Opinion of the Court-Leonard, J. Now, whether the court was right or wrong in its conclusion that there was no constitutional inhibition against legislative appointments of municipal officers, matters not in this case. Its decision upon the objection urged was based upon such conclusion, and it is not authority against relator in this case. On the contrary, that case shows that, if the court had found the constitutional inhibition against legislative appointments to municipal offices that we have found against the legislative action under consideration, the decision would have accorded with ours. Denver v. Hobart plainly inapplicable we shall not review it. In At the argument of this case we were referred to Christy v. Board Sup'rs, 39 Cal. 11, and People v. Batchelor, 22 N. Y. 135, in support of the doctrine that when an elective office has once been filled by an election, the legislature may extend the term of the incumbent, provided the whole term when extended does not exceed the time limited by the constitution. The prevailing opinion in People v. Batchelor is rejected by the court of appeals in People v. Bull, 46 N. Y. 59, and People v. Mc Kinney, 52 N. Y. 376. We shall not stop to review these several decisions. Christy's case, as well as Batchelor's, it was held that the term could be extended by the legislature under the power to fix the duration of the term. In the cases subsequently decided in New York, it was held that an extension by the legislature was, in substance, an appointment to the office. for the extended term, and a usurpation by that body, of the right to fill the office, which was secured by the constitution to the electors. We have examined these decisions with great care, and do not hesitate to adopt the reasoning and conclusions of the later New York cases, nor can we add anything to them. To our minds it is enough to say that, since the constitution gives to the people of a county the right to elect their assessor, and they do elect him for two years, under the existing law, they have the right also to elect his successor, and, if the legislature extends his term, their rights are abridged. Should we hold that the term could be extended, Opinion of the Court-Belknap. J. we should have to admit that the incumbents would hold the office during the period of extension by virtue of a legislative act rather than by an election. The present assessors have been elected for two years. Should they hold their offices for four, they would have to point to the statute as evidence of their title to the office, instead of their certificates of election. Our opinion is that section two of the statute under consideration, extending the terms of county assessors beyond the time for which they were elected, is unconstitutional and void. Section one provides for an election in 1886, and every four years thereafter, but it does not supersede the existing law during the next two years. It was not intended to go into effect during that time. It follows that county assessors must be elected at the ensuing general election, under the statute of 1866, for the two years succeeding the terms of the present incumbents. The writ of mandamus should issue as prayed for; and it is so ordered. 18 423 [No. 1198.] GEORGE ALT, RESPONDENT, . CALIFORNIA FIG U. SYRUP COMPANY, APPELLANT. APPEAL-DEPOSIT OF MONEY IN LIEU OF APPEAL BOND-CERTIFICATE OF BANK DEPOSIT. The presentation to and acceptance by the clerk of the court of a certificate of deposit is a sufficient compliance with the statutory requirement, that to render an appeal effectual the appellant may, instead of giving an undertaking with sureties, deposit money equal in amount to the sum named in the undertaking, if the transaction is made in good faith. MOTION to dismiss appeal from the District Court of the Seventh Judicial District, Washoe County. R. H. Lindsay, for Respondent, for the motion. Thomas E. Haydon, for Appellant, against the motion. This is a motion to dismiss an appeal because of appel Opinion of the Court-Belknap, J. lant's alleged failure to give the undertaking or deposit the money necessary to make an appeal effectual. Upon the evening of the fifth day following the appeal, the defendant presented the clerk of the district court with a certificate of deposit payable to his order, and issued by the First National Bank of Reno, for the sum of two thousand two hundred and twenty-one dollars and ten cents, and requested a receipt for this amount of money. The clerk was disinclined to treat the certificate as money. In this emergency he was requested by defendant's attorney to accompany him to the bank that issued the certificate and have it cashed. The clerk had no suitable place for safely keeping the money, and, preferring to treat the certificate as money, rather than have the coin or currency in his custody that night, receipted to appellant for two thousand six hundred and twenty-one dollars and ten cents, and received therefor the certificate. The next day the bank paid the certificate upon presentation by the clerk. We are of the opinion that these facts constitute a compliance with the statutory requirements, that to render au appeal effectual the appellant may, instead of giving an undertaking with sureties, deposit money equal in amount to the sum named in the undertaking. This conclusion is reached because all of the acts of the appellant in the premises are characterized by good faith, and an intention to meet the substantial requirements of the statute. Appellant probably employed the certificate of deposit instead of the actual money as a matter of safety and convenience in the first instance. When the clerk, consulting his own accommodation, accepted the certificate, not for the purpose of assisting in a simulated compliance with the law, but because the amount of money called for by the certificate had been appropriated to its payment, the requirements of the statute were substantially performed. Motion denied. REPORTS OF CASES DETERMINED IN THE SUPREME COURT OF THE STATE OF NEVADA, OCTOBER TERM, 1884. [No. 1184.] THE STATE OF NEVADA, RESPONDENT, . CHARLES ANGELO, APPELLANT. CRIMINAL LAW-OVERT ATTEMPT TO ESCAPE FROM PRISON-INDICTMENT.— An indictment, for an overt attempt to escape from the state prison, which alleges that the prisoner, 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, and 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, contains a sufficient statement of facts to show the commission of the crime charged. IDEM-TRIAL JURORS--OPEN VENIRE-DISCRETION OF COURT.-The question as to the necessity of selecting additional trial jurors by an open venire is within the discretion of the district court. IDEM-OATH OF JURORS-WHEN SUFFICIENT.-The form of oath as prescribed by statute should always be followed; its substance cannot be dispensed with. An oath to 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:" Held, sufficient. IDEM-EVIDENCE-PUNISHMENT AT PRISON.-The punishment which the prisoner received at the hands of the prison authorities after his recapture, having nothing to do with the question of his guilt or innocence, was properly excluded from the jury. VOL. XVIII-54 Opinion of the Court-Hawley, C. J. APPEAL from the District Court of the Second Judicial District, Ormsby County. The facts are stated in the opinion. N. Soderberg, for Appellant: I. The indictment is fatally defective. It fails to allege or refer to any warrant or commitment authorizing defendant's incarceration in the state prison. (State v. Hollon, 22 Kan. 580; 2 Wharton Prec. 923, 924; 1 Comp. Laws, sec. 2076; Hurd on Hab. Corp. 252.) If defendant committed. the acts charged in the body of the indictment, he was guilty of an escape, a different crime altogether from that charged against him. (State v. Davis, 14 Nev. 445.) II. The jury were not properly sworn. (Proffatt on Jury Trials 257, 259.) W. H. Davenport, Attorney General, for Respondent. By the Court, HAWLEY, C. J.: Appellant, having been convicted of an overt attempt to escape from the state prison, seeks the intervention of this court for a new trial. 1. He claims that his 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 of this state (Comp. Laws, 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 |