Opinion of the Court-Hawley, J.

that under the law the perfecting of an appeal works this result: the order releases levy. (Mulford v Estudillo, 32 Cal. 131; Barroilhet v. Hathaway, 31 Id. 395.) An appeal duly perfected stays execution of the judgment below. (Covarrubias v. Sheriff, 52 Cal. 622; People v. Commissioners, 25 How. Pr. 257; Brilton v. Phillips, 16 Abb. Pr. 33; Hutchinson v. Bours, 13 Cal. 52; Fulton v. Hanna, 40 Id. 278.)

II. The court erred in denying the motion to recall the execution. (Jackson v. Roberts, 7 Wend. 88; Dobbins v. Dollarhide, 15 Cal. 374; Sanchez v. Carriaga, 31 Id. 172; Day v. Graham, 1 Gil. 435; Thompson v. Thornton, 41 Cal. 526; Bryan v. Berry, 8 Id. 133; Leonard v. Peacock, 8 Nev. 157, 247.

George G. Berry and Lewis & Deal, for Respondent:

I. The notice should state the grounds upon which the motion will be made. To say that the "writ was improperly issued" is not the statement of any ground. (Freeborn v. Glazer, 10 Cal. 337; Loucks v. Edmonson, 18 Id. 203; Freeman on Executions, sec. 74.

II. The execution was functus officio before the notice of motion was filed or served. (Freeman on Executions, sec. 477.)

III. The bond on appeal, when filed, was ineffectual for any purpose. (Johnson v. Badger Mill & M. Co., 12 Nev. 261; Laveaga v. Wise, 13 Id. 296.)

IV. The amount of the undertaking is not sufficient to stay execution. (1 Comp. L. 1402, 1404, 1406, 1408; Mokelumne Hill Co. v. Woodbury, 10 Cal. 185; Dobbins v. Dollarhide, 15 Id. 375.

V. In no case can the defendant demand the return of the property as an absolute right.

By the Court, HAWLEY, J.:

This is an appeal from an order of the district court denying defendants' motion for the re-delivery of the possession of the premises in controversy in said action, and for a stay of proceedings upon filing a bond.

Said motion was made upon the ground that the writ of execution under which the sheriff ousted defendants from

Opinion of the Court-Hawley. J.

their possession, was improperly issued, and upon the provisions of the statute. (1 Comp. L. 1406-7-10.)

The motion was filed September 11, 1879, and the time for hearing fixed for September 13.

The record shows that the writ of execution was properly Issued and delivered to the sheriff on the second day of September, 1879.

On the eleventh day of September the sheriff made the following return thereon: "I hereby certify and return that I executed the within writ, so far as the same directed and required me to place the plaintiff in said action in possession of the property therein described, by removing all persons found in possession of the same, and by placing Samuel Brown, trustee and agent of the plaintiff, in the full, complete, and sole possession of the said property on the second day of September, 1879, and that a stay of execution having been granted as to the money judgment mentioned in said writ, the same was not executed by me.'

The order fixing the amount of the appeal bond to stay execution, as to possession, was not made until the thirteenth day of September, 1879. On the seventeenth of the same month the court denied defendants' motion, "on the ground that the court had no power to grant the same."

24.

The bond on appeal from said order was filed September

From all the facts set forth in the record it appears that the object of the suit was consummated, and the judgment, in so far as it related to the possession of the property, was satisfied prior to the time when defendants' motion was made.

The order of the court denying the motion was correct. The writ of execution was not improperly issued. No stay had been granted, except "as to the money judgment." That part was not enforced. At the time the motion was made no notice of appeal from the judgment had been given, and at the time the court denied defendants' motion for the re-delivery of the possession of the premises, the appeal from the judgment had not been perfected. The order appealed from is affirmed.

VOL. XV-10

Opinion of the Court-Hawley, J.

[No. 1026.]

EX PARTE GEORGE WHITE AND JOSEPH PERGUE.

SUNDAY-NON-JUDICIAL DAY.-A judgment of a justice of the peace, ren. dered upon the trial of a criminal case, on Sunday, is null and void. HABEAS CORPUS before the Supreme Court

The facts appear in the opinion.

M. S. Bonnifield, for Petitioners.

M. A. Murphy, for State.*

By the Court, HAWLEY, J.:

The return to the writ of habeas corpus, issued in this case, shows that petitioners were arrested and brought before a justice of the peace on the first day of February, 1880, on a charge of having committed a misdemeanor. In answer to questions asked them by the justice they stated that they did not desire counsel. They plead guilty, and waived the time prescribed by statute for passing sentence. The justice thereupon, on said first day of February, passed sentence, and rendered judgment imposing a fine and imprisonment. The first day of February was Sunday. Was the justice authorized to try and decide the case on Sunday? We think not. Sunday is dies non-juridicus. At common law all judicial proceedings which take place on that day are void.

Our statute has made certain exceptions to this rule; but in our opinion, none of the exceptions apply to this case. The third subdivision of section 50 of an act concerning courts of justice, upon which counsel for the state relies, provides that the courts of this state may be open, and that judicial business may be transacted on Sunday "for the exercise of the powers of a magistrate in a criminal action, or in a proceeding of a criminal nature." (1 Comp. L. 955.)

This exception only applies to the exercise of the powers of a magistrate.

"A magistrate is an officer having power to issue a war

Points decided.

rant for the arrest of a person charged with a public offense." (Cr. Pr. Act, sec. 101; 1 Comp. L. 1729.)

A justice of the peace acting as a magistrate, may transact judicial business on Sunday; may issue warrants for the arrest of parties charged with crime; may proceed with the preliminary examination, and may commit, discharge, or release upon bail, the parties under arrest.

In the present case, the justice, in receiving the plea, passing sentence, and rendering judgment, acted in the exercise of his powers as a justice of the peace. In this respect he acted without any authority of law.

The judgment rendered by him is utterly null and void. (Swann v. Broome, 3 Burr, 1595, Arthur v. Mosby, 2 Bibb, 589; Pearce v. Atwood, 13 Mass. 324; Chapman v. State, 5 Blackf. 111; Hemens v. Bentley, 32 Mich. 91; Freeman on Judgments, sec. 138.)

The petitioners must be discharged. It is so ordered.

[No. 979.]

OVERMAN SILVER MINING COMPANY, RESPONDENT, v. PHILIP CORCORAN ET AL., APPELLANTS. MINING AND MILLING ACT, FOR CONDEMNATION OF LAND, CONSTITUTIONAL.— The act entitled "an act to encourage the mining milling, smelting, or other reduction of ores in the State of Nevada" (Stat. 1875, 111), is constitutional. (Dayton G. & S. M. Co. v. Seawell, 11 Nev. 394, affirmed.) LOCATION OF MINING CLAIM-DISCOVERY OF LODE.-No valid location of a mining claim can be made until a vein, or deposit, of gold, silver, or metaliferous ore, or rock in place, has been discovered.

CONFLICT OF EVIDENCE.-Rule as to conflict and weight of evidence enforced. CONDEMNATION OF LAND-NECESSITY FOR.-The lands sought to be condemned

were the most eligible and convenient for the erection of expensive ma.chinery and sinking a shaft; no other lands could have been selected, except at great expense and at places inaccessible to a railroad or to wagon roads, without which the business of the mining company could not be successfully conducted: Held, that a necessity existed for the condemnation of the land in controversy, for the protection and advancement of the mining interests of Storey county.

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

Argument for Appellants.

The facts are sufficiently stated in the opinion.

Lewis & Deal, for Appellants:

I. The act under which the land described in the record was condemned is unconstitutional and void. The petitioner is a mere private corporation, organized to carry on the business of mining for its own benefit, in which the public has no interest, and to permit it to take appellants' property, is to permit private property to be taken for private use. (Green's Brices Ultra Vires (note), 284; 51 Cal. 269; 42 Ga. 500; 5 Nev. 285; 44 Vt. 649; 4 Hin. 140; 66 N. Y. 569; West Bridge Co. v. Dix, 6 How. (U. S.) 546; 25 Iowa, 540; 2 Seld. 366; 34 Ala. 311; 2 Pet. 627; 18 Cal. 229; 2 Kent's Com. 340; 4 Coldw. 419; 18 Cal. 153; 8 Ohio St. 344; 7 W. Va. 191; Cool. Const. Lim. 530-2; Sedg. Const. Law, 155.)

II. The land sought to be condemned is a part of appellants' mining claims, containing veins of rock in place bearing the precious metals, gold and silver. It was located by appellants and their predecessors in interest, in accordance with the acts of congress, and has been worked so as to hold the same under said act.

As to what is a "vein" or "lode" within the meaning of the mining laws of the United States, see 14 Sawyer, 302; Mt. Diablo M. & M. Co. v. Callison, U. S. C. C.; 1 Landowner, 18, 114, 180.

III. The legislature did not intend that one mining claim might be taken to enable another claim to be worked. The courts would not permit such an interpretation of the law unless the legislature clearly indicated that such a thing could be done. (43 Conn. 234; 23 Ohio St. 510.)

IV. The term "mining claim," as used in the constitution of the state, and in the act of the legislature, is never embraced or included in the term real estate. (Const., art. IV., secs. 4, 6, 8; Stat. 1866, sec. 2, subd. 11, 101; Stat. 1866, ch. XCVIII.; Stat. 1875, 111; 1 Comp. L., 1019-1022 et seq.; Id. 1049, 1317, 1373.)

V. The evidence does not show that a necessity for the condemnation of the property existed. (Stat. 1875, 111;