appellant tending to contradict that offered by the appellee), yet we cannot say that the trial court erred in finding for the appellee, in fact we think he was fully justified in so doing, even from the bare record of the transcript of the evidence, and how much stronger such evidence may appear to one who sees the living witnesses, notes their manner of testifying, their apparent candor while upon the witness stand, and the numerous other elements entering into the question of their credibility, we cannot ascertain. Burden of proof cannot be measured accurately from a transcript of questions and answers. Experience teaches us that demeanor of witnesses, their known credibility or otherwise, may have great bearing upon the words employed by them in testifying. The second assignment of error by appellant is "that the court erred in not granting a new trial on the ground of newly discovered evidence of James M. McDugal, for the reasons set forth in defendant's motion for a new trial and affidavits in support thereof." "Applications for new trials because of newly discovered evidence are looked upon by the courts with distrust. In the absence of statute, or when a statute expressly provides for what causes a new trial will be granted, and newly discovered evidence is not one of them, no new trial will be granted on this ground." 12 Cyc. 734, and cases cited. This court has laid down rules under which a new trial may be granted on the grounds of newly discovered evidence in Territory v. Claypool and Lueras, 11 N. M. 568, 71 Pac. 463, as follows: "The rule of law is that a new trial will not be granted on a mere showing that new evidence has been discovered. Newly discovered evidence, in order to be sufficient, must fulfill all the following requirements, to wit: (1) It must be such as will probably change the result if a new trial is granted. (2) It must have been discovered since the trial. (3) It must be such as could not have been discovered before the trial by the exercise of due diligence. (4) It must be material to (4) It must be material to the issue. (5) It must not be merely cumulative to the former evidence. (6) It must not be merely impeaching or contradictory of the former evidence." See, also, 12 Cyc. 734; Berry v. State, 10 Ga. 511; Howard v. State, 36 Fla. 21, 17 South. 84; 14 Enc. Pl. & Pr. 791, 792. Compared by these rules, which have been adopted almost universally by the courts of this country as the true measure of an application for a new trial on the ground of newly discovered evidence, it will readily appear that the trial court was not in error in overruling the motion for a new trial. The affidavits of McDugal and Graham attached to the motion only tend to contradict the testimony of Hancock as to the number of goats counted in McDugal's herd in the pitchfork brand, and it does not appear that the evidence alleged to have been discovered would change the result of the trial. In point of fact, the trial court, sitting as a jury upon the questions of fact involved, heard the affidavits, and by overruling the motion held, in effect, that no such result would ensue, even though the witnesses appeared before him and gave oral testimony to the same effect. Nor does the bare statement that appellant could not with due diligence have discovered and produced the evidence at the trial suffice. He should state that such facts were not within his knowledge or that of his counsel at the time of the trial, and that he did not know and could not apprehend that these witnesses might be material witnesses in his behalf. On the contrary, it appears from the testimony of both appellants that they knew of the purchase of a part of Phillip's goats by McDugal, at least by hearsay. Pages 81 and 101, Record. It is urged in the fifth and sixth assign ments of error that the court erred in admitting parol evidence of the ownership of the goats in evidence, by allowing the proof of appellee's brands by parol instead of requiring quiring the certificate of record of the brands. In Territory v. Smith, 78 Pac. 42, this court held that where title to animals, the subject of larceny, is sought to be established by brand, a certificate of the recorded brand must be shown, under section 67 of the Compiled Laws of 1897, and that under the peculiar circumstances of that case defendant did not waive the omission of offering such certificate by failing to object to the questions calling for the oral testimony at the time they were propounded; but in that case, at the close of the evidence offered by the territory, the defense moved to strike the oral testimony offered as to the brands, and it was then held that such motion was not too late to save the right. In the case at bar, it is conceded by appellant's counsel that no objection was made to the introduction of the oral evidence of Hancock's ownership, by reason of the brands to which he testified; nor does any motion to strike it appear in the record. The statutory method of proving ownership by the brand certificate was therefore waived by appellant. 3 Jones on Evidence, § 898; 4 Elliott on Evidence, § 3217. We see no error in the record, and the judgment of the court below is affirmed. MILLS, C. J., and ABBOTT, POPE, and McFIE, JJ., concur. PARKER, J., having tried the case in the court below, did not participate in this opinion. (29 Nev. 459) STATE ex rel. BOTSFORD v. LANGAN, District Judge. (No. 1,737.) (Supreme Court of Nevada. Sept. 26, 1907.) 1. MANDAMUS-OTHER ADEQUATE REMEDY. Mandamus will not lie where there is a plain, speedy, and adequate remedy, by motion to dismiss an appeal, for determination of the same matter. [Ed. Note.--For cases in point, see Cent. Dig. vol. 33, Mandamus, § 8.] 2. APPEAL APPEALABLE Order. An appeal from an order setting aside a default entered by the clerk is not within the cases in which Civ. Prac. Act. § 330, provides that an appeal may be taken, and therefore will not lie. [Ed. Note.--For cases in point, see Cent. Dig vol. 2. Appeal and Error, § 766.] Mandamus by the state, on the relation of Charles H. Botsford, against Frank P. Langan, district judge of the First judicial district. Application dismissed. Hall Thayer & Steele and C. L. Harwood, for relator. Detch, Carney & Stevens, for re spondent. SWEENEY, J. This is an application for a writ of mandamus against Frank P. Langan, district judge of the First judicial district of the state of Nevada, for the purpose of compelling him to hear a motion to dissolve or modify an injunction or increase the injunction bond in the case now pending in the district court of the First judicial district of the state of Nevada in and for the county of Esmeralda, entitled "I. C. Van Riper and Joseph H. Hutchinson, Plaintiffs, v. Charles H. Botsford, James Davis, J. P. Loftus, and James Davis, Doing Business under the Firm Name and Style of Loftus & Davis, Goldfield Mohawk Mining Company, Goldfield Consolidated Mines Company, Combination Mines Company, George S. Nixon, and George Wingfield, Defendants." It appears from the record in this case that the plaintiffs filed a complaint against the above-named defendants for the purpose of recovering from said defendants a twothirds interest in 100,000 shares of the capital stock of the Goldfield Consolidated Mines Company of Nevada of the approximate value of half a million dollars. Upon filing of the complaint, an injunction was secured from the district court on a bond in the sum of $15,000, enjoining the defendants from delivering to their codefendant Botsford the said stock in question until the determination of this suit. Upon the petition of the defendant Botsford for the removal of said cause to the Circuit Court of the United States in and for the Ninth District of Nevada, the district court of Esmeralda county remanded said case to said United States Circuit Court on or about the 1st day of February, 1907, and thereafter, to wit, on the 12th day of June, 1907, the said United States Circuit Court remanded said cause back to the said district court in and for Esmeralda county for trial. Subsequent to 91 P.-47 February 1, 1907, when said order of renewal was made from the said state court to the United States Circuit Court and prior to June 12, 1907, when the order remanding said cause from said United States Circuit Court back to said district court was entered, to wit, on the 6th day of March, 1907, and while said cause was pending on removal in said United States Circuit Court. the plaintiffs caused to be issued an alias summons out of the said state court, and caused said alias summons to be served by the sheriff of Esmeralda county upon said Chas. H. Botsford, the relator herein, on or about the 7th day of March, 1907, and on the 12th day of June, 1907, the plaintiffs, through their attorneys, caused the default of said Charles H. Botsford and others of the defendants to be entered by the clerk of the said district court of Esmeralda county. On or about the 7th day of June, 1907, said Charles H. Botsford filed in said cause in said state district court a motion to vacate and set aside said default, and on the 29th day of June, 1907, after hearing arguments upon said motion, Judge Langan, district judge of said state court, entered an order vacating and setting aside the said default, and thereafter, to wit, on the 6th day of August, 1907, plaintiffs perfected an appeal to this court from said order setting aside said default. Upon the 2d day of August, 1907, the relator herein, through his attorneys, served upon the attorneys for said plaintiffs Van Riper and Hutchinson a notice that on Monday, the 12th day of August, at the county courthouse of Lyon county, Nev., at the town of Dayton, in said county, they would apply to the Honorable F. P. Langan, the respondent herein, judge of the First judicial district court aforesaid, to hear a motion to dissolve or modify the injunction theretofore granted in said cause, or to increase the bond of the injunction theretofore issued, and on said date attorneys for said plaintiffs appeared and entered a protest against proceeding, with the motion to dissolve or modify the injunction or to increase the bond for the injunction, and the said district court, after considering the said protest, declined to proceed, and refused to have the said hearing or entertain the same in any way, and announced that, during the pendency of the appeal from the order vacating and setting aside the default, he would not proceed with said motion or any motion of like character. Upon the hearing of the application for a writ of mandamus in this court, counsel for the plaintiffs appeared and demurred to the sufficiency of the petition, and further moved to dismiss the application of relator for a writ of mandamus upon the ground that the defendants had a plain, speedy, and adequate remedy at law. Upon the overruling of the demurrer as to the sufficiency of the petition, counsel for relator moved that the appeal of plaintiffs in the case entitled "L. C. Van Riper and Joseph H. Hutchinson v. Charles H. Botsford et al." be dismissed because of want of jurisdiction in this court to determine an appeal from an order vacating or setting aside a default entered by the clerk, and moved that said case on appeal herein be placed on the calendar, and they then and there served notices upon counsel for the plaintiffs Van Riper and Hutchinson, and asked a continuance of the case for eight days, and moved that time for service of notice of said application to have said case placed on the docket and notice of motion to dismiss said appeal on the ground aforesaid be shortened to eight days from then, at which time both parties agreed to argue said motions to dismiss the application for a writ of mandamus and the appeal. Stripping the application for a writ of mandamus and the motion to dismiss said appeal of their immaterial points raised, the real decisive question involved in the merits of this application for a writ of mandamus and motion to dismiss said appeal is whether or not an appeal lies to this tribunal from an order setting aside or vacating a default entered by the clerk. As the motion to dismiss the appeal raises the same point, to wit, as to whether or not an appeal which is granted at this time in the case of Van Riper et al. v. Botsford et al., infra, lies from an order setting aside or vacating a default entered by the clerk, as is desired and attempted to be accomplished through the means of the extraordinary writ of mandamus, applied for by relator, it is plain that relator has a plain, speedy, and adequate remedy at law which is now effective in his favor, and for this reason the application for a writ of mandamus is hereby ordered dismissed. The sole question to be determined now before the court is whether or not an appeal lies to this court from an order setting aside or vacating a default entered by the clerk. Section 3425 of our Compiled Laws, being section 330 of our civil practice act, relating to appeals in civil actions, reads as follows: "An appeal may be taken: First. From a final judgment in an action, or special proceedings commenced in the court in which the judgment is rendered, within one year after the rendition of judgment. Second. From a judgment rendered on an appeal from an inferior court, within ninety days after the rendition of the judgment. Third. From an order granting or refusing a new trial, from an order granting or dissolving an injunction, and from an order refusing to grant or dissolve an attachment, and from any special order made after the final judgment, within sixty days after the order is made and entered in the minutes of the court. Fourth. From an interlocutory judgment or order in cases of partition whicn determines the right of the several parties, and directs partition sale, or division to be made, within sixty days after the rendition of the sam An appeal to this tribunal is a matter purely of statutory right, and, unless authorized by statute, any attempted appeal taken from an order not appealable is void, and therefore could not confer any jurisdiction upon this court to act. It is clear that, where an order is nonappealable, no jurisdiction can be conferred on or entertained by this court by the perfecting of an attempted appeal. Under our construction of the statute above quoted regarding appeals, we are of the opinion that the order in question from which the appeal in the present case is attempted is nonappealable. Rauer's Law & Collection Co., Inc., v. Standley (Cal. App.) 84 Pac. 214; Jordan v. Hutchinson, 39 Wash. 373, 81 Pac. 867; Bowen v. Webb, 34 Mont. 61, 85 Pac. 739; Thornburg v. Gutridge, 46 Or. 286, 80 Pac. 100; Burbank v. Rivers, 20 Nev. 81, 16 Pac. 430. TALBOT, C. J., and NORCROSS, J., con cur. (29 Nev. 465) VAN RIPER et al. v. BOTSFORD et al. (No. 1,735.) (Supreme Court of Nevada. Sept. 26, 1907.) Appeal from District Court, Esmeralda County. Action by L. C. Van Riper and another against Charles H. Botsford and others. From an order setting aside a default, plaintiffs appeal. Dismissed. Detch, Carney & Stevens, for appellants. Hall, Thayer & Steele and C. L. Harwood, for respondents. SWEENEY, J. Upon the authority of, and for the reasons stated in, the opinion rendered in the case entitled Charles H. Bots ford, Relator, v. Frank P. Langan, District Judge of the First Judicial District, State of Nevada, Respondent, 91 Pac. 737, the motion to dismiss the appeal in the present case is hereby granted. TALBOT, C. J., and NORCROSS, J., con cur. (35 Colo. 154) Ex parte MOYER. (Supreme Court of Colorado. September, 1905.) 1. COURTS-SUPREME COURT-HABEAS CORPUS -JURISDICTION. The authority of the Supreme Court to issue the writ of habeas corpus is derived from the Constitution, and not from the statute. 2. SAME-PROCEEDINGS-PRACTICE. Where the Supreme Court in the exercise of its original jurisdiction issues the writ of habeas corpus, the practice is governed not by the statute, but by the rules of the court. 3. HABEAS CORPUS-EFFECT OF WRIT-CUSTODY OF PRISONER PENDING HEARING. On return of a writ of habeas corpus, the original custody of petitioner is superseded, and he is then in the custody of the court, and pend- | ing the hearing the court may in its discretion admit him to bail, remand him, or make such order as shall be deemed proper. [Ed. Note.-For cases in point, see Cent. Dig. vol. 25. Habeas Corpus, § 63.] 4. SAME. Where, on return of a writ of habeas corpus to the Supreme Court, the Governor of the state objects to the further exercise of jurisdiction by the court, and resists application for bail, pending the final hearing, on the ground that, as in his judgment the detention of petitioner is a military necessity, the court is without authority in the premises, and states that he holls petitioner by virtue of his authority under the Constitution as Commander in Chief of the National Guard. and that peace cannot be restored in a county in insurrection unless petitioner remains in custody of the military authority, and the Adjutant General of the state declares that he detains petitioner as a military necessity, and that he has been commanded by the Governor not to surrender petitioner either on writ of habeas corpus or otherwise, such application for bail will be denied. 5. COURTS-SUPREME COURT-HABEAS CORPUS -PRACTICE. Though the chapter of the statutes on the subject of habeas corpus is not applicable to original proceedings in the Supreme Court, yet the same is usually adopted by that court for guidance on questions of practice. Application for a writ of habeas corpus by Charles H. Moyer. On return of the writ, petitioner applied to be admitted to bail, unless the date for the hearing on the merits be fixed within five days from the return day, in accordance with Mills' Ann. St. § 2108. Application for bail denied. See 85 Pac. 190. Richardson & Hawkins, for petitioner. N. C. Miller, Atty. Gen., I. B. Melville and H. J. Hersey, Asst. Attys. Gen., and John M. Waldron, for respondents. STEELE, J. Upon the return day of the writ, and pursuant to its commands. the respondents named in the writ produced the body of the petitioner. Upon the same day Sherman M. Bell, as Brigadier General and Adjutant General of the state, made return to the writ, and therewith filed objections to the further exercise of jurisdiction by the court. From the return it appears that on the 23d day of March, 1904, the Governor of the state, by his proclamation, proclaimed and declared the county of San Miguel to be in a state of insurrection and rebellion; that immediately after the issuance of the proclamation the Governor commanded the respondent to forthwith proceed to the county of San Miguel with such portion of the National Guard of the state as might be deemed essential, and to use such means as might be deemed necessary for the restoration of peace in said county and for the effectual suppression of the insurrection and rebellion; that, pursuant to the command of the Governor, he proceeded to the county of San Miguel with a portion of the National Guard of the state; that after his arrival at the county of San Miguel he became satis fied and convinced that the said Moyer was a prominent leader of bands of lawless men engaged in acts of insurrection and rebellion, and that, so believing, he caused the arrest and detention of said Moyer; that in his judgment, in order to prevent the said Moyer from lending aid, comfort, and direction to the lawless persons now engaged in rebellion in said county, and in order to restore public tranquillity, it is absolutely necessary to detain said Moyer and restrain him of his liberty; that as the officer in command of the National Guard, now on duty, he detains the said Moyer, and that he has been commanded by the Governor of the state not to surrender or release the said Moyer during the existing and continuing condition of affairs in said county, either upon writ of habeas corpus or otherwise, until further orders. Attached to the return is a certificate of the Governor, in which he states that the facts contained in the return are true, and that the arrest and detention of said Moyer were effected under his direction as Governor and Commander in Chief of the National Guard of the state. and that in his judgment the continued retention of the person of said Moyer is a necessary and essential step in the restoration of public peace and order and the suppression of the existing state of insurrection and rebellion in said county. When the return was presented, the attorney for the petitioner requested that the date for the hearing upon the merits be fixed by the court within five days from the return day of the writ, in accordance with section 2108. Mills' Ann. St., and stated that, unless the cause should be set within five days, the petitioner desired to be admitted to bail. The application for bail is resisted by the Governor upon the ground that as, in his judgment, the detention of the petitioner is a military necessity, the court is without authority in the premises. Our authority to issue the writ is derived from the Constitution, and not from the statute; and, when this court, in the exercise of its original jurisdiction, issues the writ, the practice is governed, not by the statute, but by the rules of the court. By the adjudicated cases, it is held that upon the return of the writ the original custody terminates, and that the prisoner is then in the custody of the court, and that pending the hearing the court may, in its discretion, admit him to bail or remand him to the officer who had him in charge, or make such order in the case as shall be deemed proper. Mr. Justice Swayne, speaking for the Supreme Court of the United States, in the case Barth v. Clise, reported in 12 Wall. 400, 20 L. Ed. page 393, said: "By the common law, upon the return of a writ of habeas corpus, and the production of the body of the party suing it out, the authority under which the original commitment took place is superseded. After that time and until the case is finally disposed of, the safe keeping of the prisoner is entirely under the control and direction of the court to which the return is made. The prisoner is detained, not under the original commitment, but under the authority of the writ of habeas corpus. Pending the hearing, he may be bailed de die in diem, or be remanded to the jail whence he came, or be committed to any other suitable place of confinement under the control of the court. He may be brought be fore the court from time to time by its order until it is determined whether he shall be discharged or absolutely remanded." The rules announced in the cases cited are probably not applicable to cases like the present, where the executive head of the government, at the time of the return, questions the jurisdiction of the court, and states that he holds the petitioner by virtue of his authority under the Constitution as the Commander in Chief of the National Guard. And we are required at this time to assume further jurisdiction or to hold the question of jurisdiction in abeyance by remanding the petitioner to the custody of the respondents. We have undoubted authority to issue the writ in the first instance; but whether our jurisdiction continues depends upon circumstances. In the case at bar the respondent declares that he detains the petitioner as a military necessity, and that he has been commanded by the Governor to not surrender the petitioner, either upon writ of habeas corpus or otherwise. The question, then, as presented by the return, is: Can the Governor, under the Constitution, and under the conditions shown to exist, declare martial law, and as. incident thereto suspend the privilege of the writ of habeas corpus? If the Constitution authorizes the Governor so to do, then we have no further jurisdiction. If the power to declare martial law and to suspend the privilege of the writ of habeas corpus is confided by the Constitution to the Legislature, the Governor is without authority to detain the petitioner, and we have jurisdiction to discharge him. time of the issuance of the writ, it was stated that we reserved the right to pass upon the question of our jurisdiction when final disposition was made of the case; and, if we were now to admit the prisoner to bail, we should, in effect, determine that we have jurisdiction, and should, pending the hearing, grant all the relief that the petitioner demands. If the liberty of the petitioner alone were involved, we should probably resolve the doubt in his favor, admit him to bail, and determine the question of jurisdiction afterward; but the head of the executive department of the state has stated in the return to the writ that in his solemu judgment peace and tranquillity cannot be speedily restored in the county of San Miguel unless the petitioner remains in the custody of the military authority. Therefore the matter involved affects not only the liberty of the petitioner, but the peace of the people of San Miguel, and, incidentally, the tranquillity of the people of the entire state. Although many of the averments of the return are denied, we shall accept, for the purpose of determining the question here presented, the statements therein contained as true. And, if they are so accepted, we should not admit the petitioner to bail in the face of the declaration of the Governor that the petitioner has aided and abetted those who stand in defiance of the law, and that he is the leader of a band of lawless men engaged in acts of insurrection. To admit the petitioner to bail before we have determined the main question would, it seems to us, be invading the legitimate province of the executive department, and that we are restrained from doing by the fundamental law. Nothing we have said should be regarded as foreshadowing the decision upon the important questions which must necessarily be determined upon the final hearing. Although the chapter of the statutes on the subject of habeas corpus is not applicable to original proceedings in this court, we usually adopt the statute for our guidance on questions of practice; and we should set the hearing of this case wi...in five days from the return day of the writ if all the members of the court could then be present. The questions involved affect the privileges and liberties of the people of the whole state, and we think these questions are so important as to require that all the members of the court participate in their determination. We shall therefore decline to set the cause within the time fixed by statute, but do set it for hearing on Thursday, May 5th, at the hour of 10 o'clock. The application for bail is denied. CAMPBELL, J., not participating. (151 Cal. 797) PEOPLE ex rel. POST et al. v. SAN JOA- 1. AGRICULTURE - DISTRICT ASSOCIATIONSPUBLIC CORPORATIONS-EXECUTION. An agricultural association, incorporated under St. 1880, p. 62, c. 69, dividing the state into agricultural districts, authorizing a certain number of persons within such a district to organize such an association, its real estate to be used for the purpose of holding exhibitions of the live stock and products of the district, with the view to the improvement of all industries in the same, providing for a district board of agriculture, to be appointed by the Governor, and to qualify by oath, and declaring such an association, when formed, to be a state institution, and that such board shall have exclusive control and management of the association for and in the name of the state-is a public corporation created for the local administration of a part of the affairs of the state; so that its property, used to carry on the purposes for which it was formed, is not subject to exe |