Pioche daily record. [volume] (Pioche, Nev.) 1872-1876, 1873-04-09
AFTERNOON SESSION.


AFTERNOON SESSION.
Judge CARRIER, continuing his argument,
said he thought he bad sufficiently shown
that there was no distinction between the
New York and California practice, in re-
gard to forms of complaint California
in adopting the code of New York,
adopted the judicial construction of the
Judges of New York with it. In an ac-
ton of ejectment, which is an action of
law, the plaintiff must recover, if he re.
cover at al, by his legal title But We claim
the right to join in our complaint our legal
and equitable title, so il the former isinsuf-
ficient by virtue of the Panaca location,
we then can support our claim on the
equitable ground. Under our legal title
our rights are to be tried before the jury;
but if our agents, while acting in their
fiduciary capacity, wrongfuliy possessed
themselves of our property, then we may
seek relief in the equity branch of our
complaint. The two causes are very
properly joined. illustrates by the case
of mortgage foreclosure.[ If you strike
out all the equity portions of our CON-
plant, of course we would have nothing
to stand on but our legal rights, but the
modern practice gives US the privilege of
joining legal and equitable right, and we
may blend both in this action The de-
PENDANTS have waived their right to OBJ
ject to the evidence, by not, in the be-
ginning, interposing their demurrer
All the authorities agree that when
complaint is filed and answered, the
Court shall grant the ruling asked for as
may be warranted by the facts elected.
In filing their answer the defendants
waive all errors of law in the complaint,
for they are not supposed to be ignorant
of the law. We have drawn our bll with
great care, the best counsel on the coast
hoving been consulted in its construc-
ton, and it will withstand the closest
scrutiny. When we put Lightner and
Perley ov,r our property as our agents,
We had possession of and some kind OF
title to the property; they were sent
there to strengthen and protect our title,
and they were legally incapable of de-
stroying or weakening it. or creating al
verse rights. If Perley undertook to
protect the company's rights he was as
much bound to do so as if acting under
n written contract. The same rule holds
in regard to superintendent. Any diff
ferent doctrine would be shocking to
every sense of right and Justice. Here
Judge Mesick asked if Perley would
have been debarred from making loca-
ton on ground claimed by the company
employing him, if it had been decided by
the Supreme Court otNevada that the COM
pany's claim had not the slightest foun-
dation in right or justice. Judge CARRIER
replied by reading an authority "a Cali
fornia case) showing that an agent could
not establish to his private benefit adj
verse interests and rights in property to
which his principal laid the slightest
claim, legal or illegal The reason for
this rule is obvious. The knowledge the
agent must have of the principals bust
ness would be the very means by which
he could create or cause such adverse in
terests, and, therefore, from the nature
of his trust, there must be no conflict
between duty and interest. ..
Evidence admitted, and exceptions en-
tered.
Henry Rives recaled-My name was
used as one Of the Hermes locators was
the same month the Hermes was located
August, 1871; conveyed my interest in
September of the same year; conveyed it
at Perley's request; l know McLane,
who once owned two claims on the Mon
itor lode; knew hin in September, 1871
he then lived in Bullionville: bought
his claims with check for $3.50 on Wells,
Fargo & Co.; it was paid out of the part
nership funds Of Perley 4 Rives; the
first conveyance was not in my name; af-
forwards it was conveyed to me. Here
a page of the reporter notes was lost.
evidence, to which the counsel for
defense objects on the ground that the
Monitor property has no relation in the
complaint to the property in dispute. 1t
is replied by counsel that his object in
capability of defendants becoming pos
sessed OF the property, while acting as
agents of the plaintiffs. Deeds admitted
and exceptions entered.
| Mr. Rives' examination resumea-The
consideration expressed in the deed from
McLane 10 Knight was $500; the actual
consideration was $3.50; the consider
alton expressed in the deed from Knight
to me was $500; there was no actual con-
sideration; conveyed 200 feet, or one.
half of the Monitor ground to the Ray
mond & Ely Co.; the actual considera'
ton in this transfer was $500; the
money was invested in Raymond & Ely
stock; the deed conveying the remaining
POO feet to the Hermes Company is in
Mr.. Perleys handwriting; | made it al
the request of Mr.. Perley; the consider.
alton expressed was only nominal; it il
in the handwriting OF a man We had EN-
ployed to write for us; l had been bacl
from Virginia about two weeks when tina
deed was made; made it at Mr.. Pcrley'!
request; the consideration was stock il
the Hermes Company; l have received
100 shares; expect 100 more; don't know
what Mr.. Perley's interest is in the Her
mes Company think he said the othe
day he had 2,700 shares left l have heart
Colonel Lightuer say he owned a fifth o
sixth of the entire stock; my impression
is that Perley and Lightner were equal,
interested in the organization of the Her
mes Company.
Cross-examined. (Perley examining
} Don't know that the Monitor groun'
conflicts with Raymond 4 Ely ground
, l conveyed No. 2 Monitor to Raymond
, Ely, because it was the only ground the,
, claimed on the Monitor; l got the frs
! deed in the name Of knight because ther
was no magistrate in Bullionville to tax
, the acknowledgement; to take Colon'
i Thornton's statement for it / judge tn
property l decided to the Raymond
/. Ely Company for $500 was worth 81, OO'
/ I have got about $4,000 out of Ii
: Hermes Company; did not consider
{, buying Monitor ground that l was pu
g chasing rights adverse to the raymond
Q Ely Company's interests.
: Direct resumed-Before buying Mon
: for ground had investigated the vail,
4 ity Of the Panaca title; was not posti'
It that the location notice would take Il
j. ledge, whichever way it ran; l took So
!. from the Raymond & Ely Company +
s the ground instead, of demanding 500
e because was working for them; didu
o think I was bound under law to let the