10. PAYMENT OF COMPANY DEBTS. Though the treasurer of a mining company, having funds on hand, may refuse to pay just claims against the company, his refusal cannot be adjudged a dereliction of his duty, without a showing that he had authority, and that it was his duty to pay. Sherman v. Clark, 138. 11. SUPERINTENDENT ASSUMING TO WORK MINE. It fact that a superintendent of a mine is working board of trustees and president, that it is being worked injudiciously or injuriously to the shareholders. Sherman v. Clark, 138.

does not follow from the mere without any control of the

12. TERM OF FIRST BOARD OF TRUSTEES OF MINING CORPORATIONS. Section 2 of the Act of March 10, 1865, for the formation of corporations, (Statutes of 1864-5, 359) clearly limits the term of the trustees selected and named in the certificate of incorporation to six months from the time of incorporation; and at the expiration of that period an election for a new board of trustees should be held. State ex rel. Flagg v. Trustees of Lady Bryan Co., 400.

13. TIME OF ELECTION OF TRUSTEES OF MINING CORPORATIONS. Though under Sec. 5 of the Act of March 10, 1865, for the formation of corporations the time for holding the election of a board of trustees to succeed the first board should be designated in a by-law, yet the time to be fixed in that way must accord with the letter and spirit of the statute, which limits the term of the first board to six months. State ex rel. Flagg v. Trustees of Lady Bryan Co., 400.

14. DISCRETION OF TRUSTEES AS TO TIME OF ELECTION. Under Secs. 2, 4, and 5, of the Act of March 10, 1865, for the formation of corporations, the first board of trustees of a mining corporation have some discretion as to the time to be fixed for the election of trustees to succeed themselves, yet this discretion must be reasonable, and exercised in good faith, and the time of election fixed at the expiration of the first six months, or as soon thereafter as practicable. State ex rel. Flagg v. Trustees of Lady Bryan Co., 400.

15. NEGLECT OF ONE DUTY NO EXCUSE FOR NEGLECT OF ANOTHER. Though the Act of March 10, 1865, for the formation of corporations requires the first board of trustees, whose term is fixed at six months, to fix the time of election of their successors by a by-law, the omission to adopt such a by-law is no excuse for their failure to call the election, or any reason why a mandamus should not issue compelling them to call it. State ex rel. Flagg v. Trustees of Lady Bryan Co., 400.

16. ANNUAL ELECTION OF TRUSTEES MUST BE HELD. On an application for a mandamus against the first board of trustees of a mining corporation, to compel them to call a meeting of the stockholders for the election of a new board of trustees, after the first six months had expired, the respondents objected that after the commencement of the proceedings the petitioner and others had called a meeting of stockholders, at which they voted to expel and remove the first trustees, and appoint others to act for the company, and that such action was illegal: Held, no answer to the petition for mandamus, for the reason that if such action was illegal, as claimed, it was void and of no effect, and if not illegal and void, it did not obviate the necessity of an election. State ex rel. Flagg v. Trustees of Lady Bryan Co., 400.

17. SUBSTITUTED TRUSTEES DO NOT MAKE NEW BOARD. Though all the members of a board of trustees of a mining corporation be expelled, and others ap

pointed in their places, (as they may be under Section 5 of the Act of March 10, 1865, for the formation of corporations) the board still remains the old board, and the annual election for a new board must be held as provided. by law, the same as if there had been no changes. State ex rel. Flagg v. Trustees of Lady Bryan Co., 400.

CONTRACT BY AGENT OF COMPANY IN HIS OWN NAME-see CONTRACTS, 3.

COSTS.

COSTS ON CORRECTING ERRORS IN JUDGMENT ROLL. When an error appears on the face of a judgment roll, in computation or anything of that character, which would have been corrected in the court below if attention had been called to it, and an appellant had an opportunity to do so, which he neglected, the Supreme Court will make the proper correction at the costs of the appellant; but costs will not be imposed if the appellant did not have such oppor tunity in the lower court. Flannery v. Anderson, 437.

APPEAL FROM JUDGMENT FOR COSTS-see APPEALS, 2.
COSTS ON MODIFYING JUDGMENT-See PRACTICE, 2.

COSTS ON OPENING DEFAULT-See PRACTICE, 4.

COUNSEL FEES.

WHAT TO BE TAKEN INTO ACCOUNT IN ESTIMATING COUNSEL FEES-see ATTORNEY, 1, 2, 3.

COUNTY COMMISSIONERS.

ADJOURNMENTS OF MEETINGS OF COUNTY COMMISSIONERS. Under the law creating Boards of County Commissioners, (Statutes of 1864-5, 257) which provided that they should hold their meetings on the first Mondays of January, April, July, and October, and adjourn from time to time until the business before them should be disposed of: Held, that after a Board had adjourned to a day certain, it had no power to revoke such order and meet at an earlier day. State v. Manhattan Co., 318.

CONSTRUCTION OF REVENUE LAWS AS TO MEETINGS OF COUNTY COMMISSIONERS -see CONSTRUCTION, 9.

POWER OF COUNTY COMMISSIONERS AS TO JUSTICES OF THE PEACE-see CONSTRUCTION, 12.

POWER OF COUNTY COMMISSIONERS AS TO LEVY OF TAXES-see TAXES, 11, 12. COUNTY COMMISSIONERS AS BOARD OF EQUALIZATION-see BOARD OF EQUAL

IZATION.

CRIMINAL LAW.

1.

2.

AFFIDAVIT FOR NEW TRIAL IN CRIMINAL CASES. The first, second, third and fourth grounds for new trial in criminal cases, under Sec. 428 of the Criminal Practice Act, may be presented simply by affidavit, without either statement or bill of exceptions. State v. Stanley, 71.

EXCEPTIONS TO CHARGE IN CRIMINAL CASES. Under Sec. 426 of the Criminal Practice Act, the written charge and instructions of the court to the jury are deemed excepted to, and any questions made upon them may be reviewed on motion for new trial, without a formal bill of exceptions. State v. Stanley, 71.

3.

4.

5.

6.

7.

8.

9.

RIGHT TO SPEEDY TRIAL IN CRIMINAL CASE. Every person held on a criminal
charge has the legal right to demand a speedy and impartial trial by jury. Ex
parte Stanley, 113.

SPEEDY TRIAL, WHAT. The speedy trial guaranteed every person accused of
crime is a trial as soon as possible after indictment found, without depriving
the prosecution of a reasonable time for preparation. Ex parte Stanley, 113.
FAILURE TO PROCure Jury Ground for ContinuancE. If the prosecution in a
criminal case makes all reasonable efforts to impannel a jury at the first term
at which the case is triable, but without success, and it does not appear that a
jury could not be had at the next term, there is a good cause for a continuance
on its motion for the term. Ex parte Stanley, 113.

CONTINUANCE WITHOUT AFFIDAVIT. Section 318 of the Criminal Practice Act
confers upon the courts the right to continue the trial of a criminal case upon
a proper showing by affidavit; but if the fact authorizing a continuance is
within the judicial knowledge of the court, such as the impossibility of impan-
neling a jury at the term, an affidavit is unnecessary. Ex parte Stanley, 113.
IMPORT OF VERDICT OF "GUILTY." In a prosecution for an assault with a deadly
weapon with intent to inflict upon the person of another a bodily injury,
properly charged, a verdict of "guilty" is in effect (Criminal Practice Act,
Sec.) a verdict of guilty as charged in the indictment. State v. Lawry, 161.
PROVOCATION, WHAT. In cases where a provocation either mitigates or justi
fies an act of violence, such act must be the immediate result of and closely
follow the provocation. State v. Lawry, 161.

FINE FOR ASSAULT WITH DEADLY WEAPON. Under the statute relating to the
crime of assault with a deadly weapon with intent to inflict upon the person
of another a bodily injury, (Statute of 1861, 64, Sec. 47) a court has no au-
thority to impose a fine of any sum less than one thousand dollars, though the
sentence may also be for imprisonment. State v. Lawry, 161.

10. PRACTICE UNAUTHORIZED FINE. Where the court below in a criminal case im-
posed a less fine than that fixed by statute, it was on appeal stricken out from
the sentence. State v. Lawry, 161.

11. INTENT TO MURDER-USE OF DEADLY WEAPON. An intent to murder cannot

1.

be conclusively inferred from the mere use of a deadly weapon; and an instruc-
tion to the jury to that effect in a murder trial, is error. State v. Newton, 410.
SHOWING FOR CHANGE OF VENUE-See CHANGE OF VENUE, 1.

CONTINUANCE BY COURT ON ITS OWN MOTION-see CONTINUANCE, 2.
PRESUMPTION FROM USE OF DEADLY WEAPON-See PRESUMPTIONS, 6.

CRUELTY.

CRUELTY AS GROUND OF DIVORCE-See DIVORCE, 1, 2, 3, 4.

CURRENCY.

DIFFERENCE BETWEEN COIN AND PAPER CURRENCY. There is a difference of value
between gold coin and legal tender paper currency; it is recognized by the
general government, and should be recognized by legislatures and courts; and
as such difference exists in fact, it cannot be wrong to take notice of and be
governed by such fact. State v. Kruttschnitt, 178.

DISTINCTION BETWEEN COIN AND CURRENCY FOR TAXATION PURPOSES. The action of the Legislature in making a distinction between gold coin and legal tender paper currency for the purposes of valuation of property for taxation, and directing assessors as to the currency on which to base their estimates of value, is not in violation of the laws of the United States. State v. Kruttschnitt, 178. STANDARD OF CURRENCY VALUE. The true standard of the difference between coin and legal tender paper currency, for the purposes of the valuation of the products of mines for quarterly taxation, is the average of the prices of currency for the preceding quarter. State v. Kruttschnitt, 178.

CONGRESS HAS NOT PROHIBITED SPECIFIC CONTRACT LAWS. There is nothing in the laws of Congress prohibiting the enforcement of contracts for the payment of coin in accordance with their strict letter by judgments for the kind of money agreed to be paid. Linn v. Minor, 462. SPECIFIC CONTRACT LAWS. It is a matter of indifference to the United States Government whether individual debts be paid in one currency or another; nor does the legislation of Congress make it the duty of any person to employ notes in preference to gold; nor is it in contravention of public policy or contrary to good morals to allow a person to waive his privilege of paying his debts in legal tender notes. Linn v. Minor, 462.

MILLIKEN. SLOAT, 1 NEV. 585, beyond its operation in enabling dishonest debtors to defraud their creditors, has been a dead letter ever since its rendition, and virtually overruled by the moral power of the upright portion of the community. Linn v. Minor, 462.

IRREGULAR JUDGMENT FOR GOLD COIN NOT VOID-see JUDGMENT, 3.

ASSESSMENTS ON PROCEEDS OF MINES TO BE IN CURRENCY-see TAXES, 7.

DAMAGES.

1. DAMAGES FOR CONVERSION OF PERSONAL PROPERTY. If personal property is unlawfully seized and converted, the measure of damages is the value of the property at the time of conversion, and interest from that time to judgment. Carlyon v. Lannan, 156.

2. DAMAGES BY RAFTING TIMBER WITHOUT NEGLIGENCE. In a proceeding by appraisement for damages naturally and necessarily resulting from the acts authorized by the Act regulating the rafting and running of timber and wood on the rivers of the State (Statutes of 1866, 198) it is unnecessary to show carelessness or negligence. Mandlebaum v. Russell, 551.

AMENDMENT REDUCING CLAIM TO DAMAGES-see AMENDMENTS, 3.

DAMAGES FOR UNREASONABLE APPEAL-see APPEALS, 7.

DAMAGES ON APPEAL FOR DELAY-See APPEALS, 9.

DAMAGES INCIDENT TO INJUNCTION-See INJUNCTION, 2.

DAMAGES FOR NEGLIGENCE IN FLOATING TIMBER-See NEGLIGENCE.

DEEDS.

1.

to show that he is acting in his official character and by due authority of law,

SUFFICIENCY OF SHERIFF'S DEED. If the recitals of a sheriff's deed are sufficient

2.

3.

1.

2.

it becomes a good deed upon being signed and delivered, without reference to acknowledgment. Matter of Smith and others, Claimants, 254.

ACKNOWLEDGMENT OF SHERIFF'S DEED. The failure of an acknowledgment of a sheriff's deed, which is otherwise sufficient, to show that he acknowledged it as sheriff, does not render it invalid, for the reason that the deed is good without acknowledgment. Matter of Smith and others, Claimants, 254. EVIDENCE-DEEDS MADE PRIOR TO STATUTE OF CONVEYANCES. A deed made prior to the Act of November 5, 1861, concerning conveyances, but acknowledged as provided therein, is admissible in evidence, such acknowledgment being competent prima facie proof of its execution. Sharon v. Davidson, 416. ALTERATION OF DEEDS-see ALTERATION.

CONVEYANCE TO ADMINISTRATOR-See EXECUTORS and ADMINISTRATORS.

A DEED ABSOLUTE ON ITS FACE MAY BE SHOWN A MORTGAGE-See MORTGAGES, 3.

LIENS OF DEEDS INTENDED AS MORTGAGES-See MORTGAGES, 7.

RECITAL OF ASSIGNMENT IN SHERIFF'S DEED-see SHERIFF, 2.

TAX DEED AS PROOF OF TITLE-See TAX DEED, 1.

RECITAL OF JUDGMENT IN TAX DEED-See TAX DEED, 2.

DEFAULTS.

OPENING DEFAULT. Courts should be liberal in setting aside defaults, when it appears that the party defaulted has a good defense, and has been guilty only of carelessness and inattention, without willful or fraudulent delay. Howe v. Coldren, 171.

JUDGMENT BY DEFAULT-INEXCUSABLE NEGLECT. On a motion to open a judgment by default, defendant presented his affidavit that he had employed an attorney to defend him in due time; that the attorney had filed a demurrer and advised him that it was good and would be sustained, and ample time be given to answer; that immediately afterwards defendant was called away and unavoidably detained in another county till after the demurrer was overruled, and till the next day (Sunday) after the five days given to answer had expired; that on the next day, (Monday) when he came to prepare and file his answer, he found that default and judgment had been entered against him, and that he had a meritorious defense; and his attorney also presented an affidavit that during the five days allowed to answer he had made repeated efforts to advise with the defendant, but without success; and that he had every reason to suppose, until the evening of the last day, that the time to answer would be extended by consent: Held, a case of inexcusable negligence, and that the refusal of the court below to open the default and judgment was proper. Harper v. Mallory, 447.

APPEAL FROM ORDER OPENING DEFAULT-See APPEALS, 5.

PRACTICE AS TO OPENING DEFAULT-See PRACTICE, 4.

DELIVERY.

DELIVERY OF PERSONAL PROPERTY ON ACCOUNT-See ACCOUNTS, 3.

DELIVERY ON SALE-See SALES, 5.