Opinion of the Court-Hawley, J. and all the acts thereby repealed, relate exclusively to the management of the State prison and the duties pertaining to the office of ex officio warden, and are entirely independent of the laws which relate to the office and duties of the lieutenant-governor. The acts refer to and mention the lieutenant-governor only as descriptio persona of the ex officio warden. When all the acts are considered together it seems to us conclusive that it was the intention of the legislature, by the act of 1873, to relieve the relator from the responsibilities and duties of the office of warden, deprive him of its honors, and allow him to receive a sum of money which the legislature deemed equivalent to the compensation he would have received as ex officio warden during his term of office as lieutenant-governor if no change had been made. The appropriation of the sum of eight thousand dollars was to be in lieu of his salary and "apartments suitably furnished," including also "the necessary provisions for his own table." This clause must be construed the same as if the words, as such ex officio warden, were inserted after the words "lieutenant-governor." Any other construction would be absurd. The relator has received the salary allowed him by the act under consideration. His application is devoid of merit. The writ is denied. REPORTS OF CASES DETERMINED IN THE SUPREME COURT OF THE STATE OF NEVADA. JANUARY TERM, 1875. [No. 682.] H. G. MAYNARD, APPELLANT, v. RICHARD MERCER, RESPONDENTS. ET AL., GENERAL POWER OF ATTORNEY-HOW CONSTRUED.-When the act to be done is not specifically expressed, the extent of the power given must be determined by the language employed in the written power of attorney, aided by the situation of the parties and of the property at the time of its execution, in connection with other circumstances as might tend to throw any light upon the question. IDEM.-Under the particular facts of this case: Held, that the general power of attorney authorized the attorney in fact to enter into a party-wall agreement. APPEAL from the District Court of the First Judicial District, Storey County. The facts are stated in the opinion. VOL. X.-3 (33) Opinion of the Court--Hawley, C. J. Mesick & Wood, for Appellant. I. The district court erred in admitting the power of attorney from Maynard to Flagg. II. The district court erred in admitting the evidence of Tucker as to the permission given to defendants by Flagg to erect and maintain the party-wall. III. The power of attorney given H. H. Flagg by appellant did not authorize the attorney to enter into a partywall agreement. (Mott v. Smith, 16 Cal. 556; Borel v. Robbins, 30 Cal. 413.) Williams & Bixler, for Respondents. By the Court, HAWLEY, C. J.: Appellant, in October, 1866, executed a power of attorney constituting and appointing H. H. Flagg his attorney in fact, "to lease, let, demise, bargain, sell, remise, release, convey, mortgage and hypothecate lands, tenements and hereditaments, upon such terms and conditions and under such covenants as he shall think fit; also, to bargain and agree for, buy, sell, mortgage, hypothecate and in any and every way and manner deal in and with goods, * choses in action and other property, * * * and to make, do and transact all and every kind of business of what nature or kind soever," * * At the time of the execution of this power of attorney, appellant was the owner of lot No. 3 in the town of Gold Hill, and of a brick building erected thereon. Respondents are the owners of the adjoining lot (No. 4) with brick building thereon. In 1870, respondents having been informed that the south wall of appellant's building was a party-wall, and contemplating raising their own building, applied to Flagg as the agent of appellant to ascertain whether, or not, such information was correct, and also desired to know if they would be allowed to use the wall in raising their building. Appellant at this time was in Boston, Mass. Flagg wrote to him and received an answer, Opinion of the Court--Hawley, C. J. saying: "About the half of the wall, the old butcher that built the building next, paid me one-half the cost of the wall, so they have a right to use it." This extract was shown to respondents. When respondents commenced to raise their building they decided to extend it further back to the east. Before commencing the extension they asked Flagg for the privilege of building the extended wall on the same line as the old south wall, and proposed to build it at their own expense, and promised that appellant might use it as a party-wall without expense. Flagg gave permission, and was frequently present while the wall was being built and consented to all the work done thereon by respondents. This action was brought to eject respondents from the premises, on appellant's lot, covered by said wall. Appellant claims that his power of attorney did not authorize Flagg to enter into a party-wall agreement. When the act to be done is not specifically expressed the extent of the power given must be determined by the language employed in the written power of attorney, aided by the situation of the parties and of the property at the time of its execution, in connection with such other circumstances as might tend to throw any light upon the question. The language used in the power of attorney is of the most comprehensive character; indeed, it would be difficult to select stronger words to justify the agreement in question without specifying it eo nomine. The power of attorney is general, and under its provisions Flagg had full power and authority to dispose of lands, tenements, etc., upon such terms and conditions as he thought fit and proper, and was authorized to "transact all and every kind of business." There was no restriction to any specific kind of business or species of property, nor any limit of power. We think that the general authority thus given carried with it the right to make the agreement, and this position is much strengthened when we take into consideration the situation and conduct of the parties and the position of the property. Statement of Facts. The act done by the agent being within the scope of his authority was binding upon his principal. The judgment of the district court is affirmed. [No. 697.] THE STATE OF NEVADA, RESPONDENT, v. JOHN DONOVAN, APPELLANT. ENTIRE CHARGE MUST BE CONSIDERED.-Where, from the entire charge of the court, it clearly appears that the jury could not have been misled by the language objected to, the judgment will not be disturbed. CHARGE OF THE COURT ON EVIDENCE.-On a trial for murder, if there is no evidence tending to establish the crime of manslaughter, the court may so inform the jury, and charge them not to consider the question. APPEAL from the District Court of the Eighth Judicial District, White Pine County. The defendant, having been convicted of the crime of murder in the second degree, was sentenced to confinement at hard labor in the State prison for the term of his natural life. He appealed from the judgment. In addition to the instructions copied in the opinion, the court gave the following, as asked by defendant's attorney, viz.: "Ninth. If the jury believe from the evidence that the defendant had drawn his pistol on the deceased with intent at the time to use the same, but did not use it, and repented of the act, and put his pistol away, in good faith, with the intention of not using it, and that subsequently the said pistol accidentally fell from the person of the defendant and was accidentally discharged, the jury should acquit. "Tenth. If there is a conflict of evidence in this case, and such conflict can be reconciled consistent with the defendant's innocence, it is the duty of the jury to thus reconcile it, and acquit." The court charged the jury: "In this case, as there is absolutely no evidence of any kind tending in the slightest |