Volume 12 — Idaho Reports

<p>Eoreign- Corporations- — Compliance with Laws Precedent to Doing Business — Insurance Companies — Constitutional Requirement — Policy op the State — Contracts in Violation op Law CANNOT BE ENFORCED — TITLE TO LEGISLATIVE ACT — CURATIVE OR Retrospective Act — Purchaser with Notice.</p> <p>1. Under the provisions of section 10, article -11 of the constitution, and section 2653 of the Revised Statutes as amended by act of March 10, 1903, it is made unlawful for any foreign corporation to transact business in this state without having first filed a copy of its articles of incorporation with the Secretary of State and the county recorder of the county in which its principal plaee of business is established, and having also in like manner filed written appointment designating and authorizing an agent within the state to receive and accept service of process in any and all matters in which the corporation may be a party or concerned.</p> <p>2. A foreign corporation failing to comply with the requirements of the constitution and of section 2653 of the Revised Statutes, as amended by act of March 10, 1903, cannot maintain a suit or action in any of the courts of this state for breach or violation of any contract entered into during the time the corporation had so failed and neglected to comply with the constitution and statute.</p> <p>3. The people in adopting section-10, article 11 of the constitution have clearly announced the public policy of this state toward foreign corporations, and have proclaimed in unmistakable language that such artificial beings, existing only in contemplation of law, must subject themselves to the jurisdiction and laws of this state before they can be accorded any recognition or legal existence within its jurisdiction.</p> <p>4. Where the constitution or statute prohibits an act or declares that it shall be unlawful to perform it, it is the fair and reasonable interpretation and construction thereof to say that the people in the one case and the legislature in the other have intended to interpose their power and authority to prevent the act, and as one of the means of its prevention intended that the courts should not lend their power and authority in its enforcement.</p> <p>5. As to whether or not the act of February 8, 1905, entitled "An act relating to foreign corporations doing business in the state of Idaho,” is in violation and contravention of section 10, article 11 of the constitution, quaere.</p> <p>6. Where the sole purpose and object of a legislative act is the validating and legalizing of the past transactions of a foreign corporation which has done business in this state without having first complied with the provisions of the constitution and statute in filing its articles of incorporation and designating an agent upon whom service of process may be had, and the title to such act is, ' ‘ An act relating to foreign corporations doing business in the state of Idaho”: Held, that the title does not express or indicate the subject matter of the act, and does not comply with section 16 of article 3 of the constitution, and that such act is for that reason unconstitutional and void.</p> <p>7. Act of February 8, 1905, entitled "An act relating to.foreign corporations doing business in the state of Idaho,” is a retrospective and retroactive law, and is in that respect out of the usual and ordinary scope of legislation, and such act should have a title indicating in some manner the retroactive intent and operation of the statute.</p> <p>8. Where K. was at all times mentioned the agent and manager of a foreign insurance company which was doing business in this state without having first complied with the requirements of section 10 of article 11 of the constitution, and section 2653 of the Revised Statutes, as amended by act of March 10, 1903, and a solicitor for such company took H.’s promissory note in payment of a premium on a policy of life insurance, and thereafter assigned such note to K., on which K. advanced him the amount of his commission, and the solicitor thereupon agreed to repay K. in ease H., the maker of the note, failed to pay the same: Held, that K. was not an innocent purchaser of the note for value.</p> <p>(Syllabus by the court.)</p>

<p>Appointment" of a Beceiver — Allegations of the Complaint — When Beceiver will be Appointed.</p> <p>1. Upon a proper showing a receiver’ will be appointed for a corporation pendente lite.</p> <p>2. Under the provisions of subdivisions 5 and 6 of section 4329 of -the Bevised Statutes, a receiver will be appointed where it is shown that the corporation is insolvent or in imminent danger of insolvency, and in all cases where receivers have heretofore been appointed by the usages of the courts of equity.</p> <p>3. Under the allegations of the complaint, held that the court erred in refusing to appoint a receiver.</p> <p>4. Under our statute an appointment of a receiver does not necessarily cause a dissolution of the corporation, unless the court so directs; the receiver may be appointed simply to manage the affairs of the company during the pendency of the litigation.</p> <p>5. Upon the application of á stockholder where it is .shown that the directors and officers of the corporation are mismanaging its affairs for their own personal advantage and gain, and where it is shown that the profits of the business of the corporation are being absorbed by such mismanagement in paying the salaries of favorite employees, whose services are not necessary to the proper conduct of the business of the corporation, and where gross mismanagement is shown, which if continued would necessarily result in insolvency of the corporation, a receiver should be appointed.</p> <p>(Syllabus by the court.)</p>

<p>Sheep Infected with Scab — Duty of Owner or Employee — Sufficiency of Pleading.</p> <p>1. In a civil action for damages, under section 21 (Sess. Laws 1901, p. 151), scienter need not be alleged or proven where carelessness or negligence is averred.</p> <p>2. In declaring the acts mentioned in the above section punishable by fine, imprisonment, or both, the legislature was exercising the police powers of the state, and in such case the complaint need not allege that the defendant knew the act complained of was unlawful.</p> <p>3. Under the provisions of sections 21 (supra), 23, and 6886 of the Revised Statutes, a complaint that alleges that the injury complained of was the result of the careless and negligent acts of defendant is sufficient.</p> <p>4. Where the instructions to the jury fairly state the law on all the issues involved, it is not error to refuse requests of defendant, even though they may be a repetition of the law of the case.</p> <p>5. Where a verdict is not in excess of the demand of plaintiff’s complaint, and no error appearing in the admission of the evidence or instructions of the court, and there is any evidence tending to prove the amount of damages, this court will not examine the evidence to ascertain whether the verdict is excessive or not where the defendant fails or refuses to submit evidence.</p> <p>(Syllabus by the court.)</p>

<p>APPEAL from the'District Court of the Sixth Judicial District for Lemhi County. Hon. J. H. Stevens, Judge.</p> <p>The amended petition or affidavit, and the stipulation of facts, show that none of the orders were ever appealed from, hence those orders are valid and bind the county. (Johnson v. Savidge 11 Idaho, 204, 81 Pac. 616; Morgan v. Board of Commrs, 4 Idaho, 418, 39 Pae. 1118; Picotte v. Watt, 3 Idaho, 447, 31 Pac. 805; Rogers v. Hays, 3 Idaho, 597, 32 Pac. 259; Dunbar v. Board etc., 5 Idaho, 407, 49 Pac. 409; Corker v. Elmore Co. Commrs., 10 Idaho, 255, 77 Pac. 634; School Dist. No. 25 v. Rice, 77 Idaho, 99, 81 Pac. 155; In re Grove Street, 61 Cal. 453; Babcock v. Goodrich, 47 Cal. 488.)</p> <p>In the case at bar no allegation of fraud is made, and no suspicion of unfairness or any intent to do other than their duty is shown against the board of commissioners in letting the contract to Penwell. (Reclamation Dist. No. 537 of Yolo County v. Burger, 122 Cal. 442, 55 Pac. 156.)</p> <p>County commissioners or boards of supervisors act in a quasi judicial cápacity, and in the absence of fraud, their decisions over matters within their jurisdiction, upon questions of fact, are without remedy other than by appeal, in the courts. (McBride v. Newlin, 129 Cal. 36, 61 Pac. 577; Alameda Co. v. Evers, 136 Cal. 132, 68 Pac. 475; Santa Cruz Co. v. McPherson, 133 Cal. 282, 65 Pae. 574.) Being within the scope and general powers of the board of commissioners, they having let the contract for the construction of a needed road, which has been received by the county as shown by the petition and stipulation of facts, the county thus receiving a benefit, and the provision of the constitution not having been violated, we say that the matters are res adjudicata, and not subject to collateral attack as made by respondents in this ease. (County of Sacramento v. Southern Pacific Co., 127 Cal. 217, 59 Pae. 568, 825.)</p> <p>The building of the said wagon road was an extra-municipal power, and an extraordinary expenditure of the county, and could only be authorized and incurred under section 1762 of the Revised Statutes. ‘ ‘ Commissioners of highways, in laying out highways, act under special statutory authority, and it must appear on the face of the proceedings, or by proof aliunde, that they acquired jurisdiction in the particular ease.” (Miller v. Brown, 56 N. Y. 383.)</p> <p>A creditor by accepting the warrant drawn on the particular fund impliedly agrees to rely solely on such fund for payment of the warrant. (Argenti v. San Francisco, 16 Cal. 255; Rose v. Estudillo, 39 Cal. 270; 21 Am. & Eng. Ency. of Law, 2d ed., 22, and authorities.) It was held in Rice v. Milwaukee, 100 Wis. 516, 76 N. W. 341; ‘ ‘ That as the future income from licenses is entirely uncertain in amount, and not dependent on any act of the city, moneys to be derived during the year cannot be considered on the question whether a city has exceeded its debt limit.” The orders of the board could be attacked at any time, either directly or collaterally. (Fremont County v. Brandon, 6 Idaho, 486, 56 Pac. 264; Dunbar v. Canyon County, 5 Idaho, 407, 49 Pac. 409.)</p> <p>Provisions similar to section 3 of article 8 of the constitution of the state of Idaho have been incorporated in the constitution of many states for the establishment of a financial system on a basis that should closely approximate the basis of cash, and the authorities bearing on the subject are very numerous. It will be sufficient to refer to the authorities of our own state. (Bannock Co. v. Bunting, 4 Idaho, 156, 37 Pac. 277; Theiss v. Hunter, 4 Idaho, 788, 45 Pac. 2; Ada Co. v. Bullen Bridge Go., 5 Idaho, 79, 88, -47 Pac. 818, 36 L. R. A. 367; Dunbar v. Canyon Co., 5 Idaho, 407, 49 Pac. 409; Boise City v. Union Bank etc. Co., 7 Idaho, 342, 63 Pac. 107.) Partial payments on a contract of a municipal eorporation do not amount to a ratification. (Milford v. Milford Water Co., 124 Pa. St. 610, 17 Atl. 185, 3 L. R. A. 122.)</p> <p>It is well settled that a municipal corporation cannot validate by ratification a contract beyond its corporate powers to make, or a contract void from the beginning. (Berica v. Woodward, 125 Cal. 119, 73 Am. St. Rep. 31, 57 Pac. 777, 45 L. R. A. 420; McCracken v. San Francisco, 16 Cal. 591; Grogan v. San Francisco, 18 Cal. 590; King v. Frankfort, 2 Kan. App. 530, 43 Pac. 983; Prescott v. Ver shire, 63 Vt. 517, 22 Atl. 655.) The Penwell warrants are non-negotiable instruments. (21 Am. & Eng. Ency. of Law, 2d ed., p. 26, and authorities cited; Wells v. Monroe Co., 103 U. S. 74, 26 L. ed. 430; People v. Supervisors of El Forado Co., 11 Cal. 170; Bank of Santa Cruz County v. Bartlett, 78 Cal. 301, 20 Pae. 682; People v. Gray, 23 Cal. 125; Dana v. San Francisco, 19 Cal. 486; 1 Dillon on Municipal Corporations, sec. 487.) If the road contract is void, the warrants are void. (Perry v. Ames, 26 Cal. 372.) A purchaser of municipal warrants is bound to take notice of the constitutional limitation upon municipal indebtedness. (Buchanan v. Litchfield, 102 U. S. 178, 26 L. ed. 138; 20 Am. & Eng. Ency. of Law, 2d ed., 1142, and authorities cited.) The road cannot be returned, for the reason that other public money has been spent upon it, and it belongs to the public. (Litchfield v. Ballou, 114 U. S. 190, 29 L. ed., 132, 5 Sup. Ct. Rep. 820.) The warrants do not comply with section 2006 of the Revised Statutes of Idaho. (Bingham Co. v. First Nat. Bank, 122 Fed. 16, 58 C. C. A. 332; Raymond v. People, 2 Colo. App. 329, 30 Pac. 504.)</p> <p>STATEMENT OF FACTS.</p> <p>This is an appeal from an order or judgment denying an application for a writ of mandate to compel Lemhi county and the commissioners and treasurer thereof to pay five certain, county warrants, with interest thereon, and, if in the opinion of the court it was necessary that the commissioners be commanded to levy a special tax for the purpose of paying such warrants and interest, that the writ require them to do so. To the complaint or petition the defendants, who are respondents here, answered, pleading ultra vires, the statute of limitation and certain matters in bar and avoidance. The issues thus made were determined on stipulated facts, and oral and documentary evidence. Judgment was entered in favor of respondents. The record contains the pleadings, the stipulated facts and all of the evidence offered at the trial. The entire ease as made and heard by the trial court is before us. It appears from the facts stipulated that on the tenth day of January, 1893, a petition signed by seventy-nine persons alleged to be resident citizens and taxpayers of Lemhi county, praying for the construction of a wagon road from Silver Star creek or Neiman’s ranch to Fourth of July creek, was presented to the board of commissioners for their action thereon, which petition had been filed on the thirtieth day of December, 1892; that the petition was acted upon and approved by the board of commissioners on the tenth day of January, 1893, and that the clerk of the board was thereupon ordered to advertise for bids to construct the road — bids to be opened and considered by the board on the first day of February, 1893. So far as the record shows, the bids were not opened, if any were received under such advertisement, and nothing further was done until on the ninth day of April, 1894, at which time they made another order directing the clerk to readvertise for sealed proposals for the construction of the road, in accordance with plans and specifications then on file in the office of the clerk, and that said bids were to be opened on the tenth day of May, 1894; that such advertisement was made; that on the eleventh day of May, 1894, bids for the construction of the road were opened and considered by the board, and of all of the bids submitted the bid of one Oscar E. Penwell was the lowest, and thereupon a contract was entered into by the county with Penwell for the construction of the road according to the plans and specifications for the sum of $5,500. After the construction of the road, viewers were appointed by the board to view and report whether the road had been constructed in accordance with the plans and specifications. The viewers reported that the road had been constructed according to the plans and specifications, and on the twenty-first day of July, 1894, the board accepted the report of the viewers, and the road was received by the board. The board thereupon ordered warrants to be drawn on the general road fund for the amount of the original contract price, to wit, $5,500, and the sum of $850 for extra work done thereon, making a total of $6,350,- and thereupon the warrants of the county were executed and delivered to Pen-well under order of the board. These warrants were all in the following form, the only difference being as to the numbering and amounts for which drawn: “No. 44. The State of Idaho, Lemhi County. The Treasurer of the County of Lemhi: Pay to O. E. Penwell one thousand dollars, out of any money in the county road fund. Given at the courthouse, at Salmon City, this 21st day of July, 1894. By order of the board of county' commissioners.</p> <p>“$1,000.00</p> <p>TIMOTHY DORE,</p> <p>“County Auditor.”</p> <p>All of the warrants were on the twenty-third day of July, 1894, presented to the county treasurer for payment, but none of them were paid, and the treasurer indorsed thereon the fact of the presentation and of nonpayment thereof for want of funds, and the warrants were then and there duly registered by him. In the month of January, 1899, two of the warrants for $1,000 each were paid by the county, and thereafter, in January, 1900, another warrant for $1,000 was paid by the county, and in the month of March, 1900, the remaining warrants, viz., two for $1,000 each, two for $500 each, and one for $350, were sold and transferred to the plaintiff, who is appellant here; that the warrants so sold were duly presented to the treasurer of Lemhi county on the 13th of September, 1904, and payment demanded, which was refused; that the assessment-roll of Lemhi county for the year 1892 contained the names of four hundred and twenty-four persons, and for the year 1893 the names of five hundred and nineteen persons, and for the year 1894 the names of five hundred and forty-two persons; that the levy of a property road tax for general purposes in Lemhi county for the year 1894 amounted to $3,972.94, and the amount collected on the levy was $3,891.63, exclusive of poll tax.</p> <p>The foregoing allegations are followed by a statement of the warrants issued on the road fund by the board for that year, and also a statement of the amount of warrants issued upon the various funds for the year 1894, making a total of $43,210.49; that the total amount of money received by the county for the year 1894 available for the payment and discharge of its obligations was the sum of $32,990.29, and that the total expenditures for the year were $43,216.92; that no provision was made by the board at the time of incurring the Penwell indebtedness, nor before, for the collection of an annual tax to pay these warrants; that no election was held at which the people of the county might vote upon the question of incurring the indebtedness; that no order was made by the board directing the Penwell warrants, or any part thereof, to be paid from a general or current expense or any other fund; that in the month of April, 1900, the board made an order finding that there was a legal warrant indebtedness, including interest, against Lemhi county amounting to the sum of $50,877.65, evidenced by warrants against the general or several funds of the county theretofore regularly issued in payment of legal claims, among which warrants were included the warrants sued on in this action; that at an election duly held pursuant to such order more than two-thirds of the qualified voters of Lemhi county voted in favor of issuing bonds to raise money with which to pay the warrant indebtedness, and that pursuant to resolutions and orders of the board and the election so held, bonds of the county to the amount of $25,500 were issued, and with the money realized therefrom the board redeemed warrants to that amount, but not the warrants sued on herein.</p> <p>It is also stipulated that the receipts for current expenses for the year 1894 amount to $6,250; that none of the orders of the board above mentioned were ever amended or rescinded, nor was any appeal taken therefrom.</p> <p> Judgment affirmed. </p>

Hon. J. M. Stevens, Judge. Plaintiffs appealed from a judgment of nonsuit. A motion to make the complaint more certain, under our code, will not lie. Such an objection must be taken by demurrer. (Naylor v. Loan etc. Co., 6 Idaho, 251, 55 Pac. 297; Palmer v. Utah etc. Ry.

<p>ORIGINAL application in this court for writ of review. Motion to quash.</p> <p>A writ of review does not lie where there is a remedy by appeal. (People v. Lindsay, 1 Idaho, 394; Graham v. Superior Court, 74 Cal. 217,15 Pae. 746; Hayes v. First Judicial Dist. Court, 11 Mont. 225, 28 Pac. 259; Rogers v. Hayes, 3 Idaho, 597, 32 Pae. 259; Noble v. Superior Court, 109 Cal. 523, 42 Pae. 155; State v. District Court, 27 Mont. 179, 70 Pae. 516; State v. Justice Court, 31 Mont. 258, 78 Pac. 498.)</p> <p>The writ of review will not lie because the time limit for taking an appeal has expired. (McCue v. Superior Court, 71 Cal. 545, 12 Pac. 615; In re Stuttmeister, 71 Cal. 322, 12 Pac. 270; Bennett v. Wallace, 43 Cal. 25; Faut v. Mason. 47 Cal. 8.)</p> <p>Certiorari will not lie to review a judgment after the expiration of the time limit for appeal, unless circumstances of an extraordinary character intervene. (Keyes v. Marin County, 42 Cal. 256; Reynolds v. Superior Court, 64 Cal. 372, 28 Pac.. 121; Smith v. Superior Court of Los Angeles, 97 Cal. 348, 32 Pac. 322; Ramsey v. Pettengill, 14 Or. 207, 12 Pac. 439.)</p> <p>The special order after final judgment is appealable; therefore a writ of review will not lie to review such an order of the court. (Slavoncia Assn. v. Superior Court of Santa Clara, 65 Cal. 500, 4 Pac. 500; Ramsey v. Pettengill, 14 Or. 207, 12 Pac. 439; Hayes v. First Judicial District Court, 11 Mont. 225, 28 Pac. 259; Stoddard v. Superior Court, 108 Cal. 303, 41 Pac. 278; White v. Superior Court, 110 Cal. 54, 42 Pac. 471; Tucker v. Justice Court, 120 Cal. 512, 52 Pac. 808'; Southern California Ry. Co. v. Superior Court, 127 Cal. 417, 59 Pac. 789.)</p> <p>The original jurisdiction granted by the constitution to this court to issue writs of certiorari cannot be either devested or abridged by the legislature.</p> <p>The granting of this writ is discretionary. (Harris v. Barber, 129 U. S. 366, 32 L. ed. 697, 9 Sup. Ct. Rep. 314.)</p> <p>Since the issuing of the writ is discretionary, a motion to quash is addressed to the discretion of the court, and will be granted or denied accordingly. (4 Ency. of PI. & Pr. 234, citing Flourney v. Payne, 28 Ark. 87; Ex parte Pearce, 44 Ark. 509; State v. Hudson City, 29 N. J. L. 115; State v. Street Commrs., 38 N. J. L. 320; State v. Manning, 40 N. J. L. 461; White v. Wager, 185 111. 195, 57 N. E. 26, 50 L. R. A. CO.)</p> <p>Where an inferior court or tribunal exceeds its jurisdiction, certiorari lies, even though there is a right of appeal. (State ex rel. Hamilton v. Ouniette, 156 Mo. 513, 57 S. W. 281; Hyslop v. Finch, 99 111. 171.)</p> <p>The remedy by certiorari could not be taken away without some clear legislative enactment to that effect. (Fitter v. Iiunkle, 39 N. J. L. 259; State v. Falkinburge, 15 N. J. L. 320.)</p> <p>Even though appeal can be taken, certiorari not inhibited. (People v. Donahue, 15 Hun, 418.)</p> <p>In Georgia and Delaware it is held that appeal and certiorari are cumulative remedies. (Boser v. Marlow, R. M. Charlt. (Ga.) 542; Williams v. Buichinal, 3 Harr. 83.)</p> <p>The language, “special order made after final judgment,” in the statute naming appealable orders, does not include action by a judge wholly in excess of his jurisdiction after the satisfaction of a judgment of record. The phrase means some special order of the court made after final judgment affecting the rights of the parties, plaintiffs or defendants, before the entry of satisfaction, on a motion by one of the parties, plaintiffs or defendants.</p> <p>An order can only be made in a cause then pending. (Idaho Rev. Stats., see. 4881.)</p> <p>The jurisdiction of the court over the controversy and over the parties, acquired in the primary action by service of process, continued until its judgment is satisfied. (Phelps v. Mutual etc. Ins. Co., 112 Fed. 453, 50 C. C. A. 339; Freeman on Judgments, 121, 466.)</p> <p>Under a statute similar to our own, it has been held certiorari will lie, even in a case where an appeal is given, if the latter be ineffectual as a remedy. (Paul v. Armstrong, 1 Nev. 82.)</p>

Hon. J. M. Stevens, Judge. Plaintiff moved on the affidavit of the president and manager of plaintiff corporation, and the pleadings and files in the action to set aside a default judgment. Motion was denied and,plaintiff appealed. Where the allegations of an answer, pleaded again in the affirmative form, are in effect only a denial of the allegations of the complaint, they do not constitute a cross-complaint.

<p>Minino Daw — Adverse Suit — Evidence of Mineral Deposit — Comparison With Contiouous Claim — Examination of Claim — Proof of Mineral Discovery.</p> <p>1. Evidence of' the indications miners had successfully followed in the same district and on contiguous ground in attempting to find a lode or mineral deposit is admissible in determining as to whether or not a valid mineral discovery has been made by one who attempted to locate a lode claim on similar indications and showing upon adjacent ground.</p> <p>2. It is incompatible with the spirit of judicial inquiry to allow a litigant to introduce, for comparison, evidence of indications and conditions found on a particular mining property which led up to a rich ore body over which he has absolute control, and from which he may exclude every other person, unless such litigant permit his adversary to examine and inspect such property for the purpose of introducing rebuttal evidence if he so desires; and where such evidence is admitted and examination of the property is denied the adverse party, a new trial will be granted.</p> <p>3. As between a prior and subsequent locator of the same ground as a lode claim, the courts will view the evidence tending to establish the senior locator's discovery in the most favorable light such evidence will reasonably justify.</p> <p>(Syllabus by 'the court.)</p>

Hon. George H. Stewart, Judge. Action to determine adverse claim to real property. Judgment for the plaintiffs. An action to quiet title cannot be maintained against the holder of the legal title by the holder of an equitable title.

Hon. George H. Stewart, Judge. Appellant sought in the lower court to recover on a foreign judgment. Judgment for the defendant. The only question involved is whether section 4051 of the Revised Statutes prevents a recovery in this cause. If it is considered that the revivor of the judgment made by the Nebraska court in 1905 is in effect a judgment, then appellant must prevail.

ORIGINAL application on behalf of William Burgess, John Bailey and John McIIargue, for writs of habeas corpus. The petitioners were convicted in the justice’s court of West Weiser precinct, in Washington county, of the crime of gambling, and appealed to the district court in and for Washington county.' Upon a trial in the district court the defendants were found guilty and sentenced by the judge to each pay a fine of $250, and serve a term of three months in the county jail.

Hon. George H. Stewart, Judge. Action by plaintiff for an accounting of the business, effects and transactions of a partnership, and to recover amount due from a copartner. Judgment for plaintiff. Defendant’s motion for a new trial denied, whereupon he appealed from the judgment and from the order denying his motion.

Hon. Alfred Budge, Judge. Action by plaintiff for the willful, deliberate and unlawful trespass in the herding and grazing their sheep upon the lands of the plaintiff, and within two miles of his dwelling-house. Judgment for plaintiff; defendants appeal. The law provides for no appeal from an order overruling a demurrer, or an order on motion affecting the pleadings. (Code Civ.

<p>APPEAL from the District Court of the Fourth Judicial District for Elmore County. Hon. Lyttleton Price, Judge.</p> <p>Proceeding to remove a county commissioner under the provisions of section 7459 of the Revised Statutes. Demurrer to complaint sustained by trial court.</p> <p>Where a statute confers upon a body or officer a power for the public good or protection, or in which the public is interested, the exercise of that power is mandatory. (20 Am. & Eng. Ency. of Law, 2d ed., 239-242; Hays v. Simmons, 6 Idaho, 651, 59 Pac. 182; Miller v. Smith, 7 Idaho, 204, 61 Pac. 824; Rankin v. Jaumam, 4 Idaho, 394, 39 Pac. 1111; Stewart v. Bole, 61 Neb. 193, 85 N. W. 33; Glyne v. Bingham Go., 7 Idaho, 75, 60 Pac. 76; Ellis v. Bingham County, 7 Idaho, 86, 60 Pac. 79.) County officers have no right to charge their board as an expense while attending to official duties (Stookey v. Board, 6 Idaho, 542, 57 Pac, 312; Reynolds v. Board, 6 Idaho, 787, 59 Pac. 730; Glyne v. Bingham Go., 7 Idaho, 75, 60 Pac. 76), and the act of 1901'does not give them that right.</p> <p>Section 7459 of the Revised Statutes is the sole basis of this action, and appellant must stand or fall upon the interpretation of that section. Unless fraud or intentional misconduct is charged, no cause of action is stated. (Ponting v. Isaman, 7 Idaho, 581, 65 Pac. 434; Rankin v. Jauman, 4 Idaho, 400, 39 Pac. 1111.)</p> <p>The board of commissioners were acting in a judicial capacity, and were clothed with discretion. (People v. Gold-tree, 44 Cal. 323; Hornblower v. Buden, 35 Cal. 664.)</p> <p>The court should be reluctant to interfere, for errors of judgment and slight reasons, with the will of the people as expressed at the ballot box in the election of county officers. (Gorman v. County Commissioners, 1 Idaho, 559.)</p> <p>Absolute equality and strict justice are unattainable in tax proceedings. (Cooley’s Constitutional Limitations, sec. 738.)</p> <p>Powers of a board of health are to be liberally construed. (Gregory v. New York, 40 N. Y. 273; Opjohns v. Board of Health, 46 Mich. 542, 9 N. W. 845; 2 Am. & Eng. Ency of Law, 1st ed., 432.) The act of 1901, pages 226 and 227, provides for all “actual and necessary expenses.” The purpose and intent of the legislature is the vital part of the law, and the primary rule of construction is to ascertain and give effect to that intent. (Sutherland on Statutory Construction, sec. 363.)</p> <p>The allegations are upon information and belief. The informant in a matter of so much moment must be required to avail himself of all the facts at his command and allege positively upon them. (First Nat. Bank v. Watts, 7 Idaho, 510, 64 Pac. 223.) If an officer honestly enters upon the duties of his office, does the best he can but makes mistakes, he is not subject to removal from office and fine. (Pouting v. Isaman, 7 Idaho, 283, 62 Pae. 680, 65 Pac. 434; In re Stow Park Commissioners, 98 Cal. 587, 33 Pac. 490.)</p>

APPEALS from the District Court of Fourth Judicial District for Elmore County. Hon. Lyttleton Price, Judge. The facts in the above cases are substantially the same as in the case of Corker v. Pence, ante, p. 152.

<p>APPEAL from District Court of Fourth Judicial District for Elmore County. Hon. Lyttleton Price, Judge.</p> <p>Defendant appealed from the judgment and order denying the motion for a new trial.</p> <p>A water right may be acquired without any compliance whatever with the statutes relating to the location of water. “A person deciding to appropriate the waters of a stream may do so either by actually diverting the water and applying it to a beneficial purpose, or he may pursue the statutory methods by posting and recording his notice, then commencing and prosecuting his work within the statutory time.” (Sand Point W. é L. Co. v. Panhandle D. Co., 11 Idaho, 405, 83 Pac. 347.) “When an appropriator of water does not post and file notice of location as provided by law, his right only dates from the last act perfecting such appropriation.” (Pyhe v. Burnside, 8 Idaho, 487, 69 Pac. 477.)</p> <p>The purpose and object of the legislature was merely to define with precision the conditions upon which the appropriator of water could have the advantage of the familiar doctrine of relation. (Be Necoches v. Curtis, 80 Cal. 397, 20 Pac. 563, 22 Pac. 198; Murray v. Tingley, 20 Mont. 260, 50 Pac. 723; Farnham on Water Rights, see. 663.)</p> <p>As between two appropriators, neither of whom has complied with the statutes requiring, the posting and recording of the notice of appropriation, the one who has his ditch completed and the water flowing over his land first has the superior right, notwithstanding the other first commenced work on his ditch. (17 Am. & Eng. Ency. of Law, 498; Long on Irrigation, 72.)</p> <p>A statute as to notice is to be construed strictly and rights can be acquired under it only by strict compliance with its terms. (Long on Irrigation, secs. 37, 51; Taylor v. Abbott, 103 Cal. 421, 37 Pac. 408; 17 Am. & Eng. Ency. of Law, 502; Murray v. Tingley, supraj Umatilla I. Go. v. Barnhart, 22 Or. 366, 30 Pac. 30 (37).)</p> <p>Respondent’s grantor had been out of possession for more than two years when he gave the deed. This is the exact condition of fact that existed in the case of Mc-Ginnis v. Stanfield, 6 Idaho, 372, 55 Pac. 1020, where this court held such deed to be without effect.</p> <p>Before secondary evidence can be introduced, it must be shown that a diligent and unsuccessful search was made for the document. (25 Am. & Eng. Ency. of Law, 165.) A deed or other instrument deposited as an escrow is nothing more than a mere scroll until the condition is fully performed or the contingency happens upon the faith of which it was deposited ; and this being so, no title passes prior to that time without the grantor’s consent. (11 Am. & Eng. Ency. of Law, 348, 349.)</p> <p>A person may add from year to year acreage to his cultivated land, and increase his application of water thereto for irrigation as his necessities may demand or as his abilities permit, until he has put to a beneficial use the entire amount of water at first diverted by him and conducted to the point of intended use. (Conant v. Jones, 3 Idaho, 606, 32 Pac. 250; Hall v. Blackman, 8 Idaho, 272, 68 Pac. 19.)</p> <p>The deed of respondent’s grantor conveyed all of his interest in the property described to respondent. (Hay v. Cohn, 65 Cal. 508, 4 Pac. 511.)</p> <p>STATEMENT OF FACTS.</p> <p>This is a contest between two appropriators and users of the waters of Deer Creek in Elmore county. It appears from the evidence that Richard Horton, the predecessor in interest of the plaintiff, settled upon unsurveyed government land on Smith’s prairie, in Elmore county, about August 1, 1899. Horton testified on behalf of the plaintiff as follows: ‘I went upon the land belonging to the plaintiff about August 1, 1899. That fall I cleaned out what ditch there was dug there — that is, a little — and ran it down through there, and then went on with the survey, and found out that the ditch was an old survey by Peterson, who had been on the ground before I went there, was too high. I resurveyed it and cut out some brush, and then winter was on, and I went down to Highland valley and stayed that, winter. Within one hundred and fifty feet of the headgate the ditch struck the line of my land. The water was running in that ditch when I went there. I cleaned it out, and had a little more put into it, before I left that fall. I cut between twenty-five and thirty acres of hay, in 1900, and had about one-half of an acre in garden, and a little patch of wheat for a trial patch. There was no person on the Newell lands when I went there. I improved the land during the summer of 1900, and also irrigated it and cut hay from it in 1901. Mr. Pierce cut the hay that year. In 1902, I sold to the plaintiff Brown. I judge that the ditch would carry two hundred inches after I cleaned it out in the fall of 1899. In 1900 and 1901, I used all of the water of the creek along in July and August.</p> <p>“The man who was on the land before me had abandoned it. I put in a headgate and cleaned out the ditch a little. It was a little over one hundred feet long when I went there. I put in a small headgate made of old drygoods boxes and one thing and another. I made a sort of temporary gate — done well enough; I took a couple of hours to make it and put it in. It took me about one-half day to clean out the ditch, using pick and shovel. That ditch ends right in the field, a little draw that runs down onto the place. I .went on the ground some time in August, and the work above mentioned was done about two months later. I left the property in December. The survey ran too high — either on a dead level or up. The water has been running in that ditch ever since I turned it in in the fall. It is running in there now. From the end of that ditch I commenced my survey. ■ I used that portion of it dug. I began constructing the ditch next spring, the latter end of April, and worked on and off all the time till I got it done, up into the latter end of June. I had water running in on that place — I got the ditch dug the latter end of June, 1900. The hay on the place is wild hay. I sold to plaintiff May 20, 1902. He took possession at that time. I used all the water there was in the creek during July and August of 1900 and 1901.”</p> <p>The plaintiff Brown testified that he took possession of the land on May 20, 1902, receiving possession from Horton; that he had a written agreement with Horton which was left in escrow with one Baker. That Baker thereafter died, and that plaintiff, prior to the trial, made inquiry of Baker’s wife concerning this escrow, and that she could not find it, and that he (plaintiff) did not know the whereabouts of that agreement or contract. He further testified that by virtue of the contract or agreement, Horton conveyed the land and water right in question to the plaintiff, and that plaintiff had paid the sum of $40 on the purchase price at the time the agreement was made and possession delivered. On June 2, 1904, Horton executed and delivered to plaintiff a deed for the land and water right described in the complaint, whereby he conveyed all of his rights, title and interest in and to the property in question. Plaintiff continued to cultivate and irrigate the land from the time of his purchase from Horton until the trial of this case.</p> <p>On May 9, 1900, the defendant Newell settled on a part of the unsurveyed public domain which now belongs to him. Two days previous to that time, his brother, who claimed to be a partner, had made settlement, and commenced to open up an old ditch, and within a couple days the two completed the ditch and turned water through it and onto their land, and have continued ever since to use the water in the irrigation of their land. Defendant is the successor by purchase to all the interest of his brother. At the trial, after the plaintiff had shown the settlement, appropriation and diversion by his predecessor and grantor, Horton, and his purchase from Horton, and entry into possession, and subsequent use and application of the water, he offered to prove the nature of the agreement entered into between him and Horton at the time he took possession. The defendant objected on the grounds that it was not the best evidence, and plaintiff had not shown diligence in his effort to produce the original contract which was in writing. The district court appears to have ruled with the defendant upon this objection, and thereupon the defendant introduced evidence showing his settlement, and also his appropriation and diversion of the waters of Deer creek. The case appears to have been closed and submitted to the court on November 3,1904, with the understanding that briefs were to be furnished by the respective counsel within ten days thereafter. The court immediately adjourned the term. No briefs were furnished by either side, but on the tenth day of December, the plaintiff filed and served a motion to reopen the case and allow him to introduce the written instrument which had been entered into and executed by Richard Horton to the plaintiff on the twenty-first day of May, 1902. This motion was supported by the evidence of Mrs. N. J. Nauerth, who was, at the time the agreement was executed, the wife of L. B. Baker, the holder of the escrow. Thereafter, and at the February, 1905, term of the court, plaintiff’s motion to reopen the case was heard upon the affidavit and agreement which was sought to be introduced, and the motion was granted by the court over the objection of defendant, and theieafter the case was called for hearing further evidence, and the agreement was- offered in evidence by the plaintiff and admitted by the court, and is as -follows:</p> <p>“Smith’s Prairie, Ida., May 21, 1902.</p> <p>“ARTICLE OF AGREEMENT.</p> <p>“This article of agreement, by and between R. Horton, of Smith’s Prairie, Elmore County, Idaho, party of the first part, and Peter Brown, of the same place, party of the second part, witnesseth, that for the consideration of three hundred ($300) dollars, that the said R. Horton, bargains, sells and by these presents does convey to the said Peter Brown, all his rights, title and interest to a piece of land, known as the ‘Buckley Ranch,’ situated on Deer Creek, Smith Prairie, Elmore County, Idaho, together with all appurtenances belonging thereto. The considerations wherein the said party of the first part conveys and quitclaims the above-described property, are that the party of the second part, in payment thereof turns over to the party of the first part, one chestnut sorrel mare, age six years, branded with-, on left shoulder, white strip in face, weight about 900 pounds; also one saddle mare and saddle, valued at forty dollars, also July 31st, 1902, the party of the second part is to pay the party of the first part, one hundred dollars ($100) ; also on October 25, 1902, the party of the second part is to pay to the party of the first part one hundred and sixty ($160) dollars.</p> <p>“RICHARD HORTON,</p> <p>“Witness:</p> <p>“PETER BROWN.</p> <p>“L. B. BAKER,</p> <p>“M. J. BAKER.”</p> <p>The case was finally submitted to the court, and he thereupon made and filed his findings of fact and conclusions of law. The court found that the plaintiff is entitled to a water right of one hundred and fifty inches from Deer creek, to date from March 28, 1900, and that defendant is entitled to a right of one hundred and fifty inches to date from May 12, 1900. The court appears to have found that plaintiff’s appropriation should date from the posting of his notice of water location. Judgment was entered decreeing the rights and priorities of plaintiff and defendant in accordance with the findings. Defendant Newell has appealed from the judgment and order denying the motion for a new trial.</p>

<p>Embezzlement by County Officer — When Information Sufficient to Charge — Payment to Sheriff of Money for Retail Liquor Dealer’s License — His Duty — Instructions to Jury as to Cause of Embezzlement — When not Error to Refuse to Give Requests to Appellant — Employment of Private Counsel.</p> <p>1. The crime of embezzlement is committed by an officer of any county, city or municipal corporation of this state when he fraudulently appropriates to his own use any money or property which he has in his possession or under his control by virtue of his trust as sueh officer. (Rev. Stats., sees. 7065, 7066.)</p> <p>2. An information that charges a sheriff of a county of this state with willfully, unlawfully, fraudulently and feloniously appropriating to his own use certain money paid to him in his official capacity is sufficient under the provisions of sections 7065, 7066, supra.</p> <p>3. Attorneys other than the attorney general in this court, or the county attorney in the lower court, may assist in the prosecution by and with the consent of the prosecuting officer, and it is not error to allow such appearance in the trial court.</p> <p>4. When the court on its own motion has fully and fairly instructed the jury on all the essential elements constituting the crime of embezzlement, it is not error to refuse requests for' instructions by counsel for appellant.</p> <p>5. Instructions in this ease examined, and no error appearing. Held, sufficient to sustain the judgment.</p> <p>(Syllabus by the court.)</p>

<p>Appeal — Dismissed on Motion When.</p> <p>1. A motion to dismiss an appeal will be sustained wken it is skown tkat counsel for 'appellant kas been served witk such notice and fails to appear and resist suck motion, unless it appears to the court tkat appellant is not guilty of laches.</p> <p>(Syllabus by the court.)</p>

Hon. Frank J. Smith, Judge. Action to recover commission for sale of real estate. Judgment for the defendant. Where the court fails to find on all the material issues, the judgment must be reversed.

Hon. Frank J. Smith, Presiding Judge. Action on a promissory note. Judgment by default against defendant Baldwin, and judgment of nonsuit in favor of defendant Bowers. Plaintiff appealed. On a motion for nonsuit, the court must accept as proven every fact which the evidence tended to prove, and which was essential to be proven, to entitle the plaintiff to a recovery upon the cause of action as stated in the complaint. (Dow v. Gould & Gurry Silver Min.

Hon. Frank J. Smith, Judge. Defendant was convicted of the crime of grand larceny, and appealed from 'the judgment and order overruling a motion for new trial. There being no evidence that the defendant was connected with the branding, there was no evidence of a taking by him. (Black v. State, 38 Tex. Cr.

<p>Annual Assessment Work on Mining Claims.</p> <p>1. Under the evidence in this ease, held, that the annual assessment work on the quartz mining claims located and known as the “Mother Lode,” the “Northeastern Extension of the Mother Lode” and “Canary” mining claims for the year 1902, was done.</p> <p>(Syllabus by the court.)</p>

<p>Appeal Dismissed When.</p> <p>1. When the transcript on appeal has not been filed with the clerk of this court within the time provided by the rules, and it does not appear that an extension of time has been granted, a motion to dismiss the appeal will be sustained.</p> <p>(Syllabus by the court.)</p>

Hon. R. T. Morgan, Judge. Plaintiffs sued for $12,000 damages. Defendants demurred ; demurrer sustained. Judgment for costs in favor of respondent. The complaint shows a continuing, growing and destructive public nuisance, specially injurious to plaintiffs, and threatening to become more destructive, and the cause of action is stated in plain and concise language. A complaint need not negative the lawfulness of an obstruction or its continuance, or that it was unavoidable.

Hon. E. C. Steele, Judge. Defendant was prosecuted for the crime of statutory rape, was convicted, and, after sentence, was granted a new trial. State appeals.

<p>Habeas Corpus — Interstate Extradition — Illegal Rendition — How and When Can be Questioned — Manner of Arrest — Motives for Issuance of Executive Warrant — Fugitive From Justice — - Jurisdictional Question — Determination Quasi Judicial — When Ceases to be Federal Question.</p> <p>1. Where the accused is personally within the jurisdiction of the demanding state and there applies to the court for his discharge on habeas corpus, he cannot raise the question as to whether or not he has been, as a matter of fact, a refugee from the justice of that state within the meaning of the federal constitution and the act of Congress authorizing interstate extradition.</p> <p>2. The action and conduct of the chief executive of the state in which the accused was found in issuing the executive warrant and of the executive and ministerial officers acting in aid of his warrant, is a matter for the consideration of the courts of his state, subject to the reviewing authority of the federal courts in so far as the federal question is involved, and is not a question open to examination or consideration by the courts of a foreign state.</p> <p>3. The warrant of the chief executive of the state surrendering an accused person, whether issued lawfully or unlawfully, has accomplished its purpose and become functus officio as soon as the accused is delivered into the jurisdiction of the demanding state, and the regularity of its issuance thereupon ceases to be a question for judicial inquiry on application by the prisoner for his discharge, where he is at the time held under due and legal process issued out of a court of competent criminal jurisdiction of the demanding state.</p> <p>4. The motives which prompt the chief executive of a state to issue his warrant for the rendition of a prisoner are not proper subjects of judicial inquiry. Such inquiry would be opposed to public policy and the freedom of aetion of the executive department of government.</p> <p>5. The fact that a wrong has been committed against a prisoner in the manner or method pursued in subjecting his person to the jurisdiction of a state, against the laws of which he is charged with having transgressed, can constitute no legal or just reason why he should not answer the charge against him, when brought before the proper tribunal. The commission of an offense in his arrest does not expiate the offense with which he is charged.</p> <p>6. The jurisdiction of a court in which an indictment is found or an accusation is lodged is not impaired by the manner in which the accused is brought before the court.</p> <p>7. In interstate extradition the prisoner is only held under the extradition process until such time as he reaches the jurisdiction of the demanding state, and is thenceforth held under the process issued out of the courts of that state, and it necessarily follows that there is no longer a federal question involved in his detention.</p> <p>8. Return of the officer and answer of the prisoner examined and considered in this case, and, held, that the prisoner is being detained under process duly and regularly issued by a court of competent criminal jurisdiction, and that he is not entitled to a discharge on habeas corpus.</p> <p>(Syllabus by the court.)</p>

APPLICATION of William D. Haywood for a writ of habeas corpus. Writ issued, and case heard and considered on the return and supplemental return of the officer and the answer of the petitioner. Writ quashed, and prisoner remanded to the custody of the officer.

Every possible presumption is to be indulged in favor of the validity of the statute. (Fletcher v. Peck, 6 Cranch, 128, 3 L. ed. 162; Ogden v. Saunders, 12 Wheat. 270, 6 L. ed. 606; Mulger v. Ka/nsas City, 123 U. S. 623, 31 L. ed. 205, 8 Sup. Ct. Rep. 273.) Section 3, article 18, of the Idaho constitution does not apply to acts that do not purport to amend or revise.

<p>Constitutional Daw — Jurisdiction op Probate Courts — Liens and Mortgages — Actions at Law — Courts op Record — Law and Equity — Amendment to Section 3841, Revised Statutes Void.</p> <p>1. Under the organic act of the territory of Idaho from its passage to December 13, 1870, the probate courts of the territory of Idaho had no jurisdiction to hear and determine civil cases, but had original jurisdiction in all matters of probate, settlement of estates of deceased persons and appointment of guardians. On the thirteenth day of December, 1870, Congress passed an act giving to the probate courts of Idaho territory, in addition to their probate jurisdiction, jurisdiction to hear and determine all civil cases wherein the debt or damage claimed did not exceed the sum of $500, exclusive of interest, and jurisdiction in criminal cases arising under the laws of the territory that did not require the intervention of a grand jury.</p> <p>2. Under the provisions of section 21 of article 5 of the state constitution probate courts are given original jurisdiction in all matters of probate, settlement of estates of deceased persons and appointment of guardians, and also jurisdiction to hear and determine all civil, cases wherein the debt or damage claimed does not exceed the sum of $500 exclusive of interest, and concurrent jurisdiction with justices of the peace in criminal eases.</p> <p>3. The civil cases referred to in said section are such cases as are required to be settled in actions at law, and do not include suits in equity for the foreclosure of liens or mortgages on real estate.</p> <p>4. Probate courts are courts of record only in matters of probate, settlement of estates of deceased persons and the appointment of guardians, and are not courts of record in proceedings in civil and criminal actions.</p> <p>5. While by the provisions of section 1, article 5 of the state constitution the distinctions between actions at law and suits in equity and the forms of such actions and suits are prohibited, that does not abolish the rules of law and equity.</p> <p>6. The legislative act approved February 27, 1903 (Sess. Laws, p. 94), amending the ninth subdivision of section 3841, Revised Statutes, wherein it extends the jurisdiction of the probate court to try and determine actions to enforce mechanics’ and laborers’ liens and mortgages and other liens upon real property, held, unconstitutional and void.</p> <p>(Syllabus by the court.)</p>

Hon. E. C. Steele, Judge. Plaintiff commenced its action to remove an obstruction from a street or highway and for damages. Judgment for plaintiff that the nuisance be abated, from which, and an order overruling a motion for new trial, defendant appeals. The doctrine of user d.oes not apply to duly laid out and recorded highways, and the respondent is entitled to the twenty-foot alley and no more.

Hon. Ralph T. Morgan, Judge. Respondent obtained a judgment in a justice’s court and the defendant appealed to the district court. The appeal was dismissed by the district court and judgment of dismissal thereupon entered, from which judgment the defendant appealed to the supreme court.

Hon. Balph T. Morgan, Judge. Action for malicious prosecution. Demurrer to complaint sustained and judgment of dismissal entered. It is not necessary to prove that the defendants were the originators of the proceedings complained of. If they participated voluntarily in the malicious prosecution, and it was carried out with their countenance and approbation, they will be liable.

<p>APPEAL from the District Court of the First Judicial District for Kootenai County. Hon. Ealph T. Morgan, Judge.</p> <p>Action for malicious prosecution. Demurrer to complaint sustained and judgment of dismissal entered.</p>

Hon. Ralph T. Morgan, Judge. Hans J. Rice, county treasurer of Shoshone county, and ex-officio public administrator, appealed from the action of the board of county commissioners of Shoshone county in refusing to him a quarter’s salary as county treasurer, which order and action of the board was based on the neglect and refusal of the treasurer to account for the fees and compensation collected by him as public administrator.

Hon. Edgar C. Steele, Judge. The appellant, Milt Simes, was convicted of the crime of rape committed on a female of unsound mind, and sentenced to imprisonment in the state penitentiary for a term of six years. From the judgment and an order denying his motion for a new trial be appealed.

Hon. Edgar C. Steele, J udge. Action by W. R. Trull, the beneficiary named in a benefit certificate issued by the Modern Woodmen of America on the life of John B. Trull, to recover the sum of $2,000, the amount for which the certificate was issued. Verdict and judgment for the plaintiff, and defendant moved for a new trial. New trial denied and the defendant appealed from the judgment and order denying a new trial. Appeal from the order denying a new trial dismissed.

Hon. Edgar C. Steele, Judge. Plaintiff sues for damages and verdict rendered in his favor. Defendant appeals from the order overruling a motion for a nonsuit and the judgment. A party will not be permitted to bring his action to quiet title against a defendant and allege damages, then upon the trial of the cause dismiss his damage, and immediately thereafter file another action for damages and injunction.

Hon. George H. Stewart, Judge. Appellant was prosecuted on information by the county attorney, charged with the crime of manslaughter and was convicted as charged. He moved for a new trial and his motion was denied, and he thereafter appealed from the judgment and order. The defendant not only has the right to be present at every stage of his trial, but he must be present — it is a right which he cannot waive.

Hon. James M. Stevens, Judge. Action to quiet title to certain real estate. Judgment for the defendants. In all cases where the location of the true boundary line is known to the owners of contiguous estates, and they undertake for any reason to transfer land from one to the other by a parol agreement, whereby the location of such known boundary is changed, then the statute of frauds will inflexibly apply, and such agreement will be void. (4 Am. & Eng.

Hon. George H. Stewart, Judge. Action by plaintiff to recover damages for the wrongful and unlawful severing and removal of certain fixtures from a building owned by plaintiff. From a judgment in favor of defendants, plaintiff appeals. The term “bar-room fixtures” means fixtures in a barroom, and when the word “fixtures” is used in such connection it means something affixed to the realty. (Hogard v. California Ins.

Hon. Edgar C.- Steele, Judge. Action to recover commissions for procuring a purchaser for an alleged sale of real estate. Judgment for plaintiffs.

Hon. Edgar C. Steele, Judge. Action to recover commission for sale of real estate. Judgment for the plaintiffs. Submitted on the same briefs as the case of Spotsivood v. Morris, ante, p. 360, 85 Pac. 1094.

County. Hon. James M. Stevens, Judge. Action to recover the value of property sold under foreclosure of chattel mortgage. Judgment for the plaintiff. Litigants are at liberty to prescribe the issues to be tried and modify and limit the issues made or to be made by the pleadings, or to -waive the issues made by the pleadings on file and stipulate for a trial on the merits, regardless of such issues.

Hon. George H. Stewart, Judge. Proceedings for probate of will. Application denied. The notice of motion should specify with particularity the precise grounds upon which the moving party will base his right to the relief sought, and a noncompliance with this rule is a sufficient ground for denying the motion. (14 Ency. of PI. & Pr., 136, and cases cited; Estee’s Pleading, 4th ed., sec. 4401; Sawyer & Briggs v. Schoonmaker, 8 How. Pr. 198; Bailey & Southard v. Lane, 21 How.

Plon. George H. Stewart, Judge. From an order taxing costs in favor of plaintiff, defendant appealed. Where a witness resides and is served out of the county and more than thirty miles from the place of trial, his mileage fees cannot be taxed against the losing party. (Mylius v. Si, Louis etc. B. Co., 31 Kan. 232, 1 Pac. 619; Hereford v. O’Connor, 5 Ariz. 258, 52 Pac. 471; Sapp v. King, 66 Tex. 570, 1 S. W. 466; Marks v. Fields (Tex. Civ.

<p>APPEAL from District Court of the Third Judicial District for Ada County. Hon. George H. Stewart, Judge.</p> <p>Appellant was prosecuted in the lower court on information of the prosecuting attorney charging him with murder, and was found guilty of murder in the first degree. Judgment pronouncing the death penalty was entered, from which and an order overruling a. motion for a new trial,- the appeal is taken.</p> <p>Whenever corroboration of the testimony of an accomplice is required it must be as to material facts. (Kenyon v. People, 26 N. Y. 203, 84 Am. Dee. 177; People v. Plath, 100 N. Y. 593, 53 Am. St. Rep. 236, 3 N. E. 790; People v. Courtney, 28 Hun (N. Y.), 589; People v. Williams, 29 Hun (N. Y.), 520; State v. Spencer, 15 Utah, 49, 49 Pac. 302; People v. Thompson, 50 Cal. 480; People v. Morton, 139 Cal. 719, 724, 73 Pac. 609; Frazer v. People, 54 Barb. 310; People v. Koening, 99 Cal. 574, 576, 34 Pac. 238.)</p> <p>The accomplice having gone upon the stand and disclosed matters which she might have refused to answer, she waived her privilege, and defendant had the right to cross-examine her thoroughly upon all matters connected with her direct examination. (State v. Larkin, 5 Idaho, 200, 47 Pac. 945.) In no event should her counsel have been permitted to make 'the claim of privilege for her, the rule being that the claim is for the witness alone to assert. (1 G-reenleaf on Evidence, 16th ed., 613; Underhill on Criminal Evidence, 304; State v. Kent (State v. Pancoast), 5 N. Dak. 516, 67 N. W. 1052, 35 L. R. A. 518; State v. Wentworth, 65 Me. 234, 20 Am. Rep. 688.)</p> <p>After the court instructs the witness that he need not answer, as was done by the magistrate in this case, the witness may then answer if he choose to do so, and if after such caution he answers the question fully, he may then be compelled to divulge every detail of the incriminating transaction. (Underhill on Criminal Evidence, sec. 247, citing Williams v. State, 98 Ala. 52, 13 South. 333; Commonwealth v. Pratt, 126 Mass. 462; State v. Van Winkle, 80 Iowa, 15, 45 N. W. 388; 3 Rice on Criminal Evidence, 517, 518, 521, citing Commonwealth v. Price, 10 Gray, 472, 71 Am. Dec. 688; State v. Foster, 23 N. H. 348, 55 Am. Dec. 191; Foster v. Pierce, 11 Cush. 437, 59 Am. Dec. 152; Foster v. People, 18 Mich. 276; State v. Oler, 52 N. H. 459, 13 Am. Rep. 88.)</p> <p>An accomplice is not entitled to the same privilege as an ordinary witness. (Alderman v. Epole, 4 Mich. 414, 9 Am. Dec. 321.) Great latitude should be allowed in the cross-examination of an accomplice. (3 Rice on Criminal Evidence, 517.)</p> <p>The right to cross-examine witnesses is a substantial right of great advantage to the accused, which, if denied, deprives him of a valuable right. (Matter of Cessner, 53 How. Pr. (N. Y.) 519.)</p> <p>A correct instruction cannot be said to modify or supplement a wrong one, as is the ease where they are not contradictory. (Hughes’ Instructions to Juries, sec. 247, and eases cited; Lufkins v. Collins, 2 Idaho, 152, 7 Pae. 95; Holt v. Spokane B. B. Co., 3 Idaho, 703, 35 Pac. 39; State v. Well, 6 Idaho, 428, 55 Pac. 892.)</p> <p>The giving of two instructions widely differing, from each other on the same vital point in issue in a case is such error that a new trial will be given. An absolute misstatement of the law in giving instructions is not corrected by properly stating the law in other instructions. (Hughes’ Instructions to Juries, sec. 248; Sackett’s Instructions to Juries, 2d ed., sec. 27, and cases cited; Machey v. People, 2 Colo. 13; People v. Campbell, 30 Cal. 312; Clair v. People, 9 Colo. 122, 10 Pac. 799.)</p> <p>And it must affirmatively appear that an error in a charge did not prejudice defendant, or it is cause for reversal.</p> <p>The case of an accused in a criminal trial who voluntarily takes the stand is different from that of the ordinary witness. Here his privilege has protected him from being asked even a single question, for the reason that no relevant fact that could be inquired about would not tend to criminate him. (4 Wigmore on Evidence, 3153, par. 2276.) But a witness situated as Mrs. Daly was may be compelled to be sworn and to answer all such questions as will not incriminate him, and whether a question will necessarily elicit such answer is not left solely to the judgment or caprice of the witness; the court must rule on the objection. (Ex parte Stice, 70 Cal. 51, 11 Pac. 459; In re Rogers, 129 Cal. 468, 62 Pae. 47; Overend v. Superior Court, 131 Cal. 280, 63 Pac. 372; People v. Plyler, 121 Cal. 160, 53 Pac. 553.)</p> <p>The crime itself was a distinct act, and to have compelled her to give evidence showing her an accessory would have violated her privilege. (Evens v. O’Conner, 174 Mass. 287, 75 Am. St. Rep. 316, 54 N. E. 557; Lombard v. Mayberry, 24 Neb. 671, 8 Am. St. Rep. 234, 40 N. W. 271; Emery v. State, 101 Wis. 627, 78 N. W. 145.)</p> <p>Mere irregularities or defects in the preliminary examination of a charge will not render it invalid unless they actually prejudice the defendant, or tend to his prejudice in respect to some substantial right. (State v. Clark, 4 Idaho, 7, 35 Pac. 710; People v. Rodrigo, 69 Cal. 601, 11 Pac. 481; State v. Bailey, 32 Kan. 83, 3 Pac. 769; People v. McCurdy, 68 Cal. 576, 10 Pae. 207; People v. Van Horn, 119 Cal. 323, 51 Pac. 538; Hamilton v. People, 29 Mich. 173.)</p> <p>Counsel have the right in protecting their clients to raise the point of privilege and call the ■ attention of the court to the matter. (State v. Kent, 5 N. Dak. 516, 67 N. W. 1052, 35 L. R. A. 518.)</p> <p>The scope and purpose of a preliminary examination is merely to ascertain that a public offense has been committed, and that there is sufficient cause to believe the defendant guilty thereof. (Rev. Stats. 1887, 7579; State v. Potter, 6 Idaho, 584, 57 Pae. 431; In re Levy, 8 Idaho, 53, 66 Pac. 806; In re Mitchell, 1 Cal. App. 396, 82 Pae. 347; Jahnke v. State, 68 Neb. 154, 94 N. W. 158, 104 N. W. 154.)</p> <p>The relations shown to have existed between the defendant and his accomplice supply corroboration of the accomplice’s testimony as to motive. (People v. Cook, 148 Cal. 334, 83 Pae. 43.)</p> <p>Illegality in the mode of obtaining evidence cannot exclude it, but must be redressed, or punished, or resisted by appropriate proceedings otherwise taken. (3 Wigmore on Evidence, sec. 2183.)</p> <p>Defendant’s letter was introduced for the sole purpose of showing motive, and it was by the court limited to this purpose. If it is admissible for the purpose claimed, then the other consideration that it may discredit the defendant with the jury cannot bar its admission, but requires only that its purpose be limited by instructions from the court. (1 Wig-more on Evidence, see. 13; Conde v. State, 35 Tex. Cr. 98, 60 Am. St. Rep. 22, 34 S. W. 286; Thornley v. State, 36 Tex. Cr. 118, 61 Am. St. Rep. 837, 34 S. W. 264; People v. Gray, 66 Cal. 271, 5 Pac. 240.)</p> <p>For the purpose of proving motive for the murder of the deceased, evidence of the declarations of the defendant tending to show intimate friendship or meretricious relations between him and the wife of the deceased is competent; and the fact that the declarations were of a vague and general character goes to their weight and not to their admissibility. (People v. Brown, 130 Cal. 591, 62 Pac. 1072.)</p> <p>Instructions must never be considered separately, but each as limiting and interpreting other portions, and if the law is correctly stated when the instructions are thus considered, the verdict and judgment will not be disturbed. (Kennon v. Gilmer, 5 Mont. 257, 51 Am. Rep. 45, 5 Pac. 847; People v. Armstrong, 114 Cal. 570; People v. Cleveland, 49 Cal. 577; People v. Warren, 130 Cal. 683, 63 Pae. 86; People v. Dole, 122 Cal. 468, 68 Am. St. Rep. 50, 55 Pae. 581; State v. Corcoran, 7 Idaho, 220, 61 Pac. 1034.) The testimony necessary to corroborate that of an accomplice need not be strong. (People v. McLean, 84 Cal. 480, 24 Pac. 32; People v. Melvane, 39 Cal. 616; People v. Clough, 73 Cal. 348, 15 Pae. 5.)</p> <p>The strength or credibility of the corroborating evidence is for the jury. (People v. Barker, 114 Cal. 617, 46 Pac. 601.)</p>

Hon. James M. Stevens, Judge. Action to foreclose a contractor’s lien and cross-action by defendants to recover damages. Judgment for defendants. The special verdict of the jury must pass upon all the material issues so as to enable the court to pass upon the pleadings and verdiet, which party is entitled to recover in this case, i Hodges v. Easton, 106 U. S. 413, 27 L. ed. 169, 1 Sup. Ct. Rep. 307; Ward v. Cochran, 150 ü. S. 597, 37 L. ed. 1195, 14 Sup. Ct.

Hon. Frank J. Smith, Judge of the Seventh Judicial District, presiding. Action to procure a writ of mandate; demurrer to complaint was sustained and a judgment was entered dismissing the action. Plaintiffs appealed. All persons having an interest in the subject of the action and in obtaining the relief demanded may be joined as plaintiffs, except when otherwise provided in this code.

Hon. Frank J. Smith, Judge. Judgment of the district court rendered on appeal from an order of the board of county commissioners. A county officer must account for and pay all fees over to the county and report to the board each quarter. (Const., art. 18, sec. 7; Sess.

<p>APPEAL from the District Court of tbe Fourth Judicial District for Elmore County. Hon. Lyttleton Price, Judge.</p> <p>Action to recover a money judgment. Judgment for plaintiff. Motion to dismiss appeal.</p>

ORIGINAL application for appointment of a receiver pending appeal.

Hon. James M. Stevens, Judge. Appellant was charged with the crime of grand larceny, was tried, convicted and sentenced. He appeals from the judgment and from an order overruling a motion for a new trial. The defendant’s explanation of his possession was reasonable and fair, and amply corroborated and uncontradicted in every respect, and should not have been disregarded.

Hon. Frank J. Smith. Judge. The defendant was convicted of grand larceny and sentenced to imprisonment for sis years. The larceny became complete when the cattle were driven from the place where found by parties other than the defendant. (People v. Myer, 75 Cal. 383,17 Pac. 431.) The bare possession of property recently stolen is not conclusive evidence of guilt. Especially is this so of property of the kind involved in this case.

<p>ORIGINAL application for a writ of habeas corpus. Writ granted and ease heard on return made by the warden of the penitentiary.</p> <p>Where a prisoner is released on parole and the term of his sentence is not specifically suspended, it continues to run and expires as it would had he served his term in the manner originally intended. The parole is a change of manner of punishment only and not a suspension of the sentence. (Woodward v. Murdoch, 124 Ind. 444, 24 N. E. 1047; West’s Case, 111 Mass. 443.)</p> <p>The statutes of Idaho provide that before the good time allowed by law is taken from a convict, charges must be made by the warden and sustained by the board of prison commissioners. (Idaho Code, 1901, secs. 5864, 5868.)</p> <p>It is not shown by the state that any charges were made and sustained against Prout to justify the warden in depriving him of the six months’ good time otherwise allowed by law.</p> <p>The parole agreement in this case is in- the nature of a conditional pardon. The power to grant conditional pardons is expressly granted to the board by the constitution. (Idaho Const., art. 4, sec. 7; Fuller v. State, 122 Ala. 32, 82 Am. St. Rep. 17, 26 South. 146, 45 L. R. A. 502; In re Conditional Discharge of Convicts, 73 Yt. 414, 51 Atl. 10, 56 L. R. A. 658.)</p> <p>Any condition that is not immoral or impossible to perform is valid. That the prisoner leave the state is a lawful condition attached to a pardon. (State v. Barnes, 32 S. C. 14, 17 Am. St. Rep. 832, 10 S. E. 611, 6 L. R. A. 743; People v. Potter, 1 Park. Or. Rep. 47; State v. Addington, 2 Bail. (S. C.) 516, 23 Am. Dec. 150.)</p>

<p>Payment or Warrants Drawn on Special Pund — Current Expenses op County Government. ■</p> <p>1. Under the act of March 10, 1903 (Sess. Laws 1903, p. 204), providing for the annexation of a portion of Shoshone county to Nez Perce county, as construed in Shoshone County v. Thompson, 11 Idaho, 130, 81 Pac. 73, and Shoshone County v. Profit, 11 Idaho, 763, 84 Pac. 812, warrants drawn by Nez Perce county in favor of Shoshone county for the proportionate part of indebtedness to be borne by the detached territory are payable out of a special fund to be raised from taxation, and the cash received by Nez Perce county from Shoshone county from money on hand at the time of annexation is not available for the payment of such warrants.</p> <p>2. The cash received from money in the treasury at the time of annexation was available for the payment of current expenses and intended to compensate Nez Perce county for its outlay in maintaining county government in the annexed territory during the time for which it could not levy and collect taxes from that territory-</p> <p>(Syllabus by the court.)</p>

Hon. Lyttleton Price, Judge. Action to determine the ownership of mining claims. Judgment for the plaintiff. No sufficient undertaking on appeal was filed in this cause, upon the appeal from the judgment or from the order overruling the motion for new trial, the undertaking filed being fatally ambiguous. (Baker v. Railway Co., 8 Idaho, 361, 66 Pac. 806; Wallace v. McKinley, 6 Idaho, 95, 53 Pac. 104; Kelly v. Leachman, 5 Idaho, 521, 51 Pac. 407, and cases cited.)

Hon. Lyttleton Price, Judge. Plaintiff commenced his action for an accounting. Referee appointed and reported in favor of plaintiff. Report and findings adopted by the court and judgment rendered accordingly. Both plaintiff and defendant appeal. Where the court fails to find on all the material issues, the judgment must be reversed.

<p>APPEAL from the District Court of the Fourth Judicial District for Blaine County. Hon. Lyttleton Price, Judge.</p> <p>Respondent commenced his action for damages for personal injuries sustained while at work in appellant’s mine. Judgment for plaintiff, from which and an order overruling a motion for a new trial, the appeal is taken.</p> <p>A complaint in which a cause of action is stated for the recovery of damages for personal injuries should contain and state with precision an allegation or statement of the facts and circumstances from which it is shown that the defendant owed a legal duty to the plaintiff. An allegation of a duty standing alone is insufficient. (Chicago etc. B. Go. v. Clausen, 173 111. 100, 50 N. E. 680; Gibson v. Leonard, 37 111. App. 244, 349; Angus v. Lee, 40 111. App. 304.)</p> <p>The pleader must state facts from which the law will raise a duty and show an omission of duty and resulting injury. {Taylor v. Felsing, 164 111. 331, 45 N. E. 161.)</p> <p>A declaration for wrongfully and negligently injuring or killing another, without stating the facts constituting the negiigenee, ought to be held insufficient. (Cotton Oil Co. v. Shamblin, 101 Tenn. 263, 47 S. W. 496; Chicago etc. B. Co. v. Harwood, 90 111. 425.)</p> <p>The affidavits in the transcript, not being a part of the judgment-roll, nor incorporated into any bill of exceptions, should be stricken from said transcript. (State v. Larkins, 5 Idaho, 200, 47 Pae. 945; Rich v. French, 3 Idaho, 727, 35 Pac. 173; Stickney v. Hanrahan, 7 Idaho, 424, 63 Pac. 189; Fish v. Benson, 71 Cal. 431, 12 Pac. 454.)</p> <p>On appeal from order heard upon affidavits the only proper mode of authenticating such affidavits on appeal to this court is by bill of exceptions. (Somers v. Somers, 81 Cal. 608, 22 Pac. 967.)</p> <p>The instructions set out in the transcript should be stricken out, as they are not embodied in a bill of exceptions and are not part of the judgment-roll. (Rev. Stats. 1887, sec. 4456.)</p> <p>The purported bill of exceptions in this case, or statement on motion for a new trial, should be stricken from said transcript, as said statement is not properly authenticated by the trial judge, and the record shows that said statement or bill of exceptions was- not authenticated by the judge after, being engrossed, as required by law and the practice of this court. It is the duty of the appellant to furnish the supreme court a complete, clean, properly arranged and properly authenticated transcript. (Kimble v. Semple, 31 Cal. 657; Thompson v. Patterson, 54 Cal. 547; Cosgrove v. Johnson, 30 Cal. 509.)</p> <p>The proper practice is to engross a statement and have the authentication of the judge indorsed on engrossed statement. {Pence v. Lemp, 4 Idaho, 526, 43 Pac. 75; Hattabangh v. Volmer, 5. Idaho, 23, 46 Pac. 831.)</p> <p>The statement on motion for a new trial and amendments, as allowed by the court, must be engrossed into one, and authenticated by signature of the judge in order to be regarded as the statement required by law and to be considered on appeal. {Smith v. Davis, 55 Cal. 26; Sawyer v. Sargent, 65 Cal. 260, 3 Pac. 872.)</p> <p>Clerk’s certificate that statement is the same which was used on motion for a new trial is entitled to no weight, as the clerk is not authorized to verify a statement in that form. {Fee v. Starr, 13 Cal. 170; People v. Bartlett, 4.0 Cal. 142.)</p>

Hon. Frank J. Smith, Judge. Action by plaintiff through his guardian ad litem, against the defendant, the city of Weiser, for damages on account of personal injuries sustained by coming in contact with a live wire suspended across the street so low as to interfere with travelers along such thoroughfare. Judgment for plaintiff and defendant moved for a new trial. Defendant appealed, from the judgment and from the order denying his motion.

Hon. Ralph T. Morgan, Judge. Appeal from an order denying a change of venue on the ground of prejudice of the judge. The declaration of rights in our constitution is self-acting, self-executing and requires no legislative provision for its enforcement, and cannot be annulled, abridged or modified by any legislative or judicial act..

Hon. Alfred Budge, Judge. The defendants were convicted of grand larceny and sentenced to a term of eighteen months’ imprisonment. The test as to whether a verdict is sufficiently clear as to its import is, whether a conviction thereof could be successfully pleaded in bar of another prosecution for the same offense. (Chambers v. People, 4 Scam. 351; Bland v. State, 4 Tex.

<p>Constitutional Law — Apportionment op Members op Legislature —Intent op Legislature — Creation op New Counties — Act Creating Invalid.</p> <p>1. The legislature undertook to create the counties of Lewis and Clark out of Kootenai county, including in said Lewis and Clark counties the entire area included in Kootenai county, and thereafter passed an apportionment bill which was approved on the seventh day of March, 1905, whereby the said counties of Lewis and Clark were each given one senator and two representatives, and each of the other counties of the state one senator and from one to five representatives. Thereafter the said act creating Lewis and Clark counties was held unconstitutional and void. Seld, that as the legislative intent was to give each county one senator and representatives according to the number of votes cast at the last preceding election, Kootenai county was entitled to one senator and four representatives.</p> <p>2. Said act of apportionment held valid and constitutional, except wherein it awarded two senators to Lewis and Clark counties.</p> <p>(Syllabus by the court.)</p>

Hon. George H. Stewart, Judge. Action to recover money paid on an escrow agreement. Judgment for the respondents. A proposal to accept, or an acceptance based upon terms varying from those offered, is a rejection of the offer. (Bank v. Hall, 101 U. S. 51, 25 L. ed. 822; Tilley v. County -of Cook, 103 U. S. 161, 26 L. ed. 374.) There must be strict compliance with the terms of the option in order to perfect the rights of the one holding it to enforce the contract.

Hon. Ralph T. Morgan, Judge. Action to restrain the enforcement of a judgment at law. Judgment on demurrer for the defendants. It must be conceded, under the allegations of the complaint, taken as confessed by the demurrer, that the judgment which respondent Miller obtained against appellants, the enforcement and collection of which is sought to be permanently enjoined and to be vacated and set aside, was obtained by fraud on the part of respondent Miller.

<p>OKIGINAL application for a writ of prohibition. Defendant demurred to the petition.</p> <p>A bond intended for both stay and appeal, but insufficient for both purposes, is still good as an appeal bond, if it contains all the necessary conditions of an undertaking on appeal. (Hayne on New Trial and Appeal, see. 213; Zoller v. McDonald. 23 Cal. 136; Ward v. Superior Court, 58 Cal. 519; Dobbins v. Dollarhide, 15 Cal. 374; Mokelumne Hill G. & M. Co. v. Woodberry, 10 Cal. 186; Zapp v. Michaelis, 56 Tex. 395; Cruger v. Douglas, 8 Barb. (N. Y.) 81; Balph v. Hoggart, 2 La. Ann. 462; 'Lewis v. Splane, 2 La. Ann. 754; Ludeling v. Frellsen, 4 La. Ann. 534; Marshall v. Grand Gulf Co., 5 La. Ann. 360.)</p>

ORIGINAL application for a writ of habeas corpus to de- termine the right to the care and custody of minor child. That the parent, if living and not shown to be incompetent, is absolutely entitled to the guardianship of the child is firmly settled by the decisions of the supreme court of California upon statutes practically identical with our own.

Hon. Edgar C. Steele, Judge. Action by plaintiffs for surrender and cancellation of certain promissory notes. Judgment for defendants and plaintiffs moved for a new trial, which was denied. Plaintiffs appealed from the judgment and order. Conditions inserted in a contract, and involving forfeiture of a right of a recovery of damages for a breach thereof, must be strictly construed.

Hon. Ralph T. Morgan, Judge. Action on account brought before justice of the peace and appealed to the district court, where judgment was affirmed for the plaintiffs.

Hon. Ralph T. Morgan, Judge. Plaintiffs commenced their action to recover $40,000 damages for the loss of life of the husband and father. At the close of the evidence for plaintiffs a motion for nonsuit was sustained and judgment for costs against plaintiffs. The appeal is from an order overruling a motion for a new trial.

Hon. Edgar C. Steele, Judge. Action by plaintiffs to recover upon a policy of fire insurance. Plaintiffs introduced their evidence and rested their case, whereupon the court granted a nonsuit on motion of defendant. Plaintiffs appeal from the judgment and from an order denying a motion for a new trial. The facts as alleged in plaintiff’s amended complaint and established by the evidence makes a strong prima facie case, and should have been submitted to the jury.

Hon. Edgar C. Steele, Judge. Action to recover damages. Judgment for the plaintiff. The first cause — damage to furniture from tearing out of walls — being on contract based upon terms of the lease for quiet enjoyment, and the second, on a purported tort in the wrongful and unlawful construction of an adjoining building creating an alleged nuisance resulting from an alleged trespass, such causes cannot be joined.

Hon. Ralph T. Morgan, Judge. Plaintiff commenced this action for $2,000 personal damages. A demurrer to the complaint was sustained and judgment entered for costs. The appeal is from the judgment. The court erred in sustaining'respondent’s demurrer to the amended complaint.

Hon. Edgar C. Steele, Judge. Action by plaintiff for damages caused by the trespass of sheep under the provisions of sections 1210 and 1211 of the Revised Statutes. Judgment for the plaintiffs. Defendants moved for a new trial, and thereupon appealed from the judgment and the order denying their motion. The district court has no jurisdiction in the first instance of causes arising under sections 1210, 1211 of the Revised Statutes.

Hon. Edgar C. Steele, Judge. This is an appeal from the judgment of the district court dismissing the appeal of appellant from an order made by the probate court of Idaho county directing the confirmation of the sale of certain real estate and the conveyance thereof. Session Laws of 1903, pages 372, 373, expressly changes the old law, and definitely provides who shall be served with notice of appeal.

Hon. Ralph T. Morgan, Judge. Plaintiff applied to the district judge on complaint and affidavits for a temporary injunction. Motion denied and plaintiff appealed. The intention of. the respondent village to keep the dump in question in a perfectly sanitary condition does not excuse the respondent village for its acts in the past, nor does it act as a defense to said acts.

Hon. Ralph T. Morgan, Judge. Action by plaintiff for an injunction and damages. Judgment for plaintiff. Defendant moved for a new trial and the motion was denied. Appeal from the judgment and order. This is an action in equity to restrain interference by the defendant with plaintiff’s contract.

Hon. Ralph T. Morgan, Judge. Action by the plaintiff for an injunction restraining defendant from maintaining a boom and obstruction across the Coeur d’Alene river and for damages. Temporary injunction issued, and thereafter dissolved on motion of the defendant. Plaintiff appealed from the order dissolving the injunction. Under the facts as set forth in the complaint and under the statutes of this state, the complainant was entitled clearly to the relief for which he asked.

Judgment for plaintiff. Defendant moved for a new trial and his motion was granted. Plaintiff appealed from the order granting a new trial. The district judge should at least have made some inquiry or given some notice to appellant’s attorney of the fact that he was considering a second motion for a new trial in the cause.

lion. Edgar C. Steele, Judge. Action for specific performance of a contract to convey real estate. Judgment for plaintiff, from which, and an order denying a motion for new trial, defendants appealed. The allegations contained in the complaint are insufficient to take the ease out of the statute of frauds, involving as they do the title to the real estate and'the specific performance of a contract for the conveyance of the same from the appellants to the respondent.

<p>ORIGINAL application made at chambers for a certificate of probable cause under section 8048, Revised Statutes.</p>

Hon. Edgar C. Steele, Judge. Action to establish prospecting partnership. Judgment for defendant. Where evidence is conflicting, and the lower court has decided such conflicting issues of fact, the appellate court will not disturb the flndings of the lower court; the courts of all the states are in accord on this doctrine; and this court has repeatedly so held.

Hon. Ralph T. Morgan, Judge. Action to recover illegal compensation allowed by the board of county commissioners to one of its own members. Demurrer to complaint sustained and judgment of dismissal entered.

This is an application in this court for a writ of mandate to compel the district judge to submit certain questions of fact arising on the return to an application for a writ of mandate to a jury.

<p>APPEAL from the District Court in and for Kootenai County. Hon. Ralph T. Morgan, Judge.</p> <p>From a judgment in favor of defendant plaintiff appealed.</p>

Hon. R. T. Morgan, Judge. Action for damages on contract. Judgment for plaintiff, from which and an order denying motion for new trial, defendant appeals.

Hon. Edgar C. Steele, Judge. Respondents moved to reverse or modify order of the board of county commissioners. The motion was sustained and the order reversed, from which order and judgment the county appeals. This court has held that a private road may be laid out upon the application of a particular individual; that only one signer is necessary to the road petition. (Latah County v. Peterson, 3 Idaho, 398, 29 Pac. 1089; Sherman v. Buich, 32 Cal. 241, 91 Am.