Volume 15 — Arizona Reports

<p>1. Corporations—Action by Stockholders—Condition Precedent— Demand on Corporation—Futility.—A demand upon the eorporation that it begin suit to avoid transfers of its property, made in fraud of the rights of the plaintiff stockholders, was not necessary as a condition precedent to bringing the suit themselves, where defendants, the officers of the corporation, had control thereof, and were hostile to plaintiffs, and had themselves caused the transfer to be made.</p> <p>[As to actions by stockholders on behalf of their 'corporation, see note in 97 Am. St. Rep. 29.]</p> <p>2. Corporations—Foreign Corporations—Actions Against—Jurisdiction.'—Where the defendant foreign corporation appeared and submitted itself to the court’s jurisdiction, in a stockholders’ action to set aside transfers of corporate property as fraudulent, and the property, title to which was involved, was within its jurisdiction, defendant cannot object to the court’s assuming jurisdiction over it on the ground that it is a foreign corporation.</p> <p>3. Corporations — Foreign Corporations — Jurisdiction.—A foreign corporation engaged in business in this state is estopped to deny its right to do so, in order to defeat the jurisdiction of the courts of this state when dealing with its property within their jurisdiction.</p> <p>4. Corporations—Action by Stockholders—Fraudulent Transfer of Property.—The complaint, in an aetion by minority stockholders to set aside a transfer of the corporate property as in fraud of their rights, alleged facts showing a conspiracy by the corporate officers to cause the corporate stock to become worthless by so mismanaging the corporate affairs as to involve the corporation in debt and compel the creditors to resort to the corporate realty, the personalty having been dissipated, and that judgments were rendered against the corporation, and that the managing officers procured executions to be issued and levied on all of its property, which was sold and bought in by them for a nominal price, when they procured a judgment dissolving the corporation in order to prevent redemption of the property sold. Held, that the facts alleged sufficiently showed the fraud relied on.</p> <p>[As to right of stockholder to sue to set aside fraudulent transaction consummated before he became stockholder, see note in Ann. Cas. 1912D, 1100.]</p> <p>5. Limitation of Actions—Fraud—Belief.—Under Revised Statutes of 1901, paragraph 2949, as amended by Laws of 1903, No. 16, providing that a cause of aetion for fraud is not deemed to have accrued until the discovery of the facts constituting the fraud, and paragraph 2970, providing that the time of disability by unsoundness of mind shall not be a part of the time limited for the commencement of the action, an action by an executor to set aside as fraudulent a transfer of property of a corporation in which testator was a stockholder, brought iu 1909, was not barred where decedent was of unsound mind when the fraudulent transactions were commenced, and continued so until his death in 1909, when the exeeutor was appointed.</p> <p>6. Equity—Laches—Application op Statute op Limitations.—Where the circumstances are particularly unconscionable, and the complaining party is also at fault, equity will refuse relief on the ground of laches, though the remedy invoked is not barred by the statute of limitations.</p> <p>[As to refusal of relief in equity because of laches, see notes in 54 Am. Dec. 130; 2 Am. St. Rep. 795; 23 Am. St. Rep. 148; Ann. Cas. 1914B, 314.]</p> <p>7. Equity—Limitations—Application in Equity.—As a rule, a court of equity is bound by the statute of limitations equally with the courts of law.</p>

P. B. Laine, Judge. STATEMENT OP PACTS BY THE COURT. This is an action at law to collect taxes for the year 1911 alleged to be due the state. The action is authorized by the provisions of Act 92, Laws of 1903, which provides for the collection of delinquent taxes. The appellant’s answer to the complaint consists of (1) a general demurrer, (2) special demurrer, (3) general denial, and (1) fraud on the part of assessing and equalizing officers.

<p>1. Courts—Supreme Court—Jurisdiction—Certiorari.—The supreme court has power to issue certiorari to review the judgment of a lower court only in those cases within its appellate jurisdiction, and where necessary and proper to a complete exercise thereof. [As to seope of certiorari, see note in 40 Am. St. Rep. 29.]</p> <p>2. Courts—Supreme Court—Jurisdiction—Amount in Controversy. Under Constitution, article 6, section 4, providing that the supreme „ court shall have no appellate jurisdiction in civil actions at law to recover money or personal property where the amount in controversy or the value does not exceed $200, etc., an action on a note for $26.48 was not reviewable by the supreme court.</p> <p>3. Courts—Superior Court—Final Jurisdiction.—As to all matters not within the appellate jurisdiction of the supreme court, the judgment of the superior court is conclusive on the parties, whether it has erroneously decided that it has jurisdiction when it has not, or has erroneously decided some other matter of law.</p>

<p>1. Dismissal and Nonsuit—Attorney and Client—“Betraxit.”—A “retraxit” is where plaintiff or defendant comes into court where his case is pending, in proper person, and says he will not proceed any further therein. It cannot be entered by an attorney of the party pursuant to his general authority, without the party’s knowledge or consent.</p> <p>2. Judgment—Dismissal op Action—Authority.—Defendant having pleaded releases in bar, plaintiff’s attorney confessed the plea, whereupon the court ordered that the cause be and the same was dismissed with prejudice; plaintiff to pay costs. Held, that such dismissal was on the pleadings, constituting a final determination and not by the consent of plaintiff’s attorney, and was therefore not objectionable because the latter had no authority to consent to a dismissal on a compromise or settlement.</p> <p>[As to implied authority of attorney in conducting litigation, see note in 132 Am. St. Rep. 148. As to extent to. which client may control cause, see note in 93 Am. St. Rep. 169.]</p> <p>3. Judgment—Dismissal.—Conclusiveness.—A judgment of dismissal, unless made because of some defect in the pleadings or for want of jurisdiction or because complainant has an adequate remedy at law or on some other ground whieh does not go to the merits, is a final determination, and where words of qualification, such as “without prejudice,” etc., do not accompany the judgment, it will be presumed that it was rendered on the merits.</p> <p>4. Judgment—Vacation—Fraud oe Attorney—Attack—Limitations. Plaintiff could not avoid a prior final judgment of dismissal, in an action on the same cause, because of the alleged fraud of his attorney in consenting thereto, where a new action was not brought within a year after discovering the fraud, as required by Laws of 1903, No. 16, section 1, subdivision 5.</p>

W. F. Cooper, Judge. STATEMENT OF FACTS BY THE COURT. Appellant sues for commission as a broker.

<p>1. Corporations—Place op Suit—County op Residence—Transitory Action'—Privilege—Waiver.—A suit to dissolve a corporation authorized by Raws of 1903, No. 29, is a transitory action, and hence defendant’s right to be sued in the county of its residence is a right or privilege that may be waived and is waived by defendant’s answering to the merits and proceeding to trial.</p> <p>[As to what are transitory actions, see notes in 22 Am. St. Rep. 22; 59 Am. St. Rep. 869.]</p> <p>2. Corporations—Statutory Agent—Failure to Appoint—Action to Dissolve—Appointment Before Trial.—An action to dissolve a domestic corporation for failure to appoint a statutory agent on whom service of process may be made, as required by Civil Code of 1901, paragraph 783, is not maintainable if the agent is appointed and notice of appointment filed with the auditor before trial of the dissolution proceeding.</p> <p>3. Corporations—Statutory Agent—Appointment—Failure to Appoint—Dissolution.—Appointment of a statutory agent, on whom process may be served, by a domestic corporation being required by Civil Code of 1901, paragraph 783, a director could not withhold his approval of the appointment made by the president and secretary of the corporation instead of at a legally called meeting of the board of directors, and rely on the failure of the board to appoint the agent as the basis of a suit to dissolve the corporation.</p> <p>4. Corporations — Statutory Agent — Appointment—Dissolution— Grounds.—Appointment of a statutory agent by the president and secretary of a domestic corporation instead of by the corporation’s board of directors was but an irregularity, and, since the corporation would be estopped to deny the regularity of the appointment, it was no ground for the maintenance of a suit for dissolution.</p>

J. C. Phillips, Judge. STATEMENT OF FACTS BY THE COURT. This is an action by A. J. Thoman and Elizabeth Thoman, his wife, for commissions earned by Elizabeth Thoman as real estate broker in procuring a purchaser of some real property belonging to the estate of E. 0. Slocum, deceased.

J. C. Phillips, Judge. STATEMENT OF FACTS BY THE COURT. This is an action commenced by the appellants against the appellees, seeking to foreclose a lien created by a trust deed made by James Wilson and wife to P. L. Sherman, as trustee, or to Roger Sherman, as his successor in trust, to secure the payment of two notes, payable to the order of the grantor in the sums of $1,000 each; one payable six months after date, and the other payable nine months after date, both with…

<p>APPEAL from a judgment of the Superior Court of the County of Cochise. Fred Sutter, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Indictment and Information—Duplicity.—An indictment charging more than one offense is bad for duplicity.</p> <p>2. Homicide—Evidence—Evidence of Other Crimes—Admissibility. ■In a prosecution for homicide, accused not having himself killed decedent, that being by a third person, evidence that the third person shortly before had assaulted another man at the direction of accused was not admissible, where it did not appear that the killing was in any way connected with the assault in question; evidence of other crimes being admissible only to show motive, intent, absence of mistake, a common scheme, or the identity of the person charged with the crime.</p> <p>[As to evidence of other crimes in criminal prosecutions, see note in 105 Am. St. Rep. 976.]</p> <p>3. Criminal Law—Evidence — Declarations of Co-conspirators.— While the declarations of one co-conspirator are admissible in evidence against another, when made in furtherance of the conspiracy, yet declarations made after the object of the conspiracy is accomplished are not admissible, especially in view of the fact that Penal Code of 1901, section 925, allows persons charged as principals in the same crime to have separate trials.</p> <p>[As to declarations of co-conspirators, see note in 3 Am. St. Rep. 474.]</p> <p>4. Criminal Law—Evidence—Acts of Co-conspirator.—The acts of one co-eonspirator, performed after the object of the conspiracy has been effected, are inadmissible against another.</p> <p>5. Criminal Law—Evidence—Admissibility.—In a prosecution for homicide, where it was claimed that accused had another kill deceased, evidence that accused’s wife warned the wife of deceased to look out for her husband, and that there was going to be trouble, is inadmissible, being the conclusion of accused’s wife, and not a statement of the facts on which the witness based her conclusion.</p> <p>6. Homicide—Evidence—Admissibility—Declarations.—In a prosecution for homicide, evidence of a warning given by accused’s wife to the wife of deceased is inadmissible; the statement being made in the absence and out of the hearing of accused.</p> <p>7. Witnesses—Cross-examination—Impeachment.—In a prosecution for homicide, where the state asked accused’s wife if she did not warn the wife of deceased to look out for her husband, and that there was going to be trouble, the matter being a collateral one and not properly admissible, the state is hound by the witness’ answer and cannot impeach it.</p> <p>8. Criminal Law—Presumptions.—The presumption of innocence extends to all persons accused of crime, and is not withdrawn during the trial, however strong the evidence against him may be.</p>

Prank 0. Smith, Judge. STATEMENT OP PACTS BY THE COURT. The appellant was charged with the crime of robbery alleged to have been committed upon one Gin Chung on or about November 6, 1912. He pleaded not guilty. Upon a trial on November 15, 1912, the jury returned its verdict of guilty. In due time the defendant moved for a new trial, assigning twenty grounds therefor.

<p>■Criminal Law-—Appeal—Appearance.—In a criminal cause, where there is no appearance and no assignment of error, the court will examine the record to ascertain whether there is prejudicial error.</p>

<p>1. Homicide—Evidence—Res Gestae—Other Offenses.—On a trial for murdering B. in a figbt in which accused also killed F. with a knife or other sharp instrument, witnesses who examined the wounds on both bodies could testify as to their kind and character to aid the jury in determining whether they were inflicted by the same instrument and by the same person, since evidence of another and distinct crime is admissible if it is committed as part of the same transaction and forms part of the res gestae.</p> <p>[As to what is included in res gestae, see notes in 95 Am. Dee. 51; 16 Am. St. Rep. 407.]</p> <p>2. Witnesses—Examination—Responsiveness of Answer.—Where a witness was asked to describe the wounds on the bodies of two persons killed in a fight, an answer that they were similar in nature and in. the witness’ opinion inflicted by the same instrument should have been stricken as unresponsive.</p> <p>3. Criminal Law—Evidence—Opinion Evidence.—The testimony of a witness asked to describe the wounds on the bodies of two persons killed in a fight that they were similar in nature and in the witness’ opinion made by the same instrument should have been stricken as a conclusion or inference of the witness.</p> <p>4. Criminal Law—Reception op Evidence—Motion to Strike Odt— Necessity.—Where, in answer to a proper question, the witness by an unresponsive answer gave incompetent testimony which should have been stricken on a proper motion, but no such motion was made, error could not be based on the admission of the answer, since the court was not bound to strike the answer on its own motion but might assume that the adverse party was satisfied therewith.</p> <p>5. Homicide—Evidence—Sufficiency.—On a trial for murder committed in a fight, in which a number of persons were engaged, evidence held sufficient to support a conviction, though no eye-witness saw accused strike deceased.</p> <p>6. Criminal Law—Appeal—Review—Questions of Fact.—As a general rule, where there is material evidence tending to prove defendant’s guilt, and the trial court refuses to set the verdict aside, an appellate court will not reverse the action of both the trial court and the jury.</p>

<p>1. Criminal Law—Justice of the Peace—Territorial Jurisdiction.— Civil Code of 1901, paragraph 2046, provides that justices shall •have jurisdiction over all criminal cases other than felonies when the punishment is a fine not exceeding $300 or imprisonment in the county jail not exceeding six months, or both. Penal Code of 1901, section 708, declares that, except as otherwise provided by law, every offense shall be tried in the county in which it is committed, subject to the right to change the place of trial. Constitution, article 2, section 24, gives the accused the right to a speedy trial by a jury of the county in which the offense is alleged to have been committed, and Penal Code of 1901, section 1187, provides that in ease of bias of a justice of the peace or prejudice of the citizens of the preeinet the case may be transferred to another justice in the same or adjoining preeinct, or a preeinct where prejudice of the citizens does not exist. Held, that the territorial jurisdiction of a justice of the peace is not limited in criminal matters to the preeinct in which he is elected, but extends throughout the county.</p> <p>2. Criminal Law—Courts—Jurisdiction.—Where accused was arrested pursuant to a warrant issued on a certain complaint brought before a justice of the peace, and was present at his trial and conviction, the justice had jurisdiction of his person, and the superior court acquired jurisdiction on appeal.</p>

<p>1. Counties—Validity—Mutuality.—A resolution by the supervisors of a county, that plaintiff be engaged to superintend the construction of a courthouse at an agreed compensation, does not constitute a contract, but is a mere offer, and, where defendant did not agree to act as superintendent during the entire period of construction, although he entered upon the discharge of the duties, the county may dismiss him.</p> <p>2. Contracts—Construction—Construction of Parties.—Where plaintiff acted as superintendent of the construction of a courthouse under a resolution employing him at a compensation equal to five per cent of the contract price, and both plaintiff and the supervisors construed the resolution as providing that seventy-five per cent of the compensation should become due upon the estimate of the work and material in place in the building as made by the superintendent, plaintiff, having been discharged, is entitled to recover as damages five per cent of the estimated cost of labor and material put into the building during his superintendency.</p>

<p>T. Homicide—Teial—Juey Question.—In a prosecution for homieide, evidence held sufficient to take the case to the jury.</p> <p>:2. Homicide—Appeal—Eeview.—In a prosecution for homicide, where a conviction was had on sharply conflicting evidence, the verdict will not be disturbed on appeal, especially where the trial court refused a new trial.</p> <p>:-3. Homicide—Murdee in the Piest Degeee—Essentials.—Where accused was present, participating in an unprovoked and unnecessary killing of two officers of the law, premeditated design and criminal intent, from whieh malice might be inferred by the jury, were present.</p> <p>[As to condition of mind of slayer whieh will reduce murder to ■■manslaughter, see note in 134 Am. St. Eep. 726.]</p>

<p>1. Corporations — Person Receiving Payment—Officer of Corporation.—In the absence of agreement, payment to an officer of a corporation in his individual capacity, or the rendition of services or furnishing of materials to him in such capacity, is not a payment to the corporation, especially when pleaded as an offset to negotiable paper owned by the corporation.</p> <p>[As to right of corporate officers to compensation for services, see note in 136 Am. St. Rep. 909.]</p> <p>2. Corporations—Estoppel by , Conduct.—If “F., Incorporated,” knew that F., as an individual, agreed with the makers of a note and mortgage to the corporation that they should make payments thereon, to F. personally by furnishing services and materials, the corporation would be estopped from denying that sueh services and materials' were received in payment of its note.</p> <p>3. Appeal and Error—Objection Below—Necessity.—Plaintiff, in an action on notes and to foreclose a mortgage, eannot claim that the answer did not allege with sufficient particularity the items of payment set up with the amounts and dates, where he did not move to correct such defect by making the answer more definite.</p>

<p>APPEAL from a judgment of the Superior Court of the County of Maricopa. J. C. Phillips, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Criminal Daw—Evidence—Admissions.—On a trial for rape on a female under the age of 17 years, an instrument executed by accused, wherein he admitted that he was the father of the unborn child of prosecutrix, and made provision for the support of her and the child, was admissible to corroborate her as to the principal fact of her having had intercourse with accused.</p> <p>[As to necessity and sufficiency of corroboration of prosecutrix in rape case, see note in Ann. Cas. 1913D, 660.]</p> <p>2. Criminal Law—Reception of Evidence—Motion to Strike—Failure to Move.—Where, after an instrument executed by accused on trial for rape, wherein he admitted that he was the father of the unborn child of prosecutrix, bad been received in evidence, be offered evidence of the circumstances under which the instrument was signed, indicating that it was signed under duress, but made no motion to exclude it because so executed, the evidence of the circumstances bore only on the weight the jury would give to the instrument as evidence.</p> <p>3. Criminal Law—Appeal—Harmless Error—Examination of Witness.—Where a prosecution for rape was not instituted by prosecutrix, or by any member of her family, but by one interested in the case for accused, and prosecutrix admitted that she had requested money from accused, and had been refused, the exclusion of a question on her cross-examination as to whether she had threatened to proseeute accused if he did not pay her a specified sum was not prejudicial to him.</p> <p>4. Rape—Elements op Oppense.—To support a conviction for rape, the state must show by competent evidence every material allegation in the information, and every fact essential to the crime, ineluding the fact that prosecutrix was not the wife of accused at the date of the offense alleged in the information.</p> <p>[As to what constitutes rape, see note in 80 Am. Dec. 361. As to proof of want of consent where prosecutrix is under age of consent, see note in Ann. Cas. 1913A, 164.]</p> <p>5. Rape—Instructions—Misleading Instructions.—Where, on a trial for rape, the court in its instruction gave the statutory definition of the crime, and charged that the presumption of innocence attached to every fact essential to a conviction, an instruction that, if accused raped prosecutrix, and she was under the age of 17 years, the jury must find accused guilty was not objectionable, as permitting a conviction without finding that prosecutrix was not the wife of accused.</p> <p>6. Criminal Law — Instructions — Construction.—The instructions must be considered as a whole in determining their correctness, and if, when so construed, the law applicable to the facts is correctly stated, an error in an instruction standing alone is not ground for reversal.</p> <p>7. Criminal Law—Instructions—Comment on Facts.—Penal Code of 1901, section 921, subdivision 6, providing that the judge may, when the evidence is closed, charge the jury, and must do so on any points pertinent to the issues, if requested by either party, but must not state the testimony, does not conflict with Constitution, article 6, section 12, declaring that judges shall not eharge with respect to matters of fact, nor comment thereon, but shall declare the law.</p> <p>8. Criminal Law—Instructions—Requests—Necessity.—Where the trial court declares in its instructions the general principles of law to be applied by the jury in reaching a verdict, accused, if dissatisfied with them, must request others, and, where no sueh request is made, an omission to give particular instructions is not reversible error.</p> <p>9. Criminal Law—Review—Harmless Error—Instructions.—Where, on a trial for rape on a female under 17 years, all the evidence on the age of proseeutrix fixed her age as under 17, and the court specifically charged that, to render a verdict of guilty, the jury must be satisfied that prosecutrix was under that age, an instruction that, if the jury were convinced beyond a reasonable doubt that she was 17 or older, the verdict should be not guilty was not prejudicial as placing on accused the burden of establishing her age at 17 or above before entitling him to an acquittal.</p> <p>10. Rape—Evidence—Sufficiency.—On a trial for rape on a female under the age of 17 years, evidence held to show that prosecutrix was not the wife of accused.</p> <p>11. Rape—Evidence—Circumstantial Evidence.—On a trial for rape, the fact of nonmarriage of accused and prosecutrix may be established by circumstantial evidence.</p> <p>12. Criminal Law—Appeal—Questions Reviewable,—The refusal of the trial court to grant a certificate of probable cause for appeal raises no question on appeal.</p>

<p>APPEAL from an order of the Superior Court of the "County of Cochise. A. C. Lockwood, Judge.</p> <p>The facts are stated in the opinion.</p>

W. F. Cooper, Judge. STATEMENT OP PACTS BY THE COURT. Action by appellant to have certain contracts canceled for being usurious and to have returned to him certain securities and for moneyed judgment for interest paid under such usurious contracts. The case was tried to the court without a jury, and judgment was rendered in favor of appellees.

<p>1. Husband and Wipe—Community Property—Eights op Parties.— Civil Code of 1901, paragraphs 2124,. 2125, 3102, 3104, 3108-3110r defining separate property of husband .and wife and community property, and providing that community property passes to the survivor, if decedent leaves no children, while, if he leaves children, the surviving wife shall be entitled to one-half of the community property, charged with debts, recognize a marital community wherein both husband and wife are equal, and though, during the marriage, the personal property of the community may be disposed1 of by the husband, a sale or encumbrance of the real estate may not be made without the wife joining, and the interest of the wife' in community property during marriage is not a mere possibility or an expectancy, and, on the death of the husband, she acquires the right to control and dispose of her share.</p> <p>2. Wills—Construction—Intention op Testator.'—The court must eonstrue a will according to the intention of testator.</p> <p>3. Wills—Construction—Parol Evidence.—Parol evidence is admissible to aid in construing a will by showing the surrounding circumstances, thereby placing the court in the position of the testator,, but the intent of testator to dispose of his property must appear from the will itself, and cannot be proved by parol.</p> <p>4. Wills—Construction—Property Devised.-—Where a testator, owning only an undivided interest in. real estate, disposes by his will of his property only, and by same words gives benefits to his wife, who is his co-owner, the wife need not elect between the benefits conferred by the will and her own share in the property, but she may take the benefits and her own shaTe.</p> <p>5. Wills—Construction—Property Devised.-—A testator must be presumed not to intend to devise any property over which he had no power of testamentary disposition, and Ms will must be read as applying only to the property within the power of his disposition.</p> <p>6. Wills—Construction—Property Devised.—Where a will executed by a husband, who, with his wife, was in possession- of community property, gave to his wife for life all of the property of which he might die possessed, with a gift over of what she was possessed at her death, the wife was not required to elect between the benefits conferred by the will and her own share but she could take' her share and a life estate in the other share.</p> <p>7. Wills—Election—Effect.—Where a widow makes an election between the interest devised by her husband’s will and her own interest in the property on the supposition that a duty of election devolved on her, when no necessity for an election existed, the election was ineffectual.</p> <p>S. Life Estates—Distribution Under Wills—Security from Life Tenant.—Where testator gave all the property of whieh he died seised to his wife for life, with gift over of what remained at her death, and empowered his exeeutors to sell, with the approval of the wife, to provide for her, the court distributing the personal estate to her for life was not required to exact from her security for the management of the personalty.</p> <p>9. Husband and Wife — Community Property — Administration — Jurisdiction of Court.—The court, in administering community property disposed of by the will of the deceased husband, may assume jurisdiction of the whole of the community estate to determine the debts chargeable against it, and to direct their payment -out of the community property.</p> <p>[As to election by widow as between what her husband’s will gives her and the estate which the law confers, see note in 92 Am. ■St. Rep. 695.]</p>

Original proceeding in quo warranto by the state, on relation of George Pnrdy Bullard, Attorney General, against F. A. Jones. The facts are stated in the.opinion.

Carl Q. Krook, Judge. STATEMENT OF FACTS BY THE COURT. The appellee, R. J. Holmes, on March 21, 1912, made application to the local United States land office for a mineral patent for the land and premises embraced within the Ilomestake and Jack Pot lode mining claims situate in the San Francisco mining district, in Mohave county, state of Arizona.

<p>APPEAL from a judgment of the Superior Court of the "County of Maricopa. J. C. Phillips, Judge.</p> <p>The facts are stated iu the opinion.</p>

<p>APPEAL from a judgment of the Superior Court of the County of Yuma. Frank Baxter, Judge.</p> <p>The facts are stated in the opinion.</p>

Prank Baxter, Judge. STATEMENT OP PACTS BY THE COURT. Action to quiet title to 160 acres of land situate in Yuma ■county, Arizona. Both plaintiffs (appellees) and defendant (appellant) deraign title through Carlos Ramirez, deceased, and his surviving widow. The pleadings and evidence •disclose the following facts: In October, 1899, Carlos Ramirez received a patent from the government for the land.

<p>APPEAL from a judgment of the Superior Court of the County of Gila. A. G. McAlister, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>. APPEAL from a judgment of the Superior Court of the County of Yuma. Prank Baxter, Judge.</p> <p>The facts are stated in the opinion.</p>

Prank O. Smith, Judge. STATEMENT OP PACTS BY THE COURT. The appellant, as plaintiff, commenced this action upon a promissory note dated July 20, 1908, due four months after date, payable to the order of T. P. Otis in the sum of $6,456.25, with interest from date at the rate of ten per cent per annum, with a reasonable attorney’s fee in case of snit.

<p>APPEAL from a judgment of the Superior Court of the County of Apache. Reamer Ling, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Courts—Supreme Courts—Jurisdiction—Certiorari.—The supreme court has power to issue certiorari to review a trial court’s judgment only in those cases within its appellate jurisdiction, and where necessary and proper to complete exercise thereof.</p> <p>[As to scope of certiorari, see note in 40 Am. St. Rep. 29.]</p>

<p>Original petition for writ of certiorari.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal and Error—Bemedy—Writ op Error.—On and after October 1, 1913, there has been no law authorizing review of an order striking plaintiff’s amended complaint from the files by writ of error.</p>

<p>1. Witnesses—Cross-examination op Accused.—In a proseeution for-homicide, the question asked accused on cross-examination, “You had had a fist fight just before this occurrence, hadn’t you?” was not objectionable as referring to a different offense, since the “occurrence” and “fist fight” were so correlated in the question that the-one might have been the immediate outgrowth of the other.</p> <p>2. Witnesses—Cross-examination—Relevancy.—Where a witness, in. a proseeution for homicide, testified that he was about 300 feet distant at the time, he was properly required to answer on cross-examination how he happened to be looking at the scene of the-trouble, in order to determine the truthfulness of his statement.</p> <p>3. Witnesses—Cross-examination.-—Where, in a proseeution for homicide, the witness testified that he was about 300 feet from the scene-of the trouble, and that about two hours before a hobo came from the place and told him that the saloon-keeper in thé first saloon had a gun and the fellow in the other house was watehing him and going-to shoot him, he was properly asked on cross-examination why he failed to inform defendant and others of the pending trouble, as-related to him by the hobo.</p>

<p>APPEAL from a judgment of the Superior Court of the County of Cochise. J. E. O’Connor, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Constitutional Law-—Corporations—Public Service Corporations—Regulation.—Laws of 1912 (Sp. Sess.), chapter 52, section 7, requiring public service corporations to sell water, electrical energy, or illuminating gas by meter measurement, and prohibiting them from charging for a greater amount than actually furnished, conflicts with Constitution, article 15, section 3, giving the Corporation Commission full power to fix the classifications, rates and charges of publie service corporations, except that cities and towns may be authorized by the legislature to exereise supervision within their respective limits, since the constitutional power given the commission is not only full, but exclusive, except in the one instance wherein the legislature is authorized to transfer such power to cities and towns, it excludes interference by the legislature in every other way.</p> <p>2. Constitutional Law — Constitution •— Construction. —Since Constitution, article 15, section 6, expressly authorizes the legislature to enlarge the powers and extend the duties of the Corporation Commission, but nowhere authorizes it to restrict or limit its powers, it thereby impliedly forbids the legislature from exercising any of the powers vested in the commission.</p> <p>3. Corporations — Corporation Commission — Powers. — Constitution, article 15, section 8, authorizing the legislature to exereise its authority in the formulation of regulations to govern the interchange by transportation companies of cars, property, and passengers, and section 9, containing a similar provision in regard to telegraph and telephone companies, do not limit the full power given by section 3 to the Corporation Commission to fix rates, charges and classifications for public utilities.</p> <p>4. Corporations — Corporation Commission — Powers.—Constitution, article 15, section 3, vests the Corporation Commission with full power, with the command to exercise it: (1) To prescribe just and reasonable classifications to be used; (2) just and reasonable rates and charges to be made and collected; (3) reasonable rules, regulations and orders by which publie service corporations shall be governed in the transactions of business within the state.</p> <p>5. Corporations—Corporation Commission—Powers.—The functions of the Corporation Commission are neither legislative, executive nor judicial, but its duties and powers pervade them all, and it is in fact, another department of government; and, where it is given exclusive power, it is supreme.</p> <p>[As to right of city which has fixed rates for public service corporations to object to change thereof by state or public commission, see note in Ann. Cas. 1913A, 89.]</p>

WRIT OP ERROR from the Superior Court of the County of Maricopa. J. C. Phillips, Judge. STATEMENT OP PACTS BY THE COURT. The defendant in error commenced this action against the plaintiff in error to recover damages alleged to have resulted from a malicious assault made upon plaintiff by the defendant Laurabel Hageman on the twelfth day of June, 1912. The plaintiff demands exemplary damages in the sum of $10,000 and special damages in the sum of $5,000.

<p>Appeal and Error—Review—Decisions Appealable.—A writ of error will not lie to review an order sustaining a demurrer to and motion to strike out part of the complaint, when the record contained no final judgment or order denying leave to amend, for an appeal can be taten only from a final judgment whieh disposes of the entire case.</p>

<p>APPEAL from a judgment of the Superior Court of the County of Graham. A. G. McAlister, Judge.</p> <p>Perfecto Alday was convicted of murder and he appeals.</p>

<p>1. Appeal and Error—-Mandate and Proceedings in Lower Court— Effect in Lower Court of Decision of Appellate Court.—Where both parties to a suit appealed from the territorial supreme court to the supreme court of the United States, and a statement of the faets of the ease in the nature of a special verdict was made and certified by the territorial court, as provided by act of April 7, 1874, chapter 80, 18 Stat. 27, the district court could not, after remand from the supreme court, reopen the case and hear evidence, but could only enter judgment in conformity with the mandate upon the record as made and certified.</p> <p>■2. Appeal and Error—Proceedings in Lower Court After Bemand.— Where, on appeal from a territorial court, the supreme court of the United States decided, as a matter of law, from the faets certified, that the property in controversy belonged to defendant, and the mandate was that such “further proceedings be had in conformity with the opinion, etc., as according to right and justice and the laws of the United States ought to be had,” the lower court in entering judgment could properly allow interest at six per cent on .the money converted.</p> <p>3. Appeal and Error—Courts—Mandate and Proceedings in Lower Court.—Where, on appeal to the supreme court of the United States, the territorial supreme eourt in its certified statement of facts found that ten per cent was a reasonable amount for plaintiff’s attorney’s fees, the federal supreme eourt was bound thereby, and the superior court was bound by this finding after remand from the supreme eourt.</p> <p>4. Appeal and Error—Mandate and Proceedings in Lower Court.— Where, on appeal from the territorial court to the supreme court of the United States, that eourt held, upon the certified facts, that the appointment of a receiver was proper, and that he should be continued until the litigation was finally determined, the lower court after remand properly refused to discharge the receiver.</p> <p>5. Corporations—Action by Stockholder—Costs and Expenses.— Where an action was prosecuted by a stockholder for the benefit of the corporation, and, as a result, the corporation was enriched to the amount recovered, the court properly entered judgment in favor of the stockholder against the corporation for all costs, attorney’s fee, ete.</p> <p>[As to suits by stockholders on behalf of corporations, see note in 97 Am. St. ítep. 29.]</p>

J. C. Phillips, Judge. STATEMENT OP PACTS BY THE COUKT. The appellant was charged with the commission of the crime of rape upon one Valera Mills, a female child under the age of seventeen years, and was convicted. He appeals from the judgment of conviction, from an order refusing a new trial, and from an order denying his motion in arrest of judgment. The prosecutrix’s mother testified that her daughter Valera was born June 21, 1898.

<p>1. Waters and Watercourses—Surface Waters—Dominant or Servient Estate.—As a rule, there is no dominant or servient estate with respect to surface or rain waters.</p> <p>2. Waters and Watercourses—Surface Water—Embankments.—At common law one may prevent surface water from coming on to his premises from higher land by the ereetion of embankments, etc., in the improvement of Ms premises.</p> <p>3. Waters and Watercourses—Drains in Street—Consent of City— Implied Consent.—Even though one who constructed a ditch in a street for draining surface water is not shown to have obtained the city’s permission to do so, its use for some ten months for that purpose, without objection by the city, would justify a presumption that its consent was secured or that it had ratified its construction by acquiescence.</p> <p>4. Municipal Corporations—Torts—Casting Surface Water.—Before plaintiff’s lot had been raised so as to he somewhat above the proposed street grade except in the rear, a ditch was dug along the street by another adjacent owner with the city’s consent or acquiescence for the purpose of draining away the surface water, and thereafter the city engineer, merely in view of raising the street in the future and not for making a present improvement, dumped waste material in the street so as to make an embankment across the ditch and dam up the surface waters, which were thereby cast on plaintiff’s land in a greater volume than they would have naturally flowed thereon. Held, that the city was guilty of an actionable wrong in thus impounding waters and casting them upon plaintiff’s land.</p> <p>[As to right of municipality to drain surface water from highway upon adjoining land, see note in Ann. Cas. 1912B, 915. As to right of land owners generally to divert or obstruct surface waters, see notes in 16 Am. St. Bep. 710; 85 Am. St. Rep. 707.]</p> <p>5. Municipal Corporations—Officers—Authority.—Where a contract for the improvement of a street authorized the contractor to place the waste material as directed by the city engineer, the engineer’s act in directing the contractor to dump it in a certain street, which resulted in stopping up the drain, was the act of the city, sinee municipal corporations can only act by their servants and agents.</p> <p>6. Municipal Corporations—Surface Waters—Disposition.—Municipal corporations are under the same duties and liabilities as other persons, in the control and disposition of surface waters.</p> <p>7. Municipal Corporations—Torts—Liability of City.—A municipal corporation is liable for injuries caused by the negligent or wrongful act of its servants and agents for which it is responsible.</p> <p>8. Waters and Watercourses—Obstructing Surface Water—Actions for Damage—Instructions.—In an action against a city for damage to property by impounding surface water in a street and casting it upon plaintiff’s property, the court instructed that the term .“act of God” applied only to events in nature so extraordinary that the history of climatie conditions in the locality afforded no reasonable warning of them, and liability for injury caused by floods cannot be avoided, on the ground that the flood was an aet of God, where it might have been expected, though it occurred infrequently, and that even though the city had caused material to be dumped in the street, yet, if the storm whieh caused the injury to plaintiff’s property was so overwhelming in character that it would of itself produce the injury independently of the material, then the jury must find for defendant, and further instructed that, to give a body of water the character of an extraordinary flood, it is not necessary that it should be the greatest flood within memory, but its character should be tested by comparison with the usual volume of floods ordinarily occurring. Held, that the instruction as a whole was that, if the storm would have caused the injury to plaintiff’s property independent of the obstruction placed in the street, plaintiff could not recover.</p> <p>9. Appeal and Error—Harmless Error—Rulings on Evidence.—In an action against a city for damage from obstructing a street ditch so as to cause water to gather in the street and be cast on plaintiff’s lot, any error in rulings on evidence as to whether the particular rain was extraordinary was harmless, where it appeared that the only outlet it had from the street after it was obstructed was over plaintiff’s premises.</p>

<p>1. Executors and Administrators—Collateral Attack on Appointment—Foreign Corporation.—Under Constitution, article 6, section 6, providing that the superior court shall have original jurisdiction of all matters of probate, and Civil Code of 1901, paragraph. 1598, providing that wills must be proved and letters of administration must be granted in the county in which any part of , a nonresident decedent’s property is situated, the aetion of the superior court in appointing a foreign corporation, conceding it to be invalid, as ancillary admininstrator of property in the state of a nonresident decedent dying without the state cannot be attacked in a suit by the administrator to recover, under Civil Code of 1901, paragraphs 4108-4127, property of the decedent in the state.</p> <p>2. Executors and Administrators—Presumptions as to Jurisdiction. Everything consistent with the probate record of the superior court which would have warranted it in appointing an ancillary administrator will be presumed to have been found and acted upon by the court.</p>

<p>1. Master and Servant—Injuries to Servant—Remedies.—Under the Arizona law, an injured servant may elect to sue to enforce the master’s eommon-láw liability relieved of the defense of fellow-servant, with the right to have the defenses of contributory negligence and assumed risk left to the jury, as provided by Constitution, article 18, sections 4, 5, or he may sue under the employers’ liability law (Laws 1912, c. 89), applying, to hazardous occupations where the injury or death is not caused by the employee’s own negligence, or he may eleet to enforce compulsory compensation, under Constitution, article 18, section 8 (Laws 1912, 1st Sp. Sess. c. 14), applicable to especially dangerous occupations, by which a recovery may be had for injuries occasioned without fault on the part of the employer.</p> <p>2. Master and Servant—Injuries to Servant—Workmen’s Compensation Act—Remedies—Election—Time.—Workmen's compensation law (Laws 1912, 1st Sp. Sess., c. 14) section 14, provides that, ten days after the act take's effect, it shall be held in law that all workmen then in the employ and all workmen thereafter employed by an employer at manual and mechanical labor of the kinds defined in section 3 are employed and working under the act, and that the employer and workman shall alike be bound by and shall have each and every benefit and right given in the aet, the same as if a mutual contract to that effect was entered into between the employer and the workman at any time before the happening of the aceident. Meld, that, under Constitution, article 18, section 8, providing that the legislature shall enact a workmen’s compulsory compensation law, provided that it shall be optional with the employee to settle for such compensation or retain the right to sue the employer as provided by the Constitution, such act must be construed as regulative of the respective rights and obligations of master and servant in those cases where injury results and the employee exercises his option to accept compensation and the employer refuses to pay, and does not require the employee to elect as to which remedy he will adopt prior to the injury.</p> <p>3. Master and Servant—Workmen’s Compensation Act—Remedies— Adoption.'—Under the workmen’s compensation law (Laws 1912, 1st Sp. Sess., e. 14), section 14, declaring that a suit brought by a workman shall be held an election to pursue such remedy exclusively, an injured employee is at liberty to pursue any of the remedies provided by law until he adopts one by instituting suit for redress, when the one adopted becomes exclusive.</p> <p>[As to constitutionality of workmen’s compensation aets, see note in Ann. Cas. 1912B, 174. As to who is “workman” within meaning of such aets, see note in Ann. Cas. 1913C, 28. As to what is accident arising out of and in course of employment within such acts, see note in Ann. Cas. 1914B, 498.]</p>

A. G. McAlister, Judge. STATEMENT OP PACTS BY THE COURT. (N. B.—In this statement of facts and in the opinion we have suppressed the full name of the person alleged to have been injured for evident reasons, referring to her by the first •and last letters of her names, thus: “J-e B-s.”) Appellant was convicted- of the crime of libel alleged to have been committed on the fifteenth day of August, 1912, by means of a written statement of and concerning one J-e B-s, with the…

W. P. Cooper, Judge. statement of facts by the court. The appellant, who was plaintiff below, prosecutes this appeal from a final judgment sustaining a demurrer to her complaint, on the ground that it failed to state facts sufficient to constitute a cause of action.

<p>1. Appeal and Error—Waiver op Errors—Failure to Argue.—Where the reasons set up as grounds for the assignment that the court erred in overruling the motion for a new trial were not argued, they would not be considered.</p> <p>2. Pleading—Complaint—Sufficiency.—In construing the language of a complaint, every reasonable intendment should be made to sustain the pleading, if possible.</p> <p>3. Pleading — Complaint — Sufficiency.—That a complaint alleged legal conclusions instead of facts did not make it bad on general . demurrer, where the intention of plaintiff was apparent.</p> <p>4. Trial—Reservation of Grounds of Review.—A general objection to evidence not stating any point was wholly unavailable.</p> <p>5. Trial—Deliberations oe Jury—Urging or Coercing Agreement.— A statement of the trial judge, after the jury had considered a- ease during one night and until noon of the following day, that the case had been twice tried, and that he hoped they would arrive at a ver diet one way or the other, did not require a reversal.</p> <p>[As to coercing or urging verdict, see notes in 103 Am. St. Kep. 589; Ann. Cas. 1912D, 440.]</p>

John H. Campbell, Judge. STATEMENT OF FACTS BY THE COURT. Held: but the said Nielsen believed that he had been legally and duly discharged, and that the said Steinfeld had shut down said mine and smelter for the reasons stated in his letter of January 3, 1900, and acted and relied on such belief.

<p>1. Principal and Agent—Evidence of Agency—Parol Evidence.—In an action against an insurance company to recover a cash payment made by plaintiff on a stoek subscription agreement, oral evidence was admissible to show that the person with whom plaintiff contracted for the return of the payment was acting as defendant’s agent, so that defendant was bound by the contract, though not an ostensible party thereto.</p> <p>2. Pleading—Denial—Verified Denial—Authority of Agent.—In an aetion on a written contract by the agents of defendant insurance company to return a cash payment made on a stock subscription any time within ninety days, an allegation that sueh contract was made by defendant’s agent was admitted if not denied by a verified answer under Civil Code of 1901, paragraph 1358, requiring an answer denying the execution by defendant’s authority of a writing upon which a pleading is founded to be verified by affidavit.</p> <p>3. Corporations—Ultra Vires Acts—Necessity of Pleading.—A corporation must specifically plead its want of power to do an act upon which liability by it is predicated.</p> <p>[As to ultra vires contracts of corporations, see note in 70 Am. St. Rep. 156.]</p> <p>4. Interest—Right to Recover.—In an action against an insurance company to recover an amount paid on a contract to subscribe-for its corporate stock under its agreement to return the payment within ninety days, if demanded, plaintiff, upon recovering, should be allowed interest from the date of his demand for the return of the payment.</p>

<p>“Courts — Interpreters — Pees — County’s Liability.—Civil Code of 1901, paragraph 2505, authorizes the appointment of interpreters, who .may be summoned in the same manner as witnesses, and Laws of 1903, No. 91, seetion 1, declares that supervisors may pay interpreters’ fees to persons who shall act as sueh in the prosecution or defense of criminal eases. Held, that an interpreter cannot maintain an action against a eounty for fees, unless the services were rendered in the prosecution or defense of a criminal ease or in a civil case in which the eounty. was a party, so that a eomplaint for sueh fees against a county, which was silent as to the character of the cases in which plaintiff served, did' not state a cause of action.</p> <p>[As to method of examining witness through interpreter, see note in Ann. Cas. 1912B, 726.]</p>

<p>1. Appeal and Error—Appeal from Judgment—Dismissal—Review. An appeal from a judgment alone will not be dismissed on the ground that the appeal was not taken from the order denying a new trial, but the right of review will be restricted.</p> <p>2. Appeal and Error—Appeal—Writ of Error—Dismissal.—While a valid, subsisting appeal is pending in the supreme court a writ of error cannot be prosecuted, and, if prosecuted, will be dismissed.</p> <p>3. Appeal and Error—Questions Reviewable—Assignments—Sufficiency.—Under Civil Code of 1901, paragraph 1586, as amended by Laws of 1907, chapter 74, section 21, providing that the brief •of appellant must plainly state the errors complained of, and supreme court rule 8, subdivision 1 (14 Ariz. xliii, 126 Pac. xi), requiring assignments of error to distinctly specify each ground of error relied on and the particular ruling complained of, an assignment that the court erred in its judgment need not be considered, though an examination of appellant’s argument may ascertain that the assignment is directed at the insufficiency of the evidence, though, on a proper assignment of error, the court must examine the evidence to determine its sufficiency to support the judgment.</p> <p>4. Waters and Watercourses—Appropriation—Abandonment—Question for Jury.—Whether an appropriator of water has abandoned the water, ditch, canal or other works depends on the facts of each particular ease, and is for the jury.</p> <p>5. Waters and Watercourses—Appropriation—Abandonment—Question for Jury.—Where a squatter appropriated water for irrigation, and the owner obtained a judgment of ouster against him, and he then moved from the premises and took with him all his personal effects and dismantled the house in which he had lived, the question whether, in leaving the premises, he did so with the intention of abandoning his water right and the water, ditches and other works was one of faet, and a finding of the court will not be disturbed.</p> <p>[As to what constitutes appropriation of water, see note in 60 Am. St. Rep. 799.]</p>

<p>APPEAL from a judgment of the Superior Court of the County of Yavapai. Frank O. Smith, Judge.</p> <p>The facts are stated in the opinion.</p>

Sidney Clapp, Judge. STATEMENT OP PACTS BY THE COURT. The appellants were indicted, charged with the larceny of a steer.

<p>1. Quieting Title—Subject Matter—Mining Machinery.—Plaintiffs gave an option on a mine providing for payment of the price in installments, that the purchaser should have possession, and, on ■default in any payment, should forfeit, as liquidated damages, any machinery and improvements placed on the. premises. Default was made after placing mining machinery, firmly affixed to the ground, on the premises, and plaintiffs took possession. Held, that plaintiffs could sue under Civil Code of 1901, paragraph 4104, authorizing an action to quiet title to real property, to quiet that title to the machinery against persons claiming it under a chattel mortgage or conditional sale.</p> <p>2. Quieting Title—Sufficiency of Complaint—Allegations as to Title.—Under Civil Code of 1901, paragraph 4105, requiring the complaint, in an action to quiet title, to set forth the nature and extent of plaintiffs’ estate, allegations that plaintiffs were the owners of a mine, that the machinery in question was placed thereon to operate the mine, that plaintiffs acquired it by a forfeiture of the option under which operating machinery placed at the mine became liquidated damages with the acquiescence of the purchaser sufficiently alleged the nature and extent of plaintiffs’ property; and plaintiffs’ title was not an issue unless defendant, who sold the machinery to the holder of the option under a contract of conditional sale and claimed a balance thereon, denied the purpose for which it was placed at the mine or that it was to remain part and pareel of the mine.</p> <p>3. Quieting Title—Sufficiency of Complaint—Allegations as to Cloud or Adverse Claim!—Under Civil Code of 1901, paragraph 4105, requiring plaintiff, in a suit to quiet title, to set forth that he is credibly informed and believes the defendant makes some claims adverse to his own, and in view of paragraph 2702 providing that contracts for the conditional sale of personal property, with reservation of title in the vendor, shall be invalid except as to the parties and persons having notice thereof, unless in writing, and the same or a copy thereof is filed in the office of the county recorder where the property is situated, allegations, in a suit to quiet title to mining machinery, that plaintiff had acquired title thereto by forfeiture of the lease for default of rental payments, but tha.t the conditional seller had duly recorded the contract, was sufficient to show the apparent validity of the instrument constituting the cloud.</p> <p>4. Pleading—Demurrer—Admission of Truth.—In an action to quiet title to mining machinery, plaintiffs’ allegation that the recorded contract of conditional sale under whieh defendant claimed was invalid in that there was no balance due thereon, and that it was an attempt to defeat plaintiffs’ rights,'would be treated as true for the purpose of a demurrer.</p> <p>5. Quieting Title—Decree—Sufficiency of Evidence.—In an action to quiet title to mining machinery plaeed on mining land owned by plaintiffs, and on which they had given an option to purchase, providing for the forfeiture of any machinery placed thereon by the purchaser on default of payment on any installment of the price, where defendant] who sold such machinery to the purchaser, claimed a lien thereon for an alleged balance under its recorded contract of conditional sale, evidence held insufficient to sustain a decree for plaintiff.</p> <p>[As to suits to quiet title, see notes in 67 Am. Dec. 110; 45 Am. St. Eep. 373.]</p>

<p>APPEAL from a judgment of the Superior Court of the County of Cochise. A. C. Lockwood, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Landlord and Tenant—Agreement for Lease—Action for Damages.—For breach of an agreement for a lease, a party may either treat the agreement as rescinded and sue for damages, or treat the contract as continuing and sue for speeifie performance, or repudiate the contract and sue for recovery of any advance payments made.</p> <p>2. Landlord and Tenant—Establishment of Relation—Execution of Lease.—It is only where a lease has actually been made that the relation of landlord and tenant is established.</p> <p>3. Landlord and Tenant—Withholding Possession—Ejectment.— When the relation of landlord and tenant exists, the lessee may maintain ejectment against any person, including the lessor, who wrongfully withholds possession of the demised premises.</p> <p>[For what property, or invasion of possession, ejectment is maintainable, see note in 116 Am. St. Rep. 568.]</p> <p>4. Landlord and Tenant—Liability for Rent—Possession.—Delivery of possession of the demised premises by the lessor to the lessee is necessary to the lessee’s obligation to pay rent; and the rule is the same whether the lessor refuses or is unable to give possession.</p> <p>5. Payment—Recovery—Voluntary Payment.—Plaintiff, after an agreement with defendant for a lease if he should purchase the stock of the then lessee, pending negotiations for such purchase, sent to defendant the amount of the advance payments, and thereafter, pending, and apparently in aid of his suit against the former lessee and the purchaser of his stock for possession of the store under his alleged lease from defendant, and upon advice of counsel that it was necessary to do so in order to maintain that suit, sent the rental each month for more than a year, specifying it as rental for each month, amounting in all to $2,240. Defendant denied any lease, offered to hold the money for plaintiff, or to return it to him, and, after plaintiff’s negotiation for the purchase of the stoek fell through, and after his own sale and conveyance of the premises, cashed the checks. Held, in an action to recover such payments, that, as plaintiff voluntarily paid the money with a full knowledge of all the facts, though no obligation thereto existed, he could not recover; defendant’s statement, on demand for repayment, that he owed plaintiff being immaterial as a conclusion of law, and without consideration.</p> <p>6. Payment—Question for Jury—Voluntary Payment.—Whether a payment was made voluntarily or not is a question of law, where the facts are undisputed.</p> <p>[As to recovery of money voluntarily paid, see note in 94 Am. St. Eep. 408.]</p>

<p>WRIT OF ERROR from the Superior Court of the County of Cochise. Fred Sutter, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the Superior Court of the County of Yuma. Frank Baxter, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Appeal and Error—Jurisdiction—Supreme Court—“Validity op a Statute.”—If the power to enact a statute as it is in terms, or as made to read by construction, is fairly opeh to denial, and is denied, the validity of the statute is drawn in question so as to give the supreme court jurisdiction under Constitution, article 6, section 4, providing that its jurisdiction shall not extend to civil actions to recover money, where the amount in controversy does not exceed $200, unless the aetion involves the “validity of a . . . statute”; the phrase “validity of a statute” referring to the power to enaet the particular statute, and not merely to its judicial construction or application.</p> <p>2. Appeal and Error—Jurisdiction — Supreme Court — Questions Raised—Validity op Statute.—If statutes are constitutional, the fact that they have been misconstrued or misapplied by the trial court will not give the supreme court jurisdiction of an appeal under Constitution, article 6, section 4, providing that its jurisdiction shall not extend to actions where the amount in controversy does not exceed $200, unless the action involves the validity of a statute.</p> <p>3. Appeal and Error—Jurisdiction—Supreme Court—Validity op a Statute.—The “validity of a statute,” as that term is used by Constitution, article 6, section 4, withholding jurisdiction from the supreme court where the amount in controversy does not exceed $200, unless the aetion involves the validity of a statute, is not to be determined by what has been done under the statute in a particular case, but by its general purpose and its efficiency to effeet such purpose.</p> <p>4. Appeal and Error—Jurisdiction—Supreme Court—Validity op Statute.—A reference to the Constitution to strengthen objections to a particular statutory construction is not sufficient to give the supreme court jurisdiction, under Constitution, article 6, section 4, withholding jurisdiction from that eourt where the amount in controversy does not exceed $200, unless the action involves the validity of a statute.</p> <p>5. Appeal and Error—Jurisdiction—Supreme Court—Validity op Statute.—While the construction of the Constitution may be involved in the question of the validity of a statute, a constitutional construction may be necessary where the “validity of a statute” is not involved.</p> <p>6. Appeal and Error—Jurisdiction—Supreme Court—“Validity op a Statute.”—Constitution, article 22, section 2, provides that all laws of the territory of Arizona in force at the time of statehood, and not contrary to the Constitution, shall remain in force as laws of the state until they expire by limitation or repeal. Plaintiff sued for compensation as county school superintendent, basing her claim upon Laws of 1912, chapter 93, while defendant county claimed that the salary of the officers was fixed by Revised Statutes of 1901, claiming that to apply the laws of 1912 to fix plaintiff’s salary would violate the constitutional provision, forbidding the compensation of any public officer being increased or diminished during his term of office, and the trial court adopted that view, holding that Revised Statutes of 1901 controlled in fixing plaintiff’s salary. Neither party claimed that either statute was an invalid exercise of legislative power. Held, that the “validity of a statute” was not involved within Constitution, article S, section 4, withholding appellate jurisdiction from the supreme court in civil actions where the original amount in controversy does not exceed $200, unless the action involves the validity of a statute, so that the supreme court did not have jurisdiction of plaintiff’s appeal.</p>