mine. When a person confesses or admits that he committed a crime, it is often entitled to considerable weight as being an admission against his interest; but this presumption may be overcome by showing that the witness had a strong motive to testify as he did, though not in accordance with the truth. The jury should take into consideration all the facts and circumstances in the case, and they may have thought that. A. Green Hicks testified that he shot and killed the deceased, in the manner and under the circumstances stated in his testimony to save his aged father from the awful consequences of the crime for which he was being tried. In any event, it was for the jury to deter mine whom they would believe and whom they would disbelieve; and where the jury has passed upon the testimony in a fair and impartial trial, this court will not disturb the verdict. Finding no error in the record which would authorize an interference by this court, the judgment of the court below will be affirmed.

O'BRIEN, C. J., and SEEDS and FREEMAN, JJ., concur.

(21 Nev. 300)

STATE ex rel. BLOSSOM V. HORTON, State Comptroller. (No. 1,359.)

(Supreme Court of Nevada. Aug. 31, 1892.) ARTESIAN WELLS-BOUNTY-AMENDMENT of STATUTE.

Act March 5, 1887, § 1, provided for the payment of bounties for the sinking of artesian wells of a given capacity. Act March 7, 1889, amended the former act, fixing different bounties for different depths of wells, and providing that "no two wells shall receive a bounty if located in the same county," and that, "where two or more wells within the prescribed limits apply for a bounty, the well which first furnished the amount of water required by this act shall be entitled to the bounty." The amendment was made by enacting that the former act "is hereby amended so as to read as follows;" section 1 of the act of 1887 being republished as amended, and the amendatory act contained no words of repeal. Held, that the effect of republishing the former act was not to repeal and re-enact it, but that it continued uninterruptedly in force, and that the amendatory act was to be construed in connection with it, so that, where a well was sunk and a bounty for it granted under the original act, another bounty would not be granted under the amendatory act for another well, sunk in the same county.

Application for mandamus by J. A. Blossom against R. L. Horton, state comptroller, to compel the payment of a bounty for sinking an artesian well. Refused.

Sardis Summerfield, for relator. J. D. Torreyson, Atty. Gen., for respondent.

MURPHY, J. An act of the legislature was approved March 5, 1887, (St. 1887, p. 119,) entitled "An act to encourage the sinking of artesian wells.' The first section reads as follows: "Every person, firm, company, corporation, or association that shall, after the passage of this act, commence the sinking of artesian wells, shall be entitled, for sinking such artesian well, where flowing water is obtained, the sum of one dollar and twenty-five cents per foot, to be paid in the manner provided for in section four of this act: provided,

that no bounty shall be paid on any well which does not furnish seven thousand gallons of water each twenty-four hours, flowing continuously for thirty days; and provided, further, that bounties shall not be paid in more than three wells in each county within this state; and provided, further, that no two wells shall receive a bounty if located within ten miles of each other." Sections 2-5 relate to the manner of proceeding and drawing the money from the treasury after the flow of water is obtained. Section 6 appropriates $10,000 from the general fund to pay bounties. On the 7th day of March, 1889, the legisla ture amended section 1 of the act of 1887, (St. 1889, p. 84:) "Section 1. Every person, firm, company, corporation, or asso. ciation that shall, after the passage of this act, commence the sinking of artesian wells, for stock or agricultural purposes, shall be entitled for sinking such artesian well, where flowing water is obtained, the following specified sums: For the first two hundred feet, one dollar and twentyfive cents per foot; for the third one bundred feet, one dollar and fifty cents per foot; for the fourth one hundred feet, two dollars per foot; for the fifth one hundred feet, two dollars and twenty-five cents per foot; for the sixth one hundred feet, two dollars and fifty cents per foot; for the seventh one hundred feet, three dollars per foot; for the eighth one hundred feet, three dollars and fifty cents per foot; for the ninth one hundred feet, four dollars per foot; for the tenth one hundred feet, four dollers and fifty cents per foot; for all depths exceeding one thousand feet, five dollars per foot for each and every foot below the said one thousand feet, and an additional bounty of one thousand dollars for every well sunk to the depth of one thousand feet or more: provided, that such well shall furnish twenty thousand gallons of water each twenty-four hours, flowing continuously for thirty days; said sums to be paid in the manner provided for in sections four and five of this act: provided, that no bounty shall be paid on any well which does not furnish seven thousand gallons of water in each twenty-four hours, flowing continuously for thirty days: and provided, further, that no two wells shall receive a bounty if located within the same county. Where two or more wells within the preribed limits apply for a bounty, the well which first furnished the amount of water required by this act shall be entitled to the bounty allowed by this act." Section 6 reappropriates the sum of $10,000 from the general fund to pay bounties. Sections 2-5 of the act of 1887 are not copied into the statute of 1889, but are merely referred to by the sections, nor is there any repealing clause in the act of 1889.

The admitted facts are that on or about the 24th day of May, 1890, the relator and one S. L. Cahoon made and subscribed to the affidavit, as required by section 2 of the act of 1887, and proceeded to sink a well; that said well was sunk to the depth of 810 feet, was five inches in diameter, and flowed 100,000 gallons of water in each 24 hours, for 30 days continuously; that relator made his report to the board

of county commissioners of Lander county, as required by section 3, and received a certificate from said board, as provided for in section 4 of the act of 1887; that a claim for $1,765, as bounty, was presented to the state board of examiners, and was, on the 9th day of July, 1891, approved and allowed by said board. On the 10th day of July, 1891, said claim, with the indorsements thereon, was presented to the state comptroller, with the request that he should draw his warrant on the treasurer for the amount therein specified, but to draw the said warrant the comptroller refused and still refuses to do; giving as his reasons for such refusal that the appropriation had lapsed, and that there was another well sunk on the same quarter section of land, for which a bounty had been paid prior to the sinking of the well by the relator. Whereupon the relator sued out the alternative writ of mandamus herein.

The attorney for relator argues that the amendatory act of 1889 repealed section 1 of the act of 1887, and that, when the relator commenced sinking his well in 1890, the law under which he proceeded should be read and construed as if no law on the subject had existed prior to the 7th day of March, 1889; and the fact that a well had been sunk on the same quarter section of land, and a bounty paid thereon could not, and did not, operate to defeat the right of the relator to collect the bounty for the sinking of his well.

They

We cannot agree with him in any such conclusion. The act of 1887 was passed to encourage and aid, if possible, in developing the resources of the state, and to encourage the expenditure of labor and money, in seeking to discover water for domestic, agricultural, and grazing purposes; and, as an incentive for such expenditures, the state agreed by said act to aid in such developments by the payment of bounties. In 1889 the legislature must have become satisfied that the act of 1887 was too liberal in its provisions, and not sufficiently restrictive. therefore amended section 1, and the said amendment is, in its terms, more guarded, definite, and restrictive. But the provisions of the act of 1887 are not repealed. The effect of an amendment of a statute made by enacting that the "act is hereby amended so as to read as follows," and then incorporating the changes or additions with that portion of the former act that is retained, is not that the portions of the amended act which are merely copied from the original act are to be considered as having been repealed and again re-enacted. The part which remains unchanged is to be considered as having continued to be the law from the time of its first enactment. Holbrook v. Nichol, 36 III. 167; Kamerick v. Castleman, 21 Mo. App. 590; Parsons v. Circuit Judge, 37 Mich. 290; Walker v. State, 7 Tex. App. 256; Suth. St. Const. § 134.

It is a fundamental rule that repeals of statutes by implication are not favored in law. To constitute the repeal of an act of the legislature by implication, the new statute must cover the whole subjectmatter of the old one. There must be an

irreconcilable repugnancy between the two acts, and the repugnancy must be plain and unavoidable. Under the act of 1887, where a well was sunk from which was obtained a flow equaling 7,000 gallons of water in each 24 hours, for 30 days continuously, the party sinking such a well was entitled to receive as bounty $1.25 per foot, regardless as to the depth of such well. The provision was enacted in this manner to induce, if possible, parties to sink wells, and to demonstrate the fact that there was water flowing beneath the surface of the soil that could be brought to the surface by the boring of artesian wells. That fact having been established, the legislature of 1889, wishing to encourage the sinking of deep wells, fixed the bounty, "for the first two hundred feet, one dollar and twenty-five cents per foot," and increased the bounty for each and every hundred feet thereafter sunk, until the well reached the depth of 1,000 feet; and in case the well was sunk below 1,000 feet, and flow of water to exceed 20,000 gallons in each 24 hours was obtained, the person sinking such well was entitled to receive an additional bounty of $1,000. Under the act of 1887, bounties could be obtained on three wells in one county, provided their locations were more than 10 miles apart. Under the act of 1889, but one well in each county could receive a bounty. We are satisfied that, where a party had sunk a well and ob. tained a bounty under and by virtue of the act of 1887, it was not the understanding nor intention of the legislature that another person could have entered upon the same quarter section of land, sink a well, and obtain the bounty, under the provisions of the act of 1889. We are supported in this conclusion from the reading of the closing paragraph of section 1 of the act of 1889, which reads: "Where two or more wells within the prescribed limit apply for a bounty, the well which tirst furnished the amount of water required by this act shall be entitled to the bounty allowed by this act." The prescribed limits, under the act of 1887, 10 miles; under the act of 1889, one in each county; amount of water, 7,000 gallons. The relator having sunk his well on a quarter section of land where one had been sunk by other parties, and the bounty as provided for under the act of 1887 paid, he cannot recover a bounty for sinking his well. From the view we have taken of this case, it is unnecessary to pass upon the question raised as to whether the appropriation of $10,000 reverted to the general fund on the 31st day of December, 1890, or not. Mandamus denied.

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BIGELOW, J., (concurring.) By the amendatory act of 1889, amending section 1 of the act of 1887, it is directed that "every person that shall, after the passage of this act," sink an artesian well under certain circumstances, shall be entitled to the bounty therein provided for. Counsel contends that as the relator's well was the first one sunk in the county, after the passage of the amendatory act, he is by its express language entitled to the bounty, notwithstanding the

admitted fact that there had previously been another well sunk upon the same quarter section of land, for which a boun. ty has been claimed and paid, under the law as it stood previous to the amendment. All laws are to be so construed as to arrive, if possible, at the intention of the legislature; and the question here is whether that body intended by the amendatory act to wipe out all that had been done under the original act,-to begin anew, as it were,-and pay a bounty upon the first well that might be sunk in each county after its passage.

1. As to the time when the well was to be sunk, the amendment merely repeats the language of the original act. Under our constitution, where a section of an act is amended, the section must be reenacted and published at length. The effect of this is that all in the original section which is not repeated in the amendment is repealed, the new provisions in the amendment take effect from the time of its passage and approval, and the provisions which are repeated stand the same as though there had been no amendment or change. Railroad Co. v. Shackelford, 63 Cal. 261; Ely v. Holton, 15 N. Y. 598. This being the rule of statutory construction, it would seem clear that the words, "after the passage of this act," being so repeated, must be held to refer to the original act, and any well sunk after the date of that act, March 5, 1887, upon which a bounty has been paid, must be counted as being within the law, and, to that extent, excluding the payment of bounty on any other. As, under the amendatory act, bounty can only be paid on one well in each county, the previous payment excludes the claim made for the relator's well.

2. As is well known, the sinking of an artesian well, where no other has been sunk, is always in the nature of an experiment. They are expensive, and private parties hesitate about sinking them until some one has demonstrated that water can be obtained. It is clear that the purpose of the legislature in offering the bounty was to encourage the making of these experiments in places where it was uncertain whether water could be obtained. The wells upon which bounty was to be paid were for the purpose of prospecting the country, and finding, if possible, a belt of artesian water. If such a belt was found, others would then sink wells, and thereby extensive tracts of land might be reclaimed and rendered fertile. That this was the purpose of the legisature is evident from the manner in which the act is guarded. If it was once determined that artesian water could be obtained in a section of country, the purpose of the legislature was secured, and there was no occasion to pay for sinking another well. Consequently, we see, under the original Act, that the wells must be at least 10 miles apart, and under the amendment that bounty can be paid upon but one well in a county. In this case it appears that it had already been practically determined by an experiment, for which the state had paid, that artesian water could be obtained upon the same quarter sec

tion of land in which the relator's well was sunk. Sinking another well there does not come within either the letter or the spirit of either act. It would be strange, indeed, if bounty could be drawn, which is not payable, under the terms of either the original or the amended act.

3. There is nothing in the suggestion that the first well should be excluded from consideration because the purpose of the law was changed by the amendment. It is true that under the amendment wells must be sunk for stock or agricultural purposes, while the original act did not limit the purpose, but the limitation does not exclude the counting of the first well. Nor is it true that, under the amendment, bounty could not have been drawn upon the first well, because it was only 153 feet in depth. It is not necessary, under the latter act, that the well should be sunk at least 200 feet before bounty can be obtained upon it. I concur in the judgment denying the mandamus.

1. An appeal may be taken by the husband from so much of the decree awarding the wife a divorce as respects the property rights of the parties only, under Comp. Laws, par. 1392, which provides that an appeal "shall be made by filing with the clerk of the court with whom the judgment or order appealed from is entered. a notice stating the appeal from the same, or some specific part thereof."

2. Const. art. 6. § 4, providing that the supreme court shall have "appellate" jurisdiction in all cases in equity, etc., does not deprive that court of the right to make an order allowing counsel fees to the wife, so as to enable her to prosecute an appeal from a decree in a suit for divorce.

3. Comp. Laws, par. 1407, which provides that a perfected appeal shall stay all further proceedings in the court below on the judgment appealed from, but that such court "may proceed upon any other matter included in the action. not affected by the judgment or order appealed from," does not give the court below jurisdiction to make an allowance for counsel fees to enable the wife to prosecute an appeal to the supreme court from a decree in a suit for divorce.

Appeal from district court, Washoe county.

Action by Jane Lake against M. C. Lake for divorce. Plaintiff appeals from a decree for defendant, and moves in the supreme court for an allowance for counsel fees to enable her to prosecute her appeal. Motion granted.

C. S. Varian, for appellant. Robert M. Clarke and Trenmor Coffin, for respondent.

property in question to be the separate property of respondent. Being dissatisfied with that part of the decree disposing of the property, appellant moved the court for "a new trial of the issues made by the complaint and answer in said action respecting the property and property rights of the respective parties to said action. That motion was overruled by the court, and she appealed from the order overruling the same, and "from that part of the judgment made and entered in said action

affecting the questions of alimony and the property rights of the parties to said action." To enable her to prosecute the appeal, appellant applied to this court for an order directing respondent to pay to her counsel or to the clerk of the court such sums as might be found necessary to discharge the costs and expenses of appeal, and such further sums as counsel fees as might be deemed reasonable, not exceeding the sum of $5,000. This motion is based upon appellant's affidavit, wherein, among other things, it is averred that "she is absolutely without means or credit whereby to compensate counsel in this court, or to discharge the costs and expenses of the clerk and printer, as provided by law and the rules of the court, and is unable to secure the services of counsel. She further avers that she desires to retain the services of the attorneys who conducted her case in the district court, and who are familiar with its history, and that respondent is able to pay all costs and charges. Subsequent to the filing of appellant's affidavit and notice of motion, counsel for respondent consented, without opposition, to pay to the clerk of this court an amount sufficient to defray the necessary costs of court and expenses of printing, which was done accordingly. But objection is made to the granting of an order for attorneys' fees, upon the ground that the court has no jurisdiction to make it,-First, because there is no valid appeal; second, because the granting of the order would be the exercise of original jurisdiction in a case where, under the constitution, the court has only appellate jurisdiction. These objections will be considered in the order stated.

The objections urged to the validity of the appeal are that the motion for a new trial applied to a part of the decision only, and that the appeal is from an order overruling a motion for new trial as to that part, and not the whole, and from a part only of an entire judgment. In considering the questions here presented certain additional facts should be stated. The record shows that of the issues made by the pleadings those relating to the custody of the child and the disposition of the property, were, by consent of both parties, withdrawn from the consideration of the jury at the trial, and reserved for the future consideration and determination of the court, should it be decided that the plaintiff was entitled to a divorce; that a divorce was granted; and that subsequently the court, sitting without a jury, tried the issues relating to the custody of the child and the disposition of the property. The result is that the decree was in favor of appellant as to the divorce and

custody of the child, but against her as to the disposition of the property. It is urged by counsel for respondent that a new trial is a re-examination of the whole case; that it could not have been granted in this case upon the question of property rights alone; that a motion to retry the issues made upon that question only was a nullity; and consequently that there was, and could have been, no error in overruling the motion made. It is also claimed that an appeal from a judgment or decree must be taken from the whole thereof, and cannot be taken from any specific part. We deem it unnecessary to decide whether or not, in moving for a new trial, the mo tion must in all cases request a new trial upon all the issues made. If appellant had the right to appeal from that part of the judgment alone which disposed of the property, then we have a valid appeal; and in that case it matters not whether the appeal is taken from such part of the judgment only, or from that part and the order overruling a motion for new trial. If there is a valid appeal, whether from a part of the judgment, or from that and the order denying a new trial upon a portion of the issues made, then the only question which we are now called upon to decide is fully presented; that is to say, whether or not this court has jurisdiction to make an order requiring respondent to pay reasonable counsel fees for prose. cuting the appeal. That appellant had the right to appeal from a specific part of the whole judgment-the portion against her- without disturbing the other portions in her favor, we have no doubt. “A judgment is the final determination of the rights of the parties in the action or proceeding." Comp. Laws, par. 1208. Several distinct causes of action may be united in the same complaint. Comp. Laws, par. 1127. "Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants; and it may, when the justice of the case requires it, determine the ultimate rights of the parties on each as between themselves." Comp. Laws, par. 1209.

In Lake v. King, 16 Nev. 216, the question was whether, after decree dissolving the bonds of matrimony, but before trial of the issues touching a disposition of the alleged common property and the custody of the child, there was such a final judgment as permitted an appeal from certain orders for the payment of alimony and counsel fees, made after granting the divorce, but before trial of the issues concerning property rights and the custody of the child. For that purpose we held that the decree of divorce was not a final judgment. We said: "By stipulation the issues in the divorce suit were only tried and settled in part, and the remainder were reserved for future action. The orders complained of are not included among those from which an appeal may be taken before final judgment. If an appeal lies from these orders, it is because they are special orders, made after final judgment." It is the policy of the law governing appeals, unless otherwise expressly stated, that all orders made in the course of trial shall be

reviewed on appeal from the judgment; | otherwise there would be no end to appeals. Provision is made for appeal from orders made after final judgment, because there is no other way of appealing therefrom. The special orders that may be appealed from after final judgment are those made subsequent to the rendition of the judgment, of which a copy must be made a part of the judgment roll. Comp. Laws, pars. 1266-1268. The judgment roll is not made up until final disposition of all the issues. And the final judgment from which an appeal may be taken is doubtless that final determination of the rights of the parties in the action, or some specific part thereof, which must be entered in the judgment book, and a copy of which must be put in the judgment roll, together with the original pleadings in the action. It follows that an appeal cannot be taken from a judgment, or any portion of it, until all the rights of the parties in the action are determined and fixed. But it does not follow that the appellant must in every case appeal from the whole judgment,-from separate and independent determinations in his favor, as well as those against him.

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At common law every judgment was composed of an entirety of adjudication. No part of it was properly called a "judgment, nor could anything less than the entirety be objected to on appeal or other. wise. But the Code has modified the common law in this and other respects. We can unite many causes of action which, before the Code, could not have been united, because, under our practice, dissimilar judgments may be pronounced in the same action. For instance, in an action upon two promissory notes, “the final determination of the rights of the parties in the action may comprise a judgment in favor of the plaintiff upon one, and against him, and in favor of the defendant, upon the other." The statute provides that an appeal may be taken from a final judgment. It also provides that "the appeal shall be made by filing with the clerk of the court, with whom the judgment or order appealed from is entered, a notice stating the appeal from the same, or some specific part thereof, and serving a copy of the notice upon the adverse party or his attorney. Comp. Laws, par. 1392. And paragraph 1400 provides that "upon an appeal from a judgment or order the appellate court may reverse, affirm, or modify the judgment or order appealed from in the respect mentioned in the notice of appeal, and as to any or all of the parties. These sections must be construed together, and we entertain no doubt that the legislative intent was, in a proper case, to permit an appeal from a specific part of a final judgment. This conclusion is supported also by decisions rendered upon statutes like ours. Story v. Railroad Co., 6 N. Y. 89; Bennett v. Van Syckel, 18 N. Y. 481; Murphy v. Spaulding, 46 N. Y. 556. See, also, Kelsey v. Western, 2 N. Y. 504; Sands v. Cod wise, 4 Johns. 601. That is a proper case for an appeal from a specific part of a judgment. See Story v. Railroad Co. and Murphy v. Spaulding, supra.

We are now brought to the second ground of the objection to this applica

tion, which is that the granting of the order would be the exercise of original jurisdiction. Our constitution declares that "the supreme court shall have appellate jurisdiction in all cases in equity; also in all cases in law in which is involved the title or right of possession to or the possession of real estate or mining claims, or the legality of any tax, impost, assessment, toll, or municipal fine, or in which the demand (exclusive of interest) or the value of the property in controversy exceeds three hundred dollars; also in all other civil cases not included in the general subdivision of law and equity. The court shall also have power to issue writs of mandamus, certiorari, prohibition, quo warranto and habeas corpus, and also all writs necessary or proper to the complete exercise of its appellate jurisdiction." Const. art. 6, § 4. It is settled that affirmative words in a constitution, that courts shall have the jurisdiction stated, naturally include a negative that they shall have no other. Marbury v. Madison, 1 Cranch, 137. And in Osborn v. Bank, 9 Wheat. 738, the court defined the meaning of the word "cases," as used in the second section of the third article of the constitution of the United States. wherein it is declared that "the judicial power shall extend to all cases in law and equity." The conclusion to which the court came is that a "case," within the meaning of the constitution, is a subject on which the judicial power is capable of acting, and which has been submitted to it by a party in the forms required by law. Before considering this application, then, we must be satisfied that in so doing we are exercising the appellate jurisdiction which in this case the court possesses under the constitution. In Lake v. Lake, 16 Nev. 363, we said: "No statutory provision authorizes an allowance for counsel fees in this court. But such right has been exercised by courts of similar jurisdiction in conformity with the decisions of the ecclesiastical courts of England. Goldsmith v. Goldsmith, 6 Mich. 286; and Phillips v. Phillips, 27 Wis. 255. The exercise of such authority is based upon the presumption that jurisdiction in divorce cases carries with it, by implication, the incidental power to make such allowances. The power is indispensable to the proper exercise of jurisdiction in guarding the rights of wives." Did we err in our conclusions in that case? A re-examination of the questions involved has convinced us that we did not. It is admitted by counsel for respondent that, before perfecting the appeal, appellant could have applied for, and received, in the district court, suit money necessary for prosecuting the appeal; but, as before stated, it is claimed that this court cannot consider the application because, in so doing, it would exercise original, and not appellate, jurisdiction. It is not asserted that this court cannot make any proper order in the premises, if such a proceeding would be an exercise of appellate jurisdiction. Bishop says: "Though the common course is to make this allowance whenever the case is ripe for it, yet it is equally proper, on specific appli

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