words binding him.

The State of Nevada v. Rhoades.

Comyn's Digest, title Parliament, R. 8. There are it is true many exceptions to this rule, but it has been expressly held that he is not included in an act imposing a tax or duty, so Comyn tells us. Id. And that was directly held by the King's Bench in the case of the King v. James Cook, 3 Term R. 519 The case arose upon these facts. The statute 25, Geo. III, C. 50, f. 4, enacted that "for and in respect to every horse hired by the mile or stage to be used in traveling post, there shall be charged a duty of one and one-half pence for every mile such horse shall be hired to travel post"-and the fifteenth section declared that the postmaster shall ask, demand and receive of and from the person or persons hiring the same the sum of one and one-half pence per mile." It appeared that the defendant was a postmaster and innkeeper, and was duly licensed to let to hire, horses for the purpose of traveling post. A package addressed to the postmaster general was brought and delivered to him to be forwarded to London. The defendant, immediately on receiving the letter, forwarded the same by a man and horse to its destination. It appeared that the postmaster general paid the expenses of the post out of the revenue of the post-office, and that the defendant was allowed at the rate of 3d per mile for carrying the package. The defendant, having failed to make an account of this hiring as the law required, he was convicted and fined. The King's Bench reversed the conviction; Lord Kenyon, in delivering the opinion of the Court, saying, after referring to the sections of the statutes above quoted: "Now, in this case who can said to be the person hiring the horse? The packet was sent for the use of Government, and it passed through the hands of the different postmasters, who forwarded the express in consequence of an official duty incumbent upon them. But they cannot be said to be the persons hiring the horses within the meaning of the act. My opinion proceeds on the ground that this was on the service of Government; and the case states in express terms that the packet contained a letter directed to one of the principal secretaries of State, and that it was not on any private business whatever, but wholly related to the public concerns of the kingdom. Now, although there is no special exemption of the king in this Act of Parliament, yet I am of opinion that he

The State of Nevada v. Rhoades.

is exempt by virtue of his prerogative in the same manner as he is virtually exempted from the 43d Eliz., and every other act imposing a duty or tax on the subjects. And I understand that the horses carrying the mail were never deemed liable to post-horse duty." The common law upon this head is held to apply with equal force to the several States, and also to the Federal Government, as to the king in England. Says Judge Story, in the United States v. Hoar, 2 Mason, 314: “But independent of any doctrine founded on the notion of prerogative, the same construction of statutes of this sort ought to prevail founded upon the legislative intention. Where the Government is not expressly or by necessary implication included, it ought to be clear from the nature of the mischiefs to be redressed or the language used, that the Government itself was in contemplation of the Legislature, before a Court of law would be authorized to put such an interpretation upon any statute. In general, acts of the Legislature are meant to regulate and direct the acts and rights of citizens; and in most cases the reasoning applicable to them applies with very different and often contrary force to the Government itself. It seems to me, therefore, to be a safe rule, founded in the principles of the common law, that the general words of a statute ought not to include the Government or affect its rights, unless that construction be clear and indispensable upon the text of the Act." See also, The People v. Gilbert, 18 Johnson, 227. So, in accordance with this rule, it was held in the case of the People v. Rossiter, 4 Cowan, 143, that the State was not bound by the provisions of a Bankrupt Act, unless expressly named. Certainly, there is nothing in the text of the Act referred to, except the mere generality of the words that the fee shall be paid at the "commencement of every civil action," from which it can be presumed the Legislature intended to include the State. And a tax levied by the State upon itself, or its own transactions, is so anomalous that it cannot be supposed it was intended, unless upon the clearest language. A more appropriate application of the rule of the common law could not be made, than to cases of this kind. We conclude the statute does not include actions instituted by the State.

The objection made to the question propounded to the witness Bostwick is clearly untenable. It was shown that his examination

The State of Nevada v. Rhoades.

of the affairs of the treasury extended over the entire period between the organization of the State and the time of the vacancy caused by the death of the obligor on the bond sued on. His preliminary examination certainly shows a very thorough investigation of the accounts of the office; after which the question, "What was the result of your examination as to the amount of money which should have been in the treasury on the tenth day of September, 1869," was entirely free from the objections interposed, namely, that it called for secondary evidence, and that the examination made by the witness was only partial. As to the first objection, the statute is a sufficient answer. Subdivision fifth of Sec. 427 of the Practice Act of 1869, expressly dispenses with written vouchers, or written documents, "when the original consists of numerous accounts or other documents which cannot be examined in Court without great loss of time, and the evidence sought from them is only the general result of the whole." Such also is the law independent of statutes. (1 Starkie on Evidence, 96.) The second objection is not borne out by the record. The examination of Mr. Bostwick preliminary to asking the question unmistakably shows, not a partial, but a full and complete investigation of the monetary transactions of the treasury during the entire period of Rhoades' incumbency.

Again, it is argued the Court erred in overruling defendants' objection to this question put to the treasurer's clerk: "What amount of money do the entries in the treasurer's books show ought to have been in the treasury on the tenth day of September, A. D. 1869"? The ground of this objection, as stated in the transcript, is "because the entries were not shown to have been made under or by the Treasurer Rhoades, or with his knowledge or in his life time." The statute laws of 1866, page 57, Sec. 4, make it the duty of the State treasurer to keep a just, true and correct account of all moneys received and disbursed by him; and thus the books kept by him in accordance with this statute would clearly come under the head of public records, of which Greenleaf (Ex. Vol. 1, Sec. 484) remarks: "These books, therefore, are recognized by law because they are required by law to be kept; because the entries in them are of public interest and notoriety,

Sharon v. Minnock.

* *

and because they are made under the sanction of an oath of office, or at least under that of official duty. When identified and shown to have come from the proper repository, they are received as evidence without further attestation." Public officers are always presumed regularly and duly to perform the duties imposed on them by law; therefore when books which the law requires them to keep are offered in evidence, all intendments are in their favor; it is presumed the entries were regularly made at the proper time and in accordance with the facts-consequently, if any irregularity, mistake or fraud is claimed to have been committed, the burden of establishing it is on the party relying upon it. (6 Duer, 512.) The treasurer's books very clearly come within the rule above stated, and hence the objection that it was not shown that the entries were made by or under the authority of the treasurer was entirely untenable, for it was not incumbent on the plaintiff to make any such showing, the law presuming such to be the case, if indeed it were at all essential that the entries should have been so made. Manifestly, the objection was not maintainable upon the ground stated.

Judgment reversed and cause remanded.

GARBER, J., dissented.

WILLIAM SHARON, RESPONDENT, v. JOHN MINNOCK, APPELLANT.

OBJECTION AS TO RIGHT TO EXECUTE DEED NOT OBJECTION AS TO EXECUTION. Where the only specification of objection to the introduction in evidence of a deed was that the alleged grantor, a corporation, had not been shown to have title: Held, not broad enough to cover an objection that the corporate seal had not been proved, nor any authority shown to affix it to the deed. PARTICULAR GROUND OF EXCEPTION TO BE STATED. The particular ground of

an objection or exception taken in the course of a trial is required to be stated, (Practice Act, Sec. 191) so that the court may decide intelligently upon it, and the opposite party be afforded on opportunity of obviating the objection if it be in his power to do so.

OBJECTIONS TO ADMISSION OF EVIDENCE Too LATE AFTER EVIDENCE ADMITTED. Where a deed was admitted in evidence under insufficient objections to its val

Sharon v. Minnock.

idity for alleged want of title in the grantor; and afterwards, on motion for non-suit, further grounds of exception on account of its alleged want of proper execution were made to it: Held, that the latter objections were too late and therefore not available.

FAILURE TO OBJECT TO WANT OF PROOF WHEN WAIVER of Proof. Where a deed

purporting to be that of a corporation was permitted to be introduced in evidence, without any objection, at the time, that the seal had not been proved, nor any authority to affix it shown: Held, a waiver of such proof. OBJECTIONS TO EVIDENCE TO BE MADE PROMPTLY. An objection to the admission of evidence should always be made at the earliest opportunity after the objec tion becomes apparent; if apparent when offered, it should be made then; if the evidence, apparently admissible when offered, is shown by subsequent developments to be exceptionable, the objection should then be made in the form of a motion to strike out.

SPECIFICATION OF GROUNDS OF NON-SUIT. The grounds urged for a non-suit are required to be as specifically designated as any other exceptions or objections taken in the course of a trial.

DEED OF CORPORATION - PRESUMPTION OF AUTHORITY TO AFFIX SEAL. Where the seal on a deed purporting to be that of a corporation was proved, or in other words, the deed was admitted in evidence without objection for want of proof of such seal: Held, that the presumption followed that it had been affixed by competent authority; and that the burden of proof to show want of authority was upon him alleging such want. ESTOPPEL IN PAIS. To constitute an estoppel in pais it is essential among other things that the party relying on it should have been influenced by the acts or silence of the other, and been caused thereby to act as he would not otherwise have acted; else he cannot complain that he was deceived to his prejudice.

ESTOPPEL MUST BE PLEADED. An estoppel cannot be proved if it be not sufficiently pleaded.

PLEADING OF ESTOPPEL IN PAIS. In pleading facts to show an estoppel.in pais,

it is necessary to set forth every essential element of such an estoppel; and among other things, that the party relying on it was influenced in his conduct by the acts or silence of the other.

RECORD OF DEED, CONSTRUCTIVE NOTICE OF CONTENTS TO WHOM. The record of a deed only imparts notice of the contents thereof to subsequent purchasers and mortgagees, etc., and not to persons who claim by entirely independent right or title.

ERROR WITHOUT PREJUDICE. A judgment will not be reversed on account of an erroneous instruction, if it appear that such instruction was impertinent to the issue, and did no injury to the party complaining.

PRESUMPTION OF CLAIM TO ENTIRE TRACT BY ENTRY UNDER DEED. A person entering upon a tract of land under a deed with definite boundaries, is presumed by the mere act of entry so made to intend to claim the entire tract. FACTS PROVED AND NOT CONTROVERTED NEED NOT GO TO THE JURY. It is no error for a court in its charge to take from the consideration of the jury a fact proven by one party and not controverted by the other.