Volume 14 — Idaho Reports

Hon. Geo. H. Stewart, Judge. The defendants were convicted upon the charge of robbery and sentenced to imprisonment in the state penitentiary. From the judgment of conviction and an order denying their motion for a new trial they appeal to this court. A party has a right to direct, positive and certain instructions, and it is not sufficient that a charge is given which by inference and argument may be pressed to the same extent as the instruction refused.

Hon. Lyttleton Price, Judge. Action by plaintiffs to foreclose a mechanic’s lien. Judgment for the plaintiffs, and defendant moved for a new trial and appealed from the judgment and order. Plaintiff should have been compelled to make more specific its complaint, or furnish a bill of particulars.

<p>APPEAL from the District Court of the Sixth Judicial District for Fremont County. Hon. J. M. Stevens, Judge.</p> <p>Action to declare a deed in form, a mortgage. Judgment for defendant. Plaintiffs appeal.</p> <p>Failure to find on all material issues is ground for the reversal of the judgment. (Paulson v. Nuncm, 54 Cal. 123; Byrnes v. Clajfey, 54 Cal. 155; Pacific Bridge Go. v. Kirhham, 54 Cal. 558; DuPrat v. James, 61 Cal. 361; Duane v. Neumann,-2 Pac. 214; Hawes v. Green, 3 Pac. 496; Porter v. Muller, 65 Cal. 512, 4 Pac. 531; Casey v. Jordan, 68 Cal. 246, 9 Pac. 99, 305.)</p> <p>“Where the verdict is opposed to the testimony of the defendant, and other disinterested witnesses, who contradict the testimony of plaintiff, upon which, alone, the verdict rests, it will be set aside.” (Chicago etc. By. Co. v. Herring, 57 Ill. 59.) In this case the findings rest absolutely upon the evidence of the defendant, which is contradicted by fourteen witnesses and eight written exhibits presented by the plaintiffs.</p> <p>The findings of the trial court respond to the issue in this suit and support the judgment. It is not necessary to make findings as to merely probative facts.</p> <p>As appellants have failed to point out in their assignments of error the particulars in which the evidence is said to be insufficient to support the findings, this court will not consider tbe objection. (Kyle et al. v. Craig, 125 Cal. 107, 57 Pac. 791.)</p> <p>Tbe bill of exceptions in tbis case does not contain an exception to tbe decision of tbe court, either upon tbe grounds of tbe insufficiency of tbe evidence to sustain it or upon any other ground.</p> <p>Tbe law requires that an exception to tbe decision of tbe court upon tbe ground of tbe insufficiency of the evidence to sustain it shall be incorporated in tbe bill of exceptions, and that tbe objection must specify tbe particulars in which such evidence is alleged to be insufficient. (Sec. 4428, Rev. Stat.; Hole v. Van Duser, 11 Ida. 79, 81 Pac. 109.)</p> <p>“Where tbe matters which are found necessarily defeat the plaintiff’s right of recovery, it is unnecessary that the findings should dispose of any further issues.” (Smith v. Btibost, 148 Cal. 622, 84 Pac. 38.)</p>

. Hon. J. M. Stevens, Judge. Appeal from tbe district court, on an appeal from tbe-probate court, on tbe petition of tbe widow, to bave set asides to her the homestead out of the real estate of her deceased husband. Petition granted. Sec. 20 of art. 5 of the constitution gives only to the district court original jurisdiction in all cases of law and equity, but does not give the district court original jurisdiction in matters of probate.

<p>7. Art. 5, sec. 21 of the constitution grants to the prohate court exclusive, original jurisdiction in all matters of probate, and as to such matters, the probate court is a court of record, and to the judgments, records and proceedings of which absolute verity is attached.</p> <p>8. Art. 5, see. 20 of the constitution grants to district courts original jurisdiction in all cases, both at law and in equity, and such appellate jurisdiction as may be conferred by law, from which a clear distinction is drawn between "in all cases both at law and in equity,” and "matters of probate, settlement of estates of deceased persons and appointment of guardians.”</p> <p>9. Under art. 5, sec. 20, the legislature is the sole and exclusive 'judge as to the extent and scope of the appellate jurisdiction that it will confer upon district courts. It may limit it to any case, or class of cases, or subject matter, or it may not grant any at all; but the legislature cannot grant to the district court original jurisdiction to hear and determine matters of probate and settlement of estates of deceased persons.</p> <p>10. Trial de novo, as used in the Laws of 1903, page 372, means "to try anew,” or, "a second time”; that is, to retry the case upon the original papers and upon the same issues as the case was tried in the probate court.</p> <p>11. Under this statute and the constitution, if an appeal is taken upon a probate matter upon questions of law alone, the district court may review sueh questions of law which appear upon the face of the record, and may affirm or reverse the decision of the prohate' court. When an appeal is taken upon both questions of law and fact, if the court should affirm the action of the probate court upon questions of law, the cause may then be tried upon the same questions of fact as were raised in the probate court, in the same way as other eases are tried in the district court.</p> <p>12. A petition to set aside a homestead, under the provisions of see. 5441, Rev. Stat., which sets forth the making and return of the inventory of the decedent, the description and ownership of the real property returned in the inventory, that sueh property was the property of the deceased and that its value did not exceed $5,000, and that no homestead had ever been designated or selected 'by deceased or his widow during his lifetime, is sufficient to entitle the widow to have the property therein described set off as a probate homestead.</p> <p>13. Under the provisions of secs. 5440 and 5441, Rev. Stat., a probate homestead is one to be created by the probate court out of real property belonging to the decedent which was subject to a homestead at the time of the death of the decedent, and its value is less than $5,000, and was of sueh property as might have been occupied as a home at the time of the decedent’s death.</p> <p>14. Where the probate court in a probate matter enters one judgment and includes therein' more than one order, and the appeal is taken from the judgment, only one bond or one deposit of $100 under see. 1 of the act of March 11, 1903, is required.</p> <p>15. Where an appeal is taken to the district court from the probate court, and the probate court fails to transmit to the district court the undertaking on appeal or the deposit in lieu thereof, the ■district court may, when it is so made to appear, direct the probate ■court to transmit such undertaking or deposit to the district court.</p> <p>16. A judgment entered in the district court in a probate matter on appeal from the probate court is to be executed by the district court certifying sueh judgment to the probate court with direction to execute the same in accordance with the terms thereof.</p> <p>17. Where evidence has been admitted which becomes immaterial under the law, it is not error for the district court to admit the same.</p> <p>(Syllabus on rehearing by the court.)</p>

<p>APPEAL from the District Court of the Third Judicial District, for the County of Ada. Hon. George II. Stewart, Presiding Judge at the time of trial and rendition and entry of judgment.</p> <p>Action by plaintiff against one George E. Baldwin and Sarah A. Bowers on a promissory note executed by the defendants jointly, where the debt was contracted for the use and benefit of Baldwin and the money was received by him for his individual use and benefit, and no part thereof was received by Mrs. Bowers. Judgment for defendant Bowers. Plaintiff appealed from the judgment and an order striking from the files a proposed statement.</p> <p>It is provided by the act of 1903 that a married woman may enter into any contract with reference to her property that a married man may. The limit that is put upon her contractual power is the same as that of her husband. The promissory note in litigation in this case is a contract, and it is a contract by a married woman with reference to her property. By this contract she promises to pay money. Money is property. “The term ‘property’ includes moneys, credits, bonds, stocks, etc.” (See. 1313, Pol. Code of Idaho; 6 Words and Phrases Judicially Defined, p. 5717.)</p> <p>This note, then, is a contract with reference to her property made by a married woman, and-under the provisions of the section quoted above she is liable on it to exactly the same extent as her husband would be. There are several cases in this state which directly hold that the wife cannot bind herself for the debt of her husband. But there is no hint in any statute, or in any case, nor is there any reason why, under the statute which prevails here, a married woman is not liable as a surety for a third party. We are trying to hold this woman not for her husband’s debt but for the debt of a third party upon her promise in writing to pay that debt.</p> <p>The statement in this ease, not having been filed within the time allowed by the statutes and the order of the court extending the time, should be stricken from the files on motion. (Swartz v. Davis, 9 Ida. 238, 74 Pac. 800; Hoehnan v. New York Drygoods Go., 8 Ida. 66, 67 Pac. 796; Sandsirom, v. Smith, 11 Ida. 779, 84 Pac. 1060; Lydon v. Piper, 5 Ida. 541, 51 Pac. 101, 102.)</p> <p>At common law the wife, except in a few special eases, could not act as a feme sole, and this disability continues to exist as to the person and property of married women except to the extent of changes by legislature in express terms or by reasonable construction. (15 Eney. of Law, 2d ed., 790; Brown v. Brown, 121 N. C. 8, 27 S. E. 998, 38 L. R. A. 242.) Where a special or limited power of making contracts is given to a married woman, she is still considered as prima facie unable to contract at all, and the Burden is on the person relying on the validity of her contract to bring it within the statutory rule. (15 Ency. of Law, 792.)</p> <p>In the cases decided by our supreme court prior to the former decision in this case it had been uniformly held that a married woman’s power to contract was limited to contracts having reference to her separate property. This has not been changed by the amendment of 1903 referred to. Was it the intention of the legislature that a married woman should be permitted to contract generally? Then why refer to separate property at all?</p>

Judicial District, Washington County. Hon. Frank J. Smith, Judge. Action by the plaintiff on a promissory note. Judgment-for the plaintiff and defendant moved for a new trial, and thereupon appealed from the judgment and order denying his motion. By the act relating to negotiable instruments, Sess.

Hon. Geo. H. Stewart, Judge. Action to recover money deposited in the bank, it being the separate property of the wife. Judgment for defendant. The agency of the husband for the wife in regard to her separate property is limited to acts for the benefit of the wife.

Hon. J„ M. Stevens, Judge. Action to quiet title. Judgment for plaintiff. Under our law the character of a tax sale certificate is such that it is not admissible in evidence for the purpose of establishing title to land. The courts have so held under similar statutes.

Hon. Frank J. Smith, Judge. Action by the plaintiff to quiet title to a .certain tract of real estate. Judgment for the plaintiff and defendant appealed. Under sec. 4228, Rev. Stat., and under the code system of pleading in general, the defendant is entitled to amend the answer once as a right, and without first obtaining leave of the court.

Hon. Ed. L. Bryan, Judge. Appeal from an order taxing costs. “The right to costs on appeal or writ of error is dependent solely on statute. In the absence of special statutory authorization, such costs cannot be allowed. .... The courts have no discretion in refusing or allowing costs, except such as may be expressly vested in them by statutory provisions.” (“Costs,” 11 Cyc. 204, 205; Baldwin v. Boutware, 82 Mo.

Hon. J. M. Stevens, Judge. Action by road overseer to remove an obstruction in a public highway alleged to have been established by prescription.

Hon. Edward A. Walters, Judge. The plaintiffs herein brought a contest before the state board of land commissioners against the entry of Charles S. Loveland made under the Carey act on the Twin Falls segregation. After notice of contest was issued by the board and service thereof, it seems that the contest was dismissed by the board without a hearing.

Hon. Frank J. Smith, Judge. Motion for a new trial denied by Hon. Ed. L. Bryan, successor to Judge Smith. Action to set aside a judgment. Judgment for the defendant. On the evidence as now presented to this court by the record, the judgment against appellant in the district court should not have been rendered, and he ought to be granted a new trial.

Hon. Frank J. Smith, Trial Judge j Hon. Ed. L. Bryan, bis successor, denying the motion for a new trial. Action to enforce a contract for the sale of real property. Judgment for defendants. A party who insists upon rescission must himself be without fault, for no one will be permitted to take advantage of his own wrong to put an end to an agreement into which he has entered. (24 Am. & Eng.

Hon. J. M. Stevens,. Judge. Action by the plaintiff in tort for damages sustained on account of the wrongful acts of the defendant company in ejecting him from its railway train. Judgment for plaintiff, and' defendant moved for a new trial and appealed from the-judgment and order denying his motion. The construction of sec. 2374, Eev.

Hon. Alfred Budge, Judge. Appeal from an order denying the dissolution of an attachment. The right of the indorser and guarantor of a draft or a mote is contingent, collateral, conditional and secondary to that of the acceptor of the draft and the maker of the note. (Daniels on Nego. Instr., 5th ed., secs. 532, 1236; Raborg v. .Peyton, 2 Wheat.

Hon. Alfred Budge, Judge. Action by the plaintiff to foreclose a real estate mortgage. Judgment for the defendants. Plaintiff appeals. The evidence in this case shows that the debt in question was created for the use and benefit of Mrs. Julia Murphy, and relative to her separate estate. (Northwestern etc. Mypotheek Bank v. Rauch, 7 Ida. 152, 61 Pac. 152; Sparks v. Taylor (Tex. Civ.

<p>APPEAL from the District Court of Third Judicial District for Ada County. Hon. Fremont Wood, Judge.</p> <p>Prosecution for criminal libel. Judgment sustaining a demurrer to the information.</p> <p>The court will take judicial notice of the meaning of the word “graft,” and that the use of the word in the connection in which it is used in the publication set forth is libelous per se. (Sec. 5950, subd. 1, Rev. Stat.; Wigmore on Evidence, sees. 2582, 1955; Edwards v. Pub. Society, 99 Cal. 431, 37 Am. St. Rep. 70, 34 Pac. 128; Clark v. Fitch, 41 Cal. 472; Craig v. Warren, 99 Minn. 246, 109 N. W. 231; 17 Ency. of Law, 2d ed., 896; Bailey v. Kalamazoo Pub. Co., 40 Mich. 251.)</p> <p>“In determining whether particular words are actionable per se, the same rule does not apply to libel as to slander. What would not be actionable without alleging and proving special damage if merely spoken may be actionable per se if written or printed or otherwise published in a libel.” (2 Current Law, 709, 710; Douglas v. Douglas, 4 Ida. 293, 38 Pac. 934; 18 Ency. of Law, 2d ed., 863-865.)</p> <p>“A candidate for office is as much entitled to protection as any other citizen. Whoever charges him falsely must make good the injury thereby occasioned. He may not avoid this just responsibility by the claim that he acted in good faith ■without malice.” (Jarman v. Rea, 137 Cal. 339, 70 Pac. 216; Post Pub. Co. v. Dallam, 59 Fed. 530, 8 C. C. A. 201; Donahoe v. Star Pub. Co., 4 Penne. (Del.) 166, 55 Atl. 337.)</p> <p>“It is libelous per se to publish of a public officer false defamatory matter which tends to diminish public confidence in' his ability, fitness or integrity and thus injure him in his office, whether the words are published in relation to his office or not.” (2 Current Law, 710 et seq.; Petsch v. St. Paul Despatch Ptg. Go., 40 Minn. 29, 41 N. W. 1034; Buckstaff v. Viall, 84 Wis. 129, 54 N. W. 111.),</p> <p>In determining whether certain language charged as libelous is sufficient to sustain an action, the court must consider, not the actual words alone, but also the sense and meaning, "under the circumstances of the publication, which such language may fairly be presumed to have conveyed to those who read it. (32 Cent. Dig. 1995; Bettner v. Holt, 70 Cal. 270, 11 Pac. 713.)</p> <p>Should the word “graft” be given the -worst possible construction, even then the language used does not make that positive charge necessary to constitute libel. Language is not 'libelous unless it makes some positive charge. (Evarts v. Smith, 19 Mich. 55; Pegram v. Stoltz, 67 N. C. 144; Stevenson ■v. Hayden, 2 Mass. 406; State v. Parley, 4 McCord (S. C.), 317.)</p> <p>Words published claimed to be libelous, when unexplained, must be construed in their most innocent sense. (Meritt v. Dearth, 48 Yt. 65.) It is well settled that the charge must be such as is punishable by the common or statute law. (18 .Am. & Eng. Eney. of Law, 2d ed., 869, 70 (a); Douglas v. Douglas, 4 Ida. 293, 38 Pac. 934; Liddie v. Wallon, 17 Mont. 150, 42 Pac. 289; Bloss v. Tobey, 2 Pick. (Mass.) 320; Allen v. Hillman, 12 Pick. (Mass.) 101; 2 Wharton on Criminal Law, sec. 1595; Herr v. Bamberg, 10 How. Pr. (N. Y.) 128; Weil v. Altenhofen, 26 Wis. 708.)</p> <p>When the publication is not libelous on its face but it is -claimed the language has a covert meaning, it is necessary not only to allege and prove the libelous sense in which the words were used by the defendant, but also that they were -understood in the same sense by those to whom they were addressed. (People v. Collins, 102 Cal. 345, 36 Pac. 669,) Words of doubtful significance or ambiguous should be explained by innuendo. (Nichols v. Packard, 16 Yt. 83; Sheridan v. Sheridan, 58 Yt. 504, 5 Atl. 494; Sanford v. Rowley, 93 Mich. 119, 52 N. W. 1119; Hemmens v. Nelson, 138 N. Y. 517; Belknap v. Bell, 83 Mich. 583,21 Am. St. Rep. 622,47 N. W. 674, 11 L. R. A. 72; State v. Neese, 4 N. C. 691.) When words are of doubtful significance the pleader must allege the-sense in which they were used. (Nichols v. Packard. 16 Yt.. 83; Sheridan v. Sheridan, 58 Yt. 504; Gage v. Shelton, 3 Rich.. (S. 0.) 242.)</p> <p>The publication complained of was privileged because it purports upon its face to be the report of a Republican county convention and the feeling that existed in and around such, convention, which, under the laws of the state of Idaho, is a. public official body. (Sec. 6743, Rev. Stat.)</p> <p>Where the information shows, on its face, as it does in this-case, that the words were spoken of and concerning a public-official or candidate for office, the information must not only charge that they were false, but further charge that the defendant had no good reason to believe that they were true, or that he was negligent and made no effort to ascertain their-truth before the publication. (State v. Batch, 31 Kan. 465r 2 Pac. 609; 2 Wharton on Criminal Law, sec. 1630.)</p> <p>Pertinent criticisms of the character of a candidate for popular election addressed to the electors are held privileged. (2 Wharton on Criminal Law, sec. 1636.)</p> <p>A publication may be libelous on its face, and yet if it is a matter upon which there was a duty to speak it will be privileged. The law of libel is never to be so administered as to impair the just liberty of the press. (Bishop’s New Criminal Law, sec. 913, par. 2.)</p>

Hon. Frank J. Smith, Judge. Action by the plaintiff, as the owner of certain lands described in her complaint, to obtain an injunction restraining the defendants, as contractors under the United States, from trespassing upon plaintiff’s land and doing excavation and constructing a canal across the same.

Hon. Ed. L. Bryan, Judge. Action in claim and delivery. Judgment for plaintiff. Defendant appeals. “A general denial puts in issue all the essential averments •of the complaint, puts the burden of proving them upon the plaintiff, and admits evidence by the defendant, (1) to controvert the plaintiff’s evidence, (2) to disprove his allegations, and (3) to prove other and inconsistent-.facts.

Hon. James M. Stevens, Judge. An action for the specific performance of a contract for the sale of real property. Judgment for plaintiff. Defendant moved for a new trial and appeals from the judgment and order denying a new trial. There is no room for argument in this ease as to the intent of the parties to make time of the essence of the contract; it is made clearly and unequivocally to appear in a special provision.

Hon. Fremont Wood, Judge. Action in ejectment. Judgment for defendant.

<p>APPEAL from tbe District Court of tbe Seventh Judicial District, for the County of Washington. Hon. Ed. L. Bryan, Judge.</p> <p>Action for debt. 'Judgment for plaintiffs. Defendant moved for a new trial and appealed from the judgment and order denying his motion.</p> <p>“A compromise and settlement must, like all other contracts, be supported by a sufficient consideration or it cannot be enforced.” (8 Cyc. 504; Thompson v. Hudgins, 116 Ala. 98, 22 South. 632.).</p> <p>“The real consideration which each party receives under sueh a compromise is, according to some authorities, not the sacrifice of the right, but the settlement of the dispute.” (8 Cyc. 512.)</p> <p>The compromise agreement was incomplete and bound no one. Its very language was, ‘ ‘ In order to avoid complications, I agree to pay (certain definite wages) and .... all actual expenses of logging and cutting lumber as per above, expenses to be accounted for by accounts and receipts.” These words called for an accounting that was satisfactory to the appellant.</p> <p>“A written executory contract may be modified by a subsequent agreement between the parties, founded upon no other consideration than the assent of the parties.” (Warren & Lanier v. Cash, 143 Ala. 158, 39 South. 124; Benge v. Gates, 71 Wis. 634, 38 N. W. 181; Izard v. Kimmel, 26 Neb. 51, 41 N. W. 1068; Frey v. Clifford, 44 Cal. 341; Belloc v. Davis, 38 Cal 256; Naglee v. Lyman, 14 Cal. 450; Vassault v. Edwards, 43 Cal. 458.)</p>

An original proceeding in this court for a writ of prohibition. The legislature . conferred absolute power and authority upon the board to approve or disapprove, item by item, claims presented against the state, and allow or disallow them in whole or in part.

Hon. Ed. L. Bryan, Judge. Action for debt. Judgment for plaintiff. Defendant appeals. “The power of the court to grant leave to amend extends to all the pleadings and proceedings in an action, including the prayer for relief, and whenever the desired amendment is in furtherance of justice it should be granted.” (Moak’s Yan Santvoord’s Plead., 3d ed., 819; Fitman’s Trial Proe., see. 512; Eirstein v. Madden, 38 Cal. 158; Pierson v. Mc-Cahill, 22 Cal. 128; Farmers’ Nat.

Hon. Edward A. Walters-, Judge. Prosecution for murder. 'Refusal of tbe trial court to admit in evidence a deposition conditionally taken and offered by tbe state. Appeal from said order. Diligence, in this case, was sufficient. (Garner v. Gutter, 28 ,Tex. 175; Stoddard v. Hill, 38 S. C. 385,17 S. E. 138; People v. Riley, 75 Cal. 98, 16 Pac. 544; Renton v. Monnier, 77 Cal. 449, 19 Pac. 820; Kelly v. Benedict, 5 Rob. (La) 138, 39 Am. Dec. 530; Perciml v. Groff, 8 Blaekf.

<p>'APPEAL from tbe District Court of tbe Sixth Judicial District for tbe County; of Bingham. Hon. J. M. Stevens, Judge.</p> <p>Action by A. T. Ryan as trustee in bankruptcy of the estate of Peter B. Van Blaricom, against William S. Rogers, as administrator of the estate of Walter A. Rogers, deceased, and Peter A. Steers, as sheriff of Bingham county, for conversion of personal property. Judgment for the plaintiff and defendants appealed.</p> <p>A provision in a chattel mortgage “that the mortgagor •shall continue in possession, doing a retail business, but the proceeds derived from sales shall be, as the same is received, applied on the payment of the mortgage, ’ ’ does not invalidate a chattel mortgage, even as against attaching creditors. '{Noyes v. Boss, 23 Mont. 425, 75 Am. St. Rep. 543, 59 Pac. 367, 47 L. R. A. 400, overruling the doctrine of Leopold v. Silverman, 7 Mont. 266, 16 Pac. 580; Atchison v. Gray, 63 Kan. 79, 64 Pac. 987; Etheridge v. Sperry, 139 U. S. 266, 11 Sup. Ct. 565, 35 L. ed. 171; 1 Cobbey on Chattel Mortgages, secs. 219-312; Jones on Chattel Mortgages, sec. 381; Ephraim v. Eelleher, 4 Wash. 243, 29 Pac. 985, 18 L. R. A. 604.)</p> <p>“A creditor has the right to attack the validity of a chattel mortgage by attaching the property described therein, giving indemnifying bond to sheriff and selling the property.” {McConnell v. Langdon, 3 Ida. 157, 28 Pac. 403; Blumaur-Frank Drug Co. v. Branstetter, 4 Ida. 557, 95 Am. St. Rep. 151, 43 Pac. 575.)</p> <p>A general creditor cannot, before he has secured a lien upon the property in question, be heard to question the validity of a mortgage under the provisions of which property is being sold. {People’s Savings Bank v. Bates, 120 U. S. 556, 7 Sup. Ct. 679, 30 L. ed. 754; Thompson v. Van Vechten, 27 N. Y. 568-582; Wolcott v. Ashenfelter, 5 N. Mex. •442, 23 Pae. 780, 8 L. R. A. 691; Tillman v. Ducan, 78 Wis. 213, 47 N. W. 266, 9 L. R. A. 683; Sherwin v. Gaghagen, 39 Neb. 238, 57 N. W. 1005; Coykendall v. Ladd, 32 Minn. 529, 21 N. W. 733; Manson v. Phoenix, 64 Wis. 26, 54 Am. Rep. 573, 24 N. W. 407; In re New York Economical Printing Co., 110 Fed. 514, 49 C. C. A. 133; In re Sewell, 111 Fed. 791; Folsom v. Peru Co., 69 Neb. 316, 111 Am. St. Rep. 537, 95 N. W. 635.)</p> <p>A chattel mortgage of a stock of merchandise, providing for retention of possession by mortgagor and sale of goods and the use of proceeds until default, is valid as between the parties, and, when the mortgagee takes possession on condition broken, his title becomes complete as against general creditors. (Thompson v. Fairbanks, 196 U. S. 516, 525, 25 Sup. Ct. 306, 49 L. ed. 577; Fisher v. Zollinger, 149 Fed. 54, 79 C. C. A. 76.)</p> <p>If part of the goods were not covered by the mortgage and they were commingled with goods that were covered by the mortgage, it was the duty of Yan Blaricom or his representative's in the bankruptcy proceeding to point out the goods which were claimed not to be covered by the mortgage. (Hawkins v. Spokane, 3 Ida. 650, 33 Pac. 40; dones on Chat. Mort., 2d ed., sees. 481, 482; Pingree Chat. Mort., sec. 126; Willard v. Bice, 11 Met. 493, 45 Am. Dec. 226.)</p> <p>Even if the mortgage were invalid as against the plaintiff, the defendant Rogers has a right to setoff, and plaintiff at most could only recover the difference between the value of the property seized and the indebtedness due Rogers from Yan Blaricom. (Jones v. Annis, 47 Kan. 478, 28 Pac. 156; Burton v. Bandall, 4 Kan. App. 593, 46 Pac. 326; Jacobson v. Aberdeen Pkg. Co., 26 Wash. 175, 66 Pac. 419.)</p> <p>“When jurisdiction in bankruptcy attaches, which it does as soon as the petition is filed, it extends over the bankrupt and his estate, and all parties and questions connected therewith. The filing of the petition is a caveat to all the world, and is in effect an attachment and an injunction.” (Love-land on Bankruptcy, 76; Bankrupt Act, sec. 1, clause 10; In<re Rodgers, 125 Fed. 169, 60 C. C. A. 567.)</p> <p>There must be something more than a naked stipulation in a chattel mortgage permitting the mortgagor to remain in possession of a stock of goods and sell the same and apply the proceeds to the payment of the debt. There must be a strict compliance with the stipulation of the mortgage; otherwise the mortgage is void. (Lewiston Nat. Bank v. Martin, 2 Ida. 734, 23 Pac. 920; Wells, Fargo & Go. v. Alturas Com. Go., 6 Ida. 506, 56 Pac. 165; Meyer v. Monro, 9 Ida. 46, 71 Pac. 969; Byrd v. Forbes, 3 Wash. Ter. 318, 13 Pac. 715; Wineburgh v. Schaer, 2 Wash. Ter. 328, 5 Pac. 299; Wilson v. Voight, 9 Colo. 614, 13 Pae. 726; Leopold v. Silverman, 7 Mont. 266, 16 Pac. 580; Stevens v. Curran, 28 Mont. 366, 72 Pae. 753.)</p> <p>If a mortgage is void for any purpose, it is void for all purposes, and if it is void as to a part of the goods, it is void as to the whole. (Bussell v. Winne, 37 N. Y. 591, 97 Am. Dec. 755; Grover v. Wdlceman, 11 Wend. 187, 25 Am. Dee. 624; Horton v. Williams, 21 Minn. 187.)</p> <p>Suffering property covered by a chattel mortgage to remain in the hands of the mortgagor for an unreasonable time after default is a fraud per se, not open to explanation. {Feed v. Ames, 19 Ill. 594; 9 Cent. Dig., tit. “Chattel Mortgages,” sec. 377.)</p> <p>Where a bankrupt on the eve of his bankruptcy fraudulently sells and delivers goods to one of his creditors, the assignee may disaffirm the contract of sale and recover the value of the goods in trover, in which case the creditor cannot set off his debt. (Benoist v. Darby, 12 Mo. 196; Bankrupt Act, sec. 68; Brandenburg on Bankruptcy, 3d ed., p. 723.)</p>

Hon. Edward A. Walters, Judge. Appeal by the board of commissioners from an order of the district eourt, directing them to issue liquor license.

Hon. Fremont Wood, Judge. Action by administratrix to recover damages for the killing of her intestate by a street railway car.

Hon. Lyttleton Price, Judge. Action by the plaintiff to recover on a contract for water rents. Judgment for the defendant and plaintiff appeals. Counsel cite no authorities on points decided.

<p>An original proceeding in tbis conrt for a writ of mandate to compel tbe board of county commissioners of Latah, county to issue a license to the applicant to sell intoxicating liquors not to be drank in, on or about the premises where sold. Demurrer to the petition.</p> <p>The amendments to the law were simply to secs, 2, 3, 6 and 4 of the aet of 1891. They are related to one subject and are restrictive in their nature. (Gerding v. Commissioners,. 13 Ida. 444, 90 Pac. 357; Mullen & Co. v. Moseley, 13 Ida.. 457, 121 Am. St. Rep. 277, 90 Pac. 986.)</p>

<p>Bailroad Grant — Right to Station and Depot Site — Boreeiture and Abandonment op Bight.</p> <p>1. Where a railway company filed a profile map of its right of way and depot and station grounds and had the same approved by the Secretary of the Interior, but failed and neglected to have the selection noted on the plats in the loeal land office, and the map so furnished was lost or destroyed, and no notation of the selection was ever made on the plats of the local land office, and - the company failed and neglected for more than seventeen years to take possession of the grounds claimed for depot and station site, and exercised no acts of ownership or right of possession over the premises, and eight days after the filing of such profile map a pre-emptor settled and filed upon the legal subdivisions comprising and including, the station and depot grounds claimed by the company, and thereafter made final proof upon and received patent for the entire legal subdivision, and had no notice, either actual or constructive, that the railway company claimed any station and depot grounds within the limits of his pre-emption claim, and received no such notice or information until long after the receipt of his patent for the land; held, that the railway company under such facts and circumstances will he deemed to have forfeited and abandoned its right to claim depot and station grounds under the aet of Congress of March 3, 1875, and that it will not be allowed to maintain an action of ejectment against the grantees and successors in interest of the patentee of such lands.</p> <p>2. Where injury must result to one of two parties on account of the failure to discharge an act, the duty of doing which is imposed upon a third party, the consequent loss must fall upon that party in whose interest the act should have been performed, and on whom the duty devolved to see that such aet was in faet performed.</p> <p>(Syllabus by the court.)</p>

Hon. George H. Stewart, Judge. Action to quiet title. Judgment in favor of plaintiff. The patentee, having made final proof, after due notice by publication as required by law> the question of the validity of his claim is res judicata so far as the railroad company is concerned.

<p>APPEAL from the District Court of the Fourth Judicial District for the County of Blaine. Hon. Lyttleton Price, Judge.</p> <p>Action by the plaintiff as guardian ad litem of W. H. Watt, an incompetent person, to obtain a decree declaring a certain sale and transfer of stock void and to procure an injunction against the corporation restraining it from collecting* an assessment on such stock until after the return of the stock. Judgment for the plaintiff and defendants appeal.</p> <p>Plaintiff had no standing in court whatever, under the complaint filed, as courts never interfere with the internal management of corporations unless there is fraud, gross negligence or acts ultra vires. (Cook on Stock & Stockh., sec. 643.)</p> <p>The discretion of the directors or majority of the stockholders, as to acts intra vires, cannot be questioned by the courts, unless fraud is involved. (Cook on Stock & Stockh., secs. 676, 677; 26 Enc. Law, 963; High on Injunctions, sec. 1186.)</p> <p>Equity will not interfere on mere questions of corporate management or policy. (10 Cyc. 969; High on Injunctions, sec. 1210; Clark & Marshall Corp., sees. 627, 628.)</p> <p>Courts will not interfere with the business policy of a corporation. (26 Am. & Eng. Enc. 959, n. 5.) Stockholders cannot control directors in the exercise of their judgment. .(Clark & Marshall Corp., see. 694.)</p> <p>Majority entitled to control against minority. (26 Am. & Eng. Enc. Law, 960; Clark & Marshall Corp., sec. 628; Gamble v. Queen Go. Water Go., 123 N. T. 91, 25 N. E. 201, 9 L. B. A. 530.)</p> <p>Stockholders cannot question the necessity of making an assessment. (10 Cyc. 487; Budd v. Multnomah St. By. Co., 15 Or. 413, 15 Pac. 659; Oglesby v. Attrill, 105 U. S. 605, 26 L. ed. 1186; Chouteau Ins. Go. v. Floyd, 74 Mo. 286; Cook on Stock & Stockh. & Corp. Law, par. 113.)</p> <p>The court erred in granting an injunction against the defendant company and restraining it from collecting the assessment, as the board of directors may proceed to collect by assessment the legally incurred debts as prescribed by Title 4, Civil Code. (Sparks v. Lower Payette Ditch Go., 3 Ida. 306, 29 Pac. 134; Santa Cruz B. B. Co. v. Spreckles, 65 Cal. 193, 3 Pae. 661, 802; Chandler v. Sheep Bock etc. Min. & Mill Go., 15 Utah, 434, 49 Pae. 535.)</p> <p>“Stockholders owning a majority of the stock have a right to combine and secure the election of the board of directors. ’ ’ (Cook on Stock & Stockh. and Corp. Law, 3d ed., par. 622; Faulds v. Yates, 57 Ill. 416, 11 Am. Eep. 24; Havemeyer 'v. Havemeyer, 86 N. T. 618.)</p> <p>Mere mental weakness will not authorize a court of equity to set aside an executed contract, if such weakness does not amount to inability to comprehend the .contract, and is unaccompanied by evidence of imposition or undue influence. (Piclcerell v. Morss, 97 Ill. 220; Lindsey v. Lindsey, 50 Ill. 79, 99 Am. Dee. 489; Willemin v. Limn, 93 Ill. 516; Bailiff v. Baltzer’s Admr., 13 Ida. 152, 89 Pac. 71; 16 Ene. Law, ■624.)</p> <p>A grantor wbo bas mental capacity sufficient to understand ordinary business transactions at tbe time of tbe factum, and understands tbe motive and effect of tbe deed wbieb be makes, knows what property be is conveying and to whom it is be ing conveyed, is competent to make sucb deed. (Kelly v. Perrault, 5 Ida. 221, 48 Pae. 45; Curtis v. Kirkpatrick, 9 Ida. 629, 75 Pac. 760.)</p> <p>‘ ‘ Tbe mental capacity to be considered is that which exists at tbe time of tbe execution of tbe deed.” (Francis v. Wilkinson, 147 Ill. 370, 35 N. E. 150; Heirs of Clark v. Ellis, 9 Or. 128.)</p> <p>Tbe court erred in not permitting Rockwell to explain certain statements in bis affidavit. Sucb admissions are open to rebuttal or explanation, or they may be controlled by higher evidence. This is true even though they are made under oath. (1 Jones’ Law of Ev., sec. 298; 1 Ene. of Ev., 476.)</p> <p>Tbe court erred in refusing to allow witnesses wbo were present at tbe execution of contracts to testify as to Watt’s ■competency. (Heirs of Clark v. Ellis, 9 Or. 128; In re Christensen’s Estate, 17 Utah, 42, 70 Am. St. Rep. 794, 53 Pac. 1003, 41 L. R. A. 504; People v. Wreden, 59 Cal. 394.)</p> <p>“Upon tbe question whether a disease bad reached sucb a stage at a given time that tbe subject of it was incapable of making a will or contract, or was irresponsible for bis acts, tbe opinion of bis neighbors, men of good, common sense, is of more value than that of medical experts.” (Rutherford v. Morris, 77 Ill. 397.)</p>

Hon. Frank J. Smith, Judge. Action to recover damages for the permanent destruction of thirty acres of real estate. Judgment for plaintiff. A finding of fact should state the ultimate facts found with the same certainty and definiteness as would be required in a pleading. (Van Riper v. Baker, 44 Iowa, 450; Fanning v. Murphy, 126 Wis. 538, 110 Am.

trict for Canyon County. Hon. Ed. L. Bryan, Judge. Action to restrain the board of county commissioners from issuing and selling negotiable bonds for the purpose of building a bridge. Judgment for the respondent. “A board of commissioners is a tribunal created by statute, with limited jurisdiction and only q-imsi-judieial powers, and cannot proceed except in'strict accordance with the mode provided by statute.

<p>APPEAL from the District Court of Seventh Judicial District for Canyon County. Hon. Ed. L. Bryan, Judge.</p> <p>An action to restrain the board of county commissioners from issuing and selling negotiable bonds for the construcT tion of a bridge. Judgment for respondent.</p>

<p>APPEAL from the District Court of the Third Judicial District for the County of Ada. Hon. George H. Stewart, Judge.</p> <p>Action by the plaintiff to have the rights and priorities of the appropriators of water from the Boise river determined and decreed. Cause tried and decree entered for the several claimants. Defendant, the Nampa & Meridian Irrigation District, appealed from the judgment.</p> <p>The findings in this case wholly ignore the requirement of the law calling for the description of the land to which the water is made appurtenant by the decree, and further ignore the user of water as an interested party to this litigation.</p> <p>The water user has not been accorded his day in court, although the action involves the existence of his property, and the duty of the canal owner in distributing water in pursuance of the decree in this case is purely perfunctory, such owner being merely the public carrier of the water for the use of the real owner, the water user. From beginning to end the act of 1903 is designed to recognize and establish title to the water right in the user of water. (Wyatt v. Larimer t& Weld Irr. Co., 18 Colo. 295, 36 Am. St. Rep. 280, 33 Pae. 144; Gould v. Maricopa Canal Co., 8 Ariz. 429, 76 Pac. 598.)</p> <p>As there is no finding of the acreage irrigated, it is impossible to determine how the court arrived at the amounts of water allotted. There is no finding as to what canals irrigate the “bench” or “bottom” lands, and. except in a very limited number of cases, the land upon which the water is used is not described. It is therefore impossible to determine from these findings what lands have been awarded water under this classification as bench lands or bottom lands respectively, the number of acres reclaimed, or what lands have been awarded water at all, or the method by which the respective allotments have been determined.</p> <p>The parties to this action were entitled to have an issue tendered them in relation to costs by the service of a cost-bill claiming the same, in the usual manner, and upon such claim ibeing tendered, they were entitled to their day in court to contest the same, at which time, as stated by the court, the right of the state engineer might be contested. It further appears that this judgment for costs has not been entered in favor of any person, either party to this action or otherwise. Parties are entitled to recover costs, at whose instance such costs have been incurred. We know of no law under which a valid enforceable judgment can be entered in favor of no one.</p> <p>Where it appears that canals are operated by carriers of water and that the users of water from such canals have been omitted from the case and are not parties thereto, the decree will not be permitted to stand. The failure of this decree to describe the individual tracts of land and the water right decreed to each tends to defeat the system of regulation and control of the water rights of the state, established by the law of 1903. “Necessary or indispensable parties are those without whom the court will not proceed to any decree, even as to the parties before it.” (15 Ene. P. & P. 611; Shields v. Barrow, 17 How. (U. S.) 130, 15 L. ed. 158; Eendig v. Dean, 97 U. S. 423, 24 L. ed. 1061.)</p> <p>“Nonjoinder of necessary or indispensable parties is such a serious defect that though it ought to be regularly raised in limine by plea, answer or demurrer, yet a failure to so raise the objection is not a waiver of the right to object at a later stage of the cause.” (15 Ene. P. & P. 687-689; Morgan v. Blatchley, 33 W. Va. 155, 10 S. E. 282.)</p> <p>“According to the better reasoning and the weight of authority, the ownership of the appropriation is in the consumer, who by his application of the water to a beneficial use completes the appropriation.” (Mills’ Irr. Manual, see. 117.) Sec. 38 et seq. of the Law of 1903 relates to a decree which specifies the water users and the specific tracts on which the water is used.</p> <p>The question is up to this court to determine as between the Colorado system or the Wyoming system. The decree in this case admittedly follows the former. Comparison of the Idaho law of 1903 with the Wyoming law of 1895 will show that in all material respects they are the same.</p> <p>Both laws deal with the user of water and make special provisions for adjudicating the water to specific land, thereby conclusively establishing the fact that such specific water is appurtenant to specified land, not by mere use, as has always been the law in Idaho, but by solemn adjudication of that fact by the court thereby making such decision res adjudicata, and not permitting the water to be separated from the land except by regular application to the state engineer. How can the state engineer of Idaho or the water commissioner of the district perform their duties if the decree does not describe the individual tract of land and the amount of water going thereto? (Farmers’ Irr. Dist. v. Frank, 72 Neb. 136, 100 N. W. 286.)</p> <p>The court, in describing the land in its decree upon which the water had been used, followed the description given in the appellants’ cross-complaint. Can these appellants now be heard to say that, notwithstanding the fact they asked for this relief, and asked for it in the particular way and for the particular lands to which it was given, and notwithstanding the fact that the court gave them the very relief which they asked for in the case, that their complaints were not sufficient to sustain a decree, and it must, for that reason, be set aside? How are they injured or aggrieved parties if this is true. (Cooper v. Cooper, 88 Cal. 49, 25 Pac. 1062; State v. Eves, 6 Ida. 148, 53 Pac. 543; Rankin v. Central Pac. R. R. Co., 73 Cal. 96, 15 Pac. 57; People v. Pfeiffer, 59 Cal. 89; Hibernia, etc. Soc. v. Ordeway, 38 Cal. 679; V. S. v. Memphis, 97 U. S. 284, 24 L. ed. 937; Riverside Land & Irrigation Co. v. Jensen, 73 Cal. 550, 15 Pac. 131; Samoset v. Mesnager, 108 Cal'. 354, 41 Pac. 337; Gumaer v. Draper, 33 Colo. 122, 79 Pac. 1040.)</p> <p>It is not necessary to describe the land of each individual user of water under ditch of a company which rents water or furnishes it to its stockholders by legal subdivisions, and such is not the intention of sec. 38 of the act of March 11, 1903. Users under these company ditches have always had the right to sell their water or to transfer the use of the same to other land. {Hard v. Boise City Irr. & Land Co., 9 Ida. 602, 76 Pac. 331, 65 L. R. A. 408; Drake v. Earhart, 2 Ida. 750, 23 Pae. 541, 542; Wells v. Price, 6 Ida. 490, 56 Pac. 266; Hall v. Blackman, 8 Ida. 272, 68 Pac. 19; McGinness v. Stan-field, 6 Ida. 372, 55 Pac. 1020; Wilterding v. Green, 4 Ida. 773, 45 Pac. 134.)</p> <p>The portion of the statute prescribing that the “decree shall describe the land to which such water shall become appurtenant” is directory only. Compliance with this statute is a matter of convenience and not of substance. No penalty follows for noneompliance. (26 Am. & Eng. Eney. Law, 689; Whitney v. Bu-chman, 19 Cal. 300; McCrea v. Haraszthy, 51 Cal. 146; Tuohy v. Chase, 30 Cal. 524; Borkheim v. Fireman’s F. I. Co., 38 Cal. 505; Broad v. Murray, 44 Cal. 228; Clark v. Sawyer, 48 Cal. 133.) .</p> <p>The only costs assessed against appellants were the costs of surveys, maps, etc., and for clerical work, all incurred under the order of the lower court, which order the lower court was authorized to make. (Boise Irr. & Land Co. v. Stewart, 10 Ida. 61, 77 Pac. 25, 321.)</p> <p>None of the litigants in the case filed a memorandum of costs; none claimed costs incurred by them. There was no judgment entered in favor of any one litigant as against another. They were all before the court asking affirmative relief. The order of the court pro-rating those costs was an approval of the amount thereof, and no objections thereto were filed by any of the litigants.</p> <p>The question, what lands were “bench” lands and what lands were “bottom” lands, was not raised by the pleadings and was not necessary to be determined in order to find the amount of water any user, or combination of users, were entitled to receive, but was simply a classification used by the court below in arriving at its own conclusions.</p>

Hon. George H. Stewart, Judge. Action by the plaintiff to have the rights and priorities of the appropriators of water from the Boise river determined and agreed. Cause tried and decree entered for the several claimants. Defendant, the Biverside Irrigation District, appealed from the judgment.

Hon. George H. Stewart, Judge. Action by the plaintiff to have the rights and priorities of the appropriates of water from the Boise river determined and decreed. Cause tried and decree entered for the several claimants. Defendant, the Pioneer Irrigation District, appealed from the judgment.

Hon. George H. Stewart, Judge. Action by the plaintiff to have the rights and priorities of the appropriators of water from the Boise river determined and decreed. Cause tried and decree entered for the several claimants. Defendant, the New York Canal Company, appealed from the judgment.

Hon. J. M. Stevens, Judge. Action to recover upon a written contract for the sale of a horse. Judgment for plaintiff. Counsel cite no authorities on points decided.

Hon. Edward A. Walters, Judge. Action by plaintiff and writ of attachment issued. From an order made by the judge dissolving the attachment plaintiff appeals. If the summons as issued was merely defective, the court erred in dissolving the attachment, because a defective summons is nevertheless a summons, and satisfies the requirements of the statute that the writ shall not issue before the issuance of the summons.

An original proceeding in this court for a writ of review to review the action of the district court in overruling a motion to dismiss an appeal from the probate court. Counsel cite no authorities on points decided.

Hon. Lyttleton Price., Judge. An action to quiet title to an interest in a ditch, and the water carried through said ditch. Judgment for plaintiff. Dedication should not be presumed without evidence of an unequivocal intention to dedicate. (Angelí on Highways, sec. 147; 9 Am. & Eng. Ency. of Law, 36; Tiedeman on Mun. Corp., see. 219; 2 Abbott on Mun. Corp., sec. 728.)- There is no. presumption in favor of dedication.

<p>9. Tinder the facts shown in this ease, there has' been such a dedication of water to the streets, alleys and lots of the village of Hailey, within the purview and meaning of see. 4, art. 15 of the constitution and the statutes of this state, that the water cannot hereafter be withheld from such streets, alleys and lots to which it has been applied, so long as the consumer pays the reasonable rental therefor, as the same may be established by authority of law, and to that extent the publie and individual use of such water cannot be disputed or interrupted.</p> <p>10. The doctrine of estop-pel in pais cannot be applied in favor of the public against the property owner, unless it can be shown</p> <p>' that he has stood by, and by his action or silence concurred in allowing the publie and individuals to so use and enjoy his property and the right thus initiated, that thereafter to deprive them of it would work an injustice or fraud upon them and invade the right founded on the presumption he has thus allowed to be raised.</p> <p>11. A finding to the effect that unless a certain use be held to amount to a dedication, private rights and public accommodation would be materially affected, and that an interruption or cessation thereof would materially affect both publie and private interests, is a conclusion of law rather than a finding of fact, and it is the duty of the trial court to find the facts upon which such conclusion must necessarily rest.</p> <p>(Syllabus by the court.)</p>

Hon. Fremont Wood, Judge. A proceeding to confirm the validity of the organization of the Settlers’ Irrigation District and the validity of a proposed bond issue of said district. Judgment for respondent. The supreme court of this state has already confirmed the issue and sale of bonds and the organization of an irrigation district where considerable land using water from the canal was outside the district.

Hon. Alfred Budge, Judge. Action to recover on open book account. Judgment for plaintiff.

<p>APPEAL from District Court of Sixth Judicial District for Custer County. lion. James M. Stevens, Judge.</p> <p>Action by the Bismart Mountain Gold Mining Company against the North Sunbeam Gold Company. Judgment for defendant, and plaintiff appeals.</p> <p>“If by any reasonable construction, in view of the surrounding circumstances, the language employed in the description will impart notice to subsequent locators, it is sufficient.” (Farmington Gold Min. Go. v. Rhymney Gold & Copper Co., 20 Utah, 363, 77 Am. St. Rep. 913, 58 Pac. 832; Morrison v. Regan, 8 Ida. 291, 67 Pac. 955; Flavin v. Mat-tingly, 8 Mont. 242, 19 Pac. 384; Londonderry Min. Co. v. United Gold Mines Co., 38 Colo. 480, 88 Pac. 455; Hammer v. Garfield Min. Co., 130 U. S. 291, 9 Sup. Ct. 548, 32 L. ed. 964.)</p> <p>It has never been the policy of the law to avoid a location for defects in the record, but rather to give the locator an opportunity to correct his record whenever defects may be found. (McEvoy v. Hyman, 25 Fed. 596; Morrison v. Regan, 8 Ida. 291, 67 Pac. 955; Frisholm v. Fitzgerald, 25 Colo. 290, 53 Pac. 1109.)</p> <p>Even when the certificate for any of the reasons set forth in the statutes is deemed void, it has been held admissible in evidence with a valid amended certificate correcting the defects in the original. (Strepey v. Stark, 7 Colo. 614, 5 Pac. Ill; Kinney v. Lundy (Ariz.), 89 Pae. 496; Van Zandt v. Argentine Min. Co., 8 Fed. 725, 2 McCrary, 159; Butte Con. Min. Co. v. Barker, 35 Mont. 327, 89 Pae. 302, 90 Pae. 177.)</p> <p>“The location certificate where recorded is prima facie evidence of all that the statute requires it to contain, and which are therein sufficiently set forth.” (Strepey v. Stark, supra; O’Riley v. Campbell, 116 U. S. 418, 6 Sup. Ct. 421, 29 L. ed. 669; Garfield Mill Co. v. Hammer, 6 Mont. 58, 8 Pac. 153; Hammer v. Garfield etc. Co., 130 IJ. S. 291, 9 Snp. Ct. 548, 32 L. ed. 964; Goldberg v. Bruschi, 146 Cal. 708, 81 Pac. 23.)</p> <p>To raise the question that plaintiff corporation has not complied with the corporation laws of the state of Idaho, it must have been specially pleaded by answer or demurrer by defendant, and again if raised by the pleadings herein at all, it is completely disposed of by the opinion on rehearing in the case of Katz v. Herrick, 12 Ida. 1, 86 Pac. 873, wherein this court approved the ease of Fritts v. Palmer, 132 U. S. 282, 10 Sup. Ct. 93, 33 L. ed. 317.</p> <p>The Utah supreme court, in a case analogous to the one at bar, has held that a notice of location such as the ones of the Jesse James and Little Giant are invalid and of no force or effect. (Barger v. LeSieur, 8 Utah, 160, 30 Pac. 363.)</p> <p>In the ease of Morrison v. Regan, this court did not undertake to overrule the doctrine laid down in the case of Brown v. Levan, 4 Ida. 794, 46 Pac. 661, but seems to make a distinction based upon the fact that in the latter case no tie was made to a natural object or permanent monument, while in the Morrison-Regan case a tie was in fact made.</p> <p>The rule of law is that, where a compliance by a foreign corporation with the laws of another state where it is undertaking to transact business is á condition precedent, it.must be alleged by said corporation and proved. (19 Cyc. 1318.)</p> <p>A nonsuit in an adverse case makes the plaintiff a stranger to the action, and prevents him from further litigating the claim of the defendant. (Lavagnino v. JJlilig, 26 Utah,. 1, 99 Am. St. Rep. 808, 71 Pac. 1046; Moffatt v. Blue River G. E. Co., 33 Colo. 142, 80 Pac. 139.)</p>

Hon. Fremont Wood,' Judge. Action by tbe plaintiff to quiet title to a mining claim. Judgment for tbe defendant. Plaintiff appeals. In Katz v. Herrick, 12 Ida. 1, 86 Pac. 873, this court cited with express approval tbe case of Fritts v. Palmer, 132 U. S. '282,10 Sup. Ct. 93, 33 L. ed. 317.

Hon. Edward A. Walters, Judge. Action by the plaintiff for a perpetual injunction. Judgment- for the plaintiff and defendant appeals. Where the injury complained of is such only as is incident to lawful business conducted in the ordinary way, equity will not interfere. (High on Injunction, 4th ed., see. 752.) Equity will not interfere to prevent or abate as a nuisance everything that worts hurt, inconvenience or damage; but only where the injury is irreparable.

Hon. Alfred Budge, Judge. , Action to recover for personal property delivered to the (defendant. Judgment for plaintiff. Where a note contains any provisions other than for the unconditional payment of money, it is non-negotiable. (South-bend Iron Works v. Paddock, 37 Kan. 510,15 Pac. 574.) And a maker can maintain any defense against an assignee that he might have maintained against an original party.

Alfred Budge, Judge. Action to quiet title. Judgment for defendants. If the land that the defendants claim is in excess of the acreage mentioned in our patent, that fact alone does not prevent it passing under the patent.- (Johnson v. Hurst, 10 Ida. 308, 77 Pac. 784.) The government does not contemplate surveying every little piece of sandbar or island along meandering streams, but does intend to convey the land on each side of the stream to the center thereof.

ABPEAL from the District Court of Seventh Judicial District for Canyon County. - Hon. Frank J. Smith, Judge. Action to quiet title. Judgment for defendant.

Hon. Alfred Budge, Judge. Proceeding to compel the mayor and city council of the city of Pocatello to grant a retail liquor license to plaintiffs. Judgment for plaintiffs. “The court or courts charged with the duty of issuing licenses is vested with a sound judicial discretion, to be exercised in view of all the facts and circumstances of each particular case in granting or refusing the license applied for.” (Crowley v. Christensen, 137 U. S. 86-95, 11 Sup.

<p>4. See. 4456, Eev. Stat., requires that a copy of any order made on. demurrer shall become a part of the judgment-roll. An order made on demurrer may be announced from the bench and entered in the minutes of the court, and thereby become as fully the order and decision of the court on the demurrer as if it had been drawn up and signed as a separate instrument and filed with the clerk. In either event a copy of any such order, whether entered on the court minutes or made and filed with the clerk, becomes a part of the judgment-roll, and is reviewable on an appeal from a final judgment.</p> <p>5. The minutes of the court, as such, are not properly a part of the judgment-roll, except in so far as they may contain any order or judgment, a copy of which is by statute made a part of the judgment-roll.</p> <p>6. An order made and entered in the minutes of the court striking any allegations from a pleading cannot be reviewed on an appeal from the judgment, unless the same is incorporated in a bill of exceptions.</p> <p>7. Under the provisions of sec. 4427, Rev. Stats., it is unnecessary to take an exception to an order striking out a pleading or a portion thereof, and it is likewise unnecessary to incorporate such order or ruling in a bill of exceptions, and the same appearing in the record or files may be reviewed on appeal as though settled in a bill of exceptions. In order, however, to have such exception reviewed by the appellate court without incorporating the same in a bill of exceptions, it is necessary to move for a new trial and use such record and files as provided for by see. 4443, Rev. Stat., in which case the same may be used on appeal from the order granting or refusing the motion for a new trial.</p> <p>(Syllabus by the court.)</p>

Hon. J. M. Stevens, Judge of the Sixth Judicial District, presiding. Proceedings on complaint of Dudley D. Toncray, an elector, to contest the election of Hon. Alfred Budge as Judge of the Fifth Judicial District. Judgment for the defendant and plaintiff appeals. Under the specific grant of power contained in secs. 9 and 10, art. 5, of the constitution there is no possible ground upon which the supreme court can be said tó have original jurisdiction of this case.

Hon. J. M. Stevens, Judge. Defendant was convicted of larceny and sentenced to a term in the state penitentiary. He appealed from the judgment. “The competency of a collateral fact to be used as the basis of a legitimate argument is not to be determined by the con-olusiveness of the inferences it may afford in reference to the litigated fact.

Hon. Ed. L. Bryan, Judge. Action to recover taxes paid under protest on a void assessment. Judgment for the defendants. “An assessment made within the time and in the manner prescribed by the statute is indispensable in proceedings to enforce the collection of taxes.” (Cooley on Taxation, 3d ed., 597; Shoup v. Willis, 2 Ida. 120, 6 Pac. 124; Si. Louis I. M. & S. By. Co. v. Miller, 67 Ark. 498, 55 S. W. 926; sec. 43, Revenue Act of Idaho, Sess.

Hon. J. M. Stevens, Judge. Action by the plaintiff to recover judgment and decree of foreclosure. Judgment for plaintiff and defendants appeal. Where the statute requires certain acts to be done, before a foreign corporation can be considered in esse, the complaint must show that such acts have been done. (1 Estee’s Code PL, 3d ed., p. 202.) When a foreign corporation comes into court .... the court cannot know of its legal existence.

<p>APPEAL from tbe District Court of First Judicial District for Kootenai County. Cause tried by Hon. R. T. Morgan, Judge; motion for a new trial overruled by Ms successor, Hon. William W. Woods, Judge.</p> <p>Action to recover on a check. Judgment for plaintiff.</p> <p>The statement was not engrossed at the time of the alleged settlement, and until the statement is engrossed the same cannot be settled as a complete record, as it is the engrossing that completes and makes perfect the record of the proceedings. (Pence v. Lemp, 4 Ida. 526, 43 Pac. 75; Hattabaugh v. Yoll-mer, 5 Ida. 23, 46 Pac. 831; Crowley v. Gold Min. Co., 12 Ida. 530, 86 Pac. 536; 2 Spelling on New Trial & Appellate Proc., par. 447.)</p> <p>There is no proper certificate showing that the record contains all the papers, records, files and other matters presented to and used by the trial judge in passing on the motion for a ■ new trial. (Steve v. Bonners Ferry Lumber Co., 13 Ida. 384, 92 Pae. 363; secs. 4443, 4820 and 4821, Rev. Stat.)</p> <p>In order to give this court jurisdiction of a case, on an appeal, it is necessary that the transcript should show that the notice of appeal has been served on the adverse party. Unless the record shows such service the appeal will be dismissed. (Anderson v. Knott, 1 Ida. 626; Tootle v. French, 3 Ida. 1, 25 Pac. 1091; Adams v. McPherson, 3 Ida. 718, 34 Pac. 1095; Moe v. Harger, 10 Ida. 194, 77 Pac. 645.)</p> <p>All parties against whom a joint judgment has been rendered are adverse parties, and therefore notice of appeal must be served upon them, in order to give this court jurisdiction. (Jones v. Quantrell, 2 Ida. 153, 9 Pac. 418; Coffin v. Edgington, 2 Ida. 627, 23 Pac. 80; Lydon v. Godard, 5 Ida. 607, 51 Pac. 459; Lewiston Nat. Bank v. Tejft, 6 Ida. 104, 53 Pac. 271; Titiman v. Alamance Min. Co., 9 Ida. 241, 74 Pac. 529; Baker v. Drews, 9 Ida. 276, 74 Pac. 1130; Bennett Co. v. Twin Falls L. & W. Co., 13 Ida. 676, 92 Pac. 980.)</p>

Hon. W. W. Woods, Judge. Action by the plaintiff against the defendant for debt. Judgment by default in favor of the plaintiff and defendant appealed to the district court, where judgment was again entered against the defendant, from which defendant appealed. When summons is irregular or defective, the remedy, if any, is by application to the trial court, to quash or set it aside.

<p>APPEAL from an order of the District Court of First Judicial District for the County of Kootenai dissolving an attachment. Hon. W. W. Woods, Judge.</p> <p>The complaint does state facts sufficient to constitute a cause of action, and, if it did not, it could be amended. A motion to discharge an attachment does not reach defects in the complaint. (Kohler v. Agassiz, 99 Cal. 9, 33 Pac. • 741.)</p> <p>Contracts of the nature of the one in the case at bar are contracts for the direct payment of money, and writs of attachment will issue thereon. (Dunn v. Mackey, 80 Cal. 104, 22 Pac. 64; Santa Clara Valley Peat Fuel Co. v. Tuck, 58 Cal. 304; Kohler v. Agassiz, 90 Cal. 9, 33 Pac. 741; Donnelly ■v. Strueven, 63 Cal. 182; Flagg v. Dare, 107 Cal. 482, 40 Pae. 804; DeLeonis v. Etchepare, 120 Cal. 407, 52 Pac. 718; 'Coates v. Arthur, 5 S. D. 274, 58 N. W. 675.)</p> <p>An affidavit for an attachment must contain an allegation in unequivocal language that the debt sued on is due before the writ of attachment should issue. (Gatward v. Wheeler, 10 Ida. 66, 77 Pac. 23; Kerns v. McAulay, 8 Ida. 558, 69 Pac. 539.)</p> <p>“Where the contract does not furnish the measure of the liability of the defendant, and the damages are unliquidated, an attachment cannot be had.” {Dunn v. Mackey, 80 Cal. 104, 22 Pac. 64; DeLeonis v. Etchepare, 120 Cal. 407, 52 Pac. 718.)</p>

Hon. William W. Woods, Judge. Action to recover for personal injuries. Judgment for plaintiff. The plaintiff knew the condition of the roadbed. He bad walked over it tbe day before. He was of mature years, experienced and intelligent. If there were any risks because of failure to ballast, he assumed them. (Drake v. Bailway Co., 2 Ida. 487, 21 Pac. 560; Zienke v. Northern Pacific By.

Hon. Edgar C. Steele, Judge. Judgment of conviction of grand larceny. The court erred in refusing to give defendant’s requested instruction No. 3, or the substance thereof, to the effect that the presumption arising from possession alone is completely removed by the good character alone of the defendant. {People v. Surly, 60 Cal. 74, 44 Am.

Hon. Edgar C. Steele, Judge. Appeal by tbe plaintiff from an order made by tbe district judge fixing tbe amount of a supersedeas bond to be given by tbe defendant on an appeal from a judgment foreclosing a laborer’s lien.

Hon. Edgar C. Steele, Judge. Action on a fire insurance policy. Judgment for plaintiffs. Notice to a mere soliciting agent without authority to sign and deliver the contract is not notice to the company, especially where not communicated, and such an agent cannot bind the company contrary to express provisions in the policy. (Wilson v. Conway F. Ins. Co., 4 R. 1.141; Tebbetts v. Hamilton Milt. Ins.

<p>APPEAL from the District Court of the First Judicial District for the County of Bonner. Hon. W. W. Woods, Judge.</p> <p>Action by the plaintiff to enjoin and restrain defendant from constructing and maintaining a certain building and platform on his property adjacent to plaintiff’s bridge. Judgment for defendant and plaintiff appeals.</p> <p>A bridge is a highway. It is the duty of the municipality to keep in safe repair all bridges within its corporate limits. Any negligence in this regard by the municipality would render it liable for any damage that might be caused thereby. (City of Topeka v. Hempstead, 58 Kan. 328, 49 Pae. 87; Mischke v. City of Seattle, 26 Wash. 616, 67 Pac. 357.)</p> <p>The use of a street, highway or bridge by an individual simply for his own convenience and accommodation, unaccompanied by public uses, is unauthorized, and essentially a nuisance, making not only the individual maintaining such nuisance liable, but the municipality also. (Mischke v. City of Seattle, supra.)</p> <p>A municipality, charged with the duty of maintaining and keeping in repair streets and highways, cannot grant the use of any part thereof for private purposes. There is no such thing as a rightful, private, permanent use of public highways. (State v. Berdetta, 73 Ind. 185, 38 Am. Rep. 123.)</p> <p>The bridge in question is joined at both ends by a street which is a public highway, and by the terms of our statute is 50 feet wide. The public is entitled to the entire width of the street, including the bridge, and any addition to the bridge that .may become necessary by reason of increased traffic. (1 Addison on Torts, 328, see. 313; 2 Dillon’s Mun. Corp., see. 780, note, and cases cited; Giffen v. Lewiston, 6 Ida. 231, 55 Pac. 545.)</p> <p>The trial court did not see or hear any of the witnesses, and therefore the appellate court is in as favorable position for judging of the truth of the witnesses and the weight of the evidence as tbe trial judge, and will consider the same as if originally beard in the appellate court. {Roby v. Roby, 10 Ida. 139, 77 Pac. 213.)</p> <p>Where the structure is in itself lawful and is being used in a lawful way, the municipality has no right whatever to interfere with its uses. (Wood on Nuisances, 2d ed., p. 803; Brown v. Perkins, 78 Mass. 89; State v. Paul, 5 R. I. 185.)</p> <p>Every public bridge is a public highway, which all members of the community are entitled to use on equal terms, and all owners of abutting property are entitled to access to it as fully as they are entitled to access to any other part of the highway of which it constitutes a part. (Sec. 27, Elliott on Roads and Streets, 2d ed.; State v. Wood Go., 72 Wis. 629, 40 N. W. 381; Parker v. Boston & Maine R. R. Co., 3 Cush. 107, 50 Am. Dec. 709; Commonwealth v. Cent. Bridge Co., 12 Cush. 242-244; Rusch v. Davenport, 6 Iowa, 443; Washer v. Bullitt Co., 110 U. S. 558-564, 4 Sup. Ct. 249, 28 L. ed. 249; Willis v. Winona, 59 Minn. 27, 60 N. W. 814, 26 L. R. A. 142; Waldron v. Marsh, 5 Cal. 120.)</p> <p>Every owner of property abutting upon a public highway has an absolute right of access to the highway, of which he cannot be deprived any more than he can be deprived of the abutting property itself, except by due process of law and on just compensation. (Elliott on Roads and Streets, 2d ed., secs. 695, 696; Brakken v. Minneapolis etc. R. R. Co., 29 Minn. 41, 11 N. W. 124; Cincinnati etc. Street Ry. Co. v. Cummins-ville, 14 Ohio St. 523; Venard v. Cross, 8 Kan. 255, 256; Zlostutter v. Aurora, 126 Ind. 436, 26 N. E. 184, 12 L. R. A. 259; Broome v. New York etc. Tel. Co., 42 N. J. Eq. 141, 7 Atl. 851.)</p> <p>To prevent one erecting a lawful structure on his own land is a taking of property. {Pumpelly v. Green Bay Co., 13 ' Wall. 166, 20 L. ed. 557.)</p>

Texas and Arkansas have statutes in every respect like Idaho. If in this case the keeping of the billiard-table was an “occupation,” the occupant was subject to a license tax. If it was kept for amusement and not with a view to derive profit, then it is not subject to a license tax. (Tarde v. Benseman, 31-Tex. 277; Stevens v. State, 2 Ark. 291, 35 Am. Dec. 72; Chicago v. Collins, 175 Ill. 445, 67 Am.

<p>APPEAL from tbe District Court of tbe Third Judicial District for tbe County of Boise. Hon. George H. Stewart, Judge.</p> <p>Action by tbe plaintiff to enjoin defendants from interfering with and diverting tbe waters of Boyle’s Gulcb in Boise County. Judgment for defendants and plaintiff appealed.</p> <p>Counsel cite no authorities on points decided.</p>

Hon. Alfred Budge, Judge. Action by tbe plaintiffs to recover a commission for the sale of real estate. Judgment for plaintiffs and defendant appeals. It is error to refuse to give instructions wbicb are fairly within the pleadings where there is any evidence to support them. (McGee v. Wineholt, 23 Wash. 748, 63 Pae. 571; Binkley v, DeW all, 9 Kan.

<p>An original proceeding in this court for the disbarment of Frank L. Bradley.</p>

Hon. Edgar C. Steele, Judge. An action to foreclose a lien for labor and material furnished. Judgment for plaintiff. The claim filed by the plaintiff is admissible in evidence as proof of its existence and filing, but it is not evidence of the matters alleged in it. (Boisot on Mechanics’ Liens, sec. 613.) Being created and defined by the statute, it follows that mechanics’ liens cannot be created by contract or consent of the parties.