Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1901-06-22

clusion of the book for the reason con-
Nor does the case Of Crane ct al. v.
Gloster, 13 New. 279, cited, support the
appellants contention. That action was
brought by the surviving partners of one
Hayes, deceased, against Gloster. In
support of his.counterclaim Gloster was
permitted to testify that Hayes, the de-
ceased partner, had in his lifetime en-
ployed him to perform certain services
at fixed salary and commission, for
which there was due a considerable sum.
! The discussion by the court of the OBJ |
lection made to the competency of Clos |
ter to testify under the provisions of |
Section 379, as it then stood, makes a !
very clear distinction between that case |
and the case at bar, based upon the differ |
ence between the statute as it then was
and now is. That part of Section 379 per-
tinent to the .question, at the time the
case of Crane ct al. v. GlOster was decided,
is as follows: mo person shall be allow
ed to testify under the provisions of Sec
ten 377 where the other party to the
transaction or opposite party in action or
the party for whose immediate benefit
, the action or proceeding is prosecuted or
defended, is the representative of a de-
, ceased person, when the facts to be prov
ed transpired before the death. of such
, deceased person, ~
, Stats New. 1877, p. 100.
Crane ct al. commended that they were
the representatives of the deceased part
i, ner, Hayes, within the meaning of Sec
: ton $40. above quoted, therefore they
t claimed it was error to permit Gloster to
? testify. The court held they as surviv-
ing partners, were not the represeh ta-
g tives Of Hayes within the meaning of
4 that Statute, and therefore Gloster was
J, nor incompetent under the provisions of
. said section for the reason that the Leg
: slature eT industrid omitted the words
= "is dead" which should have followed
t the phrase "other party to the transac
: ton" The court severely criticised the
: section as it then stood, and we presume
n as the result of this criticism, the first
= session of the Legislature after the decis-
It ion was announced amended it by insert
s ing the omitted words, thereby making
the provisions of the section substan-
TALLY as it was at the time when the case
: of Roney v. auckland, 4 New. So was be-
II fore the court under the territorial act,
u and substantially the law is at the
e present time. A large number of cases
~ decided by other courts under statutes
u similar to ours have been cited by the
e respondent in support of the action of
u the trial court but we do not deem it
Is necessary to criticise refer 10 them as
no al ,1air lann Of no ct init is
g. sufficient to justify the action of the trial
i court in holding that the appellant was
20 incompetent to testify.
l. 1t is also claimed in appellants brief
lie that the court erred in refusing to allow
: him to rebuff by his own testimony the
- testimony of certain witnesses who were
sworn and testified in the case. 1t is a
~ sufficient answer to this contention to
~ say that the action of the court in the
y premises is not assigned as error, and
VI under the rule of the statute is not before
's this court.
, Com. Laws, Secs. 1892, 1927.
- Corbett V. Job, 5 New. POS.
5 Sherman v. Shaw, 9 New. Isl.
" Earls V. Gillian, 20 New. 40.
Roberts v. Webster, 81 Pac. (Nev.
III $780,
~ During the progress of tho trial the ap
"a pellant offered chattle mortgage anC
NY the assignment thereof The mortgage
e was executed by one Richard, the lessee
IL of the sheep under contract with VIII
So - liam Stock, deceased upon his interes
~ in the sheep acquired hereunder, to on
~ Martha Clarke. The assignment of thu
'i mortgage was made by NJ. S. Bonnifield
the attorney of the mortgage. Objection
=, to the introduction of the mortgage ant
- the assignment thereof was sustain ed
~ and the appellant excepted, but failed t.
- to state any point to his exception. Gu
-, statute provides that "the point of tn
o exception shall be particularly stated,
and this court had repeatedly held tina
80 the record must show a compliance wit
-, the requirements of this provision, other
-, wise it will not consider the action Of tn
Wv. trial court under the assignment.
~ Com. Laws, Sec. 1886.
q" Sharon v. Minnock, New. 3s2.
. Cooch v. Sullivan, Ii New. 81.
:"s Lightle V. Berning. Is New. 3s9.
~, Rosina v. Trowbridge, 20 New. lis.
80" McGurn v. McInnis, "a New. 372.
wv McNamee v. Nesbitt, "a New. 400.
~. Lewis v. Hyams, SO Pac. New 81
Psul v. Cragnaz, SO Pac. New IS
~. .In the early case Of Sharon v. Minnoc
~ commenting upon this provision of Il
statute, the court says; 1T would be III
just to the court below and to the oppo
Ook .:se ,a
ap- ..o,, -. - 20 .,;ao.;o .,
upon which the court was not call
upon to decide.'
Much as we may regret that q questi'
which is regarded by counsel of so mu
importance must be disposed of under
w technical rule Of procedure, and not CO
W sidered upon its merits, yet SO long as
rule of tho statute prevails courts q
,o.o counsel are alike hound hY it. and il