Volume 11 — Idaho Reports

<p>Foreign Corporations — Doing Business Within This State — Statute — Interstate Commerce — Piling Articles of Incorporation —Designating Agent Upon Whom Service of Process mat be Made.</p> <p>1. A foreign corporation that manufactures farm machinery in another state and sells the same to citizens of this state upon orders to be approved by it, taken either by a local or transient agent, and if-approved the machinery to be shipped into the state pursuant to such order, does not come within the provisions of section 2653 of the Revised Statutes as amended by act approved March 10, 1903 (Sess. Laws 1903, p. 49).</p> <p>2. Such corporation so making sales is not required by the provisions of said section to have a designated place of business in this state or to file its articles of incorporation with the' county recorder and Secretary of State, or designate an agent upon whom service of process may be made.</p> <p>3. Business conducted as shown by the facts in this ease is simply interstate commerce. It was intercourse and traffic resulting in the purchase and sale of farm machinery and not the “doing of business” within the meaning of that phrase as used in said section 2653, Revised Statutes.</p> <p>4. The legislature cannot impose conditions or limitations upon the right of a foreign corporation to make contracts in the state for carrying on interstate commerce between the states.</p> <p>5. The provisions of the above section were not intended to, and- do not, interfere, with interstate commerce, but apply only to corporations actually doing or conducting business within the state.</p> <p>6. A state législature is prohibited from placing any restrictions upon interstate eommeree; that power is reserved to Congress.</p> <p>(Syllabus by the court.)</p>

<p>Appeal from Judgment of District Court Rendered on Appeal from Order of Board of Commissioners — Piling Undertaking.</p> <p>1. The prosecution of an appeal from a judgment of the district court rendered on appeal from an order or decision of a board of county commissioners is governed by the general statutes on appeal, and an undertaking is essential to the validity of such appeal.</p> <p>2. Id. — A failure to give an undertaking on appeal in such case is fatal and the appeal will be dismissed.</p> <p>(Syllabus by the eourt.)</p>

<p>ORIGINAL application for a writ of mandate. Alternative writ issued and upon hearing writ quashed and action dismissed.</p> <p>In this matter the defendant has filed a demurrer to the petition of the petitioner and attacked the constitutionality of the act of the legislature under which he is acting as sheriff of the county of Clark, state of Idaho. In our judgment there is but one question for determination in this matter and that is, Has the legislature of the state of Idaho, under the constitution of our state, the right to abolish a county and create and organize others from such territory? The right of the legislature to abolish a county has been upheld by this court and by nearly all other courts of the Union. (Blaine County v. Heard, 5 Idaho, 6, 45 Pae. 890; People v. Alturas Co., 6 Idaho, 418, 55 Pac. 1067, 44 L. E. A. 122; Wright v. Kelly, 4 Idaho, 624, 43 Pac. 565; Division of Howard Coimty, 15 Kan. 194; State v. Hamilton, 40 Kan. 323, 19 Pac. 723; State v. Commrs. of Kiowa Co., 41 Kan. 630, 21 Pac. 601. Portwood v. Board of Supervisors, 52 Miss. 523; Coles c. Madison County, 1 IE. (Breese) 154, 12 Am. Dee. 161.) Section 2 of article 1 of our constitution also authorizes the abolition of a county and is in language as follows: “All political power is inherent in the people. Government is instituted for their equal protection and benefit, and they have the right to alter, reform or abolish the same, whenever they may deem it necessary; and no special privilege or immunity shall ever be granted, and may not be altered, revoked, or repealed by the legislature.” (State Bank v. Knopp, 16 How. (U. S.) 369-380, 14 L. ed. 977.) In the ease of Division of Howard County, 15 Kan. 215, the supreme court of that state took occasion to say: “In the case of Hunt v. Meadows, 1 Kan. 90, it was held that an act of the territorial legislature, passed after the state was admitted into the Union, destroying the county of Madison, was invafid.” In Iowa, in the case of Duncombe v. Prindle, 12 Iowa, 1, it was held that an act destroying the county of Humboldt was valid. And we think such acts are valid. Of course, when a county is destroyed, the county seat must go with it. The county seat of an old county need not be made the county seat of any new county, or indeed of any county, new or old, into which such county seat may be placed by a change of county lines, or by the creation of a new county. Where a new county, formed out of territory taken from an old county, includes within its limits the county seat of the old county, such place ceases to be the county seat of the old county, and does not become the county seat of the new county. (7 Am. & Eng. Ency. of Law, 2d ed., p. 1045, subd. 4; Attorney General v. Fitzpatrick, 2 Wis. 542.) The power to locate a county seat, in the first instance, belongs to the legislature, and it is not necessary that there should be any vote of the electors of the county upon the question. (7 Am. & Eng. Ency. of Law, 2d ed., 1013-1015; Doane v. Logan County, 3 Idaho, 38, 26 Pae. 167; Attorney General v. Iron County, 64 Mich. 607, 31 N. W. 539.) In County of Cherokee v. State, 36 Kan. 337, 13 Pac. 558, the supreme court of Kansas laid down the rule that in determining whether an act of the legislature is unconstitutional it is the duty of the courts to give such a construction to it, if possible, as will uphold the act. See, also, upon this branch of the case, Wright v. Kelly, 4 Idaho, 624, 43 Pae. 565; Bonhomme County v. Berndt, 15 S. Dak. 494, 90 N. W. 147; Cook v. Port of Portland, 20 Or. 580, 27 Pac. 263, 13 L. R. A. 533; Santo v. State, 2 Iowa, 165, 63 Am. Dec. 487; Town of McGregor v. Baylies, 19 Iowa, 43.</p> <p>The legislature cannot abolish a county or a county government. Section 1, article 18, of our state constitution provides: “The several counties of the territory of Idaho as they now exist are hereby recognized as legal subdivisions of this state.” (Lincoln Co. v. George, 3 Idaho, 108, 26 Pac. 983.) We are aware that the decisions of some of the states hold in direct terms that counties may be abolished at the legislative will. We have examined many of these cases and in no instance do we find a constitutional inhibition against such legislative abolition of counties similar to the one in our constitution. The legislature cannot remove the county seat from Rathdrum to Coeur d’Alene, as provided in this act, without a compliance with the requirements of section 2 of article 18 of the state constitution. The legislature cannot do indirectly that which it is forbidden to do directly. This is a rule dictated by reason, and supported by the highest authority. (Craig v. State, 4 Pet. 410, 7 L. ed. 903.) It will be noted that the constitutional inhibition against a legislative removal of the county seat without a vote of the people in Illinois is not nearly so exacting as section 2 of article 18 of our constitution. (See, also, James Go. v. Hamilton Go., 89 Tenn. 237, 14 S. W. 601, before cited.) The act in question is void and unconstitutional, because it does not lie within the power of the legislature to abolish a county organization or a county government. (James Go. v. Hamilton Go., 89 Tenn. 237, 14 S. W. 601; People v. Marshall, 12 111. 391.)</p>

<p>APPEAL from tbe District Court of Shoshone County. Honorable Ralph T. Morgan, Judge.</p> <p>An action to quiet title of certain premises in the plaintiffs. Judgment for plaintiffs.</p> <p>The authorities cited by appellants upon the points decided are found in the opinion.</p> <p>cites no authorities upon the points decided by the court not found in the opinion.</p>

Honorable Edgar C. Steele, Judge. Action to recover damages received in the fall of a defective scaffold. Judgment for plaintiff. Held: where the master employs competent workmen and provides suitable material for staging, and intrusts the duty of erecting the staging to the workmen, as a part of the work which they are engaged to perform, that he is not liable to one of the workmen for injuries resulting to one of them from the falling of the staging.

Honorable Ralph T. Morgan, Judge. Plaintiffs commenced an action to enjoin the deféndants from closing up a stairway in their building, and to restrain them from interfering with plaintiffs’ right of passage there-over, and to compel specific performance of a parol agreement for the grant of a perpetual easement for the use of such stairway. Judgment and decree were entered for the plaintiffs, from which defendants appealed.

<p>Trover — Conversion—Denial—Proof.</p> <p>1. Where a complaint contains the usual allegations in an action of trover and conversion and the conversion is denied by the answer, the question of whether the property referred to was converted by the defendants is directly put in issue, and the defendants may introduce any proof that would disprove the allegation of conversion.</p> <p>2. It may be shown in the defense that the plaintiffs authorized the defendants to sell the property alleged to have been converted and to account to them for the proceeds.</p> <p>(Syllabus by the court.)</p>

Honorable Ralph T. Morgan, .Judge. Judgment for the plaintiff. The facts are stated in the opinion. Respondent having recognized in his complaint the tax sale and tax deed, and alleging no defect in the same, nor in the proceedings on which they were based, is estopped from going back of the deed itself to attack these proceedings of the tax deed. The facts showing this validity should be pleaded. (21 Ency. of PI. & Pr. 487; 2 Estee’s Pleading, sec. 3738; 11 Am. & Eng.

Honorable Edgar C. Steele, Judge. An action to recover for an alleged deposit. Judgment for plaintiff. It is well settled that a party cannot make matter admissible in evidence by setting forth immaterial allegations in the complaint. Besides, the attention of the court is directed to the following authorities: Teutonia Loan etc. Co. v. Turrell, 19 Ind. App. 469, 65 Am.

Honorable Ralph T. Morgan, Judge. Action to restrain defendants from doing certain acts. The facts are stated in the opinion.

Honorable Edgar C. Steele, Judge. Appellant was informed against on the charge-of murder, and was convicted of murder in the second degree, and sentenced to imprisonment for life. From the judgment and an order denying his motion for a new trial he appealed. cite no authorities not found in the opinion on the points decided. All authorities by them cited are found in the opinion upon the point decided.

Honorable Edgar C. Steele, Judge. Defendant was convicted of the crime of rape.

Honorable Lyttleton Price, Judge. Action to recover damages under what is known as the two-mile limit law. Judgment for plaintiff. • The policy of the United States as to their public lands not only permits, but encourages, their use for the purpose of pasturing all kinds of livestock. This is the result of no recent legislation or declaration, but has been the settled policy of all departments of the government from our earliest history.

ORIGINAL proceedings in this court for a writ of mandate to compel tbe defendant to make the certificate required by the provisions of an act of the legislature approved March 8, 1903. Plaintiff contends that it is the duty of the accountants to certify what they find. (Idaho Laws 1903, p. 204, sees. 4, 5.) If they cannot agree upon all matters, each should certify to what he finds.

Honorable George H. Stewart, Judge. Motion to discharge an attachment. Motion denied. It was intended and contemplated by our code (Rev. Stats., sees. 4302, 4303) that the affidavit should be made simultaneously with the commencement of the action, or after the action is commenced, and at the time of the issuance of the writ. The conditions upon which the writ issues must be shown to exist at that time.

Honorable George H. Stewart, Judge. The district court dismissed an appeal taken from a justice’s court and from the judgment of dismissal the appellant appealed to the supreme court. “Sec. 4842.

Honorable Lyttleton Price, Judge. Defendant was' convicted of the crime of grand larceny and sentenced to imprisonment in the state penitentiary for a term of four years. ' From the judgment and an order denying his motion for a new trial, defendant appeals. The jury separated after the case was finally submitted to them for consideration, and after they had retired to deliberate upon their verdict.

<p>APPEAL .from tbe District Court -of Nez Perce County. Honorable Edgar C. Steele, Judge.</p> <p>Judgment for the respondent from which, and an order overruling a motion for new trial, plaintiff appeals.</p> <p>The facts are stated in the opinion.</p> <p>The language of the provision of the bond is, “That said surety shall be notified in writing of any act on the part of the said principal, or his agent or employees, which shall involve a loss for which the said surety is responsible hereunder, immediately after the occurrence of such act shall have come to the knowledge of the duly authorized representative or representatives of the Regents of the University of Idaho. ’ ’ (.National Surety Go. v. Long, 125 Fed. 887, 60 C. C. A. 623.) The notice provided by the contract upon the default of the contractor is a condition precedent to the right of the respondent to recover upon the bond. (Guarantee Go. v. Mechanics’ Sav. Bank, 183 U. S. 402, 22 Sup. Ct. Rep. 124, 46 L. ed. 254; Imperial Fire Ins. Co. v. Coos County, 151 U. S. 452, 14 Sup. Ct. Rep. 379, 38 L. ed. 233.) The party to a contract of surety which commits the first breach is not entitled to recover of the other party for a subsequent failure on its part to perform. (Robson v. Bohn, 27 Minn. 333, 7 N. W. 357; Pope v. Porter, 102 N. Y. 366, 7 N. E. 305; Bice v. Fidelity etc. Co., 103 Fed. 427; Creswéll B. & C. Co.. v. Martindale, 63 Fed. 84; Filley v. Pope, 115 U. S. 213, 6 Sup. Ct. Rep. 19, 29 L. ed. 372.) The rule is firmly established that, where payments are to be made by installments, if the terms are not strictly complied with, the surety is discharged. The surety has the right to insist that payments be not made prematurely, that no variations be made without the consent of the surety, and if there are any made, the surety will be released. (Bell v. Paul, 35 Neb. 240, 52 N. W. 1110; Bragg v. Shain, 49 Cal. 135; Backus v. Archer, 109 Mich. 666, 67 N. W. 913; Kane v. Thuener, 62 Mo. App 69; Kissing v. ATlspaugh, 91 Cal. 231, 27 Pae. 655, 13 L. R. A. 418; Simonson v. Thori, 36 Minn. 439, 31 N. W. 861.) It is not sufficient that he may sustain no injury by a change in the contract, or that it may be for his benefit. He has the right to stand upon the very terms of his contract; and if he does not assent to any variation of it, and a variation is made, it is fatal, and courts of equity, as well as law, have been in the constant habit of scanning the contracts of surety with considerable strictness. (Tomlinson v. Simpson, 33 Minn. 422,. 23 N. W. 866; Fidelity & Deposit Co. v. Robertson, 136 Ala. 379, 34 South. 933; Wehrung v. Denham, 42 Or. 386, 71 Pac. 133; Cowdry v. Hahn, 105 "Wis. 455, 76 Am. St. Rep. 923, 81 N. W. 882; Peters v. Mackay, 20 Wash. 172, 54 Pae. 1122.) Appellant respectfully submits that the action of the court in permitting the witness Sherer to testify from catalogue and discount sheet prices was a gross infraction of the ruling prohibiting the admission of hearsay evidence; and the decision of the courts in this connection are so uniform and the rule itself is supported with so much reason that we believe this court will have no difficulty in deciding that the action of the trial court amounted to reversible error. (Whelan v. Lynch, 60 N. Y. 469; Cook County v. Harms, 10 111. App. 24; Vogt v. Cope, 66 Cal. 31, 4 Pac. 915; Nelson, Morris & Co. v. Columbian Iron Works etc., 76 Md. 354, 25 Atl. 417, 17 L. R. A. 851; O ’Brien v. Gallagher, 26 Misc. Rep. 838, 57 N. Y. Supp. 250; Norfolk & Western Ry. Co. v. Reeves, 97 Ya. 284, 33 S. E. 606; Deither v. Ferguson Lumber Co., 9 Ind. App. 173, 35 N. E. 843; Fairley v. Smith, 87 N. C. 367, 42 Am. Rep. 522.)</p> <p>Testimony as to the market value of goods from one who has been engaged in' the business of buying and selling such goods in connection with his business for a number of years is admissible, even though it appear that he bases his estimates on price lists, such as market lists furnished to him by dealers, viz., such market lists as dealers are governed by in their transactions. (Sirrine v. Briggs, 31 Mich. 443; Cliquot’s Champagne, 3 Wall. 114, 18 L. ed. 116; Republican Newspaper Co. v. Northwestern Associated Press, 51 Fed. 377, 2 C. C. A. 282; Whitney v. Thatcher, 117 Mass. 523; Harrison v. Glover, 72 N. Y. 451; Fennerstein’s Champagne Case, 3 Wall. 145, 18 L. ed. 121, and footnotes; Sisson v. C. & T. B. B. Co., 90 Am. Dee. 252, and notes.) The Champagne cases were explained and approved by Field, J., in Chaffee v. United States, 18 Wall. 516, 21 L. ed. 908.</p>

<p>Miner’s Lien — Record Title to Mines — True Owner Estopped by Conduct prom Asserting Title — Findings Must be Liberally Construed.</p> <p>1. Under the recording laws of this state a public reeord is an available, convenient and ready means of information as to all such questions touching the title to real property as are required to be made a matter of reeord.</p> <p>2. As a general rule, a person may rest upon the constructive notiee which the reeord of his title imparts, and he is under no duty or obligation to give any other notiee to anyone who assumes to deal with other parties in reference to such property.</p> <p>3. Id. — He may, as a general proposition, remain silent and passive.</p> <p>4. On the other hand, whenever he becomes active, his actions, declarations and conduct with reference to his property and the title thereto must not be such as to deceive or mislead a reasonable person dealing with reference thereto or to deter, prevent or dissuade such person from examining the records and learning the true conditions of the title.</p> <p>5. Where F. gave to a corporation an option to purchase certain mines and mining property, and directed and caused the agent of the company to post a notice on the property, which notiee contained the statement that the company was the owner of the mines, and F. knew the contents of such notice and knew that miners and laborers were working in the mines and for the company upon the faith of such notice, and under the belief that they could have a lien on the property for their wages, and F. permitted such notice to remain on the property during all the times the men were so employed, and did not inform them of the true condition of the title, and the men knew that he was cognizant of the notice and its contents, he will be estopped to show his title as a defense to the assertion of their lien.</p> <p>6. The appellate court will give to the findings of the trial court the most liberal construction the language used will permit in order to sustain a judgment founded thereon.</p> <p>(Syllabus by the eourt.)</p>

<p>Incorporated Cities — Justice’s Precincts — Power of Board of Commissioners — Humber of Justices in Each Precinct — Review on Appeal — Quo Warranto — Statutory Construction.</p> <p>1. Under the provisions of subdivisions 2 and 3 of section 1759 of the Revised Statutes, a board of county commissioners has he power to establish, abolish and change justices' precincts in incorporated cities.</p> <p>2. That provision in section 11 of an'act approved Pebruary 25, 1891 (Sess. Laws 1891, p. 60), which provides that there shall be at each general election two justices of the peace elected in each justice’s precinct “except wards in incorporated cities” does not prohibit th.- proper board of county commissioners from establishing justice’s precincts within such cities and the election of two justices of the peace in each of such precinets.</p> <p>3. If the board of county commissioners has jurisdiction to create justices precinets within the limits of an incorporated city, and does so, its action can only be reviewed by appeal.</p> <p>'4. Where the action of a board of county commissioners is only voidable, a review thereof must be had by appeal. Such action will not be reviewed on a proceeding in the nature ox quo warranto.</p> <p>5. Where a portion of an ordinance of a board of county commissioners is invalid, and the valid portion contains the essential elements of a complete ordinance, the invalid portion may be rejected and the remainder stand valid and operative.</p> <p>(Syllabus by the eourt.)</p>

Honorable Lyttleton Price, Judge. Action to compel performance of contract. Judgment for plaintiff. The facts in regard to the Chinaman’s lease and the purchase of this property by Greenburg are as follows: On the eighth day of September, 1897, the defendant rented this property to Lou Sing Lee for a term of ten years, and he went into possession thereunder and conducted, and still conducts, a Chinese laundry thereon.

Honorable James M. Stevens, Judge. Defendant was found guilty of practicing medicine and surgery without having a license under the provisions of the law of 1899.

<p>APPEAL from the District Court in and for Washington County. Honorable Frank J. Smith, Judge.</p> <p>From an order made and entered dissolving an attachment, the plaintiff appeals.</p> <p>Under an identical statute and an identical case with the one at bar, Eads v. Kessler, 121 Cal. 244, 53 Pae. 656, the supreme court of California says: “It is to be observed that the existence of a vendor’s lien always presupposes that the title of the goods has passed to the vendee, since it would be an incongruous conception that the vendor might have a lien upon his own goods. If it has been held that one who makes a written executory contract to sell his real property has a lien for the payment of the purchase money, it is because the other party to such contract is held to have an equitable estate in the land; but we have been referred to no cases which hold there is such a lien upon personal property where there is a mere agreement to sell.” (Tiedeman on Sales, sec. 119; 21 Am. & Eng. Ency. of Law, 1st ed.; Jones on Liens, see. 820; William v. Friedman, 3 Idaho, 734, 35 Pae. 37; Gessner v. Palmateer, 89 Cal. 89, 24 Pae. 608, 13 L. R. A. 187.) A vendor’s lien is not assignable. (Baum v. Grig shy, 21 Cal. 172, 81 Am. Dec. 153; Lewis v. Covilland, 21 Cal. 178; Williams v. Young, 21 Cal. 227; Avery v. Clark, 87 Cal. 619, 22 Am. St. Rep. 272, 25 Pac. 919; Shall v. Biscoe, 18 Ark. 142; Keith v. Horner, 32 111. 524; Dixon v. Dixon, 1 Md. (Ch.) 220; Hammond v. Peyton, 34 Minn. 529. 27 N. W. 72; Skaggs v. Nelson, 25 Miss. 88; Smith v. Smith, 9 Abb. Pr., N. S., 420; Jackman v. Hallock, 1 Ohio, 318; First Nat. Bank v. Salem F. Mills (Or.), 39 Fed. 89.)</p> <p>The contract between respondent and Spaulding Manufacturing Company has all the features of, and interpreted in the light of an overwhelming line of decisions thereon must be construed as one of, a conditional sale, reserving to the seller the title to the goods sold as security for the payment of the purchase price thereof. It has been repeatedly held by the supreme court of Idaho that such a lien prevents the issuance of an attachment, and that same is within the provisions of section 4303, Revised Statutes. (William v. Friedman, 3 Idaho, 734, 35 Pae. 37; Mark Means Transfer Co. v. MacKinzie, 9 Idaho, 165, 73 Pae. 137; Matterson v. Equitable Min. etc. Co., 143 Cal. 436, 77 Pac. 144; Vollmer v. Spencer, 5 Idaho, 557, 51 Pac. 609; Standard Steam Laundry v. Dole, 22 Utah, 311, 61 Pac. 1103.) A vendor may assign his claim to the property sold conditionally, and his assignee acquires the same rights therein as the vendor had, and the vendor in such ease loses all his interest in the property. (Boss-Meehan etc. Foundry Co. v. Pascagoula Ice Co., 72 Miss. 608, 18 South. 364; 6 Am. & Eng. Ency. of Law, 2d ed., 485; W. W. Kimball Co. v. Mellon, 80 Wis. 133, 48 N. W. 1100; Bodgers v. Bachman, 109 Cal. 552, 42 Pae. 448; Matter-son v. Equitable Min. etc. Co., 143 Cal. 436, 77 Pac. 144.)</p>

<p>ORIGINAL proceedings for writ of mandate.</p>

<p>Becord on Appeal — Judgment-roll—What It Shall Contain — Motion to Strike Sustained When.</p> <p>1. On appeal from a judgment without a statement or bill of exceptions, nothing belongs to the reeord except the judgment-roll and no question outside of the reeord can be considered by the court.</p> <p>2. On appeal from a judgment the judgment-roll consists of the pleadings, a eopy of the verdict of the jury, or findings of the eourt or referee, all bills of exceptions taken and filed and a eopy of any order made on demurrer or relating to any change of parties, and a eopy of the judgment. (Bev. Stats., sec. 4456, subd. 2.)</p> <p>3. A motion will be sustained to strike from the reeord on appeal from a judgment any papers, records, or a: ie- thereof which, under the provisions of subdivision 2, section 4456, Bevised Statutes, have no place in the judgment-roll.</p> <p>(Syllabus by the court.)</p>

cite no authorities not found and commented upon in the opinion upon the points decided. cite no authorities not found in the opinion.

<p>Criminal Law — The Sale of Pish — Private Ponds.</p> <p>1. Under the provisions of section 3 of an act commonly known as the fish and game law (Sess. Laws 1905, p. 258), a person or corporation may establish a private pond to propagate fish in water on premises of his own, where food fishes do not naturally abound, and may propagate and grow fish therein as provided by said section, and may sell the same himself directly to the consumer.</p> <p>2. Under the provisions of said act, it is made a misdemeanor for any person or persons not the owner of sueh pond to sell or offer for sale any fish protected by said act.</p> <p>3. Under the provisions of said act, it is made a misdemeanor for any person or persons, railway, express company, stage line, or other common carrier, or any of their agents or employees to transport or receive, or to have in his, its or their possession any speeies of fish protected by said aet, for the purpose of transporting the same or for the purpose of offering or permitting the same to be offered for sale.</p> <p>4. Under the stipulated facts, the ponds from whence the fish in question were taken are not private ponds within the meaning of the provisions of said section 3.</p> <p>(Syllabus by the court.)</p>

<p>Injunction Pendente Lite — Corporation Restrained prom Selling Stock on assessment.</p> <p>1. Complaint and counter-affidavit examined and held that they constitute a sufficient showing to warrant the trial judge in exercising his discretion in favor of the granting a temporary injunction pending a determination of the case on its merits.</p> <p>2. Where the proposed action of a corporation to sell the stock of an insane stockholder for the payment of an assessment is founded upon and instigated by the wrongful aets and conduct of a person who controls a majority of the capital stock, and a part of the stock going to make up such majority was procured by such person from the insane stockholder, and a cause of action for fraud and wrongful conduct is charged against the person so controlling a majority of the stoek, a temporary restraining order against the corporation making such sale is incidental to the main action and is a proper relief to be granted in the sound discretion of the court until the case can be heard on its merits.</p> <p>(Syllabus by the court.)</p>

<p>A Judgment Rendered on the Verdict of a Jury Pinal When — Instructions to the Jury — Exceptions to Instructions.</p> <p>1. Where it is shown that a material and substantial conflict in the evidence oceurs on the trial, the question or preponderance of evidence does not enter into the determination of the appeal in this court; the jury being the judges of the evidence and the weight to be given to it, the verdict and the judgment therein will be sustained.</p> <p>2. Where the court instructs the jury on all the material issues involved as presented by the pleadings, and disclosed by the evidence, it is not error to refuse a request of either plaintiff or defendant unless it is shown that the instructions, or some portions of them, are erroneous.</p> <p>(Syllabus by the court.)</p>

Honorable Lyttleton Price, Judge. Appellants commenced an action to quiet title and settle the rights to the use of the waters of the Malad river. Certain of the defendants demurred and the demurrer was sust .ined, and judgment of dismissal was thereupon entered, from which judgment plaintiffs appeal.

APPLICATION in an action by tbe Cbemung Mining Company against Kennedy J. Hanley for the appointment of receiver pending tbe litigation. file no brief. file no brief.

Honorable R. T. Morgan, Judge. Action to determine the validity of the issue of certain county bonds. Judgment for plaintiff. No briefs filed.

Honorable George H. Stewart, Judge. Action by A. J. Turley and others against J. K. Dubois. Held: that the lien of the mortgage was superior to the mechanic’s lien, unless the plaintiff, at the time he commenced the work, had no notice of the existence of the mortgage.” (.McClain v. Hutton, 131 Cal. 144, 61 Pae. 273, 63 Pac. 182.) In the case of Home Bav. etc. Assn. v. Burton, 20 Wash. 688, 56 Pac. 940, the supreme court of the…

<p>APPEAL from District Court of Kootenai County. Honorable Ralph T. Morgan, Judge.</p> <p>Action to set aside and annul a judgment of the district court. Demurrer to complaint sustained.</p> <p>The demurrer to the complaint was not well taken. The complaint states a perfect cause of action for relief in equity. The facts stated 'ppeal, in this age, to equity. They invoke the maxim “Equity will not suffer a wrong without a remedy.” The theory of equitable interference with judgments is that, from certain equitable circumstances of which a court of equity has cognizance, it is against conscience that the party should proceed. (Story’s Equity Jurisprudence, secs. 875, 884.) There is no justice in permitting one party to obtain an undue advantage over another through the neglect or misconduct of that other’s attorney. Courts of law are not tc be used by parties in perfecting, through the forms of law, the ruin of a party who has employed a negligent cr unworthy attorney. (Sharp v. Mayor, 19 How. Pr. 193.) That the plaintiff in this action would be justified in proceeding with his remedy against his attorney; but the rule is now settled, and it is a just rule and practice, for the court to relieve the client without reference to the responsibility of his lawyer. (And see Bean v. Maher, 1 Daly (N. Y.), 440; Elston v. Shilling, 7 Rob. (N. Y.) 74. For earlier eases, see Neele v. Berry-hill, 4 How. Pr. 16; King v. Harris, 34 N. Y. 330; Milleman v. Mayor, 18 How. Pr. 543; Jellinghaus v. New York Ins. Go., 5 Bosw. 678. For later cases, see McGredy v. Woodcock, 41 App. Dec. 526, 58 N. Y. Supp. 656. For holdings in other states, see Taylor v. Pope, 106 N. C. 267, 19 Am. St. Rep. 530, 11 S. E. 257; Gwathney v. Savage, 101 N. C. 103, 7 S. E. 661; Searles v. Christiansen, 5 S. Dak. 650, 60 N. W. 29; O’Brien v. Leach, 139 Cal. 220, 96 Am. St. Rep. 105, 72 Pae. 1004.) Within the code rule, as embodied in the Idaho statute, a party is precluded from applying to vacate the original judgment, after six months from its entry. {Jellinghause v. New York Ins. Go., 5 Bosw. 678.) It will be seen by the complaint that appellant is the victim of a gross fraud, practiced by his own attorney, and that the attorney is irresponsible. The whole complaint shows that the damages cannot be computed. No case can be lound and no boob can be found in which the right to equitable relief is denied in such a case. “Fraud” is one of the words used in the code as a ground for relief. (Idaho Rev. Stats., sec. 4229.) For grounds of demurrer to a complaint under the code, see Revised Statutes of Idaho, section 4174; Code of Civil Procedure, section 3205. It would not seem to be necessary to argue in this age that no grounds of demurrer exist save such as the code prescribes. The pleadings are arbitrarily prescribed and limited by the code. (Idaho Rev. Stats., secs. 4161, 4162; Idaho Rev. Stats., chapters 2-7.) The authority to demur to a complaint is entirely derived from, and wholly depends upon, sections 4161-4174. (De Witt v. Swift, 3 How. Pr. (N. Y.) 280.) “A demurrer is allowed only where the ground of objection appears upon the face of the complaint. Unless the objection so appears, it is no ground for a demurrer.” (Wilson v. Mayor etc., 15 How. Pr. (N. Y.) 500.) The last quotation only reflects the language of section 4174, Idaho statutes, whieh allows a demurrer to a complaint “when it appears on the face thereof.” (Struver v. Ocean Ins. Co., 16 How. Pr. (N. Y.) 422.) The defects for whieh a demurrer will lie are named in the statute, and none other can be reached by it. (Bliss on Code Pleading, 3d ed., see. 404; Marie v. Garrison, 83 N. Y. 14; Pomeroy’s Code Remedies, 3d ed., sec. 515, citing many authorities.) The order striking out the complaint in intervention was without authority of law and in effect an unwarranted exercise of judicial power. The state of Idaho intervened as prescribed in section 4111 of the statute. Consequently, the filing of its complaint made the state a party to the action precisely the same in all respects as if the state had been brought in by the original summons. The only power the court thereafter had was to treat the state of Idaho as a defendant; and the only rights the respondent had was to “answer or demur [to the complaint in intervention] as if it were an original complaint.” (Rev. Stats., sec. 4111.) The state was not only a “proper,” but was a “necessary,” party in order to obtain a final determination of the controversy in the United States supreme court. {Wheeling Bridge Case, 54 U. S. 518, 14 L. ed. 249; Willamette etc. v. Hatch, 125 U. S. 17, 9 Sup. Ct. Rep. 811, 31 L. ed. 634.)</p> <p>It will be seen by an inspection of the complaint that it clearly appears therefrom that the matters and things in controversy in this action have been heretofore adjudicated in the same district court, in an action between the same parties, and that all of the issues raised by the complaint in this action were raised in said former action, or should have been raised therein. Respondents contend that the matter has been adjudicated and finally determined, and that the decision of the district court in the former action, which was affirmed in this court by the dismissal of appellant’s appeal in said former action, is the settled law of this case. “A judgment is conclusive upon all questions involved in the action and upon which it depends, and upon matters which, under the issues, might have been litigated and decided in the case; and the presumption of law is, that all such issues were actually heard and decided.” (Parnell v. Halm, 61 Cal. 131;McLennan v. McDonnell, 78 Gal. 275, 20 Pac. 566 ¡Benson v. Shotwell, 87 Cal. 49, 25 Pac. 249.; “The judgment of a competent court is conclusive in a subsequent action between the same parties for the same thing, although it be palpably erroneous.” ('Wolverton v. Baker, 86 Cal. 591, 25 Pac. 54; Hardy v. Hardy, 97 Cal. 125, 31 Pac. 906.) “It may be stated, as a general proposition, that a judgment is conclusive, not only as to the subject matter in controversy in the action upon which it is based, but also in all other actions involving the same question, and upon all matters involved in the issues whieh might have been litigated and decided in the case; the presumption being that all such issues were clearly made and decided.” (Crew v. Pratt, 119 Cal. 149, 51 Pac. 38, citing the following authorities, to wit: Freeman on Judgments, sec. 523; Lillis v. Emigrant Go., 95 Cal. 553, 30 Pac. 1108; Howell v. Budd, 91 Cal. 342, 27 Pac. 747; Burris v. Kennedy, 108 Cal. 338, 41 Pae. 458; Estate of Hudson, 63 Cal. 454, 457. The former judgment of a court having jurisdiction over the subject matter and the parties, is a bar to a second suit upon the same cause of action between the same parties, or their privies, and is conclusive, not only upon every question involved therein and thereby determined, but also as to every other matter which the parties might have litigated in the ease and which they might have had decided. (Gray v. Dougherty, 25 Cal. 266; Wilson v. Buell, 117 Ind. 315, 20 N. E. 231; Parker v. Obenchain, 140 Ind. 211, 39 N. E. 869; People v. Holliday, 93 Cal. 242, 27 Am. St. Rep. 186, 29 Pae. 54; 2 Ency. of PI. & Pr. 373-381; Case v. Beaurgard, 101 U. S. 692, 25 L. ed. 1004; 9 Notes on United States Reports, 1016, citing cases.) Testimony cannot bo introduced to show that a former judgment between the same parties upon the same subject matter was erroneous. (Marshall v. Shafter, 32 Cal. 178.) Rule applies even where jurisdiction of court is involved. (Washington Bridge Co. v. Stewart, 3 How. (U. S.) 413,-11 L. ed. 658; 4 Notes on United States Reports, 433.) “Where an appeal discloses that the same subject matter has been litigated between the same parties in a prior suit, and that in the said suit tlu plaintiff in this suit had set up the same equity which he claims by this appeal, the appeal was ordered to be dismissed.” (Barnett v. Kilbourne, 3 Cal. 327.) “The dismissal of an appeal is in effect an affirmance of the judgment or order appealed from, unless the dismissal is expressly made without prejudice to another appeal.” (Idaho Rev. Stats., sec. 4823.) “A dismissal of an appeal for failure to file transcript is a bar to another appeal, unless such dismissal is made without prejudice to a second appeal.” (Fahey v. Belcher, 3 Idaho, 355, 32 Pac. 1135; Idaho Rev. Stats., see. 4184, subd. 1.) “If the defendant omitted to set up a counterclaim in the cases mentioned in the first subdivision of the last section (4181), neither he nor his assignee can afterward maintain an action against the plaintiff therefor.” (Idaho Rev. Stats., sec. 4185; Stevens v. Savings & Loan Assn., 5 Idaho, 741, 51 Pac. 779, 986.) The contention of appellant that there was a defect of parties in said former action, even if well founded, is made too late, as the objection should have been made by demurrer to the complaint in the former action. (Idaho Rev. Stats., see. 4174, subd. 4.) The statute authorizes intervention. (Idaho Rev. Stats., sec. 4111.) The statutes use the word “person” only, and the respondents contend that this statute does not apply to the state, which is a sovereign power. “The word ‘person,’ when used in a statute, does not include the state.” (McBride v. Board of Conwirs., 44 Fed. 18; In re Fox, 52 N. Y. 535, 11 Am. Rep. 751; United States v. Fox, 94 U. S. 315, 24 L. ed. 192; United States v. Railroad Go., 17 Wall. 328, 21 L. ed. 601; Alabama Certificates, vol. 12; Opinions Attorneys General, 176, 277; Taxation of Railroads, vol. 12; Butler v. Merritt, 113 Ga. 238, 38 S. E. 751; Dollman v. Moore, 70 Miss. 267, 12 South. 23, 19 L. R. A. 222; Whittalcer .v. County of Tuolumne, 96 Cal. 100, 30 Pac. 1016; Brown v. Saul, 4 Mart., N. S. 434, 16 Am. Dec. 175, note, 180; Garraby v. Morgan, 5 Mart., N. S., 501.) The interest which entitles a person to intervene in a suit between other parties must be in the matter in litigation, and of such a direct and immediate character that the intervener will either gain or lose by the direct legal operation and effect of judgment. (Isaacs v. Jones, 121 Cal. 257, 53 Pac. 793, 1101; Peachy v. Witter, 131 Cal. 316, 63 Pac. 468; People v. Green, I Idaho, 239; ' Horn v. Water Go., 13 Cal. 62, 73 Am. Dec. 569; Smith v. Gale, 144 U. S. 509, 12 Sup. Ct. Rep. 674, 36 L. ed. 521; Notes on California Reports, 578; 17 Am. & Eng. Eney. of Law, 2d ed., 185.)</p>

<p>Receivers — Powers and Duties of Receivers — Right to Garry on Business of a Private Corporation — -Prior Lien for Debts Contracted by Receiver — Authority of Courts of Equity to Direct Working of Placer Mines — Attorney Pees Paid by Receiver.</p> <p>1. A court of equity has no authority to direct its receiver in charge of placer mines to carry on a general mining business and charge the expenses of the business and operations as a prior and preferred lien against the property over that of prior recorded mortgages and encumbrances on the same property.</p> <p>2. A receiver in charge of the property of a corporation has no authority to carry on the business of the corporation unless he be so authorized and directed by the court.</p> <p>3. Courts of equity have the power and authority to appoint receivers of property and direct them to care for, protect and preserve the property and deeree the charges and expenses therefoT as prior and preferred liens to that of all other liens, mortgages or encumbrances, and to direet the property sold for the payment of the same.</p> <p>4. Where a receiver has failed to keep correct accounts of the business and transactions of the receivership estate, and has failed to take vouchers for numerous and large sums of expenditure and has made large overcharges and false charges for sums claimed to have been expended by him, and has been generally reekless in his expenditures in connection with the trust and in the employment of servants, and has shown a general disregard for the trust he has assumed, a court of equity will refuse to allow him any salary or compensation for services as receiver.</p> <p>. 5. A receiver is not entitled to allowance for fees paid attorneys for making his reports, narrating his acts, receipts and expenditures as receiver and prosecuting claims against the estate he represents for his own compensation and for the allowance of sueh attorney fees.</p> <p>6. Id.— Tn such case the service constitutes a part of the duties of the receiver, and the charge is a personal expenditure and should be borne by the receiver individually.</p> <p>(Syllabus by the court.)</p>

APPLICATION by the state board of equalization for a peremptory writ of mandate against the board of commissioners of Nez Perce county, compelling and requiring said board of commissioners to make a sufficient tax levy to raise the county’s proportion of state revenue and for special levies on account of certain bonds issued.

<p>This is a companion case of Gooding v. Proffitt, the facts being substantially the same.</p>

Honorable Edgar C. Steele, Judge. Action to restrain the issuance of certain city .bonds. Judgment for the city. The facts are stated in the opinion. The first question presented by appellant is: Is the said defendant, the city of Lewiston, a legal municipal corporation of the state of Idaho? This is sufficiently answered by this court in the case of Wiggin v. City of Lewiston, 8 Idaho, 527, 69 Pac. 286.

Honorable Ralph T. Morgan, Judge. Plaintiff, the Sand Point Water and Light Company, commenced an action against the defendant, Panhandle Development Company, praying an injunction against the defendant to restrain and enjoin defendant from diverting the waters of Switzer and West Sand creek, or in any manner interfering with them or depriving plaintiff of the use thereof.

ORIGINAL action for a writ of prohibition. cites no authorities not cited in the opinion. cites no authorities not cited in the opinion.

<p>APPEAL from District Court in and for Nez Perce County. Honorable Edgar C. Steele, Judge.</p> <p>Defendant was informed against and charged with the commission of the crime of burglary. From a judgment of conviction and an order denying a motion for a new. trial defendant appealed.</p> <p>Each essential link in the chain of circumstances is the rule where the evidence is entirely circumstantial. (People v. Phipps, 39 Cal. 326; People v. Ah Chung, 54 Cal. 403; People v. Smith, 106 Cal. 73, 39 Pae. 40; Schusler v. State, 29 Ind. 394; 23 Ency. of Law, 2d ed., 951; 1 Greenleaf on Evidence, sec. 34.)</p> <p>The facts proven are, in the light of the cases, entirely sufficient to sustain the verdict. As bearing out this contention, we call the court’s attention to a number of cases involving somewhat similar circumstances. (People v. Sears, 119 Cal. 267, 51 Pac. 325 (a case somewhat analogous to the one under consideration); People v. Arthur, 93 Cal. 536, 29 Pac. 126; Harris v. State, 84 Ga. 269, 10 S. E. 742; People v. Wood, 99 Mich. 620, 58 N. W. 638; Burks v. State, 92 Ga. 461, 17 S. E. 619; Gregory v. State, 80 Ga. 271, 7 S. E. 222; State v. Tucker, 36 Or. 291, 54 L. R. A. 247, 61 Pac. 894; Magee v. People, 139 111. 138, 28 N. E. 1077; Harris v. State, 61 Miss. 304; Davis v. State, 76 Ga. 16; State v. Moore, 117 Mo. 395, 22 S. "W. 1086.) Possession of stolen property, together with other evidence, is uniformly held to be sufficient to justify a conviction. (Byan v. State, 83 Wis. 486, 53 N. W. 836.)</p>

Honorable Ralph T. Morgan, Judge. Defendant moved on affidavits for an order vacating and setting aside a default judgment. Motion was granted and plaintiffs appealed. In order to set aside a judgment rendered on default, it must be shown that the default occurred through mistake, inadvertence, surprise or excusable neglect, and that the defendant has a meritorious defense.

Honorable Edgar C. Steele, Judge. An erroneous instruction containing a plain statement of an incorrect principle of law is not cured by other instructions.

Honorable Edgar C. Steele, Judge. Where a warranty deed and the agreement to reeonvey were given at the same time upon said date between the same parties for the same consideration and upon the same land, they constitute a mortgage.

Honorable George H. Stewart, Judge. Proceedings to determine the validity of the organization of the Nampa and Meridian Irrigation District, and the validity and legality of a certain bond issue, and for confirmation of all proceedings connected therewith. Judgment for plaintiff and respondent. The facts are stated in the opinion.

Honorable Edgar C. Steele, District Judge. Defendant was convicted of the crime of embezzlement and appealed from tbe judgment and order overruling motion for a new trial. The facts are stated in the opinion. The information is insufficient, as it should have alleged the facts. (People v. Scott, 74 Cal. 94, 15 Pae. 384; Duncan v. State (Tex. Cr.

Honorable Edgar C. Steele, Judge. Judgment for defendants, from which plaintiffs appeal. The facts are stated in the opinion. Equity has the power to set aside .the judgment or decree of any court. (Pomeroy’s Equity Jurisprudence, see. 919.) Whenever a judgment or decree of any court has been obtained by fraud, the fraud is regarded as perpetrated upon the court, and equity will cancel it.

Honorable Ralph T. Morgan, Judge. Action to recover damages for injury to person and property. Judgment on demurrer for defendant. The facts are stated in the opinion. cites no .authorities on the points decided other than those considered in the opinion. It is the duty of the plaintiff to allege in his complaint the .relation existing between the parties, and to show in what manner the one is liable for the act of the other.

<p>APPEAL from the District Court in and for Kootenai County. Honorable Ralph. T. Morgan, Judge.</p> <p>Action by plaintiff to have canceled an assessment against certain property and to enjoin the collection of a tax assessed thereon. Judgment for defendant and plaintiff appealed.</p> <p>The facts are stated in the opinion.</p> <p>No part of the public domain is taxable by the state, and , land is not severed from the public domain until at least the equitable title has passed to the individual and his right to a patent is complete. •(Kansas etc. By. Co. v. Prescott, 16 Wall. 603, 21 L. ed.. 373; Union Pac. By. Co. v. McShane, 22 Wall. 444, 22 L. ed. 747; Hussman v. Durham, 165 U. S. 144, 17 Sup. Ct. Rep. 253, 41 L. ed. 664; Cooley on Taxation, 3d ed., 135; 27 Am. & Eng. Ency. of Law,.2d ed., 644, subd. “C,” and notes 3 and 4, with numerous cases cited; Rose’s Notes on U. S. Supreme Court Reports, 133, U. S. 496-514; Rose’s Notes on U. S. Supreme Court Reports, 16 Wall. 603-610.). Adopting as settled law, then, the proposition that the public domain is not taxable until the equitable title is fully vested in the individual, we reach the real question in this branch of the ease, viz.: When does the equitable title pass under a forest reserve lieu selection? In this connection we ask the court to examine the act of Congress authorizing these lieu selections. (Act of June 4, 1897, U. S. Comp. Stats. 3768, Rules 16 and 18. See 24 L. D. 589-592; Cosmos Expl. Co. v. Gray Eagle Oil Co., 190 U. S. 302, 23 Sup. Ct. Rep. 692, .24 Sup. Ct. Rep. 860, 47 L. ed. 1064; Wisconsin Central By. Co. v. Price County, 133 II S. 496, 10 Sup. Ct. Rep. 341, 33 L. ed. 687.) The decisions are uniform to the effect that the owner of land is not estopped from questioning an assessment where he has handed in a list, as in this ease, where such assessment is absolutely void. (See Charleston v. Middlesex, 109 Mass. 270; State v. Bur-rough, 174 Mo. 700, 74 S. W. 610; Chicago etc. By. Co. v. Cass Co., 51 Neb. 369, 70 N. W. 955; Centennial Eureka M. Co. v. Juab Co., 22 Utah, 395, 62 Pac. 1024; State v. Bellew, 86 Wis. 189, 56 N. W. 782; State v. Baker, 129 Mo. 482, 31 S. W. 924.) The effect of the assessment of appellant’s lands without notice to the company, and at such a time as to preclude all opportunity to contest such assessment before the board of equalization is sufficient to render it illegal. (Cooley on Taxation, 3d ed., p. 624; Hagar v. Beclamation Dist., Ill U. S. 701, 4 Sup. Ct. Rep. 663, 28 L. ed. 569; Paulsen v. Portland, 149 U. S. 30, 13 Sup. Ct. Rep. 750, 37 L. ed. 637; Winona etc. L. Co. v. Minnesota, 159 U. S. 526, 16 Sup. Ct. Rep. 83, 40 L. ed. 247; Bellingham Bay Co. v. New Whatcom, 172 U. S. 315, 19 Sup. Ct. Rep. 205, 43 L. ed. 460; Stuart v. Palmer, 74 N. Y. 183, 30 Am. Rep. 289; County of San Mateo v. Southern Pac. By. Co., 13 Fed. 722; County of Santa Clara v. Southern Pac. By. Co., 18 Fed. 385; Hutson v. Woodbridge etc. Hist., 79 Cal. 90, 16 Pac. 549, 21 Pac. 435; Kuntz v. Sumpton, 117 Ind. 1, 19 N. E. 474, 2 L. R. A. 655; McEneney v. Sullivan, 125 Ind. 407, 25 N. E. 540; Ferry v. Campbell, 110 Iowa, 290, 81 N. W. 604, 50 L. R. A. 92.) This applies to subsequent assessments. (Winona etc. L. Co. v. Minnesota, 159 U. S. 526, 16 Sup. Ct. Rep. 83, 40 L. ed. 247; People v. Pittsburg By. Co., 67 Cal. 625, 8 Pac. 381.)</p> <p>The question which this court has to decide in this case is: “Can a person furnish a list of property for taxation, and afterward come in and enjoin the collection of the tax on the same, without showing some equitable grounds for their action?” (People v. Stockton etc. B. B. Co., 49 Cal. 414; San Francisco v. Flood, 64 Cal. 504, 2 Pae. 264; Am. & Eng. Ency. of Law, 2d ed., p. 671; In re Bank of Marion, 153 111. 516, 39 N. É. 118.) It is not even necessary that the statemen furnished by the taxpayer to the assessor should be verified. If he furnishes it for the purpose of assessment he is estopped just the same as if he had furnished a verified statement. (State v. Cooper, 59 Wis. 666, 18 N. W. 438-; Phelps Mtg. Co. v. Board of Equalization, 84 Iowa, 610, 51 N. W. 50; Lake Co. v. Sulphur Bank etc. Min. Co., 68 Cal. 14, 8 Pac. 593; People v. Atkinson, 103 111. 45; BepubUc Life Ins. Co. v. Poliak, 75 111. 292; American Union Exp. Co. v. St. Joseph, 66 Mo. 675, 27 Am. Rep. 382; Hubbard v. Windsor, 15 Mich. 146.) A party asking for relief from an improper assessment in view of taxation must show equity in his behalf and not attempt to evade just taxation. (Steele v. Hunham, 26 Wis. 393.) The appellant corporation contends that the state has no right to tax its property as property which has escaped taxation. We cité the following authorities to sustain the respondent’s position in this contention: 27 Am. & Eng. Ency. of Law, 2d ed., 698. The county had the right to assess property originally omitted from the tax-roll. (Oregon etc. B. Go. v. Lane Co., 28 Or. 386, 31 Pac. 964; Banip v. Marion Co., 24 Or. 461, 33 Pac. 681; Kirkwood v. Ford, 34 Or. 552, 56 Pac. 411; Albany Mut. Bldg. Assn. v. City of Laramie, 10 Wyo. 54, 65 Pac. 1011; Aggers v. People, 20 Colo. 348, 38 Pac. 386; United States Trust Co. v. Territory, 10 N. Mex. 416, 62 Pae. 987; Sellers v. Barrett, 185 111. 466, 57 N. E. 422; People v. Sellars, 179 111. 170, 53 N. E. 545; Crowder v. Biggs, 153 Ind. 158, 53 N. E. 1019; Beynolds v. Bowen, 138 Ind. 434, 36 N. E. 756, 37 N. E. 962; City of Delphi v. Bowen, 138 Ind. 235, 36 N. E. 761; Louisville Water Co. v. Commonwealth, 18 Ky. Law Rep. 2, 34 S. W. 1064; State Tax Commrs. v. Assessors, 124 Mich. 491, 83 N. ~W. 209; Eldhorn Land etc. v. Dixon Co., 35 Neb. 426, 53 N. W. 382; Kink v. Parker, 73 Iowa, 757, 34 N. W. 451; Cedar Bapids etc. By. Co. v. Carroll Co., 41 Iowa, 153.) Now the appellant further contends that notice must be given before property can be taxed. My answer to that question is, that where, as in this ease, the property had never been given into the assessor in time for assessment, section 53 of the Session Laws of 1901, page 250, is a standing notice to such property owner to appear at that time and see that his property is properly assessed and valued, or to waive his rights in this regard. For further authorities in this regard, we cite Oregon etc. Co. v. Lane Co., 23 Or. 386, 31 Pac. 964; Bamp v. Marion Co., 24 Or. 461, 33 Pac. 681; Kirkwood v. Ford, 34 Or. 552, 56 Pac. 411; Oregon etc. Sav. Bank v. Jordan, 16 Or. 113, 17 Pae. 621; 27 Am. & Eng. Ency. of Law, 707; Erwin v. Hubbard, 4 Idaho, 170, 37 Pac. 274. The allegation of the appellant that the assessment was unequal and unjust as to it is not sufficient. (State v. Sadler, 21 Nev. 13, 23 Pae. 799; Albuquerque Bank v. Perea, 147 U. S. 87, 13 Sup. Ct. Rep. 194, 37 L. ed. 91; National Bank v. Kimball, 103 U. S. 732, 26 L. ed. 469; Wagoner v. Loomis, 37 Ohio St. 571-583.)</p>

County. Honorable Edgar C. Steele, Judge. Defendant John Knudtson was charged by information jointly with one Fred Hanning with the crime of arson. From a judgment of conviction and an order denying his motion for a new trial, defendant appealed. The facts are stated in the opinion. One who has been jointly indicted with a defendant and has entered a plea of guilty is not a competent witness for the state on the trial of his codefendant. (Rev. Stats., secs. 7860-7862; 2 Hawk.

Honorable Ralph T. Morgan, Judge. From a judgment in favor of respondent the Coeur d’Alene Lumber Company appeals. The facts are stated in the opinion.

Honorable Ralph T. Morgan, Judge. Appeal from an order granting a new trial. The facts, so far as material, are stated in the opinion. Section 4442 of the Revised Statutes of Idaho provides that the application for a new trial shall be heard after the affidavits, bill of exceptions, or statement, as the ease may be, are filed. A statement on a motion for a new trial can only become a part of the record by the certificate of the judge who tried the case.

<p>Novation — Statute or Frauds.</p> <p>1. Where D. works for E. and on settlement therefor E. agrees-to pay O. and S., to whom D. is indebted, the debt thus assumed is the debt of E. and is not within the statute of frauds.</p> <p>2. In such case the indebtedness of E. to D. is liquidated by a payment to C. and S., and the effect of the agreement is a substitution of a different payee.</p> <p>3. Evidence examined and held sufficient to establish a novation and sustain the verdict and judgment.</p> <p>(Syllabus by the court.)</p>

Honorable Edgar C. Steele, Judge. Action for debt. Judgment for plaintiff. Defendants appeal. The facts are stated in the opinion.

Honorable Ralph T. Morgan, Judge. Action for debt. Judgment for plaintiff. Defendants appeal. The facts are stated in the opinion. It is a penal offense by act of Congress to cut down timber upon any of the public lands of the United States, with intent to export, dispose of, use or employ the same in any manner whatever other than for the use of the navy of the' United States.

Honorable Ralph T. Morgan, Judge. Suit in equity for a decree canceling a deed. Judgment for defendants and a new trial granted. From the order granting .a new trial, defendants appeal. The facts are stated in the opinion. Appellants contend that the court had no jurisdiction to hear the motion for new trial on May 1, 1905.

Honorable Edgar C. Steele, Judge. The facts are stated in the opinion. cite no authorities on the points decided. cite no authorities on the points decided.

<p>Ejectment — Admission and Rejection oe Evidence — Instructions.</p> <p>1. On tbe trial of an ejectment case, the court should admit all testimony offered by tbe plaintiff tending to prove bis possession.</p> <p>2. No instructions should be given to the jury, except those including the law applicable to the facts of the case as shown by the evidence, and the general principles of law governing the case.</p> <p>(Syllabus by the court.)</p>

<p>Ex Paste Order — Application for Order by Stranger to Action or Proceeding — Notice Required — Void Order — Vacation oe Void Order — Judgment on Appeal Pinal.</p> <p>1. Vhere a stranger to an action ot proceeding, who has not intervened and has never been made a party by order of court or in any manner recognized by the statute or rules of practice, files a petition and obtains an ex parte order without notice to any of the original parties to the action or proceeding or any person interested therein, held, that the order so procured is a nullity and void.</p> <p>2. The provisions of section 4229 of the Eevised Statutes, thatr^ “The court may likewise, in its discretion, after notice to the adverse party .... relieve a party or his legal representative from a judgment, order or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect; and .... may grant the relief upon application made within a reasonable time, not exceeding six months after the adjournment of the term,” do not apply to judgments and orders which show upon their face that they are nullities and void, and in such ease the void order may be vacated after the lapse of more than six months after adjournment of the term.</p> <p>3. After a case, wherein the district court granted a perpetual injunction, has been reversed on appeal and the injunction ordered dissolved by the appellate court, the district court has no power or authority to again issue an order in the same case which will have the same effect, for a time at least, as the original judgment which has been reversed.</p> <p>(Syllabus by the court.)</p>

<p>Specifications of Insufficiency of Evidence — Sufficiency of — Highway — Dedication of — Prescription—Railroad Crossings— Change of Line.</p> <p>1. Where the issue was whether a road was a private road or a public highway and the appellant in his specifications of the insufficiency of the evidence to sustain the verdict specifies that, "The evidence is undisputed that the road in question was a private road, ’ ’ such specification is sufficient.</p> <p>2. Where the specification is sufficient to inform opposing counsel of the grounds of the alleged insufficiency of the evidence to support the finding or verdict, it is sufficient.</p> <p>3. Where the specification designates some particular issue in the ease, and avers that it was not sustained or justified by the evidence, such specification is sufficient.</p> <p>4. Under the provisions of section 850 of the Revised Statutes, highways are declared to be roads, streets or alleys and bridges laid out or erected by the public, or if laid out or ereeted by others, dedicated or abandoned to the public.</p> <p>5. Under the provisions of section 851 of the Revised Statutes, as amended (Sess. Laws 1893, p. 12), all roads used as highways for a period of five years, provided they shall have been worked and kept up at the expense of the public, are highways by prescription, but a road constructed by private parties as a logging road, and kept in repair by such private persons across whieh a gate is maintained, as shown by the facts of this ease, is not a public highway.</p> <p>(Syllabus by the court.)</p>

Honorable Ralph T. Morgan, Judge. Judgment for the plaintiffs. From an order overruling a motion for a new trial, defendant appeals. The facts are stated in the opinion. The declaration or acts of a grantor, made or done after the delivery of his deed, are not admissible to disparage his deed, though admissible for the purpose of sustaining it. (Ord v. Ord, 99 Cal. 523, 34 Pac. 83; Bury v. Young, 98 Cal. 446, 35 Am.

Honorable Edgar C. Steele, Judge. Action by plaintiff for a decree of divoree on the grounds of desertion. Denials and defense of recrimination on grounds of desertion. Judgment for plaintiff and defendant appeals. The facts are stated in the opinion. A court should dismiss a case when such evidence is given on the ground that it will not aid a wrongdoer, and if it appears that both are in fault, it will leave them where it finds them, is elementary law.

<p>Demurrer Will be Sustained to a Complaint in Equity to Enjoin County Assessor When — Eull Cash Value of Property Must be Alleged — An Allegation that Other Property in the County of Equal Value has been Assessed Lower not Sufficient.</p> <p>1. A demurrer will be sustained to a complaint in equity to enjoin the assessor and tax collector from selling lands of complainant to satisfy taxes assessed where all the requirements of the statute have not been complied with.</p> <p>2. A epmplaint to enjoin the assessor and tax collector from selling property to satisfy a tax levy regular in form must allege the full cash value of the property if the injunction is prayed for on the ground that the levy is excessive.</p> <p>3. A complaint that only alleges the “cash value," “fair value" or “true value” is not a compliance with section 10 of the revenue act (Sess. Laws 1901, p. 230).</p> <p>4. An allegation that other property of similar character and value in the vicinity or county has been assessed at a less valuation than complainants is not* sufficient to warrant a court of equity to grant relief.</p> <p>(Syllabus by the court.)</p>

Honorable Edgar C. Steele, Judge. Action to foreclose a mechanic’s lien. Judgment for plaintiffs. Plaintiffs appealed. The facts are stated in the opinion. The rule that parol evidence cannot be received to contradict, add to or modify or explain a written contract is not applicable where a modification or change is alleged subsequent to the execution of the writing. This has been laid down clearly and universally.

<p>Complaint in Equity- — Demurrer Should be Overruled When.</p> <p>1. Where the complaint alleges the corporate capacity of plaintiff, and that by some threatened act defendant will create a nuisance or threatens to or is about to commit some act that will endanger the health of the inhabitants of the village or city, or that will result in damage to the property of the city or village, or may be the means of causes of action for damage against the city or village, equity will grant relief. ,</p> <p>2. Where a complaint states any cause of aetion that will put the defendant on his defense of the alleged wrongful act, it is not subject to demurrer.</p> <p>(Syllabus by the court.)</p>

ORIGINAL application for a writ of review. Writ denied. The constitutionality of a statute can be inquired into on certiorari. (Weed v. Mayor etc., 172 Mass. 28, 51 N. E. 204, 42 L. R. A. 642; Meller v. Board etc., 4 Idaho, 44, 35 Pac. 712; Dunn v. Sharp, 4 Idaho, 9&, 35 Pac. 842; Board of Aldermen v. Darrow, 13 Colo. 460,16 Am.

<p>Promissory Notes — Creates Lien When — -When Bights to Personal Property Litigated — -Injunction When Proper Bemedy.</p> <p>1. A promissory note providing that the express condition of the sale and. purchase of the goods for which the notes were given is such that the title, ownership or possession does not pass until the note and interest are paid in full, and that the payee has full power to declare the note due and take possession of goods at any time he may deem himself insecure, even before the specified maturity of the same, retains the ownership in the payee of the note.</p> <p>2. Where it is shown that defendants in original suit filed an answer alleging title to the personal property in dispute in George H. Kester, and defendants were prevented from making such showing by evidence, such evidence being rejected on objection from counsel for plaintiff there and defendant here, it is not a bar to an action thereafter commenced by Kester against plaintiff in that action for the possession of such property, and to enjoin the sale thereof on the judgment in an original aetion.</p> <p>3. An injunction will issue to restrain and enjoin the sheriff from selling personal property, where it is shown that the plaintiff has no plain, speedy and adequate remedy at law, or that the defendant is insolvent and not able to respond in damages.</p> <p>(Syllabus by the court.)</p>

Honorable George H. Stewart, Judge. Action in replevin to recover certain gambling devices known as slot machines. Judgment for defendant. The facts are stated in the opinion. There is in the answer an attempted denial of the ownership of the property in the plaintiff, but the court will notice that the attempted denial is in the language of the complaint itself, which is no denial whatever.

Honorable R. T. Morgan, Judge. Action to enjoin the sale of certain mining stock. Judgment for defendant. The appeal is from the judgment. The facts are stated in the opinion. Respondent and his associates procured their interest by material representations, relied upon by appellants, which were untrue. They procured such interests for an inadequate consideration. The false representations constitute such constructive fraud as gives a court of equity jurisdiction.

<p>Laches — What Constitutes — Statute oe Limitations When Bah to Action.</p> <p>1. Where it is shown that J. executed his promissory note due one year after date to B., and secured the note by mortgage on unpatented mining property; before the note was due J. notified B. that he was unable to pay the note, and soon thereafter left the state, the note and the mining deed having been placed in escrow on the day of their execution, with the condition that if J. paid the note, it with the deed should be returned to him, otherwise the deed was to be surrendered to B., J. not demanding the deed or offering to pay the note until twelve years after B. had done the annual assessment work on the property, and with his eodefendant a large amount of development work, held, that he is bound by his laches, and a cross-complaint in an action to remove a cloud attempted to be cast upon the title of B. by J. should be dismissed.</p> <p>2. Where B. has been in adverse, open and notorious possession of unpatented mining property claiming the right of possession under a deed purporting to convey the title to the property for more than five years, an aetion to recover such possession from B. is barred by the provisions of section 4036 of the Revised Statutes of Idaho.</p> <p>- 3. Under the provisions of section 4036 of the Revised Statutes of Idaho, which provides that “No action for the recovery of real property, or for the recovery of the possession thereof, can be maintained, unless it appear that the plaintiff, his ancestor, predecessor or grantor, was seised or possessed of the property in question' within five years before the commencement of the action; and this section includes possessory rights to lands and mining claims,” open, notorious, adverse possession of an unpatented mining claim for a period of more than five years brings it under the provisions of the above section.</p> <p>(Syllabus by the court.)</p>

Action by plaintiff to establish a resulting trust. Respondent intervened in the court below asking to have a resulting trust decreed in ber favor against the defendant. Judgment for intervener and against plaintiff and defendant. Defendant appeals. The facts are stated in the opinion. A party alleging a resulting or implied trust must prove clearly that the money belonged to him, and if the evidence is merely parol, it will be received with great caution.

Honorable Lyttleton Price, Judge. Plaintiff instituted proceedings in the district court for review and examination of the action and proceeding of the State Board of Medical Examiners in refusing to grant him a license to practice medicine and surgery within this state, and prayed that the court enter a judgment and decree declaring him rightfully entitled to practice his profession in this state. Judgment for ‘ defendant, the State Board of Medieal Examiners.

Case tried ■ by Honorable Frank J. Smith, Judge of the Seventh District. The defendant was convicted of violating what is known as the closing ordinance of Boise City. The facts are stated in the opinion. The general requisites of a valid municipal ordinance, one legally binding upon all whom it is designed to operate, are briefly summarized in section 14 of McQuillan on Municipal Ordinances.

Honorable J. M. Stevens, Judge. Judgment for plaintiff. Defendant Griffith appeals. The facts are stated in the opinion. cites no authorities on the points decided. It would seem that where an officer attempted to justify under his writ, he must not only show propriety in a third person, but he must connect himself with the title.

<p>Appeal — Dismissed by Stipulation oe Attobneys.</p>

<p>New Trial — Discretion of the Court — Substantial Conflict in. Evidence.</p> <p>1. Unless it appears from the reeord that the judge has abused his discretion in granting a new trial, his action therein will not be reversed on appeal.</p> <p>2. The rule that where there is a substantial conflict in the evidence the verdict of a jury or findings of the court will not be set aside on appeal, does not apply to a trial court on an application</p> <p>• for a new trial.</p> <p>3. The trial court having seen the witnesses on the stand, observed their demeanor and heard them testify, should, on proper application, grant a new trial regardless of the conflict in the evidence, if he concludes that there has been a miscarriage of justice by the verdict of the jury.</p> <p>(Syllabus by the court.)</p>

Honorable George H. Stewart, Judge. Action to recover on a promissory note. Judgment for the plaintiffs. The facts are stated in the opinion. In order to render an incoming partner liable to the creditors of the old firm, there must be some agreement, express or tacit, to that effect, entered into between him and the creditors and founded on some sufficient consideration.

ORIGINAL application for writ of mandate to certain officers of Nez Perce county requiring them to cause to be issued and delivered to Shoshone county the warrants of Nez Perce county in compliance with the provisions of the act approved March 10, 1903, providing for the striking off of a portion of the territory of Shoshone county and annexing the same to Nez Perce county. Subject to constitutional limitation, the power of the legislature over counties is unlimited.

Honorable J. M. Stevens, Judge. From an order made by the district judge refusing to grant an extension of time in which to prepare, serve and file his bill of exceptions and statement, plaintiff appealed. The facts are stated in the opinion.

Honorable Alfred Budge, Judge. Defendant was convicted of the crime of burglary and appealed to this court. On motion the appeal was dismissed on the ground that the appellant failed to serve a copy of the transcript and his brief on the attorney general. The facts are stated in the opinion. The respondent’s motion to dismiss is based upon the fact that no service of the transcript or brief herein has ever been made upon the attorney general.

Honorable Lyttleton Price, Judge. Motion to dismiss appeal. The facts, so far as material, are stated in the opinion. cites no authorities on the points decided.

Honorable J. M. Stevens, Judge. From an order dissolving a temporary injunction and directing judgment for costs and damages against the sureties on the injunction bond, plaintiff and his sureties appealed. The facts are stated in the opinion. The court erred in not considering the affidavits filed on behalf of appellant herein, upon the hearing to dissolve said temporary injunction. (Rev. Stats. 1887, sec. 4295; Falkenburg v. Lucy, 35 Cal. 52, 95 Am.