In Myers v. Mott, 29 Cal. 359, it was held that a general judgment could not be rendered against an administrator, because the statutes provide for the form of the judgment in such case; and that the death of a defendant operated a dissolution of an attachment, because the statutes provide that a decedent's estate shall be distributed pro rata, etc. There is nothing in that decision to indicate that if the law relating to the estates of deceased persons had provided that property attached prior to the death should be made applicable to a claim thus secured, the law in that respect would not be recognized as valid. In Peck v. Jenness, 7 How. 612, it was held that the second section of the bankrupt act of 1841 preserved liens valid by the laws of a state, and that when an attachment was issued, and the defendants afterwards applied for the benefit of the bankrupt law, plea of bankruptcy was not sufficient to prevent a judgment being rendered condemning the property under attachment; that a certain section of that act, if it stood alone, would make a plea in bankruptcy a good plea in bar of all debts; but the whole statute being construed together, this was not the result. And so, as it seems to us, with respect to the last bankrupt act. The judgment of the court of common pleas in New Hampshire, which was considered in Peck v. Jenness, was "that the plaintiffs recover, against the said Philip Peck and William Bellows, $1,818.87 damages, and costs of suit; which sums are to be levied only of the goods and chattels and estate of the defendants attached upon the plaintiff's writ aforesaid, and not otherwise." There is no error in the judgment of the superior court, so far as it provides for its satisfaction out of the property attached. The portion of the judgment which relates to proceedings on the undertaking of the sureties is mere surplusage. It is simply a declaration of the right of the plaintiff to bring a suit against the sureties,—a right which he would have in any event. It is not determinative that the plaintiff has a cause of action against the sureties. It in no way limits or affects any legal defense of the sureties to an action which may be brought on their undertaking; nor does it determine any claim of the sureties against the defendant, in case they shall hereafter attempt to make him respond for damages which they may be compelled to pay by reason of the undertaking. There is no statute which authorizes the direct collection from the sureties of the judgment against the defendant, and they have not covenanted that a judgment (in the nature of a judgment by consent) shall be taken against them on the entry of a judgment herein against the defendant. If the court erred in admitting the undertaking in evidence, the error is immaterial, because it did not injure the defendant, and cannot affect the rights of the sureties. Judgment affirmed. We concur: Ross, J.; MYRICK, J. (69 Cal. 521) NISSEN . BENDIXSEN. (No. 9,088.) (Supreme Court of California. May 17, 1886.) HUSBAND AND WIFE-NEGLECT TO SUPPORT WIFE-LIABILITY FOR NECESSARIES. A complaint charging, in substance, that defendant neglected to make adequate or any provision for his wife; and that plaintiff, in good faith, during the time of defendant's said neglect, and at the request of said wife, supplied her with certain specified articles, which were necessary for her support and maintenance, and were reasonably worth a sum stated; and that said wife never abandoned defendant, nor did she ever live separate from him by agreement; and that, by reason of the premises, defendant became indebted to the plaintiff for the value of the articles so furnished his wife, no part of which has been paid,-states sufficient facts to constitute a cause of action, under sections 174 and 175 of the California Civil Code. In bank. Appeal from superior court, county of Humboldt. S. M. Buck, for appellant. J. J. De Haven, for respondent. Ross, J. Section 174 of the Civil Code provides: "If the husband neglects to make adequate provision for the support of his wife, except in the cases mentioned in the next section, any other person may, in good faith, supply her with articles necessary for her support, and recover the reasonable value thereof from the husband." The next section is as follows: "A husband abandoned by his wife is not liable for her support until she offers to return, unless she was justified, by his misconduct, in abandoning him; nor is he liable for her support when she is living separate from him by agreement, unless such support is stipulated in the agreement." The complaint in the case before charges that for more than two years immediately preceding the commencement of this action the defendant neglected to make adequate or any provision for his wife, Egidia Patrina, and that during that period plaintiff, in good faith, at the request of the said Egidia Patrina, supplied her with certain specified articles which were necessary for her support and maintenance, and which were reasonably worth $751.77; that said Egidia Patrina never abandoned defendant, nor did she ever live separate from him by agreement; that by reason of the premises defendant became indebted to the plaintiff for the value of the articles so furnished his wife, no part of which has been paid. For the defendant it is urged that the complaint does not state facts sufficient to constitute a cause of action against him, in that it does not allege that the goods were sold and delivered to defendant. But the action here was brought under the provisions of the statute above cited, and the complaint alleges the particular facts which the statute declares render the defendant liable to the plaintiff. Upon proof of the facts charged, the law declares the plaintiff entitled to judgment against the defendant, and that being so, it cannot be held that the complaint does not state facts sufficient to constitute a cause of action. In the case of Jacobs v. Scott, 53 Cal. 74, the complaint did not allege the facts declared by section 174 of the Civil Code to give a cause of action against the husband, and hence that case was decided in accordance with the common-law rule. We are not prepared to say that the evidence was insufficient to justify the findings of the court below. Judgment and order affirmed. We concur: MYRICK, J.; MORRISON, C. J.; THORNTON, J.; SHARPSTEIN, J.; MCKINSTRY, J. (69 Cal. 519) FRENCH . COUNTY OF SANTA CLARA. (No. 9,425.) (Supreme Court of California. May 17, 1886.) JUSTICE OF THE PEACE-EFFECT OF CALIFORNIA CONSTITUTION OF 1879. The character of the office of justice of the peace was not changed by the reduction of the number of justices in pursuance of the California constitution of 1879, nor were justices' courts abolished, but, on the contrary, they were expressly continued in force; and the failure of a justice elected under such constitution to qualify would leave a vacancy in the office, which the board of supervisors could fill by appointment; but until the qualification of the person duly elected or appointed, the former incumbent, though holding over by virtue of an election under the old constitution, would be legally entitled to the office, under section 879 of the Political Code. Department 1. Appeal from superior court, county of Santa Clara. Ross, J. In 1877 the plaintiff. French, was duly elected one of the justices of the peace for Milpitas township, of Santa Clara county, qualified as such, and entered upon the discharge of the duties of the office. At the election in 1879 one Topham was elected as the successor of French, but he failed to qualify, and French held over. In 1882 French was again voted for and elected a justice of the peace for said township; the board of supervisors of the county having meanwhile provided, pursuant to statute, for the election of but one justice for that township. French failed to qualify, however, but continued to discharge the duties of justice, and for certain services thereafter rendered as such claimed the fees allowed by law. His right to maintain the present action, therefore, depends upon the question whether or not he was rightfully discharging the duties of the office at the time of rendering the services. It is urged for the appellant that the character of the office was changed by the reduction of the number of justices, and by reason of the fact that the legislature, pursuant to the provisions of the constitution of 1879, enlarged the jurisdiction of justices' courts. We do not think so. Justices' courts were not abolished, but, on the contrary, expressly continued in force, by the constitution of 1879. Section 3, art. 22. Undoubtedly, the failure of Topham to qualify after the election of 1879, and the failure of the plaintiff to qualify after the election of 1882, left a vacancy in the office, which the board of supervisors could have filled by appointment, and such appointee, when qualified, would have been legally entitled to the office. People v. Taylor, 57 Cal. 621. But until the qualification of the person duly elected or appointed, as the case may be, the former incumbent is legally entitled to the office by virtue of section 879 of the Political Code, which provides that "every officer must continue to discharge the duties of his office, although his term has expired, until his successor has qualified." Judgment and order affirmed. APPEAL-HARMLESS ERROR-NONSUIT. A plaintiff cannot, on appeal, complain of the denial of a motion for nonsuit made by the defendant, the cause having thereafter been submitted on the merits and judgment rendered thereon. Department 1. Appeal from superior court, city and county of San Fran cisco. E. W. Ashby, for appellant. Chas. F. Hanlon, for respondent. MYRICK, J. Action to quiet title. Plaintiff's claim to title is founded on a tax deed which omitted a necessary recital. On the trial in the court below, at the conclusion of plaintiff's evidence, the defendant moved for a nonsuit, which was denied. The defendant then offered his testimony, after which the cause was submitted on the merits, and judgment was rendered in favor of defendant. The plaintiff (appellant) admits that since his appeal was taken this court has held a deed similar to that on which he relied to be invalid, but now claims that the court erred in rendering judgment on the merits, and should have rendered judgment of nonsuit. The motion for nonsuit was made by the defendant. No motion on the part of plaintiff was denied. The case was submitted on the merits, and was so decided by the court. We see no error. The decree in favor of the defendant determined the rights of the parties as presented in this action. The judgment and order are affirmed. We concur: MCKINSTRY, J.; Ross, J JUDGMENT AFFIRMED. Department 1. cisco. HOBBS. NUNN. (No. 9,401.) (Supreme Court of California. May 19, 1886.) Appeal from superior court, city and county of San Fran E. W. Ashby, for appellant. J. M. Burnett, for respondent. BY THE COURT. The point presented in this case is the same as that presented in Klumpke v. Ackerson, (No. 9,446,) ante, 31, this day decided. On the authority of that case the judgment and order are affirmed. (19 Nev. 348) PHILLIPS v. EUREKA Co. (Supreme Court of Nevada. May 20, 1886.) COSTS CRIMINAL CASES-TRIAL JURORS-COMPENSATION. Under the fee-bill of 1883, (St. 1883, 62,) as amended by the act of 1885, (St. 1885, 25,) trial jurors in the regular panel are not entitled to receive from the county mileage, and, in addition, per diem, unless they are accepted and sworn in criminal cases. Appeal from judgment of Sixth district court, Eureka county, entered in favor of the plaintiff. The opinion states the facts. A. E. Cheney, Dist. Atty., for appellant. Fitzgerald & Beatty, for respond ent. LEONARD, J. This proceeding was instituted under section 362 of the civil practice act, for the purpose of determining whether plaintiff is entitled to receive from defendant the sum of $423, for attendance upon the Sixth judicial district court in and for Eureka county, by himself and his assignors, as jurors. The result depends upon the answer given to the following question, viz.: Is or is not a trial juror, regularly summoned, who duly appears, attends, and in open court answers to his name, pursuant to the summons and subsequent orders and directions of a district court, at a regular term thereof, as a member of the regular trial jury panel, entitled to a per diem of three dollars per day and mileage, although such trial juror be not sworn to try any cause, and does not sit at the trial of any cause on the days for which per diem is claimed? It It is not our province to declare what ought to be the policy of the state touching the compensation of jurors or other persons whose services are required in her behalf. It is our duty to inquire what compensation the legislature has given, and when that is ascertained our jurisdiction ceases. may be our private opinion that "the laborer is worthy of his hire," and that no juror or witness should be required to give his time to the public without compensation: still the legislature may have thought and declared otherwise, and if such is the case, that is the end of the matter. From 1861 to the present time jurors on coroners' inquests have been denied compensation. Under the fee-bill of 1865 jurors and witnesses in criminal cases were compelled to serve without pay. In the fee-bill of 1883 it is provided that “for criminal cases no witness fees shall be allowed; * * *"" and "no fees shall be allowed to grand or trial jurors in criminal cases: provided, that the same mileage for the same travel shall be allowed to jurors as is allowed to witnesses in this act." St. 1883, 62. In 1885 section 9 of the fee-bill of 1883, touching the fees of jurors, was amended, entitling jurors in criminal cases to the same fees as in civil cases: "provided, they are accepted and sworn to try the cause." In justices' courts no fees are allowed to jurors in criminal cases. St. 1885, 25. From the foregoing references to statutes, it is evident that it has been common to require of citizens services as jurors and witnesses without compensation, and that such is the case at the present time. Although we are of the opinion that the compensation of jurors is governed by the fee-bill of 1883, as amended in 1885, above referred to, yet it may be of service to notice the previous legislation upon this subject. In 1861, "An act concerning juries" was passed, which made no provision for the compensation of jurors. At the same session "An act to regulate fees and costs" was passed, which in Thornburg v. Hermann, 1 Nev. 474, was construed as allowing compensation for each day's attendance upon the court, whether they were accepted and sworn in any case or not, except where they were impaneled in criminal causes, and resided within five miles of the court-house. In 1865, "An act to regulate fees and compensation for official and other services in the state of Nevada" was passed, which is similar to the statute of 1883, hereafter referred to. In 1869, "An act concerning compensation of jurors" was passed, which allowed jurors, petit and grand, three dollars a day for each day's attendance on court, and 20 cents a mile each way, if he resided more than five miles from the place where the court was held. St. 1869, 138; and see St. 1871, 56. In 1873, "An act concerning juries" was passed, the twelfth section of which allowed each juror three dollars a day for every day he was in attendance on court, and 15 cents a mile each way. St. 1873, 129. In 1877 that section was amended so as to include grand jurors. St. 1877, 185. Thereafter there was no change in relation to jurors' fees until 1883, (St. 18-3, 56-62,) when the legislature passed "An act to regulate fees and compensation for official and other services in the state of Nevada, and to repeal all other acts in relation thereto." The first section is as follows: "The several officers and persons named in this act may demand and receive, for their services rendered in discharging the duties imposed upon them by law, the fees and compensation hereafter specified." Then, from the second to the sixteenth sections, inclusive, follow the fees and compensation allowed to the clerk of the supreme court, county clerks, recorders, sheriffs, coroners, constables, witnesses, jurors, county auditors, judges and clerks of elections, persons carrying poll-books to clerk's office, justices of the peace, interpreters and translators, surveyors, and notaries. The seventeenth section is as follows: "No other fees shall be charged than those specially set forth herein, nor shall fees be charged for any other services than those mentioned in this act." The forty-second section "repeals all other acts and parts of acts now in force, relating to fees of officers, while fees are collectible by said officers from the persons for whom said services are rendered," and no other acts or parts of acts are repealed in terms. Section 9 reads thus: "Fees shall be allowed to jurors as follows: For each day, to be paid in civil cases by the party in whose favor the verdict is rendered, * * three dollars, excepting in justices' courts, when the fee shall be two dollars. No person shall receive any fees for serving as a juror on a coroner's inquest. No fees shall be allowed to grand or trial jurors in criminal cases: provided, that the same mileage for the same travel shall be allowed to jurors as is allowed to witnesses in this act." In 1885 section 9 was so amended as to allow "the same fees to grand jurors and to trial jurors in criminal cases as are allowed jurors in civil cases: provided, that said jurors are accepted and sworn to try the cause; and the same mileage for the same travel shall be allowed to all grand and trial jurors as is allowed to witnesses in this act. No fees shall be allowed trial jurors in criminal cases in justices' courts." * * * * It is claimed by counsel for appellant that the statute of 1873, and its amendment in 1877, "concerning juries," were repealed by the statute of 1883; and that section 9 of that act, as amended in 1885, prescribes the only fees or compensation that jurors are entitled to receive. By respondent it is contended that the statutes of 1873 and 1877 are in force, except in criminal cases, v.11p.no.1-3 |