ing as surplusage, in order to sustain the judgment on other findings,
but will reverse the judgment. Lockhart v. Mackie, 804.

See APPEAL, 20; PLEADINGS, 20, 21.

FORCIBLE ENTRY AND UNLAWFUL DETAINER.

1. FORCIBLE ENTRY AND UNLAWFUL DETAINER-DEMAND FOR POSSESSION
MUST BE MADE.-A demand of possession must be made by the landlord
before bringing suit against his tenant for holding over. Paul v. Arm-
strong, 71.

2. IDEM--JUDGMENT OF CONFESSION NOT AUTHORIZED.—Judgment upon con-
fession cannot be entered in a justice's court in an action for forcible
entry and unlawful detainer. Id. (Per Brosnan, J.)

3. WRIT OF RE-RESTITUTION, POWER OF COURT TO GRANT.-The probate
court has the power to issue a writ of re-restitution, in an action of for-
cible entry and unlawful detainer, brought before it on certiorari. Id.
4. JURISDICTION OF ACTION OF FORCIBLE ENTRY AND UNLAWFUL DETAINER. ——
Though the Constitution of the State confers the jurisdiction of cases
of forcible entry and unlawful detainer on the district courts, the courts
of justices of the peace continue their jurisdiction of such cases until
the organization of the district courts under the State authority. Arm-
strong v. Paul, 109.

5. FORCIBLE ENTRY AND DETAINER-JURISDICTION OF DISTRICT COURT.-The
Constitution confers jurisdiction on the district courts to hear and de-
termine actions of forcible entry and detainer without any special legis-
lative enactment on the subject. Hoopes v. Meyer, 366.

6. IDEM-FORFEITURE.-The forcible entry act, so far as the same defines
forfeitures, etc., is in force. That part of it which directs what court
shall assume jurisdiction is suspended and altered by the Constitution.
Id.

7. REPEAL OF LAW-EFFECT OF.-The repeal of the act takes away the right
to impose a fine for its violation but does not deprive parties of their
rights acquired by contract under the law whilst it was in existence. Id.
8. DEMAND FOR Rent, How MADE.—Our statute does not require a demand
for rent to be made on the premises at a late hour of the day the same
falls due in order to produce a forfeiture of the premises rented. The
only demand required is the written demand for the money, which must
be made after the rent has been three days due. Id.

9. FORCIBLE ENTRY AND UNLAWFUL DETAINER - TREBLE DAMAGES.-The
question of damages in actions of forcible entry and unlawful detainer
discussed: Held, that there can be no treble damages. Id.

FORFEITURE.

See ABANDONMENT, 3; FORCIBLE ENTRY AND UNLAWFUL DETAINER, 6; MIN-
ING CLAIMS, 4; ROADS, 2.

FRAUD.

See ATTACHMENT, 6; EQUITY, 4; EVIDENCE, 9; MORTGAGE, 11.

GOLD COIN.

See CONSTITUTION, 10, 11; JUDGMENT, 7, 19,

GRAND JURY.

See INDICTMENT, 3, 5, 6.

GUARANTY.

1. CONTRACTS OF GUARANTY MUST BE IN WRITING.-The contract of guaranty
to be effectual must be in writing, and must express the consideration
upon which it is based. Where, therefore, a stranger to a promissory
note indorses it in blank at the time of its execution, though he be a
guarantor of the note, yet he cannot be holden upon it where there is
no such contract in writing expressing the consideration for his under-
taking. Van Doren v. Tjader, 322..

2. GUARANTOR OF NOTE-WHAT NOTICE ENTITLED TO.-A guarantor of a
promissory note will not be discharged by the failure of the holder to
demand payment and give strict notice of non-payment. Reasonable
notice of the dishonor of the note is all that he is entitled to. Id.
3. CONTRACT OF GUARANTY MUST EXPRESS CONSIDERATION.-A contract of
guaranty, though made at the time of the principal contract and
upon the same consideration, must, nevertheless be in writing, signed
by the party to be changed, and must express the consideration which
sustains it. Id.

4. CONSIDERATION AND PROMISE.-The promise to answer for the debt of
another and the consideration for that promise, need not be contained
in the same paper, provided the signature of the grantor can be con-
nected with both. A note imports consideration to the maker, but it
does not import a consideration for a guaranty of its payment by a third
party. Id.

5. Guaranty, WRITING MUST SHOW CONSIDERATION. - The intent of the
statute of frauds seems to be that the writing itself, without extraneous
evidence should show the consideration for the guaranty. Id. 323.

HABEAS CORPUS.

1. SECTION TEN OF HABEAS CORPUS ACT CONSTRUED.-Held, that under this
act, the return should fully state why the prisoner is detained, and if
there is any written authority for the detention, a copy thereof should
be set forth in the officer's return, in addition to the general statement
of the cause of the detention. Ex parte Salge, 379.
2. HABEAS CORPUS—COMMITMENT, WHEN SUFFICIENT.—A regular commitment,
under the seal of the court, properly attested, reciting all the material
facts of the judgment, is sufficient to authorize the warden of the state
prison to hold the prisoner. Ex parte Smith, 848.

3. IDEM WHAT WILL NOT BE REVIEWED.-Habeas corpus is not the proper
writ to review the decisions of a court and correct its errors or amend
its irregularities. Id.

See PARDON, 2, 3.

HOMESTEAD.

1. HOMESTEAD-WHAT IT INCLUDES.-The law exempts from forced sale a
tract of land on which the homestead is located to the extent of five
thousand dollars in value, and does not limit or prescribe the other uses

to which the land may be put if one use it for a homestead. It makes
no difference that the land is divided by imaginary lines. The entire
tract of land, if not exceeding five thousand dollars in value, is pro-
tected. Clark v. Shannon, 447.

2. IDEM-MORTGAGE UPON, MUST BE EXECUTED BY HUSBAND AND WIFE.-
When the homestead tract of land does not exceed five thousand dollars
in value, the husband cannot execute a mortgage on any portion thereof
without the concurrence of the wife.

Id.

3. HOMESTEAD-HOW DEDICATED.-Erecting a house and residing therein
with one's family dedicates that building as a homestead. It makes no
difference that the house erected is large or suitable for a lodging house
and used for such purpose. Goldman v. Clark, 516.

4. IDEM-HOW DIVESTED.-Being once dedicated as a homestead, it can only
be divested of that character by the joint deed of husband and wife. Id.
5. IDEM-CLAIM OF, HOW MADE.-The statute which requires the owner of
the property to make his claim of homestead is merely directory, and if
the husband does not make such claim and point out the homestead
property to the officers when it is levied on, the wife may do so. Id.

6. IDEM-RIGHTS OF WIFE.-The Constitution and the law have given the
wife certain rights; the failure of the legislature to point out the par-
ticular manner in which she shall assert them, is immaterial. She may
come into a court of equity according to the established forms and
usages of that court, and obtain any equitable relief to which she is
entitled. Id.

HOMICIDE.

MURDER-INSTRUCTIONS.—The court gave the following instruction: "If the
jury find from the evidence that James Kelly, on or about the time
alleged in the indictment, received a mortal wound of which he died,
in Storey county, within a few days thereafter, caused by a shot from a
pistol in the hands of defendant, and that said pistol was discharged
accidentally; yet if they find that defendant was exhibiting said pistol in
a rude, angry and threatening manner, and not in necessary self-defense,
and that such act in its consequences naturally tended to destroy the
life of a human being, then they may find defendant guilty of murder."
Held, correct. State v. Kelly, 188.

See MANSLAUghter, 1.

IMPOST.

See DEFINITIONS, 1.

INDICTMENT.

1. INDICTMENT-STATUTORY OFFENSES, HOW STATED.-An indictment should
charge a statutory offense in the words of the statute creating it, or in
words of similar import. People v. Logan, 89.

2. IDEM. The crime must be directly and positively charged and not argu-
mentatively. The want of a direct allegation of anything material to
the description of the substance, nature or manner of the offense,
cannot be supplied by any intendment or implication whatever. Id.
NEV. DEC.-58

3. INDICTMENT-WHEN SHOULD NOT BE QUASHED.-An indictment should not
be quashed merely because the grand jury received some illegal or in-
competent testimony. If there is any legal testimony to sustain it, it
should not be set aside- State v. Logan, 427.

4. IDEM-WHEN MAY BE SET ASIDE.-If there is nothing to support the bill
but evidence clearly incompetent and which would not be admissible at
the trial, as the testimony of a person rendered incompetent by convic-
tion of an infamous crime, the indictment may be set aside on motion
before plea. Id.

5. IDEM-TESTIMONY OF GRAND JURORS INADMISSIBLE.-But to authorize the
setting aside of an indictment, even where there is no competent evi-
dence to support it, that fact must appear by proof, independent of the
testimony of the grand jurors who found the bill, for it is inadmissible
for them to show that the indictment was found without testimony or
upon insufficient testimony. Id.

6. IDEM.-Grand jurors may be called to testify against a witness who is
indicted for perjury, to prove what was sworn to before them, or to
show that the indictment is not found by the requisite number, but the
testimony of a grand juror cannot be received to impeach or affect the
findings of his fellows. Id.

7. INDICTMENT-NEED NOT BE SIGNED BY DISTRICT ATTORNEY.-There is no
statute requiring a district attorney to sign an indictment. State v.
Salge, 831.

See JUDGMENT, 15.

INJUNCTION.

INJUNCTION-WHEN IT WILL BE ISSUED.-The legislature has an undoubted
right to confer upon the county commissioners power to open roads,
upon a proper compensation being made to those whose property is
taken for such purpose, but until such compensation is made, there is
no power within the state which can legally appropriate the property of
the citizen, except in certain cases mentioned in section 2, article 1, of
the state constitution. Champion v. Sessions, 405.

See APPEAL, 13; COMMISSIONERS, 8.

INSTRUCTIONS.

1. INSTRUCTIONS--CRIMINAL LAW-WHEN REASONS FOR REFUSING INSTRUC-
TIONS SHOULD BE GIVEN.--When a defendant in an indictment for mur-
der asks for an instruction which is clearly law, the court should give it
although the same legal proposition may be substantially set out in an-
other instruction given by the court. At least, if such instruction is
refused in presence of the jury, the court must state it is only refused
because already given, substantially, in another instruction. People v.
Bonds.

2. IDEM-COURT CANNOT INSTRUCT THE JURY AS TO THE FACTS.--Where an
instruction asked by defendant assumes the existence of a fact not ad-
mitted by the prosecution, the court should refuse to give it in that
form. Id.

3. IDEM-EVIDENCE---WEIGHT OF, DETERMINED BY THE JURY.-It is error
in the court to state, in the presence of the jury, that the argument of

counsel in regard to facts in the case is not tenable; that there is no
evidence to support the hypothesis of counsel. The weight of evidence
and its effect in proving secondary facts is to be determined by the jury.
Id.

4. ORAL INSTRUCTIONS CANNOT BE GIVEN EXCEPT BY CONSENT. ---The court
cannot give any instruction verbally, unless the prisoner assents, and
that assent must affirmatively appear. Id.

5. REMARKS OF COURT, WHEN EQUIVALENT TO AN INSTRUCTION.-A remark
made by the presiding judge, in the hearing of the jury, has precisely
the same effect as if given as a formal instruction. Id.

6. INSTRUCTIONS-GENERAL RULE OF LAW-EXCEPTIONS.-When a court is
laying down a general rule of law, it is not improper to notice exceptions
to the general rule or such circumstances as will prevent its operation.
People v. Gleason, 143.

7. INSTRUCTIONS PART OF THE RECORD.-Instructions which are filed with
the indorsement of the judge are a part of the record, and the action of
the court thereon may be reviewed without any formal bill of exceptions.
Id.

8. INSTRUCTION-GOOD CHARACTER OF DEFENDANT. -An instruction that
"the good character of the defendant could only be taken into consider-
ation when the jury have reasonable doubt as to whether the defendant
is the person who committed the offense with which he is charged:"
Held, correct. Id.

9. IDEM-INVOLUNTARY MANSLAUGHTER.-It was not error in the court be-
low, after defining involuntary manslaughter, to add: "The drawing of
a deadly weapon, in a rude, angry and threatening manner, not in nec-
essary self-defense, is an unlawful act within the meaning of our
statute." Id.

10. IDEM-VENUE MUST BE PROVEN.-To convict one on trial for murder, it
is necessary not only to prove the prisoner committed the offense
charged, but committed it within the territorial jurisdiction of the court
and grand jury, where the indictment is found. The defendant, under
all circumstances, is entitled to an instruction embodying this principle
of law. Id.

11. CHARGE-WHEN NOT PREJUDICIAL.-The language, "A ruffian, out of
mere wantoness, firing into a crowd upon a sudden motion, is as guilty
as if he had lain in wait for his victim," used by the court in stating a
hypothetical case to the jury: Held, not to be prejudicial to defendant.
State v. Kelly, 188.

12. INSTRUCTIONS NEED NOT BE REPEATED.--When a judge gives an instruc-
tion to the jury on any point which is clear and intelligible, we do not
think he is bound to repeat it in language of counsel, which is substan-
tially the same but less clear, and therefore liable to be misunderstood.
State v. Waterman, 454.

13. AMBIGUOUS INSTRUCTION.-An instruction to the jury in regard to the
effect to be produced by a certain letter alleged to have been written by
defendant, construed: Held, ambiguous. Id.

14. REMARKS OF A JUDGE, WHEN PROPER.-The statute which requires the
charge or instruction of the court to be in writing, is not violated by the