their proceedings were carried by certiorari to the supreme court: Held, that
the question before the supreme court was solely as to whether the commis-
sioners had the authority to make the order striking out the entire roll, and
that it could not consider the question as to the authority to equalize or dis-
charge the assessment of the particular person making the application. State
ex rel. Swift v. Ormsby County Commissioners, 95.
JURISDICTION THE QUESTION ON CERTIORARI. The only question which can be
inquired into on certiorari is whether the inferior board or tribunal had juris-
diction to do the act sought to be reviewed. State ex rel. Fall v. Humboldt
County Commissioners, 100.
RANGE OF INQUIRY ON CERTIORARI. Where county commissioners were re-
quired on receiving a petition of certain voters to do a certain act, and upon
receiving a petition and satisfying themselves by evidence that it was from
such voters, they did the act: Held, on certiorari, that they had acquired
jurisdiction, and that whether their action was founded upon strictly legal or
sufficient evidence, was not within the province of the inquiry. State ex rel.
Fall v. Humboldt County Commissioners, 100.
CHALLENGE OF JUROR FOR CAUSE-See JURY, 1.
CHALLENGE OF JUROR MUST SPECIFY GROUNDS-see JURY 2, 6.
EVIDENCE OF GOOD CHARACTER IN CRIMINAL CASES-See CRIMINAL LAW, 2.
CHARACTER OF INJURED PERSON NOT INVOLVED IN SUIT FOR NEGLIGENCE-See
DAMAGES, 7.
MODIFICATION OF INSTRUCTIONS. In a suit on two policies of insurance, an in-
struction was asked to the effect that if the jury found that insured, in giving
an account of his loss as required by a condition indorsed on the second policy,
was guilty of fraud (which fraud was to forfeit all benefit under both policies)
they should find for defendant; and the court modified the instruction by
striking out "you must find for defendant," and substituting "the policy can
for that reason be vitiated": Held, that the modification was error, as it
destroyed the force of a correct instruction, rendered vague what before was
clear, and confined the effect of a violation of the condition to one policy
alone. Gerhauser v. North British & M. Ins. Co., 15.
JURIES NOT MISLED BY UNOBJECTIONABLE INSTRUCTIONS. It cannot be claimed
that a jury in a criminal case has been misled by a charge of the court, in
which no specific error is suggested or appears. State v. McGinnis, 109.
S. INSTRUCTIONS-EVIDENT MEANING VERSUS LITERAL LANGUAGE. Where in an
instruction a court used the phrase, "the existence of such theory must be
established by the plaintiff conclusively": Held, that although taken literally
the language was nonsense, the court evidently intended to say, and it should
be assumed the jury so understood it, that the correctness of the theory must
be so established. Silver Mining Company v. Fall, 116.
CHARGING JURY IN RESPECT TO FACTS. The assumption by a judge in his charge
in a criminal case, that any material fact upon which there is any conflict of
evidence is proved, is error.
State v. Duffy, 138.
USE OF EXPRESSION "GUILT OF DEFENDANT IN CRIMINAL CHARGE.
in a criminal case, the court in charging the jury said, "the guilt of the de-
fendant rests upon circumstantial evidence": Held, that although evidently
what was intended to be said was that the charge of guilt rested on cir-
cumstantial evidence, yet the words expressed a totally different meaning and
constituted fatal error. State v. Duffy, 138.
INSTRUCTION INAPPLICABLE TO ISSUE. A judgment will not be reversed on ac-
count of an erroneous instruction, when it appears that it was not applicable
to the issues and could not have injured. Brown v. Lillie, 244.
WHOLE CHARGE TO JURY TO BE CONSIDERED AS ENTIRETY. In determining
whether an instruction or portion of a charge is erroneous or calculated to
mislead the jury, the whole charge must be taken together and considered as
an entirety; and if anything essential, omitted from the instruction or portion
of charge, be found in another instruction or portion of charge, the omission
will not be fatal. Caples v. Central Pacific R. R. Co., 265.
INSTRUCTION TO JURY NOT TO FIND HIGHER GRADE OF CRIME. On a murder
trial, the judge instructed the jury that under the law and evidence it would
not be justified in finding a verdict for any higher grade of offense than man-
slaughter: Held, on appeal by defendant, not necessarily a charge that the
State had made out a case of manslaughter. State v. Little, 281.
FACTS PROVED AND NOT CONTROVERTED NEED NOT GO TO THE JURY. It is no er-
ror for a court in its charge to take from the consideration of the jury a fact
proven by one party and not controverted by the other. Sharon v. Minnock,
377.
CONSTITUTIONAL PROVISION THAT JUDGES ARE NOT TO CHARGE AS TO FACTS-see
CONSTITUTION, 3.
ERRONEOUS INSTRUCTIONS WITHOUT PREJUDICE-See ERROR, 1, 2.
INSURANCE-FRAUD QUESTIONS OF LAW AND FACT—see FRAUD, 1.
PRESUMPTION THAT JURIES FOLLOW INSTRUCTIONS-See JURY, 3.
INTIMATIONS OF COURT EXCLUDING EVIDENCE-see PRACTICE, 6.
EFFECT OF AUDITING AND ALLOWING A CLAIM AGAINST A COUNTY-see COUNTY
FUNDS, 1, 2.
CLAIM TO ENTIRE TRACT OF LAND PRESUMED FROM ENTRY UNDER DEED-See EN-
TRY, 1.
LEGISLATIVE POWER AS TO PREFERRING CLAIMS AGAINST COUNTIES-see LEGIS-
LATURE, 1.
HUSBAND TO SUE FOR CHOSES IN ACTION BELONGING TO HUSBAND AND WIFE-
see HUSBAND AND WIFE, 1.
WIFE NOT A PARTY TO ACTION TO RECOVER COMMON PROPERTY-see Parties, 3.
PLEADING-HUSBAND'S OWNERSHIP OF COMMON PROPERTY-See PLEeading, 2.
SUBSTANTIAL COMPLIANCE WITH CONDITION PRESCRIBED BY STATUTE-see CON-
STRUCTION, 3.
STRICT PERFORMANCE OF CONDITIONS PRECEDENT-see CONTRACTS, 5.
CONDITIONS INDORSED ON INSURANCE POLICY-See Insurance, 1.
SEIZURE OF GOODS ATTACHED BY CONSTABLE-see SHERIFF, 4.
CONSTITUTIONAL CONSTRUCTION-DEBT OF CHURCHILL TO HUMBOLDT COUNTY.
The second section of the amendatory Act of 1869, concerning counties, pro-
viding for the payment of $3,000 a year for five years by Churchill County to
Humboldt County, (Stats. 1869, 88) does not conflict with Art. IV, Sec. 17, of
the constitution, which prohibits a statute from embracing more than one
subject and matters properly connected therewith, which shall be expressed
in the title thereof. Humboldt County v. Churchill County Commissioners, 30.
NINTH JUDICIAL DISTRICT CONSTITUTIONAL. The Act of March 12th, 1867,
constituting Lincoln County the Ninth Judicial District (Stats. 1867, 129) is
not in conflict with the constitutional clause (Art. VI, Sec. 5) which forbids
the change or alteration of the boundaries of a judicial district during the in-
cumbent judge's term of office. Leake v. Blasdel, 40.
CONSTITUTIONAL LAW-JUDGES NOT TO CHARGE AS TO FACTS. The provisions
of the Constitution, (Art. VI, Sec. 12) that "Judges shall not charge juries in
respect to matters of fact, but may state the testimony and declare the law,"
whether it be wise and wholesome or not, must be fully enforced both in letter
and spirit. State v. Duffy, 138.
MEANING OF "INDICTMENT OF A GRAND JURY" IN CONSTITUTION.
indictment, which omitted the essential allegation of venue, was amended in
that respect: Held, that it was no longer an "indictment of a grand jury,"
within the meaning of Art. I, Sec. 8, of the constitution. State v. Chamber-
lain, 257.
CHARGING FACTS IN DEFENDANT'S FAVOR-See CRIMINAL LAW, 11.
CONSTITUTIONAL JURISDICTION OF SUPREME AND DISTRICT COURTS-see JURIS-
DICTION, 3.
TERMS OF OFFICE OF DISTRICT JUDGES-see OFFICERS, 2.
PRESUMPTION OF CONSTITUTIONALITY OF STATUTES-See STATUTES, 2.
JUDICIAL POWER AS TO STATUTES-See STATUTES, 3.
STATUTORY CONSTRUCTION-IMPAIRING CONTRACTS. The statute of 1869, pro-
viding for the payment of $3,000 a year for five years by Churchill County to
Humboldt County, (Stats. 1869, 88) does not interfere with warrants drawn
upon the treasury of Churchill County and registered at the date of its
passage, and is not for any such reason open to the objection of impairing the
obligation of contracts. Humboldt County v. Churchill County Commissioners,
EXPRESSIO UNIUS EXCLUSIO ALTERIUS. The Act of February 27th, 1866, des-
ignating the judicial districts of the State, distinctly provided that the fifth dis-
trict should consist of Humboldt County, and omitted all mention of Lincoln
County, which had previously been attached to the fifth district: Held, that
such a designation was equivalent to an express declaration that no other
county than Humboldt was included in the fifth district. Leake v. Blasdel, 40.
SUBSTANTIAL COMPLIANCE WITH CONDITION PRESCRIBED BY STATUTE. Where a
statute prescribed that if a railroad should be built through a certain point in
a certain county, such county should issue its bonds to the company; Held,
that though a substantial compliance with the condition would have been suf-
ficient, it was not a substantial compliance for the road not to pass the point
prescribed, though it might pass a point more advantageous for the county and
though a branch were run to the point prescribed. Virginia and Truckee R. R.
Co. v. Lyon County Commissioners, 68.
PRINCIPLE OF STATUTORY CONSTRUCTION. In construing a statute the duty of
a court is to seek the legislative intent and reach the object sought to be ex-
pressed; but in so doing the first step is, if possible, to ascertain the intent
from the language used, and if that is clear and unambiguous, inquiry stops.
Virginia and Truckee R. R. Co. v. Lyon County Commissioners, 68.
STATUTORY CONstruction-Plain LANGUAGE. Where the language of a stat-
ute is plain, its intention must be deduced from such language, and courts have
no right to go beyond it. State ex rel. Hess v. Washoe County Commissioners,
IN WHITE PINE MINING LAWS. The word "loca-
tion," as used in the mining laws of the White Pine District means the aggre-
gate of ground claimed as a mine, and not the interest of a single shareholder.
Leet v. John Dare S. M. Co., 218.
STATUTORY CONSTRUCTION-POPULAR AS OPPOSED TO TECHNICAL MEANING OF
WORDS. The rule that technical words used in a statute are to be taken in
their technical sense, is subject to the qualification that it is only when used
with reference to the particular subject as to which they have a special mean-
ing, that they are to receive such meaning; but that if used generally, their
popular meaning is the one intended. Ormsby County v. State of Nevada, 265.
DESCRIPTIONS TO BE UNDERSTOOD AS USED AT TIME OF CONTRACT-See CON-
TRACTS, 7, 8.
CONSTRUCTION OF MARRIAGE STATUTE-See STATUTES, 5.
CONTINUANCE WITHIN DISCRETION OF COURT. A continuance in a criminal
case is within the discretion of the court, and unless there is an abuse of its
discretion, its action will be sustained. State v. Chapman, 320.
DILIGENCE TO PROCURE CONTINUANCE. Affidavits for continuance in a crim-
inal case on account of the absence of witnesses for defense should show dili-
gence in attempting to procure their attendance, that at least reasonable means
had been taken to ascertain their whereabouts, and that there was some reason-
able probability that their attendance could be procured within a proper time.
State v. Chapman, 320.
ALLEGED ERROR AS TO CONTINUANCE NOT CONSIDERED ON APPEAL UNLESS PROP-
ERLY TAKEN UP-see APPEAL, 17.
WAIVER OF OBJECTIONS TO AFFIDAVITS FOR CONTINUANCE-see WAIVER, 5.
ACCEPTANCE OF TREASURY NOTES ON GOLD COIN CONTRACTS. If a creditor accepts
treasury notes at par, in payment of a contract calling for coin, it is a com-
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