Opinion of the Court--Beatty, J.

can be pleaded or proved in bar of another action. But admitting it is a judgment of some sort, it only amounts to this: that by the judgment of that court a vendor's lien was not assignable, and therefore a bill to enforce such lien would not be entertained, but was dismissed. The order of dismissal is made especially on this point. This, then, might be held a bar to proceedings by the same parties, or their privies, to enforce a vendor's lien as such. But if the plaintiffs in that action had the legal title, and conveyed that title to Martin, would it be any defense to an action of ejectment to say a court of competent jurisdiction in a suit between the same parties had decided that a vendor's lien was not assignable. It appears to us that such a proposition is absurd. Elson & Snyder are admitted in this case

to have had what must be considered the legal title [*532] (that is, all the title one can *have in public land); they never parted with that title until they conveyed it to Martin. Martin is in possession under a legal title, and cannot be deprived of that possession until the parties who contracted to purchase of Elson & Snyder or their mortgagees shall have paid the purchase price. The defendant Martin, in his answer in this case, says he purchased of Elson & Snyder their vendor's lien, but other averments in the answer and the admissions of plaintiff that are on record, show clearly what he did purchase, to wit: The fee of the land subject to the contracts for conveyance to Milne when he made certain payments. This is not a vendor's lien in the ordinary sense of that term, and the question does not arise whether such lien is or is not assignable. Nor does it make any difference that a part of the money agreed by Milne to be paid Elson & Snyder was for personality and not for the land. The written contract between the parties shows that Elson and Snyder were not to convey the land until the whole was paid.

A court of chancery will not compel them, or one holding under them, to make a deed or surrender the possession until the whole five thousand dollars and interest is paid.

The decree must be reversed. The court below will decree the sale of the property, and payment out of the pro

Points decided.

ceeds of the costs of this suit, and the charges of making this sale; next, what is due to Martin as the successor in interest of Elson & Snyder, and to provide for the payment of this amount, if the sales of the property amount to so much; third, the court will ascertain the true amount due to Gibson, that is, whether there is seven hundred dollars and interest, or twelve hundred and fifty dollars and interest, and decree the payment of this next after the claim of Martin derived from Elson & Snyder. Fourth, if any surplus is left after paying these claims, that it shall be applied as a credit on the mortgage executed by Chedic & Milne to Martin. Provided, that if there is more than enough to pay half the amount due on the Chedic & Milne mortgage, only one-half the amount due upon said mortgage shall be paid out of this fund, and the balance paid into court to abide the future order of that court.

W. W. WILLIAMS ET AL., APPELLANTS, v. B. GLASGOW, RESPONDENT.

[1 NEVADA, 533.]

PLEADINGS-SUFFICIENCY OF COMPLAINT FOR MONEY LOANED.-In an action to recover money loaned, if the complaint charges the indebtedness, the manner in which it accrued, the promise to pay and the refusal, it is sufficient.

IDEM-LEGAL INTEREST.-Interest exceeding ten per cent. per annum cannot be recovered unless the promise to pay it be in writing.

1 CONSTRUCTION OF LAWS PREVIOUSLY INTERPRETED BY OTHER STATES.-In adopting the practice act of California, it must be presumed to have been adopted as interpreted by the highest court of judicature of that

state. APPEAL-REVIEW OF ORDER DISMISSING ATTACHMENT.-Upon an appeal from a final judgment, this court will review an order of a district court dismissing an attachment, if the appeal is also taken from such order. ATTACHMENT LAW OF 1861 CONSTRUED.-The attachment law of 1861 was not repealed by the amendment of 1864-5. The old law remains unimpaired as to debts contracted prior to the amendment, whilst the amendments have application only to liabilities incurred since the 1st day of April, A. D. 1865.

IDEM-SUFFICIENCY OF AFFIDAVIT.--When an attachment is issued upon a claim incurred prior to the 1st day of April, A. D. 1865, the affidavit is sufficient

(1.) 2 Nev. 206; 5 Nev. 15; 7 Nev. 23; 8 Nev. 312.

Opinion of the Court--Lewis, C. J.

if it conforms to the requirements of the act of 1861, and need not contain the averments required by the act of 1864-5.

IDEM-PLEA IN ABATEMENT.-If the affidavit be insufficient, it cannot be

taken advantage of after plea in abatement. Such a plea is a waiver of all defects in the affidavit.

APPEAL from the District Court of the Sixth Judicial District, State of Nevada, Humboldt County, Hon. E. F. DUNN presiding.

The facts sufficiently appear in the opinion.

Harris & Berry and Quint & Hardy, for Appellants.

M. S. Bonnifield and George A. Nourse, for Respondent.

[*536] *By the Court, LEWIS, C. J.:

The demurrer interposed by the defendant in this cause was improperly sustained. The complaint, though rather inartificially drawn contains all the allegations necessary in an action of assumpsit for money loaned. It is averred that the plaintiffs, at the request of the defendant, loaned him the sum of four hundred dollars, seventy-five dollars of which was paid by the assignment of certain mining stock at the time of the loan; that the defendant undertook and promised to pay the remaining three hundred and twentyfive dollars, with interest thereon at the rate of ten per cent. per month, at a certain time specified; that though often requested to pay the same the defendant has neglected and

refused so to do, and that there is due to plaintiffs [*537] from defendant the sum of three hundred *and

twenty-five dollars, with interest at the rate of ten per cent. per month. Then follows a lengthy count charging the defendant with having procured the money by means of misrepresentation and fraud, which is mere surplusage, and upon motion might have been stricken out. It does not, however, vitiate the first count, which embodies all the necessary allegations, the indebtednesss for money loaned at the defendant's request, the promise to pay, and the refusal to do so. This is all that was required in the indebitatus count for money loaned at common law (1 Chit.

Cpinion of the Court-Lewis, C. J.

Pl. 341), and is certainly sufficient under the code. Perhaps the complaint should have shown that the promise to pay ten per cent. per month interest was in writing, for if it were not, only ten per cent. per annum can be recovered (Laws of 1861, p. 100, Sec. 4); but the failure to allege that fact is ground only for special demurrer, if for any at all, for the allegation is defective only as to a part of the demand and not as to the entire cause of action. The complaint being sufficient as to the principal sum claimed, the general demurrer should have been overruled. (1 Chit. Pl. 664.) The second point made on the demurrer is that several causes of action are improperly united. Though there is much useless matter in the complaint, the only relief really sought is the recovery of a certain sum of money; and the allegation of fraud and of the assessment and sale of the stock assigned as collateral security is mere surplus matter, and not the statement of another cause of action. No relief independent of the recovery of the sum of three hundred and twenty-five dollars with interest is sought, and indeed the complaint would justify nothing more if it were claimed.

The letter of the practice act does not seem to authorize the review of an order dismissing an attachment upon appeal from such an order, and also the final judgment. It cannot be said to be an "intermediate order or decision involving the merits and necessarily affecting the judgment;" and yet with no shadow of authority beyond this the supreme court of California has held that such an order will be reviewed on appeal. (Reiss v. Brady, 2 Cal. 132; Griswold v. Sharpe, 2 Id. 17; Tuaffe v. Rosenthal, 7 Cal. 514.) And in *adopting the practice act of that State, it must be [*538] presumed to be adopted as interpreted by the highest court of judicature of that state. In cases other than those settling questions of practice, where decisions are apparently so unauthorized by the statute, we would not be disposed to recognize this rule; but where it is a mere question of practice, it is perhaps the best rule which can be adopted, and one which has, at least, the merit of being generally respected by the courts. Upon this rule and the

NEV. DEC.-29

Opinion of the Court-Lewis, C. J.

authorities above referred to, this court places its authority to review the action of the court below in dismissing the attachment in this case.

The defendant's motion to discharge the writ was based upon the insufficiency of the affidavit, and the defect complained of, is that it is not alleged therein that the debt claimed is not secured by "lien or pledge upon real or personal property." The statement of this fact is made necessary by the law of 1864 and 1865, which does not, however, apply to this case. The attachment, if allowable at all, could only be issued under the law of 1861. The debt upon which this action is based was incurred before the passage of the law of 1864-5, and that act only applies to contracts made after its passage, leaving the old law unimpaired as to debts incurred prior to the passage of the new act. The act of 1861 is not repealed, but only amended in certain particulars, which amendments have no application to contracts made prior to its adoption. In this action, therefore, which is brought upon a contract made prior to such amendment, the old, and not the new law, should be followed, by which it is only required to be shown that the debt "has not been secured by any mortgage on real or personal property," which was done in this case. In this, as well as all other respects, the affidavit seems to be sufficient. But if the defect complained of really existed, the defendant could not take advantage of it after filing his plea in abatement, because the filing of that plea was a waiver of any defects in the affidavit. (Drake Attach., Sec. 421.) The court, therefore, erred in discharging the attachment, and sustaining the demurer.

Judgment reversed.