Volume 10 — Idaho Reports

ORIGINAL application for a recommendatory decision un•der the provisions of section 10, article 5 of the constitution. Section 4053, Revised Statutes of Idaho, does not apply to ■this ease, because the state cannot be sued, and this is- not an action against the state. Wood on Limitations lays down the ■doctrine that before the statute of limitations begins to run there must be a party to sue and be sued. files no brief.

<p>Demurrer — Review on Appeal — Pleading—Technicalities—JNoNSuir —Judgment op Dismissal.</p> <p>1. The action of the court in overruling defendant’s demurrer to a complaint cannot be reviewed on an appeal taken by the plaintiff.</p> <p>2. Under the provisions of our Code of Civil Procedure, the technicalities of pleading (under the common law) have been dispensed with, and the plaintiff need only state his cause of action in ordinary and concise language, whether it he in assumpsit, trespass or ejectment, without regard to the ancient forms of pleading, and the plaintiff can he sent out of court only when upon his facts he is entitled to no relief, either at law or in equity.</p> <p>3. Under the provisions of subdivision 5 of section 4354 of the Revised Statutes, it is error for the court to grant a nonsuit before the plaintiff has introduced his evidence or offered to do so and rested.</p> <p>(Syllabus by the court.)</p>

<p>Amendments to Pleading — Negligence.</p> <p>1. In furtherance of justice, amendments of pleadings should be liberally allowed. Held, that the court did not abuse its discretion in refusing to allow an amendment or in refusing to allow the defendant to file a cross-complaint asking affirmative relief under the facts of this case.</p> <p>(Syllabus by the court.)</p>

<p>APPEAL from District Court of Nez Perce County. Honorable Edgar C. Steele, Judge.</p> <p>Defendant was tried and convicted of the crime of rape. From the judgment and order overruling bis motion for a new trial be appeals.</p> <p>The facts are stated in the opinion.</p> <p>It was competent for the defendant to cross-examine the witness as to her antecedents, character and past conduct, and thus impair her credibility. This line of inquiry became important, because of the contention that the prosecution was prompted by the malice of this witness resulting from a failure to extort money, and more, the circumstances surrounding this case seem to justify a full cross-examination as to her past conduct and character. {State v. Peferle> 36 Kan. 90, 12 Pac. 406; State v. Probasco, 46 Kan. 310, 26 Pae. 749; State v. Wells, 54 Kan. 151, 37 Pae. 1005; State v. Parle, 57 Kan. 431, 46 Pae. 713; State v. Creenburg, 54 Kan. 161, 53 Pac. 61; Brandon v. People, 42 N. Y. 265; People v. Casey, 72 N. Y. 393; Turner v. Territory, 11 Okla. 660, 69 Pae. 804; State v.. Webb, 6 Idaho, 428, 55 Pae. 892; State v. Broadbent, 27 Mont. 342, 71 Pac. 1; State v. Abbott, 65 Kan. 139, 69 Pae.. 160; State v. Collins et al., 33 Kan. 77, 5 Pae. 368; Hor-rigan and.Thompson on Self-defense, p. 468; Stewart v. Kin-del, 15 Colo. 539, 25 Pae. 990; Blenkiron v. State, 4 Neb. 11, 58 N. W. 587; State v. Krum, 32 Kan. 372, 4 Pae. 621.) The court erred in permitting the county attorney to make the following statement after the defendant had made his objection and exception: “I repeat it, gentlemen of the jnry, any man is justified in taking the law in his own hands under such circumstances.” (State v. Irwin, 9 Idaho, 35, 71 Pac. 608, 60 L. E. A. 716; People v. Derbert, 138 Cal. 467, 71 Pac. 564; People v. Mitchel, 62 Cal. 411; State v. Taylor, 7 Idaho, 134, 61 Pac. .288; State v. Anthony, 6 Idaho, 383, 55 Pae. 884; People v. Lee Ohunch, 78 Cal. 317, 20 Pac. 719; State v. Tennison, 42 Kan. 330, 22 Pae. 429; Smith v. People, 8 Colo. 457, 8 Pac. 920; People v. Ah Len et al., 92 Cal. 282, 27 Am. St. Eep. 103, 28 Pae. 286; Newby v. People, 28 Colo. 16, 62 Pae. 1035; People v. Vallier, 127 Cal. 65, 59 Pac. 295.) In a criminal prosecution, the conversations and statements of third parties not made in defendant’s presence or hearing are incompetent. (People v. Wilmot, 139 Cal. 103, 72 Pae. 838.)</p> <p>In the ease at bar the defendant was permitted to cross-examine the witness, Anna Uhri, in regard to these matters, but when he undertook to prove by other witnesses, as part of his case,, that the witness, Anna Uhri, had been found in bed with her brother in June, 1902, then the court excluded the testimony. They were trying the case of Harness for rape upon his sister in law and not the case of Anna Uhri for illicit cohabitation with her brother. They have not brought the matter under the rule of impeachment as laid down by our statute or under any other rule of evidence. (Code Civ. Proc., secs. 4490, 4491; Anthony v. State, 6 Idaho, 383.) Prosecuting attorney in a criminal case may properly declare to a jury that the evidence convinces him beyond a reasonable doubt that the prisoner is guilty. (2 Eney. of PI. & Pr. 726, eases cited, note 2.) In State v. Jefferson, 43 La. Ann. 995, 10 South. 199, the prosecuting attorney said: .“If juries did not convict people who have been so clearly shown to be guilty as this defendant has been, you might as well tear down the courthouse.” 'Held not reversible error. In Scott v. State, 7 Lea, 235, the attorney general said to the jury: “If the juries don’t punish, ■ the people will rise up and punish it.” Held reprehensible, but not reversible, error. Matters of common and general information and matters of known and settled history may be referred to in argument by way of illustration or emphasis with entire propriety, though, they are not strictly pertinent to the issue. (2 Ency. of PI. & Pr., cases cited, note 4; North-ington v. State, 14 Lea, 424; State v. Phillips, 117 Mo. 389, 22 S. W. 1079; State v. fflvins, 101 Mo. 243, 13 S. W. 937; Heyl v. State, 109 Ind. 589, 10 N. E. 916; Combs v. State, 75 Ind. 215; Turner v. State, 89 Tenn. 547, 15 S. W. 838; State v. Jefferson, 43 La. Ann. 995, 10 South. 199.) In prosecutions for rape it may be said to be universally conceded that the state may, on the direct examination of the prosecutrix, prove the fact that she made complaint of the injury, and when and to whom, and she may be corroborated by the persons to whom she complained as to the same fact. (Eiee on Criminal Evidence, 826, cases cited.)</p>

<p>APPEAL from District Court in and for the County of Latah. Honorable Edgar C. Steele, Judge.</p> <p>From a judgment in favor of the plaintiff ordering the cancellation of a mortgage, defendant appeals.</p> <p>The facts are stated in the opinion.</p> <p>Assignments of error: 1. The trial court erred in adjudging the contract usurious — the principle announced by this court in Anderson et al. v. Oregon Mtg. Go., 8 Idaho, 41b, 69 Pac. 130, being applicable; 2. The contract herein differs from those in the cases of Association v. Shea, 6 Idaho, 405, 55 Pae. 1022; Trust Go. v. Hoffman, 5 Idaho, 376, 95 Am. St. Bep. 86, 49 Pac. 314, 37 L. R. A. 509, in that the debt could be paid at any time by the borrower, with interest at twelve per cent per annum and no more; 3. The evidence proved an estoppel upon the plaintiff’s claim of usury under appellant’s second defense; 4. On no theory has appellant received back his principal. {Frost v. Pacific Savings Go., 42 Or. 44, 70 Pac. 814; Irwin v. Washington Nat. Bldg. etc. Assn., 42 Or. 105, 71 Pac. 143.) The right to have money paid as usurious interest applied on the principal, or to recover the surplus, if any, after lawful interest has been paid, is a matter personal to the party making the payment and those in privy with him, which he may insist upon or waive, at his. pleasure, and of which his grantee cannot take advantage. (Thompson on Building and Loan Associations, secs. 260, 522; Tyler on Usury, c. 31, p. 417; Bensley v. Homier, 42 Wis. 635; Beady v. Huebner, 46 Wis. 692, 32 Am. Rep. 749, 1 N. W. 344; Warwick v. Dawes, 26 N. J. Eq. 548; Breading v. Weston, 7 Conn. 409.)</p>

ORIGINAL proceeding in tbe supreme court for a writ of prohibition. The facts are stated in the opinion. This case is already practically decided by the case of Bear. Lake County v. Budge, 9 Idaho, 703, 75 Pac. 015. By that decision, sections 34, 35 and 36 of the act. in question were declared void.

Honorable Ralph T. Morgan,. District Judge. The facts are stated in the opinion. If the term indebted” has no legal signification there might, be some room for argument. The supreme court of Wisconsin in. the case of Towbridge v. Sickler, 42 Wis. 420, has adjudicated the meaning of the word indebted.” The court says: It has-been held in Louisiana that the words ‘really indebted’ convey the idea of a debt actually due and payable; not debitum in-praesenti, solvendum in futuro.

<p>APPEAL from District Court in and for Latab County. Honorable Edgar C. Steele, Judge.</p> <p>From a judgment for plaintiff and an order denying defendant’s motion for a new trial, defendant appeals.</p> <p>It is first contended that the court erred in not granting the nonsnit. The thirty days’ notice provided in the lease was not given; hence the lease has never terminated. The action for “unlawful detainer” is based upon the idea that the relation of landlord and tenant existed, but through some event — lapse of time, or breach of condition and notice — the tenancy has terminated, and notwithstanding the rights of the tenant have ceased, he still continues in possession without the consent of the landlord. There is nothing in this ease that shows that the tenancy has ever terminated. The parties by their contract, fixed the time of notice of election to terminate the same, and this election was never exercised. This being true, the cause could not be maintained as an action of unlawful detainer. The time stipulated in this lease was one of the considerations thereof. Notice for that period was necessary. (18 Ency. of Law, 2d ed., pp. 118, 630; Piclcard v. Kleis, 56 Mich. 604, 23 N. W. 329; Bauer v. Knoble, 51 Minn. 358, 53 N. W. 805; King v. GonnoTly, 51 Cal. 181; Lmgley v. Boss, 55 Mich. 163, 20 N. W. 886.) The discussion heretofore indicated as to the covenant in this lease relative to the fitness of the premises is sustained by Wolfe v. Arrot, 109 Pa. St. 473, 1 Atl. 333. The offer to prove the circumstances surrounding the execution of this lease, the relation of the parties, each to the other, and to the subject matter of the lease, the representations at the time of the execution of the contract, and the offer of the written document shown, were proper. (Mayer v. Goldberg et dl., 116 Wis. 96, 92 N. W. 556 (court is required, etc.); Chicago B. I. & P. By. Co. v. Denver & B. G., 143 U. S. 596, 12 Sup. Ct. Eep. 479, 36 L. ed. 277; Winona & Sí. Paul L. Co. v. Minnesota, 159 IJ. S. 531, 16 Sup. Ct. Eep. 83, 40 L. ed. 247.) The construction of the instrument, as given by Porter heretofore set out, to the effect that “cold storage building” was an expression used to call for and require a frost-proof building, was not denied; that shows the construction which the parties placed on this document. This controls in cases of this kind. In addition, the discussion heretofore has amply shown that the parties intended this building should be a frost-proof building. (Top-liff v. Topliff, 122 TJ. S. 121, 7 Sup. Ct. Eep. 1057, 30 L. ed. 1110.) The true intention of the parties controls. {Borne of the Friendless v. Rouse, 8 Wall. 437, 19 L. ed. 495; Porter v. Allen, 8 Idaho, 358, 69 Pac. 105.) Hunter undertook to do what the lease called upon him to do, i. e., to "complete” the construction of the building so it would be fit for usé as a storage house. Not having done so, he is liable for the loss which followed, which was attributable to his failure to perform the plain requirements of the contract. (Swift v. Fast Waterloo Hotel Go., 40 Iowa, 322; McCoy v. Oldham, 1 Ind. App. 372, 50 Am. St. Eep. 208, 27 N. E. 647; Culver v. Bill, 68 Ala. 66, 44 Am. Eep. 134; Young v. Collett, 63 Mich. 331, 29 N. W. 850 ;• Bentley v. Taylor, 81 Iowa, 306, 47 N. W. 59, 9 E. E. A. 772; Vaughan v. Matlock, 23 Ark. 9; Tyler v. Disbrow, 40 Mich. 415; Lane v. Pacific & I. N. Ry. Co., 8 Idaho, 230, 67 Pac. 566; La Farge v. Mansfield, 31 Barb. 345.)</p> <p>The failure of the appellant to comply with the written demand to pay rent or surrender possession of the premises for a period of three days after service of the written demand operated as a forfeiture of the estate of the tenant. (Eev. Stats. 1887, secs. 5093, 5106; Brummagim v. Spencer, 29 Cal. 662.) The pleading of the appellant designated a "cross-complaint” is a counterclaim, under the statutes, the same being an alleged cause of action existing in favor of the appellant, who was defendant below, and against the respondent, who was plaintiff below. {Stevens et al. v. Borne Savings etc. Assn., 5 Idaho, 741, 51 Pac. 986.) This being a special proceeding for the summary possession of real property, the counterclaim set up in appellant’s alleged cross-complaint is not permissible. {Moroney v. Beltings, 110 Cal. 219, 42 Pac. 560; Kelly v. Teague, 63 Cal. 68; Van Every v. Ogg, 59 Cal. 563; Warbur-ton v. Doble, 38 Cal. 619; Phillips v. Lodge No. 6, F. & A. M., 8 Wash. 529, 36 Pac. 476; Ralph v. Lomer, 3 Wash. 401, 28 Pae. 760; McSloy v. Ryan, 27 Mich. (Cooley) 109.) Even if the description of the 'building contained in the lease should be held to be a warranty of the fitness of the building demised, and if, before storing apples therein, the-building was known, by the appellant, to be unfit for the storage of apples, and the appellant proceeded to store his apples therein and suffered loss by reason of the unfitness of the ¡building, he is guilty of contributory negligence and cannot recover, or at least the law of avoidable consequences should apply. (1 Sedgwick on Damages,, sec. 209.) This brings us to a consideration of a proposition of law which, in our opinion, is decisive of quite, if not all, of the errors assigned by the appellant. Our laws relating to unlawful detainer were taken from the statutes of California, and while the California statutes relating to this subject that have been construed by the court in the citations to follow have not been couched in the same language, they were identical in scope, object and intent. In the case of Warburton v. Doble, 38 Cal. 619, the supreme court of California in 1869, through Mr. Justice Khodes, said: “A setoff or counterclaim is not admissible in actions of this class, and it makes no difference whether it be a demand for money or a previous forcible entry of the-plaintiff.” This action was in forcible entry and detainer, but was prosecuted under the same summary proceedings for the possession of the property that the respondent prosecuted the case at bar in the lower court. (Kelly v. Teague, 63 Cal. 68; Borden v. Backett, 113 Mass. 214; Moroney v. Sellings, 110 Cal. 219, 42 Pac. 560.)</p>

<p>ON PETITION POR RENEARING.</p> <p>Eaw of the Case.</p> <p>1. The doctrine of “law of the case” extends only to the questions presented and distinctly passed upon on the former appeal.</p> <p>(Syllabus by the court.)</p>

<p>INFORMATION — INDORSING NAMES OF WITNESSES THEREON — JUROR— •Peremptory Challenge — Beading Indictment to Jury — Impeachment of Witness — Physical Strength of Defendant and Deceased — Retreat—Prejudice of Witness — Exhibits Taken to-Juryroom — Instructions.</p> <p>1. Under the provisions of section 2, Laws Pifth Session, 1889, page 125, requiring the prosecuting attorney to indorse on the information the names of all witnesses known to him at the time of filing the same, and it is sought to have the names of other witnesses indorsed on the information after the same has been filed, ,the court must be satisfied that the names of such witnesses were not known to the prosecuting attorney at the time the information was filed before such names are allowed to he indorsed thereon.</p> <p>2. The court may, in its sound discretion, permit the prosecuting attorney to exercise his right of peremptory challenge of a juror at any time previous to the time the jury is sworn to try the case, the object and purpose being to secure a fair and impartial jury.</p> <p>3. It is not error for the court to permit the witnesses to be sworn in a body.</p> <p>4. Under the provisions of section 7855, Revised Statutes, a failure by the clerk to read the indictment or information and state the plea of the defendant to the jury is reversible error.</p> <p>5. Under the provisions of section 6083, Revised Statutes, a witness may be impeached by evidence showing that he has made at other times statements inconsistent with his present testimony, and such statements must not only be relevant to the issue, but must be of matters of fact and not simply the opinion of the witness based on facts.</p> <p>6. Where the defendant seeks to show the superior physical strength of the deceased when compared with his own, the evidence should be confined to the strength of each at the time of the homicide.</p> <p>7. It was error to reject evidence tending to show that the defendant was behind the bar in a saloon and could not retreat out of reaeh of the deceased to escape his attack.</p> <p>8. It is error to reject any evidence showing or tending to show the bias or prejudice of the witness either for or against the defendant.</p> <p>9. On the direct examination of a witness called to testify to the reputation of the deceased as to peace and quietude, it is not proper, over the objection of the defendant, to inquire into the relation that existed between the witness and deceased.</p> <p>10. Under the provisions of section 7902 of the Revised Statutes, it is error to permit, over the objection of the defendant, the jury to take to their juryroom any exhibits except such papers as are specified in said section.</p> <p>11. It was error to instruct the jury that “if the evidence shows an unlawful killing, then in order for such unlawful killing to be manslaughter and not murder, there must have been shown by the evidence to have been a serious and highly provoking injury inflicted upon the person killing, .... or an attempt by the person killed to commit a serious injury on the person killing,” as the language there used under the provisions of section 6570, Revised Statutes, would be justifiable homicide and not manslaughter.</p> <p>(Syllabus by the court.)</p>

Honorable Balph T. Morgan, Judge. From a judgment in favor of defendant on sustaining a demurrer to the complaint, plaintiff appeals. Under the statute authorizing school boards to employ or discharge teachers, it is not necessary that the members thereof should meet and act as a board in order to make a valid contract for the employment of a teacher, when they all assent to the employment. (School Dist. No. 25 v. Stone, 14 Colo.

Honorable Edgar C. Steele, Judge. Action to foreclose laborer’s lien. Judgment for the plaintiff from which defendants appeal. Where the claimant alleges an implied contract in his notice of lien and in his complaint, and the evidence shows an express contract, it is a material variance and the plaintiff is not entitled to recover. (Wilson v. Hind, 113 Cal. 357, 45 Pae. 695; Fischer v. Hanna, 8 Colo.

Honorable Edgar C. Steele, Judge. Action to recover commissions for sale of real estate. Demurrer to complaint sustained and judgment of dismissal entered. The facts are stated in the opinion. Where the facts, constituting the cause of action, are peculiarly'within the knowledge of the defendants, the plaintiff is permitted to state his cause of action in as many forms as may be necessary to meet the contingencies of proof. A motion to elect should be denied.

<p>Case Heard ok Depositions — When Rohe as to Conflict oe Evidence does not Obtain — Divorce—Willful Desertion — Willful Neglect.</p> <p>1. Where a trial has been had entirely upon depositions, and the trial court has not seen and heard the witnesses, the appellate court is in as favorable position for judging of the truthfulness of the witnesses and the weight of the evidence as the trial judge, and will consider the same as if originally heard in the appellate court.</p> <p>2. Where the husband establishes a new home and requests his wife to follow him to the new domicile, and furnishes her the means with which to travel, and she declines to take up her residence with him, the husband is not thereby guilty of deserting his wife.</p> <p>3. Evidence examined and held insufficient to entitle the plaintiff to a decree of divorce.</p> <p>4. A wife who willfully and without good cause refuses to follow her husband to the home and place of residence selected by him cannot obtain a decree of divorce from him because he fails to provide for her during the period of her refusal to reside with him.</p> <p>5. Where'the wife appeals in good faith and the district judge-does not order the husband to pay a sufficient sum to defray the-expenses of appeal, and it appears that the wife has not sufficient property or means for that purpose, this court will tax any deficiency against the husband to the end that justice may be done.</p> <p>(Syllabus by the court.)</p>

Honorable Edgar C. Steele, Judge. From an order made after final judgment taxing costs, plaintiff appeals.

Honorable Edgar C. Steele, Judge. Action for partition of real estate. Judgment for plaintiffs. This is a very peculiar case, and about the most charitable-thing to be said of the complaint is that it is “fearfully and wonderfully made.” The complaint was undoubtedly framed' on one theory, the case tried on another and decided on another.

<p>Irrigation Bonds — Surveys, Maps and Plans.</p> <p>1. Where an irrigation district has been regularly organized, and has had surveys, maps, plans and estimates made in accordance with the requirements of section 15 of the irrigation act (Sess. Laws 1903, p. 165), and a bond issue has been made, and the money raised thereon is not sufficient for the completion of the works planned, it is unnecessary to make a new survey and additional maps and plans as a prerequisite to the ordering and holding another election authorizing a further bond issue for completion of the works.</p> <p>(Syllabus by the court.)</p>

<p>Order ' Refusing to Release Attached Property is Appealable — - A Motion to Dismiss Appeal will not be Sustained When.</p> <p>1. An order after final judgment refusing to release attached property is appealable under the statute of this state.</p> <p>2. Where it is shown by the certificate of the judge and clerk of the court in the transcript that such transcript contains all the papers, pleadings, etc., used on the hearing of a motion to release certain property from attachment after final judgment in the lower court, and thereafter the judge and deputy clerk. furnish certificates or affidavits that other papers were used on the hearing, this court will not dismiss the appeal, especially when it is shown that the missing paper was a part of the record evidence of the respondent; a certified copy should have been furnished for the record by the moving party.</p> <p>(Syllabus by the court.)</p>

Honorable Ralph T. Morgan, Judge. Appeal from an order after final judgment refusing to release personal property from attachment claimed under the exemption laws.

<p>files no brief.</p>

<p>Injunctions — Dissolution Without Notice — Will not Issue Against National Banks — Sufficiency of Showing.</p> <p>1. When the adverse party moves to dissolve a temporary injunction upon the papers on which it was granted, no notice is required to he given to the party who obtained the injunction: Thayer v. Bellamy, 9 Idaho, 1, 71 Pae. 544, approved and followed.</p> <p>2. That portion of section 5242, United States Statutes (Comp. Stats. 1901, vol. 3), which provides that “No attachment, injunction, or execution shall be issued against such association (national bank) or its property before final judgment in any suit, action or proceeding in any state, county or municipal court,” is a complete bar to the issuance of any such writ or order from a state court against a national banking association.</p> <p>3. Complaint and affidavits examined and held sufficient to authorize issuance of injunction against all defendants except one named as a national bank.</p> <p>(Syllabus by the court.)</p>

Honorable George H. Stewart, Judge. From an order made by the board of equalization directing the assessment of the capital stock of the Washington County Abstract Company against the stockholders thereof the stockholders appealed to the district court. The district court ordered the assessment canceled, and directed that the property (abstract-books) of the corporation be assessed to the corporation. From the judgment of the district court the abstract company appealed.

<p>Undertaking on Appeal — Sureties—Justification—Failure of Sureties to Justify — New Undertaking — Filing Transcript— Kule of Court.</p> <p>1. Under the provisions of section 4838, Revised Statutes, an appeal may be taken within thirty days after the rendition of a judgment by a probate judge or justice of the peace, and the appeal is taken by filing a notice of appeal with the justice or judge and serving a copy on the adverse party.</p> <p>2. Under the provisions of section 4842, Revised Statutes, such appeal is ineffectual for any purpose unless an undertaking he filed with two or more sureties, and the adverse party may except to the sufficiency of the sureties within five days after the filing of the undertaking, and unless they, or other sureties, justify within five days thereafter, upon notice to the adverse party to the amount stated in their affidavits, the appeal must he regarded as if no undertaking had been given.</p> <p>3. In case such sureties fail to appear and justify, the undertaking signed by them is void, hut the appellant may file a new undertaking at any time prior to the expiration of the thirty day period given in which to take the appeal, hut notice of the filing of such undertaking ought to he given to the adverse party.</p> <p>4. The rule of the district court requiring the transcript on appeal in all eases appealed from a justice’s court to he filed in the district court within ten days after such appeal is perfected, and if not so filed the appeal may be dismissed on motion is not jurisdictional and should he applied with discretion.</p> <p>(Syllabus by the court.)</p>

I. Perky, Judge. From a judgment in favor of William Boone, respondent, and an order refusing a'new trial, J. H. Baxter appeals. cite no authorities upon the points decided by the court. cites no authorities.

<p>APPEAL from the District Court of Nez Perce County. Honorable Edgar C. Steele, Judge.</p> <p>From a judgment for plaintiff, defendant Morris appeals.</p> <p>Costs awarded to respondent.</p> <p>The facts are stated in the opinion.</p> <p>We contend that after the legislature of this state enacted the law requiring the joint concurrence of both husband and wife in order to create a valid chattel mortgage on exempt personal property, the said mortgagor could not create any valid liens on the property in controversy, nor renew or extend any lien that was placed thereon prior to the enactment of said law —Session Laws of the state of Idaho of 1899, page 292 — to the prejudice of the interest of subsequent intervening third parties without the concurrence of his wife. In support of the foregoing contention we cite the following: Kindall v. Lincoln Hdw. etc. Go. et al., 8 Idaho, 664, 70 Pac. 1056; Willows v. Bosen-stein, 5 Idaho, 305, 48 Pac. 1067; Watt v. Wright, 66 Cal. 202, o Pac. 91; Wood v. Goodfellow, 43 Cal. 185. When third persons have subsequently acquired interests in the mortgaged property, they may invoke the aid of the statutes as against the first mortgagee, even though the mortgagor, as between himself and the mortgagee, may have waived its protection; and we see no difference in principle between a suspension of the running of the statutes resulting from an express waiver and one caused by the voluntary act of the mortgagor in the absenting himself from the state. (California Bank et al. v. Brooks, 126 Cal. 198, 59 Pae.302; NewhaTl v. Hatch et al. (Cal.), 64 Pae. 250.) We further contend that an acknowledgment in writing must clearly relate to the particular debt, must identify it, and must amount to a promise to pay it, or it will be insufficient. (Gragg v. Barnes, 32 Kan. 301, 4 Pac. 276; Haythorn v. Cooper, 65 Kan. 338, 69 Pac. 333; Shepherd v. Thompson, 122 U. S. 231, 7 Sup. Ct. Rep. 1229, 30 L. ed. 1156.) Can it be said that the note of June 28, 1900, on its face clearly relates to the note of March 21, 1896, as the particular debt, or identify it in any way? We think not; and it is apparent to us that the transaction of 1900 must stand as a new contract, which under the laws of this state is void. (Siemans & Halske Electric Co. of America v. Ten Broek, 97 Mo. App. 173, 70 S. W. 1092.)</p> <p>Counsel contends that the court erred in entering its finding No. 5, for the reason that there was no reference made in the note dated June 28, 1900, to the note dated March 21, 1896, and that the court erred in admitting oral evidence in explana-iion of the execution of the note bearing date June 28, 1900, connecting the same with the note bearing date March 21, 1896, and proving by oral evidence that the note dated June 21, 1900, was a renewal of the note dated March 21, 1896. This court has passed mpon this question and held .that the identity of the two notes may be shown by parol testimony. • (Kelly et al. v. Leachman, 3 Idaho, 629, 33 Pac. 44; Kincaid v. Archibald, 73 N. Y. 189; Fowler v. Elwood, 66 Ill. 446; Wilcox et al. v. Williams, 5 Nev. 206; Birrell v. Schie et al., 9 Cal. 104-108 ; Spring v. Hill & Carr, 6 Cal. 18; Herman on Chattel Mortgages, 129.) Section 3351, Revised Statutes of Idaho, provides how a mortgage may 'be renewed or extended. We contend the acknowledgment of the chattel mortgage dated June 28, 1900, meets the requirements of this statute, and if it did not, this court has frequently held that the extension of time simply affects the remedy and not the obligation. We call special attention to the cases heretofore decided by the court, to wit: Moulton v. Williams, 6 Idaho, 424,'55 Pae. 1019; Law v. Spence, 5 Idaho, 244, 48 Pac. 282-284; Burh Land etc. Go. v. Wells-Far go Go., 7 Idaho, 42, 60 Pac. 92.</p>

James M. Stevens, Judge. Judgment for. respondent, from which defendant appeals. The facts are stated in the opinion. ■ Had the plaintiff, said board of trustees, power or right to enact that portion of said ordinance making it unlawful to carry on, or allow to be carried on, any other business in the same room wherein intoxicating liquors are sold?

<p>CONTRACT — T?. A TT,~RO A T> CONSTRUCTION — COMPLAINT-DEMURRER—ESTIMATES — Classification—Evidence—Variance Between Allegations and Proof — Instructions.</p> <p>1. Complaint states a cause of action.</p> <p>2. The question of whether the estimates had become an account stated was left to the jury under proper instructions.</p> <p>3. Where a motion is made to compel the plaintiffs to elect upon which of several causes of action or counts they would proceed to trial, it was not error for the court to reserve its decision and thereafter try the case upon the theory that said motion had been sustained and try the case upon the first and third causes of action stated in the complaint.</p> <p>4. Where the parties to an action testify to an express contract but differ as to the amount to he paid or the contract price for the services rendered, evidence of the actual cost of the performance of the work is properly admitted as it may afford some reasonable ground for believing that the contract was for the price nearest the cost.</p> <p>5. No variance between the allegations and the proof is deemed to be material unless it had actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits.</p> <p>6. Where certain material evidence is rejected, but the record shows that the evidence rejected was given by another witness, the error is immaterial and not prejudicial.</p> <p>7. Instructions examined and held to properly state the law applicable to the evidence introduced on the trial.</p> <p>(Syllabus by the court.)</p>

<p>Mortgage — Acknowledgment by Mabeied Women — Evidence oe Notary — Signature by Mark — Witness to Signature by Mark— Adoption of Signature — Usury—Agreement to Pay Tax on Loan — Void Contract — Claim Against Estate of Deceased— Allowance of Mortgage Indebtedness — Mortgagee may Foreclose.</p> <p>1. Where a notary explains to a married woman that the instrument to which her name is appended is a mortgage upon certain real estate, and the nature and contents thereof, and the property encumbered thereby, and she thereupon replies that whatever her husband does or says is all right with her and that he is a good man and she has confidence in him, and will do whatever he does, held, that such facts constitute a sufficient acknowledgment and justify the notary in attaching his certificate of acknowledgment in due form to such instrument.</p> <p>2. Where a married woman acknowledges an instrument in due form, and at the time of such acknowledgment her name is, af-</p> <p>her</p> <p>fixed to such instrument as follows: “Jennie X Glenn,” but her</p> <p>mark</p> <p>signature by mark is not witnessed by any person writing his name as a witness thereto, held, that by such acknowledgment she Adopted and approved the signature as her own and thereby acknowledged the execution of the same as her act; and the officer’s certificate of her acknowledgment attached thereto is a sufficient witnessing of her signature by mark and constitutes a •compliance with section 16, Revised Statutes, which provides that "“Signature or subscription includes mark, when the person cannot unite, his name being written near it, and witnessed by a iperson who writes his own name as a witness.”</p> <p>3. An officer cannot lawfully take the acknowledgment to an instrument of a person whose name is not at the time affixed to the instrument, and does not appear thereon.</p> <p>4. Under section 2960, Revised Statutes, an acknowledgment "to the execution of an instrument carries with it an adoption •of the signature thereto, and recognition of the same as the name and signature of the person making such acknowledgment.</p> <p>5. A notary who has taken the' acknowledgment to a mortgage •should not be allowed to give testimony upon the foreclosure thereof impeaching, or tending to impeach, his certificate of -acknowledgment.</p> <p>6. The certificate of acknowledgment to an instrument made by the officer constitutes his official statement and declaration made •at the time of the act as to the truth and accuracy thereof, and is more likely to be true and correct than the memory of such person in years afterward.</p> <p>7. Where a mortgage provided that a debt should draw inter•est at the highest legal rate permissible at the time of the execution thereof, and in addition thereto provided that the debtor :should pay the taxes on the mortgage and debt secured thereby, .held, that such stipulation for the payment of taxes on the loan did not taint the contract with usury; since section 1425, Revised Statutes, provided that “Every contract by which a debtor agrees to pay any tax or assessment on money loaned, or any mortgage, •deed of trust, or other lien, shall as to such tax or assessment, be null and void.”</p> <p>8. An action may be maintained- in the district court for. the -foreclosure of a mortgage upon real estate where the mortgagor is deceased, although the debt secured by the mortgage has been ¡presented as a claim to the administrator and allowed by him and also by tlie probate judge of the county, where the only object of the action is to make the debt out of the mortgaged property, and the creditor waives all recourse against any other property of the estate of the deceased.</p> <p>9. Section 5470, Revised Statutes, which provides that “No. holder of any claim against an estate shall maintain any action thereon, unless the claim is first presented to the executor or administrator except in the following case: An action may be brought by any holder of a mortgage or lien to enforce the same against the property of the estate subject thereto, where all recourse against any other property of the estate is expressly waived in the complaint,” does not constitute any bar to the foreclosure of a mortgage by the holder thereof against the estate of a deceased person although the claim thereby secured has been duly and regularly presented to the administrator for allowance.</p> <p>(Syllabus by the court.)</p>

<p>APPEAL from a judgment of the District Court of Custer County, and from an order overruling a motion for a new trial.</p> <p>Honorable James M. Stevens, Judge.</p> <p>. The facts are stated in the opinion.</p> <p>It will be noticed from an examination of the complaint in this action that the plaintiff alleges title in fee to an undivided ■one-half interest in the land in question. As we take it, under .such an allegation, in order for the plaintiff to prevail in this .■action he must show that he is the owner as alleged in his complaint, and unless he shows, as alleged in his complaint, that lie is the owner in fee of such undivided one-half interest, we •contend that he cannot recover in this action, as the defendants deny the ownership in fee of the plaintiff and set up by way of further answer and cross-complaint, the fact that the land is unsurveyed government land, which, if true, cannot be •owned in fee; and immediately upon the fact being shown that the land in question is unsurveyed public land, the plaintiff must fail in his action. As we understand it, a title in fee is the largest estate which a person can have, and is an absolute, un•qualified estate. If that he the law, an estate in fee to this particular property being in the government of the United 'States, the plaintiff has failed to substantiate his complaint, •and he has no title whatever to the land or any portion thereof, it being a well-established rule of law ‘that the plaintiff in •an action to quiet title must first show title in himself. The •only allegation of an adverse interest claimed by the defendants is as follows: “That the said plaintiff claims title in fee •to the said premises, and that the said defendants, and each of them, claim an estate or interest therein adverse to the said plaintiff, as the plaintiff is informed and believes and therefore .alleges.” The allegation is not that the defendants claim some interest in the premises, but that the plaintiff is informed and 'believes that they do. This, we contend, is no statement of •any cause of action. (Pfister v. Dascey, 65 Cal. 403, 4 Pac. 393.)</p> <p>The object of an action to quiet title is to enable plaintiff -to dispel whatever may be regarded, not only by the defendant, but also by third persons, as a cloud on his title, depreciating its value; and therefore, though a formal allegation of adverse claim may be necessary in the complaint under Code of ■Civil Procedure- of California, section 738, providing that the .-action will lie to determine “adverse claims,” it is immaterial •whether or not defendant actually asserted such adverse claim before the commencement of the action. (Bulwer Con. Min. Go. v. Standard Con. Min. Co., 83 Cal. 609, 23 Pac. 1102 (1108); 4 Notes on California Reports, p. 65.) Section 738," supra, is identical with section 4538, Idaho Revised Statutes. Nick Millick conveyed an undivided one-half interest in the property in question to Galacio, who in turn conveyed the same interest to the defendants. Plaintiff obtained his title and right to the other undivided half interest by the foreclosure proceedings. Thus the plaintiff and defendants became tenants in common of said premises. As between tenants in common and cotenants, there can be no adverse possession unless there has been an ouster by the party claiming adversely, and the possession of one is the possession of all. (Buswell on Limitations and Adverse Possession, secs. 296, 297; Tyler on Ejectment and Adverse Enjoyment, pp. 926, 927; 1 Cyc. of Law & Pr., pp. 1073, 1078; Fry v. Payne, 82 Va. 759, 1 S. E. 197; Page v. Branch, 97 N. C. 97, 2 Am. St. Rep. 281, 1 S. E. 625-627; McCauley v. Harvey, 49 Cal. 497.) The mere occupation of one is presumed to he not adverse to the other eotenant. (Buswell on Limitation and Adverse Possession, secs. 299, 300; Wood on Limitations of Actions, pp. 558, 559; 1 Cyc. of Law & Pr., pp. 1071, 1075; Edwards v. Bishop, 4 N. Y. 61; Culver v. Rhodes, 87 N. Y. 348.) Possession, payment of taxes, and appropriations of rents and profits do not necessarily amount to adverse possession. (1 Cyc. of Law & Pr., p. 1076.) The plaintiff has established a legal title (as against all persons except the United States government) to an undivided one-half interest in and to the premises in controversy, and is, therefore, presumed to have been possessed thereof within the time required by law, and the occupation of the property (i. e., an undivided half interest) by another person is deemed to have been under and in subordination to such legal title, unless it appear that the property has been held and possessed adversely to such legal title for five years before the commencement of the action. (Idaho Rev. Stats., see. 4039; 3 Idaho Code, sec. 3120; Martin v. Walker, 68 Cal. 317, 9 Pac. 185.) To acquire and establish title by prescription, the claimant must show that his adverse holding was open, notorious and continuous. (Mauldin v. Cox, 67 Cal. 387, 7 Pac. 804; Gray den v. Hurd, 55 Fed. 724, 5 C. C. A. 258.) TJnder'the defendants’ plea of adverse possession, no evidence is admissible except the evidence of title and their deed was for an undivided one-half interest. (Perkins v. Eaton, 64 N. H. 359, 10 Atl. 704; Greenhill v. Biggs, 85 Ky. 155, 7 Am. St. Eep. 579, 2 S. W. 774.) No length of possession will give title in land to a party who only claims to own the improvements on said land. (Davenport v. Behring, 52 Iowa, 364, 3 N. W. 403.) The possession of land, claiming only the improvements, and not the land itself, does not constitute adverse possession of the land. (Brown v. Simpson, 67 Tex. 25, 2 S. W. 644.) To effect ouster of cotenants, notice of adverse claim is required, or such possession that notice may fairly be presumed. (Culver v. Rhodes, 87 N. Y. 348; Trenouth v. Gilbert, 63 Cal. 407; Bath v. Valdez, 70 Cal. 350, 11 Pac. 724; Bailey on Onus Probandi, pp. 257, 258; Dignan v. Nelson, 26 Utah, 186, 72 Pac. 936; Clymer v. Daw-kins, 3 How. 674, 11 L. ed. 778; M’Clung v. Ross, 5 Wheat. 116, 5 L. ed. 46; Estate of Grider, 81 Cal. 571, 22 Pac. 908; Trenouth v. Gilbert, 63 Cal. 404, 407; Gage v. Doumey, 79 Cal. 140, 21 Pae. 527, 855; Owen v. Morton, 24 Cal. 373.) The tenant in common out of possession has a right to assume that the possession of his cotenant is his possession until informed to the contrary, either by express notice or by acts and declarations, which may possibly be equivalent to notice. (Miller v. Myers, 46 Cal. 535; Aguirre v. Alexander, 58 Cal. 217; Unger ¶. Mooney, 63 Cal. 586, 49 Am. Bep. 100; Bath v. Valdez, 70 Cal. 350, 11 Pae. 724; Carpenter v. Mendenhall, 28 Cal. 484, 87 Am. Dec. 135; McCauley v. Harvey, 49 Cal. 497.) Under the circumstances of this case, mere possession and payment of taxes is insufficient to establish adverse possession of title or right thereby. The exclusive occupation of the whole tract, and cultivation of the same, and payment of taxes, by a tenant in common, are not of themselves sufficient to constitute an ouster of the cotenant. (Packard v. Johnson, 51 Cal. 545, cited Phelan v. Smith, 100 Cal. 167, 34 Pac. 667; Packard v. Johnson, 57 Cal. 180, cited Oneto v. Restaño, 78 Cal. 376, 20 Pac. 743; Gage v. Downey, 79 Cal. 159, 21 Pae. 527, 855.) It docs not appear that defendants were holding, said premises under color of title or claim of right for the full period of five years or that the taxes assessed were actually paid by defendants. (Idaho Bev. Stats. 4040-4044.) It is contended by defendants that this, being unsurveyed public land of the United States, is not the subject of a suit to quiet the title thereto, and that the action cannot therefore be maintained. An action may be brought by any person against another who claims an estate or interest in real property adverse to him, for the purpose of determining such adverse claim. (Bev. Stats., sec. 4538; 3 Code, sec. 3379, and notes; Fry v. Bummers, 4 Idaho, 424, 39 Pac. 1118.) An action to quiet title to lands is maintainable in this state, although the legal title thereto is in the government of the United States. (Orr v. Stewart, 67 Cal. 275, 7 Pac. 693.) Under the above section it is not essential that the complaint should aver the plaintiff to be the owner in fee; it will be sufficient if it appear that the plaintiff claims an interest in the land, and that the defendant asserts a claim of title adverse to the plaintiff’s claim. (Stoddart v. Burge, 53 Cal. 394; Bough v. Simmons (Cal.), 3 Pae. 91; Rough v. Booth (Cal.), 3 Pac. 91.) The owner of an estate in lands less than a fee can maintain an action to determine an adverse claim made by another person. (Pierce v. Fetter, 53 Cal. 18; Wilson v. Madison, 55 Cal. 5; Graft v. Merrill, 14 N. T. 456; Lounsbury v. Purdy, 18 N. Y. 515; Watson v. Sutro, 86 Cal. 500, 24 Pae. 172, 25 Pac. 64; Tujfree v. Polhemus, 108 Cal. 670, 41 Pae. 806; 2 Estee’s Pleadings, 4th ed., sec. 2527.)</p>

<p>APPEAL from tbe District Court* of Ada County. Honorable George H. Stewart, Judge.</p> <p>Action to quiet title to certain land. Judgment for defendants.</p> <p>The facts are stated in the opinion.</p> <p>Hnder the facts in this case as stipulated and agreed to, the ■plaintiffs herein base their right to recover upon two points: .1. That the city acquired title to said tract of land b'y adverse ■possession of the same; and 2. That the defendants are es-topped to claim title to said tract of land in controversy by -reason of the acquiescence of the defendants’ predecessors in interest in the boundary line between said tracts of land by ■permitting, without objection, the city to erect the building upon the same and occupy the same without protest for a period of almost twenty years. On the question of adverse possession, •the facts in this case establish all the elements necessary in such •case, with the exception of the payment of taxes upon the property in dispute. The appellants contend that it was not necessary for the city to pay taxes upon this property in order to acquire title by adverse possession, as tbe city, under the constitution and laws of the state of Idaho, is not required to pay taxes upon property. (Rev. Stats. 1887, sec. 1401; Idaho 'Const., art. 7, sec. 4; United States v. Schwalby, 8 Tex. Civ. App. 679, 29 S. W. 90; Stanley v. Schwalby, 147 U. S. 508, 13 Sup. Ct. Rep. 418, 37 L. ed. 259; Grimm v. Curley, 43 Cal. '250; Brown v. Lette, 2 Fed. 440, 6 Saw. 332.) It is held that acquiescence for a great number of years is conclusive evidence ■of an agreement to that line. No express agreement need be shown. ; (Rockwell v. Adams, 7 Cow. 761.) A line which parties have agreed to, either expressly or by acquiescence, will not be disturbed. (McCormick v. Barnum, 10 Wend. 105. See Riley v. Griffin, 16 Ga. 141, 60 Am. Dec. 726.) Standing by while a party subjected himself to expenses in regard to the land which he would not have done had not the line been located as it was, may perhaps warrant the presumption of a grant within the statute period. (Adams v. Rockwell, 16 Wend. 285, 302.) Acquiescence is conclusive evidence of an agreement as to a boundary, and such agreement need not be shown by direct evidence, but is inferred from conduct and such acquiescence. (Turner v. Baker, 64 Mo. 218, 27 Am. Rep. 226; Baldwin v. Brown, 16 N. Y. 359; Jones v. Pashby, 67 Mich. 459, 11 Am. St. Rep. 589, 35 N. W. 152; Gwynn v. Schwartz, 32 W. Va. 487, 9 S. E. 880; 4 Am. & Eng. Ency. of Daw, 2d ed., 863; O’Donnell v. Penney, 17 R. I. 164, 20 Atl. 305; Swettenham v. Leary, 18 Hun, 284.)</p> <p>In the absence of the evidence of intention to hold adversely -the presumption would be that he intended to hold to the true line. (Tam v. Kellogg, 49 Mo. 118.) “Occupation such as will constitute a disseisin of the true owner and give title by adverse possession must be accompanied with claim of title.” This authority also lays down the rule that the burden is upon -the plaintiff to establish every essential ingredient of his rights- and that the presumptions are in favor of the true title. (Alt-.schul v. O’Neil, 35 Or. 202, 58 Pac. 95.) Under the statutes of Idaho, adverse possession cannot ripen into title unless the party has paid all taxes assessed against the land according to law. (Idaho Eev. Stats., sec. 4043; Green v. Christie, 4 Idaho, 438, 40 Pac. 54.) In respect to the title to real estate, if the •party claiming title is acquainted with the true state of the title or has an equal means with the other party of ascertaining it as in the- case of a duly recorded deed, there will be no es-toppel, at least from mere silence. (Clark v. Parsons, 69 N. H. 147, 76 Am. St. Rep. 157, 39 Atl. 899; Odlin v. Gove, 41 N. H. 465, 77 Am. Dec. 773; Wood v. Griffin, 46 N. H. 230; Mountain Lake Co. v. Schartzer, 83 Md. 10, 34 Atl. 536; Reynolds v. Insurance Co., 34 Md. 280, 6 Am. Rep. 337; Jame— son v. Rixey, 94 Va. 342, 64 Am. St. Rep. 726, 26 S. E. 863; Poynter v. Chapman, 8 TJtah, 442, 32 Pac. 693.) As to boundary line by acquiescence: Biggins v. Champlin, 59 Cal. 113; Cooper v. Tierra, 59-Cal. 282; Sneed v. Osborn, 25 Cal. 619; McCormick v. Bamum, 10 Wend. 104; Jackson v. Van Corlaer, 11 Johns. 123-; Perkins v. Gay, 3 Serg. & R. 327, 7 Am. Dec. 653; Moyle v. Connelly, 50 Cal. 295; City of Bloomington v. Bloom-ington etc. Assn., 126 Ill. 221,18 N. E. 300; Mullaney v. Duffy, 145 Ill. 559, 33 N. E. 750; Liverpool v. Prescott, 7 Allen, 494 ; Quick v. Nitschelm, 139 Ill. 251, 28 N. E. 926-929; Schraeder. Co. v. Packer, 129 IJ. S. 688, 9 Sup. Ct. Rep. 385, 32 L. ed. 760; Watrous v. Morrison, 33 Fla. 261, 39 Am. St. Rep. 139.-</p>

Honorable Lyttleton Price, Judge. From a judgment of tbe district court approving and affirming an order of the board of county commissioners, a citizen and taxpayer appeals. The facts are stated in the opinion. That the board has no powers but those directly conferred on it by statute and can act only in the maimer laid down by statute has often been held by this court.

<p>APPEAL from the District Court of Ada County. Honorable George H. Stewart, Judge.</p> <p>Action to recover an official bond. Nonsuit granted at close of plaintiff’s evidence, and judgment entered dismissing the action.</p> <p>cites no authorities upon the point decided;</p> <p>What is before the court on this appeal? Counsel for appellant has in his brief argued the case upon the testimony, and the testimony is set forth in the transcript. (Folios 52-104.) This testimony, we urge,' is not properly before the court and we have moved to strike it from the transcript. A compulsory judgment of .nonsuit rendered on motion of .defendant must be appealed from as a final judgment ending the suit. (2 Ency. of PI. & Pr. 106.) Error in granting a nonsuit is error of law, and when it is excepted to and specified as such, may be reviewed on appeal, without any specifications of particulars wherein the evidence was insufficient. (Hammond v. Wallace, 85 Cal. 522, 20 Am. St. Rep. 239, 24 Pac. 837; Schroeder v. Schmidt, 74 Cal. 459, 16 Pac. 243; Donahue v. Gullaven, 43 Cal. 576; Cravens v. Dewey, 13 Cal. 42; La Lande v. McDonald, 2 Idaho (Hasb.), 307, 13 Pac. 347.) Upon an appeal from a final judgment the appellant must furnish the court with a copy of the notice of appeal, the judgment-roll and of any bill of exceptions or statement in the case upon which appellant relies. (Rev. Stats., sec. 4818.) To entitle a bill of exceptions to be considered in this court it must be settled and signed by the district judge. (Meinert v. Snow, 3 Idaho, 112, 27 Pac. 677.) All exceptions will be taken as waived unless the matters so excepted to are assigned as errors in this court. (Purdy v. Steel, 1 Idaho, 216.)</p>

<p>APPEAL from the District Court of the Fourth Judicial District in and for Blaine County. Honorable Lyttleton Price, Judge.</p> <p>From an order and judgment of the district court reversing a judgment of the justice’s court of Hailey precinct, plaintiff appeals.</p> <p>The facts are stated in the opinion.</p> <p>The jurisdiction óf a justice’s court is sufficiently shown where it appears from the whole record in the proceedings. {Sappington v. Lenz, 53 Mo. App. 44; 12 Ency. of PI. & Pr. 671; Lowe v. Alexander, 15 Cal. 297; Fogg v. Clements, 16 Cal. 389; Jolley v. Foltz, 34 Cal. 321.) Jurisdictional facts need not appear in declaration; it is sufficient if they appear on the trial. (Haclcman v. Flory, 16 Pa. St. 196.) If jurisdictional facts nowhere appear in the records of the justice’s court, and the judgment is attacked, the plaintiff could then introduce evidence almnde in proof of the jurisdictional facts, in support of the judgment. {Blair v. Hamilton, 32 Cal. 50; In re Madera Irr. Dist., 92 Cal. 335, 27 Am. St. Bep. 106, 28 Pae. 272, 675, 14 L. B. A. 755; In re Williams, 102 Cal. 70, 41 Am. St. Bep. 163, 36 Pac. 407.) Objection to the jurisdiction where the record does not show want of jurisdiction, should have been taken by answer at the trial. . {Small v. Guinn, 6 Cal. 447; Gregory v. Bovier, 77 Cal. 121, 19 Pae. 232; Holbrook v. Superior Court, 106 Cal. 589, 39 Pac. 936.)</p> <p>In an action on a judgment by default rendered in the justice’s court the burden is upon the plaintiff to show affirmatively by competent evidence that the justice’s court acquired jurisdiction to render the judgment sued upon. And a recital in the justice’s docket not authorized by statute cannot establish jurisdiction over defendant to sustain a judgment rendered against him. {Fisk v. Mitchell, 124 Cal. 359, 57 Pac. 149; Kane v. Desmond, 63 Cal. 464.) The jurisdiction of justices’ courts being special and limited, the law presumes nothing in favor of their jurisdiction, and a party who asserts a right under a judgment rendered in such court must show affirmatively every fact necessary to confer such jurisdiction. (Rowley v. Howard, 23 Cal. 401; Lowe v. Alexander, 15 Cal. 296; Jolley v. Foltz, 34 Cal. 321; Mallett v. Unde Sam M. Co., 1 Nev. 188, 90 Am. Dec. 484; Woodbury v. Henningsen, 11 Wash. 12, 39 Pac. 243.) Courts of justices of the peace, being of special and limited jurisdiction, can take nothing by intendment or implication. (Paul v. Armstrong, 1 Nev. 82; Little v. Currie, 5 Nev. 90; McDonald v. Prescott, 2 Nev. 109, 90 Am. Dec. 517.) Powers conferred on justices’ courts must be strictly pursued and complete jurisdiction must be affirmatively shown. When a written notice is required to give jurisdiction, such notice must appear in the record to show the justice had jurisdiction; an entry in his docket will not be sufficient. (Jones v. Justice Court, 97 Cal. 523, 32 Pac. 575; Pltzroth v. Ryan, 89 Cal. 135, 26 Pac. 647.)</p>

County. Honorable George H. Stewart, Judge. Action to recover community property. Demurrer interposed by defendant which was sustained. Judgment for respondent for costs.

ORIGINAL application for a writ of habeas corpus. The facts are stated in the opinion. This law is class legislation; it grants special immunities to special classes; it violates the rule of equality before the law; it violates section 19, article 3 of the constitution of Idaho; and •also section 5 of article 7 of the constitution of the state of Idaho. (Broolcs v. Hyde, 37 Cal. 366, 375; Ex parte Yale, 24 Cal. 241, 85 Am.

<p>Statutory Construction — Local Law.</p> <p>1. Statutes will be construed with a view to ascertain the intent of the law-making power and to give force and meaning to the language used.</p> <p>2. A statute that deals exclusively with one subject and repeals all acts and parts of acts in conflict with it will be construed to have been intended to cover all subjects and matters of the new act.</p> <p>3. The legislature may enact a law relative to one class of insurance so long as it is general in its terms as to that particular class of business.</p> <p>(Syllabus by the court.)</p>

<p>Watee Eights — Natural Eeservoirs — Diversion oe Waters — In-junctive Eelief.</p> <p>1. Elvidenee of expert and nonexpert witnesses with reference to the theory of the formation of a natural reservoir along the course of a stream examined, and held insufficient to justify a court in departing from the uniform and well-established doctrine, that the first appropriator has the first right; and in this case the position of appellants that their diversion and use of the water is not injurious or prejudicial to the rights of a prior appropriator lower down the stream is held untenable.</p> <p>2. So soon as the prior appropriation and right of use is established, it is clear, as a proposition of law, that such appropriator is entitled to have sufficient of the unappropriated waters flow down to his point of diversion to supply his right, and an injunction against interference therewith is proper protective relief to be granted.</p> <p>(Syllabus by the court.)</p>

<p>Government Surveys — Meander Lines — Boundary Lines — Action to Quiet Title — Color of Title.</p> <p>1. Where it appears from the notes and official plat founded thereon that all the lands within the legal subdivisions, as authorized to be laid out by section 2395, United States Statutes, have been returned to the government as surveyed and the remainder of the subdivision is shown to he the waters of a navigable stream, and the government issues its patent to a settler or purchaser for fractional subdivisions thereof abutting on a line which purports to meander such stream, the meander line will not he the true boundary line, hut the patentee will take title to the stream.</p> <p>2. Where the government has parted with a larger acreage than it has received pay for, by a patent to fractional lots abutting on a meandered stream, and the patentee takes possession, under his patent, of the lands between the meander line and the stream, he is entitled to be protected in his title and possession as against any and all third persons who do not claim title from the government.</p> <p>3. Id. — In such ease no one but the government or its grantee can be heard to question the title or right of possession.</p> <p>4. Under section 4538, Revised Statutes, an action may be maintained to quiet the title to any interest or estate a person may have in lands of which the law takes cognizance.</p> <p>5. Color of title exists wherever there is a reasonable doubt regarding the validity of an apparent title, whether such doubt arises from the circumstances under which the land is held, the identity of the land conveyed, or the construction of the instrument under which the party in possession claims his title.</p> <p>(Syllabus by the court.)</p>

ORIGINAL application for a writ of mandate to the Honorable Ralph T. Morgan, Judge of the First Judicial District. It' will be seen from a statement of the facts and examination of the record that the district court undertook to sit and act as a court of review upon his own orders. It has no power nr authority to so do. Having considered and passed upon a motion to dismiss the appeal, that order and motion is final and cannot by subsequent order be set aside.

Honorable Edgar C. Steele, Judge. Action to enforce specific performance of an oral contract to. lease real property for a term of ten years. Judgment for the respondent.

Honorable J. M. Stevens, Judge. From a judgment finding for plaintiff. The facts are stated in the opinion.

Honorable J. M. Stevens, Judge. Action collaterally attacking the sale of certain mining claims under an order of the probate court. Judgment for the defendants. The facts are stated in the opinion. Section 2 of article 5 of the constitution vests the judicial power in all matters of probate, settlement of estates of deceased persons, and appointment of guardians upon the probate courts, and it makes these courts courts of record.

<p>APPEAL from the District Court, Latah County. Honorable Edgar C. Steele, Judge.</p> <p>Action on contract to recover the purchase price for a quantity of sawlogs. From a judgment of nonsuit and an order denying a motion for a new trial, plaintiff appeals.</p> <p>The facts are stated in the opinion.</p> <p>cites no authorities upon the question decided by the court.</p> <p>Section 2498, Revised Statutes of 1887, provides that: “The husband has the management and control of the separate property of the wife during the continuance of the marriage, but no sale or other alienation of any part of such property can be made, nor any lien or encumbrance created thereon, unless an instrument in writing signed by the husband and wife, and acknowledged by her upon an examination, separate and apart from the husband, as upon a conveyance of real estate.” By this section the husband has the management and control of the .wife’s separate property, by force of the law of this state, during the continuance of the marriage relation, but without the power of alienation. This whole section is mandatory, fixing the status of the separate property of a married woman. It not only limits the husband’s right to sell or encumber it, but provides the only method by which the separate property of a married woman may be sold and conveyed. The wife has not the power or right to sell, any more than has the husband. The legal title is in the wife; the possession, management and control is in the husband; it therefore takes the concurrent act of both to alienate or encumber, and that on the part of the husband and wife, acting together, as provided by this section 2498, by an instrument in writing, signed by both husband and wife, and acknowledged by the wife, as upon a sale of real estate. {Smith v. Greer, 31 Cal. 478; Dow v. Gould & Gurry S. M. Go., 31 Cal. 631.) Under such statutes a transfer by the wife, without the husband joining in the instrument, is universally held absolutely void. Mere consent is not sufficient; actual joinder in the instrument must be had. {Gregg v. Owens, 37 Minn. 61. 33 N. W. 216; Melley v. Casey, 99 Mass. 241; Meagher v. Thompson, 49 Cal. 190; Selover v. American Russian Commercial Go., 7 Cal. 274.) In Maclav v. Love, 25 Cal. 374, 85 Am. Dec. 151, Justice Sawyer used the following language: “It was repeatedly held by our predecessors that no title to the separate property of the wife, either real or personal, could be conveyed, except by an instrument in writing executed and acknowledged by her in the mode prescribed by this act.” In this case, while the statute requires the alienation to be in writing, signed and acknowledged, the appellant seeks to recover upon an express contract, which violates the letter of the law and is prohibited by it.</p>

Honorable Ralph T. Morgan, Judge. A petition was filed in tbe probate court of Kootenai county by Thomas J. Purcell for the allowance to him, as general guardian, out of the estate of Arva and Elmer Brady, minors, his costs and expenses incurred in conducting litigation over the probate of the will of their deceased father. A demurrer was sustained to the petition in the probate court and the petitioner appealed.

<p>APPEAL from the District Court of Shoshone County. Honorable Ealph T. Morgan, Judge.</p> <p>Action to restrain the defendant from selling certain property under execution. Judgment for defendant.</p> <p>cite no authorities not cited by the court in the opinion on the points decided.</p> <p>cites no authorities on the points decided not cited by the court in the opinion.</p>

<p>APPEAL from District Court, Kootenai County. Honorable R. T. Morgan, Judge.</p> <p>The Great Northern Railway Company appealed from an order of the board of county commissioners of Kootenai county, and its appeal was dismissed by the district court, from which judgment and order an appeal was taken to this court.</p> <p>STATEMENT OE FACTS.</p> <p>On the 15th of September, 1903, the board of commissioners of Kootenai county, at a regular meeting thereof, levied a general road tax upon all the property taxable in their county for the year 1903, and at the same time made a levy for general bridge purposes, and also for general school purposes. The appellant, the Great Northern Railway Company, was at the time the owner of taxable property within said county, and was affected by the tax levy so made. Thereafter, and on the second day of October, 1903, the appellant served its notice of appeal upon the clerk of the board of county commissioners, and later also served a copy of the notice upon the chairman of the board of county commissioners. On the fourteenth day of October, 1903, the appellant filed with the clerk of the board a bond or undertaking on appeal in the sum of $300, and on the same day filed in the district court of Kootenai county what was designated a complaint on appeal, setting forth its grounds of complaint against the action of the board of commissioners from which it had appealed, and served the same upon the prosecuting attorney of the county. On the twentieth day of October, the district court being in session, the cause was reached on the calendar and duly called by the presiding judge, and thereupon the prosecuting attorney for the county asked for time in which to answer the complaint then on file. Nothing further was done with the case in court until the twentieth day of February, 1904, but in the meanwhile the attorneys for the appellant and respondent carried on considerable correspondence relative to the preparation of 'a'statement of facts to be submitted to the trial court, upon which the law of the case should be determined by the court. On February 20, 1904, the county, through its attorneys, filed a motion to dismiss the appeal. This motion was based on six separate grounds, but upon the argument in this court counsel for respondent abandoned the contention set out in paragraphs 1, 4 and 5 of the motion, and relied upon paragraphs 2, 3 and 6. Those paragraphs are as follows:</p> <p>That said attempted appeal was not perfected within the time required by statute in such case made and provided, by the filing of a good and sufficient 'undertaking on appeal, in this: that the notice of appeal herein was served on the second day of October, 1903, and the undertaking on appeal herein was not filed until the fourteenth day of October, 1903.</p> <p>"“3. That the undertaking or bond on appeal filed herein was defective, insufficient and void, and not such an undertaking or bond as is required by the laws of the state of Idaho, to wit, section 1776 of the Revised Statutes of 1887 of the state of Idaho, as amended by the act of the legislature of said state approved on the fourteenth day of February, 1899, and found at page 248 of the General Laws of the state of Idaho passed at the fifth session of the legislature of the state, A. D. 1899, and the act of February 23, 1899, regulating the surety companies, and found at pages 337-340 of the General Laws of the state of Idaho, approved February 23, A. D. 1899, and that said undertaking does not show, and was not accompanied with any evidence, documentary or otherwise, showing, prima facie, that the surety company mentioned in said undertaking had qualified to do business in the state of Idaho, by complying with the said act of February 23, 1899, or that the execution of said undertaking had been authorized by said surety company, or executed by the agents or officers authorized to execute the same, or executed according to the laws of the state of Idaho, or that the said surety company is authorized to do business in the state of Idaho by becoming surety on any bond or undertaking.”</p> <p>“6. That no bond or undertaking on an appeal has ever been filed herein which was approved by the clerk of the board of county commissioners or by the probate judge for the county of Kootenai, state of Idaho, as required by the statute in such case made and provided.”</p> <p>Before the hearing of respondent’s motion to dismiss, the appellant filed a motion, supported by affidavits, asking leave, among other things, to make and file such bond or undertaking on appeal as the court by order might direct or permit it to file. After a hearing upon the motion to dismiss, and the counter motion made .by appellant, and on the ninth day of April, 1904, the district judge made and entered his order sustaining respondent’s motion and dismissing the appeal, and thereupon entered judgment of dismissal against the appellant, and for costs in favor of the respondent. From the judgment and order so made and entered, the railway company has appealed to this court.</p> <p>Section 1777, as it appears in the Laws of 1899 (in said section as amended), is as follows: “Such appeal may be taken to the district court, or the judge thereof, of the judicial district of which the county is a part, by serving upon the clerk of the board a notice of appeal so referring to the act, order or proceeding appealed from as to identify it; that upon notice in writing of such appeal being brought by any person to the attention of such judge, he shall fix the earliest time and place, convenient to himself, for the hearing of such appeal, which may be heard in a summary manner before him, or his court, and when in his opinion no serious injury will result from delay, the hearing shall be had during the next term of his court in the county from which the appeal comes. When the appeal is made for the purpose of protecting the interests of the county and of the people, no requirement shall be made of the appellant for security of costs, except that when the district judge shall be of opinion that such appeal is not made in good faith, but is for delay and vexation, he may require the appellant to enter into an undertaking with good sureties in an amount sufficient to secure the payment of costs, and in all other cases like undertaking shall be required.” And hence the only provision now with reference to an undertaking is that an "undertaking shall be required” without specifying when or how. It is expressly provided, however, that the district judge is the one to make the requirement when it is to be made. Therefore, we say that the giving of an undertaking is not jurisdictional. It is a matter to be regulated by the court after the appeal has been taken by complying with the other provisions of the section, and that where, as in this case, an undertaking is tendered by filing one with the clerk of the court, such undertaking is sufficient unless upon objection being taken thereto a different one is required by the judge, and especially, as in this case, when it is given in the manner and amount required by the code. (Rev. Stats., see. 4915.)</p> <p>It is contended by appellant that no undertaking is required to be given on such appeal unless expressly required by the district judge. This argument is not applicable to the case at bar, but would be applicable to an appeal taken for the purpose of protecting the interests of the county and of the people. The appeal in the case at bar was taken by appellant as a private corporation, and the appeal was not taken for the purpose of protecting public interests. In the case of Davis v. Elmore Go., 9 Idaho, 764, 75 Pac. 910, this court held as follows: “An appellant, from an order of a board of county commissioners, must file an undertaking on appeal as required by statute, when the appeal is not taken for the purpose of protecting the interests of the county and people. If he does not do so, his appeal is ineffectual for any purpose and will be dismissed on motion.”' The same contention was made by appellant in that case that is made by appellant in this case relative to the filing of an undertaking on appeal; that is, under the provisions of section 1777, an act amendatory thereof, of the Eevised Statutes of 1887, no undertaking was required to be given. In the case of Salt Lake Brewing Go. v. Gillman, 2 Idaho, 195, 10 Pac. 32, which was an appeal from a justice of the peace, this court held that to effectuate such appeal, three things were required, to wit: 1. The filing of notice of appeal; 2. The service of a copy of the notice of appeal; 3. The filing of an undertaking. And all these things were required to be done within thirty days after the rendition of the judgment, the court holding that these three things must be done within thirty days, and that they were jurisdictional prerequisites.</p>

<p>APPEAL from District Court in and for Kootenai Connty. Honorable Ralph T. Morgan, Judge.</p> <p>The Kootenai Valley Railway Company appealed from an order of the hoard of county commissioners of Kootenai county and its appeal was dismissed by the district court, from which order and judgment an appeal was taken to this court.</p> <p>The facts are the same as in the case of Great Northern By. Go. v. Kootenai County.</p> <p>Failure to file transcript within the time prescribed by the rules of. the supreme court of this state is ground for dismissal of appeal, and yet, where the appellant was not at- fault, the court refused to dismiss an appeal for failure to file the transcript, and said: “A rule, or the construction of a rulé, which would deprive a party of his right of appeal by reason of the default of an officer of the court solely, would be more than inequitable. It would be arbitrary, tyrannical and unjust, and might be destructive of the end for which courts are established and maintained, .... the administration of law and justice.Under statutes and rules similar to ours, it has been uniformly held that, while failure to file a transcript is ground for the dismissal of the appeal, a delay may be excused.” (Westheinier v. Thompson, 3 Idaho, 418, 31 Pac. 797; Perkins v. Bridge, ante, p. 189, .77 Pac. 330; Mutual Life Ins. Go. v. Phinney, 178 U. S. 327, 20 Sup. Ct. Eep. 906, 44 L. ed. 1088; 2 Ency. of PI. & Pr. 246.)</p> <p>file no brief.</p>

Honorable Edgar C. Steele, Judge. Judgment of conviction of grand larceny. The facts are stated in the opinion. The only evidence offered to show that this animal was ever in the possession of Rooke is the fact that she was placed in a pasture along with horses belonging to Rooke and that Rooke settled the pasture bill.

<p>APPEAL from District Court of Idaho County. Honorable Edgar C. Steele, Judge.</p> <p>Prosecution for statutory rape. Defendant convicted.</p> <p>The information in this case charges the defendant with but •one act of sexual intercourse with the prosecutrix, alleged to have taken place on or about the tenth day of June, 1902. The ¿evidence introduced by the state over the strenuous objection of the defendant’s counsel shows, or tends to show, the perpetration of two other separate and distinct acts of rape committed by the defendant upon the prosecutrix at periods of time antedating the date alleged in the information for more than one year. The defendant came into court for trial, as he and his counsel supposed, to meet but the single charge named in the information, and was compelled; under the ruling of the court, to meet three separate and distinct charges, in which he was taken by surprise and could not successfully prepare his defense. Who can say whether or not the defendant was found guilty upon the charge as set out in the information or upon one or both of the other acts allowed in evidence before the jury? On this particular phase of this ease, we submit the following well-considered authorities: 23 Am. & Eng. Ency. of Law, 2d ed., p. 881; People v. Stewart, 85 Cal. 174, 24 Pac. 722; People v. Bowen, 49 Cal. 654; Janzen v. People, 159 Ill. 440, 12 N. E. 862; State v. Bonsor, 49 Kan. 758, 31 Pac. 736; State v. Hosteller, 45 Minn. 128, 47 N. W. 541; Owens v. State, 39 Tex. Cr. Rep. 391, 46 S. W. 240; Pa/rTcinson v. People, 135 Ill. 401, 25 N. E. 764, 10 L. R. A. 91; Snurr v. State, 2 Ohio Cir. Dec. 614. In exceptional cases, the doctrine laid down in these decisions is relaxed and evidence of other similar acts become admissible, but only for the purpose of showing intent, but that exception has been held"in cases of this kind in California not to apply. Had the information contained three different counts, even then the state would have been properly required to elect upon which charge it would stand and rely for a conviction, and where evidence had been introduced showing more than one act, the authorities hold that the state must then elect on which act it will rely for conviction. (People v. Williams, 133 Cal. 165, 65 Pac. 323; People v. Castro, 133 Cal. 11, 65 Pac. 13; State v. Hilberg, 22 Utah, 27, 61 Pac. 216; State v. Stevens, 56 Kan. 720, 44 Pac. 992.)</p> <p>The only point argued by counsel for appellant was that the court erred in admitting evidence of former acts of sexual intercourse between the parties. This is always admissible in this class of cases. (Commonwealth v. Merriam, 14 Pick. 518, 25 Am. Dec. 420; People v. O’Sullivan, 104 N. Y. 481, 58 Am. Rep. 530, 10 N. E. 880; State v. Marvin, 35 N. H. 22; State v. Wallace, 9 N. H. 515; State v. Knapp, 45 N. H. 156; Strang v. People, 24 Mich. 1, cases cited in note on page 2; Sharp v. State, 15 Tex. App. 171; State v. Way, 5 Neb. 287; Thayer v. Thayer, 101 Mass. 112, 100 Am. Dec. 110; State v. Raymond, 53 N. J. L. 260, 21 Atl. 328; Bottomley v. United States, 1 Story, 135, Fed. Cas. No. 1688.)</p>

Honorable E. C. Steele, Judge. Judgment for defendants, from which plaintiff appeals. The facts are stated in the opinion. When no sufficient evidence has been adduced by the plaintiff to justify the jury in finding a verdict in his favor, the court may order a nonsuit. But where there is any evidence for the plaintiff, it is improper to grant a nonsuit, and to the plaintiff’s evidence must be given the most favorable construction. (16 Am. & Eng.

Honorable Ralph T. Morgan, Judge. Action to establish a trust in certain mining property acquired under a grubstake” agreement and to compel a conveyance of the trust interest to the cestui que tmst. Judgment for plaintiff and order denying a new trial, from both of which defendants appealed. The facts are stated in the opinion. cite few authorities upon the questions decided not cited in the opinion.

<p>APPEAL from the District Court of Kootenai County. Honorable E. T. Morgan, Judge.</p> <p>Action to recover possession of real estate and damages for detention of the same. Judgment for plaintiffs.</p> <p>The facts are stated in the opinion.</p> <p>No forfeiture clause is to be found in the lease, and it is well settled that courts will not decree a forfeiture, unless the party applying therefor is clearly entitled thereto. The law abhors a forfeiture. Forfeitures are odious. Covenants against subletting are to be strictly construed against the lessor. (18 Am. & Eng. Ency. of Law, 2d ed., p. 680, and cases cited.) The •distinction between assignment and underletting is broad and well defined. An assignment conveys the tenant’s whole estate, which is his entire interest in all the premises. (Campbell v. Stetson, 2 Met. (Mass.) 504; Copland v. Parker, 4 Mich. 660.) A covenant not to assign does not prohibit a subletting, and a covenant not to sublet does not prohibit an assignment. (Copland v. Parker, supra; Den v. Post, 25 N. J. L. 285; Jackson w. Silvernail, 15 Johns. (N. Y.) 278.)</p> <p>This court cannot review the evidence or any objections to the findings of fact made by the district court, for the reason that no motion for new trial was made or filed in the district court. {Toulouse v. Burkett, 2 Idaho, 184, 10 Pac. 26; Washington ■etc. B. B. Co. v. Osborne, 2 Idaho, 559, 21 Pae. 421; Gamble v. Dunwell, 1 Idaho, 268; Graham v. Linehan, 1 Idaho, 780.) The lessee, H. D. Johnson, was and is estopped to dispute the title of the respondents. (18 Am. & Eng. Ency. of Law, 2d ed., p. 411; Jones v. Reilly, 174 N. T. 97, 66 N. E. 649; J ohnson v. Thrower, 117 G-a. 1007, 44 S. E. 846; Lyon v. Wash-hum, 3 Colo. 205; Garter v. Marshall, 72 Ill. 609; Campau v. Lafferty, 43 Mich. 429, 5 N. W. 649, 650; Sage v. Halverson, 72 Minn. 294, 75 N. W. 229; Parrott v. Hungleburger, 9 Mont. 526, 24 Pac. 16; Dixon v. Stewart et al., 113 N. C. 410,18 S. E. 325; Williams v. Wait, 2 S. Dak. 210, 39 Am. St. Eep. 773, 774, 49 N. W. 209; Lucas v. Brookes, 18 Wall. 436, 21 L. ed. 779.) And this estoppel applies also to the appellants in this action, who went into possession through the tenant, H. D. Johnson, or by reason of the alleged com^ance by Johnson to one of the appellants. (18 Am. & Eng. Ency. of Law, 2d ed., p. 417.) And this estoppel is binding upon the appellants whether they knew of the title of the respondents or not, and it applies if the possession of the tenant, H. D. Johnson, was a means of acquiring possession by them or either of them. (18 Am."& Eng. Ency. of Law, 2d ed., p. 118; McLennan v. Grant, 8 Wash. 608, 36 Pae. 682; Taylor on Landlord and Tenant, 9th ed., sec. 705.)</p>

<p>Lease — Legal Title to Livestock — Sale by Lessor — Accounting— Temporary Restraining Order — Allegations on Information and Belief — Undertaking —Demurrer—-Affidavit —Practice— Remedy at Law — Partnership.</p> <p>1. Where B. and B. lease certain real estate and personal property consisting of livestock and farming implements to G. for a term of five years, on condition that they shall receive one-half of the grain raised on said premises over and above the amount required to feed such livestock, and one-half of the increase and growth of such livestock or one-half of the price for which the same may be sold, the lessors are entitled to an accounting from the lessee each year for their half of the surplus grain, and are entitled to an accounting for one-half of the proceeds of sales of livestock.</p> <p>2. Where a lease for a term of five years provides for the sale of the increase of certain livestock, one-half of the amount received therefor to go to the lessors and one-half to the lessee, the lessors are entitled to receive their one-half thereof whenever such livestock is sold.</p> <p>3. Where the principal allegations in a verified complaint are made on information and belief, and the sources of information and basis of belief are not stated in the complaint but are stated in an affidavit filed in the case, an injunction may be granted thereon if the facts warrant it.</p> <p>4. Where a restraining order is granted holding the matter in statu quo until a hearing thereon is had, and the hearing is had and the restraining order is continued in force upon condition that the plaintiff give a proper undertaking in a certain, sum named, the action of the judge will not be reversed, for the reason that no undertaking was required prior to the hearing. It is error to grant a temporary injunction without requiring a proper undertaking.</p> <p>5. A judge at chambers has no authority to hear and pass upon a demurrer.</p> <p>6. Under the provisions of section 4288, Revised Statutes, where the facts are in dispute, the granting or dissolving of an injunction is within the sound discretion of the court.</p> <p>7. The right to a preliminary injunction is generally addressed to the sound discretion of the court to be exercised according to the circumstances of each ease.</p> <p>8. WTiere the application for dissolving a preliminary injunction is heard upon the complaint and answer, it was riot error for the judge to permit the plaintiff at the hearing to file an affidavit showing the sources of information and basis of belief of the allegations of the complaint which were stated therein on information and belief.</p> <p>9. Upon a proper showing an injunction may issue to temporarily restrain an act which will result in great damage to the plaintiff although the injury is not irreparable and notwithstanding the plaintiff may have other remedies, following Staples v. Rossi, 7 Idaho, 618, 65 Pac. 67.</p> <p>10. Where B. and B., who are mother and son, each owned certain real estate and personal property consisting of livestock and farming implements, joined' in a lease to G-.. leasing to him such real estate and personal property, B. and B. are not necessarily partners, and under the provisions of the lease involved in this action, B. had a right to sell and dispose of the property belonging to him included in said lease and such purchaser would be entitled to all of the rights that said B. had under the terms of said lease.</p> <p>(Syllabus by the court.)</p>

Honorable Edgar C. Steele, Judge. From an order granting an injunction ‘pendente lite and an order refusing to dissolve such injunction, defendants appeal. Where defendant is in possession of ground in dispute, an injunction will not be granted, but the parties will be left to their remedy at law.

Honorable Edgar C. Steele, Judge. Action to enforce specific performance of contract. Judgment for defendant. The facts are fully stated in the opinion. Held: under statutes identical with Idaho, that a married woman can only be de-vested of her estate in the manner prescribed by statute, and that the homestead can only be conveyed in the mode prescribed by statute.

<p>Equity Pleading — Juby Trial May be Denied.</p> <p>1. Where an action is brought in the district court by the party actually in possession of the property in controversy, for the purpose of quieting title to his leasehold estate, under the provisions of section 4538, Revised Statutes, it is a suit in equity, and neither party, as a matter of right, is entitled to a jury.</p> <p>(Syllabus by the court.)</p>

<p>APPEAL from the District Court of Latah County; Honorable Edgar C. Steele, Judge.</p> <p>Action in claim and delivery. Judgment for the plaintiff.</p> <p>The facts are stated in the opinion.</p> <p>Plaintiff’s Exhibit “A” — “Received of H. A. Russell, 600 bx. App. in store, dollars, O. M. Cleveland” — is not a warehouse receipt. Porter’s name is not attached — it is not in the form prescribed by Session Laws of Idaho of 1899, pages 7, 8, nor is it in any manner such a document as would be admissible on >a criminal prosecution against Porter under those sections. The words therein, “in store,” add nothing to its significance, as it was issued without authority, and Russell knew it at the time he got it. The usual storage receipt that was required by the statutes was not given at the time they were delivered there, for the reason, as Mr. Russell was informed, that the party having charge of the warehouse had ,no authority to issue what are called warehouse receipts, etc. Both Porter and Cleveland say Cleveland had no authority to issue warehouse receipts. (People's Bank v. Gayley, 92 Pa. St. 518; Cathcart v. Snow, 64 Iowa, 584, 21 N. W. 94 (construing “stored”); Sinsheimer v. Whitely, 111 Cal. 378, 52 Am. St. Rep. 192, 43 Pac. 1109; Geilfuss v. Corrigan, 95 Wis. 651, 60 Am. St. Rep. 147, 70 N. W. 306, 37 L. R. A. 166; State v. Bryant, 63 Md. 66; Union Savings Assn. v. Si. Louis Grain Exchange Go., 81 Mo. 341.) Plaintiff came into court to procure provisional remedies of claim and delivery, on an affidavit which was ,not true. This was iniquitous eon-'duet relating directly to the suit, and involving the matters in controversy. That such action prevents plaintiff from obtaining any relief and stops the granting of any relief to him is settled in Revised Statutes of Idaho, 4020; Pomeroy^s Equity Jurisprudence, secs. 397, 404. The next question to consider is, the title of Kendrick State Bank to the property in controversy. The title of the bank rested on the “receipt” — heretofore shown to he void. It therefore had nothing, and the motion for non-suit was proper. The bank could take no greater rights under the “receipt” than Russell had. Russell had no receipt — if he obtained it as he said, it was void, as having been obtained surreptitiously from an unauthorized agent; if he obtained it as Cleveland said, it was void, as being a mere memorandum and not a receipt of any nature. (FranMin Nat. Bank v. Whitehead, 149 Ind. 560, 63 Am. St. Rep. 302, 49 N. E. 592, 39 L. R. A. 725; Gueilfuss v. Corrigan, 95 Wis. 65, 60 Am. St. Rep. 143, 70 N. W. 506, 37 L. R. A. 166.)</p> <p>cite no authorities.</p> <p>cite no authorities.</p>

Honorable Ralph T. Morgan, Judge. The board of commissioners of Kootenai county made an order on the thirtieth day of January, 1903, levying a special property road tax on all the taxable property within Kootenai county, and from the order so made, the Humbird Lumber Company, a corporation, owning property within said county, appealed to the district court.

Honorable Edgar C. Steele, Judge. Judgment for plaintiff from which and an order overruling a motion for a new trial, defendants appeal. The facts are fully stated in the opinion. The legislature of the state, in the absence of congressional action, has control of the navigable streams of the state. (Woodman v. Kilbourne Mfg. Co., 1 Biss. 546; S. C., 30 Fed. Cas.

<p>Okdijstances or Cities Unconstitutional When — Mat Prohibit Women from Entering Saloons for Immoral Purposes — Reasonableness of Pine for Violation.</p> <p>1. An ordinance tliat provides: “It shall be unlawful for any person maintaining any saloon, barroom or drinking-shop, or any apartment thereto attached, to permit females to enter their said places of business,” is unconstitutional.</p> <p>2. A city may by ordinance prohibit females from entering places where intoxicating liquors are sold for immoral purposes.</p> <p>3. An ordinance that provides a punishment by fine of not less than $25 nor more than $200, or by imprisonment in the city jail for not less than ten days nor more than sixty days for violation of an ordinance that prohibits females from entering their places of business for immoral purposes, is not void or unconstitutional, for the reason that it is unreasonable or oppressive.</p> <p>(Syllabus by the court.)</p>

<p>Boabd of State Prison Commissioners — Action by Majority of Members — Notice of Meeting.</p> <p>1. The board of state prison commissioners as created by section 5 of article 10 of the constitution is granted the “control, direction and management of the penitentiaries of the state,” and under such grant of power and authority they may meet at such times as they deem necessary.</p> <p>2. A majority of the officers constituting such board may hold a meeting and transact such business as the board is authorized to transact.</p> <p>3. A meeting of the state prison commissioners can be lawfully held by a majority of the board without giving notice to a member of the board who is at the time of calling and holding the meeting beyond the jurisdiction of the state.</p> <p>(Syllabus by the court.)</p>

<p>Habeas Coepus — Discharge of Prisoner — Piling Information-Loss of Complaint — Press of Business — Preliminary Examination.</p> <p>1. Under the provisions of section 8112, Revised Statutes, the court, unless good cause to the contrary is shown, must order the prosecution dismissed when a person has been held to answer for a public offense where an indictment or information is not found or filed against him at the next term of said court at which term he is held to answer.</p> <p>2. That the complaint filed with the committing magistrate had been lost and the information of the loss not communicated to the prosecuting attorney until about two weeks before the beginning of the term of court, and press of business on the part of the prosecuting attorney is not a “good cause to the contrary” within the meaning of that term as used in said section.</p> <p>3. Where the complaint filed by the committing magistrate has been lost, it is not necessary to hold another preliminary examination before an information can be legally filed, and especially is that true where the defendant waived a preliminary examination.</p> <p>(Syllabus by the court.)</p>

Honorable George H. Stewart, Judge. Action to recover damages for the herding and grazing of sheep under the provisions of sections 1210 and 1211, Eevised Statutes. Judgment for plaintiff. There is an implied license given by the United States to all owners of stock to graze them upon the public lands. (Buford v. Houtz, 133 H. S. 320, 10 Sup. Ct.

<p>ORIGINAL application for a writ of habeas corpus.</p> <p>file no brief.</p> <p>files ho brief.</p>

<p>APPEAL from District Court of Bingham County. Honorable James M. Stevens, Judge.</p> <p>Action in claim and delivery to recover a band of sheep. Judgment for defendants.</p> <p>There is no conflict of evidence in this case and the evidence, without contradiction, establishes the following facts: On January 29, 1896, plaintiff being the owner, by purchase, of a flock of three thousand ewes, one or two years old, leased them to James H. Day, until October 1, 1897, to be returned at that time, any losses to be made good out of the average of the lambs of said ewes. The lessee, or bailee, was also to pay for the use of said sheep, nine lambs on the one hundred, for each year, and one and one-half or two pounds of wool, per head. At the trial the following statement and admission were made: “Mr. Eawlins. — In the spring of 1899 the terms of the agreement between the plaintiff, James A. Cunningham, and James H. Day, deceased, as embodied in exhibit ‘D’ were modified by agreement of said parties to the extent that in lieu of the nine lamhs and wool to he paid by James H. Day to the plaintiff for the use of said sheep for each year that said Day was to pay an annual cash rental for the use of said sheep in -the sum of eighteen hundred dollars. Mr. Eogers. — We are prepared to accept counsel’s statement of that fact as correct.” Dnder the original lease as thus modified the sheep were held by Day until his death, about April 14, 1903, he paying the stipulated annual cash rental for their use, as hereinbefore stated. At the time the modified lease was made and went into effect the number of sheep to which the plaintiff was entitled was three thousand ewes, and at the rate of nine lambs on the one hundred for each of the years, 1896, 1897, 1898 and 1899. On October 1, 1897, the three thousand, plus lambs, five hundred and forty head, made the total to which plaintiff was entitled — three thousand five hundred and forty head of sheep. On October 1, 1898, plaintiff was entitled to three thousand five hundred and forty head, plus three hundred and nineteen, or the total of three thousand eight hundred and fifty-nine head. On October 1, 1899, plaintiff was entitled to three thousand eight hundred and fifty-nine head, plus three hundred and twenty-nine head, or the total of four thousand one hundred and eighty-eight head of sheep. Notwithstanding the foregoing were the facts, the .court below, as a conclusion of fact and law, found that plaintiff was not the owner or entitled to the possession of the sheep, and that the same belonged to the estate of James H, Day and had been his property prior to his death. When and how did the sheep cease to be the property of the plaintiff and become the property of Day? Certainly, plaintiff was the owner of the flock of three thousand ewes. Day took these as bailee, agreeing to return.the identical ewes, making good losses from the “average of the lambs of said ewes,” and to pay for the use of said ewes at the rate of nine lambs per one hundred and one and one-half or two pounds of wool to the head each year. Some of the original ewes remained in the flock at the commencement of this action, and the rest of the flock consisted of their increase, except the bucks and the few Oregon sheep. “It is elementary that the owner of the dam, in the absence of any valid stipulation or arrangement to the .contrary, owns her young from the moment of birth.” (Leavitt v. Jones, 54 Yt. 423, 41 Am. Rep. 849, 851; Arkansas Valley Land Go. v. Mann, 130 IT. S.~ 69, 78, 9 Sup. Ct. Rep. 458, 32 L. ed. 854, 2 Cyc. of Law & Pr. 309-311.) The following cases, almost completely analogous to the ease at bar, establish plaintiff’s right of recovery: Turnbow v. Beckstead, 25 Utah, 468, 71 Pac. 1062; Woodward v. Edmunds, 20 Utah, 118, 57 Pac. 848; Robinson v. Maas, 40 Cal. 475; Bellows v. Denison, 9 N. H. 293; and see Solomon v. Franklin, 7 Idaho, 316, 62 Pae. 1030. Thai the defendants Stoner and Post stand in no better position than Day is well established. The rule is stated succinctly in the following language: “Bailee cannot, in contravention of the purpose of bailment, sell, pledge, mortgage, exchange or give away the property or otherwise expressly or impliedly transfer it so as to give title even to one acting bona fide, and without notice of the bailee’s status.” (5 Cyc. of Law & Pr. 188; Bache v. Clarke, 13 L. R. A. 717, note.) The mortgages by Day to the Flato Commission Company did not come to the knowledge of the plaintiff until after Day’s death. This act on the part of Day was inconsistent with the bailment, and the bailment was thereby terminated, giving plaintiff the right to the immediate possession of the sheep. (5 Cyc. of Law & Pr. 205, and authorities there cited.) The court erred in holding that plaintiff was incompetent to testify to any fact occurring before the death of James H. Day. This ruling was based upon the third subdivision, section 5957, Eevised Statutes. It will be noted that plaintiff in this case was not a party or the assignor of a party in an action against an administrator, upon any claim or demand against an estate. The action by plaintiff was against the defendants, Stoner and Post, and was based solely upon a claim or demand made against these defendants. In respect to this claim the administrator of the estate of James H. Day was not a necessary party. Dpon the issue thus presented no judgment could be rendered against the estate, or to charge a trust upon any property belonging to the estate. The admission in evidence of the declaration of Day, in the absence of the plaintiff, that he, Day, was the owner of the sheep, was manifest error. The declarations were made in Salt Lake City while the sheep were in Idaho or Wyoming. They did not accompany or tend to characterize any act of Day pertaining to the possession of the sheep. They constituted no part of the res gestae. They were not made in disparagement of Day’s title or against his interest. They were self-serving declarations and clearly incompetent. (Starkie on Evidence, 65; 1 Eice on Evidence, 420, 421; Stephen’s Digest, Evidence, art. 28; 1 Greenleaf on Evidence, 16th ed., sees. 110, 149, 152.) The ruling of the court excluding evidence on the part of the plaintiff of the expense incurred by him in earing for the sheep, and in respect to the wool, and in finding against plaintiff for the gross amount received for the wool cannot be sustained. If the sheep had remained in the possession of the defendants, these expenses would have devolved upon them. At least, plaintiff’s claim to the possession of the sheep was in good faith, and defendants could recover nothing more than the value of the use of the sheep while they were in the possession of the plaintiff. Dnder this ruling plaintiff was clearly entitled to credit for the expense of keeping the sheep and of shearing and marketing the wool. (5-Wait’s Actions and Defenses, 499; Allen v. Fox, 51 N. Y. 567, 10 Am. Eep. 641; Yam die v. Kingsbury, 17 Kan. 195, 22 Am. Eep. 282.)</p> <p>The judgment appealed from was rendered October 30, 1903. The appeal was taken April 12, 1904, and was from the judgment alone. More than sixty days had elapsed from the rendering of the judgment before the appeal therefrom was taken. Therefore this court cannot review the evidence or the exceptions that the evidence does not support the findings. (Rev. Stats., sec. 4807, suhd. 1; Brady v. Linehan, 5 Idaho, 732, 51 Pac. 761.) The above section of the Revised Statutes was borrowed from the Code of Civil Procedure of California (see Deer-rag’s Code, sec."939), and has uniformly been construed by the supreme court of that state exactly as this court has construed the statute to mean. .(Ourrm v. Kennedy, 89 Cal. 98, 26 Pac. 641; Handley v. Figg, 58 Cal. 578; Bettis v. Townsend, 61 Cal. 333-; Dominguez v. Mascotti, 74 Cal. 269, 15 Pac. 773; Greenwood v. Adams, 80 Cal. 74, 21 Pac. 1134.) It is almost the universal doctrine in the code states, where the distinction between law and equity has been abolished, that an appellate court, even when the appeal is taken in time and the evidence is properly within the record, will not disturb the findings of the trial court where there is a substantial conflict in the evidence. Such is the Idaho doctrine. (See Simons v. Daly, 9 Idaho, 87, 72 Pac. 507; Stuart v. Hauser, 9 Idaho, 53, 72 Pae. 719; -also Robson v. Colson, 9 Idaho, 215, 72 Pae. 951.) There is no dispute that Cunningham and Day entered into a lease in January, 1896, and that Day received from Cunningham three thousand ewe sheep thereunder. But we contend that the lease expired or was supplanted by an agreement by which Day became simply the debtor of Cunningham. By the plain provisions of this lease appellant remained at all times, so long as they were alive, the true owner of the ewes, but was not the owner of their increase; but Day became the owner of the increase and was obligated by the lease to “pay to the first party (Cunningham) for the use and rent of said ewes, nine lambs for each one hundred head of said ewes.” The law is well settled that the increase of the female of livestock belongs to the owner of the dam at the time. The only exception to this rule is where the dam may be hired temporarily for a term. The increase during the term belongs to the usufructuary. (Cobbey on Replevin, sec. 398; Kent’s Commentaries, 360; "Edwards on Bailments, sees; 369, 403; Williamson v. Daniel, 12 Wheat. (U. S.) 568, 6 L. ed. 731 (slave mother and child); Putnam,' v. Wyley, 8 Johns. 432, 5 Am. Dec. 346; GoncMin v. Haven, 12 Johns. .314; Maize v. Bowman, 93 Ky. 205, 19 S. W. 589, 17 L. B. A. 81; White v. Storms, 21 Mo. App: 288; Stewart v. Ball, 33 Mo. 154; Hazel-baker v. G'oodfellow, 64 Ill. 238.) James H. Day had possession of all these sheep, some of which, it is admitted, he absolutely owned. He extended mortgages covering the entire band to the Flato-Commission Company. This company was interested as a mortgagee. For his own benefit, and for the benefit of the mortgagee, he requested the Flato Commission Company to take care of the sheep and furnish the necessary -means to do so. While the commission company was so earing for-the sheep Day died, and the commission company sold its mortgages and assigned its interest to the respondents Stoner and Post. While the respondents Stoner and Post were caring for the sheep, in a sense as the agents of the owner, that is, protecting the property of the estate and preserving their security until they could enforce their claim against it by due process of law, and before an administrator could be appointed, appellant brings this- action against the respondent Stoner and Post, knowing that they did not claim to be the owners of the sheep. The administrator, therefore, was not only a proper party, but a necessary party to the action. (Cobbey on Replevin, sec. 1168; McPadden v. Fritz, 110 Ind. 1, 10 N. E. 120; Butler v. Rockwell, 14 Colo. 125, 23 Pac. 462; Stuckey v. Beliak, 41 Ala. 700; Wharton on Evidence, secs. 466-468; Feller v. Feller, 40 Or. 73, 66 Pac. 468; Tick Eee v. Dunbar, 20 Or. 416, 26 Pac. 275; Joshua Hendy Machine Works v. Dillon, 135 Cal. 9, 66 Pac. 960; 18 Ency. of PI. & Pr. 510.)'</p>

<p>ORIGINAL application in this court for a writ of mandate.</p> <p>files no brief.</p> <p>file no brief.</p>

<p>APPEAL from the District Court of Bingham County. Honorable James M. Stevens, Judge.</p> <p>Action for damages; judgment for plaintiff, from which and an order overruling a motion for new trial, defendant appeals.</p> <p>The facts are stated in the opinion.</p> <p>As a general proposition, no reliance can be placed on statements as to facts which are obvious or of which the defendant party has knowledge, or which are indefinite or suspicious, or which are not regarded as statements of fact, as opinion, trade talk, etc., or where the means of knowing the truth are at hand and it could be known by exercising the diligence of an ordinary prudent man. The Idaho court in stating this principle declares that in cases of this character it must be alleged and proved “That plaintiff was fraudulently induced to forbear inquiry as to the truth of the representations of the defendant.” Another means of stating the doctrine that the purchaser has no right to rely on the statements of the vendor concerning matters where the means of knowing the truth are open to both. The plaintiff relies for the support of his verdict solely upon the proposition that the defendant failed, neglected and refused to transfer or convey to him the amount of water or water right which he agreed to convey. The evidence as to what the agreement was may be considered somewhat conflicting, but at any rate it appears to have been wholly verbal, and not in writing. In Idaho, ditch and water right are real property. (Idaho Eev. Stats., secs. 2825, 6007, 6009, subd. 5; Ada Go. Farmers’ Irr. Go. v. Farmers’ Canal Go., 5 Idaho, 793, 51 Pac. 990, 40 L. B. A. 485; Hall v. Blackman, 8 Idaho, 272, 68 Pac. 19; Mc-Ginness v. Stanfield, 6 Idaho, 372, 55 Pac. 1020.) The Idaho statute making such a contract "invalid” is tantamount to making it void. (Dung v. Parker, 52 N. Y. 496, 497 yDunphy v. Ryan, 116 N. S. 495, 6 Sup. Ct. Eep. 486, 29 L. ed. 703; Welch v. Whelpley, 62 Mich. 15, 4 Am. St. Eep. 810, 28 N. W. 676; Wakefield v. Greenhood, 29 Cal. 598.)</p> <p>Even when a statement by the vendor as to the value of the property is in question, it is for the jury to say whether or not the statement is one of fact, such as will subject the vendor to a charge of fraud, or is a mere expression of opinion upon 'which the vendee cannot rely.' (American Nat. Bank v. Hammond, 25 Colo. 367, 55 Pac. 1090; Oakes v. Miller, 11 Colo. App. 374, 55 Pac. 193; Fargo Coke Co. v. Fargo Gas Go., 4. N. D. 219, 59 N. W. 1066, 37 L. E. A. 593; Mead v. Bunn, 32 N. Y. 280; Redding v. Wright, 49 Minn. 322, 51 N. W. 1056; Gabot v. Christie, 42 Yt. 121, 1 Am. Eep. 313; Speed v. Hol-lingsworth, 54 Kan. 436, 38 Pac. 497.) In view of the record in this case, as we shall see, it is perhaps unimportant to discuss the question whether or not the property to be conveyed was personal property or real estate. We concede that in this jurisdiction water rights, strictly speaking, are classed as real estate; but in the transaction under consideration it is clear that the property which the defendant contemplated transferring was personal property. It is agreed that the water right was to be in the People’s Canal and Irrigation Company, a corporation. It is further conceded by all parties that such water rights were and are evidenced smply by the capital stock of the eorpor- ’ ation, and that the rights were transferred solely hy the transfer of certificate of stock, in the ordinary mode of transferring corporation stock. Upon any theory the defendant has not kept the agreement which he conceded both by his answer and testimony; that is, to transfer enough water for eighty acres. (Idaho Rev. Stats., see. 2611; Wells v. Price, 6 Idaho, 490, 56 Pac. 266.) This court has repeatedly recognized an oral contract, relating to transfer of water and ditch rights as binding after one party thereto has performed. {Male v. LeFlang, 7 Idaho, 348, 63 Pac. 108; Deeds v. Stephens, 8 Idaho, 514, 69 Pae. 534; Francis v. Green' 7 Idaho, 668, 65 Pae. 362; Stowell v. Tucker, 7 Idaho, 312, 62 Pac. 1033; Feeny v. Chester, 7 Idaho, 324, 63 Pae. 192.)</p>

<p>Construction of Contract.</p> <p>1. Where E. & Co. enter into a written contract with C. & Son & Co. to complete a certain grading contract, and it is shown that C. & Son & Co. have partially completed the contract before assignment to E. & Co., and under the terms of the original contract of C. & Son & Co. with another that ten per cent of the contract price shall be retained until the final completion of the works, held that the words “hereafter accruing” reserves to C. & Son & Co. the ten per cent earned at the time of the assignment of the contract.</p> <p>(Syllabus by the court.)</p>

<p>APPEAL from the district court of Fremont County. Honorable J. M. Stevens, Judge.</p> <p>Defendant was convicted of presenting a false and fraudulent claim against Fremont county, and was found guilty and sentenced to a term of one year in the state penitentiary.</p> <p>The facts are stated in the opinion.</p> <p>The only pToof against the defendant is that he made the affidavit of a claim under the bounty law, on June 12, 1902, at Market Lake,-not a word showing or tending to show that he directly or indirectly, in person or by mail or otherwise, presented or caused to be presented, or participated in presenting, said alleged claim to any board or officer whatever, and it must be borne in mind tbat tbe gist of this action is the presentation of a false and fraudulent claim to a public board or officer. The rules relating to false pretenses and cheats are applicable here. The presentation of false accounts is false pretenses. (I Am. & Eng. Ency. of Law, p. 754.) To authorize a conviction it must be shown that the prisoner knew the representations actually made to be false and that he intended to .defraud. (Sharp v. State, 53 N. J. L. 511, 21 Atl. 1026; People v. Walcely, 62 Mich. 297, 28 N. W. 871; 6 Lawson’s Criminal Defenses, pp. 1033-1035; citing Bracey v. State, 64 Miss. 26, 8 South. 165.) The representation must not be obviously false, else no recovery or conviction can b'e had. (2 "Wharton’s Criminal Law, sec. 2129; Shaffer v. State, 82 Ind. 221; Miller v. State, 73 Ind. 88; State v. Orvis, 13 Ind. 569; Johnson v. State, 11 Ind. 481; State v. Magee, 11 Ind. 154; Commonwealth v. Grady, 13 Bush, 285, 2 Am. Cr. Rep. 105, 26 Am. Rep. 192; People v. Williams, 4 Hill, 9,40 Am. Dec. 258; People v. Stetson, 4 Barb. 156; Dord v. People, 9 Barb. 674; Scott v. People, 62 Barb. 73; People v. Crissie, 4 Denio, 528; Long v. Warren, 68 N. Y. 432; People v. Haynes, 14 Wend. 546, 28 Am. Dec. 530; State v. Simpson, 2 Hawks (9 N. C.), 460; Commonwealth v. Hutchens, 1 Pa. L. J. Rep. 302, 2.Pars. Cas. (Pa.) 309; Commonwealth v. Tool-son, 2 Pars. Cas. (Pa.) 326; State v. Stroll, 1 Rich. (S. C.) 244; Delaney v. State, 7 Baxt. 28; Buckalew v. State, 11 Tex. App. 352; Commonwealth ¶. Houghey, 3 Met. (Ky.) 223; State v. Young, 76 N. C. 258.) In cases of this character, the statute, being highly penal, is to be strictly construed. (Bishop on Statutory Crimes, 2d ed., secs. 193, note 3, 199; 4 Am. & Eng. Ency. of Law, pp. 643, and citations.)</p> <p>The defendant is prosecuted for presenting a false claim for payment and not for obtaining money under false pretenses. (Rev. Stats., sec. 6385; Hauck v. State, 45 Ohio St. 439, 14 N. E. 92.) Presenting false claims to public officers is an offense of a kindred nature to false pretenses and cheats, but is an entirely separate and distinct offense. (12 Am. & Eng. Ency. of Law, 853.) Section 1760b of the Revised Statutes is a general law in regard to the presentation of claims for bounties, but this claim was presented for the bounty offered on coyotes-by an act found in Session Laws of 1901, page 205. While the statute involved in this ease has nothing to do with the obtaining of money or property, but the gist of the crime, as counsel for appellant admit, is the presentation of the bill. Even the first authority cited by appellant bears us out in this contention. (7 Am. & Eng. Ency. of Law, p. 754; Roberts v. People, 9 Colo. 458, 13 Pac. 630; Utah Rev, Stats., sees. 4083, 4397; Cal. Pen. Code, secs. 72, 532.) As to the argument of counsel for appellant that if any offense has been committed by the defendant, it is a misdemeanor and not a felony, we reply that where a criminal act constitutes more than one offense, the state and not the defendant shall elect for which offense the information shall be filed. (Bishop on Criminal Law, 8th ed., secs. 791, 792; United States v. Grundy, 3 Craneh, 338, 2 L. ed. 460; Lohman v. People, 1 N. Y. 379, 49 Am. Dec. 340; People v. Mather, 4 Wend. 229, 21 Am. Dec. 122.)</p>

<p>APPEAL from the District Court of the Fifth Judicial District. Honorable Alfred Budge, Judge.</p> <p>Action to recover damages for violation of a contract. Verdict and judgment for the plaintiff.</p> <p>Tbe facts are stated in the opinion.</p> <p>■The making of this contract was not within the scope of Martin’s authority, or apparent authority. He was merely what is ordinarily called a commercial “drummer.” He was recognized as such by the plaintiff. As such an agent he has no authority to make the contract in question. The general rule is that a drummer or commercial traveler has authority only to take orders subject to the approval of his principal. (John Matthews’ Go. v. Benz, 22 Ky.- Law Eep. 1528; 61 S. W. 9; Clough v. Whitcomb, 105 Mass. 482; Bensberg v, Harris, 46 Mo. App. 404.) The second assignment involves the ruling of the court in permitting the plaintiff to detail a conversation between himself and one H. L. Griffin at Ogden when the plaintiff was not present. (1 Greenleaf on Evidence, par. 467.) The plaintiff knew and was advised by Martin himself that he (Martin) could not make this contract without authority from the defendant. The plaintiff knew that if he dealt with Martin and made such a contract, it would be worthless and not binding upon the defendant, unless Martin first procured express authority to execute it. The plaintiff knew that such authority, if procured at all, was procured by telephone. He took his chances in getting his authority in that way. There could be no valid contract.under such circumstances; nor could there be any valid authorization to make such a contract, if such a mistake was made. It was for the jury to find whether there was a mistake or not, but it was for the court to advise the jury of the effect of such mistake, so that they could find their general verdict intelligently. As to the effect of such mistake, see Clark on Contracts, p. 288; 20 Am. & Eng. Ency. of Law, 2d ed., pp. 809, 811.</p> <p>Those dealing with an agent are entitled to presume that his agency is general. (Trainer v. Morrison, 78 Me. 160, 57 Am. Eep. 790, 3 Atl. 185.) Nowhere in the record does it appear that prior to or at the time the contract in question was made, respondent bad even seen any of appellant’s letterheads or order blanks. Nor does it appear that respondent had knowledge of the limitations appellant claims to have pnt npon his agent’s authority. The rule of the law is that the rights of third parties who have reasonably and in good faith relied npon the apparent authority of the agent cannot be prejudiced by secret limitations or restrictions upon it of which they had no notice. (Mechem on Agency, secs. 279, 708; White Lake L. Go. v. Stone, 19 Neh. 402, 27 N. W. 395; Keith v. Hirschberg Optical Go.} 48 Ark. 138, 2 S. W. 777.) A party may testify to that portion of the conversation over a telephone which is spoken in his presence, although he could not- hear the replies and did not know with whom the conversation was held. (Miles v. Andrews, 153 Ill. 262, 38 N. E. 644; 1 Johns on Evidence, see. 210; Wolf et al. v. Missouri Pac. B. Co., 97 Mo. 473, 11 Am. St. Eep. 331, 11 S. W. 49, 3 L. E. A. 539-542; McCarty v. Peach, 186 Mass. 67, 70 N. E. 1029, and cases cited.)</p>

Honorable Alfred Budge, Judge. Action to quiet title to certain property and for a perpetual injunction against the defendant interfering with plaintiff’s possession or obstructing the free use of such property. Judgment for plaintiff and defendant appeals. STATEMENT OE FACTS.

<p>ASSIGNMENT OP MORTGAGE-FORECLOSURE OP MORTGAGE — PAYMENT—Agent — Estoppel.</p> <p>1. Where B. executed a mortgage to the B. & E. Investment Company, and the company thereafter assigned the same to P., ■with a contract binding the company to pay interest installments and principal promptly when due, and agreeing not to foreclose the mortgage for two years after the same became due, and giving the company the right to repurchase said note and mortgage at any time, and collected nine interest installments covering a period of about five years through said company, and delivered the coupons therefor to the mortgagor through said corporation, and neglected to file its assignment of said mortgage for record in the proper county, and failed and neglected to notify the mortgagors of such assignment, held, that under those facts the said B. & E. Investment Company was the agent of P., and that the payment of said principal debt and interest to the B. & E. Investment Company was a payment to P.</p> <p>(Syllabus by the court.)</p>

<p>ON REHEARING.</p> <p>2. Under the facts of this case it is held that the plaintiff, appellant here, is estopped to deny the authority of the mortgagee, the Bunnell & Eno Investment Company, to collect the debt and release and discharge the security.</p> <p>3. Where one of two parties must lose, that loss should fall upon the one whose action or conduct has induced or made possible such loss.</p> <p>4. Necessity for recording assignment of mortgage in order to hold the purchaser of the mortgaged realty liable to the assignee after such purchaser has procured a release and satisfaction from the mortgagee, quaere.</p> <p>(Syllabus by the court.)</p>

<p>Issues — Findings of Fact.</p> <p>1. Where the court omits to find on all of the material issues, the judgment must be reversed.</p> <p>(Syllabus by the court.)</p>

<p>Assignment of Errors on Appeal — Order on Motion for New Trial — Exception Allowed by Law — Delivery of Deed — When Complete — Parol Evidence Admissible to Show Delivery— Parol Evidence not Admissible to Attach Conditions to Deed . Absolute on Its Face — Deeds in Escrow — Escrow cannot be Held by Grantee — Wrongful Taking of Deed by Grantee may be Ratified by Grantor.</p> <p>1. Where a motion for a new trial has been made and the statement used on such motion contained an assignment and specification' of errors, and an appeal is taken from the order denying the -motion and the original brief of appellant contains no enumeration •of errors relied on, hut refers to the transcript and discusses such .errors, and prior to the argument in the appellate court a supplemental brief is filed by appellant making a specific enumeration .of such errors, the same will he regarded as a substantial compliance with the rules of this court and the case will be examined ,on the merits.</p> <p>2. Section 4427, Revised Statutes, gives to an aggrieved party .-an exception to the ruling of the court in granting or overruling .-a motion for a new trial, and on appeal from such order the appellant is entitled to have the assignment and specification of er.rors contained in his statement used on the hearing of such motion examined and considered by the appellate court.</p> <p>3. A deed absolute onits face cannot be delivered to the •grantee therein named to be by him held in escrow, and a delivery which purports to be such will operate as absolute and :freed from all parol conditions, and title will vest at once.</p> <p>4. It is a settled principle of law that the evidence of delivery •of a deed must come from without the deed; in other words, a •deed does not upon its face show delivery, and therefore parol ■evidence is admissible to show such fact.</p> <p>5. Parol evidence is inadmissible to show that a deed delivered •to the grantee and absolute on its face shall take effect only upon the performance of some condition or the happening of some .contingency unexpressed therein.</p> <p>6. Id. — In such case the vesting of title is determined by the legal effect of the terms of the grant and cannot be controlled .by parol evidence.</p> <p>7. A grantor cannot by warranty deed, absolute on its face, and free from conditions or restrictions, convey such a title to his grantee as will enable the grantee to pass a good title to a specific •corporation and at the same time attach such parol conditions to the deed upon its delivery as to preclude the grantee from trans-ferring an equally good .title to any other person or corporation.</p> <p>8. Where B. executes a warranty deed free from any condi-tions or qualifications as to the vesting of title and delivers it to the grantee, W., accompanied with a contemporaneous parol agree-ment to the effect that W. shall form a corporation and deed the -property to such corporation and thereupon pay B. $1,000 cash -.and deliver to B. $5,000 worth of first mortgage bonds of the corporation secured on the property so deeded, and the deed was placed in the hands of the grantee to facilitate such transaction; held, that tlie delivery was absolute and title vested at once in the grantee.</p> <p>9. Even though a valid delivery of a deed had not been made at the time of its execution, still the grantor may thereafter ratify the wrongful taking-of the deed by the grantee after the grantor has acquired complete knowledge of the facts of the transaction, and thereby perfect the title.</p> <p>(Syllabus by the court.)</p>

Honorable George H. Stewart, Judge. Action to enforce specific performance of a contract. Judgment .for plaintiff, from which defendant appeals. The facts are stated in the opinion. All the authorities cited in their brief are cited and commented on in the opinion. cites no authorities not found in the opinion.

<p>Preliminary Examination — Holding Prisoner Without Reasonable or Probable Cause cannot be Inquired into on Habeas Corpus After Conviction — Reversible on Appeal.</p> <p>1. Where a prisoner has been convicted in a court of competent criminal jurisdiction, and by such court committed to the state penitentiary, it is too late for the prisoner, on application for discharge on habeas corpus, to raise the question that the evidence produced against him at the preliminary examination did not show the commission by him of any offense, and that he was committed without reasonable or probable cause.</p> <p>2. The supreme court is a court of original jurisdiction on' applications for habeas corpus, and in the exercise of that jurisdiction cannot review as upon appeal questions which were properly presentable to the trial court upon arraignment or subsequent thereto.</p> <p>3. Under our system of prosecutions upon information, a prosecuting attorney has no right to file an information against anyone where the depositions taken at the preliminary examination fail to disclose any reasonable or probable cause for believing the defendant guilty of an offense, unless the defendant has waived examination.</p> <p>(Syllabus by the court.)</p>

ORIGINAL proceeding for writ of habeas corpus. The facts are stated in the opinion. cites no authorities on the points decided not found in the opinion.

Honorable James M. Stevens, Judge. The defendant was convicted of the crime of grand larceny, and from the judgment and order denying his motion for a new trial appealed. The facts are fully stated in the opinion. We look in vain for any evidence which would show the act or knowledge of a criminal in the taking and keeping of the horse in question by the defendant.

Honorable George H. Stewart, Judge. Action to restrain respondent from conveying three hundred and twenty inches of water past his headgate to which he alleges title. Judgment for defendant, from which plaintiff appeals.

<p>Parties and Privies to a Judgment are Bound Thereby — Who are Privies.</p> <p>1. A judgment is conclusive, not only upon those who were parties to the action, but also upon all persons who are in privity with them.</p> <p>2. A party in possession of land under contract to purchase is not in privity with the party who contracted to sell in the sense that he will be bound by the judgment affecting such property where the action was commenced subsequent to the entering into such contract.</p> <p>(Syllabus by the court.)</p>

<p>APPEAL from District Court in and for Blaine County. Honorable Lyttleton Price, Judge.</p> <p>Action in ejectment for the possession of real property and to recover possession of certain personal property, and also suit for injunction restraining defendant from drawing certain money from the bank in which the same was deposited. Judgment for plaintiffs, from which defendant appeals. Injunction issued against defendant, and from an order refusing to dissolve the same, defendant also appeals.</p> <p>The facts are stated in the opinion.</p> <p>Although a contract may not expressly say it is not transferable, yet if there are equivalent expressions or language which exclude the idea of performance by another, it is not assignable. (La Rue v. Groezinger, 84 Cal. 283, 284, 18 Am. St. Eep. 179, 24 Pac. 42.) The parties to a contract may in terms prohibit its assignment so that the assignees cannot succeed to any rights, in virtue of it. (2 Am. & Eng. Eney. of Law, 1035.) Contracts which are entered into with a view to the confidence reposed in each other by the contracting parties, with the belief on one side and the other in the responsibility and solvency of the opposite party, are not assignable. (2 Am. & Eng. Eney. of Law, 1037, and authorities cited; Arkansas Valley Smelting Go. v. Belden Min. Go., 127 TJ. S. 379, 8 Sup. Ct. Eep. 1308, 32 L. ed. 246.) An executory contract, made in view of the confidence reposed in one another by the parties thereto, is not assignable by one without the consent of the other. (Boykin v. Campbell, 9 Mo. App. 495.) Either cotenant may charge his separate interest, or may convey or mortgage it, or become personally liable upon an undertaking respecting it. (17 Am. & Eng. Eney. of Law, p. 673.) In general, the tenant in possession may use and manage the common property in any way he chooses, provided he does not injure his cotenants. (17 Am. & Eng. Eney. of Law, p. 670, and authorities cited.) In general, all acts done by one tenant for the protection or preservation of the common property, will inure to the benefit of all the eotenants, who in a proper case may be called upon for contribution for the expense incurred in proportion to their respective interests. (17 Am. & Eng. Eney. of Law, p. 671, and authorities cited; Crary v. Campbell, 24 Cal. 637, 638.) A tenant in common is entitled to charge his cotenant with a just proportion of the expenses incurred for the benefit of the common property. (Peyton v. Smith, 22 N. C. 325; Hitchcock v. Skinner, 1 Hoff. Ch. 21; Anderson v. Greble, 1 Ashm. 136; Ruffners v. Lewis’ Exrs., 7 Leigh, 720, 30 Am. Dec. 513.) The right of a tenant in common to the use and enjoyment of the common property exists not only in favor of the tenant himself but also in favor of a stranger claiming under him as lessee, licensee, or otherwise, so long as such possession and nse do not interfere with the rights of the other cotenants. (17 Am. & Eng. Ency. of Law, p. 671 > Berthold v. Fox, 13 Minn. 501, 97 Am. Dec. 243; McGarrell v. Murphy, 1 Hilt, 132; Causee v. Anders, 20 N. C. 388; Ord v. Chester, 18 Cal. 77; Carpentier v. Small, 35 Cal. 361, 362; Lee Chuck v. Quan Chong & Co., 91 Cal. 593, 28 Pac. 45; Hardy v, Johnson, 68 TJ. S. 371,17 L. ed. 502.) Defendant, in his cross-complaint, claims a special lien on said property under his contract of employment with Newland and Jensen. (Idaho Rev. Stats., sec. 3445; Comstock Min. & Milling Co. v. Lundstrum, 9 Idaho, 257, 74 Pac. 975.) An assignment, after the lien of a creditor has attached, as by filing a bill, etc., only conveys the property subject to that lien. (Corning v. White, 2 Paige, 567.) An assignee generally succeeds only to the rights of his assignor. {Bullard v. Kinney, 10 Cal. 60.) Generally, the as-signee of a contract takes his assignor’s rights, but subject to the same burdens. {Smith v. Rogers, 14 Ind. 224; Phalen v. State, 12 Gill & J. 18; Kelley v. Schupp, 60 Wis. 76, 18 N. W. 725.) Where it appears that the defendant is in possession of the property with the license or consent of the plaintiff’s eotenant it is error to render judgment in favor of the plaintiff for restitution and possession of the whole property. All that he is entitled to is to be let into possession with the defendant to enjoy his moiety. {Lee Chuck v. Quan Wo Chong & Co., 91 Cal. 593, 28 Pac. 45.) Section 4288, Revised Statutes, enumerates eases in which an injunction may be granted. The complaint filed does not come under any of the eases enumerated. It is necessary to allege facts. It is a well-settled rule of pleading that bare allegations of conclusions cannot avail the pleader, especially where a demurrer is interposed, without a statement of probative facts upon which the conclusions are based. (10 Ency. of PI. & Pr., p. 925, and authorities cited.)</p> <p>cites no authorities.</p>

<p>Complaint Sufficient When.</p> <p>1. A complaint in an action to restrain the maintenance of a checkgate in a community irrigating ditch or lateral that alleges the ownership or possession, use and cultivation of lands under such ditch or lateral; that such ditch or lateral is their only means of water supply; that the maintenance of check-gates conflict with the legal rights of plaintiff and is unlawful — ■ is not demurrable.</p> <p>(Syllabus by the court.)</p>

<p>ON REHEARING.</p> <p>Injunction — Uncertainty of Decree or Judgment — Indefiniteness.</p> <p>1. Judgment held sufficiently certain to warrant the issuance of an injunction.</p> <p>(Syllabus by the court.)</p>

<p>APPEAL from District Court in and for Bannock County. Honorable Alfred Budge, Judge.</p> <p>STATEMENT oe eacts.</p> <p>The plaintiff commenced this action in the lower court against the defendant to quiet its title to a right of way two hundred feet wide across two adjoining tracts of land of one hundred and sixty acres each, which were originally settled upon by Joseph Hendricks and Andrew Quigley, respectively, The plaintiff, the Oregon Short Line Eailroad Company, is the grantee and successor to the Htah and Northern Eailway Company. On March 3, 1873, an act of Congress was approved granting a right of way to the Htah and Northern Eailway Company over the public lands in the territories of Montana, Htah and Idaho, which act is as follows:</p> <p>“An Act Granting the Eight of Way Through the Public Lands to the Htah and Northern Eailroad Company.</p> <p>“Be it enacted by the Senate and House of Eepresentatives of the United States of America in Congress assembled, That for the purpose of enabling the TJtah and Northern Railroad Company, a corporation organized under the laws of the territory of TJtah to build and extend its line by way of Bear river valley, Soda Springs, Snake river valley, and through Montana Territory to a connection with the Northern Pacific Railroad, by the most advantageous and practicable line, to be selected by said company, the right of way through the public lands in the territory of Utah, Idaho, and Montana is hereby granted to said company. Said right of way hereby granted to said company is to be the extent of one hundred feet in width on each side of the central line of said road where it may pass over the public lands. There is also hereby granted to said company all necessary ground, not to exceed twenty acres for each ten miles in length of the main line of said railroad, for station buildings, workshops, depots, machine-shops, switches, sidetracks, turntables and water stations. And whenever it may be necessary to use material from the public lands for the construction of said road, it may be done; but no private property shall be taken for the use of said company, except in the manner now provided by section three of an act entitled, ‘An act to amend an act entitled “An act to aid in the construction of a railroad and telegraph line from the Missouri river to the Pacific Ocean, and to secure to the government the use of the same for postal, military and other purposes,” approved July first, eighteen hundred and sixty-two,’ approved July second, eighteen hundred and sixty-seven.</p> <p>“Sec. 2. That said company shall be authorized and empowered to mortgage, in the usual manner, their franchise, roadbed, and all property belonging to said company, to an amount not to exceed fifteen thousand dollars per mile for the entire length of said road, upon such terms as may seem to them best; and upon said mortgage may issue mortgage bonds, not to exceed the same amount per mile; but in no case shall the United States be liable in any way whatever for anything done by said company.</p> <p>“Sec. 3. That the rights herein granted shall not preclude the construction of other roads through any canyon, defile, or pass on the route of said road.</p> <p>“See. 4. That the said railroad company shall locate the route of said railroad and file a map of such location within one year in the office of the Secretary of the Interior; and shall complete its railroad within ten years after the passage of this act; and nothing herein contained shall be construed as recognizing or denying the authority of the legislature of TJtah Territory to create railroad corporations.</p> <p>“Sec. 5. The Congress reserves to itself the right to alter, amend, or repeal this act whenever in its judgment the interests of the people may require it.”</p> <p>In 1875, and after the lands in dispute had been surveyed and were open to sale and settlement, Quigley and Hendricks each located on a one hundred and sixty acre tract of land, and continued with their families to occupy their- respective lands until they thereafter acquired patents from the government. In 1878 the Utah and Northern Eailway Company decided to build their road by way of Marsh valley, Portneuf river and Snake river valley, instead of over the originally planned route by way of Soda Springs and Snake river valley. In the course of the construction of the road and during the spring of 578, .they came to the claims occupied by Quigley and Hendricks, and in order to immediately construct over the lands so occupied, the railway company, on May 28th, through its trustee, Jay Gould, purchased from Quigley and Hendricks a right of way sixty feet wide across their respective possessory claims, and took from each a quitclaim deed, and at the same time took contracts from each wherein they agreed to execute to the railway company warranty deeds for such right of way upon receiving patent therefor from the government. The road was immediately constructed across these tracts of land and was completed and in operation prior to the 20th of June following. On June 20, 1878, and after the construction and completion of the road, Congress passed an additional and supplemental act to that of March 3, 1873, granting to the Utah and Northern Eailway Company the right of way over the public lands by way of Marsh valley, Portneuf river and Snake river valley, which act is as follows:</p> <p>‘“An Act Creating the IJtah and Northern Bail way Company, a Corporation, in the Territories of TJtah, Idaho, and Montana, and Granting the Eight of Way to Said Company •Through' .the Public Lands.</p> <p>“Be it enacted by the Senate and House of Bepresentatives of the United States of America in Congress assembled, That the right of way through the public lands of the United States and other privileges heretofore granted by law to the Utah and Northern Eailroad Company, are hereby modified and regranted so as to enable the Utah and Northern Bail way Company and. its assigns to build their road by way of Marsh valley, Portneuf river and Snake river valley instead of by the way of Soda Springs and Snake river valley, as originally granted.</p> <p>■ “Sec. 2. And said company is hereby made a railroad corporation in the territories of Utah, Idaho, and Montana, under the same conditions and limitations and with the same rights and privileges that it now has and enjoys under its articles of incorporation. Provided, that said corporation shall at all times hereafter be subject to all the laws and regulations in relation to railroads of the United States or of any territory or state through which it may pass. And suits against said corporation may be instituted in the courts of said territories or either of them having jurisdiction by the laws of such territory.</p> <p>“Sec. 3. Congress may at any time add to, alter, amend or repeal this act.”</p> <p>No further transactions appear to have taken place between the railway company and Quigley and Hendricks or their successors in interest, since the approval of the act of Congress of June 20, 1878. In the meanwhile the railway company have maintained and operated the road, and it is agreed that the company has used and occupied all of such right of way necessary or needful for its purposes during that time, and that the same has never at any time exceeded the sixty-six feet •originally granted by quitclaim deed to Gould. Nó warranty deed has ever been given by Quigley and Hendricks, and does not appear to have ever been demanded by the railway company. Un December 7, 1878, Quigley filed a homestead on his one hundred and sixty acre tract and received a final land office certificate for the same on October 6, 1882) and thereafter received patent. Hendricks filed on his one hundred and sixty acre tract on December 31, 1880, and received patent therefor December 23, 1882. In 1881 the railway company constructed fences along their right of way and across these tracts of land, the fences on each side of the track being thirty-three feet .from the center of the track. The company did not file its map of location until May, 1881 — some three years after the completion of the road. Quigley and Hendricks, their grantees and successors, have cultivated the lands on each side of the track continuously ever since the construction of the road up to within thirty-three feet of the center of the track. This action was commenced by the plaintiff to quiet its title to the full right of way of two hundred feet wide as granted by the act of Congress. The case was heard upon an agreed statement of facts and the statement of facts was accepted and adopted by the court as his findings of fact, and upon such findings he drew his conclusions of law, which are as follows:</p> <p>1. “That the rights of the plaintiff under its grant from the Hnited States did not attach to the lands in question until after the rights of the defendants had accrued.”</p> <p>2. “That the plaintiff is estopped to assert or claim any rights in or to the lands in question, except the right of way thirty-three (33) feet in width upon each side of the center line of its roadbed as now located and used, being the right of way inclosed by the plaintiff with its fence.”</p> <p>3. “That the rights of the defendants, except as far as the same have been conveyed to the plaintiff, are superior to the rights of the plaintiff in and to the lands in question.”</p> <p>4. “That the defendants should recover their costs in this action.”</p> <p>And judgment is ordered accordingly.</p> <p>Judgment was entered for defendants from which plaintiff appealed.</p> <p>The facts are stated in the opinion.</p> <p>Nearly, if not all, authorities cited in appellant’s brief are found and commented on in the opinion.</p> <p>It may be conceded that the lands of the respondents, on the twentieth day of June, 1878, as between their predecessors and the United States, were public lands, and continued to be public lands until the respective entries of Quigley and Hendricks, December 7, 1878, and December 31, 1880. After said dates of entry the lands so entered were no longer public lands of the United States. (Bardon v. Northern Pac. B. B. Go., 145 TJ. S. 535, 12 Sup. Ct. Eep. 856, 36 L. ed. 808; Hastings & D. B. B. Go. v. Whitney, 132 U. S. 357-361, 10 Sup. Ct. Eep. 112, 33 L. ed. 364; Lemenworth B. B. Go. v. United States, 92 U. S. 733, 23 L. ed. 634; Witherspoon v. Duncan, 4, Wall. (U. S.) 210-218, 18 L. ed. 339.) And therefore, on the tenth day of May, 1881, when the predecessor of appellant filed in the office of the Secretary of the Interior its map of definite location of its route, the lands described in the complaint were not public lands, and not subject to the definite location of the appellant’s map, nor to the grant of June 20, 1878, which, until the time of definite location as provided by said act, was a mere float. Counsel for the appellant takes comfort in the fact that the act of June 20, 1878, is a grant in praesenti. Upon this question we call attention to the reasoning and the language of the supreme court of the United States, in the case of St. Pcml etc. B. B. Go. v. Northern Pac. B. B. Go., 139 U. S. 1-5, 35 L. ed. 77. (United States v. Oregon Gent. B. Go., 176 U. S. 28-43, 20 Sup. Ct. Eep. 261, 44 L. ed. 358; Mennotti v. Dillon, 167 U. S; 703-720, 17 Sup. Ct. ep. 945, 42 L. ed. 333; Northern Pac. B. B. Go. v. Sanders, 166 U. S. 620-632, 634, 636, 17 Sup. Ct. Eep. 671, 41 L. ed. 1139.; United States v. Northern Pac. B. B. Go., 152 U. S. 284-296, 298, 14 Sup. Ct. Eep. 598, 38 L. ed. 443; Bailroad Go. v. Baldwin, 103 U. S. 426, 26 L. ed. 578; Leavenworth etc. B. B. Go. v. United States, 92 U. S. 733, 23 L. ed. 634;- Nelson v. Northern Pac. B. B. Co., 188 U. S. 108, 23 Sup. Ct. Eep. 306, 47 L. ed. 406.) We concede that appellant is entitled to a right of way sixty-six feet wide not because of the grant claimed, but by reason of the quitclaim deed from respondents for that amount and possession under it, by which respondents would be forever estopped, and we contend that the estoppel would be mutual. We think the general rule is well settled, both upon reason and authority, that the grant of public lands to a railroad, as a bonus or for right of way, is not operative until after the filing of the map of definite location, and then only as to such lands of the public domain as are undisposed of for other purposes under other laws. The grant operates upon only such lands as are subject to the grant (not otherwise disposed of), and the title to such lands as are identified by the map relates back to the date of the grant. (Northern Pac. B. B. Go. v. Sanders, 166 U. S. 620, 17 Sup. Ct. Eep. 671, 41 L. ed. 1139; Van WycJc v. Kne-vals, 106 TJ. S. 360, 1 Sup. Ct. Eep. 336, 27 L. ed. 201; United States v. Oregon Cent. Pac. B. B. Go., 176 TJ. S. 28, 20 Sup. Ct. Eep. 261, 44 L. ed. 358; Clements v. Warner, 24 How. 394-397, 16 L. ed. 695; Ard v. Brandon, 156 H. S. 537, 15 Sup. Ct. Eep. 406, 39 L. ed. 524; Nelson v. Northern Pac. B. B. Go., 188 TJ. S. 108, 23 Sup. Ct. Eep. 307, 47 L. ed. 406.) But counsel for appellant contend that the railroad in question, being actually located and built along a certain route, superseded the necessity of filing a map as required by the acts of Congress granting the right of way, and cite in support of their contention the case of Jamestown etc. B. B. Go. v. Jones, 177 TJ. S. 125, 20 Sup. Ct. Eep. 568, 44 L. ed. 698. The rule ,is well settled that statutory grants of property, franchises or privileges in which the government has no interest are to be strictly construed in favor of the public and against the grantee, and nothing will pass except what is granted in clear and explicit terms. (Black’s Interpretation of Laws, p. 316; Coo-saw Min. Co. v. South Carolina, 144 TJ. S. 550, 12 Sup. Ct. Eep. 689, 36 L. ed. 537; Holyoke Go. v. Lyman, 15 Wall. (H. S.) 512, 21 L. ed. 137; Slidell v.' Grandjean, 111 TJ. S. 412-438, 8 Sup. Ct. Eep. 475, 28 L. ed. 321; Stein v. Bienville Water Go., 141 H. S. 67-80, 11 Sup. Ct. Eep. 892, 35 L. ed. 622; Fertilizer Go. v. Hyde Park, 97 TJ. S. 666, 24 L. ed. 1038; Centred Trust Co. v. Pullman G. Go., 139 H. S. 24-49, 11 Sup. •Ct. Eep. 478, 35 L. ed. 55.) The rule that a grant by the United States is strictly construed against the grantee applies as -well to grants to a state in aid in building railroads as to ■one granting special privileges to a private corporation. ■(Black’s Interpretation of Laws, pp. 210, 211, 316; Leavenworth L. & G. Go. v. United States, 92 U. S. 733, 23 L. ed. 634; Thomas v. Malum, 4 Me. 513; United Society v. Eagle Bank, 7 Conn. 456.) Under this state of facts, we contend that the appellant did not accept the grant of Congress for a right of way over these particular lands, but prior to the date of that •act acquired and accepted its right and title from another ■source, which would forever estop appellant from accepting or having any benefits from the grant as to these particular lands. Their title to the right of way through these lands rests, not npon the grant, but upon the fee conveyed by the United States to Quigley and Hendricks, and by them conveyed by their •quitclaim deed to appellant’s grantors. Where a vendee goes into possession under a contract of purchase with the consent ■of the vendor, it is a general rule that, while he remains in peaceable and undisturbed possession under the contract, he is estopped from disputing the title of the vendor, or setting up an outstanding title in a third party or an adverse title in himself, to defeat the same. (11 Am. & Eng. Ency. of Law, 2d ed., p. 444; Potts v. Coleman, 67 Ala. 221; Mun-ford v. Pearce, 70 Ala. 452; Lewis v. Boskvn, 27 Ark. 64; Sanford v. Cloud, 17 Fla. 557; Beall v. Davenport, 48 Ga. 165, 15 Am. Eep. -656; Earle v. McCoy, 7 J. J. Marsh. (Ky.) 318, 23 Am. Dee. 407; Towne v. Butterfield, 97 Mass. 105; Pershing v. Canfield, 70 Mo. 140; Ecarvey v. Morris, 63 Mo. 475; Ingraham v. Baldwin, 9 N. Y. 45; Wilkins v. Sutiles, 114 N. C. 550, 19 S. E. 606; Lacy v. Johnson, 58 Wis. 414, 17 N. W. 246; Mclndoe v. Morman,. 26 Wis. 588, 7 Am. Eep. 96; Herman on Estoppel, -sec. 234; Smith v. Knowles, 2 Grant Cas. (Pa.) 413; Lewis v. Castlemam, 27 Tex. 407; Wright v. Douglas, 7 N. Y. 564; Cohoes Co. v. Gross, 13 Barb. 137; Moore v. Fitzwater, 2 Eand. 442; Fitch v. Baldwin, 17 Johns. (N. Y.) 161; Beebe v. Swartwout, 3 Gilm. 162; Furness v. Williams, 11 Ill. 229.) The supreme court of this state has passed upon this question against the contention of appellant, in the case of Idaho Land Go. v. Parsons, 3 Idaho, 450, 31 Pac. 791, from which we quote the following syllabus: “When coterminous owners of land establish a boundary line, and take possession to the line so agreed upon, and one of them erects valuable improvements thereon, and holds quiet and peaceable possession thereof without objection from the other coterminous owner or his grantees, for a period of more than eight years, such line is binding upon them and those holding under them.” See, also, supporting the same rule the following cases: Cavanaugh v. Jackson, 91 Cal. 583, 27 Pac. 931; White v. Spreckels, 75 Cal. 610, 15 Pac. 715; Cooper v. Tierra, 59 Cal. 282; Sneed v. 0shorn, 25 Cal. 619; Helm, v. Wilson, 76 Cal. 485, 18 Pac. 604; Blair v. Smith, 16 Mo. 273; Orr v. Hadley, 36 N. H. 575; Houston v. Sneed, 15 Tex. 307; Fisher v. Ben-nchoff, 121 Ill. 435, 13 N. E. 150. Independently of any statute of limitations, courts of equity uniformly decline to assist a person who has slept upon his rights and shows no excuse for his laches in asserting them. “A court of equity,” says Lord Camden, “has always refused its aid to stale demands, where the party slept upon his rights and acquiesced for a great length of time. Nothing can call forth this court into activity but conscience, good faith, and reasonable diligence. Where these are wanting, the court is passive, and does nothing. Laches and neglect are always discountenanced; and therefore from the beginning of this jurisdiction there was always a limitation to suits in equity in this court.” (Speidel v. Henrici, 120 TI. S. 377-387, 7 Sup. Ct. Eep. 610, 30 L. ed. 718; Penn Mut. Life Ins. Co. v. Austin, 168 U. S. 685, 18 Sup. Ct. Eep. 223, 42 L. ed. 627; QaTliher v. Cadwell, 145 TJ. S. 368-371, 12 Sup. Ct. Eep. 873, 36 L. ed. 738; Hammond v. Hopkins, 143 U. S. 224-250, 12 Sup. Ct. Eep. 418, 36 L. ed. 134; Williard v. Wood, 164 U. S. 502-524, 17 Sup. Ct. Eep. 176, 41 L. ed. 531; Sullivan v. Portland & K. B. B. Co., 94 TJ. S. 806-811, 24 L. ed. 324; Lonsdale v. Smith, 106 IJ. S. 391- 394, 1 Sup. Ct. Eep. 350, 27 L. ed. 219; Whitney v. Fox, 166 TJ. S. 637-648, 17 Sup. Ct. Eep. 713, 41 L. ed. 1145; Abraham v. Ord-way, 158 XL S. 416-423, 15 Sup. Ct. Eep. 894, 39 L. ed. 1136; Foster v. Mansfield B. B. Go., 146 TJ. S. 88-102, 13 Sup. Ct. Rep. 28, 36 L. ed. 899; Townsend v. Vanderwerher, 160 TJ. S. 171, 16 Sup. Ct. Rep. 258; Gildersleeve v. New Mexico Min. Go., 161 TJ. S. 573, 16 Sup. Ct. Rep. 663, 40 L. ed. 812; Alsop v. Bilcer, 155 TJ. S. 461, 15 Sup. Ct. Rep. 162, 39 L. ed. 223.) Delay in the assertion of a right, unless satisfactorily, explained, even when it does not constitute a positive statutory bar, operates in equity as evidence of assent, acquiescence or waiver. (Chemm v. McBride, 21 Wash. 558, 58 Pac. 1067-1069; Mullen’s Admrs. v. Carper, 37 W. Va. 215, 16 S. E. 527; ParTcer v. Nacres, 130 IT. S. 43, 9 Sup. Ct. Rep. 433, 32 L. ed. 848; Bichards v. Machall, 124 TJ. S. 183, 8 Sup. Ct. Rep. 437, 31 L. ed. 396; Eorr v. Franck,, 99 Iowa, 73, 68 N. W. 581; Bryant v. Groves, 42 W- Va. 10, 24 S. E. 605.) We are aware of the general rule that the owner of the legal title who is in possession may lie by until his possession is invaded or his title attacked, before taking steps to vindicate his rights, but when the party claiming is out of possession, then the defense of laches is always available. (Conklin v. Wehrman, 38 Fed. 874; Hermmns v. Fanning, 151 Mass. 1, 23 N. E. 493; Birdsall v. Johnson, 44 Mich. 134, 6 N. W. 226; Hatch v. Village of St. Joseph, 68 Mich. 220, 36 N. W. 36; Bausman v. Kelley, 38 Minn. 197, 8 Am. St. Rep. 661, 36 N. W. 333; Haskins v. Wallet, 63 Tex. 213; Budland v. Mastic, 77 Fed. 688.) If a party claiming to have an equitable title to lands is out of possession, his equitable right will be barred if he fails to take steps within a reasonable time to establish it, unless he can show an actual hindrance or impediment caused by fraud or concealment of the party in possession. (Hall v. Law, 102 D. S. 461, 26 L. ed. 217; Speidel v. Henrici, 120 TJ. S. 377, 7 Sup. Ct. Rep. 610, 30 L. ed. 718; Underwood v. Dugan, 24 Fed. 74; Comer v. Comer, 119 Ill. 170, 8 N. E. 796; Boss v. Payson, 160 Ill. 349, 43 N. E. 399; Weiss v. Bethel, 8 Or. 522; Hines v. Thorn, 57 Tex. 98; Taylor v. Whitney, 56 Minn. 386, 57 N. W. 937.) '</p>

<p>FRAUDULENT CONVEYANCE — WANT OP CONSIDERATION — INTENT TO Hinder, Delay or Defraud Creditors — Notice to Corporation— Necessary Parties Defendant.</p> <p>1. Where K. takes a deed from MeA. to all his interest in a mining claim, which is all the property MeA. has in this state, for a consideration of one dollar and “other good and valuable consideration,” which latter consideration is not explained, and at the time of such transfer K. has notice that his grantor is heavily indebted in this state and has avoided personal service of process and has allowed a judgment in rem entered against him for over $50,000, and has been trying to buy up such claims at one-fifth their face value, and that he is not meeting his obligations in due course of business, and that he has no other property in the state out of which such indebtedness can be made, and during the meanwhile K. had occupied a close confidential relation with McA. — under such circumstances, held, that K. cannot restrain an execution sale of such property to pay creditors on the theory that he is an innocent purchaser for a valuable consideration.</p> <p>2. The intent with which a transfer in fraud of credtors is made is not established so much by attempting to ascertain thé actual intent in the mind of the debtor, but rather by the facts and circumstances under which the transfer was made and from which the law imputes a fraudulent motive.</p> <p>3. A conveyance made for a mere nominal consideration when attacked as fraudulent will be subjected to the same rules applicable to voluntary transfers.</p> <p>4. Notice to a person who was the promotor in the organization of a corporation, a principal incorporator and who is manager and resident director is such notice to the corporation that it cannot avail itself of the protection of law to which an innocent purchaser is entitled.</p> <p>5. Where 0. Co. seeks to restrain an execration sale on the grounds that it is an innocent purchaser for a valuable consideration, and K. is brought in as a defendant and files a cross-complaint to set aside the sale to C. Co. as fraudulent, the fraudulent grantors are not necessary parties.</p> <p>(Syllabus by the court.)</p>