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State of Nevada v. Cleavland.

The indictment charges forgery by defendant of a check in words and figures following, with intent to injure one W. S. Hobart:

VIRGINIA, NEV., May 25th, 1868.

"Agency of the Bank of California.

Pay to Sapphire Mill, or bearer, one hundred and twenty dollars. $120.00. W. S. HOBART,

per N. C. Hall."

As extrinsic matter, it is averred that the Bank of California is a corporation under the laws of the State of California, having a branch office in Virginia City, State of Nevada, the business of which was to receive deposits and pay out money on checks of depositors, or their authorized agents. That Hobart, at the date of the check aforerecited, had credit at such agency; that Hall was his authorized agent to draw checks thereon.

Counsel for appellant object that the check as recited presents no sensible payee or drawee; and that the extrinsic matter averred is not sufficient to avoid the objection. Is that so? So far as the payee is concerned, the check is payable to bearer, which is sufficient. It is alleged that the drawee is engaged in the business of receiving money and paying the same on depositors' checks, as a branch of a California corporation; this it might lawfully do.

The principal portion of the business of this State is thus conducted by agents for foreign corporations, and the authority cited by counsel recognizes the right in explicit terms as by them quoted, thus: "A corporation duly organized, and acting within the limits of the State granting the charter, may, by vote transmitted elsewhere, or by agent duly constituted, act and contract beyond the limits of the State." (Angell & Ames on Corporations, Sec. 104.) It is argued, however, that such action must be subservient and incident to the business of the corporation where chartered, otherwise it is unauthorized and illegal.

Whether so or not, is no matter of enquiry here. The fact of existence for the purposes averred in the indictment is sufficient to constitute a proper drawee.

Upon the trial, the existence of the corporation was proved by proffer of its certificate of incorporation, the existence of the agency

State of Nevada v. Cleavland.

by the oral testimony of Mr. Martin, who testified "that it was an agency of the corporation, receiving deposits and paying out money on checks drawn, with Wm. Sharon as agent." It was unnecessary to have offered the certificate of incorporation. Such is the general current of decisions, for the question is not the legality of the corporation, but of the guilt or innocence of the defendant, to which the corporation is no party, but is simply collaterally introduced; and if the fact of existence be proved, it matters not whether it be such as would give it a standing in Court, were it there in its own behalf. (People v. Hughes, 29 Cal. 258.) So with the agency, it is not necessary to prove more with regard to it than with regard to its principal. That there was such an existence pursuing the business averred, was enough for the purpose of the prosecution.

The instruction complained of is simply a recital of a section of the statute regulating criminal proceedings, (Stats. 1861, 460, Sec. 240) and was properly given in connection with other matter to warn the jury against the seemingly plausible argument of counsel for defendant, that as Hobart, the person whom the indictment alleged the defendant intended to defraud, could not legally be defrauded, therefore there could be no such intent.

Though in one sense Hobart could not be defrauded, as he could not be held to pay forged paper; yet, on the other hand, he might have been defrauded, as he might have paid had not the forgery been discovered and proven; and so the presumption arises that the forger intended thus to defraud, as it cannot be supposed that he would commit the forgery intending or expecting that it would be discovered: there was then the existent possibility of fraud, which is all that the law demands. And again, the rule is as was substantially stated by the District Court: "Generally there are two persons who legally may be defrauded; the one whose name is forged, and the one to whom the forged instrument is to be passed; and so the indictment may lay the intent to defraud either of these, and proof of an intent to defraud either of these, and proof of an actual intent to pass as good, though there be shown no actual intent to defraud the particular person, will sustain the allegation." (2 Bishop's Crim. Law, Sec. 556.)

The indictment then being sufficient, and no error occurring at the trial, the judgment of the District Court is affirmed.

The State of Nevada v. The Eberhart Company.

THE STATE OF NEVADA, APPELLANT, v. THE EBERHART COMPANY, RESPONDENT.

APPEAL-TRANSCRIPT CONTAINING NOTHING TO BE REVIEWED. Where, on appeal from a judgment and order overruling a motion for a new trial, the transcript contained neither judgment, order, settled or agreed statement, nor bill of exceptions: Held, that there was nothing before the Appellate Court which could be reviewed.

PRACTICE. DISMISSAL OF APPEAL. Where there is a failure to bring up in the record anything to be reviewed, the appeal, will be dismissed.

APPEAL from the District Court of the Sixth Judicial District, Lander County.

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This was an action brought in the name of the State by the district attorney of Lander County, against the Eberhart Company, F. Drake, E. Applegarth, Sprowl, Barris, J. W. Crawford, and the Eberhart mine and ledge, to recover one thousand eight hundred and forty-five dollars and fifty-eight cents, a balance of taxes on the proceeds of the Eberhart mine for the last quarter of 1868. The entire tax for the quarter was seven thousand one hundred and thirty-six dollars and twenty-four cents, of which five thousand two hundred and ninety dollars and sixty-six cents had been paid. The defendants set up in their answer certain proceedings of the board of county commissioners, acting under the Act of April 2d, 1867, (Stats. 1867, 164) and releasing the amount of taxes claimed. The court below decided in favor of defendant, and overruled a motion for new trial:

The transcript contained what purported by its caption to be "A statement on motion for new trial to be used also on appeal," embracing complaint, answer, exhibits, findings, motion for new trial and grounds of motion; but no certificate of agreement by attorneys, or settlement by the Judge. The only other matters contained in the transcript were a notice of appeal, and certificate of clerk that the record was a correct and true copy of the original matter thereof remaining in his office, at Austin.

Robert M. Clarke, Attorney General, for Appellant, attacked the constitutionality of the Act of April 2d, 1867, on the ground

Carson v. Applegarth.

that it did not provide a uniform and equal rate of assessment and taxation, (citing 3 Nev. 173; 4 Nev. 178; 34 Cal. 434; 9 Wis. 414; 11 Wis. 34) and on the ground that it was a special law for the assessment and collection of taxes for county purposes, (citing 5 Nev. 121; 10 Wis. 180; 5 Ind. 4; Smith's Com., Sec. 802; 20 Cal. 534; 2 Minn. 295; 2 Kent's Com. 331; Blackwell on Tax Titles, 6).

Aldrich

Wren, for Respondent, maintained the constitutionality of the Act of 1867, and called attention to the fact that the transcript did not contain the judgment.

By the Court, LEWIS, C. J.:

This appeal purports to be from a judgment, and also from an order overruling a motion for new trial, neither of which, however, appears in the record; nor does the transcript contain any settled or agreed statement either on motion for new trial or on appeal, nor any bill of exceptions; hence there is nothing before us which can be reviewed.

This failure to bring up the case as the Practice Act plainly requires, deprives the county of a hearing on the merits, and makes it incumbent on this Court to dismiss the appeal.

It is so ordered.

R. H. CARSON, RESPONDENT, v. CLARKSON APPLEGARTH et als., APPELLANTS.

REQUISITES OF VERDICT IN REPLEVIN. Where, in replevin, it appeared that a portion of the property had been delivered to plaintiff, and defendant claimed a return, and there was a general verdict for plaintiff in a sum certain: Held that the verdict was erroneous, for the reason that no such peculiar judgment or execution as are provided for by statute in such cases could be rendered or issued thereon.

REPLEVIN VERDICTS, JUDGMENTS AND EXECUTIONS. In a replevin case, where the property has not been delivered to plaintiff, a verdict and judgment in his favor are required by the statute, (Practice Act, Secs. 179 and 202) to be in the alternative, and so also is the execution.

Carson v. Applegarth.

REPLEVIN OPTION TO TAKE PROPERTY OR VALUE. In a replevin suit, where the verdict is for plaintiff, and he has not already received the property, defendant has a right to deliver it instead of money, and in such case the option to take the property or its value does not rest with plaintiff.

APPEAL from the District Court of the Eighth Judicial District, White Pine County.

The plaintiff commenced his replevin suit against Clarkson Applegarth, S. L. Baker, Robert Kelly, Thomas Luther, Frank Drake and others, to recover certain ore taken from the "Ohio State Claim," on Bromide Flat, in White Pine County. The amount taken was alleged to be forty-two tons and upwards, of which twenty-six tons and upwards had been crushed and washed at the Eberhart Quartz Mill. The remaining sixteen tons being in the hands of defendants, were seized by the sheriff and delivered to plaintiff.

Aldrich & Wren, for Appellants.

I. The verdict is not in accordance with the requirements of the statute in cases of this kind. It should have been for the possession of the property, or its value, or damages for detention. (Practice Act, Secs. 179 and 202.)

II. The verdict is not responsive to the issues in the case, and is too uncertain to render a judgment upon, such as would be proper; and this especially so when it is considered that part of the property had been delivered to respondent, and was at time of the trial in his possession.

Tilford & Foster, for Respondent.

By the Court, WHITMAN, J.:

Respondent brought his action to recover certain specific personal property. Of that property a portion had been delivered to him, a portion not. Appellants claimed a return. The following verdict was rendered: "We, the jury in the above entitled cause, find for plaintiff in the sum of three hundred and one dollars." Upon this verdict, judgment was rendered for the amount found, and

costs.

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