Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1897-04-25

e
ing Sort klnd character or species" al
we think this is the sense ia " inch il is
| here uSed'
State Va. Birchim, . Nevada 100.
! IN the case at bar, the requirements of
| the statute are sufficiently complied with
| In briefly stating the nature of the Of
! '7'*o "S settling whiskev to an Indian ,,
/ ''' - '+"Ements of the complaint to
| tue sam effect are also sufficient.
! 1t is further c0ntended that tho oon,-
| plant shows that the right of action ia
| ",'Tret oy the Statute of Limitations. I'M
uer 'he provisions of the clause therein
| requiring actions upon a statute for for
| TEXTURE or penalty to the State to he COM
menced within two years after the right
Oh a'noh has accrued. Counsel for Ap-
peilants have exhaustiyely and ably ar
ted this question, but we cannot so hold
Ihis IS an action upon au obligation
founded upon an instrument in writirg
ana the right OF action thereon is barred
by the SIX year clause of our Statute.
Gen. Stats. OF Nevada. Sec. S6;4
1t Is true that the obligation is author
ized by statute, that it provides penalty
for its violation and the right Of action
arises only nP0n forfeiture thereof vet
| without and apart from the written 0bIi-
CATION. there Is and conld he no liability
whatever On the part Of The Appellants.
Their liability is founded upon and fixed
ny the obligation, and As upon other obli-
cations. the right OF the State to sue arises
under br each thereof Counsel for tho
Appellants cite Ryus vs.. Gruhle. 81 Kan
sas. fo|, and the Commissioners etc. vs.
Van Slyck, 81 Kansas, 625. in srIDDort of
their contention
1heSe causes involve the same question
and careful examination clearly shows
wherein they are disting'lishable from
the case at bar. The case of Ryrs vs
''fnhle. supra, was an action upon A shar
itf'S bond. The alleged breach of d,,+,-
under which the surntieS upou his bond
became liable. was the levy Of Il void ex-
ecutlon upon certain property. and max
ing a sale thereunder Under the Kansas
statute. action for this wrong WAS barred
after two years, but it was there contend
ed that the action being upon the Sler;tf's
b"ne', 1t was not barred until five wears
had elapsed. Tho Supreme Court of KAN
S3S, IN passing upon this question very
correctly held that the WRONGS co,urnit-
ted ny the Sheriff in making the levy and
sale were the real a5.I substantial fDnnf,a-
ton q the pla"tjtF : canSe Of action. and
tiltt The h''nd was only a c0il8tcral So,.1r-
ItY for the enforcement Of such rause of
a'IoH. Tie bond I'D not give The cause
o' action: the wrongs did. That Court
announces the same rule in the Commis-
s'oner> et" ". Van Slyrl. yunr4.
In the rtet II bar. the real and Slhst3n-
tai Foundation of the respondents cause
"' action IS the written obligation. and
without that oblig ttion no cdnso Of action
exists. and could not be maintained
against the Appellants
1t Is further contendcd on behalf of
Appellants, that the complaint is not snf- ,
hclent and the rec0gnizance is void for
the reason that no time, place or court j.
named therein, in which the defendant ).
required to appear.
This contention is not tenabIe, Sncfion
oO2 OF the Criminal Practice Act prov i,las .
that after conviction, and upon an appa.I !
the defendant may be admitted to bail
Second. If judgment Of i.nDrisnn-
ment nave been given, that he will SIR
render himself in execution Of the ,udr-
ment, upon It's being affirmed or modified
OF upon the appeal being dismissed"
tren. stats. of Nevada Sec 43S2
Section 5l5 Of the same Act nrovidos
that the further conditions of the racoqpi-
zance shall be to the effec: that the c,efan
daht VIII, III all respects, abide the p,.iar
ana Judgment of the Appellate Court
upon the appeal.
ten. Stats. OF Nevada see. 1895
Inc recognIzanrc is conditioned in
nearly the exact language of the law. and
Ihe Ia" deSignates the time, place and
court III which the defendant must apnear .
and surrender himself in execution of tho
Judgment
See also Sections 1865 to 1874 incl. Gen I
Stats. Nevada
People VS.. Carpenter, Cal. 4O2 ,
1t Is also argued that the recognizanoe {
$ Vold Tor the reason that it was never ,
iied or became record of said cause or 9
}ourt. The complaint AYERS that it WAS
leo. ms averment was sufficient ,
I. :. VS.. Eldredge, Utah, l6l. +
Ii was made record by the order of =
he Court. Trans. p. 2S.
Two important questions are presented 7
" the ruling of the District Court where f
" the Respondents demurrer to the an !,
Wer to the second amended complaint 7
'as sustained. The answer, among other Fl
hlngs, -r's that at the time the order q
as ii'"''| ',' the execution of the Il
ldgment, no apr 4, had been takn1 from Fl
ne Judgment, and no appc~. ...efrom
'as pending: that at the t:,,.e said recoo- A.
izaice was delivered. approved and ac-
epted no appeal was pending from said b
alignment. and no appeal thercfrom has ii
YER been taken. 1t further alleges that Il