Volume 12 — Arizona Reports

John H. Campbell, Judge. Tbe facts are stated in tbe opinion. In support of a defense of insanity, tbe conduct of defendant, as well as wbat be might have said or did say, is clearly admissible as tending to show tbe condition of bis mind shortly before tbe alleged committal of this murder. Tatham v. Wright, 6 Nev. & M. 132-146. As indicia of tbe mental condition, not only tbe acts, but tbe conversations, exclamations and declarations of tbe person may be shown.

F. S. Nave, Judge. The facts are stated in the opinion. Malice and deliberation must be shown beyond a reasonable doubt. State v. Greenleaf, 71 N. H. ’606, 54 Atl. 38; Crawford v. State (Tex. Cr.), 70 S. W. 548; Drake v. State, 45 Tex. Cr. 273, 77 S. W. 7; Vann v. State, 45 Tex. Cr. 434, 108 Am. St. Rep. 961, 77 S. W. 813.

<p>1. Rev. Stats. 1887, tab. 874, Rev. Stats. 1901, part 2,' title 17, CHAPS. 17 AND 19, AND LAWS 1907, CHAP. 74, SEC. 15, CONSTRUED —Code Grim. Procedure 1901, sec. 983, Construed — Criminal Law — Appeal—Bill op Exceptions — Transcript.—Under Revised Statutes, supra, requiring certification of a bill of exceptions by the trial judge, and declaring that the statute relating to exceptions, the record, and the manner of making oral proof a part of the record in civil cases shall be applicable to all criminal eases, the reporter’s transcript cannot serve as a bill of exceptions in a criminal case unless certified by the trial judge.</p> <p>2. Same — Review op Evidence. — In the absence of a bill of exceptions, rulings with respeet to the introduction or exclusion of evidence in a criminal case cannot be reviewed on appeal.</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>O. J. Martin was convicted of embezzlement, and he appeals.</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 necessary 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>The necessary facts are stated in the opinion.</p>

<p>1. Ceiminal Law — Appeal and Error — Bill op Exceptions — Certification — Rev. Stats. Ariz. 1901, Penal Code, sec. 983. — The statutes concerning the making of oral matters part of the record in civil cases are controlling alike in criminal cases under section 983, supra, and the certificate of the trial judge to the reporter’s transcript of the proceedings or to a statement of facts covering them, a prerequisite to the examination thereof, under assignments of error raising questions based upon the testimony, the court’s rulings during the trial, and the instructions' to the jury.</p> <p>2. Homicide — Indictment—Sufficiency.—An indictment which .does not allege the “means or instrument by which the mortal wound was inflieted,” or the nature of the wound inflicted, is not fatally defective, since such allegations are not necessary under our code.</p>

Frederick S. Nave, Judge. The facts are stated in the opinion. The bitter denunciation of the defendants by the assistant district attorney was in effect an assault on the character of the defendants, and made an issue by the abuse and vituperation of said attorney, when defendants had not tendered such an issue by offering evidence of their good character. State v. Kennedy, 177 Mo. 98, 75 S. W. 979; State v. Lapage, 57. N. H. 245, 24 Am..

<p>APPEAL from a judgment of the District Court of the Third Judicial District. Edward Kent, Judge.</p> <p>The facts are stated in the opinion.</p>

Richard E. Sloan, Judge. The facts are stated in the opinion. The statute says that “a plea of former conviction or acquittal of the same offense” raises an issue of fact (Pen. Code, par. 894), and that “issues of fact must be tried by a jury.” (Pen. Code, par. 895.) Our Penal Code is a practical re-script of tbe California Penal Code.

Fletcher M. Doan, Judge. The facts are stated in the opinion. The testimony of the woman Mary Sherman, mother of the boy Amilio, was inadmissible, because such testimony cannot be admitted as res gestae. It can only be admitted in corroboration, and never to prove the substantive offense.

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

Eiehard E. Sloan, Judge. The facts are stated in the opinion. The articles of incorporation are the sole criterion to ascertain the purpose for which the corporation was organized. Nicholet Nat. Bank v. Frisk Turner Go., 71 Minn. 413, 70 Am. St. Rep. 334, 74 N. W. 160. Parties are bound by the allegation of their pleading, not denied. Groth v. Kersting, 23 Colo. 213, 47 Pac. 393.

<p>1. Vendor and Purchaser — Title or Vendor — Right op Purchaser to Dispute. — The rule that a purchaser under a contract to purchase may not dispute his vendor’s title, nor purchase and assert against him an adverse title, applies to land which the purchaser agreed to purchase, and which is the subject matter of the contract, but does not extend to land not within the agreement.</p> <p>2. Same. — Plaintiffs and a third person discovered and denounced under the laws of Mexico two mining claims, which were surveyed and monuments erected, and for which patents were issued. There was a variance between the ground conveyed by the patents and the ground intended to be denounced. Defendants contracted to pur-clase the claims, and, on discovering the variance, denounced claims covering the territory intended to he included by plaintiffs and the third person in their claims. -Defendants -were not guilty of actual fraud. Held, that defendants were not, because of the contract of purchase, estopped from acquiring title to the property adversely to plaintiffs, and equity could not impress on the property a trust in favor of plaintiffs.</p> <p>3. Appeal — Findings—Conclusiveness.—A finding will not be disturbed where there is substantial evidence to support it.</p> <p>4. Vendor and Purchaser — Contracts—Possession by Purchaser.— Where no actual possession was taken by a purchaser in a contract to purchase mining claims not described by metes and bounds, the purchaser was not in constructive possession of the ground claimed by the vendor under his original location, and not included within the patents to the claims, as one may not be constructively in possession of property not falling within the description of some muniment of title held by him.</p> <p>5. Trusts — Constructive Trust — Evidence.—In a suit by a vendor of mining claims, claiming ground under his location not included in the patent of the claim, against the purchaser, to impress on the property within, the location and outside of the patent a trust in, his favor, evidence held to justify a finding that the purchaser was not guilty of fraud, and did not take possession under the contract of purchase of the ground as located, defeating a right to relief.</p>

Richard; E. Sloan, Judge. STATEMENT OF FACTS BY THE COURT. Held: and enjoyed by that company. About August 16, 1901, a deed conveying all of the property, rights, privileges, franchises, and exemptions sold to and purchased by the said E. D. Kenna., Byron L. Smith, and James H. Eckels at the sale under foreclosure above mentioned to the appellant herein, theretofore executed and delivered by the…

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

APPEAR from a judgment of the District Court of the Hirst Judicial District, in and for the County of Pima. John H. Campbell, Judge. The facts are stated in the opinion. It was error to strike from the amended answer the-matters .set np in the cross-complaint. The only motion to strike out ■an entire pleading contemplated by onr statutes is the strik-, ing out of an answer as sham or an answer or demurrer as frivolous.

Richard E. Sloan, Judge. The facts are stated in the opinion. The sections of onr Revised Statutes which are required to he considered are sections 748, 749, 753, 2702 and 3284 to 3290, inclusive. With the exception of section 2702 the sections mentioned were borrowed by ns from Texas.

<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>1. Pleading — Answer—Necessity—Reply—Admissions.—Though a pleading filed by defendants may, as to a party made a defendant on their motion, be deemed a eross-eomplaint, it is, as to plaintiff, not a cross-eomplaint, but an answer, setting np as against plaintiff •matters of defense. Such matters, by Revised Statutes of 1901, paragraph 1357, are regarded as denied by plaintiff unless expressly admitted, and are not to be taken as confessed, under paragraph 1359, because not denied.</p>

<p>1. Criminal Law — Former Jeopardy — Burden of Proof. — The burden is upon the defendant, who sets up a plea of former jeopardy, to prove by a preponderance of the evidence that his. plea is well founded in fact, the presumptions being against the defendant.</p> <p>'2. Jury — Criminal Prosecution — Issue of Former Jeopardy. — Defendant in a criminal prosecution is not entitled as a fundamental right to the verdict of a jury upon the issue on a plea of former jeopardy.</p>

<p>1. Criminal Law — Appeal—Disposition of Cause — Affirmance— Failure to Assign Error. — Where no errors were assigned, and no appearance was made for accused on appeal, tlie judgment of conviction will be affirmed, no errors appearing on the face of the record, and the verdict being supported by the evidence.</p>

John H. Campbell, Judge. The facts are stated in the opinion. One eotenant or partner in a mining claim cannot have the claims relocated' by a third party in such a manner as to preclude the interests of his partners or cotenants. Loclcart v. Leeds, 10 N. M. 568, 63 Pac. 48. The possession of one eotenant is the possession of all, and the statute of limitations cannot be set up to oust a eotenant of his interest by another eotenant. Union Consolidated Silver Min.

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

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

Richard E. Sloan, Judge. •The facts are stated in the opinion. “The right of a settler on the public land must rest upon his personal and actual settlement alone, and neither the ownership of the improvements, nor possession by means of the improvement of the land by an agent, constitute him a bona fide settler.” Kelso v. JHickman, 26 L. D. 617; Culver v. M&Millcm, 17 L. D. 501; Esperance v. Ferry, 13 L. D. 142; Willis v. Parker, 8 L. D. 623; Knight v. Haucke, 2 L. D. 188;…

<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>1. Criminal Law — Appeal—Transcript—Certification.—Where the reporter’s transcript of the evidence in a criminal ease was not filed in the trial court, or certified by the trial judge, error could not be assigned thereon.</p> <p>2. Criminal Law — Rape—Assault—Instructions.—Where, in a prosecution for assault to rape, the indictment was so drawn that defendant might properly have been found guilty of simple assault, if the evidence warranted it, the court did not err in charging that, if the jury were satisfied beyond a reasonable doubt that defendant assaulted prosecutrix, but they were not satisfied beyond a reasonable doubt of his felonious intent to have sexual intercourse with her, they should convict him of simple assault.</p> <p>3. Criminal Law — Appeal—Prejudice.—Where accused was convicted of assault with intent to rape, he yra-s not prejudiced by an instruction authorizing his conviction under certain circumstances of simple assault.</p>

Frederick S. Nave, Judge. The facts are stated in the opinion. The amended complaint states facts sufficient to constitute a cause of action under our statutes. The general demurrer of the appellee admits all matters of fact alleged and all deductions and conclusions which by reasonable intendment naturally arise from the facts admitted. Phoenix Nat. Bank v. A. B. Cleveland Co., 34 N. T. St. Rep. 498, 11 N. T. Supp. 873; Marie v. Garrison, 83 N. Y. 14; Milliken v. W. U. Tel.

Edward Kent, Judge. STATEMENT OP THE CASE. The appellant was indicted by the grand1 jury of Maricopa County on the twenty-third day of April, 1907. This indictment charges him with murder in the first degree and is in two counts, each of which charges the appellant with the murder of John Leitch on or about the seventeenth day of March, 1907.

<p>APPEAL from a judgment of tlie 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>

Fletcher M. Doan, Judge. The facts are stated in the opinion.

<p>1. Indians — Punishment or Indians — Statutory Authority. — Revised Statutes of the United States, section 2149, authorizing the commissioner of Indian affairs to remove from any tribal reservation any person whose presence within the reservation may be detrimental to the peace and welfare of the Indians, etc., only authorizes the removal of troublesome persons from a reservation, and does not imply authority to detain them in confinement after such removal.</p> <p>2. Indians — “Prisoners or War” — Removal from Reservation. — On the representations of the Secretary of the Interior, the Secretar/ of War sent troops into the vicinity of an Indian reservation to serve as a repressing influence on the Indians, a group of whom, under a leader, threatened trouble. The officer in command arrested the leader and some of his immediate followers. While the arrest was made, the troops were fired on by other Indians, and the fire was returned. The Indians arrested were, on the recommendation of the Secretary of the Interior, confined for an indefinite period at hard labor, on condition that they could be released whenever it might be deemed wise to. do so. Held, that the Indians were not “prisoners of war,” and their detention could not be justified on the ground that a state of war existed.</p> <p>3. Indians — Punishment op Indians — Regulations.—Though the Indians are the wards of the United States, acting through executive officers pursuant to regulations promulgated under the authority of the President, pursuant to Revised Statutes of the United States, sections 463, 465 (U. S. Comp. Stats. 1901, pp. 262-264), yet in the absence of sueh regulations defining what conduct of Indians shall be deemed reprehensible and subject them to correction, it does not rest in executive discretion to administer corrective punishment; and particularly is this true as to members of a tribe having a treaty with the United States, covenanting that bad Indians shall not be punished by the United States except pursuant to laws defining their offenses and prescribing the punishments therefor.</p> <p>NOTE. — As to jurisdiction to punish crimes committed by or against Indians, see note to State v. Campbell (Minn.), 21 L. B. A. 169.</p>

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

John H. Campbell, Judge. Tbe facts are stated in tbe opinion. Tbe allegations of appellants’ plea to tbe jurisdiction of tbe court below have not been denied and therefore stand confessed.

John H. Campbell, Judge. Tbe facts are stated in the opinion. Tbe courts have time and again held that,an instruction requiring tbe defendant to establish tbe facts by a preponderance of tbe evidence, or to tbe satisfaction of tbe jury, is erroneous. Anderson v. Territory, 9 Ariz. 50, 76 Pac. 636; People v. West, 49 Cal. 610; People v. Elliott, 80 Cal. 296, 22 Pae. 207.

EBROB to the District Court of tbe Third Judicial District, in and for the County of Maricopa. Edward Kent, Judge. The facts are stated in the opinion. Alleged errors, not having been assigned as grounds for new trial, are not properly before the supreme court. Chicago B. & Q. B. B. Go. v. Pollock, 16 Wyo. 321, 93 Pae. 847-853. Errors occurring at the trial will not be reviewed unless presented to the trial court in a motion for new trial.

<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>1. Pleading — Verification— Operation and Effect. — Civil Code of 1901, paragraph 1359, provides that, in actions for equitable relief, if the complaint or eross-eomplaint is verified, the answer shall be under oath, and the material allegations of the complaint which are denied under oath shall be taken as confessed. A complaint alleged that the plaintiffs were citizens of the United States, and was verified before plaintiffs’ attorney, a notary public, by one of the plaintiffs,'who deposed “that the things therein stated are true of his own knowledge, except those things stated on information and belief.” One of the defendants in his answer denied “each and every material allegation in said complaint contained, not hereafter expressly admitted,” and did not expressly admit the averment of citizenship. The answer was verified by alleging that its statements are true in substance and in fact. Held, that the averment of citizenship in the complaint was admitted by the answer because of defendant’s failure to deny such allegation under oath.</p> <p>2. Quieting Title — Nature op Remedy. — A suit to quiet title is of equitable cognizance.</p> <p>3. Pleading — Sufficiency of Verification. — Under Civil Code of 1901, paragraph 1359, providing for verification of a complaint, where equitable relief is prayed for, that the allegations are true in substance and in fact, the verification by plaintiff “that the things therein stated are true of his own knowledge, except those things stated on information and belief, and as to those things he believes it to be true,” is sufficient.</p> <p>4. Pleading — Verification—Sufficiency of Verification Before Attorney. — A plaintiff may verify his complaint before a notary who is his attorney in the action.</p>

<p>1. Criminal Law — Appeal—Findings—Conclusiveness — Conflicting Evidence. — An. appellate court will not disturb a verdiet on conflicting evidence if there is any substantial evidence to support it, the question not being whether the appellate court would have rendered the same verdiet, but whether there was no evidence to support it, so that it must be presumed to have been rendered through an improper motive.</p> <p>2. Burglary — Sufficiency of Evidence. — In a burglary prosecution, finding of stolen goods in accused’s place, together with the testimony of an accomplice, held to sustain a verdict of conviction.</p> <p>3. Criminal Law — Instructions—Construing as a Whole. — A part of a paragraph in an instruction, or a particular expression therein, should not be considered entirely apart from its context, but the whole instruction should be considered together.</p> <p>■4. Criminal Law — Trial—Instructions—On Weight of Evidence.-— Accused’s accomplice testified that he and defendant entered a store and removed goods and took them to accused’s place, and the court instructed that, before accused eould be convicted on the testimony of the accomplice, the latter’s testimony must be corroborated by other evidence which, in itself, and without the aid of the accomplice’s testimony, tended to connect accused with the offense, and the corroboration was not sufficient if it merely showed the commission of the offense or the circumstances thereof, and, if accused got the goods in some other way than by being present when the burglary was committed, he eould not be convicted, but the jury eould take into account the testimony as to the goods being in his possession, and, if that testimony corroborated the accomplice’s testimony that accused was present, he eould be convicted, and “if the jury believed that the goods were taken to accused’s place in connection with the burglary, they being found in his possession, that was a corroboration of the accomplice’s testimony which eould be considered.” Held, that the part of the instruction quoted was not a charge on the weight of the evidence, but an instruction that the evidence mentioned constituted a corroboration of the accomplice’s testimony, and was proper.</p> <p>5. Burglary — Sufficiency of Evidence — Possession of Stolen Goods. — While the bare possession of stolen goods does not necessarily connect accused with the burglary, such possession, where not satisfactorily explained, tends to prove guilt, and is a circumstance for the consideration of the jury.</p> <p>6. Criminal Law — Evidence—Testimony of Accomplice — Corroboration — Admissibility.—Accused may object to testimony of an accomplice until the introduction of other evidence tending to establish guilt, when the court must either exclude the accomplice’s testimony, or admit it under a ruling that the other evidence is sufficient, or upon the promise of the prosecution to subsequently supply such other evidence so as to make the accomplice’s testimony competent.</p> <p>7. Criminal Law — Instructions—Testimony of Accomplice — Sufficiency of Corroborating Evidence. — Upon determining that the other testimony is sufficient to connect accused with the crime so as to admit testimony of an accomplice, the court can instruct that the corroborating testimony is sufficient to authorize the consideration of the accomplice’s testimony, if it does not comment or instruct on the weight of such corroborating evidence.</p> <p>8. Criminal Law — Province of Jury — Question of Law — Sufficiency of Corroborating Evidence. — Whether the independent evidence required to render an accomplice’s testimony admissible tends to establish accused’s guilt so as to authorize the admission of the accomplice’s testimony is a question for the court.</p> <p>9. Criminal Law — Province of Jury — Weight of Evidence — Corroboration by Accomplice. — The weight of evidence corroborating an accomplice’s testimony, and the extent to which it tends to prove accused’s guilt, is for the jury.</p> <p>NOTE. — As to .possession of recently stolen property as evidence of burglary, see note to State v. Brady (Iowa), 12 L. K. A., N. S., 199.</p>

<p>1. Ch.tmtuat. Law — Verdict—Concltjsiveness.—A verdict on conflicting evidence rendered on proper instructions will not be disturbed on appeal.</p>

Frederick S. Nave, Judge. STATEMENT OE PACTS. This action was brought by the appellee against the Shannon Copper Company, the Arizona Copper Company, Limited, and the Arizona Copper Company, to obtain an injunction restraining the defendants from depositing mining débris in streams tributary to the Gila river.

<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>

Richard E. Sloan, Judge. The facts are stated in the opinion. Under the statute it was absolutely necessary for the jury to be convinced of the fact that Ryan made an attempt to use the revolver to inflict a violent injury upon the person of Burns. People v. Sylva, 143 Cal. 62, 76 Pae. 814; State v. Godfrey, 17 Or. 300, 11 Am. St. Rep. 830, 20 Pac. 625; People v. Dodel, 77 Cal. 293, 10 Pae. 484.

<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 facts are stated in the opinion.</p>

Frederick S. Nave, Judge. The facts are stated in the opinion. The territorial hoard of equalization is - a special statutory tribunal, and its action is void unless, and valid only, when its functions have been performed in the manner prescribed by the statute which confers the jurisdiction. The statute requires an examination of the various assessments, and nothing else will satisfy the statute.

<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>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. Highways — Establishment.—The establishment of publie highways . is governed entirely by statute, and roads established otherwise than as expressly provided thereby are not publie highways.</p> <p>2. Same — Same—Statutory Provisions. — Civil Code of 1901, paragraph 3956, declares that roads located as publie highways by the board of supervisors, or roads in publie use which have been recorded as public highways by authority of the board, shall be publie highways. Paragraph 3972 provides that the board may lay out or change a public road on petition of resident taxpayers of the county, and shall cause the location to be recorded in the county recorder’s office. Held, that only such roads as are located and recorded by the board are publie highways, and the mere declaration that a map showing a road was the official map of the county, without recording or filing the map for record in the county recorder’s offiee, did not make the road a publie highway.</p> <p>3. Same — Same—Resolution op Local Authority. — A resolution of the board of supervisors accepting a right of way for the construction of highways over publie lands as granted by Congress (Rev. Stats., sec. 2477; U. S. Comp. Stats. 1901, p. 1567), as far as the grant related to a certain road described, which resolution was recorded in the office of the county recorder, would not make the road described a publie highway, where it did not appear that the resolution was made on petition of taxpayers, nor that the road as laid off was recorded.</p> <p>4. Same — Same—Grant op Right op Way by National Government. Revised Statutes of the United States, section 2477 (U. S. Comp. Stats. 1901, p. 1567), granting the right of way for the construction of highways over publie lands not reserved for publie use, does not operate to grant sueh rights of way and establish highways contrary to the laws of the state or territory in which the lands affected are located.</p>

APPEAL and cross-appeal from a judgment of the District Conrt of the First Judicial District, in and for the County of Pima. John H. Campbell, Judge. The facts are stated in the opinion. Ordinarily, where fraud is charged, the intent of the parties is a proper inquiry; hut not so where it has been reduced to writing. 6 Ency. of Ev., p. 61; Mower y. Brumbach, 131 Ill. 646, 23 N. E. 335.

Edward Kent, Judge. The facts are stated in the opinion. While fraud is a question of fact that must he proven hy the party charging it, the evidence submitted on the trial of the case was amply sufficient to sustain the charge.

John H. Campbell, Judge. The facts are stated in the opinion. Under the circumstances as disclosed by the evidence in this case, Steinfeld ivas clearly and unquestionably a constructive trustee in the purchase of the mines and stock, the basis of this action. 1 Am. & Eng. Ency. of Law, 2d ed., 1071-1085; Kimberly v. Arms, 129 TJ. S. 512, 9 Sup.

John H. Campbell, Judge. The facts are stated in the opinion. A landlord under the statutes of Arizona has a lien upon the chattels of his tenant for rent due and to become due.

<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 facts are stated in the opinion.</p>

John H. Campbell, Judge. Tbe facts are stated in the opinion.

Frederick S. Nave, Judge. Tbe facts are stated in tbe opinion. Tbe appointment of Kingsley as sueb county superintendent of health was null and void, and any payment to him out of tbe funds of said Santa Cruz county of any salary or compensation as such county superintendent of bealtb was an illegal payment which the plaintiff was entitled to have enjoined under paragraph 955 of the Revised Statutes of 1901.

Frederick S. Nave, Judge. The facts are stated in the opinion. False and fraudulent representations will avoid a contract. Where the purchaser buys upon the representation of the seller, relying on its truth, then the representation in effect amounts to a warranty, and the seller is bound to make good the representations. Smith v. Richards, 13 Pet. 26, 10 L. Ed. 42.

Frederick S. Nave, Judge. The facts are stated in the opinion. It is held by all authorities that a judgment which is not in accord with and is not warranted by the pleadings is utterly void. Plaintiff in his complaint in the present case alleges that he was of right entitled to have installed and did demand defendant to install a meter to measure the water used by himself as a water consumer.

Edward Kent, Judge. The facts are stated in the opinion. The damages claimed by the plaintiffs consisted of two -elements: (a) the loss of the increase in weight which each of these steers would have gained under proper feeding from the twenty-seventh day of November, 1907, until the time they were sold, on or about the fifteenth day of January, 1908; and (b) the loss of the feed that was consumed by these steers from the time the plaintiffs recovered possession of them on…

<p>1. Partnership — Debts or Firm — Individual Liability. — A debt due from partners is enforceable against each.</p> <p>2. Setoff op “Mutual Debts.” — A firm note to a bank, assumed by an insolvent partner on dissolution of the firm, became his individual indebtedness, and such debt with the amount due him as a depositor, independent of any partnership consideration, became mutual debts within bankruptcy act (Act July 1, 1898, e. 541, 30 Stat. 565 [IT. S. Comp. Stats. 1901, p. 3450]) section 68, allowing setoffs.</p> <p>3. Same — Same.—The right of a bank under bankruptcy act (Act July 1, 1898, c. 541, 30 Stat. 565 [U. S. Comp. Stats. 1901, p. 3450]) section 68, to set off against a deposit an overdue note of the depositor, is not affected by the fact that the note is secured by a chattel mortgage. '</p> <p>4. Same — “Preferential Transfers.” — Setting off a deposit against an insolvent depositor’s note to a bank secured by a mortgage is not a preferential transfer under the bankruptcy act (Act July 1, 1898, c. 541, 30 Stat. 544 [U. S. Comp. Stats. 1901, p. 3418]). ■</p>

Fletcher M. Doan, Judge. The facts are stated in the opinion. The second mortgage did not provide for any default for ' nonpayment of interest. The mortgagee for default in the ' interest could not foreclose before the maturity of the note. , Van Loo v. Van Alten, 104 Cal. 269, 37 Pae. 925; Williams v. Townsend, 31 N. Y. 415. And nonpayment of an installment does not authorize judgment for the whole debt.

<p>APPEAL from a judgment of the District Court of the Second1 Judicial District, in and for the County; of Cochise. Fletcher M. Doan, Judge.</p> <p>The facts are stated in the opinion.</p>

Richard E. Sloan, Judge. The facts are stated in the opinion. The general rule is that a rescission of a contract is an equity proceeding, but the distinction between rescission at law and rescission in equity is clear, and depends entirely upon the facts alleged.

ERROR from a judgment of tbe District Court of the Fifth Judicial District, in and for the county of Gila. Frederick S. Nave, Judge. The facts are stated in the opinion. In order to entitle the defendant to the benefits of paragraphs 2937 and 2938, it was necessary for it to especially plead this statute, as it applies to a particular class of eases. 13 Ency. of PI. & Pr., p. 222.

Fletcher M. Doan, Judge. Appeal to supreme court of United States. The facts are stated in the opinion. The complaint fails to allege that the amount sued for in this case was unpaid by defendants to plaintiff at the time of the commencement of this action, and this is a necessary allegation where suit is brought upon an express contract for the payment of money.

PETITION for writ of mandamus to require respondent to institute quo warranto proceedings. The facts are stated in the opinion. The duty of the district attorney, upon a proper showing, to bring quo warranto is not discretionary, hut mandatory. Buggeln v. Doe, 8 Ariz..341, 76 Pac. 458. Quo warranto may be brought upon the verified complaint of any person. Rev. Stats. Ariz. 1901, sec. 3794.

Fletcher M. Doan, Judge. The facts are stated in the opinion. The reply of appellee to the proposed answer should have been stricken out. The court is not to try and decide upon the facts set up by way of defense, or to determine whether the defense will ultimately prevail. Joerns v. La Nica, 75 Iowa, 705, 38 N. W. 129; 23 Cyc. 964; Black on Judgments, sec. 348; Freeman on Judgments, sec. 109.

John H. Campbell, Judge. STATEMENT OP PACTS BY COUET. Held: but the said Nielsen believed that he had been legally and duly discharged, and that the said Stein-feld had shut down said mine and smelter for the reasons stated in his letter of January 3, 1900, and acted and relied on such belief.

Edward Kent, Judge. The facts are stated in the opinion. Where the fact to he proved is evidenced by a written Instrument or other writing, the original writing is the best evidence, and a copy is not admissible unless the original is produced or its absence satisfactorily explained, or unless a -copy is made primary evidence by statute. 17 Cyc., p. 512; Matteson v. Noyes, 25 Ill. 591; Central Branch B. B. v. Walters, 24 Kan. 504; Buthven v. Clarke, 109 Iowa, 25, 79 iST.

ERROR from the District Court of the Second Judicial District, in and for the County of Cochise. Fletcher M. Doan, Judge. The facts are stated in the opinion. A suit commenced within ten years from the date of the taking effect of the ten year statute of limitation was commenced in time to avoid the bar of the statute. Curtis v. Boquillas Land & Cattle Co., 9 Ariz. 62, 76 Pac. 612; Herrick v. Boquillas Land & Cattle Co., 200 U. S. 96, 26 Sup.

<p>Bes Adjudicata. — Judgment sustaining plea of res adjudicóla will not be disturbed where no novel or unusual feature of law is presented, the judgment rendered being clearly correct.</p>