Volume 11 — Arizona Reports

Richard E. Sloan, Judge. On July 6, 1896, Henry P. Ewing entered the service of the United States as industrial teacher for the Hualapai Indian Schools in Mohave county, Arizona, and was on the ninth day of July, 1896, appointed special disbursing agent by the Secretary of the Interior of the United States.

Edward Kent, Judge. Quong Chee, a Chinese person, came from China to the United States in the year 1871, and from that time until 1891 was a merchant in Phoenix, Arizona.

<p>1. Appeal and Error — Record—Sufficiency—Review—Scope.—Where appellant’s abstract contains neither verdict, the judgment, the trial court minute entries, nor any testimony except the defendant’s, there can be no review of the trial court’s action in directing a verdict for the defendant.</p> <p>2. Malicious Prosecution- — Probable Cause — Question of Law.— Where all the facts are admitted in an action for malicious prosecution, it is a question of law for the court to determine whether there was probable cause for the prosecution.</p>

<p>I. Bankruptcy — Appeal—Petition for Bevtew — Territorial Courts</p> <p>—Jurisdiction—Bankruptcy Act July 1,1898, chap. 541, 30Stat., secs. 24b and 25a (U. S. Comp. Stats. 1901, p. 3432), Construed.— Section 25a confers jurisdiction upon the supreme court of the territories in appeals as in equity case of bankruptcy proceedings in the following cases: From a judgment adjudging or refusing to adjudge the defendant a bankrupt; from a judgment granting or denying a discharge; and from a judgment allowing or rejecting a debt or claim of $500 or over. Section 24b, supra, provides that the several circuit courts of appeals shall have jurisdiction in equity, either interlocutory or final, to superintend and revise in matters of law the proceedings of several inferior courts of bankruptcy within their jurisdiction. Eeld, that the supreme court of the territory has no jurisdiction to hear an appeal from an order of the district court denying the right of petitioners to intervene, and denying the application to set aside the adjudication in bankruptcy, as it does not follow within any of the cases embraced in section 25a, and neither has the jurisdiction to hear the petition.in review, as under section 24b, supra, said petition in review should be addressed to the proper circuit court of appeals.</p>

<p>1. Judgment — On Demureeb — Res Judicata. — The rule being that where a demurrer goes both to defects of form, and also to the merits, a judgment thereon not designating upon which of the grounds the demurrer is sustained (the record not disclosing otherwise) it will be presumed to rest upon the former; a judgment sustaining a demurrer to a complaint in an action brought for damages for injuries to his minor son, because of one objection going to the merits and three going to defects of form, said judgment not designating the grounds for sustaining the demurrer, is not a bar to an action by the son, on attaining majority, for the same injuries.</p>

ERROR from the District Court of the Second Judicial District in and for the County of Santa Cruz. Geo. R. Davis, Judge. The necessary facts are stated in the opinion.

<p>APPEAL from a judgment of tbe District Court of the Third Judicial District- in and for the County of Pinal. Edward Kent, Judge.</p> <p>The necessary facts are stated in the opinion.</p>

<p>1. Corporations — Agents—Appointment—Dissolution — Bev. Stats. Ariz. 1887, title 12, Bev. Stats. 1901, title 13, secs. 23-176, Laws 1903, No. 82, Construed. — The general law of corporations, title 12, of 1887, supra, did not provide for the appointment of an agent for corporations thereunder. The Laws of 1901, title 13, supra, provided that all corporations organized thereunder should appoint a resident agent, but provided no penalty for noncompliance, and exempted all corporations theretofore organized from compliance unless they elected to come within its provisions. Act No. 82, supra, provided that whenever any corporation heretofore or hereafter organized or incorporated shall fail to appoint a bona 'fide agent of this territory, that certain persons shall be authorized to institute proceedings for the dissolution of the corporation. Held, that Act No. 82 did not apply to any corporations except those organized under the aet of 1901, or such corporations previously organized as have elected to come in under the provisions of such aet.</p>

<p>APPEAL from a judgment of the District Court of the First Judicial District, in and for the County of Pima. John H. Campbell, Judge.</p> <p>The necessary facts are stated in the opinion.</p>

<p>1. Action fob Wrongful Death — Pleading—Complaint—Sufficiency —Demurrer—Make More Definite and Certain — Bev. Stats. Ariz. 1901, par. 2765, Construed. — Under paragraph 2765, supra,. providing for an action for wrongful death, which contains the following provision: “Every such action shall be brought by and in the name of the personal representative of such deceased person, and provided that the father . . . may maintain the action for the-death of a child, . . . and the amount recovered in every such action shall be distributed to the parties and in the proportions provided by law in relation to the distribution of the personal estate left by persons dying intestate,” a complaint alleging that plaintiff and his wife were the parents of a child killed through the negligence of the defendant, though it might be indefinite as to whether plaintiff sought to sue in a representative or personal capacity, is not so defective as to be reached by general demurrer, but the objection should have been taken by a motion to make more definite and certain.</p> <p>2. Same — Trial—Instructions to Jury. — Where, in an action for wrongful death, suit being brought by the father and the complaint being slightly indefinite as to whether he sought to recover in a representative or personal capacity, but no objection was taken to said formal defect by motion to make more definite and certain, it was not error for the court to instruct the jury that the plaintiff brought the aetion simply as the representative of, and on behalf of, those entitled to share in the personal estate of the decedent. Such instructions do not tend to mislead the jury and do not deprive the defendant of any substantial right.</p> <p>3. Appeal and Error — Assignments of Error — Supreme Court Rule 7, subd. 4 — Construed.—An assignment of error “that the court erred in its instructions to the jury, that the questions whether or not the plaintiff was negligent or whether or not the deceased boy was negligent cannot be considered by them in the case,” is not in accordance with subdivision 4, rule 7, supra, which reads as follows: “If the assignment of error be to the giving of instructions to the jury by the lower court, the appellant must state wherein the instruction complained of is erroneous in its statement of law applicable to the case or any fact or facts thereof.”</p> <p>4. Negligence — Contributory Negligence — Not Imputed to Child Pour Years Old. — An instruction that “the negligence of the decedent if he was negligent cannot be considered by you in this case, as the decedent was of such tender age that the law would not impute negligence to him,” is sound as applied to the acts of an infant of four years and four months.</p> <p>5. Negligence — Contributory Negligence — Defense — Evidence — Burden of Proof. — Contributory negligence is a matter of defense, the burden o'f establishing which is upon the defendant.</p> <p>6. Negligence — Defense — Contributory Negligence — Must be Pleaded — Rev. Stats. Ariz. 1901, par. 1277 — Construed.—The defense of contributory negligence must be pleaded under paragraph 1277, supra, which provides that answer “shall consist of a concise statement of facts constituting . . . the defendant’s ground of defense.”</p> <p>7. Appeal and Error — Review—Instructions to Jury — Harmless Error. — Where, in an action for wrongful death of a child, the court instructed the jury to consider the evidence as to the age of the child and expectancy of life, and form an estimate of the amount which the enild would have saved from his earnings between the age of twenty-one and the time that he might reasonably be expeeted to live, the defendant cannot complain of the instructions on the ground that the child’s estate is worth something at the time of his death if he never could have become of age, because if such contention of the defendant is true, then the above instruction, which was entirely proper, would have been too favorable for the defendant.</p> <p>8. Action for Wrongful Death — Instructions to the Jury — Measure of Damages.- — In action for wrongful death the following instruction fairly states the law to govern in the estimating of damages : “The plaintiff is entitled to recover for the benefit of the estate such' damages as the jury may deem from the evidence and proofs as fair, and such compensation therefor, not exceeding the amount claimed in the complaint, considering what pecuniary benefit the estate of the deceased would have derived had he not been killedj considering the probability of the child living and growing to manhood and obtaining property, which, upon his death, if intestate, would have passed to his legal representatives; considering the age, sex and health of the child, his expectancy and probability of living, his mental and physical vigor, and the probability of his accumulating property; considering, also, the position and life of the parents and of the expectancy of life which the child had; and from all these form an estimate of the amount which the child would have saved from his earnings between the time when he attained the age of twenty-one years and the date which he might reasonably be expected to live.”</p> <p>9. Action fob Wrongful Death — Damages $4,800 fob Life of Child not Excessive — Bev. Stats. Abiz. 1901, pab. 2765, Cited. — Under paragraph 2765, supra, which gives an action for damages for death caused by the wrongful act of another, and limiting the amount to be recovered to $5,000, a verdict for $4,800 for action for death of a boy four years and four months old, who was shown to be healthy, strong and intelligent, is not excessive.</p>

<p>1. Appeal and Error — Abstract op Record — Incorporating Evidence —Review—Scope—Supreme Court Rule 7. — An assignment that the court improperly admitted in evidence a certain affidavit may not be considered under rule No. 7, supra, where the affidavit is not incorporated in the abstract.</p> <p>2. Mines and Minerals — Public Mineral Land — Abandonment—Assessment Work — Keeper—When Treated as Work. — Where the question of the necessity for a keeper upon certain mining properties for a certain year was fairly presented to the trial court for decision by the evidence in the ease, his determination that a keeper was neeessary for the property, and that he was maintained in good faith, the court’s determination of this question is conclusive upon appeal.</p> <p>3. Costs — Cost Bill — Time por Filing — Judgment—Date op — Rev. Stats. Ariz. 1901, par. 1557, Construed. — Paragraph 1557, supra,. provides that the party in whose favor judgment is rendered, and' who claims costs, shall file a statement of his costs within ten days-next after judgment. Held, that a cost bill filed within ten days from the time when it was ordered and entered on the minutes was not filed within ten days after judgment, the date of judgment being the date of ordering, and not the date of signing by the judge, especially in view of the faet that our statutes do not require that tha judgment of the court shall be signed by the judge.</p>

<p>1. Mines and Minerals — Relocation—Notice—“Void” Held “Voidable” — Rev. Stats. Ariz. 1901, par. 3241 — Construed.—Paragraph 3241, supra, after providing for the manner in whieh the relocation of a forfeited or abandoned lode claim shall be made, provides that a new location monument shall be erected, and “the location notice shall state if the whole or any part of the new location is located as abandoned property, else it shall be void.” Held, that the word “void” is to be construed as voidable, and that a location notice whieh failed to state that the claim was located in whole or in part as an abandoned claim might be amended so as to contain this statement in compliance with the requirements of the statutes, where there have been no intervening rights acquired.</p> <p>2. Finding — Annual Work — Sufficiency.—Lundy brought suit against Kinney to quiet title to the “Little May” mining claim, whieh he had relocated on April 1, 1903, the relocation notice failing to comply with the statutes, and he having filed an amended relocation notice in 1905. Defendant claimed title to the same under a prior location of the second day of January, 1896, the same property being then located as the “Rosaline No. 2,” said claim being one of a group of seven claims. Kinney had failed to perform the assessment work on the “Rosaline No. 2” for 1902, and had not begun operations on the same prior to relocation by Lundy and assumption of work by him in 1903. Kinney testified without objection that the “Rosaline No. 2” was one of seven claims, said claims being contiguous and forming a group. There was sufficient showing made by witnesses of Kinney to show that in 1902 there was sufficient work done on one of the claims of the Rosaline group to constitute the necessary annual labor for that year for all the claims in the group, if such work could properly be applied to all such claims, and this was also true in the years 1903 and 1904; held, that Kinney was entitled to a finding of the court upon the question whether there was sufficient annual work performed upon the group of claims for the years 1902, 1903 and 1904, prior to the filing of the amended location notice by Lundy, and whether or not the work, if so done, was apqfiicable to the claim in controversy.</p>

<p>1. Municipal Corporations — Public Improvements — Assessments— Delinquent — Enforcement—Parties—Bey. Stats. Ariz. 1901, tit. 11, chap. 2, pars. 483, 484, 488, Laws 1903, p. 148, No. 92, secs. 84 and 96, Construed. — Paragraph 483, supra, being section 19 of chapter 2, title 11, supra, provides that when the city collector shall be unable, before the twenty-first day of December of the year in which a special assessment is made, to collect any such special assessment, he shall deliver the delinquent list to the tax collector of the eounty, who shall incorporate said list with the county delinquent list. Paragraph 484, supra, provides that the tax collector of the eounty shall sell delinquent city property for city delinquent special assessments at the same time and in the same manner as real property is required to be sold by law for county and territorial delinquent taxes. Paragraph 488, supra, provides that the general revenue laws in reference to proceedings in the collection of delinquent taxes, except as theretofore otherwise provided, shall be applicable to proceedings to collect such special assessment. Act No. 92 of the Laws of 1903, supra, repeats the general revenue law in relation to proceedings for the collection of delinquent taxes on real property, depriving the tax collector of his power to sell real property for delinquent taxes, and providing for suits to be instituted against delinquent taxpayers by the tax collector in the name of, and for the use of, the territory. Said act also provides that clerks of county boards of supervisors shall make in the “back tax book” a list of all land and town lots on which back taxes shall be due in such county, city or town, and that all back taxes of whatever kind appearing due upon delinquent real estate shall be extended upon the “back tax book” made under this chapter, and collected by the tax collector under authority of this chapter. Held, construing these sections together, that a suit to collect a delinquent special assessment for a municipal improvement was properly brought in the name of the territory at the relation of the treasurer and tax collector of the eounty.</p> <p>2. Same — Same—Same—Reviewed—Rev. Stats. Ariz. 1901, pars. 478, 479, 483, Construed. — Paragraph 478, supra, provides if the owner of any parcel of land assessed for improvement by special tax feel aggrieved, he may, within twenty days after its determination, appeal to the district court. Paragraph 479, supra, provides the appeal given by the last section shall be the only remedy of any owner of property for the redress of any grievance he may have by reason of making of such improvements. Paragraph 483, supra, provides in any aetion before any court wherein the question of the validity of an assessment is at issue, no defense or' objection may be heard which might have been interposed in the proceedings for the making of such assessment or the application for the confirmation thereof. Held, that where an owner fails to appeal from theaetion of the city council in levying an assessment, he cannot complain that it divided the cost of the improvement by arbitrary front-foot rule and not on the basis of benefits, nor that it took into-consideration the value of a strip of land lying between Ms land and the street improvement, where he received notice of the hearing by the assessment committee and was present "thereat, and had notice of the time when the common council would act on the report of the committee.</p> <p>3. Pleadings — Answer—Admission.—The complaint states that the property of the defendant .was contiguous to the improvement made, and the answer does not contain a denial of such statement; the allegation may be taken as true.</p>

<p>1. Sheriff — Bond—False Imprisonment — Complaint—Sufficiency.— A complaint for recovery on a sheriff’s bond for false imprisonment on plaintiff’s arrest by the sheriff’s deputy, though it negatives the conditions upon which a lawful arrest could have been made without a warrant, is insufficient where it does not allege that he was arrested without a warrant, nor on general terms charge that the arrest was unlawful.</p>

<p>1. Appeal and Error — Record—Review—Scope.—An assignment of error that the court erred in rendering a certain decree, for the reason that the same is not within the issues made by the pleadings in the case, cannot be considered where the pleadings are not contained in the record.</p> <p>2. Same — Same—Same—Same.—An assignment that the court erred in refusing to receive in evidence the judgment of the court in another case cannot be considered where there is no bill of exceptions and reporter’s transcript has not been certified as such.</p> <p>3. Waters and Watercourses — Irrigation—Distribution op Water— Rev. Stats. Ariz. 1901, par. 1431, Construed — Judgment—Water Commissioner. — Where the court has determined the priority of a. large number of water users to the waters of a certain river for irrigation purposes, and decreed what amount the several parties were entitled to divert from said river, and appointed a water commissioner, with authority to enter upon all canals, dams, gates, etc., used in distributing the water to be diverted by such canals under the decree for the benefit of various parties, and to make such rules and regulations as he should deem proper and expedient to be observed by the parties to the suit for the distribution and use of said water, the power given to said commissioner was merely an administrative, and not judicial, discretion and his appointment was a proper method to carry the decree into effect, not only under paragraph 1431, supra, but also under the exercise of the common-law and chancery jurisdiction of the court to provide all necessary means to carry out its judgment and decree.</p>

F. M. Doan, Judge. Action by John McGowan against J. N. Gaines, as the tax collector of the county of Gochise, Arizona, and the Aetna Indemnity Company, a corporation, as surety on the official bond of said tax collector. The necessary facts are stated in the opinion.

<p>1. Judgment — Equitable Relief — Laches.—Where default judgment was rendered against a foreign corporation on June 21, 1903, the summons having been served on a third person, who was not its agent, and the corporation, after receiving notice of the judgment of November, 1903, filed a motion to set aside the judgment, which motion was denied and the ruling of the court affirmed by the supreme court in May, 1905, a suit in equity to restrain the enforcement of the judgment brought by the corporation in June, 1905, was not barred by laches.</p> <p>2. Same — Process—Lack of Service. — Where default judgment is entered against a foreign corporation, the summons being served on the third person, who was not its agent, while the corporation had knowledge, acquired from said third person, that a suit had been brought, and did not act upon said knowledge, judgment is none the less void, and its enforcement will be enjoined, there being no laches in the failure to act upon the knowledge obtained f-om the third person, as the company had the right to rely upon the constitutional guaranty of due process of law.</p> <p>3. Process — Return—Impeachment—Rev. Stats. Ariz. 19Ó1, par. 1088. — While paragraph 1088, supra, provides that the return of sheriff on process is prima facie evidence of the fact stated, such return of service of summons may be shown to be false, that no service was made, and that the court obtained no jurisdiction of defendant, without proving that the false return was procured by the fraud of. plaintiff.</p>

Richard E. Sloan, Judge. On February 28, 1898, William P. Coyne made written application to the appellant, through its agent at Flagstaff, Arizona, for a policy of insurance for $2,000 upon his life, which was accepted, and appellant thereafter, on or about March 11, 1898, upon the payment of the first annual premium of $105, executed and delivered to the said Coyne, at Flagstaff, Arizona, its “Guaranteed Cash Value” policy of insurance, No. 860,184, for $2,000, which was…

<p>1. Waters and Watercourses — Irrigation — Riparian Owners — Common Law — Not in Force in Arizona — Bill op Rights, art. 22, and Howell’s Code, chap. 55, Legislature 1864. — Howell’s Code adopted the common law of England so far as not repugnant to, or inconsistent with, the Bill of Rights or the laws of the territory, and the Bill of Rights, article 22, declared all streams susceptible to use for irrigation to be public property, and gave any inhabitant of the territory owning or possessing irrigable land the right to divert water necessary for irrigation from any convenient stream. Held, that the common-law doctrine that only riparian owners could divert water from streams for irrigation purposes, being repugnant to the Bill of Rights, article 22, has never obtained in this territory.</p> <p>2. Same. — Rights Under Common Law, Even ip Existent, Conferred No Such Property Right as Might not be Abrogated. — Whether or not subsequent legislation can be construed as a recognition that the common law as to riparian rights was adopted by the statutes of 1864, Howell’s Code, adopting the common law, any right granted by the statute was clearly not intended to become property in such a sense that it might not be abrogated by future legislation, when riparian owner has made no use of the water permitted him at eom- ■ mon law.</p> <p>3. Same —Treaties—Effect on Property Rights. — Rights under treaty are neither greater nor less than prior thereto. While, under the treaty of Guadalupe Hidalgo, the owner of a Mexican land grant, title to which was vested at the date of the treaty, retained all vested rights of the property to which he was entitled under the laws of Mexico, and the legislature of Arizona has no power or authority to deprive any such owner of any such rights, at least without due compensation, yet the Mexican law in force at the time of the treaty above mentioned was such that the legislature could concede to individuals or corporations exclusive right to the uses of water of unnavigable streams, and the use of the waters of such streams being under legislative control under the Mexican law, the change of sovereignty merely transferred this right of control from Mexico to the United States, and hence Arizona, exercising power delegated to it by the United States, might grant common-law rights to a riparian owner or establish the right of prior appropriation, and grant this right to others than riparian owners.</p>

<p>1. Pleadings — Demurrer—General.—Where the answer contains a general denial and the demurrer to the answer is a general demurrer, and goes to the whole of the answer, it is properly overruled, whether any special defense set up is good or not.</p> <p>3. Appeal and Error — Record—Bill of Exceptions — -Exhibits—When not Considered. — Where the deed is printed in the abstract, but is not incorporated in the bill of exceptions or statement of the facts, or otherwise identified, such deed cannot be considered by the appellate court.</p> <p>3. Deed — Covenants—Implication—Rev. Stats. 1901, par. 728.— Under paragraph 728, supra, any conveyance of fee simple title to land in which the use of the words “grant” or “convey” is made impliedly contains certain covenants of warranty — among these that the estate granted is at the time free from encumbrance.</p> <p>4 Mortgage — Assumption of by Purchaser — Estoppel.—A grantee in a deed of conveyance assuming the payment of a mortgage is estopped from setting up the invalidity of the mortgage.</p> <p>5. Bills and Notes. — Note payable to maker indorsed and delivered to indorsee is valid. A note made payable to order of maker when indorsed and delivered to the indorsee becomes a valid note.</p>

<p>1. Appeal and Error — Assignments op Error — Sufficiency—Rev. Stats. Ariz. 1901, par. 1586, Construed. — Under statute, supra, providing that the brief must plainly state the errors complained of, assignments of error that the court erred in its findings of fact and conclusions of law, that the findings of fact and conclusions of law are not supported by the evidence, that the court erred in rendering judgment for the appellees and against the appellants, that the evidence is insufficient to support the judgment of the court, and that the court erred in overruling appellants’ motion for a new trial, are not sufficiently specific for review.</p> <p>2. Same — Abstract op Record — Sufficiency—Supreme Court Rule 1, Construed. — Under rule, supra, providing, “In every civil case . . . the appellant . . . must file . . . with the transcript of the record at least six copies of an abstract of said record, which shall contain . . . (g) Such other portions of the record as may be necessary to inform the court of the errors relied upon without an investigation of the record itself,” an abstract which does not contain a deed, the admission of which in evidence is assigned as error, is insufficient to enable the court to determine whether such admission was erroneous or not.</p>

<p>APPEAL from a judgment of the District Court of the Fifth Judicial District, in and for the County of Gila. Frederick S. Nave, Judge.</p> <p>The necessary facts are stated in the opinion.</p>

<p>ERROR from the District Court of the Second Judicial District, in and for the County of Cochise. Fletcher M.' Doan, Judge.</p>

<p>APPEAL from a judgment of the District Court of the First Judicial District, in and for the County of Pima. John H. Campbell, Judge.</p>

<p>1. Appeal and Error — Bill op Exceptions — Allowance—Necessity— Rev. Stats. Ariz. 1901, par. 1586, Construed. — A transcript of reporter’s notes which has not been allowed by the trial judge cannot be considered as a bill of exceptions under paragraph 1586, supra.</p> <p>2. Same — Statement op Facts — Time por Filing — Supreme Court Rule No. 2 Construed. — A transcript of reporter’s notes which was not filed in the district court within the term at whieh a judgment was rendered and the time within which it might be filed was not extended by an order of court or judge as provided in rule 2, supra, cannot be considered as a statement of facts.</p> <p>3. Same Record — -Time eor Filing — Rev. Stats. Ariz. 1901, No. 1582, Construed. — Under the provisions of paragraph 1582, requiring record of case to be filed in the supreme court within thirty days after the perfection of the record in the district court, a reeord filed in the supreme court after the expiration of thirty days will not be considered.</p>

<p>APPEAL from a judgment of the District Court of the Fifth Judicial District, in and for the County of Gila. Frederick S. Nave, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Evidence —Witness—Credibility.—An instruction that “If you believe that any witness has willfully sworn falsely to any material fact, . . . then you have the right to wholly disregard his testimony, except in so far as his statements may be corroborated by other credible evidence in the case,” was not error.</p> <p>2. Criminal Law — Evidence—Accused as Witness — Credibility— Charge to Jury. — It is not error for the court to charge the jury in a criminal case, where the accused has testified in his own behalf, that “in determining the credit to be given his testimony you may consider the very great interest he must have and feel in the result of this case,” where the instruction in no wise adverts to the nature or extent of the testimony given by the accused or comments thereupon.</p> <p>3. Evidence — Criminal Law — Reasonable Doubt — Charge to Jury.— In a criminal case the court properly refused to charge the jury, “If the evidence in this case leaves in the mind of the jury any doubt as to the guilt of the defendant,” it was their duty to acquit.</p> <p>4. Same — Same—Same—Same.—In a criminal case the court properly refused to charge the jury, “If, after a fair and complete consideration of all the facts, the guilt of the accused should in any manner remain in doubt,” they should acquit.</p> <p>5. Trial — Instructions to Jury — Refusal—When Proper. — Requested instructions on behalf of the defendant in a criminal trial are properly refused where all the points contained therein have been fully covered by the court in its general charge.</p>

<p>APPEAL from a judgment of the District Court of the Fifth Judicial District, in and for the County of Graham. Frederick S. Nave, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Embezzlement — Public Officer — Ownership of Property — Indictment — Sufficiency—Bev. Stats. Ariz. 1901, Penal Code, sec. 458. — An indictment under section 458, supra, charging defendant, a deputy sheriff, with embezzling money received by him as such deputy sheriff, properly alleges such money to be personal property of the sheriff, even though it be conceded that the money when collected by defendant became public money; the fact that in alleging the fiduciary capacity in which the money was received it is disclosed that the sheriff’s ownership was a qualified one, in no way misled or prejudiced the defendant.</p> <p>2. Same — Indictment—Sufficiency.—An indictment charging a deputy sheriff with embezzlement is sufficiently certain where it recites the election and qualification of the sheriff and qualification of the defendant as his deputy, and that he was such deputy at the time he received and embezzled the money.</p>

Richard E. Sloan, Judge. The facts are stated in the opinion. APPEAL from a judgment of the District Court of the Fourth Judicial District. Richard E. Sloan, Judge. The facts are stated in the opinion.

<p>APPEAL from a judgment of the District Court of the Fourth Judicial District, in and for the County of Yavapai. R. E. Sloan, Judge.</p>

<p>APPEAL from the District Court of the Fourth Judicial District, in and for the County of Mohave. Richard E. Sloan, Judge.</p>

<p>APPEAL from a judgment of the District Court of the Fifth Judicial District, in and for the County of Graham. Frederick S. Nave, Judge.</p>

<p>APPEAL from judgment of the District Court of the Second Judicial District, in and for the County of Cochise. Fletcher M. Doan, Judge.</p>

<p>AlPPEAL from a judgment of the District Court of the First Judicial District, in and for the County of Pima. John H. Campbell, Judge.</p> <p>ON REHEARING.</p>

<p>1. Mines and Minerals — Adverse — Pleading — Complaint — Sufficiency — Bev. Stats. U. S., sec. 2326 (IT. S. Comp. Stats. 3901, p. 1430), Construed. — The judgment in an adverse suit brought to determine the' rights of rival claimants to a mining claim, section 2326, supra, must designate the part, if any, of the area in conflict that might belong to each of the adverse claimants, and a complaint not containing a definite description thereof sufficient to sustain the judgment is fatally defective upon demurrer.</p>

<p>APPEAL from a judgment of the District Court of the First Judicial District, in and for the County of Pima. John H. Campbell, Judge.</p>

<p>1. Criminal Process — Fees—Rev. Stats. 1901, par. 2000. — Where payment has been made of fees under authority of decided cases, protection should be awarded on the ground that such payments were made under authority of such expressions and not without warrant of law.</p>

<p>APPEAL from a judgment of the District Court of the Fourth Judicial District, in and for the County of Coconino. R. E. Sloan, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Appeal and Error — Transcript—Filing—-Time-^-Rev. Stats. Ariz. 1901, pars. 1486 and 1496, Supreme Court Rule, No. 2, Construed. — Paragraph 1486, supra, permits the oral testimony given in a case to be made a part of the record by filing a transcript of the court reporter’s notes, but does not expressly prescribe the time within which such transcript should be filed. By rule of the court, supra, it is provided that the transcript, in order”to become a part of the record, must be filed during the term in which the judgment is rendered, or within such reasonable time thereafter as shall be allowed by the court or judge thereof. Paragraph 1496, supra, provides that an appeal may be taken “during the term of court at which final trial judgment or order is rendered” by giving notice of appeal in open court. Held, that the term at which judgment is rendered is the term at which it becomes final by the overruling of the motion for a new trial, and a transcript filed at that term is filed at the proper time.</p> <p>2. Principal and Surety — Bond—Construed—Liability—Extent.—A building contractor’s bond required him to complete the work according to a contract referred to and incorporated in such bond, and provided that' “the condition of the above obligation is such that” he “shall finish the above work on or before the first day of July, 1901, as per contract.” The contract required that the contractor should provide the material and perform all work mentioned in the specifications, and if at any time there should be evidence of any lien or lienable claim, the owner should have the right to retain out of any claim then due sufficient to indemnify himself against such lien or claims, and should there be any claims after the payments are made, the contractor should refund to the owner moneys that the latter may be compelled to pay in discharging them. Held, that the said bond may fairly be interpreted to require the obligors to indemnify the obligee for liens arising by reason of the contractor failing to pay for materials.</p> <p>3. Mechanic’s Lien — Surety — Not Estopped to Claim Lien. — A surety on a building contractor’s bond which requires the contractor to pay all material liens is not, by reason of his being surety, es-topped to assert a material lien held by himself.</p> <p>4. Same — Setope by Owner — Rev. Stats. Ariz. 1901, par. 3558, Construed. — Paragraph 3558, supra, provides, among other things and with certain exceptions, that no surety shall be sued unless his principal is joined. Held, where the surety on a building contractor’s bond which requires the contractor to pay all material liens claimed sues the obligee, the owner of the building, to foreclose a lien held by him, paragraph 3558, supra, does not preclude said owner from setting up the surety’s liability under the bond as a setoff or counterclaim.</p> <p>5. Principal and Surety — Discharge op Surety — Bev. Stats. Ariz. 1901, pars. 3551 and 3552, Construed. — A notice following the language of paragraph 3551, supra, which provides that a surety, when a right of action has accrued under the bond, may require the obligee to forthwith sue thereon, is sufficient, it not being necessary that the notice should recite that right of action has accrued, and that if the obligee fails to comply with the notice, the surety intends to avail. himself of the discharge provided for' by paragraph 3552, supra.</p> <p>6. Same — Same—Premature—Bev. Stats. Ariz. 1901, pars. 3551, 3552 —Construed.—Under paragraphs 3551 and 3552, supra, whieh requires that a surety may require the obligee, when right of action has accrued, to sue forthwith, and for the surety’s discharge if the obligee fails so to do, such notice to the obligee in a building contractor’s bond, whieh required contractor to discharge all material lien claims, was prematurely given, where plaintiff, a lien claimant, who was also a surety under the bond, served such notice subsequent to the time of filing his suit to foreclose his lien, and prior to the expiration of the time when the defendant, the obligee under bond, was entitled to file a counterclaim upon the bond for the amount of his lien.</p> <p>7. Same — Bond—Contract—Change in Obligation. — Where certain changes in a contract were made without the knowledge of the surety on a building contractor’s bond, where the changes were made wholly at the obligee’s expense, and did not add to the surety’s liability, such changes did not operate to discharge the surety on the bond.</p>

John H. Campbell, Judge. Otto W. H. Schley brought suit in the court below against the board of supervisors of Pima county, Arizona, and F. B. Close, alleging: That on December 30, 1905, and for a long time prior thereto, he had been the actual bona fide occupant of, and in possession of, certain school land situate at or near Vails Station, in Pima county, Arizona.

<p>1. Insurance — Contract—Limitation of Action by — Enforceable.— An agreement in a contract of insurance, limiting the time within which an action may he brought thereon to a period less than that prescribed by the statute of limitations, will be enforced.</p> <p>2. Same — Same—Incorporation of Terms by Deference.- — Terms may be incorporated in a policy of insurance by reference, and when so incorporated, they will be enforced as part of the contract of insurance.</p> <p>3. Same — Same—Limitation—Binding on Infant. — A limitation in a contract of insurance, providing that action upon the poliey must be brought within two years, is a matter of contract, and not a matter of statute, and it applies to an infant as effectually as to one who has attained majority.</p> <p>4. Pleading — Conclusions of Law — Demurrer Does not Admit. — A demurrer does not admit conclusions of law; the court draws the inferences from the facts as pleaded and ignores the pleaded inferences.</p> <p>5. Same — Same—Ultimate Pact — Not Obnoxious to Demurrer — Motion. — An allegation which, if the details of faet were set forth, might properly be held to be a conclusion inferred from those details, may, when unaccompanied by details, be held to be a pleading of ultimate faet, not obnoxious to demurrer, and if the adverse party desires fuller details, either for information or to lay a foundation for a demurrer, he should attack such a pleading hy motion.</p> <p>6. Pleading — Code—Construction.—Although it is a rule of code practice that a pleading shall be liberally construed with a view to obtaining substantial justice between the parties, yet complete defect of averment cannot be supplied by construction.</p> <p>7. Insurance — Policy—Action — Complaint — Sufficiency.—A complaint in an action on a life insurance policy, which by its express terms made the application therefor a part thereof, said application containing a stipulation limiting the time within which any action should be brought, which alleged that the insurer “purposely and willfully concealed” from the plaintiff the contents of the application, to induce her to delay the bringing of the suit until after the expiration of the time limited, and purposely, willfully and with intent to defraud her induced her to delay the bringing of the action until the time limit had expired, and that she was never able to obtain an inspection of the application, and that the copy attached to the complaint was a copy of said application as furnished to her by the defendant after repeated demands therefor, and that the same was not furnished to her until after the expiration of the time limit, was insufficient, in that the averment of facts, unsupported by other facts, is not sufficient upon which to predicate relief for the plaintiff from the contractual consequence of delay, the adverbs “purposely” and “willfully” adding nothing to the charge that defendant concealed the contents of the application, for to conceal means purposely to keep from sight or discovery.</p> <p>8. Pleading — Fraud—Pacts Must be Stated. — Where the pleader desires to set up fraud, mere characterization of acts as being done “with intent to defraud the plaintiff” does not charge fraud, but .the facts constituting the alleged fraud must be pleaded.</p> <p>9. Words and Phrases — “Conceal” Defined. — To coneeal means purposely to keep from sight or discovery.</p>

Frederick S. Nave, Judge. In 1883 one Andre Maurel went upon unoccupied public land of the United States in Gila county, Arizona, and in conformity with the laws then in force staked out and located a tract of one hundred and sixty acres of land, and filed in the public records of the county a notice that he had settled upon and improved the said premises, with a view of availing himself of the homestead or pre-emption laws of the United States.

<p>1. Habeas Corpus — Extradition—Evidence—Sufficiency—Jurisdiotion. — Upon the hearing of proceedings for extradition, where there . was no legal evidence to prove the commission of the crime charged, the judge of the district court, sitting as a United States commissioner, exceeded his jurisdiction in holding the petitioner for extradition.</p>

<p>1. Municipal Corporations — Special Assessments — Penalties — Interest — Not Allowed on Attorney’s Pees. — A judgment in a suit to collect a delinquent special assessment for municipal improvements should allow the statutory four per cent penalty only on the amount of the recovery, exclusive of the attorney fee of twenty-five per cent of the judgment.</p>

<p>1. Appeal and Error — Record—Suhetciency— Review — Evidence.— Where assignments of error are directed at a ruling of the court, excluding from evidence an order of the probate court offered in evidence by the plaintiff, and such instrument so rejected is not brought before the appellate court by the reeord, the ruling of the court may nevertheless be reviewed where the trial court by its findings of fact set forth its action with reference to this offer of evidence in sufficient detail.</p> <p>2. Administrators — Probate Court — Jurisdiction—Discharge op Administrator — Unadministered Estate — Second Administration — Rev. Stats. Ariz. 1901, pars. 1597-1663, Construed. — Paragraph 1597, supra, provides that final settlement of an estate shall not prevent a subsequent issue of letters of administration when other property of this estate is discovered. Paragraph 1662, supra, provides that petitions for administration must be in writing, signed by the petitioner, stating the faets that are essential to give the court jurisdiction, to wit, the death of the decedent, his residence and existence of property of the estate within the jurisdiction of the court. A petition in compliance with paragraph 1663 was filed where the administrator of the estate of plaintiff’s husband had been discharged by order of the court at the final term, plaintiff and others petitioning the court to set aside the order discharging the administrator and to require him to proceed with the administration and distribution of the property not before administered upon. Such petition was granted by the court. Held, that the order of the court discharging the administrator was a final order, and the court had lost jurisdiction of the case at a subsequent term. But the petition to administer upon the unadministered estate gave the eourt jurisdiction to order an administration and distribution so that the administrator was acting in fact under his second appointment, and in an action to quiet title, the court of trial mentioned in the petition the orders of distribution and sale of thi3 property, based upon said petition, were admissible in evidence.</p> <p>3. Administrators — Sales—Collateral Attack. — Proceedings are not void by reason of the failure of a court to bring interested parties before it by proper process, where the interested parties were actually in court voluntarily appearing, and joining in the request for administration and subsequently consenting to a sale through whieh appellant offered to show title, and appellee, having taken part in the proceeding as aforesaid, cannot collaterally attack them.</p>

<p>APPEAL from a judgment of the District Court of the Fifth Judicial District, in and for the County of Gila. Frederick S. Nave, Judge.</p>

<p>1. Appeal and Error — Motion for Rehearing — Action Settled — Motion Withdrawn — Court cannot Alter Judgment. — Where the parties to an action, after a motion for rehearing has been filed, settled the case and the motion is -withdrawn, the court cannot alter the judgment formerly announced.</p>

<p>1. Courts — Supreme Court — Jurisdiction — Mandamus — Venue— Rev. Stats. Ariz. 1901, par. 1294, subd. 16, Construed. — Paragraph 1294, subdivision 16, supra, which provides that suit against •public officers must be brought in the county in which defendant holds office, refers to the venue of cases in the district court and does not apply to a mandamus proceeding in the supreme court, which being an original proceeding in the supreme court, the geographical limits of the jurisdiction are not those of the county, but of the entire territory.</p> <p>2. Mandamus — Parties — Plaintiff must be Beneficially Interested — Rev. Stats. Ariz. 1901, par. 3074, Construed. — Under paragraph 3074, supra, which requires that writ of mandamus “shall be issued upon affidavit, on the application of the party beneficially interested,” the territory, having a beneficial interest to the extent of one-third of the total amount of certain taxes and their collection, is beneficially interested to a sufficient extent to maintain a proceeding by mandamus to compel the county tax collector to bring suit for collection of the taxes.</p> <p>3. Constitutional Law — General and Special Laws — Taxation— Laws 1903, Act No. 92, Construed and Held Constitutional.— Act No. 92, supra, providing for the remission of all taxes delinquent prior to the year 1888 and imposing interest on delinquent taxes from January 1, 1901, only, is not objectionable as a special law coming within the inhibition of the Harrison act, both provisions thereof being general in character.</p> <p>4. Same — Same—Same—Same.—The requirement of Aet No. 92, supra, that if on the first day of January, 1904, any of the taxes covered by the provisions of the aet shall remain delinquent, the tax collector shall proceed to enforce the payment thereof, together with certain penalties and costs by suit, is general in its application, and does not contravene that provision of Harrison act which prohibits the enactment of the special clause.</p> <p>5. Stake Decisis — Equally Divided Court — Decision not a Precedent. — Where a judgment of the court is affirmed by an equally divided court, such decision does not have the force of a cogent precedent.</p> <p>6. Taxation — Action to Recover Taxes — Compromise—Board op Supervisors — Authority—Rev. Stats. Ariz. 1901, par. 973— Construed. — Paragraph 973, supra, providing that the board of supervisors shall have the power “to direct and control the prosecution and defense of all suits to which the county is a party, and to compromise the same,” and further, “to do and perform all other acts and things which may be necessary to the full discharge of the duties of the chief legislative authority of the county government,” confers no authority on the eounty board of supervisors to compromise any action for the collection of taxes.</p> <p>7. Taxation — Action to Recover Taxes — Terms op Compromise — - Rev. Stats. Ariz. 1901, par. 3922, as Amended by Act No. 92, Laws op 1903, Construed. — Paragraph 3922, as amended by Act No. 92, supra, specifies certain conditions under which the board of supervisors may compromise taxes, and any compromise which was not based upon any of the conditions contained therein is. void.</p> <p>8. Taxation — Tax Collector — Duty to Sue not Discretionary— Rev. Stats. Ariz. 1901, par. 3917, as Amended by the Laws op 1903, Act No. 92. — Under paragraph No. 3917 as amended by Aet No. 92, supra, it is the duty of the county tax collector, in the exercise of which he is without discretion, to bring suit to collect the delinquent taxes.</p>

, APPEAL from a judgment of the District Court of the First Judicial District, in and for the County of Pima. John H. Campbell, Judge. The facts are stated in the opinion. Rehearing.

<p>1. Damages — How Assessed — Basis — Personae Injuries. — The ' general rule as to the award of damages for personal injuries is as follows: Where, from the nature of the damages, these are not susceptible of definite proof, they must be left to the sound judgment and discretion of the jury; but where the damages from their nature are susceptible of definite proof, the jury is restricted to such proof in ascertaining the amount thereof.</p> <p>2. Same — Same—Same.—In a broad sense, it is never true that a jury may estimate damages without regard to the evidence. Even where the jury is permitted to exercise judgment and discretion as to the amount, such judgment and discretion must be based upon facts and circumstances proven in the case.</p> <p>3. Assault and Battery — Damages—Instructions to Jury. — It was error for the court to instruct the jury, upon the trial of an action for assault and battery, that in estimating damages they had the right to consider bodily and mental pain, loss of time, and diminished capacity for labor, resulting directly from defendant’s wrongful aets, if the evidence shows the circumstances to exist, and also “that it is not necessary that the amount of the damages resulting from personal injuries should be proven by witnesses, but is to be determined by you from your own general knowledge and experience”; inasmuch as the quoted portion of the instructions above, while applicable to the bodily and mental pain, was inapplicable to the other elements of the damage mentioned.</p> <p>4. Appeal and Error — Review-—Prejudicial Error — Instructions.— An instruction that the jury may award damages for injuries susceptible of definite proof, as well as for those which are not in accordance with their general knowledge and experience, being .erroneous in part, cannot be said to be harmless, as there is no means of knowing from the verdict whether the jury did or did not allow anything for the injuries susceptible of definite proof, and the instruction contained the only statement of law with regard to the measure of compensatory damages which might be allowed.</p> <p>5. Damages — Exemplary—Grounds.—At common law, what are called exemplary, punitive or vindictive damages, where the injury has been wanton, malicious, gross or outrageous, may be awarded by the jury.</p> <p>6. Same — Same — Pleading — Complaint — Sufficiency. — The facts which would justify an award of exemplary damages must be pleaded in the complaint, either expressly or by necessary implication, and averment of actual damages, without charging that the injury was wanton, malicious, gross or outrageous, is an insufficient pleading to sustain an award of exemplary damages.</p> <p>7. Assault and Battery — Damages—Exemplary—Complaint—Sufficiency. — Where a complaint charges that while plaintiff was engaged in the performance of his duty as coo'k, and without cause or provocation, the defendant attacked plaintiff, and struck him in the eye with false knuckles, causing the loss of one of the plaintiff’s eyes and otherwise seriously injuring him, there is a sufficient charge of a wanton and malicious assault to permit the jury to award exemplary damages, as it is the rule that one is presumed to intend the natural and probable consequences of his act.</p> <p>8. Assault and Battery — Self-defense must be Pleaded. — If a defendant desires to set up a defense of self-defense in an action for assault and battery, such justification must be pleaded as a special defense, since a general denial is insufficient to admit evidence or. to warrant the issue of seif-defense being raised in any way as a justification for the assault.</p>

<p>1. Estoppel — Laches—Ejectment—Trespass.—Where a homesteader knows of a public right of way and grade across his entry and that the railroad company was constructing their road, remains inactive, and permits it to go on and complete the same, and, after tho completion thereof, to operate it for three years,, he is estopped from maintaining either ejectment or trespass.</p> <p>2. Appeal and Error — Becord—Eeview — Evidence — Sufficiency.— Where the abstract of record contains only a small portion of the evidence, the supreme court will not consult the reporter’s transcript of evidence to supply the omission, and will not consider an objection that the evidence is not sufficient to support some of the findings of fact.</p>

<p>1. Contracts — Construction — Two Instruments Construed Together. — Where an agreement for the sale of mining claims provides that in consideration thereof the purchaser should execute notes secured by mortgage on the claims and deliver shares of its stock, and subsequently the agreement was amended by further stipulation that a cash payment was accepted, and the notes and mortgage taken and the deed executed on the understanding that the purchaser should furnish one of the sellers continuous employment at the mines, and to furnish certain specified work, the agreement and amendment thereof must be read as constituting an entire contract, and the amendment was not invalid for lack of consideration because the consideration for the sale was the notes, mortgage and stoek for which the owners were obligated by the original agreement to convey the claims, on the principle that the doing of an act which the promisee has already bound himself to perform is not a valid consideration.</p> <p>2. Same — Rescission—Condition Precedent — Restoration op Consideration. — Where the consideration for the sale of mining property was a cash payment of certain notes secured by mortgage and the delivery of certain shares of stock by the purchasing company, an action for the rescission of the sale must fail where plaintiff tendered only the notes, mortgage and stock without cash payment or interest paid on the notes.</p> <p>3. Pleading — Conclusions.—Where one of the conditions of a sale of a mining claim was that the purchaser should prosecute the work of developing and mining as diligently and to such an extent as would be consistent with good mining and within its resources, an allegation of a breach in that the purchaser had not prosecuted the working and development of the claims within its means and resources is merely the statement of a conclusion, and shows no fact constituting a breach.</p> <p>4. Specific Performance — Adequate Bemedy at Law — Damages.— . There can be no action for specific performance of a provision in a sale of mining claims that the purchaser should furnish employment for the seller at the mines, there being a clear remedy at law in damages for its breach.</p> <p>5. Same — Same.—There can be no specific performance of provisions in ■ a sale of mining claims relating to the running of cross-cuts, shafts and drifts, where the contract specified no time when the work should be done, and there is no allegation of damages by failure to commence the work at the time of the institution of the suit, and there is no prayer in the complaint asking for such specific performance as there is in respect to other provisions in the contract of sale.</p> <p>6. Mines and Mining — Contract — Construction. — Where a contract of sale of mining claims was not made directly with the purchaser, but with a third party as trustee, said sale not to be operative until ratified by the purchaser or sueh other company as might be formed thereafter for the purpose of working the mines, and it was provided that in the event of a new company being formed, the vendors were to receive shares in the new company in the proportion that under the contract they were to receive shares in the purchaser, the clause, “a company to be formed for the purpose of working the mines,” referred to sueh company as should be formed to take over the control in lieu of the purchaser if one should be so formed; and the purchaser having satisfied the contract rendered the elause inoperative, so that the owners could not, by virtue thereof, claim an exchange of stock received by them in a purchase of the stock in the company which thereafter acquired the claim.</p> <p>7. Specific Performance — Forfeiture—Other Bemedies. — Where a contract for the sale of mining claims provides that on noncompliance of the purchaser with any of the terms of the agreement it should forfeit all machinery and appliances placed on the claims, and provides that such forfeitures should, be in full satisfaction of all claims and demands, the agreement controls itself; it provides for the measure of damages to the exclusion of the remedy by cancellation of the sale and specific performance.</p> <p>8. Pleading — Cross-bill.—A cross-bill is proper whenever a defendant has equities arising out of the subject matter of the original suit which entitle him to affirmative relief which he cannot obtain in that suit.</p> <p>9. Same — Same.—In an action for cancellation of instruments, a cross-bill to quiet title in defendant’s grantor was germane in a suit to set aside a conveyance of mining claims to defendant’s grantor.</p>

<p>APPEAL from a judgment of the District Court of the Second Judicial District, in and for the County of Cochise. Fletcher M. Doan, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the District Court of the Second Judicial District, in and for the County of Santa Cruz. Fletcher M. Doan, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the District Court of the-First Judicial District, in and for the County of Pima. John. H. Campbell, Judge.</p> <p>The necessary facts are stated in the opinion.</p>

<p>1. Statutory Construction — New, Re-enacted or Amende» Statutes — Limitation op Actions. — The rule for the provision of new, re-enacted or amended statutes of limitation is that, unless a contrary intent be expressed, they are to be given a prospective effect, so as to extend the period of time within which suits might be brought upon existing causes of action to the full time prescribed by such statutes, counting from the time they take effect.</p> <p>2. Statutes op Limitation — Construction—Rev. Stats. Ariz. 1887, title 44, pars. 2297-2334, Cited — Rev. Stats. 1901, title 41, pars. 2935-2974 and 4243, Construed. — Title 41, paragraphs 2935-2974, supra, repealed and re-enacted title 44, paragraphs 2297 -2334, supra,, with certain changes and new provisions, taking effect September 1, 1901. Under title 44, supra, the time within which an action for debt might be brought where the indebtedness is evidenced at the time “by any contract in writing enacted within the territory” was five years, and this was shortened to four years by paragraph 2954, supra. Paragraph 2954, supra, reads as follows: “Not one of the provisions of this title shall be so construed as to revive any claim which is barred by pre-existing laws, and all claims against which limitations under said laws had commenced to run shall be barred for the lapse of time which would have barred them had those laws continued in force.” Paragraph 4243, supra, reads as follows: “When a limitation or period of time prescribed for any act herein is repealed for acquiring a right or barring a remedy, or for any purpose has begun to run before this act takes effect, and the same or any limitation is prescribed for any act passed at this session of the legislature, the time which has already run shall be deemed part of the time prescribed as such limitation by any act passed at this session of the legislature.” Held, under the rule that a special statute will control a general one on the same subject, and paragraph 4243, being general in character, embracing all re-enacted or amended statutes of limitation and statutes appertaining to the acquisition of rights, and paragraph 2974, applying exclusively to amendments made to the statute of limitation embraced in title 41, that a cause of action founded upon a contract in writing evidencing an indebtedness executed within the territory which had accrued prior to September 1, 1901, is controlled by the statute of limitations in .force at the time the action accrued, being five years.</p>

Fletcher M. Doan, Judge. Action by Belle S. Hargrove and William L. Hargrove, her husband, against the city of Bisbee, to recover damages for personal injury to Belle S. Hargrove. From a judgment for plaintiffs, the city of Bisbee appeals. Motion by appellees to strike from the files the reporter’s transcript of the evidence and so much of the abstract of record as appears to be a synopsis of the evidence taken at the trial.

Fletcher M. Doan, Judge. The Copper Belle Mining Company, a West Virginia- corporation, was the owner of certain mining claims situated in this territory. In 1899 one John Gleeson was the owner of 8,000 shares of the capital stock of the company, was its general manager and superintendent, on a salary, and had an interest in the net profits of a store of the company on its premises.

<p>1. Licenses — Fees—Recovery—Rev. Stats. 1901, nr. 42, Laws 1903, Act No. 26, Laws 1905, Act No. 51, Construed. — Under statutes and laws, supra, creating a livestock sanitary board, providing for a salaried veterinary surgeon, and for stock and slaughter-house inspectors, charging them with the duty of protecting livestock and the public, providing for the licensing of slaughtering business on payment of fees, and making it a misdemeanor for any person to engage in the slaughtering business until he shall have obtained a license, where a license is not obtained, there is no-obligation to pay the fee, and an action for its recovery cannot be maintained, althongh defendant may be criminally liable for-engaging in business without a license, the provisions of such laws not being exercises of the taxing power, but of the police-power.</p>

<p>1. Appeal and Error — Law of the Case. — Where the supreme court of the United States in an appeal from a judgment dismissing the cause for want of jurisdiction of the trial court over the subject matter, which adjudges that the court had jurisdiction, has passed upon the question, this is the law of the case on a subsequent trial.</p> <p>2. Statutes — Construction—Strict—When in Derogation of the Common Law. — The construction of the United States statutes creating a court of private land elaims wherever in derogation of the common-law rights must be strict.</p> <p>3. Public Lands — Mexican Grants — Confirmation—Effect—Act of Congress Creating Court of Private Land Claims Construed.— Act of Congress supra, which created the court of private land claims with jurisdiction to determine the rights of the claimant under Mexican land grants, provides that where land decreed to any claimant shall have been granted by the United States to another, the title of the land shall remain valid. Held, that this latter provision does not apply to confirmation of grants in suits instituted by the government against - the claimants who do not voluntarily appear to obtain the benefits of the act. And where the court, in a suit by the government against plaintiff and defendant, confirmed a grant to plaintiff without excepting the lands of the defendant, although by the pleadings the attention of the court was called to the fact that titles had been issued to portions of the grant to the defendant by the United States, plaintiff obtains title, and is entitled to quiet title as against defendant.</p>

<p>1. Deeds — Foreign—Conveyance.—Comity will not prevail to the extent of giving effect to a foreign statutory conveyance of real ' estate.</p> <p>2. Bankruptcy — Foreign— Assignment — Conveyance—Acknowledgment — Defective.—An assignment by a bankrupt in a foreign bankruptcy proceeding, even though made voluntarily, does not operate to convey real estate, situated in Arizona, where the assignment is not acknowledged as provided by the laws of Arizona.</p> <p>3. Probate Court — Assignment of Distributive Shares — Bev. Stats. Apjz. 1901, par. 1904, Construed. — Under paragiaph 1904, supra, authorizing the probate court to assign shares of real estate only to the heirs, or to persons to whom they have been “conveyed,” that court has no authority to assign the share of an heir to another who does not hold a valid “conveyance” of title.</p> <p>4. Same — Same—Bankruptcy—Personal Estate — Foreign Assignment — When Valid. — While no effect can be given to an assignment of a foreign bankrupt in so far as it affects real estate because not properly acknowledged, yet where there aré no local creditors to be protected, it is proper for the probate court to assign to foreign assignees of a bankrupt the bankrupt’s share in the personal property of his deceased relative.</p>

<p>1. Pleading — Objections to Pleadings — Waiver—Failure to Demur. — Where no general demurrer was interposed to the complaint in the trial court prior to the trial, no error was committed» in permitting the case to go to trial.</p> <p>2. Appeal — Record—Objections to Pleadings. — Where the reeord on appeal discloses that the complaint is not sufficient to support a judgment, the judgment rendered thereon constitutes fundamental error, for which the judgment will he reversed' in the appellate court, though the point is not raised by appellant.</p> <p>3. Action — Nature of Action — Fraud or Monet Received — Complaint. — A complaint charged that defendants agreed as agents for plaintiff to buy a certain mine at the lowest possible price, that defendants as such agents purchased the mine, and with intent to deceive and defraud claimed to have paid therefor $20,000 in American gold, when, in fact, they only paid $20,000 in Mexican silver, and that plaintiff, relying on defendants’ statements, paid defendants $20,000 in American gold for a conveyance of the mine; that at the date when defendants paid the sum of $20,000 in Mexican silver to the owners of the mine such amount was worth $9,600 American gold, and no more, by reason of which defendants became indebted to plaintiff in the sum of $10,400 gold, no part of which they had paid, though often requested so to do. Held, that the complaint stated a sufficient cause of action for money had and received, and not an action for damages for frand, and that the allegations of fraud should he therefore rejected as surplusage.</p> <p>4. Venue — Transitory Action — Money Received. — An action against certain agents for money had and received is transitory, and may be brought in any jurisdiction where the defendants can be served with process.</p> <p>5. Pleading — Amendment—Discretion.—It is within the sound discretion of the trial court to permit or refuse an amendment to the pleadings after the trial has begun.</p> <p>6. Appeal — Discretion—Review.—Refusal of the trial court to permit a trial amendment in the exercise of discretion will not be reviewed on appeal, unless it is plainly shown that the court’s discretion has been abused.</p> <p>7. Limitation of Actions — Laws of 1903, No. 16, of Ariz. Construed— Relief from Fraud — Statutes—Application.—Laws of 1903, No. 16, barring actions to obtain relief from fraud' after one year from tbe discovery of the acts constituting the fraud, applies only to actions to obtain equitable relief, based wholly on fraud and in which no relief can be granted unless fraud is proved, and has no application to an action for money nad ana received against plaintiff’s agents to compel a return of money furnished to them whieh they had not used for the purpose intended.</p> <p>8. Appeal — Review—Prejudice.—Defendants were not prejudiced by the court’s refusal to permit a trial amendment pleading limitations, where the action was not barred under the statute sought to be pleaded. 1</p> <p>9. Same — Findings.—The supreme court will not disturb findings of fact of the trial court based on conflicting evidence, where they are supported by any substantial testimony.</p>

CERTIORARI oel petition of Angelas Dias de Hansen and others to review an order permitting immediate possession of certain property sought to be condemned for a public road. Demurrer on petition overruled. The facts are stated in the opinion.

<p>1. Specific Performance — Grounds—Contract—Repudiation op Vendee — Effect.—A contract to purchase land provides that the vendor should give a good and sufficient warranty deed and furnish an abstract showing a perfect title to the property. The vendee made a cash payment of $500 and later, under the terms of the contract, tendered the balance of the purchase money but refused to accept the deeds and abstract offered, on the ground that the title was defective; whereupon the vendor attempted to rescind and brought ejectment for the possession of the property which was in the vendee, to which action defendant filed a eross-eomplaint, asking for specific performance of the contract. In the course of the trial the vendee discovered that the defect in the title was a mere equity, and then and there tendered the purchase price in open court, to take the title which the vendor had, which offer was refused by the-vendor. Held, that inasmuch as time was not of the essence of the contract, and the contract had been partially performed by the part payment, and it was in the power of the vendor to make a good title, the vendee was strictly within his rights in refusing to accept a defective title, and was not in default, and could waive the defective title and accept whatever title the vendor had, and was entitled to a specific performance of the contract.</p> <p>2. Specific Performance — Defense—Appreciation in Value of Property. — Where suit was brought to specifically enforce a contract in the conveyance of land, payments having been delayed because the vendor did not furnish a perfect title, it is no defense that since the contract was entered into the property has greatly appreciated in value, where the payments were not delayed from motives of speculation.</p> <p>3. Appeal and Error — Reversal — Rendition of Judgment — -Rev. Stats. Ariz. 1901, par. 1591, Construed. — Paragraph 1591, supra, direetly provides that where, on a reversal of a cause, there is no matter of fact to be ascertained or damages to be assessed, and the. ■matter to be decreed is certain, judgment will be rendered by the appellate court.</p>

<p>1. Bills and Notes — Consideration—Pre-existing Indebtedness— Additional — Sufficiency.—Where defendants, a commercial firm, being indebted to plaintiff, executed notes to plaintiff for covering such indebtedness, it being agreed that defendants should be allowed to continue in business and dispose of their stock to pay other creditors, and that plaintiff should furnish them additional goods, such notes were based upon a valuable consideration.</p> <p>2. Mortgages — Equitable—Mortgagee a Bona Pide Purchaser.— Where plaintiff, a creditor of defendants, a commercial firm, permits them to sell the stock of goods to pay the other creditors, and agrees to furnish them additional stock, in consideration of which they agree to execute to plaintiff a mortgage on property belonging to some of defendants, equity, treating that as done which is agreed to be done, will hold plaintiff as an equitable mortgagee of that property.</p> <p>3. Same — Same—Same.—Where plaintiff, equitable mortgagee of defendants’ property, permits defendants to exchange that property free of encumbrance for the other property, defendants agreeing to execute a mortgage to plaintiff on the second property, plaintiff becomes the equitable mortgagee of the property received in exchange.</p> <p>4. Real Property — Exchange—Praud—Rescission—Bona Pile Purchaser. — Where property of which plaintiff is the equitable mortgagee is exchanged with plaintiff's consent and defendants’ agreement to give plaintiff a mortgage on the property acquired in exchange, and such legal mortgage is given and duly recorded, the party exchanging with defendants cannot rescind the transaction for fraud as against plaintiff, the latter being a purchaser for value in good faith, and the exchange being merely voidable and not void.</p>

<p>1. Appeal Amy Error — Assignments op Error — Sufficiency.—Assign-error that the court erred in the admission and rejection of -evidence by appellant offered, duly excepted to, aud iu the reception of evidence over his objection duly excepted to, because certain of the findings of the fact are inconsistent with, and not based ppon,^any evidence offered in the’trial of the said aetion; because ^ke findings of the fact do not cover any questions submitted to the trial court by which evidence and proof was offered; because, under ' fie iii' dings of the fact as made, the conclusion has been in favor / contestants and against the contestee, whereas they are made / and entered in favor of the contestee and against contestant; be- / cu:;*’ che evidence is insufficient to sustain certain findings of the ' fact as made; because the evidence, taken altogether, does not sustain the judgment rendered; because from the whole reeord and findings of the fact made from evidence the judgment of the court should have been in favor of the appellant and against the appellee, whereas it was by trial court rendered thereon in favor of the appellee and against appellant — are not sufficiently specific to be reviewed in the a ppellate court, not complying with the rules relating thereto.</p>

<p>APPEAL from a judgment of the District Court of the Second Judicial District, in and for the county of Cochise. Fletcher M. Doan, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the District Court of the Fifth Judicial District, in and for the County of Gila. Frederick S. Nave, Judge.</p> <p>Facts are stated in the opinion.</p>

Fletcher M. Doan, Judge. Proceedings in involuntary bankruptcy of the Black Dia-, mond Copper Mining Company. From orders disallowing claims filed by them Soto Brothers & Renaud and others appeal.

<p>APPEAL from a judgment of the District Court of the Fourth Judicial District, in and for the County of Yavapai. Richard E. Sloan, Judge.</p> <p>The facts are stated in the opinion.</p>

John H. Campbell, Judge. This case comes to this court upon an agreed statement of facts. The plaintiff in the court below filed his petition on October 23, 1907, under the provisions of Act No. 82, page 147, Session Laws of 1903, alleging that the defendant had failed to appoint an agent as provided by said act, and praying for its dissolution and disincorporation.

<p>1. Constitutional Law — Legislative Power — Delegation — Bule. Against — Applicable Both to Territorial and State Legislatures. — There is no distinction between the legislature of a territory and that of a state in regard to the power delegating legislative power to the people, neither one having such power in the. absence of express constitutional provision therefor.</p> <p>2. Same — Intoxicating Liquors — Local Option — Rev. Stats. Ariz. 1901, title 43, Construed. — Title 43, supra, provides that upon a petition being filed with the board of supervisors, signed by a certain number of voters, an election shall be ordered at which those in favor of the prohibition of the' sale of intoxicating liquors within the proposed limits shall vote “for prohibition” and those who oppose it “against prohibition,” and if a two-thirds majority of the votes cast favor prohibition, the board of supervisors shall make an order declaring the result and absolutely prohibiting the sale of intoxicating liquors within the prescribed limits. Held, that such submission of the question to popular vote does not constitute a delegation of the legislative power.</p> <p>3. Same — Same—Same—Same.—The fact that title 43, . supra, fixes no date for the election, and provides for no action under it until a petition shall be filed with the board of supervisors, does not render the act invalid as a delegation of the legislative power, inasmuch as the law was complete when passed and approved, and only needed the happening of certain contingencies to cause it to be applied.</p> <p>4. Same — Same—Same—Same.—The fact that the board of supervisors are authorized to canvass the votes, and if two-thirds are found to be in favor of prohibition to make an order declaring the result, and absolutely prohibiting the sale of intoxicating liquors within the prescribed limits, does not render the act invalid as a delegation of power to the board of supervisors to prohibit the sale, sinee in canvassing the votes and making the order the board merely acts as the agent of the legislature in ascertaining the happening of certain conditions and declaring the event upon which the expressed will of the legislature was to take effect.</p>

<p>APPEAL from a judgment of the District Court of the Third Judicial District, in and for the County of Maricopa. Edward Kent, Judge.</p>

<p>1. Assault with Intent to Commit Rape — Indictment—Sufficiency. Under the statutes of Arizona, rape is defined as “an act of sexual intercourse accomplished with a female not the wife of the perpetrator under either of” several circumstances, among them, “where she resists, but her resistance is overcome by force or violence.” An indictment for assault with intent to commit rape charged defendant with mating an assault upon prosecutrix with intent to commit rape upon her, and without her consent, by threats, force and violence, attempting to have sexual intercourse with her. Held, that said indictment does not charge a public offense, being defective in failing to charge .that the intent was to accomplish the act of sexual intercourse without prosecutrix’s consent and against her resistance, it being entirely consistent with the allegations of the indictment that the defendant may have attempted sexual intercourse with the woman without gaining her consent, but without an accompanying intention to press his force, threats or violence to the point of overcoming her active resistance or even of overcoming her dissent.</p>