ment is rendered, or order made by the court, and publication of its opinion and decision, and no argument will be heard thereon. No remittitur or mandate to the court below shall be issued until the expiration of the ten days. herein provided, and decisions upon the petition, except on special order.

RULE XVI.

Where a judgment is reversed or modified, a certified copy of the opinion in the case shall be transmitted, with the remittitur, to the court below.

RULE XVII.

No paper shall be taken from the court-room or clerk's office, except by order of the court, or of one of the justices. No order will be made for leave to withdraw a transcript for examination, except upon written consent to be filed with the clerk.

RULE XVIII.

No writ of error or certiorari shall be issued, except upon order of the court, upon petition, showing a proper case for issuing the same.

RULE XIX.

Where a writ of error is issued, upon filing the same and a sufficient bond or undertaking with the clerk of the court below, and upon giving notice thereof to the opposite party or his attorney, and to the sheriff, it shall operate as a supersedeas. The bond or undertaking shall be substantially the same as required in cases on appeal.

RULE XX.

The writ of error shall be returnable within thirty days, unless otherwise specially directed.

RULE XXI.

The rules and practice of this court respecting appeals shall apply, so far as the same may be applicable, to proceedings upon a writ of error.

RULE XXII.

The writ shall not be allowed after the lapse of one year from the date of the judgment, order, or decree which is sought to be reviewed, except under special circumstances.

RULE XXIII.

Appeals from orders granting or denying a change of venue, or any other interlocutory order made before trial, will be heard at any regular or adjourned term, upon three days' notice being given by either appellant or respondent, when the parties live within twenty miles of Carson. When the party served resides more than twenty miles from Carson, an additional day's notice will be required for each fifty miles, or fraction of fifty miles, from Carson.

RULE XXIV.

In all cases where notice of a motion is

necessary, unless

for good cause shown the time is shortened by an order of

one of the justices, the notice shall be five days.

REPORTS OF CASES

DETERMINED IN

THE SUPREME COURT

OF THE

STATE OF NEVADA.

JANUARY TERM, 1881.

[No. 1,034.]

THADDEUS B. ROYCE, APPELLANT, v. J. C. HAMPTON, ADM'R, ETC., ET AL., RESPONDENTS.

EQUITABLE RELIEF-NEGLIGENCE.-Courts of equity will not grant relief to a party who has had an opportunity to be heard in a court of law without a showing that he was prevented from being heard by the wrongful acts of the prevailing party, unmixed with any negligence or fault on his part.

IDEM-MISREPRESENTATIONS.-Courts of equity will not grant relief to a party upon the ground of misrepresentations made to him, unless he shows that he relied and acted upon them believing them to be true. IDEM-DECREE OF DISTRIBUTION-LACHES OF CLAIMANT-POVERTY NO EXCUSE.Where a claimant has knowledge of the proceedings for the settlement of an estate, of the time fixed for a decree of distribution, that the estate is valuable, that his claim of relationship is denied, that the administrator failed to answer his letters, and where all the proceedings were regular and legal in form and without any fraud, concealment, or misrepresentation: Ield, that the fact that the claimant was in delicate health and in poor circumstances is not sufficient to excuse him from making an effort to appear in the proceedings and assert his rights. ESTATES OF DECEASED PERSONS-DUTY OF ADMINISTRATORS.-Administrators should be held to the utmost good faith and strict performance of official duty. They are, however, mere creatures of the statute, and are only bound to perform such duties as are imposed upon them by the law. IDEM. Where the decree of distribution is not made upon the petition of the administrator, he is not bound to notify the court that there are other parties, besides the petitioner, who claim to be beirs of the estate.

Statement of Facts.

IDEM-DUTY OF PETITIONER.-It is the duty of the petitioner for a decree of distribution to inform the court as to all heirs of the estate entitled to share in the distribution thereof; but when petitioner claims to be the sole heir of the estate, and regularly pursues the course required by the statute in giving notice, etc., he is not guilty of fraud upon the court, because he does not state the names of other parties who claim to be heirs of the estate.

SUFFICIENCY OF EVIDENCE TO SUPPORT FINDINGS.-The evidence reviewed and held to be sufficient to support the findings that plaintiff "was guilty of negligence and laches which are unexcused."

APPEAL from the District Court of the First Judicial District, Storey County.

The findings referred to in the opinion of the court are as follows:

19. "That for upwards of five months before the said decree of distribution was made, plaintiff suspected that said William John Ford and defendant (J. C. Hampton) intended to cheat him (plaintiff) out of the estate of said Oliva Rosanna Ford, and knew that said William John Ford claimed that plaintiff was no relation to him (Ford).”

20. "That said plaintiff knew, before the nineteenth day of October, 1875, that said estate of said Oliva Rosanna Ford was in process of settlement and distribution, and was about to be distributed in said district court, but never appeared, or offered to appear, or made any effort to appear, either in person or otherwise, in said estate proceedings, or any of them, in said district court."

22. "That plaintiff was not prevented from taking, and did not fail to take, steps to appear in said district court, in said estate matter and proceedings, by reason of any representations whatever, by letter or otherwise, of said J. C. Hampton, defendant herein, as administrator or otherwise, or said William John Ford; and plaintiff did not appear, or take steps to appear, in said estate proceedings, in said district court, by reason of any concealment practiced by said J. C. Hampton or said William John Ford, touching the value of the estate of said Oliva Rosanna Ford, or of any of the proceedings therein in said district court."

26. "That plaintiff knew it to be his duty to be repre

Argument for Appellant.

sented by counsel or to appear in person in said estate proceedings in said district court, and has failed to excuse his negligence for not appearing, or being represented therein." 27. "That plaintiff did not rely or act upon any of the representations concerning the value of the estate of said Oliva Rosanna Ford made to him by said William John Ford or J. C. Hampton, as administrator, or otherwise."

Lewis & Deal, and J. H. Graham, for Appellant:

I. The scope of inquiry by courts of chancery as to what constitutes fraud is much broader than that of courts of law, nor are they hampered by the inflexible rules which circumscribe the investigations of the latter. Any element of unfair dealing, any unconscionable advantage obtained, any deception practiced, any concealment of a fact which should in good conscience be revealed, the mental and other conditions of the parties, the relationship of the parties to each other, are all matters which will be considered by a court of chancery in determining whether fraud has been committed. (Kerr on Fraud and Mistake, 43, 44; Freeman on Judgments, sec. 486; Reigal v. Wood, 1 Johns. Ch. 402; 2 J. J. Marsh. 405; 17 Barb. 202; 1 Story's Eq. Jur., secs. 119, 122, 133, 140, 146, 147, 222, 234, 323, 439; 9 Pick. 113-125; 2 Perry on Trusts, sec. 924; 1 Stock. 246; 5 Ire. Eq. 123; 7 Eng. Ch. 200; 15 Id. 331-332; Lewin on Trusts, 330, 331; 6 Miss. 365; 6 J. J. Marsh. 258.)

II. There is nothing in our constitution or laws making the probate jurisdiction exclusive. When such is not the case, courts of equity have always interfered when fraud has been perpetrated or undue advantage has been taken. (Clarke v. Perry, 5 Cal. 59; Wilson v. Roach, 4 Id. 362; Deck v. Gerke, 12 Id. 433; Griggs v. Clark, 23 Id. 429; Wright v. Miller, 1 Sanf. Ch. 103–119; 1 Story's Eq. Jur., sec. 531543; also 184, n.)

III. Under the authorities, the facts of this case clearly constitute such a fraud as will justify setting aside the decree. (Hoitt v. Holcom, 23 N. H. 535; 4 J. J. Marsh. 491; 13 N. J. L. 26; Smith's Manual, 60; Heyden v. Heyden, 46 Cal. 340; 3 Green's (N. J.) Eq. 465.) That mere conceal