dissenting:
I concur in the views of the court upon most of the points discussed in the foregoing opinion, but in some particulars I feel obliged to dissent, and especially from the conclusion reached upon the seventh point. In my opinion it is a fatal objection to respondent’s right to recover, that its claim, as presented to Humboldt county, was never verified as required by law. “No person shall sue a county in any case for any demand, unless he or she shall first present his or her claim or demand to the board of county commissioners and county auditor for allowance and approval,” etc. (C. L., sec. 3092.)
Of course, to satisfy this provision of the statute, the claim must be presented in such form as will authorize the board to allow it in case it is found to be legal and just. If the commissioners have no authority to allow an unverified claim, and it is presented without being verified, this, it will be conceded, is no compliance with the hvw, and the *137rejection of the claim rrnder such circumstances will not entitle the holder to sue the county. It is not, and it cannot be, denied that all unaudited claims must be “sworn to,” in order to give the board of commissioners and county auditor any authority to audit and allow them (C. L., secs. 2993, 3093, 3094); but it is held by the court that the claim against Humboldt county rvas not an unaudited claim, within the meaning of the statute. Upon this point I differ with the court. It is true that the agrégate of the sum claimed was made up of various other claims that had been audited and allowed by the commissioners of Washoe county, but it was,, nevertheless, something new and logically distinct from those claims. It was a claim by a different party against a different party, and depending for its validity upon facts which the commissioners of Humboldt not only had the right to investigate, but Avhich they'were bound to investigate. The commissioners of Washoe audited tbe claims against that county, but they neither did nor could audit their own claim against Humboldt.
It is not denied — on the contrary, it is expressly conceded in the opinion of the court, that the audit in Washoe county was not binding upon Humboldt. It is there held that “appellant is not bound to pay every claim because it was presented to, examined, allowed, and paid by the respondent. It had the right to show, if it could, that the services charged for were never in fact rendered, or that the fees charged were unauthorized by the statute.” Upon each of these grounds several considerable deductions are made from the amount of the judgment recovered in the district court. It appears to me that tbe decision upon this point is opposed to the conclusion that the claim against Humboldt county was ever audited in the sense of the statute — that is to say, examined and allowed by the commissioners and auditor. If the liability of Humboldt county depended upon the legality of the fees charged, and upon the fact that the services charged for had been actually rendered, it seems to follow necessarily that these were questions which the commissioners of Humboldt were bound to determine before they could allow the claim, and the examination of such *138questions — that is, of all questions of law and fact upon which the validity of a claim depends — is what is meant by the statute when it speaks of the auditing of claims.
The sections of the criminal practice act, referred to by the court, do not, in my opinion, control or affect the manner of presenting claims of one county against another. By the first (C. L. 2300) the county from which a criminal cause is transferred is made liable for the costs; and by the second (C. L. 2301) it is provided that the claim for costs shall be allowed in the first instance, and paid by the county in which the trial is had. From this it results merely that the county of Washoe had a valid claim against Humboldt county for the costs of the Hover trials; but I can see no reason why it was not bound to present its claim as other unaudited claims must be presented. Confessedly, it was not payable as a matter of course. There were questions both of law and fact to be decided before the commissioners of Humboldt could determine what, if anything, was due, and the examination and decision of such questions is what the statute means by the auditing of claims.
For these reasons, I think the plaintiff should have been nonsuited, and that the judgment should have been reversed. I differ with the court also in regard to the charge for summoning the panel of jurors. The evidence, in my opinion, not only fails to show that any extra jurors were required or summoned for the first trial of Hover, but the contrary is conclusively proven. Hover’s case stood first on the calendar, and was followed by a number of other cases, particularly by the case of The State v. La Point. It seems that thirty-one jurors had been summoned for the term. The court ordered an additional venire for ten more jurors, and made it returnable on the day that Hover’s case was set for trial. This is the sole reason why the county clerk (not the judge, who alone could know), chose to charge the cost of the venire to the Hover case. But, manifestly, this of itself is no reason at all. Nothing is more natural than that the panel of jurors should be directed to attend on the day when the first issue of fact on the calendar is set for trial — it is, I presume, the universal practice — but no *139one lias ever supposed that it was therefore to be inferred that the cost of the venire was chargeable to that case. Still, it might be true, and if true it might be shown that an extra number of jurors ivas rendered necessary by the pendency of some particular case; but the burden of proving the fact -would lie upoD whoever asserted it. Here there is no proof that any extra jurors were required for the Hover case, but, on the contrary, it was proved and admitted that forty jurors were in attendance on the day it -was set for trial; that of these only twenty were sworn on voir clire in order to obtain the trial jury; that the whole forty were kept for the trial of other cases, and that additional venires for a large number of jurors were issued specially for the La Point case. This shows that not only the panel of forty, but other additional jurors were required by Washoe county for its own purposes, and that the pendency of the Hover case put it to no expense on that account.
As to tho second trial, the case is not so clear; but here again tho opinion of the county clerk is all that the plaintiff could offer in support of its claim.
Upon another point, also, I dissent from the views of the court. The expenses of witnesses who attend upon a criminal trial from without the county must be allowed by the court, and the allowance must be evidenced by an order entered upon the minutes of the court. (C. L. 2169, 2170.) Upon the trial of this case, orders of the judge made out of court were admitted against defendant’s objection to prove such allowances. I think the evidence was incompetent, and that it rvas error to admit it. The material question was not whether the witnesses had been paid by the treasurer of Washoe, but whether the allowances had been made. No one w'ill pretend that any sum the treasurer chose to pay to the witnesses was recoverable from Humboldt county merely because he had paid it and the amount was not unreasonable. There must also have been an allowance by the proper authority, and if the statute requires, as it plainly does, that the allowance wheji made shall be evidenced by an order spread upon the minutes of the court, that evidence, and that alone, was admissible to prove the fact.
*140For these reasons, I think that if the respondent could recover anything, the amount of the judgment should be still further reduced than it has been by the order of the court.