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ed on account of the corporation, and do not deny that they received the sum of $30,000; but they do not plead a stated account in bar, or tender the issue of nothing in arrear; thereby conclusively establishing the existence of conditions giving the court equitable jurisdiction of the subject-matter. Under the rules of former practice it was customary in a suit for an accounting to render an interlocutory decree known as "quod computet" (Mórton v. Lea, supra; Closson v. Means, 40 Me. 337); but such decree was not necessarily a condition precedent to referring the cause to a master, auditor, or referee to take and state the account (Spalding v. Day, 37 Conn. 427). The decree in such cases, "that the defendant do account," was equivalent to an adjudication upon the pleadings that a court of equity had jurisdiction of the subject-matter (McPherson v. McPherson [N. C.] 53 Am. Dec. 416); and the fact that defendants herein introduced testimony after the motion was overruled tends to show that the court did not hold that it was without jurisdiction. The question, then, presented by this appeal, as we view it, is whether the court, after considering that it had jurisdiction, was obliged to refer the cause to a master to take and state the account, or whether it could do so itself. In Taylor v. Trust Co., 1 App. D. C. 209, which was a suit to foreclose a deed of trust, it was held that it was the duty of the court to ascertain the amount due, and that in discharging such duty it might call to its assistance the services of an auditor, but that this was a matter entirely within its discretion. In Bryan v. Morgan, 35 Ark. 113, which was a suit by one partner against another for an accounting, the court, upon motion therefor, refused to refer the cause to a master, and it was held that no error was thereby committed, the court saying: "The chancellor may himself take an account, announce the result, and decree accordingly." In Hidden v. Jordan, 28 Cal. 301, it is held that it is in the discretion of the court to take the account or to refer the cause to a commissioner or referee for that purpose. In Emery v. Mason, 75 Cal. 222, 16 Pac. 894, it was held that in a suit for an accounting the court may itself take or state the account, and, when it does so, a refusal to order a reference for such purpose is not erroneous. In Montanye v. Hatch, 34 Ill. 394, it is held that a court of equity has power to discharge the duties ordinarily performed by its master in stating an account between parties, and that no injustice was done in refusing to refer the matter to a master, because either party had the same rights before the court in regard to the production of books and examination upon interrogatories that he would have enjoyed before a master. In Jewett v. Cunard, 13 Fed. Cas. 594 (No. 7,310), it is held that, where the court has the means to take an account satisfactorily, and is disposed to do so, the cause will not be referred to a master unless both sides desire it and acquiesce

in the further delay and expense incident thereto. To the same effect, see Wheeler v. Billings, 18 C. C. A. 573, 72 Fed. 301; Martin v. Foley, 82 Ga. 552, 9 S. E. 532; Carter v. Lewis, 29 Ill. 500; City of Belleville v. Citizens' Horse Ry. Co., 152 Ill. 171, 38 N. E. 584, 26 L. R. A. 681; Shipp v. Jameson, 1 Litt. Sel. Cas. 190; Goodrich v. Parker, 1 Minn. 195 (Gil. 169); Pierce v. Thompson, 6 Pick. *193; Bailey v. Westcott, 6 Phila. 525.

The motion to require the defendants to render an account was evidently treated by the court and parties as a request to refer the cause to a master to take and state the account, and, when this motion was overruled, the plaintiffs had every opportunity to ascertain the condition of the account before the court that they could have enjoyed before a master. Montanye v. Hatch, supra. The transcript, relating to the filing of the motion, is as follows: "Mr. Carson, attorney for the plaintiffs, asked permission of the court to file a motion asking that an interlocutory decree be issued compelling the defendants to render an accounting. The Court: You can file a motion, and I will pass upon it.'" In pursuance of this permission the following motion (omitting the title and subscription) was filed: "Now, on this 11th day of November, 1898, at the close of the evidence offered by plaintiffs at the trial of this cause, the plaintiffs move the court for an order or decree directing the defendants Hofer to render an account. This motion is based upon the pleadings and evidence offered by plaintiffs and received upon the trial of this suit." If this motion be regarded as an application to the court for an order requiring the defendants to prepare and file a bill of particulars containing an itemized account of moneys collected and paid out on behalf of the corporation, and it be admitted that it is within the power of the court to grant the motion, it is at most discretionary (Hill's Ann. Laws, § 521), and no error can be predicated upon a refusal to comply with the request, unless it is manifest that such discretion has been abused, which, in our judgment, is not apparent. If a party allege an account, and do not set forth in his pleading the items, nor file therewith a copy thereof, he must, within five days after a demand therefor in writing, deliver to the adverse party a copy of the account; and, if the one filed or delivered be defective, the court may order a further account, and, if the party refuse to comply therewith, he shall be precluded from giving evidence thereof. Id. § 83. It will be remembered that the defendants do not allege an accounting with the corporation, nor does it appear that any demand was made upon them for a copy of their account; and hence plaintiffs could not insist, as a matter of right, upon the filing of a bill of particulars.

At the argument our attention was called by plaintiffs' counsel to the case of Miller v.

Kent, 60 How. Prac. 388, where it was held that a broker, who is the agent of his client, ought to be required to show fully and specifically each item of the account which he charges against his client, and the defendants were thereupon ordered to serve a bill of particulars; but this was done, however, in pursuance of a statute of New York which · provided that "the court may in any case direct a bill of particulars of the claim of either party to be delivered to the adverse party," thus making the order evidently a matter of discretion. To the same effect is Morgan. Morgan, 48 N. J. Eq. 399, 22 Atl. 545, in which it was held that when a party claims by his bill that he has been acting as trustee or agent, and as such is entitled to an account with his cestui que trust or principal, it is his duty to present his account with his bill, and, if he fails to do so, it is proper for the court, when a reference to a master is asked for, after taking the testimony, to suspend the hearing, and require the plaintiff to make and present such account. The latter decision would seem to have been made under a statute like ours. In Campbell v. Knowles, 13 Phila. 163, it is held that an order for the production of books and papers will not be made unless the bill prays for a discovery of facts material to the issue. See, also, 6 Enc. Pl. & Prac. 781. In the case at bar no discovery is prayed for in the complaint, and, this being so, the plaintiffs cannot insist upon the production of a bill of particulars as a matter of strict legal right, thus exceeding the court's discretion. Besides, the defendants were evidently ready to submit their books to the inspection of the court and parties in order that the account might be determined therefrom; for A. F. Hofer, Jr., in answer to an interrogatory propounded to him on cross-examination, read from his ledger the credits respecting his salary, though the books were not offered in evidence. Whether the judgment rendered against the corporation is vulnerable to a collateral attack because the claims upon which it was predicated were audited by the defendants, who constitute a majority of the board of directors making the allowance, becomes important only in case of an accounting between the parties; but the failure of the plaintiffs to avail themselves of the opportunity afforded them to try the cause before the court on the merits precludes the necessity of considering the question. The errors insisted upon not appearing to have been prejudicial, the decree is affirmed.

(20 Nev. 55)

STANLEY V. MINERAL UNION, Limited, et al. (No. 1,596.)

(Supreme Court of Nevada. Dec. 24, 1900.) MINES-STATE LANDS-RIGHTS OF PATENTEE.

Act Cong. June 16, 1880 (21 Stat. 287). granting certain lands to the state of Nevada,

9

authorized the state to dispose of them under such regulations as the legislature should prescribe. Act March 5, 1887, after providing for the sale of such lands, provided that nothing in the act should be construed to prevent any person entering on the lands to prospect for minerals, or to prevent the economical working of any mine which might be discovered therein. St. 1887, p. 102, provided that any citizen might enter on any mineral lands in the state, notwithstanding the state's selection of it under grants, and explore for minerals, and, on the discovery thereof, mine the same, except that improvements made by persons purchasing the land from the state should not be taken or injured without compensation, and that thereafter all patents made by the state should reserve all mines that might exist on the land. Held, that one taking a patent to such lands, with such reservation, acquired no interest in a mine located after his application was filed, but before the patent issued, notwithstanding that the selection by the state under the grant from the government determined that the lands were agricultural and nonmineral, within the meaning of the grant.

Appeal from district court, Lincoln county; G. F. Talbot, Judge.

Action by William B. Stanley against the Mineral Union, Limited (a corporation), and H. Hirsching and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Henry Rives, for appellant. Louis Gottschalk and F. R. McNamee, for respondents.

MASSEY, J. This is a proceeding in ejectment and for damages. The verdict of the jury was for the respondents. From the judgment rendered thereon, and the order denying the motion for a new trial, this appeal was taken.

Briefly, that part of the answer of the respondents pertinent to the question presented on the appeal sets up as a defense that the respondents were in possession of the premises in controversy under and by virtue of a valid mining location made on the 14th day of January, 1899, by the respondent Henry Hirsching, known as the "Hirsching Lode-Mining Claim," record of which had been duly made upon the records of the Yellow Pine mining district, and upon the records of the recorder's office of Lincoln county, wherein said mining claim and mining district are situated; that said claim contains large deposits of gold, silver, and copper ore, and is valuable only for the precious metals therein contained; that after making the location the respondents had done a large amount of development work thereon, and had erected thereon certain buildings and a plant for the reduction of ores, at a cost of about $40,000. The appellant showed title to the lands from the state by purchase under patents issued on the 23d day of May, 1899. It was further shown, and is not disputed, that in the year 1893 the appellant made application to purchase the lands in controversy from the state of Nevada, as agricultural lands, under the grant made by the act of congress of June 16, 1880 (21 Stat. 287), of 2,000,000 acres, in lieu of the sixteenth and thirty-sixth sections,

before that time granted for the support of the common schools. It is also conceded that all necessary and proper steps were taken for the selection of the land by the state, and its approval by the proper officers of the government. It was also shown that on the 7th day of February, 1896, and after the act of selection had been made, the state entered into a contract for the sale of the lands to the appellant, and thereafter patents were issued to the appellant under said contract of purchase. The evidence offered by the respondents supports the defense made by that part of the answer above set out, and the jury by its verdict so found. Appellant contends that these averments of the answer, and the facts shown thereunder, conceded to be true for the purpose of the argument, are no defense as against his rights under the patents from the state, and are not sufficient to authorize either the verdict of the jury or the judgment of the court. It is ably argued in support of this contention that the selection of the lands by the state under the grant, and the approval of such selection by the proper officers of the government, were a conclusive determination by the tribunal having authority for that purpose that the lands were agricultural and nonmineral, within the meaning of the act making the grant; that the act of selection by the state, and its patents to him, gave him the right to the exclusive possession of the lands embraced therein from the time he made his application, or at least from the date of the contract of purchase; that the subsequent discovery of valuable mineral lodes by the respondents gave them no rights as against the selection by the state, and his rights under the state's patents; that any attempt to defeat his rights in this proceeding under the patents is a collateral attack upon the findings of the authorized tribunal that the lands were agricultural and nonmineral in character, and excepted by the act from the grant; that an attack involving the character of the lands could only be made in a direct proceeding instituted for that purpose, and that the entry of the respondents upon the lands after selection by the state, and after appellant's contract of purchase had been executed, was a trespass, and such entry, even though the mining rules, laws, and regulations had been strictly complied with, did not initiate any right in the respondents as against the appellant.

A large number of authorities are cited by the appellant to support this contention, and, in a proper case, would control; but as the cases cited do not, as we believe, apply to the case at bar, we do not deem it necessary to discuss or review them. The question must be determined, as we view it, by the application of certain statutory rules, the enactment of our legislature. While it is probably true that under the act of June 16, 1880, supra, making the grant, and excepting there

from mineral lands, the selection by the state, and the approval of such selection by the authorized officers of the government, is such a determination of the agricultural and nonmineral character of the land, within the meaning of the grant, as to preclude any investigation involving that question in proceed- ́ ings of this character, based upon the subsequent discovery of valuable mineral deposits, it does not necessarily follow that the state must, under its laws regulating the sale of the lands thus acquired, by its conveyance vest in its grantee the same title and right acquired from the government under the grant. By section 3 of the act of June 16, 1880, supra, the state is, in direct terms, authorized to dispose of the lands under such laws, rules, and regulations as may be prescribed by the legislature. The only restriction or limitation found in the act relates to the use of the funds arising from the sale of the lands granted. The language used is clear and explicit. The laws, rules, and regulations for the disposal of the lands should be such as were prescribed by the legislature of the state of Nevada. In this matter power was delegated by congress to the legislature. The disposal of the land was left to its judgment and wisdom, and long before any steps were taken by the appellant to acquire or even initiate any right to the lands in controversy the legislature of this state, by law, defined his rights, as an applicant and contractor, to purchase the lands under the grant, and made provision for the maintenance of actions to sustain and protect the same. By the act of March 5, 1887, the legislature, in the exercise of this delegated authority, prescribed by law' to the effect that every person who has applied or may thereafter apply to or contract with the state to purchase land under the grant, in good faith, and who has paid or may thereafter pay to the proper officers of the state the required amount of money under such application or contract, shall be deemed and held to have the right to the exclusive possession of such land, provided that no actual adverse possession thereof existed in another at the date of the application. It was further provided that every person who has contracted with the state in good faith to purchase such land shall be entitled to maintain or defend any action at law or in equity concerning the same or its possession which may now be maintained or defended by persons who own land in fee, and that every person who has applied or shall thereafter apply to purchase, in good faith, such land, and has paid or shall thereafter pay the required amount of money under the application to the proper officer, shall be deemed and held to have the right to the exclusive possession of such land, and shall be entitled to maintain and defend any action at law or in equity concerning the same or its possession which may be maintained or defended by persons who own land in fee,

provided no actual adverse possession of such land existed in another at the date of the application. If the legislature had gone no further, then, under this statute, should the contention of the appellant be sustained, but it did not stop with these provisions. By section 3 of the act it provided in direct terms that nothing in the act contained should be so construed as to prevent any person or persons from entering upon such lands for the purpose of prospecting for any of the precious metals, or to prevent the free and economical working of any mine which may be discovered therein. Comp. Laws 1900, §§ 325-327. At the time the respondent Hirsching entered the lands in controversy and made the mining location, the appellant claimed them under his application and contract to purchase; and, by the provisions of section 3 of the act, Hirsching had a right to enter for that purpose. He was not trespassing at the time he entered, and by making his mining location he initiated the right by which he was enabled to work in a free and economical manner the mine which he discovered. The strength and infirmity of this act entered into and became a part of appellant's contract. He took possession of his land with his rights of action and right to exclusive possession limited by the provisions of said section 3. By its terms he could neither hold possession as against respondents, nor could he maintain an action to recover possession as against them, under the showing of the record. It cannot be successfully claimed that the issuance of the patents of the state at the date subsequent to the entry of the respondents in any manner terminated or concluded their rights. The legislature at the same session, and only a few days prior to the passage of the act, and in harmony therewith, declared, among other things, in an act to encourage mining, that any citizen of the United States, or person having declared his intention to become such, might enter upon any mineral lands in the state, notwithstanding the state's selection of it under the grants, and explore for gold, silver, copper, lead, cinnibar, or other valuable mineral, and, upon the discovery of any such mineral, might work and mine the same in pursuance of the local rules and regulations of the miners and the laws of the United States, provided that, after a person who has purchased lands from the state has made valuable improvements thereon, such improvements shall not be taken or injured without full compensation, but such improvements should be condemned for the uses and purposes of mining in like manner as private property is by law condemned and taken for public use. further declared mining to be of paramount interest and a public use. It still further declared that every contract, patent, or deed thereafter made by the state or its authorized agents should contain a provision expressly reserving all mines of gold, silver,

It

copper, lead, cinnibar, or other valuable mineral that may exist in such land, and disclaimed for the state and its grantees any interest in mineral lands selected by the state on account of any grant from the United States. St. 1887, p. 102 (Comp. Laws 1900, §§ 281, 282). The patent issued to the appellant contains the reservation provided for in the act last cited; and without entering upon a discussion as to what, if any, limitation should be placed upon the construction of the clause of the statute providing for the reservation, it is sufficient to say that under the showing of the record the Hirsching lode was located, worked, and improved, and known to exist, before the patent of the state was issued, and, if this clause of the statute is to be applied to any case, it seems especially appropriate that it should be made to apply to the case at bar. In other words, the state did not by its patent convey or attempt to convey the Hirsching lode. It did not terminate any rights of the respondents to the possession of the claim. It did not, under the facts of the case, devest or attempt to devest the respondents of any rights initiated by their location, work, and improvements made upon the claim; and it was proper in this action to set up and have determined their rights under these statutes. By the terms of the statutes the respondents were lawfully in the possession of the mine, and lawfully entitled to the possession thereof. This right was not violative of any of the terms of the appellant's contract to purchase. It does not conflict with any of his rights under his patent, as defined by the statutes. If these statutes cannot be applied to the facts of this case, then they are nugatory. If they render unstable and have a tendency to unsettle titles, the remedy must be, if it can be, found in the legislative department. We do not make the laws. It is our duty to construe and apply them.

Error based upon the giving and refusal to give certain instructions is not properly before us. The instructions are not in the statement. No objection was made or exception taken to the action of the court in this matter. McGurn v. McInnis, 24 Nev. 370, 55 Pac. 304, 56 Pac. 94.

The other questions not waived are without merit. The judgment and order appealed from are, for the reasons given, affirmed.

BONNIFIELD, C. J., and BELKNAP, J.,

concur.

(131 Cal. 6)

GIBSON v. HENLEY. (S. F. 1,707.) (Supreme Court of California. Dec. 18, 1900.) STATUTE OF LIMITATIONS-MONEY HAD AND RECEIVED-PARTNERSHIP.

A member of a law partnership embezzled money belonging to a client in February, 1893, the partner not knowing of or participating in the fraud; and the client brought action

against the partner to recover the sum so embezzled in February, 1896. Held, that the action came within Code Civ. Proc. § 339. as being for money had and received, and, since it was not brought within two years from the time the right of action accrued, recovery was barred.

Commissioners' decision. Department 2. Appeal from superior court, city and county of San Francisco; W. R. Daingerfield, Judge. Action by Thomas Gibson against Barclay Henley. From a judgment in favor of the plaintiff, defendant appeals. Reversed.

Henley & Costello (Crittenden Thornton, of counsel), for appellant. Samuel Knight, for respondent.

SMITH, C. The appellant, Henley, was sued as a member of the law firm of Henley & McSherry, doing business in San Francisco during the years 1892-93, and judgment recovered against him for $602.50 and costs. McSherry was made party to the complaint, but was not served. The suit was commenced February 4, 1896,-within three years, but not within two years, of the accrual of the cause of action. The defendant pleaded the two-years statute (Code Civ. Proc. § 339). The sole question involved in this appeal is as to the bar of the statute pleaded, and this again turns upon the question whether the action is to be regarded as an action for relief on the ground of fraud, or merely as an action on contract, or for money had and received. If the latter, the action is barred; otherwise not. The facts on which the question turns are as follows: Henley & McSherry and one Hart of New York were attorneys for the plaintiff in the matter of an estate in process of settlement in Brooklyn, N. Y., in which plaintiff was interested. Hart, on or about February 8, 1893, having collected the money coming to the plaintiff, transmitted to Henley & McSherry, by mail, a check for $445, payable to the order of the plaintiff. This check was received by McSherry, who, it is found, obtained and embezzled the money. The plaintiff did not learn the fact of the embezzlement of the money until June 2, 1893,-within three years, but not within two years, of the commencement of the suit, which occurred February 4, 1896. There is no allegation that the defendant, Henley, participated in or knew of, or received the benefit of, the money embezzled; indeed, it is expressly found that he did not know of it until on or about November 25, 1893. On this state of facts it is very clear that there is no cause of action for fraud against the defendant, Henley. The complaint shows a fraud committed by his partner, McSherry, but it is not pretended that Henley was in any way connected with it, otherwise than by the existence of the partnership relation. By force of this relation he became responsible for the money received by McSherry, and also for the damages caused by the fraud, if any; but he did not become guilty of the fraud, nor could he be sued di

rectly for it. There are certain cases where all the members of a firm become participes criminis in a tort, and may be jointly sued. But this is not the case where the only liability for the tort arises out of the partnership relation. In such cases they are responsible only on the principle of agency. 1 Lindl. Partn. 147, 149, 150, et seq.; 1 Bates, Partn. §§ 467, 468, 474-478; Civ. Code, §§ 2330, 2431, 2443. Thus, e. g., where a trespass has been committed by one of the partners in the conduct of the firm business, the offending partner may be sued in trespass, or all the partners jointly in case, but not in trespass. Moreton v. Hardern, 4 Barn. & C. 223. So, in the present case, the plaintiff might have sued McSherry for the fraud, but could not have joined Henley; or he might sue both on the firm obligation,-as he has in fact done. It follows that the action was barred by the statute, and, as this appears from the specific facts found, a new trial will be unnecessary. I advise that the judgment be reversed, and the cause remanded, with directions to the lower court to enter judgment on the findings for the defendant.

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1. Code Civ. Proc. § 948, authorizes the appellee, on appeal from a judgment directing the sale of real estate, to except to the sufficiency of the sureties on the bond required by section 945 to be given by the appellant in order to stay proceedings, at any time within 30 days after the filing of the bond, and declares that, unless within 20 days after the appellant has been served with notice of such exceptions the sureties justify, the judgment appealed from shall be no longer stayed. Held, that where a decree of foreclosure of a real-estate mortgage was appealed from, and on June 2d appellant filed a sufficient stay bond, but a mortgage sale was had June 3d, and 13 days after the sale appellee excepted to the sureties, who failed to justify, the sale should have been vacated, as the bond operated as a stay until the expiration of the period allowed for justification.

2. That some of the sureties on a bond given under Code Civ. Proc. § 945, requiring that, in order to stay proceedings on appeal from a decree foreclosing a real-estate mortgage, appellant must give an undertaking as therein prescribed, were on the bond twice, for different sums, did not vitiate it.

3. Code Civ. Proc. § 945, requires that, on appeal from a decree foreclosing a real-estate mortgage, proceedings cannot be stayed unless appellant execute a bond conditioned that during the possession of the property by him he will not commit waste; that, if the decree be affirmed and the appeal dismissed, he will pay

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