able time thereafter, pay, or cause said debt of said Halberstadt to be fully paid, to plaintiffs. That a reasonable time after said promise of defendant Lewis had elapsed before the commencement of this action, and no part of this demand has been paid, except $35.86, as aforesaid, and said Lewis failed and wholly neglected to pay or cause to be paid any part of the balance of $52.56 due on said note as aforesaid. (1) That the promise of said Lewis to pay or cause to be paid said demand against said Halberstadt, not being in writing, was void, and he is not bound thereby. (2) That said defendant L. H. Lewis is entitled to judgment for his costs and disbursements."

There is but one question presented by this appeal, and that is whether the verbal promise of the defendant Lewis to pay the debt or balance due on the note, in consideration that the plaintiffs would forbear to sue and attach the property of the defendant Halberstadt, was void by the statute of frauds.

It is provided by the Code that, "in the following cases, the agreement is void, unless the same, or some note or memorandum thereof, expressing the consideration, be in writing and subscribed by the party to be charged, etc. (2) An agreement to answer for the debt, default, or miscarriage of another." Code, § 775.

It is admitted that no writing of the defendant's promise was given, or that he received any consideration or benefit for his promise to pay the debt of the defendant Halberstadt. Nor did the plaintiffs intend to release the original debtor, Halberstadt, from his obligation, as the present action indicates, but regarded the defendant Lewis only as an additional security for the debt, the debt itself still remaining in full force and unaffected by the transaction. It was clearly an agreement to pay or answer for the default of another, without any consideration inuring to the defendant Lewis, who made the promise, and, not being in writing, falls within the language of the statute and is void. It may be that to forbear to sue and attach, or to discontinue a cause, and to relinquish property attached, would constitute an adequate consideration for the promise of the defendant Lewis; but this does not remove the difficulty, unless the agreement is in writing. To forbear to sue when requested, was a sufficient consideration at common law to support the promise, and it is still a sufficient consideration, if expressed in writing, as required by the statute.

"The mere fact," says Mr. Reed, "that the consideration of the guaranty is a forbearance on part of the promisee to proceed against the party answered for, will not make an exception to the statute." 1 Reed, St. Frauds, § 38, and notes of authorities. Baylies, Sur. § 12, p. 80, and note 2. In Watson v. Randall, 20 Wend. 201, it was held that an agreement to forbear to sue a debtor is a good consideration for the promise of a third person to pay the debt; but to render the promise obligatory it must be in writing. "The cases are all uniform on the point," said NELSON, C. J., “that the promise to pay in consideration of forbearance is within the statute." "To bind one, therefore," said SHAW, C. J., "for the debt or default of another, two things must concur: First, a promise on good consideration; and, secondly, by evidence thereof in writing." Nelson v. Boynton, 3 Metc. 396. The general rule is stated to be that, while the debt remains a subsisting demand against the original debtor, the promise of a third person is collateral, and must be in writing; but there is an exception to this rule, to which we may presently advert. ROANE, J., said: "The distinction seems to be this: that where the person on whose behalf the promise is made is not discharged, but the person promising agrees to see the debt paid, so that the promisee has a double remedy, the promise is considered as collateral, and must be in writing." Waggoner v. Gray, 2 Hen. & M. 612. An agreement to forbear suit against the original debtor, at the request of a third person, to answer for the debt, is a collateral promise, and is within the statute, and void unless in writing. In Robinson v. Gilman, 43 N. H. 491, BELL, J., said: "To except a prom

ise from the statute, it is never sufficient that the promisee has agreed to allow time to the debtor, (Jackson v. Rayner, 12 Johns. 291; Smith 7. Ives, 15 Wend. 182; Packer v. Wilson, Id. 343; Watson v. Randall, 20 Wend. 201;) or to forbear to bring a suit against him at the time, (Simpson v. Pat ten, 4 Johns. 422; King v. Wilson, 2 Strange, 873; Fish v. Hutchinson, 2 Wils. 94; Kirkham v. Marter, 2 Barn. & Ald. 613, 1 Saund. 211a;) or has discharged suit against him, (Nelson v. Boynton, 3 Metc. 396; Tomlinson v. Gell, 6 Adol. & E. 564;) or has released to the debtor any lien, (Mallory v. Gillett, 21 N. Y. 412; Fay v. Bell, Hill & D. 251;) or pledge, (Clancy v. Piggott, 2 Adol. & E. 473;) or an attachment, (Smith v. Weed, 20 Wend. 184;) or levy, (Mercium v. Mack, 10 Wend. 461; Chater v. Beckett, 7 Term R. 201.)"

Mr. Brown holds that the mere relinquishment of a lien by the creditor does not take the promise out of the statute. Brown, St. Frauds, 195-204; Brandt, Sur. § 50; 1 Reed, St. Frauds, § 38.

In Nelson v. Boynton, 3 Metc. 396, the creditor sued his debtor, and seized his property under an attachment. The defendant promised to pay the debt, in consideration of a discontinuance of the action. This was done and the lien of the attachment lost, but the debt remained against the original debtor. After a careful discrimination of the authorities, SHAW, C. J., declared that the promise was void because not in writing. In Mallory v. Gillett, 21 N. Y. 412, the plaintiff had performed repairs on a boat which was in his possession, having a lien on it for the value of his work. He refused to part with the possession until the lien was satisfied, when the defendant promised, if he would deliver the boat to the owner, he would pay the amount due, whereupon the boat was delivered to the owner. It was held that the engagement or promise, being to pay the debt of another, was void, because there was no note or memorandum thereof in writing. See, also, Waldo v. Simonson, 18 Mich. 345; Stewart v. Campbell, 58 Me. 439.

The findings in the case at hand do not indicate definitely that a suit was actually begun, and a lien created, under the attachment which was relinquished by the plaintiffs by reason of the promise of the defendant Lewis, but rather that legal steps were being taken to begin a suit for that purpose, which the defendant Lewis knew, and by his promise to pay the debt induced the plaintiffs to forbear to prosecute. The findings ought to have been made more definite; but, in this view, the case has no footing to stand upon. The oral argument, however, assumed and seemed to concede that a suit had been actually commenced, and a levy made, under an attachment which the plaintiffs had abandoned by discontinuing their suit, at the request of the defendant Lewis, on his promise to pay the debt of the defendant Halberstadt; and on this theory it was claimed that the promise of the defendant Lewis was not founded upon forbearance alone, but the added new and original consideration of harm or prejudice to the plaintiffs, as one of the newly-contracting parties, which the relinquishment of the lien by discontinuance of the suit involved. In Dunlap v. Thorne, 1 Rich. (S. C.) 213, BUTLER, J., said: "When one person has a complete and enforceable lien on the property of his debtor, a promise of a third to pay the debt, on condition that the property under the lien is given up, will be held binding, and not within the statute of frauds. This, upon the ground that the release of the lien is the surrender of a security operating in the nature of a payment, and therefore, if not a benefit to the promisor, is a prejudice to the creditor to the extent of his loss." See, also, Shook v. Vanmater, 22 Wis. 507. But this view does not seem to be well sustained on principle or authority, and is subjected to a crushing criticism by Mr. Brandt, in which he suggests (precisely what is the fact in the case at hand) that the surrender of the lien does not usually extinguish the original debt, and that, when it does have that effect, the promise is not within the statute. He says: "The surrender of the lien, being a detriment to the

creditor, is undoubtedly a sufficient consideration for the promise; but why it should take the promise out of the statute, any more than any consideration which is a detriment to the creditor, or in fact any other sufficient consideration, it is difficult to perceive." Brandt, Sur. § 50.

In Curtis v. Brown, 5 Cush. 488, SHAW, C. J., said: "It is not a sufficient ground to prevent the operation of the statute of frauds that the promisee has relinquished an advantage, or given up a lien, in consequence of the promise, if that advantage has not also directly inured to the benefit of the promisor. The cases in which it has been held otherwise are those where the promisee has relinquished some lien, benefit, or advantage for securing or recovering his debt, and where, by such relinquishment, the same interest or advantage has inured to the benefit of the promisor. In such case, although the result is that the payment of the debt of a third person is effected, it is so incidentally and indirectly, and the substance of the contract is the purchase by the promisor of the promisee of the lien, right, or benefit in question." Wills v. Brown, 118 Mass. 138; Furbish v. Goodnow, 98 Mass. 296.

In Fullam v. Adams, 37 Vt. 401, POLAND, C. J., said: "We believe it will be found that, in all the cases now regarded as sound, where it has been held that a parol promise to pay the debt of another is binding, the promisor held in hands funds, securities, or property of the debtor devoted to the payment of the debt, and his promise to pay attaches upon his obligation or duty growing out of the receipt of such fund." While it is true that some of the authorities cited indicate that the promise must be an original undertaking on a valid consideration, moving from the creditor to the promisor, to take the case out of the statute, (Wills v. Brown, Furbish v. Goodnow, Robinson v. Gilman, supra,) others indicate that it makes no difference in regard to the party, debtor or creditor, from whom the consideration moves, to have that effect, (Fullam v. Adams and Mallory v. Gillett, supra,)—a distinction which makes no difference, so far as affects this case, as there is no pretense that the relinquishment of the lien inured to the benefit of the defendant Lewis, or that he held any funds or securities or other property of the defendant Halberstadt to be devoted to the payment of the debt.

As the case stated is not within the exceptions of the statute which makes such parol promise binding, there was no error, and the judgment must be affirmed.

(20 Nev. 38)

STATE ex rel. SPRINGER v. PREBLE. (No. 1,251.)

(Supreme Court of Nevada. October 28, 1887.)

PUBLIC LANDS PURCHASE OF LANDS GRANTED TO STATE-PREFERRED APPLICANT ExTITLED TO 640 ACRES. Under the Nevada act of 1881 (St. 1881, p. 115) amending the act of 1873 entitled "An act to provide for the selection and sale of lands that have been, or may hereafter be, granted by the United States to the state of Nevada," as further amended by the act of 1885, (St. 1885, p. 105,) an applicant claiming a preferred right of purchase is not limited to 320 acres, but is entitled to 640 acres.

On rehearing. For original opinion see 14 Pac. Rep. 584.

HAWLEY, J. Respondent in his petition for rehearing claims-for the first time that when relator's "application to purchase was made, and affidavit of preferred right filed, a party was entitled to a preferred right to only 320 acres of state lands." This claim is based upon the theory that under the provisions of section 3 of the act fixing the price, and defining the amount of land allowed to each applicant, (St. 1881, p. 115,) the first applicant is the only party entitled to purchase 640 acres of land. Section 3 reads as follows: "All agricultural and grazing lands selected under the two-million-acre grant of June 16, 1880, may be sold in tracts equal to one section to each applicant, not with

standing such applicant may have heretofore purchased three hundred and twenty acres of the state."

A rehearing was granted for the purpose of considering the question whether this statute applies to applicants claiming a preferred right, as well as to first applicants.

It is conceded that the lands in question are of the character designated in section 3. In determining the question at issue, the various statutes relating to the sale and purchase of state lands must be considered in pari materia. Section 12 of the act of 1873, in direct terms, limits the applicant of a preferred right to 320 acres. The same limitation is expressed in section 13 of the act of 1873 as to all applicants. "No person shall be allowed to purchase more than three hundred and twenty acres of land from the state under the provisions of this act." St. 1873, p. 124, § 13. Thus the law stood until 1881, when the legislature declared in an independant act that certain lands might be sold "in tracts equal to one section to each applicant,” and that “all acts and parts of acts heretofore passed, so far only as they conflict with the provisions of this act, are hereby repealed." St. 1881, p. 116. The effect of the statute of 1881 was to repeal the limitation of the number of acres expressed in section 12, as well as in section 13, of the act of 1873, and to extend the amount of land which each applicant might be allowed to purchase to 640 acres. The statute is not susceptible of any other construction. No distinction was made, or intended to be made, as to the amount of land which any applicant of either class might purchase. It is apparent, upon an examination of the various statutes upon this subject, that the legislature never intended to be guilty of the absurdity and injustice of allowing an applicant who simply made the first application to purchase lands, without ever having had any occupation or possession thereof, 640 acres, and limiting the right of an applicant who had occupied and possessed the land-and for that reason was allowed a preferred right-to only 320 acres,

The respondent, to maintain his case, relies upon the further fact that in 1885 section 12 of the act of 1873 was changed so as to give an occupant or party in possession "a preferred right to purchase all the land that he or she may be entitled to purchase." St. 1885, p. 105, § 13. This fact, however, does not give any strength in support of respondent's views; but, on the other hand, it is in perfect harmony with the construction which we have given to the statute of 1881, and, when read and considered in connection with the previous statutes, clearly shows that it was always the intention of the legislature, when enacting laws upon this subject, to give both classes of applicants the right to purchase the same amount of land. The act of 1885 was intended to embrace the entire law of the state relative to the "selection and sale of lands," and the legislature incorporated therein many, if not all, of the essential provisions of the act of 1873, with such changes as had been made by the subsequent acts, including the act of 1881, and added such other provisions as were deemed necessary to make a complete law upon the subject; hence when section 12 of the act of 1873 came up for review, it was so changed as to conform to the then existing laws, and section 13 of the act of 1873 was likewise changed, so as to read substantially the same as section 3 of the act of 1881, providing for the sale of lands "in tracts equal to one section to each applicant;" and this is the only section defining the amount of land that any applicant of either class is entitled to purchase. The statutes referred to are too plain to require any further comment or discussion.

Let the writ of mandamus issue as heretofore ordered.

LEONARD, J., (concurring.) Without expressing any opinion as to the correctness of the reasoning and judgment of the court heretofore filed herein, but deeming the same the law of the case, I concur in this opinion and order.

(20 Nev. 71)

APPEAL

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LEETE. SUTHERLAND. (No. 1,268.)

(Supreme Court of Nevada. November 1, 1887.)

REVIEW OF ORDER GRANTING NEW TRIAL WERE SUFFICIENT.

PRESUMPTION THAT AFFIDAVITS

An appeal from an order of the trial court granting a new trial on the grounds of surprise and irregularity in the proceedings, cannot be reviewed where the record does not disclose the necessary affidavits, but it will be presumed that such aflidavits were used in support of the motion, and the order will stand.

Appeal from district court, Ormsby county; R. RISING, Judge.

H. F. Bartine, for plaintiff and respondent. T'. Coffin, for defendant and appellant.

BELKNAP, J. This is an appeal from an order granting a new trial. Application for the order was made to the district court upon the ground of irregularity upon the part of the adverse party, and in the proceedings of the court, and surprise which ordinary prudence could not have guarded against. Motions for new trials for these causes must be supported by affidavits. The record does not contain the affidavits used in support of the motion. are, therefore, unable to review the ruling of the district court. In the absence of an affirmative showing to the contrary, the presumption is that affidavits were used in support of the motion, and that the ruling was correct. The order of the district court is affirmed.

We

(20 Nev. 73)

STATE ex rel. WILKINS v. HALLOCK.
(Supreme Court of Nevada. October 28, 1887.)

(No. 1,270.)

STATES AND STATE OFFICERS-APPROPRIATIONS-PAYMENT FROM FUND FOR FOLLOWING YEAR.

Where the legislature, at each biennial session, appropriated money for the support of the government for the two years then running, and where the legislature acquiesced in the construction put upon the law by the fiscal officers of the state, that the appropriation was intended to meet, within the named fiscal years, the liabilities incurred during those years, held, that the comptroller properly refused to settle a liability incurred during the twenty-second fiscal year from a fund appropriated for the support of the government during the twenty-third and twentyfourth fiscal years.

Application for mandamus.

T. Coffin, for relator. The Attorney General, for respondent.

BELKNAP, J. The statute entitled "An act to authorize and require the payment of rewards in certain cases" (section 1918, Gen. St.) requires the governor of the state to offer a standing reward of $250 for the arrest of each person engaged in robbery upon the highway. The reward is payable upon the conviction of the person or persons arrested. During the year 1885, the relator arrested two persons in the act of committing a robbery upon the highway. They were convicted of the offense within the same year. In the year 1877, he presented his claim for the sum of $500 for the services, to the state board of examiners. The claim was allowed. The comptroller refuses to issue his warrant for the amount. It is his duty to issue it, if there is a fund in the state treasury subject to its payment.

It is claimed that the sum of $2,000, appropriated for the payment of rewards offered by the governor, and found in section 28 of the general appropriation bill, is applicable to the payment of the claim. St. 1887, p. 114. By the first section of this law it will be seen that the appropriations therein made are for the various purposes mentioned, "and for the support of the government of the state of Nevada, for the twenty-third and twenty-fourth fiscal years." At each biennial session the legislature appropriates money for the