Statement of Facts.

present this issue. While the law abhors a multiplicity of actions, and favors the uniting in one suit of all parties who have an interest in the matter in litigation, it does not sanction the violation of all rules of pleading and practice, as to the proper manner of bringing parties before the court, in order to prevent the former or accomplish the latter.

Owing to the anomalous condition of the pleadings in this case, we are of opinion that the judgment of the district court must be affirmed.

It is so ordered.

[No. 679.]

THE STATE OF NEVADA EX REL. ANNA MURPHY AND MARTIN LUTZ v. RICHARD RISING.

SECTION 6, ARTICLE VI, OF THE CONSTITUTION CONSTRUED.-The expression "all cases at law," as used in the Constitution (Section 6, Art. VI), has no application whatever to criminal cases.

MALICIOUS MISCHIEF-TITLE TO PROPERTY NOT INVOLVED ON TRIAL OF.An action for malicious mischief does not involve any question of title or right of possession to real estate.

TRESPASS AND MALICIOUS MISCHIEF -- DIFFERENCE BETWEEN.-In an action for trespass the plaintiff's right to compensation depends wholly upon his right to the property and not at all upon the motives of the defendant; and in an action for malicious mischief the guilt of the defendant depends not at all upon his right to the property, as against one in adverse possession, but wholly upon his motive,

JURISDICTION OF MALICIOUS MISCHIEF.-Justices of the peace have jurisdiction to try an action for malicious injury to real estate in cases where the defendant claims an adverse title to the property.

MANDAMUS.-The writ of mandamus will not be issued to compel a district

judge to try an action for malicious injury to real estate, transferred from a justice's court, because the district court has no jurisdiction of the offense.

THIS was an original application to the Supreme Court for a writ of mandamus to compel the respondent, as judge of the first judicial district, Storey County, to try the defendant for the alleged offense of malicious mischief. The facts are stated in the opinion.

VOL. X.-7

Argument for Relator.

Aude & Elliott, for Relator.

I. The offense charged involves "a question of title to real property, or of the right to the possession thereof” (1 Comp. L. 2303), whenever the defendant sets up title and right of possession in himself to the real property charged to have been injured. (1 Comp. L. 1600.)

II. The action of trespass for injury to real estate is very similar to the action of malicious mischief for injury to the same character of property. The former is punished in a quasi criminal action in damages, while the latter is punished in a criminal action by fine and imprisonment.

III. The claim of title or the right to the possession of the property charged to have been injured in the defendant, is a sufficient and complete defense to the action. Where the defendant claims and sets up title or right of possession to the property, his guilt or innocence of the offense charged cannot be ascertained and determined until the question of title or the right to the possession is adjudicated and determined. Inasmuch as this cannot be done in the justice's court, for want of jurisdiction (Sec. 8 of Art. VI of the Constitution), it was properly transferred to the district court, which has jurisdiction. (Sec. 6, Art. VI of the Constitution.)

IV. If it appears from the answer filed by defendant in a justice's court that the determination of the action will necessarily involve a question of title to real property, the cause should be transferred to the district court, and when so transferred, the district court obtains complete jurisdiction in the premises. (Doherty v. Thayer, 31 Cal. 140.)

V. In an action for trespass upon lands where the defendant pleads in justification a right of way (public or private) over such lands, this draws the title to real property in question within the statute excluding questions of title from the jurisdiction of justices. (1 Johns. 146; Stocker v. Mott, 6 Wend. 465; Saunders v. Wilson, 15 Wend. 338; Whiting v. Dudley, 19 Wend. 373; Randall v. Crandall, 6 Hill, 342; Willoughby v. Jenks, 20 Kendall, 96; Little v.

Opinion of the Court-Beatty, J.

Dean, 34 N. Y. 452; Heath v. Barmour, 53 Barb. 444; 35 How. 1; Fredonia & Sinclearsville Plank Road Co. v. Wait, 27 Barb. 214.)

R. H. Taylor, for Respondent.

I. The justices' courts in this State have jurisdiction of the offense charged. (1 Comp. L. 936, 2450.)

II. The issue to be tried cannot involve the title to real estate or mining claims, or affect the question of boundaries to land; the only matter "involved" is, the guilt or innocence of the defendant; hence the restrictions upon the jurisdiction of justices, contained in the second subdivision of section 8, Article VI of the Constitution, cannot apply to a criminal case, but evidently refer to civil actions, in which the judgment may involve or affect the title to real estate, or mining claims, or boundaries to land.

III. The offense of malicious mischief is clearly without the jurisdiction of district courts. (1 Comp. L. 925; Sec. 6, Art. VI, Constitution.)

IV. The act of March 13, 1867 (1 Comp. L., page 51), requiring the justices to transfer criminal actions to the district court in the contingencies therein mentioned, if not unconstitutional, is at least inoperative.

By the Court, BEATTY, J.:

This is an application by the relators for a writ of mandamus. The facts briefly stated are as follows: The relators laid their complaint before a justice of the peace of Storey County, charging one Daniel Grant with the crime of malicious mischief committed by breaking a fence, the property of relators. A warrant was issued by the justice, Grant was arrested, pleaded not guilty, and his trial was proceeding before a jury, when it was made to appear to the satisfaction of the justice, from the testimony and the statements of counsel, that Grant and the prosecuting witnesses claimed adversely to be owners of the land upon which the fence in question was erected. The justice concluded, therefore,

Opinion of the Court-Beatty, J.

that the action could not be tried without deciding a question of title to real property, or the right to the possession thereof. He accordingly suspended the proceedings, and transferred the action, together with the papers and a transcript of the proceedings, to the first district court, of which the defendant was, and still remains, the judge. Afterwards counsel for Grant moved in the district court to dismiss the prosecution, upon the ground that the act under which it was transferred to that court was unconstitutional and void. The court (defendant presiding) sustained the motion, struck the action from the files of the court, and refuses to proceed with the trial, basing his action upon the ground that a prosecution for malicious mischief could not, under any circumstances, involve a question of title to real estate or property, or of the right of possession thereof, and, consequently, that the case had been improperly transferred. We are asked to command him to set aside his order and proceed with the trial of the action.

The offense imputed to Grant is defined in section 144 of the act concerning crimes and punishments, which imposes a fine not exceeding two hundred dollars, or imprisonment not exceeding six months, upon any person convicted of willfully, unlawfully and maliciously pulling down, injuring or destroying any gate, post, railing or fence, or any part thereof, being the property of another. (1 Comp. L. 2450.)

Section 34 of the act concerning courts of justice confers upon justices' courts jurisdiction of "all misdemeanors punishable by fine not exceeding five hundred dollars, or imprisonment not exceeding six months, or by both such fine and imprisonment." (Comp. L. 939.)

If this language is subject to no limitation or qualification by reason of constitutional or other legislative provisions, it is clear that justices of the peace have jurisdiction of the offense in question.

As the argument on the part of relators assumes that the provisions of sections 6 and 8 of Art. VI of the Constitution affect the question of jurisdiction, it will be necessary in the first place to inquire what their bearing is. By sec

Opinion of the Court-Beatty, J.

tion 6, the district courts are given original jurisdiction “in all cases in equity; also, in all cases at law which involve the title or the right of possession to, or the possession of, real property, * * * and also in all criminal cases not otherwise provided for by law." Section 8 provides for the appointment of justices of the peace, and empowers the legislature to "fix by law their powers, duties and responsibilities," with the proviso that they shall not have jurisdiction. "of cases wherein the title to real estate or mining claims, or questions of boundaries to land, is or may be involved; or cases that shall in any manner conflict with the jurisdiction of the several courts of record in this State; and provided further, that justices' courts shall have such criminal jurisdiction as may be prescribed by law," etc. It is further provided that the legislature may confer upon justices' courts jurisdiction concurrent with the district courts of certain enumerated civil actions which involve questions of possession, or right of possession, of real property.

The question of construction here presented is, whether the expression above quoted from section 6, "Also, in all cases at law which involve the title or the right of possession to, or the possession of, real property," was intended to embrace or has any application to criminal prosecutions. If it does not embrace criminal cases, then it seems clear that the jurisdiction of such cases is entirely subject to legislative control. In the absence of legislative enactment, all criminal jurisdiction remains in the district courts. But the legislature may confer the jurisdiction in any or all cases upon the justices' courts; and to the same extent that jurisdiction is conferred upon them-at least where it is done without other express provision —it is taken away from the district courts. If, on the other hand, the expression, "all cases at law which involve the title," etc., is held to embrace criminal actions, then the power of the legislature to confer criminal jurisdiction upon justices' courts is limited to such cases as do not involve the title or right of possession, or possession, of real property; for the jurisdiction of all such cases being vested in the district courts by the Con