I cannot lend my assent to the prevailing opinion. It reads an exception into section 10337 N.C.L. against the plain language of the provision.
Childress embezzled the bonds when he converted them to his own use. The statute gives the owner the right of restoration of his property in such a case against the felon or any person in whose possession it may be found. As to the kind of property in regard to which the listed crimes may be committed, the terms of the section are all inclusive. They except none. The majority opinion excepts negotiable instruments. This on the theory that Mrs. Montgomery was actively negligent in permitting herself to be tricked out of her bonds. It might be questioned whether she was negligent, either actively or passively. But be that as it may, the statute does not purport to divest a negligent owner of his *Page 191 property right. It has nothing to say about negligence or anything else that may work a forfeiture.
Authority for holding Mrs. Montgomery to be estopped is sought in the case of Robinson v. Goldfield M.M. Co., 46 Nev. 291,206 P. 399, 213 P. 103. This decision is not at all apposite. Property obtained by larceny, robbery, burglary, or embezzlement was not involved in that case. The dicta relied upon, if thought to come in collision with the statute, should be subordinated thereto. The felonious obtaining of property necessary to call into operation the rule of the statute was not under consideration in Gass v. Hampton, 16 Nev. 185, also cited in the majority opinion.
If it be thought that section 10337 N.C.L., which has been on the statute books since 1861, is inequitable on account of its scope, resort for amendment should be had to the legislature.
The judgment of the trial court should be affirmed.