.

Where a writ of error is issued, upon filing the same and a sufficient bond orundertaking with the clerk of the court below, and upon giving notice thereof to the oppositeparty or his attorney, and to the sheriff, it shall operate as a supersedeas. The bond orundertaking shall be substantially the same as required in cases on appeal.

rule xx.

The writ of error shall be returnable within thirty days, unless otherwise speciallydirected.

rule xxi.

The rules and practice of this court respecting appeals shall apply, so far as the samemay be applicable, to proceedings upon a writ of error.

rule xxii.

The writ shall not be allowed after the lapse of one year from the date of thejudgment, order, or decree which is sought to be reviewed, except under specialcircumstances.


rule xxiii.

Appeals from orders granting or denying a change of venue, or any other interlocutoryorder made before trial, will be heard at any regular or adjourned term, upon three days'notice being given by either appellant or respondent, when the parties live within twentymiles of Carson. When the party served resides more than twenty miles from Carson, anadditional day's notice will be required for each fifty miles, or fraction of fifty miles, fromCarson.

rule xxiv.

In all cases where notice of a motion is necessary, unless for good cause shown, thetime is shortened by an order of one of the justices, the notice shall be five days.

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19 Nev. 21, 21 (1885) Rules of the District Court

RULES

of the

District Court of the State of Nevada

____________

rule i.

The hour of 10 o'clock a.m. is fixed for the opening of court, unless otherwiseordered.

rule ii.

The clerk of each county of the state shall make three calendars for the district court

of his county, upon one of which he shall place all civil causes at issue upon questions of factas soon as the issue is made; upon another of which he shall place all civil causes at issueupon a question of law, and all motions of every nature, except ex parte motions, as soon asthe issue is made, or as soon as notice of motion is filed; and upon the third of which he shallplace all criminal business of every kind. The names of the attorneys of the respective partiesshall be appropriately placed on such calendars. The clerk shall, on every Saturday, forwardto the presiding judge of the court, a full statement of the condition of the business of thecourt as shown by the calendars.

rule iii.

The judge who is to hold court in any county shall give the clerk of such county noticeof the time when court will sit. The clerk shall, immediately upon receiving such notice, give


all the attorneys having business in said court, as shown by the calendar, and also all attorneyspracticing in his county, notice in writing of the time when court will be held. He shall alsogive notice of the time of holding court, in some newspaper printed and published at thecounty seat of his county, provided it can be done without expense.

rule iv.

Upon the meeting of the court, as provided in Rule III, the law calendar will first becalled and disposed of. The trial calendar will then be called, and causes at issue uponquestions of fact disposed of. When the calendar is called the causes will be set for a timecertain. When the calendar is called the causes will be set for a time certain. Parties areexpected to be ready to try their causes, whether at issue upon questions of law or fact, whenthe calendar is called, and in the order in which they are set. Parties may, prior to the meetingof the court, fix the day of trial by stipulation in writing, subject to the approval of the courtor judge. The daily business of the court will be disposed of in the following order: FirstThe minutes of the previous day's business shall be read, approved, and signedby the judge. SecondEx parte motions. ThirdProbate business, when there is no contest. FourthIssues arising subsequent to the calling of the calendar shall be set. FifthTrial of causes, as previously set. SixthQuestions of law.

rule v.

On each Saturday of any session of court held by any district judge, law questions

shall take precedence, and be heard without previous setting or notice.

rule vi.

When any motion or proceeding has been noticed, or set for a time certain, and for anycause is not heard at the time appointed, the hearing of the same shall be continued withoutfurther order, and the motion or proceeding shall be placed upon the calendar and disposed ofas other issues thereon.

rule vii.

Any issue of law, and any motion of any nature or kind,


may be heard orally by stipulation of the parties, at any time or place agreed on in the state,with the consent of the judge first having jurisdiction of the cause, or such questions of law,or motions, as the case may be, may be submitted on briefs to such judge, with his consent,and the decision may be filed thereafter at any time, which decision shall fix the time whenthe decision of the court is to be complied with; and in all such cases the party who isrequired to act by such decision, shall receive due written notice thereof from the oppositeparty. Time for complying with such decision shall commence to run from the time whenservice is made in the manner required by the statutes for service of pleadings in a case;provided, that when the parties are present by their respective attorneys when the decision isrendered, no notice shall be required.

rule viii.

When a demurrer is interposed in any case, if it be made to appear to the satisfactionof the court that such demurrer has not been interposed in good faith, but merely for delay,the defendant shall only answer upon such terms as the court may prescribe, and upon thefiling of the answer, the case shall be set down for trial for as early a day as the business ofthe court will permit. In cases other than those above mentioned, ten days shall be allowed toamend or plead, as the case may be, unless the court by its order fix a different time.

rule ix.

All documents and pleadings, intended for the pleadings of this court, shall be on

paper known as legal cap, of good quality, and without interlineations, unless notedthereon by the clerk at the time of filing. No original pleading or paper shall be amended bymaking erasures or interlineations thereon, or by attaching slips thereto, except by leave ofcourt. Copies of all papers issued from this court, or to be used therein, which are required bylaw, or rule of court to be served, shall be upon legal cap paper in a legible hand, and indefault of so doing, the party failing shall be compelled to renew the paper, or be precludedfrom using the original, as the court may deem proper.

rule x.

Motions in all cases, except ex parte motions, motions for


continuance, and motions to amend pleadings pending a trial, shall be noticed at least fivedays before the day specified for a hearing, and a copy of all papers to be used by the movingparty, except pleadings or other records of the court, shall be served with the notice ofmotion. The notice of motion shall be in writing, and shall specify the papers to be used andthe names of witnesses to be examined by the moving party, and the grounds upon which themotion is made; provided, that the court may, upon good cause shown, shorten or enlarge thetime for hearing. For a failure to comply with this rule the motion shall be denied.

rule xi.

Upon reading and filing the notice of motion, with due proof of service of the same,and of the papers mentioned therein, if no one appears to oppose the motion, the movingparty shall be entitled to have the motion decided. Upon the hearing, the affidavits to be usedby either party shall be endorsed and filed before the affidavits shall be used. The manner ofmaking motions shall be as follows: FirstThe moving party shall read the moving papers, or state the contents thereof,or introduce his oral evidence. SecondThe opposing party shall then read or state the contents of his opposingpapers, or introduce his oral evidence. ThirdThe opposing party may then read his rebutting papers, or introduce oralevidence, if admissible under the rules of practice in law or equity. The counsel for themoving party shall make his argument, to be followed by the counsel of the opposing party,and the counsel for the moving party may reply.

rule xii.

All motions for the continuance of causes shall be made of affidavit; and, when madeon the ground of absence of witnesses, the affidavit shall state:

FirstThe names of the absent witnesses, and their present residence or abidingplace, if known. SecondWhat diligence has been used to procure their attendance, or depositions,and the causes of a failure to procure the same. ThirdWhat the affiant has been informed and believes will be the testimony of eachof such absent witnesses, and whether


or not the same facts can be proven by other witnesses than parties to the suit, whoseattendance or depositions might have been obtained. FourthAt what time the applicant first learned that the attendance or depositions ofsuch absent witnesses could not be obtained. FifthThat the application is made in good faith, and not for delay merely. And nocontinuance will be granted unless the affidavit upon which it is applied for conforms to thisrule, except where the continuance is applied for in a mining case, upon the special groundprovided by statute. A copy of the affidavits upon which a motion for a continuance is made,shall be served upon the opposing party as soon as practicable after the cause for thecontinuance shall be known to the moving party. Counter affidavits may be used inopposition to the motion. No amendments or additions to affidavits for continuance will beallowed after they have been read, and no argument will be heard on motions for acontinuance, except such as relate to the sufficiency of the affidavits read on the hearing.

rule xiii.

If the attorney or counsel of either party offers himself as a witness on behalf of hisclient, and gives evidence on the merits of the cause, he shall not argue the cause, or sum it upto the jury, without the permission of the court.

rule xiv.

No attorney will be received as surety on any bond or recognizance to be filed orentered into in any action or proceeding in this court.

rule xv.

A party making application for a commission to take the deposition of a witness out ofthe state, shall serve, with the notice of such application, a copy of the direct interrogatories;and, at least one day before the hearing of the application, the adverse party shall serve uponthe moving party a copy of the cross-interrogatories. The direct and cross-interrogatories shallbe settled at the time of hearing the application, unless the court or judge otherwise direct;provided, the parties may agree to the interrogatories without submission to the court or


judge, or may stipulate that the depositions may be taken without written interrogatories.

rule xvi.

When a deposition is received by the clerk, he shall endorse upon the envelope thetime of receiving it, and immediately file it with the papers of the case in which it was taken;and at any time afterward, upon the application of any attorney in the case, he shall open thesame, and endorse upon the envelope the time of opening, and the name of the attorney uponwhose application it was opened, and shall then file the deposition.

rule xvii.

In cases where the right to amend any pleading is not of course, the party desiring toamend shall serve, with the notice of application to amend, an engrossed copy of thepleading, with the amendment incorporated therein, or a copy of the proposed amendment,referring to the page and line of the pleading where it is desired that the amendment beinserted, and, if the pleading were verified, shall verify such amended pleading, or suchproposed amendment, before the application shall be heard.

rule xviii.

The party moving to strike out any part of a pleading shall, in the notice of motion,distinctly specify the part asked to be stricken out.

rule xix.

No paper or record belonging to the files of the court shall be taken from the officeand custody of the clerk, except upon the special order of the judge in writing, specifying therecord or paper, and limiting the time the same may be retained; but in no case shall originaldocumentary evidence be taken from the office of the clerk.

rule xx.

If the undertaking required before issuing a writ of attachment is shown to thesatisfaction of the court or judge, upon proper notice, to be insufficient to secure the partywhose


property is attached, against damages, the court or judge may require an additionalundertaking to be filed, and if not filed, the attachment shall be dissolved. No attachmentshall be dissolved by reason of any defect in the attachment papers that can be amendedwithout affecting the substantial rights of the parties.

rule xxi.

Upon a reference to try all the issues, both of fact and law, and to report a judgmentthereon, the referee shall set forth in his report the facts found and conclusions of lawseparately, and shall, upon the day when his report is filed, serve upon the respective parties,or their attorneys, notice that such report is filed; and the trial of the cause for the purpose ofnotice and motion for new trial shall not be deemed concluded until such notice is served.

rule xxii.

When an appeal is perfected and a proper undertaking to stay proceedings is filed, itshall stay all further proceedings in the court below, upon the judgment or order appealedfrom, or upon the matter embraced therein; and if an execution or other order shall have beenissued to the sheriff, coroner, or elizor, he shall return the same, with the cause therefor, andhis proceedings thereunder, endorsed thereon upon receiving from the clerk a certificate,under the seal of the court, of the perfecting of the appeal. The certificate shall state the titleof the action, the filing and service of the notice of appeal and the date of such filing andservice, together with the filing and approval of the undertaking staying all proceedings, andthe date of such filing and approval; and such certificate shall operate as a supersedeas of theexecution, or a vacation of the order.

rule xxiii.

If, in an action to foreclose a mortgage, the defendant fails to answer within the timeallowed for that purpose, or the right of plaintiff as stated in the complaint is admitted by theanswer, the court may make an order referring it to some suitable person as referee, tocompute the amount due to the plaintiff, and to such of the defendants as are priorincumbrancers of the mortgaged premises, and to examine and report


whether the mortgaged premises can be sold in parcels, if the whole amount secured by themortgage has not become due. If any of the defendants have been served by publication, theorder of reference shall also direct the referee to take proof of the facts and circumstancesstated in the complaint, and to examine the plaintiff, or his agent, on oath, as to any paymentswhich have been made, and to compute the amount due on the mortgage, preparatory to theapplication for decree of foreclosure.

rule xxiv.

When an order shall be made enlarging the time to file a statement or affidavits onmotion for new trial, the adverse party shall have the same number of days to proposeamendments or file counter affidavits as was allowed by such order to file such statement oraffidavits.

rules xxv.

When an motion for a new trial is made in a cause tried before a referee, the statementshall be settled by the referee.

rule xxvi.

No stay of execution upon motion for a new trial shall be granted or allowed, norexecution or other proceeding be stayed in any case, except upon the giving of a good andsufficient undertaking, in the manner and form as other undertakings are given, to beapproved by the judge, with at least two sureties, for the payment of the judgment or debt, orperformance of the act directed by the judgment or order, in such amount as may be fixed bythe judge. An order to stay execution, or other proceedings in an action, shall be of no effectuntil a copy of notice thereof is served upon the opposite party, or his attorney, and any otherparty or officer whose proceedings are to be stayed thereby, unless said attorney or officer bepresent at the time of making such order. And if an execution or other order shall have beenissued to the sheriff, coroner, elizor, or other person, he shall return the same with the causetherefor and his proceedings thereunder endorsed thereon, upon receiving from the clerk acertificate, under the seal of the court, of the granting of the stay of execution or otherproceedings. The certificate shall state the title of the action,


the order staying the execution or other proceedings, and the date of such order, together withthe filing and approval of the undertaking above required, and the date of such filing andapproval; and such certificate shall operate as a supersedeas of the execution or a vacation ofthe order.

rule xxvii.

No agreement or stipulation between the parties in a cause, or their attorneys, inrespect to the proceedings therein, will be regarded, unless the same shall be entered in theminutes in the form of an order, by consent, or unless the same shall be in writing, subscribedby the party against whom the same shall be alleged, or by his attorney or counsel.

rule xxviii

No juror shall be excused except in open court; and when a juror is excused, the clerkshall immediately withdraw his name from the jury box for the period for which he has beenexcused.

rule xxix.

No person shall be appointed guardian ad litem, either upon the application of theinfant or otherwise, unless he be the general guardian of the infant, or an attorney or otherofficer of this court, or is fully competent to understand and protect the rights of the infant;has no interest adverse to that of the infant, and is not connected in business with the attorneyor counsel of the adverse party, nor unless he be of sufficient pecuniary ability to answer tothe infant for any damage which may be sustained for his negligence or misconduct indefense of the suit.

rule xxx.

Every attorney, or officer of this court, shall act as guardian of an infant defendant,whenever appointed for that purpose by an order of the court. He shall examine into thecircumstances of the case, so far as to enable him to make the proper defense, and shall beentitled to such compensation as the court may deem reasonable.

rule xxxi.

No guardian ad litem shall receive any money or property, or


proceeds of sale of real estate, until he has given security by bond, in double the amount ofsuch property or money, with two sureties, who shall justify as in other cases, approved by thejudge and filed by the clerk, conditioned for the faithful discharge of his trust.

rule xxxii.

The counsel obtaining any order, judgment or decree, shall furnish the form of thesame to the clerk.

rule xxxiii.

The sheriff shall file with the clerk the affidavit and order on which any arrest is

made, within five days after such arrest is made.

rule xxxiv.

The party against whom judgment is entered shall have two days after service of acopy of the cost bill in which to move to retax costs.

rule xxxv.

In actions to enforce mechanics' liens, other lienholders coming in under the noticepublished by the plaintiff, shall do so by filing with the clerk and serving on the plaintiff, andalso on the defendant, if he be within the state, or be represented by counsel, a writtenstatement of the facts constituting their liens, together with the dates and amounts thereof,and the plaintiff and other parties adversely interested shall be allowed five days to answersuch statements.

rule xxxvi.

No motion once heard and disposed of shall be renewed in the same cause, nor shallthe same matters therein embraced be reheard, unless by leave of the court granted uponmotion therefor, after notice of such motion to the adverse parties.

rule xxxvii.

When an appeal from the justices' court to this court has been perfected, and thepapers are not filed in this court within fifteen days from the day of filing the undertaking onappeal, this court, on the production of a certificate from the


justice to the effect that an appeal has been taken and perfected, but the papers have not beenordered up, or the proper costs not paid, or upon showing that any other necessary steps havenot been taken, shall dismiss the appeal at the cost of the appellant.

rule xxxviii.

The plaintiff shall cause the papers in a case certified to this court under theprovisions of the 539th section of the Practice Act, to be filed in the office of the clerk of thiscourt within fifteen days from the day upon which the order of the justice is made directingthe transfer of the case. If the papers are not so filed the case shall be dismissed, upon filing acertificate from the justice to the effect that he has certified the papers as required by saidsection, but that the same have not been ordered up, or the proper costs paid; or if it shall

appear that such papers are not filed in this court by reason of the neglect of the plaintiff topay the fees of the clerk for filing the same.

rule xxxix.

During the time the court remains in session it shall be the duty of the sheriff inattendance to prevent all persons from coming within the bar, except officers of the court,attorneys and parties to, or jurors or witnesses in, the cause or matter being tried or heard. Thesheriff shall also keep the passage way to the bar clear for ingress or egress.

rule xxxx.

Before the argument begins, counsel shall prepare their instructions, submit them tothe inspection of the opposite party, and then deliver them to the court. The court will hearobjections to instructions, and will, when practicable, settle the instructions in advance of theargument, and permit counsel to use them when addressing the jury.

rule xxxxi.

When any district judge shall have entered upon the trial or hearing of any cause orproceeding, demurrer or motion, or made any ruling, order or decision therein, no other judgeshall do any act or thing in or about said cause, proceeding, demurrer or motion, unless uponthe written request of the


judge who shall have first entered upon the trial or hearing of said cause, proceeding,demurrer or motion.

rule xxxxii.

When an application or petition for any writ, rule or order shall have been made to adistrict judge and is pending, or has been denied by such judge, the same application ormotion shall not again be made to the same or another district judge, unless upon the consentin writing of the judge to whom the application or motion was first made.

rule xxxxiii.

No judge, except the judge having charge of the cause or proceeding, shall grantfurther time to plead, move, or do any act or thing required to be done in any cause orproceeding, unless it be shown by affidavit that such judge is absent from the state, or fromsome other cause is unable to act.

rule xxxxiv.

When a cause shall have been certified by the State Land Register to the district courtfor trial, it shall be the duty of the first applicant, within thirty days after receiving notice ofsuch certification, to file and serve upon the adverse party a complaint setting forth the factsupon which he claims to be entitled to the land. The adverse party shall, within ten days afterservice of the complaint, file and serve his answer, in which answer he shall set forth the factsupon which he relies.

rule xxxxv.

No judgment, order, or other judicial act or proceeding, shall be vacated, amended,modified or corrected by the court or judge rendering, making, or ordering the same, unlessthe party desiring such vacation, amendment, modification or correction shall give notice tothe adverse party of a motion therefor, within six months after such judgment was rendered,order made, or action or proceeding taken.


To the Honorable Judges of the District Court of the State of Nevada:

Your Committee appointed to prepare Rules of Court, submit for your approval andadoption the foregoing rules, forty-five in number. TRENMOR COFFIN, ROBT. M. CLARKE, R. H. LINDSAY, W. E. F. DEAL, H. F. BARTINE, Committee.

attest: James D. Torreyson, Secretary.

____________

It is hereby ordered that the foregoing rules, forty-five in number, be and they arehereby adopted as the Rules of Practice of the District Court of the State of Nevada, and thatthey be in force in each county thirty days after the date of their filing in the clerk's office ofsuch counties. RICHARD RISING, Presiding DistrictJudge. R. R. BIGELOW, A. L. FITZGERALD,

District Judges.

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State of Nevada, ss.I, Chas. F. Bicknell, Clerk of the Supreme Court of said State ofNevada, do hereby certify that the foregoing rules were made and adopted by the SupremeCourt of the State of Nevada for the government of the District Court of the State of Nevada,on the fourth day of April, A. D. 1887, and ordered to be published in pamphlet form by theSuperintendent of State Printing. In testimony whereof, I have hereunto set my hand and the seal of said Supreme Courtthis fourth day of April, A. D. 1887.

[Seal.] CHAS. F. BICKNELL, Clerk.

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19 Nev. 34, 34 (1885)

REPORTS OF CASES

DETERMINED IN

THE SUPREME COURT

OF THE

STATE OF NEVADA,

JANUARY TERM, 1885.____________

19 Nev. 34, 34 (1885) White Pine County v. Herrick

[No. 1191.]

THE COUNTY OF WHITE PINE, Appellant, v. H. S. HERRICK, et al., Respondents.

PleadingsCounty Treasurer's BondConditions Precedent.In an action brought by a county against thesureties on an official bond of the county treasurer, to recover an amount of money for which thetreasurer was in default, it is not necessary, in order to entitle the county to recover, that the complaint

should specifically aver a performance of the several acts required to be performed by the countycommissioners; but an averment that the county commissioners complied with all the requirements andconditions of said bond, and the requirements of all acts of the legislature pertaining to the official bondsof the county officers is sufficient. (Civil Pr. Act, Sec. 60.)


Appeal from the District Court of the Sixth Judicial District, White Pine County.

The facts are stated in the opinion.

Lansing & Mitchell, for Appellant:

I. The complaint contains a statement of the facts constituting the cause of action inordinary and concise language, and is in all respects sufficient. (1 Comp. L. 39; 2 Comp. L.2917, 2921, 2980; Mendocino Co. v. Morris, 32 Cal. 145.) II. The specifications or particular reasons named in the first ground of demurrer are notconditions precedent; neither would they constitute matters of defense. (TuolumneRedemption Co. v. Sedgwick, 15 Cal. 515; Smith v. Morse, 2 Cal. 548, 564; Blanchard v.Russell, 13 Mass. 16; King v. Dedham Bk., 15 Mass. 446; Smith's Com., Sec. 759; Thorne v.San Francisco, 4 Cal. 127.)

Baker & Wines, for Respondents:

I. The amended complaint does not state facts sufficient to constitute a cause of actionagainst respondents. The complaint should have alleged every fact which, if denied, appellantwould be required to establish. (Jerome v. Stebbins, 14 Cal. 457; Green v. Palmer, 15 Cal.413; Maynard v. F. F. Ins. Co., 34 Cal. 48.) II. The act of the legislature of the State of Nevada entitled, An act for the relief ofsureties on official bonds, approved February 28, 1881, is strictly within the authority of thelaw-making power of the state, and is constitutional. It simply imposed an additional dutyupon boards of county commissioners. It operated in presenti, and imposed as a penalty forthe failure to perform such additional duty, that no action could be maintained upon theofficial bonds mentioned in the act. The act did not take away or abrogate the right tomaintain a suit upon the bond. (Walter v. Bacon, 8 Mass, 468; Cooley Con. Lim. 87, 172,173, 174, 286, 287, 288, 289; Wolfkiel v. Mason, 16 Abb. Pr. 221; Stocking v. Hunt, 3 Denio,274; Pierce v. Mills, 21 Ind. 27; Whitney v. Blanchard, 2 Gray, 208; Maryland v. B. & O. R.R., 3 How. 534; Sedg. on Con. L. 618, 625, 633, 634, 658; King v. Nichols, 16 Ohio St. 80;


Dawson v. State, 38 Ohio St. 1; State v. Hendrickson, 15 Md. 205.)

By the Court, Belknap, C. J.:

This action was brought against the sureties upon the official bond of George P.McConkey, as county treasurer of White Pine county, to recover a sum of money for whichhe was in default. Defendants demurred to the complaint upon the ground that it did not statefacts sufficient to constitute a cause of action, and under this head assigned the failure of theplaintiff to set forth a performance of the duties enjoined upon the county commissioners bythe act of the legislature approved February 20, 1881, entitled An act for the relief of suretieson official bonds. (Stat. 1881, 91.) This act requires the boards of county commissioners tokeep each official bond given by an officer of their county, with at least two good andsufficient sureties for its whole penal sum; to require a monthly report of receipts anddisbursements from each financial officer of their county; to view the public moneys in thecustody of the county treasurer at least once in each year; and to make complete annualsettlements with such officer in the month of September of each year. If the countycommissioners fail in the performance of any of these duties, the law releases and dischargesthe sureties upon the official bond of the officer from liability, in so far as the county in whichhe held office is concerned. It is argued that these provisions of the law are conditionsprecedent, and that the complaint must show that they have been performed. The complaintdoes not specifically aver a performance of the several acts required to be performed by thecounty commissioners, but alleges that the county commissioners of said county of WhitePine complied with all the requirements and conditions imposed upon said commissioners bythe terms of said bond, and the requirements of all acts of the legislature of the state ofNevada pertaining to the duty of county commissioners, relating to county officers and to theofficial bonds of county officers; * * * and then proceeds to state certain matters for thepurpose of excusing the annual September settlement, not questioned upon this appeal. Section 60 of the civil practice act furnishes an easy mode for


pleading the performance of conditions precedent in a contract. It provides: In pleading theperformance of conditions precedent in a contract, it shall not be necessary to state the factsshowing such performance, but it may be stated generally that the party duly performed all theconditions on his part. * * * The pleader has not employed the precise language of section 60, but he has used languageequivalent to it, and a substantial compliance with the section is all that is necessary.Respondent contends that this case is not within the provisions of the practice act, and thatappellant should have alleged in detail a performance of the various duties required of thecounty commissioners by the act of 1881, and refers to decisions as supporting this view. Inthe cases to which we have been referred (People v. Jackson, 24 Cal. 630; Himmelman v.Danos, 35 Cal. 441; and Dye v. Dye, 11 Cal. 163), the right of action depended upon astatute, and it was essential to the statement of a cause of action that the facts bringing thecase within the statute should be averred. But the present action is brought upon a contract

between the defendants and the state. The contract has been changed by the state through itslegislature consenting that, in so far as counties are concerned, no recovery shall be had uponundertakings of the nature of the one sued upon, unless certain acts be performed by thecounty through its county commissioners. These new conditions are ingrafted upon theundertaking, and if they are conditions precedent they are well pleaded. It is not necessary upon this appeal to determine whether the provisions of the law of 1881are conditions precedent, or whether the statute is applicable to undertakings made before itspassage. These questions were made by demurrer to the original complaint; but the plaintiff,instead of adhering to his pleading, amended it so as to obviate them, and leave them out ofthe case. We are of opinion that the amended complaint states a good cause of action.Judgment reversed and cause remanded.

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19 Nev. 38, 38 (1885) Comaita v. Kyle

[No. 1193.]

JOHN COMAITA, Respondent, v. MATTHEW KYLE,Appellant.

Sale and Delivery of Personal Property.In the sale of a wood and coal ranch with the wood chopped, and coalburned, thereon, where there are no words or acts of delivery, and no possession taken of the personalproperty except the receipt of a bill of sale: Held, that a delivery of the bill of sale was not even asymbolical delivery of the personal property described therein.

IdemDischarge of WorkmenDeclarations of Vendor.The vendor's discharge of his workmen anddeparture from the ranch, coupled with the declaration that he left the vendee in possession of everything,was not sufficient to constitute a delivery of the wood and coal.

IdemFraud Against Creditors.Every sale by a vendor of personal property in his possession, or under hiscontrol, unless the same is accompanied by an immediate delivery and continued change of possession is,under the statutes of this state, conclusive evidence of fraud as against the creditors of the vendor.

IdemConstructive Possession of Ranch.The bill of sale did not convey the vendor's title to the ranch, and, asthere was no proof that the ranch was inclosed, or had any established boundaries, the vendee did nothave any constructive possession of any portion thereof.

IdemWhen Nonsuit Should be Granted.Upon a review of all the facts: Held, that the vendee had neitheractual nor constructive possession of any part of the ranch (except a cabin thereon), or of the wood andcoal, and that the motion for a nonsuit should have been granted.

Appeal from the District Court of the Sixth Judicial District, Eureka County.

The facts are stated in the opinion.

H. K. Mitchell, for Appellant:

Baker & Wines, for Respondent:

By the Court, Leonard, J:

This is an action to recover damages for the alleged conversion of personal property,to-wit, about 15,000 bushels of charcoal and 450 cords of wood. The followinguncontradicted facts were proven by plaintiff: On the fifteenth of November, 1882, oneLocatelli was indebted to plaintiff in the sum of $2,120. On the evening of said day,defendant, the sheriff of


Eureka county, came to plaintiff's house and stopped all night. After making several inquiries,plaintiff concluded that defendant was on his way to Locatelli's ranch for the purpose ofattaching the latter's property. Plaintiff waited until defendant had retired for the night, whenhe started for Locatelli's ranch. He arrived there about 7 o'clock in the morning. He took withhim a man by the name of Allison, to assist him in settling with Locatelli. Plaintiff informedLocatelli that the sheriff was then on his way to attach him, and proposed to pay him $100 incoin, and satisfy his indebtedness for work done in burning coal and cutting wood, and cancelLocatelli's indebtedness to plaintiff, if Locatelli would sell him the ranch and the wood, andcoal thereon. Locatelli accepted the proposition, and thereupon he executed to plaintiff thefollowing instrument in writing:

$2,120. Antelope Valley, November 16, 1882. This is to certify that for and in consideration of the sum of two thousand and onehundred and twenty dollars, the receipt whereof is hereby acknowledged, I have this day sold,and do by these presents sell and deliver, to John Comaita a certain wood and coal ranch onwhich I now reside, situate west of Antelope Valley, and immediately west of AntelopeValley, and immediately west of the old Lamaroux ranch, together with the wood chopped,and piled or pitted, and all the coal burned, with two horses and one wagon, to have and tohold the same for himself and his heirs forever. Witness: Giacomo Locatelli.

I. J. Wilson, Joel Allison.

After executing the above instrument, Locatelli and plaintiff were informed that the formermust discharge his hired men, go away from the ranch, and leave plaintiff in charge andpossession of everything. This was done. Locatelli remained away about ten days. Before orafter the execution and delivery of the certificate or bill of sale, Locatelli did nothing relatingto the wood or coal other than as above stated. There were no words or acts of delivery ofeither wood or coal. Plaintiff did nothing to take possession of either, except to receive thebill of sale. The coal was in six or seven piles, some dis


tance from each other and from the cabin where the bill of sale was executed and delivered toplaintiff. Plaintiff did not go to the stacks of coal or piles of wood, and had never before thatmorning been on the ranch or seen the property. Nearly all the wood and coal were in thecanon near the cabin, and nearly all in plain sight of the cabin. In about an hour after thepurchase had been made, and Locatelli had left the cabin and ranch, defendant arrived, andlevied his writ of attachment upon the ranch, wood, coal, etc., in question, in the case ofTognini v. Locatelli. At that time plaintiff had done nothing in relation to the property, exceptto receive the bill of sale. Before the levy, plaintiff showed defendant the bill of sale as thesource of his claim and title, and notified him that he had bought all the property describedtherein from Locatelli, and had paid for it. Immediately after the levy, plaintiff left the ranch,and has never returned. Plaintiff introduced no proof as to the extent of the ranch, or that itwas inclosed. The bill of sale was executed and delivered to plaintiff in the cabin whichbelonged to Locatelli, and which was occupied by him and his men when working on theranch. It is not disclosed whether or not the land is a portion of the public domain. Upon the above fact shown by plaintiff, defendant moved for a nonsuit upon the followinggrounds: First. That the uncontroverted case made by plaintiff constituted a fraud in law. Second. That from the testimony it appears that plaintiff claims the personal propertydescribed in the complaint by virtue of a pretended purchase of real property upon which thepersonality is situated, and that the instrument in writing under which he claims the realproperty is insufficient to convey any right or possession to the real property, and is void. Third. That there is not any evidence that the ranch was inclosed by any actual inclosure,or anything equivalent thereto, to show the extent of plaintiff's dominion or control of thesame, as claimed by him, or otherwise. Fourth. That the testimony shows that plaintiff relies upon a constructive possession ofthe land where the coal was pitted and the wood piled to make out his possession of thepersonal property, in which case he can only recover by the introduction, as evidence, of sucha deed as will vest in him a legal seizin and possession, and that the written instrument


introduced did not convey, and does not convey, to him any right of possession; the samebeing in law a simple parol conveyance of land, and insufficient to convey personal propertythereon as against creditors. Fifth. That plaintiff has not shown any delivery of the personal property, or any change ofthe possession thereof. Did the court err in denying defendant's motion? Was there sufficient proof of delivery andchange of possession of the wood and coal to entitle plaintiff to the finding of a jury upon

those questions? There were no words or acts of delivery of the personal property, andplaintiff did not do anything to take possession of the wood and coal, except to receive thebill of sale. A delivery of the bill of sale was not even a symbolical delivery of the personalproperty described therein. (Carter v. Willard, 19 Pick. 12; Dempsey v. Gardner, 127 Mass.382.) Certainly, Locatelli's discharge of his workmen did not constitute a delivery or changeof possession of the wood and coal; nor did Locatelli's departure have that effect, althoughcoupled with the general declaration that he left plaintiff in possession of everything.Undoubtedly, plaintiff might have taken possession of the personal property in some propermanner before the levy, and, had he done so, there would have been a complete delivery andchange of possession, as was held by this court in Gaudette v. Travis, 11 Nev. 157. But themere departure of the vendor, together with the execution and delivery of the bill of sale, didnot have that effect. Those acts would not have constituted a sufficient delivery and change ofpossession if Locatelli had sold the personal property only. In that case, considering thecharacter of the property, plaintiff would not have been obliged to remove it, but it could havebeen delivered, and the pits of coal and piles of wood could have been marked in plaintiff'sname. Indeed, counsel for respondent do not claim that prior to the levy there was a sufficientdelivery and change of possession of the wood and coal, independently of the sale, surrenderand taking possession, of the ranch. It is said, however, that as between the vendee ofpersonal property and an attaching creditor of the vendor, the former has a reasonable time inwhich to take possession, and that whether plaintiff had such reasonable time, prior to theattachment, was a question for the jury to decide.


The statute declares that every sale made by a vendor of goods and chattels in hispossession or under his control, unless the same be accompanied by an immediate deliveryand continued change of possession of things sold, shall be conclusive evidence of fraud asagainst the creditors of the vendor. In Clute v. Steele, 6 Nev. 335, this court decided that thestatute is satisfied if there is a delivery at any time before the rights of creditors accrue, byattachment or otherwise. Undoubtedly, the acts that constitute a delivery and change ofpossession vary in different cases, and depend upon the character and quantity of the propertysold. But in every case, when property is in the vendor's possession or under his control, asagainst his creditors, there must be a valid delivery before the write of attachment is levied. Inthis case there was no conflict of evidence. It all showed that there was no delivery or changeof possession of the wood or coal, independently of the sale, surrender, and taking possession,of the ranch. It was, therefore, the duty of the court to grant a nonsuit, unless plaintiff'spurchase and possession of the ranch constituted a sufficient possession of the property indispute. It is conceded that the bill of sale did not convey Locatelli's title to the ranch. There was noproof that the ranch was inclosed, or had any established boundaries. Plaintiff, then, did nothave constructive possession of any portion thereof. (Cannon v. Union Lumber Co., 38 Cal.674; Wolfskill v. Malajowich, 39 Cal. 281; Eureka M. Co. v. Way, 11 Nev. 182.) He hadactual possession of the cabin only. Since there was no delivery of the wood and coal, actualor symbolical, should we assume that the legal title to the ranch was in Locatelli, nothing less

than a conveyance by deed of the real estate, with surrender of possession thereof to plaintiff,would have given the latter possession of the personal property thereon. (Sharon v. Shaw, 2Nev. 292; Stephenson v. Clark, 20 Vt. 627; Shumway v. Rutter, 8 Pick. 443.) Plaintiff hadneither actual nor constructive possession of any part of the ranch outside of the cabin, or ofthe wood and coal thereon, at the time of the levy, and the motion for nonsuit should havebeen granted. In view of the conclusions reached, we deem it unnecessary to point out the errorscontained in plaintiff's first and second instructions. The judgment and order appealed from are reversed, and the cause is remanded.

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19 Nev. 43, 43 (1885) State v. Boyd

[No. 1206.]

THE STATE OF NEVADA, ex rel. ATTORNEY GENERAL,Relator, v. D. B. BOYD, Respondent.

Classification of CountiesUnconstitutional ProvisionsStatute 1883, 73.The act fixing the salaries ofcounty officers in certain counties (Stat. 1883, 73), is illusory, because some of its provisions areapplicable only to Washoe county and others only to Esmeralda county, and the basis of the classificationas made in section 10 is unconstitutional, because in its practical operation it is applicable only to twocounties and can never affect any other county.

IdemUniformity of County Governments.In order to observe the uniformity required by article 4, sec. 25of the constitution, the classification of counties must be based upon reasonable and actualdifferences; the legislation must be appropriate to the classification, and embrace all within the class.

IdemOperation of the Law.The requirement that the system of county government shall be uniform, is notconsidered to impart universality to the operation of the law.

Quo Warranto to determine respondent's right to hold the office of county assessor ofWashoe county under the provisions of the act making the county treasurer of Washoe countyex officio the assessor. (Stat. 1883, 73.)

Clarke & King, for Relator:

J. F. Alexander, for Respondent:

By the Court, Belknap, C. J.:

Under the statute approved March 1, 1883, entitled An act fixing the salaries of countyofficers in certain counties in this state, and other matters relating thereto, (Stat. 1883, 73,)the county treasurer of Washoe county is made ex officio the assessor of the county. Thequestion presented for consideration is whether this provision is not unconstitutional.

It is claimed by relator that the provision is a violation of article 4, sec. 25, of theconstitution, which provides that the legislature shall establish a system of county andtownship government, which shall be uniform throughout the state. If this requirement canbe expressed more significantly in its application to this case, it means that the legislatureshall establish a uniform plan or method for the government of all

19 Nev. 43, 44 (1885) State v. Boyd

the counties of the state. It is a matter of general knowledge that legislatures are disposed toadopt, without particular scrutiny, measures proposed by the representatives of a particularlocality, affecting it only, and not the state at large. The object of the provision was to preventthis character of legislation in relation to county government. Any change in the generalsystem of county government may affect every county in the state. Among the advantagesattained by this requirement is that legislation upon this subject will receive the carefulattention of the members of the legislature in general, all proposed alterations will bescrutinized, and frequent and disturbing changes avoided. In obedience to the requirements of the constitution, the legislature of 1886, in dealingwith the general subject of county government, provided, among other things, for the electionof a county assessor and a county treasurer for each county in the state. This legislationremains in effect in each county, unless the act of 1883, exempting Washoe county from itsoperation, and consolidating these offices in the county, can be upheld. It is too clear forargument or controversy that a legislative act, arbitrarily establishing this plain difference inthe government of Washoe county from that of the other counties of the state, violates thesystem of uniformity contemplated by the constitution. No elaboration of the proposition canmake it plainer than the simple statement of the facts. The draughtsman of the statute, inapparent anticipation of its conflict with the constitution, inserted a clause which may havebeen intended to give it the appearance of a general law. It is as follows: Sec. 10. This act shall apply to all counties in this state in which there were cast morethan eleven hundred and fifty votes, and less than thirteen hundred and fifty votes, at thegeneral election held in eighteen hundred and eighty-two, in this state. Washoe and Esmeralda counties each cast about 1250 votes at the election of 1882, andthey are the only counties in the state falling within the classification attempted to be made. Itis apparent from an inspection of the statute that even this classification is illusory, becausesome of the provisions of the act are expressly applicable only to Washoe county and othersonly to Esmeralda county. The statute does not, therefore, apply uniformly, even within thelimited classification named. But

19 Nev. 43, 45 (1885) State v. Boyd

the basis of classification cannot be sustained. Abstractly considered, the language of thesection appears to contemplate a class of counties, but in its practical operation the law isapplicable to Washoe and Esmeralda counties only, and can never affect any other county.The legislature could, with equal right, designate these counties by name, as by the total votecast at a past election.

A statute somewhat similar in form and purpose was adopted by the legislature ofPennsylvania in the year 1878. It was intended to apply to Crawford county alone, but inorder to evade the provisions of the constitution it was made applicable to all counties ofmore than 60,000 inhabitants, in which there shall be any city, incorporated at the time of thepassage of this act, with a population exceeding eight thousand inhabitants, situated at adistance from the county seat of more than twenty-seven miles, by the usually traveled publicroad. The court held the classification improper, and said: This is classification run mad.Why not say all counties named Crawford, with a population exceeding sixty thousand, thatcontain a city named Titusville, with a population of over eight thousand, and situatedtwenty-seven miles from the county seat? or, all counties with a population of over sixtythousand, watered by a certain river, or bounded by a certain mountain? (Com. v. Patton, 88Pa. St. 260.) In the case of Zeigler v. Gaddis the supreme court of New Jersey had occasion to discussthis subject. The case involved the validity of a law giving the court of common pleas powerto grant licenses to keep inns and taverns in all incorporated cities having a population notless than four thousand, and not exceeding a population of six thousand, and in towns havinga population less than one thousand, in counties of this state, such counties having apopulation of not less than thirty-seven thousand, and not exceeding forty thousand, by thecensus of 1875. The court said: The uniformity that is thus sought (by the constitution) canonly be broken by classification of those bodies (political divisions of the state) that arefounded on substantial differences, such as are not illusory or fraudulent in their character.(44 N. J. L. 365.) It is said in Richards v. Hammer, 42 N. J. L. 440, that the marks ofdistinction on which the classification is founded must be such in the nature of things as will,in some reasonable degree at least, account

19 Nev. 43, 46 (1885) State v. Boyd

for and justify the restriction of the legislation.' In brief, there must be a true, substantialclassification, and not a hidden specification. As, in the case last cited, the descriptive words,in any city of this state where a board of assessment and revision of taxes now exists,' etc.,were found to be only applicable to the cities of Elizabeth and Newark, so in this case thepopulations given in the act of 1879, on comparison with the census, limit the description tothe counties of Warren and Hunterdon; and to the city of Lambertville, and the towns ofFrenchtown and Clinton, all in the county of Hunterdon. The circumlocution and ostensibleclassification set forth in the act is, therefore, demonstrated to be aimed at these three smallmunicipalities in the whole state. There is no suggestion of a distinction which will, in anyreasonable degree, account for and justify this restriction of legislation to these threelocalities, and the attempt to do, by indirection, what it is apparent could not be done by adirect and specific description of the purpose of the act, must fail * *. (See also Pavonia H.H. R. v. Jersey City, 45 N. J. L. 298; Rutgers v. New Brunswick, 42 N. J. L. 51; Anderson v.Trenton, Id. 486; Coutieri v. New Brunswick, 44 N. J. L. 58; McConihe v. McMurray, 17 Fla.269; State v. Stark, 18 Fla. 255; Lake v. Palmer, Id. 501.) In order to observe the uniformity required by the constitution, classification, if made,

must be based upon reasonable and actual differences; the legislation must be appropriate tothe classification, and embrace all within the class. We are of opinion that if a set of countiesbe fairly classified in conformity with the views herein expressed, a law embracing them allwould be unobjectionable as to uniformity. The requirement that the system of countygovernment shall be uniform, is not considered to import universality in the operation of thelaw. Such construction would defeat much useful legislation. The respondent claiming to hold the office of assessor by virtue of an unconstitutionalprovision, it is ordered that a judgment of ouster be entered against him, with costs.

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19 Nev. 47, 47 (1885) State v. Lindsey

[No. 1192.]

THE STATE OF NEVADA, Respondent, v. LIZZIELINDSEY, Appellant.

Murder by PoisonJury Must Fix the Degree.Where a defendant is convicted of the crime of murder, allegedto have been committed by the administering of poison, the jury may find the defendant guilty of murder inthe second degree for the reason that the statute leaves the question of degree to be settled by the jury.

IdemError in Favor of Appellant.If the jury fix the crime at murder in the second degree, in a case wherethe law and the facts make it murder in the first degree, it is an error in favor of the prisoner, of which thelaw will not take any cognizance, and of which the prisoner ought not to complain.

InstructionsNegligence of DefendantPoison Taken by MistakeDefendant Liable for theConsequences.Instructions to the effect that in the event of the defendant's preparing poison with suicidalintent and the deceased person having drank the same by mistake that the defendant would be liable forthe consequences, in the same connection stating correctly what the consequences would be, are noterroneous or misleading.

IdemInstructions Must be Considered as an Entirety.Held, that the instructions must be considered togetheras an entirety and that when so considered they state a correct principle of law.

Appeal from the District Court of the Second Judicial District, Ormsby County.

The instructions referred to in the opinion read as follows: The jury are instructed that if aperson exposes or places poison in such a position that it is likely to be unconsciously or nonnegligently taken by another person, either as food or drink, he or she, is liable for theconsequences. And you are further instructed that if a person in attempting to commit suicide,unlawfully kills another, such person is guilty of manslaughter. If you believe from theevidence in this case, beyond all reasonable doubt, that the defendant, Lizzie Lindsey, on the2d day of December, A. D. 1883, purchased a poisonous substance, to-wit: strychnine, withintent to take her own life; that she took it to the house where she and deceased were residing;that she put the strychnine so purchased by her into a glass of whisky; that she left said glasscontaining said strychnine and whisky upon a table in deceased's room which deceasedoccupied, and had the right to occupy, and in such

!"

"

"### $


exposed situation that it was likely to attract, and did attract, deceased's attention, and if youfurther believe from the evidence beyond all reasonable doubt that the deceased, RobertPitcher, rightfully went into the room in which the glass containing the whisky and strychninewas, and that the said Pitcher, without any fault on his part, took, drank and swallowed downthe contents of said glass, not knowing at the time he so drank it that it contained any poison,and that the drinking of the strychnine contained in said glass caused said Pitcher's death, andthat he died * * * from the effects of drinking said poison, then I instruct you that thedefendant is guilty of manslaughter and you should so find.

R. M. Clarke, for Appellant:

I. The indictment charges murder by means of poison, and no conviction can be had formurder committed by any other instrumentality other than that specified in the indictment. (1Comp. L. 1860; 2 Whar. Cr. L. sec. 1059 and note; Rus. on Cr. 467; Roscoe's Cr. Ev. 567; 1East, P. C. 341.) II. Murder committed by poison is murder of the first degree and can be nothing else. (1Comp. L. 2323; People v. Sanchez, 24 Cal. 28; People v. Nichol, 34 Cal. 211; People v.Bealoba, 17 Cal. 389; Riley v. State, 9 Humph. 646; State v. Pike, 49 N. H. 399; State v.Harris, 12 Nev. 415; State v. Hymers, 15 Nev. 50; 2 Bish. Cr. L. sec. 727, note 2; People v.Campbell, 40 Cal. 129; People v. Long, 39 Cal. 694; People v. Vasquez, 49 Cal. 560; Peoplev. Haun, 44 Cal. 96.) III. A verdict of murder of the second degree is an acquittal of murder of the first degree.(People v. Gilmore, 4 Cal. 376; State v. Ross, 29 Mo. 32.) IV. It was error to charge that defendant was liable for the consequence of her act, if shenegligently and knowingly exposed a deadly poison in such a place or manner as it would belikely to be taken by another unconsciously.

W. H. Davenport, Attorney General, and J. D. Torreyson, District Attorney of OrmsbyCounty, for Respondent.

I. The degree of homicide is a fact which the statute requires to be specially found by thejury. If the crime charged in the indictment be murder in the first


degree, a verdict that the jury find the defendant guilty of the crime as charged in theindictment is not such a designation of the degree as the statute requires. (1 Whar. Cr. Law,Sec. 543 and note 6; Whar. on Hom. Sec. 900 and note 3; State v. Rover, 10 Nev. 388, 392;People v. Campbell, 40 Cal. 129, 138, 139; Johnson v. State, 17 Ala. 618; Levison v. State,54 Ala. 520; Beaudien v. State, 8 Oh. St. 634; Dick v. State, 3 Oh. St. 89; Parks v. State, Id.101.) II. The jury must ascertain the degree, and they have the power to fix a lower degree thanthe statute provides. (1 Comp. Laws, 2323; 1 Whar. Crim. Law, Sec. 391; State v. Dowd, 19Conn. 387; Lane v. Com., 59 Pa. St. 371; Rhodes v. Com., 48 Pa. St. 396; Shaffner v. Com.,72 Pa., St. 60; Com. v. Keeper Prison, 2 Ash'm 231; Robbins v. State, 8 Oh. St. 131, 193,194; Beaudien v. State, 8 Oh. St. 635, 637-8.) III. A party who places poison in such a position that it is likely to be unconsciously andnon-negligently taken by passersby is liable for the consequences. (1 Whar. Cr. Law, Secs.166 and note 3; 345 and note 1; 385 and note 2; Desty Am. Cr. Law, Sec. 129; J. & N. 3; Regv. Michael, 9 Car. & P. 356; Reg v. Chamberlain, 10 Cox, C. C. 486.) IV. Whoever in attempting to commit suicide unintentionally kills another is guilty ofmanslaughter. (1 Whar. Cr. Law, Secs. 328, 453 and notes; Com. v. Mink, 123 Mass. 422.)

By the Court, Hawley, J.:

Appellant was indicted for the crime of murder, alleged to have been committed by theadministering of poison. The jury found her guilty of murder in the second degree. 1. It is argued in her behalf that the verdict is a verdict of acquittal; that the crime allegedin the indictment was murder in the first degree; that there is no such crime, under our statute,as murder in the second degree for a homicide committed by means of poison. The statute ofthis state declares that all murder which shall be perpetrated by means of poison, lying inwait, torture, or by any other kind of willful, deliberate, and premeditated killing, or whichshall be committed in the perpetration, or attempt to perpetrate, any arson, rape, robbery, orburglary, shall be deemed murder of the first


degree; and all other kinds of murder shall be deemed murder of the second degree; and thejury before whom any person indicted for murder shall be tried, shall, if they find such personguilty thereof, designate by their verdict whether it be murder of the first or second degree;but if such person shall be convicted on confession in open court, the court shall proceed, byexamination of witnesses, to determine the degree of the crime, and give sentenceaccordingly. (1 Comp. Laws. 2323.) Under this statute there are certain kinds of murder which carry with them conclusiveevidence of premeditation, viz., when the killing is perpetrated by means of poison, lying inwait, or torture; or when the homicide is committed in the perpetration, or attempt to

perpetrate, any of the felonies enumerated in this statute. In these cases the question whetherthe killing was willful, deliberate and premeditated is answered by the statute in theaffirmative, and if the prisoner is guilty of the offense charged, it is murder in the first degree.(State v. Hymer, 15 Nev. 50, and authorities cited in appellant's brief.) But suppose the jury,in charity for the faults and weakness of the human race, sympathy for the prisoner, or anyother mistaken view of the law or the facts, lessens the offense to murder in the seconddegree, is the prisoner to go free? Does not the case stand precisely upon the same plane as averdict of murder in the second degree in any case not enumerated in the statute, where thereis a willful, deliberate and premeditated killing? Is it not as much the duty of the jury in sucha case to find the prisoner guilty of murder in the first degree, as in the cases speciallyenumerated in the statute? Suppose the jury in such a case, where the evidence is positive,clear, plain and satisfactory beyond a reasonable doubt, regardless of all the testimony, and inviolation of the well-settled principles of law, should find the prisoner guilty of murder in thesecond degree; would the prisoner be entitled to a new trial upon the ground that the verdict isagainst the evidence? Is it not a fact that juries frequently render just such verdicts, and theresult cannot be accounted for upon any theory other than that of a compromise of opinion?Why should such verdicts be allowed to stand? The answer is plain. The reason is that thestatute leaves the question of degree to be settled by the verdict of the jury. A verdict findingthe prisoner guilty of


murder, without mentioning the degree, would be a nullity. In State v. Rover, this court, referring to the statute which we have quoted, said: By thisstatute, murder is divided into first and second degrees, depending upon the particularcircumstances in which the crime is committed; and whether it be of the first or seconddegree, is a fact to be specially found from the evidence adduced, without reference to anyspecial facts which may be stated in the indictment. In case of a trial, the jury before whomthe trial is had, if they find the defendant guilty, are required to find this fact, and to designateby their verdict whether their guilt be of the first or second degree; and in case of a plea ofconfession, the court is required to determine this question of fact by the examination ofwitnesses in open court. It is therefore apparent, from the plain and positive provisions of thestatute, that a verdict which fails to designate the degree of murder of which the jury find thedefendant guilty, is so fatally defective that no judgment or sentence can be legallypronounced thereon. (10 Nev. 391.) A judge should always inform the jury of the degree which the law attaches to murder, bywhatever means the crime may have been committed; but in every case it is the province ofthe jury, if the prisoner is found guilty, to determine and fix the degree by their verdict, andthe courts cannot deprive the jury of their right to fix the degree by imperatively instructingthem, in a case where the crime was committed by administering poison (or in any othercase), that if they find the prisoner guilty they must find him guilty of murder in the firstdegree. (Robbins v. State, 8 Ohio St. 193; Beaudien v. State, Id. 638; Rhodes v. Com., 48 Pa.St. 398; Lane v. Com. 59 Pa. St. 375; Shaffner v. Com., 72 Pa. St. 61.) Wharton, in discussing the degrees of murder, says: But, however clear may be the

distinction between the two degrees, juries not unfrequently make use of murder in thesecond degree as a compromise, when they think murder has been committed, but areunwilling, in consequence of circumstances of mitigation, to expose the defendant to its fullpenalties. (2 Whart. Crim. Law, 1112.) In Rhodes v. Com., supra, the court said: Under proper instructions from the bench, it isnot only the right of the jury to ascertain the degree, but it is the right of the accused to have itascertained by them. * * * No doubt cases of

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murder in the first degree have been found in the second, but this must have been anticipatedwhen the statute was framed, and has certainly been observed under its operation, and yet ithas remained upon our statute-book since 1794 unaltered in this regard. Possibly the verydistinction of degrees was invented to relieve such jurymen's consciences as should be foundmore tender on the subject of capital punishment than on their proper duties under evidence.Many men have probably been convicted of murder in the second degree, who, really guiltyof the higher crime, would have escaped punishment altogether but for this distinction indegrees so carefully committed by the statute to juries. The jury have the undoubted power to fix the crime in the second degree when it ought,under the law and the facts, to be fixed in the first. We need not speculate why it was soprovided. It is sufficient that it is so written, and we cannot change, alter, or depart from it.(Lane v. Com., supra.) Our attention has not been called to any case where a verdict of murder in the seconddegree has been set aside upon the ground that the testimony was such as to make the crimemurder in the first degree. But, on the other hand, the direct question involved in this case hasbeen decided adversely to appellant. (State v. Dowd, 19 Conn. 387; Lane v. Com., supra.) Inthe latter case the court said: It has never yet been decided in Pennsylvania that a verdict ofmurder in the second degree might not be given in a case of murder by poison. That it may begiven is as unquestionable as the power of the jury is under the act to give it, and impossiblefor the court to refuse it. If the jury fix the crime at murder in the second degree, in a case where the law and thefacts make it murder in the first degree, it is an error in favor of the prisoner, of which the lawwill not take any cognizance, and of which the prisoner ought not to complain. II. Objection is made to certain instructions given by the court, upon the theory that thepoison may have been mixed with whisky with the intent on the part of the appellant tocommit suicide, and was negligently exposed in such a place and manner as would likely tobe unconsciously or non-negligently taken by other persons, either as food or drink, and thejury were told that in such a case the person so leav*$*$


ing the poison would be liable for the consequences, and would be guilty ofmanslaughter. This objection cannot be sustained. The use of the words liable for theconsequences, of which complaint is made, might have been error if the court had not in thesame connection stated what the consequences would be; but the instructions upon this pointmust be considered together as an entirety, and when so considered they state a correctprinciple of law, (Desty Cr. Law, 124b.; 2 Whart. Crim. Law, 1004; Reg. v. Michael, 9Car. & P. 356;) and it is evident that the jury could not have been misled. The judgment of the district court is affirmed.

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19 Nev. 53, 53 (1885) Sweeney v. Schultes

[No. 1195.]

JAMES SWEENEY, Respondent, v. G. D. SCHULTES, etal., Appellants.

PracticeNotice in SummonsWhen DefectiveSection 26 of the civil practice act (1 Comp. Laws, 1089)declare

nevada reports 1885-1888 (19 nev.).pdf

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