RULE XVI.

Where a judgment is reversed or modified, a certified copy of the opinion in the case shall 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 the Court, or of one of the Justices. No order will be made for leave to withdraw a transcript for examination, 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, upon petition, 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 or undertaking with the Clerk of the Court below, and upon giving notice thereof to the opposite party or his attorney, and to the Sheriff, it shall operate as a supersedeas. The bond or undertaking 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 specially directed.

RULE XXI.

The rules and practice of this Court respecting appeals shall apply, so far as the same may 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 the judgment, order, or decree, which is sought to be reviewed, except under special circumstances.

RULE XXIII.

Appeals from orders granting or denying a change of venue, or any other interlocutory order 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 twenty miles of Carson. Where the party served resides more than twenty miles from Carson, an additional day's notice will be required for each forty miles, or fraction of forty miles, from Carson.

REPORTS OF CASES

DETERMINED IN THE

SUPREME COURT

OF THE

STATE OF NEVADA,

DURING THE YEAR 1868.

THOMAS MCMANUS, RESPONDENT, v. THE OPHIR SILVER
MINING COMPANY et al., APPELLANTS.

SUFFICIENCY OF COMPLAINT. Where a complaint for work, labor and services
alleged an indebtedness in a sum certain therefor, but omitted to allege specifi-
cally the value of the same or a promise to pay; and defendant, without de-
murring, put in an answer denying indebtedness, admitting services performed,
and setting up payment in full, and there was verdict for plaintiff: Held, that
whatever the defects of the complaint, they were cured by defendant's plead-
ing and by the verdict.

WAIVER OF FORMAL OBJECTIONS.

All mere formal objections to a complaint

are waived by a plea of confession and avoidance. CURED BY VERDICT. If the issue joined be such as necessarily to require on the trial proof of a fact defectively or imperfectly stated, without which it is not to be presumed the judge would direct the jury to give, or the jury would have given the verdict, such defect or imperfection is cured by the verdict. CONSTRUCTION OF PLEADINGS. Sections 70 and 71 of the Practice Act have

liberalized the rules of construction applicable to pleadings so as not only to embrace the whole of the English statutes of jeofails and amendments, but to go somewhat beyond.

APPEAL from the District Court of the First Judicial District, Storey County.

McManus v. The Ophir Silver Mining Company.

The question involved is fully stated, in the opinion of the Court.

Hillyer and Whitman, for Appellants.

Pitzer and Anderson, for Respondent.

By the Court, JOHNSON, J.

The complaint alleges that the defendants, owners of a certain toll road," are indebted to plaintiff for the work, labor and services of the plaintiff, performed at the request of the defendants and for their benefit, on the improvement and repairing of said road, from the first day of November, 1866, to the thirty-first day of July, 1867, in the sum of seven hundred and fifty dollars, for which sum, with the costs of suit, the plaintiff demands judgment."

Defendants' answer "denies that they are indebted to the plaintiff either for work, labor or services, or otherwise, in the sum of seven hundred and fifty dollars, or any sum whatever; but admits that during the period mentioned in said complaint the plaintiff did perform services for them, but avers that for said services they, the said defendants, before the commencement of this action paid the plaintiff in full." Upon the issue made by the pleadings, a jury trial was had, and verdict found for plaintiff in the full amount claimed; whereupon defendants moved in arrest of judgment, on the grounds that "the complaint does not state facts sufficient to constitute a cause of action, and is not sufficient to support any judgment." This motion was overruled and judgment given for plaintiff in accordance with the findings of the jury, from which ruling, and the judgment, defendants appeal.

The point, viz that the complaint does not state facts sufficient to constitute a cause of action, is the single question suggested on this appeal, and had it been raised by demurrer we would probably hold the complaint insufficient, although a pleading very similar to this has been upheld by the very highest authority, both at common law and under the code. As cases which are directly in point we refer to Emery v. Fell (2 Term Rep. 28). An action of debt. The first count in the declaration stated that "the defendant on, etc., was indebted to the plaintiff in the sum of £2 12s. 6d., for divers goods, wares and merchandises by the plaintiff

McManus v. The Ophir Silver Mining Company.

before that time sold and delivered to the defendant at his special instance and request." There were other counts for work and labor, money paid, laid out and expended, and money had and received in the same form.

To this declaration there was a special demurrer, assigning among others, that "the several supposed contracts, on which the said debt above demanded is alleged to have arisen, are not, nor is either of them sufficiently, or in any manner stated or set forth in the said declaration." The Court, in giving judgment against the demurrer, says: "As to the objection that no contract is stated in the declaration, the words 'sold and delivered' imply a contract, for there cannot be a sale unless two parties agree. This would be sufficient on an indebitatus or for money lent."

Again, in the case of Allen v. Patterson (3 Selden, 7 N. Y. 476) on demurrer to a complaint, as follows: "The plaintiffs complain against the defendant, for that the defendant is indebted to the plaintiffs in the sum of three hundred and seventy-one dollars and one cent, for goods sold and delivered by the plaintiffs to the defendant, at his request, on the first day of May, 1849, at the city of Buffalo in said county *** for which sum the plaintiffs demand judgment against the defendant, with interest from the twentieth day of October, 1849, besides costs." The Court of Appeals, in sustaining the action of the lower Court, overruling the demurrer, and giving judgment for plaintiffs, says: "The words, that the defendant is indebted to the plaintiffs in the sum of $371.01 for goods sold and delivered by them to him, at his request, on the first day of May, 1849, and that there was then due to the plaintiffs from the defendant said sum, clearly imply that a contract had been made between the plaintiffs and defendant, by which the former sold and delivered to the latter goods at his request, for which he promised to pay to the plaintiffs the sum of $371.01; and that the period when the same was promised had expired." "It contains every statement of fact necessary to constitute a good indebitatus count in debt, according to the mode of pleading before the code." The same Court held similarly, in the later case of Moffet v. Sackett, (18 N. Y. 522).