Volume 1 — Idaho Reports

<p>Appeal from the second judicial district, Boise county..</p>

<p>Appeal from the second judicial district, Boise county.</p> <p>The affidavit of a juror can not be used to impeach a verdict. (4 Abb. N. Y. Dig., p. 139, secs. 219-226.)</p>

<p>Errors Apparenterom the Record. — The party appealing brings Ms whole case before the appellate tribunal, and the whole record is there for review, and lie may challenge any part of it as erroneous.</p> <p>Waiver oí Bights in Criminal Cases. — In a criminal case, a party docs not waive liis rights by not insisting upon them, and if the court had no jurisdiction by law to try the case, it is not cured by the party failing to claim his right to be dismissed.</p> <p>Jurisdiction oe Probate Courts. — The probate courts of this territory have not jurisdiction of cases for the punishment of offenders under the license laws.</p> <p>JURISDICTION OR DISTRICT COURTS, HOW ACQUIRED IN CRIMINAL CASES. — ■ The district courts can acquire jurisdiction of cases for the punishment of violations of license laws in two ways only: First, by the regular intervention of a grand jury; and, second, by appeal from justices’ courts.</p>

<p>IxsTRtJcrioK'S. — It is not error to refuse an instruction which is foreign to the pleadings and evidence, although correct in principle.</p>

The defendant was indicted in the district court of the third judicial district, in and for Ada county, for the crime of murder. At the April term of said court, 1866, he moved, upon affidavits, for a change of venue, which motion ° was denied. Afterwards, the defendant having procured additional affidavits, moved the court to reopen and re-examine the motion for a change of venue, which motion was also refused.

<p>FROM the first judicial district, Nez Perce county.</p> <p>Suit instituted April 12, 1864, to compel defendant, as territorial auditor, to audit an account against the territory, and to number the same four and a half (4J), in order to get payment in advance of other accounts already audited and numbered. After some interlocutory motions and proceedings, the following order was made by the presiding judge, on May 2, 1864;</p> <p>On bearing tbe above cause, it is ordered tbat a mandamus issue to tbe said B. F. Lamkin to audit tbe claim of said Beacby and number it four and one balf (4J). And tbe said cause is hereby remanded to tbe supreme court, and tbe clerk will send all the papers in this case to tbe clerk of tbe supreme court. And tbe auditor, tbe said B. F. Lamkin, is hereby authorized to audit tbe claim of E. E. Gray, and tbe costs of this suit against tbe territory. This is, however, in no way to conflict with any payment heretofore made by tbe treasurer, but to take precedence of all tbe claims allowed and not paid prior to tbe issue of tbe alternative mandamus. ALECK. 0. SMITH,</p> <p>Judge First Judicial District.</p> <p>Upon this order tbe transcript comes into this court. Whereupon tbe following stipulation was entered into by tbe parties subscribing tbe same:</p> <p>June 2, 1866. Now on this day comes H. B. Lane, controller of Idaho territory, and successor to B. F. Lamkin, former auditor of said territory, and tbe said H. B. Lane representing tbe said officer, and Hill Beacby by A. Heed, bis attorney, and hereby stipulate and agree tbat tbe appeal heretofore taken in tbe above-entitled action be dismissed, at tbe costs of tbe said territory of Idaho.</p> <p>H. B. LANE,</p> <p>Territorial Controller.</p> <p>HILL BEACHY,</p> <p>Per A. Heed, Attorney.</p>

<p>Appeal from the third judicial district, Ada county.</p>

<p>Clerk’s Certificate. — The certificate of the clerk of the district court that the “judgment has been duly appealed” will not cure any defects in the record. It is for the court to determine that question from the record.</p> <p>Appearance — Waiver.—A party appearing generally, in a suit or proceeding, thereby cures whatever defects may exist in the original process to bring him into court.</p> <p>Idem. — A voluntary appearance in an action is as effectual for any purpose as due service of process.</p> <p>Idem — Notice oe Appeal.. — A party appearing generally in a ease on appeal in this court, thereby waives all informalities in the notice of such appeal, or want of service of the same.</p> <p>Jurisdiction. — Probate Courts. — The act of the legislature conferring appellate jurisdiction upon the probate courts in civil cases, is in conflict with the organic act.</p>

<p>Appeal from tbe second judicial district, Boise county.</p> <p>The title of the suit as set out in the complaint is:</p> <p>The people of the United States in the territory of Idaho, upon the relation of O. B, Waite, district attorney of said judicial district, suing for the use of said county of Boise, against Alfred Slocum (and twenty-four others, sureties).</p> <p>The following is a copy of the bond sued upon:</p> <p>“Know all men by these presents: That we,,Alfred Slocum, as principal, and A. Scheline, E. Heifer, I. Sterne, I. C. Adams, I. H. Bowman, J. H. Heckman, H. H. Bay-mond, D. Markham, TV. W. Chipman, M. McCormick, J. Sanders, D. Wertheimer, P. B. Butler, J. M. Betts, S. Owens, P. Kelly, J. Clarressy, E. 0. Brown, E. Peyton, C. L. Goodrich, Sam’l Lawrin, Geo. Meritt, P. B. Smith, Prank Campbell, as sureties, all of the county of Boise and territory of Idaho, are held and firmly bound unto the people of the United States in the territory of Idaho, the said Alfred Slocum as principal, in the sum of thirty thousand dollars; the said E. Heifer as surety, one thousand dollars; the said I. Sterne as surety, one thousand dollars; the said I. C. Adams as surety, one thousand dollars (thus on through the list of sureties, ranging from one to five thousand dollars); for payment of which well and truly to be made we bind ourselves and our and each of our heirs and legal representatives in the respective amounts for which we become bounden as above, jointly and severally firmly by these presents.</p> <p>“The condition of the above obligation is such, as, whereas the above-bound Alfred Slocum was, at a general election held in said county and territory on the tenth day of October, 1864, elected treasurer of said county by reason whereof and by operation of law he became treasurer of said Boise county: Now if the said Alfred Slocum shall truly and faithfully discharge the duties of said office of treasurer of said county according to law, then this obligation shall be null and void, otherwise to be and remain in full force and effect.” (Then follow the signatures of the parties subscribing the bond, with the sums set opposite their, name's respectively, as above indicated.)</p> <p>To the bond there is appended the justification of the sureties.</p> <p>Defendants demur to the complaint; a formal ruling on this demurrer was made by the district court, and the cause adjourned into the supreme court for hearing on such demurrer.</p> <p>The statute provides that each county treasurer, before entering upon the duties of his office, shall enter into bond with two or more sufficient freehold sureties; in double the probable amount, etc. (Stats., p. 499, sec. 108.) That which should be done the law presumes to have been done. It appears from the complaint that Slocum was acting as treasurer of Boise county, and as such received-dollars from O. D. Yajen, before the execution of the bond sued on in the complaint. If then the law presumes him to have entered into bond before entering upon the discharge of the duties of his office, the complaint is fatally defective, in not alleging facts that discharge said bond, as cancellation, exhaustion, discharge, etc. The board of commissioners is a tribunal of inferior and limited jurisdiction, and can exercise no powers except such as are conferred by statute. The board is the creature of the statute. The statute does not authorize the board to require or take an additional or further bond after having entered upon the discharge of the duties of his office. Nor can the board do so. It would be the act of the members of the board as citizens, and not in their capacity as a board. A bond exacted by an officer when he has no authority to require it is void. (Benedict v. Bray, 2 Cal. 255; Thompson v. Lockwood, 15 Johns. 256.) There is no averment in the complaint that tbe board of commissioners fixed the sum of thirty thousand dollars or any other sum as the amount of the bond of the treasurer.</p> <p>The bond itself is a legal curiosity; it is neither a common law bond, nor is it a statutory undertaking; it is joint: aS many obligations of the principal and each of the sureties as there are sureties. (People v. Hartley, 21 Oal. 589.) The statute requires a joint bond, or a joint and several bond; each obligor must undertake to pay the whole penalty. A voluntary bond to the state, without legislative .authority to secure performance, etc., is void. {Commonwealth of Kentucky v. Bassford, 2 E. D. Smith, 218; 1 Abb. Dig. 484.) When a statute prescribes the condition of a bond, its provisions must be strictly complied with, or the bond will be void. (Abb.rDig., p. 484, sec. 12; 21 "Wend. 88.) Sureties are not liable for past defaults unless made so in terms. {Farrar v. United States, 5 Pet. 373; Curtis Dig., p. 66, sec. 1.)</p> <p>When an act requires a bond to be taken with a condition for the faithful disbursement of public money, and also for the faithful discharge of duty, and the former is omitted from the condition, query, whether the latter can be shown by proof to .cover it. {Farrar v. United States, 5 Pet. 373; Curtis Dig., p. 67, sec. 7.) No person who is not the obligee of the bond or its assignee, can put it in suit unless authorized to do so by the legislature. It is not enough that a breach of the bond has damnified the person who brings the suit. {Corporation of Wash. v. Young, 10 W.; Curtis Dig., p. 65, sec. 8.)</p>

<p>Jury.' — It is error for the court to draw a jury from a list prepared by the judge and sheriff until the regular panel is exhausted; and that fact must appear from the record.</p> <p>Instructions — Refusal.—Upon the trial of an indictment for murder, it is the duty of the court to give an instruction to the jury, if requested, that they can find the defendant guilty of a less grade of offense than murder in the first degree, if warranted by the evidence; and a refusal to give such instruction is error. McBride, O. J., dissenting.</p>

<p>Appeal from the first district, Nez Perce county.</p>

<p>Appeal from the second district, Boise county.</p>

<p>Appeal from tbe second judicial district, Boise county.</p> <p>cited, on tbe question of variance, 1 Greenl. Ev., sec. 66; Lewis v. Myers, 3 Gal. 476; Gillham, v. Gray, 13 Ill. 705; 2 Greenl. Ev., sec. 11; and on tbe question of liability of sureties, People v. Buster, 11 Gal. 215; 2 Pars, on Gont. 16, 17; Miller v. Stewart, 9 Wheat. 680; 3 Pars, on Gout. 17; Four-man v. Faggott, 3 Scam. (Ill.) 349.</p>

<p>Statutes — Construction of Statutes. — It is the duty of the courts to so construe statutes as to make them effect their evident purpose, and harmonize their various provisions with one another, and where the application of these rules still leaves a question of doubt, the principles of justice must determine the doubt.</p> <p>Legislature — Constitutional Law. — The legislature may change the manner of the payment of territorial warrants — may issue bonds payable at a different time than the original warrant — but they can not by any provision relieve the territory from the obligation to pay. Legislation of that kind would be to “impair the obligation of contracts,” and would be simply void.</p> <p>Repudiation. — The territory can no more repudiate and refuse to pay her debts than a private individual.</p>

Adjoubned into this court from the third judicial dis- • triot, Owyhee county. Ejectment for a mining claim. Plaintiffs claim to have located some time in the month of March, 1866, a quartz lode, which they denominated the “First extension south of the Dahlgren.” This claim consisted of two hundred feet in leDgth with the width allowed by law.

That part of the indictment in which the alleged defect occurs reads as follows: “The said John 0.

Action for tbe foreclosure of a mechanic's lien, praying for a decree of sale of tbe premises to satisfy tbe demand, tbe incumbered premises being tbe “Warm Springs,” situate near Idaho City in Boise county. Sims, one of tbe defendants, appeared and demurred to tbe complaint under tbe sixth subdivison of section 40 of tbe practice act. This demurrer tbe court sustained.

1. Tbe rule that questions must be disposed of in tbe order in wbicb they arise applies in tbis instance to proceedings in limine. Tbe proposition that a judge can not trespass upon tbe province of a court and pass upon a demurrer is not disputed bj tbe appellants, but it is contended that no result can prevent a collateral proceeding being governed by tbe rules to wbicb it owes its origin.

The alternative mandate was issued, commanding the territorial treasurer, E. 0. Sterling, to pay a certain warrant described in the writ, or that such treasurer show cause to the contrary on the first day of December, 1866, before the district judge at his chambers.

The facts in this case are precisely the same as those involved in the case of Larrikin v. Sterling, just reported. Similar proceedings were had in the court below, and the appeal taken upon similar questions. We therefore refer to that case for a more detailed statement of facts than is contained in the Opinion of the court.

Judgment by default against the defendant, a mining corporation. Subsequently, the defendant moved to “ set aside the default and judgment,” which motion was denied by the court. To this ruling the defendant took no exception “at the time,” but gave verbal notice in open court that it “would appeal said cause,” and asked a stay of proceedings for five days, w'hich was granted.

<p>Appeal from tbe third judicial district, Owyhee county. It is quite impossible to give a much fuller detail of facts than is contained in the opinion of the court. Reference is made in the transcript to a map of the premises as giving a very accurate description of. them, the location of the “cabins,” the amount and location of the fencing, etc., but this map was not sent up, or has been lost. Hence, all these facts were ascertained alone from the evidence of the witnesses as written down by the clerk on the trial.</p> <p>The supreme court in the state of California have held, in the following cases, that proof of prior possession is enough to maintain ejectment against a mere naked trespasser: 4 Cal. 34, 69, 78, 96, 278, 293;. 5 Id. 250, 486; 7 Id. 39, 153, 302; 9 Id. 5, 437.</p>

AdjouRNED into this court from tbe third judicial district, Owyhee county. An information in the nature of a quo warranto on tbe relation of tbe sheriff of Owybee county against tbe defendant, Lytle, for usurpation of tbe office of tax collector of that county. At the June term, 1867, of the district court for that county, the parties by stipulation submitted certain issues in controversy, which were certified into this court by the presiding judge,, for decision.

An action on tbe official bond of tbe sheriff. After tbe motion on tbe pleadings for judgment was denied, a trial was bad by tbe court, and. judgment rendered for defendants on tbe ground that tbe property levied on under tbe attachment was exempt 'from execution, and was for that reason released by tbe sheriff.

An action to recover the penalty of the forfeited recognizance of the defendants. Judgment by default was entered June 2, 1866. Defendants appeal from this judgment.

<p>Continuance — Discketion.—Aa application for a continuance is one addressed to the sound and impartial discretion of the court, which should he supported by all the facts and circumstances appertaining to the case.</p>

Tbe verdict of tbe jury found tbe defendant guilty of an assault only, and recommended to tbe clemency of tbe court. That the maximum of imprisonment allowed to said offense was six months in tbe county jail (Stats., sec. 46, p. 444), whereas tbe court below inflicted by its judgment one year’s imprisonment in tbe penitentiary.

<p>Damages oit Appeal. — Affidavits can not be read in support of a motion for damages for failure to prosecute an appeal.</p> <p>Idem. — There is no question of the right of this court to allow damages in cases when appeals have been taken merely for delay, and no transcript ever called for.</p>

It is evident from the reading of the act of congress, of February 25, 1862, that congress did not regard debts and taxes as one and the same thing, or as consisting of the same hind or character of demand, liability, or obligation, from the manner in wbicb the two terms are used in that act, and we contend that the words “ all debts, public or private,” as contained in said act, were not only not intended by congress to include state or territorial taxes, but that by no…

<p>Verdict — Practice—Admissions.—The omission of the jury to find by their verdict, the amount due, when that, question is not in controversy, does not deprive the prevailing party of his right to a judgment for the sum admitted to he due by the pleadings.</p> <p>Yoid Statutes — Specific Contract Act. — The territorial act approved December 4, 1864, commonly called tlie specific contract act, conflicts with the act of congress approved February 25, 1872, authorizing the issue of legal tender treasury notes, and is therefore void.</p> <p>Appeal — Modification of Judgment — Judgment.—In cases on appeal where there is no issue of fact, this court will order the judgment of the court below corrected if erroneous in some particular matter only; or reverse it and order the proper judgment to he entered by the court below.</p>

<p>'Appeal from tbe second judicial district, Boise county. Tbe following are tbe instructions given to tbe jury by tbe court below:</p> <p>“In this case, tbe prosecution must prove, to tbe satisfaction of tbe jury, that tbe defendant bad in bis possession an article of counterfeit or spurious gold dust; that be bad it witb intent to pass tbe same for a genuine article; that, if be tried to pass it on one Stewart, be was aware of its true character; that tbe attempt or act of passing it, if committed, was made or done in this county and territory. Tbe law presumes, where the facts of tbe spurious character are established, and tbe passing or attempt to pass is made out conclusively, that tbe defendant knew its spurious character; and tbe passing or attempting to pass is conclusive evidence of tbe intent to defraud:</p> <p>“ Other evidence of tbe guilty knowledge and tbe intent to defraud may also be introduced by tbe prosecution, by showing that tbe defendant passed tbe same quality or any other quality of adulterated or spurious gold dust upon other parties or at other times. Such proof strengthens tbe conclusion of guilty knowledge' in tbe particular instance when tbe indictment alleges tbe offense was committed. It is not necessary tbe prosecution should prove in addition to tbe facts that tbe defendant bad tbe spurious or counter-feifc dust in bis possession, and the passing of it, that he knew its real character, by affirmative testimony. It is sufficient proof of his knowledge that it is shown to be a non-genuine article, and that being such he attempted to pass it.</p> <p>“If the jury believe that he had such an article in his possession and passed it on the prosecuting witness, or attempted to pass it, that it was done in this county and territory, then the case of the prosecution is made out, and on all of these points the defendant is entitled to the benefit of any reasonable doubt which may arise in the minds of the jury as to his guilt. And if the jury is satisfied beyond a reasonable doubt that these facts are true, then the doctrine of reasonable doubt does not apply to any other part of the case. The law then presumes his guilt, unless the defendant establishes his innocence by a preponderance of testimony in his favor. Such is the rule in offenses of this character.</p> <p>“A man who is a worker in these metals may show that he had the article in question, not to use or pass off as currency, but for some other or innocent purpose. A jeweler may use it in his trade; a chemist may experiment in his profession, and an innocent person may show his innocence of guilt by any proof that shows the jury that his possession of the spurious article and his use of it were for legitimate purposes. But unless he shall show such to be the fact by a preponderance of the testimony; he is not entitled to an acquittal, if the facts I have laid down are first established.</p> <p>“As to the character of the gold dust in question, the jury must be satisfied that it is not genuine gold dust; that it is not the article which it purports to be. I do not mean by this that it shall be' pure gold, but it shall be as pure of other metals as gold dust of like appearance. It should not carry a false face. Any false appearance or false representation of its value, if the said fact is known to the possessor, is evidence of his guilty purpose in passing it, if passed as genuine.</p> <p>“Representations by the defendant of its being good gold dust need not be in words. It is a false representation of its character if he permits the man to whom he passes it to take it at a fictitious value, knowing that it is calculated to deceive him. And in this case if the jury believe that the dust in question was offered to the prosecuting witness, Stewart, to pay debt payable in gold dust, and it was not equal to what it imported to be, in value, then the defendant must show that he was ignorant of its debased character. And it does not matter that it was debased in value by being mixed with silver unless the defendant show that he was ignorant of its being so mixed.</p> <p>“This ignorance would be shown if the defendant could establish that the dust in question was in its natural condition; that it was taken from the ground in that condition. This would form a strong presumption of the defendant’s want of knowledge of its base character. Yet if a party should undertake to pass for good gold dust an article debased by silver, by artificial means, knowing it to be below the usual standard value of gold of like appearance and with intent to take advantage of the fact, to defraud the person to whom he passes it, he would be guilty of the crime charged in the indictment. If, therefore, the dust passed in this case is shown to have been mixed or adulterated with silver by artificial means, it is a fact which the defendant should explain to the satisfaction of the jury, showing his innocence, and the absence of such explanation would leave the guilt of the transaction proven. The attempt was made to show that the defendant had the tools and means in his possession to manufacture counterfeit dust. Possession of such means is a circumstance to be considered with his explanation of the use for which he had them. If the jury believe that an assay office on a quartz ledge is not unusual, or that if it was, that it was there used for honest and legitimate purposes, then that fact is sufficiently explained. Of this you may judge.</p> <p>“The defendant has, by the statute of this territory, a right to testify in his own behalf, and his explanation of the transactions referred to in the testimony are to be considered by the jury, and such credit given to them as they deem them worthy of. The interest which a party accused of crime has in the event is a strong temptation to him to state sueb facts only as will exculpate Mm. But tbe credibility of the witness is a question wholly with the jury. They may believe or reject it as in their opinion the truth requires.”</p> <p>The jury returned a verdict of guilty, whereupon the defendant was sentenced to seven years’ imprisonment at hard labor in the territorial prison. The other facts material to the case appear in the opinion of the court.</p> <p>assigned as error the charge of the court to the jury and cited, statutes of 1864, sec. 89, crimes and punishment act; 3. Greenl. Ev., sec. Ill, 111 a; 2 Archb. Crim. Pr. and PI. 917; 1. Greenl., sec. 14, latter part. Permitting the prosecution to call Koenisberger after the defendant had rested: 2. Bouv. Diet., title Bebutting.</p>

Tbe verdict of tbe jury was as follows: “ We, tbe jury, find a verdict of guilty against tbe defendant for grand larceny, for stealing tbe property of M. Whiteman & Co., namely, gold specimens to tbe amount of sixty-five dollars, more or less; also gold coin to the amount of about ninety dollars, and two gold buckles valued at twelve or fifteen dollars, tbe property of M. Whiteman & Co., which was stolen June, 1867, at Centerville, Boise county, I. T.” Tbe remaining facts…

An indictment under a statute must state all sucb facts and circumstances as constitute the statutory offense, so as to bring the party indicted clearly within the provisions of the statute. {People v. Cohn, 8 Cal. 48; Commonwealth v. Proiou, 8 Mass. 65; Commonwealth v. Phillips, 16 Pick. 213; People v. Muckier, 9 Cal. 44; People v. Saviers, 14 Id. 30; People -v. Allen, 5 Denio, 76; People v. Taylor, 3 Id. 91.) The charge, as laid in the indictment, that the officer was in…

<p>Adjourned into this court from tbe second judicial district, Boise county.</p>

<p>Appeal from the third judicial district, Owyhee county.</p>

Tbe defendant was convicted of murder in the first degree. On tbe trial be offered testimony to contradict one of tbe witnesses for tbe people, which was excluded by the court, as was also testimony offered to show that tbe deceased was a man of a violent and quarrelsome disposition.

<p>Indorsee — Promissory Note — Commercial Law — Notice.—The undertaking of an indorser is conditional; that is, his promise is that he will pay provided payment shall be demanded of the maker and due notice of his neglect or refusal shall be given.</p> <p>Indorsee — Contract with Indoksees. — The person receiving a note by in-dorsement contracts with the indorser whom he expects to hold, that he will present it to the maker at maturity, for payment, and if not paid that he will give notice of non-payment without delay.</p>

<p>Appeal from the second judicial district, Ada county.</p>

<p>Intervention — Quo Warranto. — The right of intervention given by statute exists only in actions which are purely civil in their character. The statutory proceeding in the nature of a quo warranto is quasi criminal in character, and in such action the right to intervene does not exist.</p> <p>Officer — Term of Office. — The right of an officer to hold office until his successor is elected and qualified, is as much a part of his estate in the office as the original term for which he was elected.</p>

<p>Appeal from tbe second judicial district, Owyhee county.</p>

<p>Statute op Limitations. — The statute of limitations can not be raised in the supreme court for the first time, as upon a general demurrer to the complaint. It must be taken advantage of in the court below, by answer or demurrer.</p> <p>Statute op Kbauds. —The statute of frauds must be pleaded in the court below, or it can not be considered upon appeal.</p>

Judgment rendered pro forma in the district court of the second judicial district, Ada county, and adjourned into this court by consent of parties.

<p>Practice — Chancery Pleading. — The old rules of chancery pleading are abolished by the code.</p> <p>Idem — Equitable Defense — Pleading.—Under the provisions of sec. 49 of the code, an equitable defense may be pleaded to a legal cause of action.</p> <p>Idem — Equitable Jurisdiction — Legal Jurisdiction.— Legal and equitable relief may be sought in the same action, and by the same complaint, but the grounds therefor must be distinctly and separately stated.</p>

<p>Practice — Appeal.—Upon an appeal from a judgment, 'without a statement or bill of exceptions, nothing can be considered but the judgment roll.</p> <p>Findings oe Cockt. — When a court fails to find upon a question, that question can not be considered for the first time in this eourt, unless the find-, ing is neeessary to enable the eourt to render judgment.</p> <p>Idem. — Held, that all questions put in issue and not found upon by the district court would have been found against the appellants, or were deemed immaterial.</p> <p>- Jurisdiction — Equity.—The faet that the property is not within the jurisdiction of the court constitutes no bar in a eourt of equity, for a court of equity acts upon the person.</p>

<p>Appeal from tbe district court, second judicial district, Boise county. Tbe defendant was indicted for tbe crime of murder by a grand jury of Ada county. On defendant’s application, tbe place of trial was changed to Boise county. Tbe jury returned a verdict that they found tbe defendant guilty “ as charged in the indictment.” Upon that verdict the district court sentenced and adjudged the defendant to suffer death. From that judgment the defendant appealed. No objection was made by the defendant’s counsel .to the form of the verdict, in the supreme court, on appeal, and that question was not considered. After the affirmance of the judgment by the supreme court, and the issuance of a remittitur, other counsel for the defendant filed a petition for a rehearing in the supreme court, upon the ground that the verdict did not justify the judgment.</p>

<p>Jurisdiction. — After a -criminal case has heen certified back to the district court, the supreme court has no longer any jurisdiction over it, but all necessary orders must be made by the court to which it has been certified.</p>

<p>Case adjourned into the supreme court from the district court of the third judicial district, Owyhee county.</p>

<p>Taxes. — Taxes are payable in the legal currency of the United States, at its face value.</p> <p>Territorial Treasurer. — 1The territorial treasurer must pay the territorial indebtedness in such funds as he receives. He can not legally pay in any other funds.</p> <p>Collectors oe Taxes. — The tax collectors of the several counties in the territory have no right to demand the payment of taxes in gold coin, or in anything but the legal currency of the United States at its par value; and they must pay over the same kind of funds received by them.</p>

<p>Appeal from tbe second judicial district, Ada county.</p>

<p>Appeal from the third judicial district, Owyhee county.</p>

<p>Criminal Law — Description ot Property — Indictment.—The common and ordinary acceptation of property is to govern in its description; the description must he such as will enable a jury to say whether the chattel proved to have been stolen is the same as that charged in the indictment.</p> <p>Specimens Defined. — “Specimens of gold and silver ores,” in common and ordinary acceptation, means pieces and samples of such ores severed from the ledges.</p> <p>Indictment. — An indictment charging the property stolen as “ a quantity of specimens of gold and silver ores of one hundred and fifty pounds in weight,” is sufficient.</p>

<p>Judgment — Estoppel.—A judgment on demurrer to a bill in chancery, that the bill is bad in substance, or does not state facts sufficient to constitute a cause of action, can not be pleaded in bar to a good bill for the same cause of action. Such judgment is, in no sense, a judgment on the merits.</p>

<p>Criminal Law Jurisdiction — Justices’ Courts — Legislative Power.— The legislature has no power, under the organic act, to authorize a justice of the peace .to try a criminal case in which the fine or penalty exceeds, or may exceed, one hundred dollars.</p> <p>Idem — District Courts. — In cases of prosecution for misdemeanors, where the fine or penalty does not exceed one hundred dollars, the district courts and justices’ courts have concurrent jurisdiction.</p> <p>Trespass — Public Lands. — It is no defense to .an action or prosecution for trespass committed upon public land, that such land is the property of the United States.</p>

<p>Statutes — Statutory Cosstructiox. — Different acts, passed by the legislature on the same day, upon the same subject-matter, will he read together as parts of the same act.</p> <p>Idem. — It is the duty of courts to execute laws according to their true intent and meaning; and that intent, when collected from the whole and every part of the act, must prevail over the literal sense of the terms, and control the strict letter of the law, when the letter would lead to possible injustice, contradiction, or absurdity.</p>

<p>Appeal from the second judicial district, Ada county.</p>

<p>Appeal from the third judicial district, Owyhee county.</p>

<p>Avpeal — Record—Notice oe Appeal — Practice.—An appeal is taken by filing and serving notice thereof, as required by statute, and the record on appeal must show that such notice was so filed and served, or the case will be dismissed out of this court for want of jurisdiction.</p>

<p>Statute oe Limitations. — The statute of limitations begins to run from the time when the action might properly be commenced.</p> <p>Idem. — A law extending the time within which actions may be commenced, can only affect causes of action existing at the time of its passage. It can not revive causes of action already barred; and as to existing causes of action, the time must be computed from the period when the action might have been commenced, and not from the passage of the law extending the time.</p>

<p>Appeal from the second judicial district, Ada county.</p>

<p>Appeal from the second judicial district, Ada county.</p>

<p>Appeal from iba first judicial district, Nez Perce county.</p>

<p>Appeal from the second judicial district, Ada county. Motion to dismiss appeal.</p>

<p>Claims against the Tebbitoby — Limitation.—Claims against the territory must be presented to the controller, with the evidence in support thereof, within two years after the same have accrued.</p> <p>Evidence in Suppobt oe Claims. — The certificate of the prison commissioner to a claim against the territory, that the account is correct, and is due from the territory, is merely the evidence in support of such claim.</p> <p>Contbolleb. — It is the duty of the controller to carefully examine all claims against the territory presented to him for allowance, and if he is not satisfied that such claim is correct, or if it be not presented within two years from the time it accrued, he may reject it, notwithstanding the certificate of the prison commissioner stating that it is correct.</p>

Judgment was rendered against tbe Webfoot Mill for taxes; the defendants appealed, and executed a stay bond in double tbe amount of tbe judgment and costs. Tbe defendants thereafter were about to take and carry away tbe mill, whereupon tbe plaintiffs brought action and prayed an injunction to restrain defendants from removing the same.

<p>Appeal from the second judicial district, Ada county.</p>

<p>Appeal from tbe first judicial district, Nez Perce county.</p>

This is a proceeding by writ of certiorari, to review the proceedings and judgment of the judge of the district court, at chambers. Held: that the court had jurisdiction of the subject-matter and parties, and that the judge might so try it. (Walker v. Bogan, 1 Wis. 597.) This is a well-considered case, full of pith, point, and law, completely covering the whole question.

<p>Appeal from tbe district court of Ada county.</p>

<p>Assessment — Taxation — Possessory Title — Improvements — Public Land. — It is proper to list and assess a mill-site and the immovable improvements upon public land, as real estate; but movable property situated thereon, such as a blacksmith shop, retort house, barn, carpenter shop, and the like must be listed, assessed, and taxed as personal prop - erty.</p> <p>Improvements — Definition. —By the term ‘ ‘ improvements” on public lands, as used in the revenue law, is meant the buildings and improvements belonging to the possessory claimant, such as miners’ buildings, quartz-mills, sawmills, out-buildings, fences, etc.</p> <p>Assessment — Taxation.—The four classes of property mentioned in the revenue law as subject to taxation, are to be listed, set down, and valued separately in the assessment roll.</p> <p>Estoppel — Taxation—Assessment.—The owner of property subject to taxation is not estopped from disputing the correctness of the descriptions of property listed and given in by him under oath to the assessor.</p> <p>Assessor. — The assessor is not bound by the valuation placed upon real or personal property by the owner thereof. The assessor is responsible for the correctness of descriptions of property assessed by him.</p> <p>Construction of Statutes. — In construing statutes, words are to be understood in their general signification; and when any doubt arises, although the doubt attaches only to a particular clause, the whole act is to be taken and examined together, in order to arrive at the true legislative intent.</p> <p>Public Lands — Taxation.—No law of the territory can authorize the sale of the lands of the United States for taxes; such a sale would be void.</p> <p>Assessment. — In order to he valid, an assessment of property for taxation must substantially conform to the requirements of the revenue law in respect to the classification of the property. If it does not so conform it is void.</p>

<p>Taxation — Improvements—Public Lands. — Impróvements upon lands belonging to the United States are not real estate within the meaning of the revenue act of this territory; and the listing of any such improvements as real estate by an assessor is fatal to the assessment.</p> <p>Judicial Notice. — This court is bound to take notice of the long-established and well-known usages of the country.</p> <p>Presumption — Oeitcer.—Every officer is presumed to do his duty. Assessment — Assessor—Taxation.—Where an assessor fails to discriminate between improvements where the owner thereof is also the owner of the land upon which the same are situated, and those eases where the improvements are upon public lands, this court can not arrive at the conclusion that a want of such discrimination did not mislead him in assessing the property, as to value.</p> <p>Construction op Statutes. —Neither courts nor assessors have any discretion in the construction of statutes, when their provisions and requirements are plain and easily understood.</p> <p>Assessment — Taxation.—When the aggregate of a column of figures is preceded by a dollar mark, the result must follow that each item of such column is also dollars, although not preceded by such mark; and this, on the well-established maxim in mathematics, that the whole is equal to all its parts.</p>

<p>Equitable Actions — Verdict—Jury Trial. — No action, purely equitable in character, can proceed, to a decree upon the verdict of a jury as the foundation thereof; but if a jury is called in such a case, it must be to aid the court in determining questions of fact, which, when found, are the findings of the court; and the decree must be the result of the judgment of the court or judge thereof.</p> <p>Transcript — Record.—Nothing in a transcript brought to this court can be considered, unless by the provisions of the statute or the order of the judge, it is made a part of the record of the case. Of what the record consists, considered.</p>

<p>Summons — Judgment—Execution.—A summons to A., B., 0., or D. is a nullity, inasmuch as it is in the alternative, and not to all, nor to either of them. A judgment and execution, upon such summons, are likewise void, for want of jurisdiction of the defendants.</p> <p>Appeal — Appealable Order. — An order overruling a motion for a stay of proceedings under a void judgment may be appealed from, or brought to this court for review, by writ of error; and such appeal brings under review the whole record in the case.</p> <p>Writ op Error — Parties.—A writ of error may be sued out, under the statute, by one or more of several defendants, without joining their co-defendants in the writ.</p> <p>Judgment. — A judgment to be valid must be certain and conclusive as to the subject-matter and parties to the action, and must be capable of execution.</p>

<p>Appeal from the second judicial district, Ada county.</p>

<p>Error to the district court of the second judicial district, Ada county.</p>

<p>Appeal from tbe district court of tbe second judicial district, Ada county.</p> <p>On tbe question of occupancy, we cite tbe following au-tborities: 2 Bl. Com. 3; Id. 8; 2 Kent’s Com. 318, 319, 325, 347, 356. As to open and notorious possession by a pre-emption occupant, 4 Wall. 332. As to personal residence, Barstow v. Newman et al., 34 Oal. 90.</p> <p>Tbe appeal from tbe order refusing a new trial having been dismissed or waived, we submit that tbe statement made upon tbat motion can not be used upon tbe appeal from tbe judgment, except for tbe purpose of considering alleged errors of law occurring at tbe trial. (Gasgrave v. Hoioland, 24 Cal. 457.) We do not claim tbat tbe statement should be.entirely disregarded in every case like tbe present, but tbat it can only be used in reviewing tbe action of tbe court below so far as it relates to errors in law affecting tbe judgment, and which are assigned as reasons for a reversal or modification of tbe judgment, for upon an appeal from a judgment tbe supreme court will look at tbe evidence so far only as to see tbe relevancy of tbe exceptions taken during tbe trial. (Oarpentier v. Williamson, 25 Id. 154.)</p> <p>Tbe findings of tbe court can not be reviewed on an appeal from a judgment. (Bacouillat v. Bene, 32 Cal. 450; Gagliardo v. Hoberlin, 18 Id. 394.) Tbe appellate court will not review tbe facts of tbe case unless an assignment of. error shows tbat tbe court below refused an application for a new trial made on tbe ground tbat tbe verdict or decision was contrary to evidence, and tbat only on appeal from tbe refusal to grant a new trial. (Smith v. Phelps, 2 Cal. 121; Griswold v. Sharpe, Id. 23; Whitman v. Sutter, 3 Id. 179; Ingraham v. Gildermester, 2 Id. 483; Brown v. Tolies, 7 Id. 398; Beihn v. Bogardus, 13 Id. 73; Liening v. Gould, Id. 598; Higher v. Peels, 30 Id. 280.)</p> <p>The office of a statement is to bring into the record those matters only which arise during the trial, and constitute the basis of a motion, and a specification of the particular grounds of error is the essential element of a statement, and if no specifications are made, the statement will be disregarded. (Hutton v. Heed, 25 Cal. 488; Groiuther v. Rowlandson, 27 Id. 385; Moore v. Murdoch, 26 Id. 524; Love v. 8. N. L. W. & M. Qo., 32 Id. 639.) There being no errors, either of fact or in law, specified in the statement, this case is to be reviewed on the judgment roll alone, in which there is no error. There were no exceptions taken during the trial.</p> <p>The exceptions to the findings of fact are not properly before the court. They are not authorized by the statute. It is for defect in the findings only that an exception can be taken. (5th Session Laws, 75.)</p>

<p>Appeal — UNDERTAKING opt Appeal. — An undertaking on appeal from a judgment in the sum required by law upon a single appeal, does not make effectual an appeal from an order refusing a new trial, although taken at the same time and by the same notice.</p> <p>Appeal — Statement—Bill op Exceptions — Practice.—Upon an appeal from a judgment without a statement or bill of exceptions, nothing can be considered except the judgment roll; and if no error appear therein, the judgment will be affirmed.</p>

<p>Appeal from tbe first judicial district, Idaho county.</p>

<p>Stjuday Law — Police.—The act for the better observance of the Sabbath day, approved January 8, 1873, is a mere police regulation. It does not interfere with any vested rights acquired before its passage, and is a valid law.</p>

<p>Appeal from the second judicial district, Ada county.</p>

<p>Evidence — Res G-esre. — In order to entitle declarations to be received in evidence as part of the res gestee, they must be a part of an act, and such as may serve to explain or qualify it, and must have been made while such act was being performed.</p> <p>Record op Mining Claims — Evidence.—The statute which provides that copies of paper's duly filed in the recorder’s office, certified by the recorder, shall be received with like effect, in courts, as the original instruments, etc., gives the same effect to such copies as courts would give to the originals when produced, and their execution proved.</p> <p>Record op Mining Claim — Notice op Location op Mining Claim. — If one of several co-locators of a mining claim cause a notice of location of a mining claim to be recorded in the name of himself and his co-locators, in the absence of proof to the contrary, it will be presumed that the written consent of such co-locators had been seen, and a minute made thereof by the recorder, before recording such notice.</p> <p>Representation — Work Done on Mining Claim — Instruction.—The court below was requested to instruct the jury that “work done outside of a. mining claim, and with direet reference to the claim, maybe considered as work done on the claim.” To this the court added the following qualification: “The evidence of such work having been done should be received with great caution, and it should appear clearly that such work was intended for the improvement of such claim, and no other,” and gave the instruction so qualified: Held, that this was not erroneous.</p> <p>Mining Claim — Representation by Work. — The failure to perform the work in a mining claim required by law, amounts to an abandonment of the claim, and thereupon it may be occupied by another.</p>

<p>Appeal from tbe second judicial district, Ada county.</p> <p>Action commenced in tbe district court upon a promissory note for tbe recovery of a sum witbin tbe jurisdiction of tbe probate court. Tbe plaintiff bad judgment.</p>

Has tbe territory a right to levy taxes upon the shares pf stock of national banks owned and held within its limits ? Such shares are personal property belonging to the individual. (People v. The Commissioners, 4 Wall. 256.) The shares of stock are taxable, not.tbe capital. {VanAdíen v. The Assessors, 3 Id. 573; 9 Id. 468.) Without any special grant of power tbe states or territories have a right to tax all property witbin their jurisdiction belonging to tbe citizen.

<p>Reeekee. — The only order under -which a referee can act, is the one duly made and entered of record before he enters upon his duties; to that he must look for his authority, and he can not go beyond it.</p> <p>Amendments. — An order appointing a referee may not be amended 'against objections, after such referee has acted, so as to make valid acts not authorized by the original order appointing him and prescribing his duties.</p> <p>Exceptions. — If a party take no exception to an order of court confirming the report of a referee, he is not in a condition to urge objections to such order in this court.</p> <p>Idem. — Exceptions must be taken to an order overruling a new trial, and preserved in the record, if a party wish to avail himself of the error in the appellate court.</p> <p>Findings — Statement—Review—Exceptions.—This court will not look into a statement with a view to determine therefrom whether the evidence will support the findings or judgment, unless the party has placed himself in a position to object to the order of the court overruling a motion for a new trial by proper exceptions, and further than it will where no appeal has been taken from such order.</p> <p>Interest. — In the absence of an agreement to pay interest, and of any accounting between the parties, interest does not run, as a general rule.</p>

<p>ERROR to tbe district court of tbe first judicial district.</p>

<p>Criminal Law — Fobgerv.—If the original instrument alleged to have been forged or counterfeited, is void upon its face, an indictment for forgery will not lie for counterfeiting such instrument.</p>

<p>Appeal from the district court of the second judicial district, Ada county.</p>

<p>JURISDICTION — District Courts — Indian Reservation. — A district court has jurisdiction over Indian reservations in any organized county of this territory, and its process may run and' be served there, if there be no treaty to the contrary with the Indians thereof.</p>

<p>Limitation — Demurrer—Bills or Review — Practice.—The statute of limitations can not be set up by demurrer, and by analogy the same rule applies to the time within which bills of review are to be filed.</p> <p>Discretion — Bills or Review. — Leave to file a bill of review which seeks to correct an error not apparent upon the decree which it seeks to reverse, is within the discretion of the court.</p> <p>Practice — Bills oe Review. — After a defendant has demurred to a bill of review, he can not raise an objection to the right of the plaintiff to file it. To avail himself of such objection, he should move the court, on his first appearance, to strike the bill from the files, or to dismiss the suit.</p>

<p>Evidence — Conelict—New Trial. — The appellate court will not disturb a judgment or verdict, or order denying a new trial, where there is a substantial conflict in the testimony, and no rule of law appears to have been violated.</p>

<p>Legislative Poweb — Pardon.—An act of the legislative assembly of the territory remitting the penalty imposed, in a criminal action, duly approved by the governor, is equivalent to a pardon.</p>

<p>Error to the district court of the second judicial district, Ada county.</p>

<p>Injunction — Undertaking.—An undertaking for an injunction is sufficient without the signature of the plaintiff in the action.</p> <p>Causes of Action. — Those causes of action growing directly out of the breach of an undertaking can be the subject of but one action.</p> <p>Answer: — Waiver.—An answer by a pai’ty, after the overruling of his demurrer, waives all defects in the complaint, except those which may properly be taken advantage of on a motion in arrest of judgment. Verification — Answer—Denials.—When the complaint is verified, the answer must deny, specifically, every material allegation of the complaint, but need not traverse mere matters of surplusage.</p> <p>Defective Verification — Motion to Strike out — An answer can not be disregarded because of a defective verification. A judgment rendered on the pleadings upon the grounds of such defect is erroneous. The only proper mode of reaching such a defect is by a motion to strike out.</p> <p>Verification. — A verification of a pleading made by a person not a party to the action is sufficient if it shows any statutory reason why it is not made by a party to the action.</p>

<p>County Commissioners — Jurisdiction.—A board of county commissioners is a tribunal created by statute, with limited jurisdiction, and only quasi judicial powers, and can not act except in strict accordance with the statute.</p> <p>Assessor — Tax Collector — Oeetcial Oath. — An assessor and tax collector, whose oath of office as both assessor and tax collector is indorsed on his bond as assessor, is not required to take another oath as tax collector when he files his bond as tax collector.</p> <p>Oeeicial Bond, Approval oe Commissioners. — It is the duty of the board of county commissioners to approve the bond of an assessor and tax collector proforma, if, upon its face, it is prima facie good. The board may, at any time afterwards, cite the sureties, to make a further justification, and, in case it is deemed insufficient, may cite the officer to show cause why his office should not be declared vacant.</p> <p>County Commissioners — Record—Presumptions.—The order of a board of county commissioners, requiring the officers-elect to give bonds in particular sums, is of no force except as to the officers-elect at the time of</p> <p>. making such order. The board of county commissioners is required, by law, to keep a record of its proceedings, and no presumption arises as to the regularity of any of their proceedings, not appearing of record, even though parties may have acted upon the supposed order of such board. Tax Collector — Oeeicial Bond. — A tax collector is not required, by statute, to give a bond with sureties in double the amount of the whole penal sum of his bond.</p> <p>County Commissioners — Jurisdiction.—A board of county commissioners has no power or authority to pass upon the malfeasance or misfeasance of an officer; those questions belong to a higher tribunal, having jurisdiction to punish the officer, if found guilty.</p> <p>Intendments — Oeeicers.—Every intendment of the law is to be taken in favor of those whom the people have elected to serve in an official capacity. Courts should not seek an excuse to defeat the will of the people, but rather to carry out and protect it.</p>

Tbe defendant was indicted for tbe crime of murder, and convicted of murder in tbe first degree. Erom tbe judgment of death, rendered upon that conviction, be appealed. After argument upon that appeal, at this term of tbe court, tbe judgment of tbe district court was affirmed; but no opinion was given in writing thereon. Tbe following opinion was given upon a petition for a rehearing.

Action to enjoin the collection of judgments for taxes. Certified by the district court of the second judicial district, Ada county.

<p>Appeal from the district court of the second judicial district, Ada county.</p>

<p>Statement on Appeal. — Authentication.—An agreement by the respective parties to an action that a certain document is the statement in the ease, is, substantially, an agreement that such statement is correct.</p> <p>Idem. — An intelligible and definite reference, in a statement, to papers and exhibits, by letters or numbers, as attached to and constituting a part of the statement, is sufficient, without any incorporation of the same at length into the statement.</p> <p>Idem. — Where affidavits, depositions, or minutes of the court are incorporated into a statement, either in hcec verba or by appropriate reference, it is unnecessary to have any further identification of them.</p>

<p>Eeeoe to the district court of the first judicial district, Nez Perce county.</p>

<p>Appeal from tbe district court of tbe second judicial district, Ada county.</p>

<p>Damages — Possession of Land. — The lawful possession of land is all that is required to enable a plaintiff to recover damages for building a dam across a watercourse running through such land, by reason whereof the water is thrown back upon the land of plaintiff.</p> <p>Practice — Answer—Pleading—Denials.—A denial of the literal truth of the allegations of a complaint, and not a denial of every specific averment in it, is evasive. A failure to deny, specifically, each and every material allegation of a verified complaint, admits the allegations not so denied.</p>

<p>Appeal from the district court, third judicial district, Lembi county.</p>

<p>Appeal from the district court of the second judicial district, Boise county.</p>

<p>Appeal from tbe second judicial district, Ada county.</p>

<p>Place op Trial — Changing—Practice.—The question of changing the place of trial in. order that the defendant may have an impartial trial, involves an issuable fact, and when an application is made for that purpose upon affidavits, it is proper to admit counter-affidavits to enable the court to judge of the necessity for such change.</p> <p>Idem — Burden oe Proof. — The burden of showing that an impartial trial can not he had is on the party making the application, and even if there is a slight preponderance of evidence in favor of the application, this court will not reverse the action of the court below for that reason.</p> <p>Idem — Discretion.—Granting a change of venue is a matter in the sound discretion of the court, and will not be reviewed except in cases of abuse.</p>

<p>Motion eor New Trial — Practice.—Three steps are necessary in moving for a new trial: 1. Giving notice of intention to make the motion. 2. Piling the statement or affidavits upon which the motion is to be made. 3. The application or motion.</p> <p>Idem — Waives.—A failure to give notice of intention to move for a new i trial or to file the statement within the time required by law, or such further time as the court or judge may, by order, grant, is a waiver of the right to move for a new trial; and the failure can only be remedied by the appearance of the opposite party without objection to such defects, at the settlement of the statement, or on the hearing of the motion.</p> <p>Idem. — In case the parties can not agree upon the statement, notice must be given for a settlement before the court or judge, by the party proposing the statement, but it must affirmatively appear that no notice was given, or this court will presume that it was given.</p> <p>OedeR Staying Execution — Extending Time. — An order “that there be a stay of execution on the judgment in this case for a period of twenty days for the purpose of allowing the defendants to move for a new trial” is not an order extending the time for giving notice of intention to move for a new trial, or for filing a statement.</p> <p>Construction — Presumptions.—This court can not place a construction upon an order of the court below not warranted by its language, or indulge in presumptions or surmises not warranted by the fair import of the word? used.</p> <p>New Trial — Statement—Practice.—The statement on a motion for a new trial must be settled, before a decision on the motion, in order that the court below or judge thereof may have something definite and certain to act upon. The practice of deciding the motion and afterwards settling the statement, condemned.</p>

<p>Town Lots — Occupancy.—In order to entitle a person to a deed for lots or lands in the city of Lewiston from the mayor of the city, he mnst be an occupant thereof, and the occupancy must consist of an actual residence thereon according to its legal subdivision into lots, blocks, etc.; an inclosure of the subdivision or a part thereof, or some permanent improvement thereon at the time of his application for the deed.</p> <p>Idem — Occupancy.—An occupancy of one legal subdivision does not draw to it another legal subdivision, though contiguous to or immediately adjoining it.</p> <p>Idem — Improvements—Abandonment.—If a person has at one time been an occupant of a lot within the meaning of the law, by erecting an inclosure around it, but before his application for a deed has suffered such inclosure to be destroyed by freshets or taken away by tenants, so as to leave the lot open to the public, he shall be deemed to have abandoned it, and another person may enter thereon and become an occupant, so as to entitle him to a deed from the mayor.</p>

On the fifteenth day of February, 1875, the plaintiff commenced an action before a justice of the peace, as landlord, against the defendant, as his tenant, for holding over lands within the Nez Perce Indian reservation, contrary to the terms of a .lease previously entered into between plaintiff and defendant. The action was commenced and prosecuted under that provision of the civil practice act relating to forcible entry and detainer.

<p>Appeal from the second judicial district, Alturas county.</p>

<p>Assessment — Taxation.—If real estate and personal property have been assessed in a doubtful or disputed territory by two counties, the tax may be paid in the county where the land is actually located, and such payment will bar an action brought for the taxes in the other county.</p> <p>Legislative Power — Assessment—Taxation.—It is competent for the legislature to provide for the assessment and collection of taxes by either of two counties in a disputed or doubtful district, when it is left optional with the taxpayer to pay the taxes in the county where the land is actually situated.</p> <p>Idem — Deeenses.—It is also within the power of the legislature to define by law the grounds upon which a party sued for his taxes may set up a defense.</p>

<p>Appeal from the third judicial district, Oneida county.</p>

<p>Appeal from the second judicial district, Owyhee county. Motion to dismiss the appeal.</p>

<p>Appeals prom Orders op County Commissioners — Judgment on. — On an appeal to a district court from an order of a board of county commissioners, rejecting a claim against a county, a money judgment can not be rendered, either against tbe board or the county. The order must be affirmed, or reversed and directions given to the board to allow it, or annulled, or modified and sent back with directions to pass upon it as modified.</p> <p>Party — County.—A county can not be made a party in an appeal from an order of the board of commissioners. It can only be proceeded against by an action under the provisions of the statute which authorizes suits against a county.</p>

<p>Appeal from tbe district court of tbe second judicial district, Ada county.</p>

<p>Appeal from the third judicial district, Oneida county.</p>

<p>Appeal from tbe second judicial district, Boise county.</p>

<p>Pleading — Agreement— Presumptions. — 'Unless an agreement appears from the complaint to have been verbal, the court will presume that it was in writing, where the nature of the agreement is such that it could not be valid unless in writing.</p> <p>Agreement. — An agreement by A., who has assets in his hands belonging to B., to apply the same for the benefit of C., who is a creditor of B., is not valid, and can not be enforced by C. against A., unless B. has authorized or consented to such application of such assets.</p>

<p>Appeal from the second judicial district, Boise county.</p>

<p>New Trial. — After two concurring verdicts, the court will not grant a new trial if the questions to be tried wholly depend upon matters of fact, and no rule of law has been violated; even though in the opinion of the court the verdict he against the weight of evidence.</p>

<p>Practice — Undertaking on Appeal. — If the undertaking on appeal is filed before the notice of appeal is served, the appeal-is not effectual for any purpose, and it must be dismissed.</p>

<p>Appeal from the second judicial district, Boise county.</p>

<p>Taxation — Blending Taxes. — The blending together of the several different kinds of taxes, in an assessment roll, invalidates the entire tax.</p> <p>CONSTRUCTION oe Statutes. — Acts of the legislature are not to be construed retrospectively, so as to take away vested rights, although they may alter or modify the remedy, nor can a healing act affect existing judgments.</p> <p>Suits tor Taxes — Costs.—In a suit for taxes, altliougli the defendant recovers, the judgment should be general, without costs.</p>

<p>Continuance. — Upon an affidavit showing the absence of a material witness and that proper diligence has been exercised, a party is entitled to a continuance.</p> <p>Motion eob New Trial — Pbaotice.—On a motion for a new trial, on the ground that the court denied a continuance, the moving party should procure the affidavits of the absent witnesses showing that they can testify to the facts sought to be proven; or show sufficient reason for not obtaining such affidavits.</p> <p>Idem — Surprise—Evidence oe. — On a motion for anew trial, on the ground that the party was taken by surprise by reason of one of his own witnesses failing to testify to a material fact which the witness- had previously stated in the presence of others he could testify to, the affidavits of the persons in whose hearing such statements were - made, are the best evidence of the surprise, and should be produced..</p> <p>INSTRUCTIONS — Admissions oe Pleadings. — It is error for the- court to instruct the jury that it is necessary for the plaintiff to grove facts alleged in the complaint and not denied by the answer. The failure to deny a material allegation contained in a complaint, is an admission of it; and the admission is conclusive evidence of the fact admitted.</p> <p>Evidence. — Evidence which is capable of affording an inference of a fact,, or which constitutes a link in the chain of proof, although alone it might not justify a verdict in accordance with it, should be admitted. It is error to reject such evidence.</p>

<p>indictment — Criminal Law — SURPLUSAGE.—If an indictment conclude with “ contra formam statuti," and no statute exist concerning the offense charged, yet if the facts alleged constitute a common law offense, and the same be charged with certainty, the conclusion of the indictment will he treated as surplusage, and the indictment be held good.</p> <p>Judicial Knowledge — Ordinances.—Courts will not take judicial knowledge of city ordinances; they must be proved by the record, or by certified copies thereof.</p> <p>Instructions. — If the defendant ask the court to give certain instructions prepared by him, and the same contain the law of the case, but so mixed with erroneous matter that they are calculated to mislead the jury, it is not error for the court to refuse the whole.</p>

<p>Houses of Ill-fame — Statute Relating to. — The statute relating to houses of ill-fame in Boise city, approved January 12, 1877, delegates power to the common council of Boise city to make any ordinance on that subject; but does not directly create an offense.</p> <p>Bawdy-house — Residing in. — The residing in a bawdy-house is not an offense against any statute of the territory, nor is it an offense at common law.</p>

<p>Tender — 'Waives op. — A tender of cattle upon a contract, within the time specified, is waived by a subsequent acceptance of them upon the contract.</p> <p>Instruction — Exceptions—Record.—An instruction, not exeepted to, in a civil ease, is not properly a part of the record, and can not be reviewed upon an appeal.</p> <p>Orders apter Judgment — Appeal—Practice.—An order refusing to retax costs, if made after the rendition and entry of final judgment, can only be reviewed upon an appeal from the order.</p> <p>Judgment por Gold Coin.' — A gold-coin judgment is not erroneous when the question is in issue whether an oral contract required payment in gold coin or currency.</p>

<p>Appeal from the third judicial district, Oneida county.</p>

<p>Appeal from tbe second judicial district, Boise county.</p>

<p>Pinal Judgment — Appeal.—A judgment entered by the clerk of the district court in vacation is a final judgment.</p> <p>Appeal — Judgment by Default. — No distinction exists, as to the right of appeal, between judgments entered by default by the clerk, and those rendered after tidal upon issues joined. An appeal lies from a judgment in either case within one year after its rendition or entry.</p>

<p>Record on Aeread. — On appeal from a judgment, without a statement or bill of exceptions, nothing belongs to the record except the judgment roll, and no question outside of the record can be considered by this court.</p> <p>Damages.' — The word “ damages” as used in the United States statutes, concerning supersedeas bonds on writ of error and appeal to the supreme court of the United States, includes the loss which the defendant in error or appellee may sustain by reason of not having the judgment appealed from paid or executed.</p> <p>Pleadings and Proof on Supersedeas Bonds. — In an action upon a super-sedeas bond in a case wherein the proceedings have been-staid by the bond, it is not necessary to allege or prove that the action in which the bond was given, was an appealable one.</p>

<p>Assignee — Parties.—The assignee of a chose in action is in all cases the proper party to sue.</p> <p>Assignee oe Chose in Action — Equities.—The assignee of a chose in action takes it subject to all equities existing at the time of the assignment.</p> <p>Assignment — Consideration.—The consideration of an assignment need not be alleged or proved.</p> <p>Assignee. — The assignee of an account may bring an action upon it, in his own name, though the assignor retain an interest in it.</p> <p>Champerty — Pleading.—Unless champerty he alleged in the pleadings, it can not he considered.</p>

<p>Appeal from the first judicial district, Idaho county. Motion to dismiss the appeal.</p>

<p>Keeping Gaming-house — Gaming.—The common law in relation to the offense of keeping gaming-houses, is superseded by the statute of the sixth session, entitled “An act relating to all games of chance.”</p> <p>INTERPRETATION oe Statutes. — The maxim that expressio unius est exclusio atierius is to be applied to the interpretation of statutes, as well as to contracts.</p>

<p>Place of Tbial — Changing Venue. — After two jury trials without a verdict, a motion to change the place of trial should not be granted, unless it be clearly established that a fair and impartial trial could not be had in the county of defendant’s residence.</p> <p>Costs on Appeal. — Where a party unnecessarily multiplies costs excessively, the court will protect the adverse party from payment of such excess.</p>

<p>Appeal from tbe second judicial district, Ada county.</p>

<p>Claim and Delivery — Pleading—New Matter. — When, in an action in claim and delivery for the recovery of personal property, the complaint alleges ownership and a right to the possession, the answer denying these allegations, it is not error in the court to allow the defendant to prove ■ his right to the possession by virtue'of a lien to defeat a recovery by plaintiff. The establishment of such right by defendant is not new matter required to be affirmatively pleaded.</p>

<p>Probate Courts — Jurisdiction.—Probate courts are courts of special and limited statutory jurisdiction.</p> <p>Probate Court — Sale or Real Estate by. — An order for tbe sale of real estate, under tbe provisions of the probate act, is a judgment in a new, separate, and independent proceeding, depending for its validity upon the sufficiency of tbe facts alleged in the petition for tbe order.</p> <p>Idem — Jurisdiction.—It is necessary to the jurisdiction of tbe probate court making tbe order of sale of real estate, that there should be a petition therefor, sufficient, in substance, to show legal grounds for tbe order; and it is necessary to prove that there was such a petition when the jurisdiction of tbe probate court to make the order of sale is controverted.</p>

<p>Appeal from the second judicial district, Alturas county.</p>

<p>Quo Warranto — District Court — Jurisdiction.—An action for the usurpation of an office, in the nature of quo warranto, brought in the name of the people, on the territorial side of the district court, for the removal of a county officer, is properly brought.</p> <p>Pleading — Answer—Denials upon Information and Belief. — A denial in an answer of the material averments of the complaint, upon information and belief, is sufficient to raise an issue to be tried, if the facts are not within the personal knowledge of the answering defendant.</p> <p>Qualifications to Hold Office. — If a person elected to a county office is not qualified to hold and enter into the same, at the time fixed by law therefor, the office is vacant and may be filled by appointment.</p>

<p>Appeal from the third judicial district, Lemhi county.</p>

<p>Appeal from the first judicial district, Nez Perce county. Motion to dismiss the appeal.</p>

<p>Tee.bitoe.ial District Courts — Practice in'. — The territorial district courts are not district courts of the United States. The legislature may prescribe the practice in the district courts of the territory, in cases arising under the constitution and laws of the United States, as well as in those arising under the laws of the territory. In this territory, however, the legislature has not done so; and the courts are at liberty to make orders and adopt regulations concerning the practice in United States cases, for themselves.</p> <p>Territorial Courts — Jurisdiction.—The courts of the territory are in some respects sui generis. They have a broader and more extensive jurisdiction than state courts, or the district and circuit courts of the United States.</p> <p>Jury prom this Vicinage. — A jury summoned under the laws of the territory from the county in which the district court is being held, for the transaction of business under the territorial laws, may be adopted by the court for the transaction of business and the disposition of eases arising under the laws of the United States. Such a jury is, in every respect, from the vicinage, since it is drawn from the district within which the crime was committed, although the commission of the crime took place in another county of the district.</p> <p>Idem. — Congress having, by law, given the district courts of the territory jurisdiction of offenses against the laws 'of the United States, and having given the justices of the supreme court power to fix the times and places of holding district courts; by so fixing them they have also fixed theplace of trial of offenses against the laws of the United States. Congress, therefore, having, by means of the power thus delegated, fixed the place of trial, has disposed of all questions of jurisdiction of the court, as well as all objections to the jury as not being drawn from the vicinage.</p> <p>Instructions. — An instruction to the jury ‘1 that if they believe from the evidence that the defendants feloniously took possession of the United States mail, or auypart thereof, by force or intimidation of orfroma carrier of the mail, then the offense of robbery is complete, ” is simply a definition of the term robbery, as applied to the case. It is not erroneous.</p> <p>Indictment. — An indictment must contain so many of the substantial words of the statute as shall enable the court to see on what statute it is framed, and such other words as are necessary to a complete description of the offense; or words -which are their equivalents or more than their equivalents in meaning.</p> <p>Idem- — Jeopardy.-—Jeopardy is putting in danger. The word danger is the equivalent of jeopardy. The words of an indictment, “in bodily fear and danger of his life, then and there feloniously did put,” are equivalent to the words “put his life in jeopardy.”</p> <p>Dangerous Weapons, Use of. — Dor a person to arm himself with dangerous weapons and carry them to the place of the robbery, with intent to kill, is the “use of dangerous weapons.”</p>

<p>Appeal from the third judicial district, Oneida county.</p>

<p>Admissions or Assignor — Purchaser in Good Faith. — The admissions or statements of the assignor of chattels, in derogation of his title thereto, made prior to his transfer of the same, can not he introduced in evidence against the title of his assignee who purchased the same in good faith, without knowledge of such statements or admissions.</p> <p>Instructions. — When the court instructs a jury upon what state of facts they must find a verdict for or against the party, the instructions should include all the facts in the controversy, material to the rights of the parties upon the claim of the plaintiff and the defense of the defendant.</p>

<p>Practice — Eon-appealable Orders — Bill op Exceptions. — Interlocutory non-appealable orders in an action can not be reviewed on appeal without being incorporated into a bill of exceptions, and brought up with the judgment roll, and thus made a part of the record.</p> <p>Judgment Eoll — What Constitutes. — The papers constituting the judgment roll are specified in section 221 of the civil practice act. Papers not enumerated therein can not properly be inserted in the transcript, and if placed there, can constitute no part of the record.</p> <p>Eeview on Judgment Eoll. — On appeal from a final judgment, if the record contains no bill of exceptions or statement, the case must be reviewed and decided upon the judgment roll alone.</p>

<p>Appeal from the second judicial district, Boise county.</p>

<p>Pindings — Presumptions.—In the absence of findings of fact from the record in a cause tried by the court without a jury, the presumption is that they were waived. If not, that fact should appear affirmatively.</p>

<p>Appeal from the third judicial district, Oneida county.</p>

<p>Corpobation — Condition Precedent. — If section 1 of an act of the legislature declare certain persons therein named to be a corporation, and irt a subsequent section require such corporation, within a certain time thereafter, to give a bond, the giving of sueh bond is not a condition precedent to the investment of the persons so named with corporate rights and power.</p> <p>Corporations, Organization of — Questioning Regularity of. — Individuals can not, in collateral suits, avail themselves of any defects in the organization of a corporation. This may be done only by the power creating them in a direct proceeding instituted for that purpose.</p>