HAWLEY, C. J. John Williams, the above named defendant, petitions this court for a writ of certiorari to review the action of the district court of the fifth judicial district in adjudging him guilty of contempt for diverting the waters of Duckwater creek, in violation of the judgment and decree of said court in the suit of Strait v. Williams.

It is claimed by petitioner that the affidavit presented to the court was insufficient, to give the court jurisdiction, in two essential particulars:

1. The affidavit was verified by D. S. Truman. It was not, therein, alleged that Truman was a party beneficially interested, or that he was the attorney or agent for the plaintiffs.

The statute does not require that the affidavit shall be made by a party beneficially interested in the proceedings. It reads as follows: "When the contempt is not committed in the immediate view and presence of the court or judge at chambers, an affidavit shall be presented to the court or judge of the facts constituting the contempt:" 1 Comp. L., 1,522.

Undoubtedly, a court would refuse to act unless satisfied that the party making the affidavit was authorized to do so by the party beneficially interested in the proceedings. The presumption, however, is that the plaintiffs, by their attorney, presented the affidavit, and that fact would be sufficient to satisfy the court that the party making the affidavit was authorized to do so.

2. It is claimed that the affidavit is insufficient, in this: That it does not allege that the decree was duly made and entered, and that it only sets forth conclusions of law, instead of a statement of facts.

The affidavit is loosely drawn, and its form is subject to criticism. It might have been, and ought to have been, more specific in many respects. But we are of the opinion that sufficient facts are stated to set the power of the court in motion.

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It alleges, among other things, that at a certain date "a decree and judgment was made and entered in the above-entitled cause in favor of the plaintiffs * * * and against the defendant, whereby he was enjoined and restrained from diverting the waters of Duckwater creek, or of the waters of Hot Springs thereof, to the injury of the plaintiffs, or either of them whenever the same was necessary for the use of said plaintiffs;" that the decree is in full force and effect and unreversed; that the defendant, in disobedience. of the decree, in diverting the water and depriving the plaintiffs of a large portion of the water necessary for plaintiffs' use and threatens to continue the diversion thereof to the injury of plaintiffs.

These facts might have been stated in clearer terms, and the district judge might have required a more definite statement of the facts before issuing an order for the defendant to appear and show cause, if he could, why he should not be punished for contempt. But the objections urged are more to the form than to the substance of the affidavit.

It appearing that sufficient substantive facts were stated to give the court jurisdiction, the application of petitioner for a writ of certiorari must be denied: Phillips v. Welch, 12 Nev., 158. It is so ordered.

STATE v. ANGELO.

Filed November 17, 1884.

OVERT ATTEMPT TO ESCAPE FROM STATE PRISON-EVIDENCE OF PUNISHMENT AFTER CAPTURE INDICTMENT.—An indictment for an overt attempt to escape from the state` prison is sufficient, if it alleges that the defendant, while lawfully confined in state prison under a judgment of a competent court, for the crime of burglary, did make an overt attempt to escape therefrom; that he did unlawfully, forcibly and feloniously break out of the cell in said prison, in which he was confined, and out of the building in which said cell was and is. It is unnecessary to aver that a certified copy of the judgment against the defendand, for burglary, had been delivered to the warden of the state prison. At the trial of such indictment evidence of the punishment received by the defendant at the hands of the prison authorities after his recapture, is immaterial.

TRIAL JURORS-SUMMONING UNDER OPEN VENIRE-DISCRETION OF COURT.-The necessity of selecting additional trial jurors under an open venire is a matter within the discretion of the lower court.

JUROR'S OATH-FORM OF-WHEN SUFFICIENT.-An oath administered to trial jurors as follows: "You, and each of you, do solemnly swear that you will well and truly try this cause, and a true verdict render according to the law and the evidence. So help you God," is substantially sufficient.

APPEAL from a judgment of the second judicial court of Ormsby county, entered upon a verdict convicting the defendant of an overt attempt to escape from the state prison, and from an order denying him a new trial. The opinion states the facts:

A. Soderberg, for the appellant.

Attorney-General, for the respondent.

HAWLEY, C. J. Appellant having been convicted of an overt at tempt to escape from the state prision, seeks the intervention of this court for a new trial.

1. He claims that this demurrer to the indictment should have been sustained upon the ground that the indictment did not allege the existence of any warrant, or commitment, authorizing his incarceration in the state prison, and, also, upon the ground that the facts alleged in the indictment constitute the crime of an escape from the prison instead of an overt attempt to escape therefrom: Neither of these positions are well taken.

The indictment tested by the requirements of the law in this state, (1 Comp. L., 1858,) is sufficient. It shows that appellant, while lawfully confined in the state prison under a judgment of a competent court, for the. crime of burglary, did make an overt attempt to escape therefrom; that he did unlawfully, forcibly and feloniously break out of the cell in said prison, in which he was confined, and out of the building in which said cell was and is." This is a sufficient statement of facts to show the commission of the crime charged: Comp. L., 2466. It was unnecessary to aver in the indictment that a certified copy of the judgment against the appellant, for

burglary, had been delivered to the warden of the state prison. The statute does not make that an essential fact to be proved. It does require that the prisoner making the attempt to escape "shall be lawfully confined * * * under the judgment of imprisonment in said prison," and these facts are fully set forth in the indictment. It was the judgment against appellant for burglary that authorized his imprisonment in the state prison and made his confinement therein lawful: Ex parte Smith, 2 Nev., 340. The statute requires a certified copy of this judgment to be given to the warden as evidence of his authority to receive the prisoner and to keep him confined in the prison: 1. Comp. L., 2076.

That portion of the indictment which designates the crime as an overt act to escape is merely formal and might have been omitted. It is the recital of the facts in the body of the indictment that constitutes the crime of which appellant is charged: State v. Anderson, 3 Nev., 256; State v. Johnson, 9 Nev., 178: State v. Rigg, 10 Nev., 288. Hence, if the facts alleged constituted the crime of an escape from the prison, appellant could have been tried for that offense, and the "verdict of guilty as charged in the indictment" would warrant the sentence imposed. The statute makes no difference in the grade of these offenses. It provides the same punishment for each. But we are of opinion that the formal part of the indictment correctly designated the offense as an overt attempt to escape. The breaking out of the cell in which the prisoner was confined, and out of the building in which the cell was situate, did not necessarily constitute an escape from the state prison; for if he was captured within the prison walls he did not succeed in his attempt to escape from the prison.

2. Appellant challenged the panel of trial jurors on the ground that the jurors were not ordered drawn, or summoned, according to law, in this, that they "were summoned under an open venire and without any necessity existing for not drawing, or summoning, the jury herein in the regular way," and claims that the court erred in not allowing him to prove the truth of his objections.

The statute provides for the issuance of an open venire in certain cases, and leaves the question as to the mode of selecting the jurors by open venire, or otherwise, to the discretion of the court: Stat. 1881, 23.

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The order of the court recites the statutory facts "that the regular panel of trial jurors * has been exhausted," which justified the court in issuing an open venire, and it, also, recites the fact that it appeared to the court "that it was necessary to summon additional jurors.

The offer as made was too general. It was not to prove any specific fact, as, for instance, that the regular panel was not exhausted, or to give the number of the jurors, on the regular panel, if any.

The law leaves the question of necessity to the discretion of the court instead of the judgment of the prisoner. There is nothing in the record which tends, in the slightest degree, to show that the court abused its discretion.

The offer, as made, was properly overruled.

3. The objection that the jurors were not lawfully sworn is without any substantial merit. The oath administered was as follows: "You, and each of you, do solemnly swear that you will well and truly try this cause, and a true verdict render according to the law and the evidence. So help you God."

The principle of the common law is that oaths are to be administered to all persons according to their opinions, and as it most affects their consciences. The criminal practice act of this state does not provide any particular form of oath to be administered except in justice courts: 1 Comp. L., 2,229, and this form is the one generally used in the district courts, and is substantially the oath as usually administered at the common law. It is as follows: "You do swear (or affirm, as the case may be) that you will well and truly try this issue between the state of Nevada and A. B., the defendant, and a true verdict give according to the evidence." The only objection to the form of the oath as administered in this case, worthy of notice, is in the use of the words "this cause,' instead of "this issue between the state of Nevada and Charles Angelo, the defendant." The latter words are preferable, and it would always be best not to depart from the language of the statute in this respect. We do not, however, think that the change as made vitiates the solemnity of the oath, or is such a departure from the regular form as to entitle appellant to a new trial.

The form of the oath as prescribed by statute should always be followed. The substance of the oath cannot be dispensed with: State v. Rollins,' 2 N. H., 532; Harriman v. State, 2 G. Greene, 285; Maher v. State, 3 Min., 447; Bawcom v. State, 41 Tex., 191; Sutton v. State, 41 Tex., 515; Bray v. State, 41 Tex., 561; Morgan v. State, 42 Tex., 224; Edwards v. State, 49 Ala., 336; State v. Owen, 72 N. C., 611.

The oath to well and truly try "the cause was the same in substance as an oath to well and truly try "this issue between the state of Nevada and Charles Angelo, the defendant." From an examination of the Texas cases, above cited, it will be seen that the courts of that state have been very strict in requiring the substance of the oath given.

In Faith v. State, 32 Tex., 374, the precise point here presented was held insufficient to justify a reversal. The court said: "The jury were sworn well and truly to try the cause and a true verdict render according to law and evidence.' This, though not in the precise language of the statute, is a substantial compliance."

4. Appellant offered to prove "the punishment he had received at the hands of the prison authorities, after his recapture, for the alleged offense." This was wholly immaterial. It had nothing whatever to do with the question of the guilt or innocence of the defendant, and was very properly refused.

We have specifically noticed all the objections relied up on by appellant, which are presented by the record.

The judgment of the district court is affirmed.

SUPREME COURT OF OREGON.

WEBB V. NICKERSON.

Filed October 23, 1884.

PARTIAL DEFENSES AT COMMON LAW AND UNDER CODE, HOW PLEADED.--At common law every plea must go to the whole cause of action, and be an entire answer thereto on the record. The same rule prevails under the code, except that matter may be set up by way of answer which constitutes only a partial defense; but in such case it must be pleaded as a partial defense and not assume to answer the entire cause of action.

INTRODUCTION OF LIQUORS INTO INDIAN RESERVATION SEIZURE OF PROPERTY USED FOR. Property in the possession of a person other than the owner, who is using it for the purpose of introducing spirituous liquors upon an Indian reservation, may be seized by the government agent in charge of such reservation, and delivered over to the proper officer, to be proceeded against for forfeiture. If such agent surrenders the property to the owner, upon demand, he does not thereby admit the illegality of the seizure.

THE SAME JUSTIFICATION OF SEIZURE, HOW ALLEGED.--In an action brought in a state court against the government agent, for a wrongful taking of such property, the agent may justify his seizure under section 2,140 of the United States revised statutes, although the state court had no jurisdiction of the offense for which the seizure was made. Such justification, however, to be available as a defense, must allege that the person introducing the spirituous liquors was either a white person or an Indian.

APPEAL from a judgment of the circuit court for Klamath county. The opinion states the facts.

E. B. Watson, for the appellant.

Bonham & Ramsey, for the respondent.

THAYER, J. This is an appeal from a judgment recovered by the respondent against the appellant, for the sum of two hundred dollars damages for an alleged forcible taking and detention by the appellant of a certain span of horses and their harness, belonging to the respondent, claimed in respondent's complaint to be of the value of two hundred and fifty dollars. It is alleged in the complaint that said taking of the team and horses occurred on the fourth day of April, 1881, at what was then known as Lake county, now Klamath; that the detention continued for a period of fifty days; that the use of the team during that time was worth four dollars a day; that respondent, in order to recover it, was compelled to travel from his residence in Jackson county to Klamath agency, a distance of one hundred and ninety miles, and back, occupying a period of twenty-five days, during which time he was prevented from pursuing his business; that his time so employed was worth two dollars a day. That he has necessarily expended in so traveling, and in his maintenance, the sum of eighty dollars, and was compelled to employ an attorney to assist him in his recovery of the team, for which he paid ten dollars.

The appellant interposed an answer to the complaint, which contained a denial of all the material allegations therein contained, and the following matter as a separate defense, viz: "The defendant, for a further and separate answer and defense to said amended complaint, alleges, that, on the fourth day of April, 1881, and ever since, this defendant was, and is, and has been, an Indian agent of the government of the United States for the Klamath Indian agency and reservation in the state of Oregon, duly appointed and