The State of Nevada v. The Yellow Jacket Silver Mining Company. * S. E. Jones, one of the School Trustees, first testifies, in substance, that he was appointed to post and have published the notices of election. His exact language in regard to that posting was as follows: "Some time after this meeting [the meeting when he was appointed or requested to give the notice] I think on the fifteenth of July, 1867, the day the notice bears date, Mr. Bence and myself prepared the notices; we prepared them at Empire A short time after notice was prepared-don't remember the day -Mr. Bence, who was going down the river for the purpose of assessing, at my request, took with him and, as I understood, posted the notices. The notice was not posted on the day it was prepared. I handed copy to the editor of the Appeal for publication myself. I think I handed copy to Appeal on the evening of the same day, or on the day after the notices were posted by Bence." This is all the testimony in relation to the posting of the notices, except that of Mr. Robinson, which I will notice presently. What does this testimony amount to when analyzed? Jones helped to prepare the notices; he thinks they were prepared the day they were dated. This, one would naturally suppose or think, merely from the date. The testimony amounts to but this: he did not recollect that the notices were either ante-dated or post-dated. It amounts to but little more. He knows, too, that notices were not posted the day they were written. Now this is all his testimony bearing directly on this question. A reference to the calendar (and the Court may always take judicial notice of the course of time) shows that the fifteenth of July, 1867, was Monday. If the notices were written on Saturday or Sunday, knowing that they could or would not be posted on the day written, nothing would be more natural than to post-date them, as of the next Monday. Business men in preparing notices on Sunday to be used the next day almost always date them as of Monday. This circumstance does not seem to have been called to the attention of the witness, and probably was not observed at the time of the trial, either by the Court or counsel. Yet, in my mind, it is a strong circumstance tending to show the witness was mistaken in supposing the notices were dated the day they were written. But even if the notices The State of Nevada v. The Yellow Jacket Silver Mining Company. were written as well as dated on Monday the fifteenth, the witness only says they were not posted the day they were written. He does not pretend to say they were not posted the next day. Then this evidence of Jones, unconnected, is clearly insufficient to overcome the legal presumption in favor of the regularity of the posting. It is claimed, however, that the testimony of Mr. Robinson, connected with that of Mr. Jones, makes a stronger case. I cannot so see it. The following is all the testimony of Mr. Robinson having the least bearing on this point: "I am one of the publishers of the Carson Daily Appeal; that notice [the notice for school election] was inserted in the Appeal the first time on the nineteenth day of July, 1867. I do not remember when it was handed in for publication, though I think it was on the eighteenth." Jones says he handed copy of notice to the editor of the Appeal himself. He thinks it was handed to the Appeal the evening of the day or the day after it was posted. The last legal day for posting was the sixteenth. If, says respondent, Robinson was right in thinking that the notice was handed in to the Appeal for publication on the eighteenth, and Jones was right in thinking that he handed it in to the Appeal the day or the day after Bence put up the notices, the posting must have been as late as the seventeenth, which was one day too late. It is claimed that this is some proof, and if there is any proof to sustain the finding it must be upheld. In the first place, I deny that this is any proof at all. The opinions of a witness, except in a few cases, such as the opinions of experts, etc., are not legal evidence. The recollection of witnesses may be. The language used by Jones is not certainly what ought to have been used to be perfectly satisfactory. When he said, I think I handed copy, etc., if he meant to convey the idea that that was his recollection of the time, the testimony was competent, though the most accurate language to convey his idea was not used. Taking his whole language together this is, perhaps, the idea he meant to convey. This testimony may be entitled to its due weight, but the testimony of Mr. Robinson is quite different. He says he was "one of the publishers;" he does not say he was "the editor" of the Appeal. He states distinctly he does not remember when the notice was handed in for publication. He thinks it was the eight The State of Nevada v. The Yellow Jacket Silver Mining Company. eenth. He might have thought it was the eighteenth because some one told him so. This would not be evidence. His opinion, when it is shown clearly it was not based on memory or recollection, was not evidence. But this is not the only objection to this testimony. Even if the opinions of these two witnesses are to govern in such a case the connecting link between the two must be properly supplied. Jones does not say either that he gave the notice to Robinson, to the publishers, or either of the publishers, of the Appeal. He gave it to the editor of the Appeal. Certainly Mr. Robinson does not show that he was the editor of the Appeal. He only shows that he was one of the publishers. The evidence does not show, but rather contradicts, the idea of the notice having been handed to Robinson. The editor of the Appeal may have kept the notice in his pocket for several days before Mr. Robinson or any of the publishers saw it. You cannot connect the testimony of Jones and Robinson to prove anything in regard to the time of handing in the notice, without the intermediate link, to wit, the editor. But no editor is introduced. Neither is Mr. Bence, who posted the notices, introduced. To my mind, then, there is an utter failure on the part of the defendant to prove what was attempted to be proved, to wit, that notices were not posted for twenty days. Believing there is no legal evidence to support this finding, I shall not go into any minute examination of how far this Court may go in weighing the testimony upon which a verdict or finding is given. In general terms, I will say, the Court ought not to sustain a finding of any particular fact unless there is sufficient evidence to produce a reasonable presumption of its truth in the mind of a person of ordinary intellect and capacity-especially when that fact is in opposition to a legal presumption. 1. ACKNOWLEDGMENTS BY COUNTY RECORDERS. An acknowledgment of a certificate for the constructing and maintaining of a toll road under the Act of 1865, (Stats. 1865, 254) taken before a County Recorder, is sufficient. ver, 141. Ford v. Hoo 2. CONSTRUCTION OF STATUTES-ACKNOWLEDGMENTS BY RECORDERS. The Act of 1867, (Stats. 1867, 103) providing that acknowledgments within the State shall be taken by certain officers, and not mentioning County Recorders among them, being simply an Act. amendatory of a like Act of 1861, (Stats. 1861, 11) did not take away from County Recorders the power to take acknowledgments conferred upon them by the Practice Act of 1861. (Stats. 1861, 422.) Ford v. Hoover, 141. ACKNOWLEDGMENT TO TAKE CASE OUT OF STATUTE OF LIMITATIONS-See LIMITATIONS, 5, 7, 8, 9. ACTION.. ACTION BY AGENT AGAINST PRINCIPAL-See AGENCY, 5. SUSPENSION OF LEGAL PROCEEDINGS BY BANKRUPTCY-see BANKRUPTCY, 1. MEANING OF "DUE PROCESS OF LAW" IN CONSTITUTION-See CONSTITUTION, 13. CONTINUANCE WHERE JOINT DEbtor declared BANKRUPT-see JOINT DEBTORS, 1. ACTION AGAINST PARTNER WHERE COPARTNER Discharged IN BANKRUPTCY-see ADMISSION. ADMISSION OF COUNSEL IN ARGUMENT-see ATTORNEY, 1. ADVANCE. ADVANCE BY AGENT FOR BENEFIT OF PRINCIPAL-see AGENCY, 6. ADVERSE PARTY. EXECUTORS COMPETENT WITNESSES ON THEIR OWN BEHALF-see WITNESS, 1. AFFIDAVIT. 1. AFFIDAVIT FOR PUBLICATION OF SUMMONS. To obtain a legal service by publica- AGENCY. 1. 2. AGENCY-PRINCIPAL NOT BOUND BY AGENT'S UNAUTHORIZED ACTS. A princi- scope of the AGENCY-RATIFICATION. A principal is only held to ratify an unauthorized act 3. RATIFICATION OF AGENT'S UNAUTHORIZED ACTS-FULL KNOWLEDGE. Though |