(19 Nev. 241)

SUPREME COURT OF NEVADA.

ESTATE OF MCMAHON, Deceased.

Filed December 14, 1885.

EXECUTORS AND ADMINISTRATORS-FINAL ACCOUNT-ORDER TO PAY MONEY TO COUNTY TREASURER FOR HEIRS VOID.

Where an executor files his final account, an order of the court directing him to pay over money in his hands to the county treasurer, to be placed to the credit of the heirs and devisees of the testator, and to be paid to such heirs and devisees on the order of the court after proof of identity, is void.

Appeal from an order of the Sixth judicial district court, Lincoln county, requiring the executor of said estate to pay certain moneys into the county treasury.

T. Coffin, for appellant.

HAWLEY, J. The executor of this estate presented to the district court an "account of his receipts and disbursements as a final account of his executorship," and on the day set for the settlement of the account the report of the executor was confirmed, and the account "allowed and approved" by the court. The portion of the order appealed from reads as follows:

"The said executor is hereby ordered to forthwith pay into the hands of the county treasurer of Lincoln county, state of Nevada, the above-mentioned sum of $1,087.50; said sum to be by said treasurer placed to the credit of the heirs and devisees of said Anthony McMahon, deceased, and to be by said treasurer paid to said heirs or devisees upon the order of this court, after proof of identity as such."

The sum of $1,087.50 was the amount shown to be in the hands of the executor. If the estate was not in a condition to be closed when the final account of the executor was presented, it was the duty of the court to give such reasonable extension of time as might be necessary “for a final settlement of the estate." 1 Comp. Laws, 729. The order requiring the executor to pay the moneys in his hands to the county treasurer was without authority of law, and void. Willson v. Hernandez, 5 Cal. 443. The costs of this appeal should be paid "out of the estate." 1 Comp. Laws, 791. The order appealed from is reversed, and the cause remanded.

Consideration of errors assigned denied because of the statement not being authenticated in the mode prescribed by statute.

Appeal from district court, Second judicial district, Douglas county. N. Soderberg, for appellant, Joseph Jones.

A. C. Ellis, for respondent, John Q. Adams.

HAWLEY, C. J. The errors assigned by appellant, upon which he relies for a reversal of the judgment and order of the court refusing a new trial, cannot be considered on this appeal, because there was no statement on motion for new trial. That which purports to be a statement has no certificate from the parties or attorneys "that the same had been agreed upon and is correct." It is not accompanied with the certificate of the judge "that the same has been allowed by him and is correct;" nor is there any certificate from the clerk that "no amendments have been filed." Civil Prac. Act, § 197; 1 Comp. Laws, 1258.

We have repeatedly declared that if the statement on motion for a new trial is not authenticated in the mode prescribed by the statute, the motion for new trial should be denied, and the appeal therefrom dismissed. Lockwood v. Marsh, 3 Nev. 138; White v. White, 6 Nev. 20; Solomon v. Fuller, 13 Nev. 276; Simpson v. Ogg, 18 Nev. 28; S. C. 1 Pac. Rep. 827.

No error appears upon the judgment roll. The judgment of the

district court is affirmed.

(68 Cal. 109)

SUPREME COURT OF CALIFORNIA.

MORRIS v. LACHMAN. (No. 8,249.)
Filed November 26, 1885.

1. EXAMINATION OF WITNESSES-LEADING QUESTIONS.

Leading questions put to a party by his counsel may be stricken out or not at the discretion of the trial court.

2. EVIDENCE-HEARSAY TESTIMONY INCOMPETENT.

Testimony of plaintiff relative to what he had heard the defendant had said, is incompetent, and the court should strike it out.

3. SLANDER-ANSWER IN ACTION AMENDMENT BY WITHDRAWING OBJECTIONABLE CHARGE.

The defendant, in an action of slander, may, by permission of the court, withdraw a charge made in his answer against plaintiff's reputation, and file an amended answer omitting such objectionable matter, and the plaintiff cannot thereafter show that such charge had been preferred on a previous trial, and attempted to be established by evidence.

4. SLANDER-MITIGATION OF DAMAGES-BELIEF IN TRUTH OF CHARGE.

In an action for slander, defendant may, in mitigation of damages, testify as to his belief in the truth of the charge at the time of using the words alleged to be slanderous.

5. WITNESS-REFRESHING MEMORY FROM WRITING.

A witness cannot, on a trial, refresh his memory from an affidavit sworn to by him, unless the affidavit was written by him, or was written under his direction, at the time the facts occurred, or presently thereafter, when the facts were fresh in the mind of the witness, and which he knew correctly stated such facts.

6. ARGUMENTATIVE INSTRUCTIONS ARE ERRONEOUS.

Instructions argumentative in form, and upon the weight of testimony, are erroneous; but an instruction that evidence "tends to prove" a matter is not on the weight of evidence, and is not erroneous.

Commissioners' decision.

court, county of Alameda.

Department 1. Appeal from superior

Tyler & Tyler, for appellant.

J. P. Phelan, Wm. Irvine, and J. B. Reinstein, for respondent. FOOTE, C. Action to recover damages for slander, in the alleged speaking by Lachman, of and concerning the plaintiff and one Henry Cavendish, the words: "They are horse-thieves and scoundrels." The defendant filed a second amended answer, in which the main ground of defense was stated to be that he believed his horse, harness, and wagon had been stolen, and did not know the persons who had taken them, and that, in using the language complained of, he had no reference to the plaintiff, but spoke it of those unknown persons who he honestly believed had committed a larceny of his property.

By the bill of exceptions as settled, it appears that upon the trial of the cause the evidence showed that one Connolly had sold the property about which the controversy arose (which it was contended Lachman had accused plaintiff of stealing) to the plaintiff, and had given her a bill of sale therefor; that plaintiff had allowed Connolly to use the horse and wagon, and that he subsequently sold them to the defendant, (then in New York,) delivering them to Lachman's son, who

was in charge of his father's business here while the latter was absent; that afterwards, and during defendant's absence in New York, plaintiff found the horse and wagon on the street in San Francisco, and took them to Oakland, without notifying defendant or his son. Upon his return to San Francisco the defendant went to Oakland in search of the property, at which time and place he was alleged to have used the language set out in the complaint. Judgment was rendered for the defendant, and the plaintiff's motion for a new trial denied, and she appealed.

At the trial it was claimed, on the part of the plaintiff, that the defendant used the language set out in the complaint of and concerning the plaintiff and Mr. Cavendish, while said Lachman was standing inside the door of Messrs. Lesher & Sander's store in Oakland, and that plaintiff and Mr. Cavendish were passing by on the street in front thereof, and that, just as they went by, Mr. Lesher said to the defendant: "There goes the lady and gentleman who left the horse and wagon here now.' To which defendant replied: "Lady and gentleman be damned! they are horse-thieves and scoundrels." And the plaintiff introduced evidence tending to show the speaking of the words by defendant as laid in the complaint. It was within the court's discretion to strike out the leading question put to the plaintiff by her counsel. And the hearsay testimony given by her, relative to what she heard that the defendant had said as she was passing Lesher's store, was clearly incompetent, and was properly stricken out.

The defendant had a right to withdraw the charge made against the plaintiff's reputation in his first answer, and, by the court's permission, to file an amended pleading leaving the objectionable matter out. And no error was by that tribunal committed in refusing to allow proof to be made that such a charge had been thus preferred on a previous trial, and attempted to be established by evidence.

The question which was asked the defendant by his counsel, and to which he was allowed to reply, relative to his belief that his property had been stolen at the time he used the language to which exception was taken, was proper, as tending to show his good faith, in mitigation of damages, and was in no sense an opinion as an expert. We are inclined to the opinion that the court was right in refusing of its own motion to allow the witness Tracy to refresh his memory from an affidavit before that time sworn to and subscribed by him ex parte; for the reason that the plaintiff did not include in the offer made by her counsel proof that the witness had written the affidavit, or that it had been done under his direction, at the time the facts occurred, or immediately thereafter, or at any other time when the facts were fresh in his memory, and that he knew that the same were correctly stated in the writing. Code Civil Proc. § 2047.

As part of the charge given by the court, and excepted to by the plaintiff, after objection duly made, was the following:

"In determining the question as to whether the slanderous words charged were spoken about or concerning the plaintiff, it is proper for you to consider whether, at this time, when these words were alleged to have been spoken, Lachman knew the person of the plaintiff or not, and if he did not know the person of the plaintiff at this time, how could he have referred to her, and how could he have pointed her out as the subject of his accusation?” This is justly criticised as being argumentative, and instructing the jury upon the weight of testimony. By it they are in effect told that if the defendant did not know the plaintiff personally, he could not have referred to her or pointed her out as the object of the accusation contained in his language which is the matter of complaint. At least it is fairly susceptible of this construction, and may have misled the jury.

The other portions of the court's charge which are objected to were not improper, in view of the declaration of this court as to the right of the trial judge to state the testimony given in a cause to a jury as "tending to prove" a matter. People v. Perry, 4 Pac. Rep. 572; People v. Vasquez, 49 Cal. 560.

For the error committed the judgment and order should be reversed and cause remanded.

We concur: SEARLS, C.; BELCHER, C. C.

BY THE COURT. For the reasons given in the foregoing opinion the judgment and order are reversed, and cause remanded.

(2 Cal. Unrep. 574)

WHITE V. DOUGLASS. (No. 9,612.)

1. EVIDENCE-FINDINGS.

Filed November 26, 1885.

Evidence held to support the findings and judgment.

2. REGENTS OF UNIVERSITY OF CALIFORNIA-INSTRUCTIONS FOR SALE OF LAND. Instructions to the land agent of the University of California, directing him to receive applications for surveyed land, in accordance with a designated plan, whether they emanate from the board of regents or not, if subsequently recognized and enforced by them, will be held to be the instructions of the board.

Commissioners' decision.

Department 1. Appeal from superior court, county of San Joaquin.

David S. Terry and George A. Nourse, for appellant.

J. H. Budd and W. L. Dudley, for respondent.

SEARLS, C. This is an action to determine a contest between applicants for the purchase of land from the state of California, as provided for under sections 3414-3416 of the Political Code. The cause was tried by the court, a jury having been waived, and judgment was rendered upon written findings in favor of plaintiff, from which, and from an order denying a new trial, defendant appeals. It is objected to the first finding of the court that the evidence shows without conv.8P,no.12-51