Volume 15 — Idaho Reports

Hon. Alfred Budge, Judge. Action to quiet title to a certain water right. Judgment for the plaintiff. Where a public wrong results in special and peculiar damage to an individual, differing in kind and not merely in degree from that suffered by the public at large, he may maintain an action individually to protect his interests. (15 Ency. of PI. & Pr. 473.) The supreme court upon appeal may review the vefdict, if excepted to, and the evidence supporting it.

<p>Divorce — Motion to Dismiss Appeal — Insufficiency of Specification of Error — Desertion—Insufficiency of Evidence to Establish — Corroboration—Separation—Mutual Consent — Offer of Home — Character of — Beal Estate — Title to — Not Determined When Divorce not Granted.</p> <p>1. A specification of insufficiency of the evidence which designates some particular fact, and avers that it is not justified or sustained by or is contrary to the evidence, is sufficient.</p> <p>2. Held, that the evidence is not sufficient to establish wilful desertion that had continued for one year prior to the commencement of this action.</p> <p>3. Held, that the evidence fails to establish the fact that the plaintiff offered to furnish the defendant a suitable home or to support her.</p> <p>4. If a husband fails to furnish his wife a home suitable to their condition, and reasonable support, and she is compelled by necessity to leave him and seek employment whereby to earn her own support, without intention of deserting him, such a leaving is not wilful desertion under the provisions of see. 2460, Bev. Stat. In such ease, the wife is an involuntary actor and acts because of necessity and on account of the bad conduct of the husband.</p> <p>5. Under the provisions of see. 2471, Bev. Stat., a divorce cannot be granted upon the uncorroborated statement, admission or testimony of the parties.</p> <p>6. Under the provisions of that section, the statement, admission or testimony of either of the parties to the aetion may be admitted in evidence, but is not of itself sufficient corroboration of the testimony of the other to the facts introduced to establish the main issue in the action, for under the provisions of said section, the statement, admission or the testimony of both of the parties to the aetion requires some extrinsic corroboration.</p> <p>7. The provisions of that section do not prohibit the introduction of statements, confessions and admissions of the parties, but only provide that a decree shall not be granted on them alone.</p> <p>8. The provisions of said sec. 2471 are mandatory, and there must be some other and different corroboration of the main facts in issue than the statement, admission or testimony of the parties.</p> <p>9. Where an issue in regard to the ownership of certain real estate is put in issue in an action for a divorce and the divorce is not granted, such issue will not be determined.</p> <p>(Syllabus by the court.)</p>

<p>Writ op Beview — Eminent Domain — Authority to Exercise Bights— Public Use — A More Necessary Public Use — Greatest Public Benefit — Least Private Injury.</p> <p>1. Under the provisions of see. 4962, Bev. Stat., a writ of review may be granted when an inferior tribunal, board or officer exercising judicial functions, has exceeded the jurisdiction of such tribunal, board or officer, and there is no appeal, nor, in the judgment of the court, any plain, speedy and adequate remedy.</p> <p>2. Under the provisions of our statute granting the power of eminent domain, the district court, or judge thereof, has jurisdiction to determine'^ the right'and necessity for the exercise of that right, and if, on a hearing of an application to appoint commissioners to assess damages, he rejects certain evidence offered in regard to the location of the right of way sought to be condemned, or the necessity thereof, his aetion may be reviewed on an appeal, but cannot be reviewed on certiorari.</p> <p>(Syllabus by the court.)</p>

Hon. J. M. Stevens, Judge. Action by the plaintiffs to recover on a promissory note given as part payment for the purchase of a vehicle. Answer and cross-complaint by the defendants admitting the sale and the execution and delivery of the note and attempting to charge deceit and false and fraudulent representations made by the vendor upon the sale of the property. Judgment for the defendants and plaintiffs appeal.

<p>Conflict of Findings — Judgment—Uncertainty of.</p> <p>1. Where the finding of facts is contradictory and uncertain, and the intention of the court cannot be ascertained therefrom, and certain parts of the judgment are not supported by all of the findings, the judgment will be reversed and remanded for new findings and judgment.</p> <p>(Syllabus by the court.)</p>

. Hon. Edgar C. Steele, Judge. An application to open a default and permit the plaintiff in a divoree proceeding to intervene and defend in an áetion brought by a third party against her husband, the defendant in such divorce proceeding. Order denied. Appellant has a right of intervention under see. 3177 of the Code of 1901, which is the same as that of California. {Korn v. Volcano Water Co. etc., 13 Cal. 70, 73 Am.

Hon. James M. Stevens, Judge. Action to recover damages for the careless construction, maintenance, etc., of an electric plant. Judgment for plaintiff. In an action to recover damage for negligence, the plaintiff must allege the acts and omissions of the defendant upon which he relies, and he cannot recover on acts not alleged. (Woodward v. Navigation Go., 18 Or. 289, 22 Pac. 1076; 6 Thompson on Negligence, secs. 7452, 7491; Haner v. Northern Pac.

<p>Motion for New Trial — Evidence.</p> <p>1. Where the only assignment of error is, that the evidence does not support the findings and judgment, and it appears from examination of said evidence that the same supports the findings and judgment, the judgment will be affirmed.</p> <p>2. Held, in this case, that the evidence supports the findings and judgment.</p> <p>(Syllabus by the court.)</p>

Hon. E. A. Walters, Judge. Action by tbe village of Twin Falls to condemn lands for sewerage purposes. Judgment for tbe plaintiff and defendants appealed. A village has no legal right to condemn and appropriate property for sewer purposes. No such right is expressly given by statute, and in the absence of a statute the right does not exist. It cannot obtain by implication. The right to condemn property, being in derogation of the common law, must be strictly construed.

Hon. Lyttleton Price, Judge. Prosecution for grand larceny. Defendant found guilty. The information in this ease discloses an attempt to aver two separate and distinct offenses, the second of which is incomplete.

Hon. Fremont Wood, Judge. Action to recover damages for failure to comply with an alleged contract for the sale of a town lot. Judgment for the plaintiff. In order to constitute a contract, there must be a distinct understanding common to both parties; the minds of the parties must meet as to all its terms, and if any portion of the proposed terms is unsettled and unprovided for, there is no contract.

Hon. J. M. Stevens, Judge. An action to recover debt and foreclose a mechanic’s lien for labor, alleged to have been performed upon a canal system. Motion to dismiss the appeal from the order overruling the motion for a new trial. As this appeal was not taken within a year after the entry of judgment or decree, the motion to dismiss appeal should be sustained.

Hon. J. M. Stevens, Judge. Defendant was convicted of grand larceny for selling mortgaged personal property, and motion for a new trial was granted by the trial judge.

Hon. James M. Stevens, Judge. Action to recover damages under what is known as tbc “two-mile limit law.” Judgment for plaintiff. In an action of this kind the permanent injury to the range or the effect upon the grass for another season, by reason of herding and grazing sheep upon it, tramping out and destroy-. ing it, is not a proper element of damage.

Hon. Edgar C. Steele, Judge presiding. An application for an allowance of counsel fees, suit money and alimony pendente lite.

Original application by John Sharp for a writ of habeas corpus for the body of Hazel Sharp, alleged to be unlawfully detained and confined in the State Industrial Training School. Such acts as the delinquent children act of 1905 are criminal and violative of constitutional guaranties. (People v. Turner, 55 111. 28, 8 Am.

Hon. E. A. Walters, Judge. Action by the plaintiff to obtain an adjudication and decree of his rights and priorities in and to the waters of Seaman’s creek in Blaine county, and to quiet his title thereto. Judgment for plaintiff, and defendant appeals. Prior appropriation of all the water of a stream for irrigating purposes goes to the tributaries, and when this right once vests it must be protected and upheld.

Hon. James M. Stevens, Judge. An action to determine the right of the wife to a one-half interest in the property of the husband at the time of his death, and to have such interest set off and decreed to said applicant upon the final settlement of said estate.

Hon. Fremont Wood, Judge. . Action by the plaintiff to recover the principal and interest on four promissory notes. Judgment for defendant on the plea of the bar of the statute of limitations. Plaintiff appeals.

Hon. Fremont Wood, Judge. An action to recover commission as real estate brokers. Judgment for defendant on a motion for a nonsuit. Plaintiffs appeal. A motion for a nonsuit will not be granted where there is any evidence tending to sustain plaintiff’s cause of action. (York v. Pacific & N. Ry. Co., 8 Ida. 574, 69 Pac. 1042; Archibald’s Estate v. Matteson, 5 Cal.

An original proceeding in this court for a writ of prohibition to prevent the court from further proceeding in conducting the business of a private corporation through a receiver. The strict and technical rules with respect to parties, which have been shown to apply in most extraordinary remedies, do not apply to a proceeding in prohibition.

Hon. Fremont Wood, Judge. An action to quiet title. Judgment for plaintiff. Defendant appeals. It is against the policy of the law to enable either party, in controversies between themselves, to enforce an agreement in fraud of the law or which was made to injure another.

Hon. E. L. Bryan, Judge. Defendant was convicted of a misdemeanor in the justice’s court and appealed to the district court, where he was again convicted, and thereafter appealed to the supreme court. A justice of the peace must reside and hold court in his own precinct; he cannot be transferred to the case; the ease must be transferred to him. It is not a migratory court. (Phillips v. Thralls, 26 Kan. 780; Wilcox v. Johnston, 34 Kan. 655, 9 Pac. 610; see. 3850, 3885, Eev.

<p>APPEAL from the District Court of the Fifth- Judicial District for Bannock County. Hon. Alfred Budge, Judge.</p> <p>An action to recover a commission for services as real estate brokers. Judgment for defendant. Plaintiffs appeal.</p> <p>If a broker is encouraged by a property owner to aid in a sale and led to believe that he will receive compensation, the owner cannot accept the benefit of his services and deny him compensation. (Steidl v. McClymonds, 90 Minn. 205, 95 N. W. 906.)</p> <p>This court has repeatedly held that the appellate court will not disturb a judgment or verdict or order denying a new trial where there is a substantial conflict in the testimony, and no rule of law appears to have been violated. (Mootry v. Hawley, 1 Ida. 543; Pine v. Callahan, 8 Ida. 684, 71 Pac. 473; Spaulding v. Coeur d’Alene B. Co., 5 Ida. 528, 51 Pae. 408; Commercial Bank v. Lieuallen, 5 Ida. 47, 46 Pac. 1020; State v. Bathbone, 8 Ida. 161, 67 Pac. 186.)</p>

Hon. J. M. Stevens, Judge. An action to recover a money judgment in tbe probate court on appeal to tbe district court. Appeal dismissed. Even if notice of appeal is not as full in all particulars as it might be, this court, in accordance with the general practice, has applied liberal rules of construction in the consideration of notices of appeal. (Idaho Go.

County of Fremont. Hon. J. M. Stevens, Judge. Action by the plaintiff to determine, adjudicate and quiet his title to a water right and appropriation from Spring creek in Fremont county. Judgment for defendants, dismissing the action. Plaintiff appeals. Where the necessary parties are before a court of equity, it is immaterial that the res of the controversy, whether it be real or personal property, is beyond the territorial jurisdiction of the tribunal.

Original action in this court for recommendatory judgment by Alfred Rathbun, as trustee of the estate of John W. Walker, a bankrupt, against the state for the judgment of this court as to the liability of the state for certain claims and demands preferred by the trustee of the bankrupt estate. Judgment for the plaintiff in the sum of $4,298, with interest from June 3, 1906.

<p>Original proceeding for writ of mandate.</p> <p>The only question to be determined by the court is which of the two tickets in controversy is the ticket nominated by the convention called by the regular state central committee of the party. (Williams v. Lewis, 6 Ida. 184, 54 Pac. 619; Addle v. Davenport, 7 Ida. 282, 62 Pac. 681.)</p> <p>The course pursued by the state committee in this ease in organizing the convention is the one adopted by the national conventions of both parties, and has been approved in State ex rel. Dowels v. Metcalf, 18 S. D. 393, 100 N. W. 923, 67 L. E. A. 331.</p> <p>The fact that a contesting delegation voted upon the question of the title to seats in the convention did not vitiate the judgment of the convention where, as in this ease, the evidence disclosed that a clear majority of all the delegates present voted in the affirmative, without including the contesting delegation. (State ex rel. Gilchrist v. Weston, 27 Mont. 185, 70 Pac. 519.)</p> <p>The convention is clearly the judge of the qualifications and election of its members, and the court will not decide such questions in the absence of statutory provisions relating thereto. (State ex rel. Mitchell v. Larson, 13 N. D. 420, 101 N. W. 315; State v. Lavih, 9 N. D. 461, 83 N. W. 914.)</p> <p>Judicial inquiry is limited to ascertaining and determining the identity of the party convention, and not to an examination of methods or tactics. (State v. Porter, 11 N. D. 309, 91 N. W. 946; State v. Liudahl, 11 N. D. 320, 91 N. W. 955; State v. Board of Election Commrs., 167 Ind. 276, 78 N. W. 1018.)</p> <p>The court will take notice of the fact that by party usage and custom the state central committee has the power to pass upon the claims of contesting delegations. (State v. Falley, 9 N. D. 450, 83 N. W. 863.)</p> <p>The withdrawal of the several delegates from the convention did not dissolve the convention, or destroy its identity, or deprive it of the power of proceeding with the business for which it convened. (Hutchinson v. Brown, 122 Cal. 189, 54 Pac. 738, 42 L. E. A. 232; State v. Porter, 11 N. D. 309, 91 N. W. 946.)</p> <p>The defense set up “that if the majority remained in said hall and attempted to assert their rights, riot and bloodshed would result, and many of their members be injured and killed,” and they therefore withdrew from the convention, is ludicrous. (State v. Metcalf, 18 S. D. 393, 100 N. W. 926, 67 L. E. A. 331.)</p> <p>The court has jurisdiction to go into the merits of the controversy and determine which of the two tickets nominated at Wallace is entitled to be printed upon the official ballot as the regular Democratic ticket. (State v. Houser, 122 Wis. 534, 100 N. W. 964; State v. Falley, 9 N. D. 450, 83 N. W. 860; Williams v. Lewis, 6 Ida. 184, 54 Pac. 619.)</p> <p>Political parties have the same power to determine purely political questions and matters of party procedure, in the absence of legislation, that they always had, but when the legislature essays to regulate any matter, questions arising out of such legislation are legal and not political, and the courts are bound to determine them. (State v. Metcalf, 18 S. D. 393, 100 N. W. 923, 67 L. E. A. 331; Ladd v. Holmes, 40 Or. 167, 91 Am. St. Eep. 457, 66 Pac. 714; Neal v. Young, 25 Ky. Law Eep. 183, 75 S. W. 1082; State v. Hogan, 24 Mont. 383, 62 Pac. 587; State v. Martin, 24 Mont. 403, 62 Pac. 590.)</p> <p>Since the case of Williams v. Lewis, supra, and that of Addle v. Davenport, 7 Ida. 282, 62 Pae. 681, were decided by this court, our legislature has seen fit to enact a primary election law. We think it intended to provide that delegates duly elected in accordance with that statute shall be entitled to seats in the convention to which they are accredited. {People v. Democratic General Committee, 164 N. Y. 335, 58 N. E. 124, 51 L. E. A. 677.)</p> <p>While the rule is universal that, in the absence of legislation, a political convention is the judge of the qualifications and election of its members, its operation is restricted in this state by that other rule that political parties cannot evade, ignore or violate a statute. {Neal v. Young, supra; State v. Bexford (S. D.), 109 N. W. 217.)</p> <p>The fact that the statute provides that delegates elected under the provisions thereof to the county convention may select delegates to the state convention, implies that after the statute has been invoked, delegates to a state convention chosen in the statutory way are qualified to sit therein, and that delegates elected by any other body or selected in any other way are not so qualified.</p> <p>What the legislature makes lawful a political convention cannot make unlawful. {State v. Hogan, supra; Neal v. Young, supra; Ladd v. Holmes, supra.)</p> <p>Under the Australian ballot law alone the majority had, and now has, a right to name the ticket, and a legal right to name it. {State v. Smart, 24 Mont. 413, 62 Pac. 593.)</p> <p>We are here asking the court in this case to exercise its power, to assume jurisdiction of the controversy, to prevent the consummation of a fraud — a fraud conceived and executed with the deliberate aim of subverting the legal right of the majority to name the party ticket. (10 Am. & Eng. Ency, 2d ed., 660; Williams v. Lewis, supra; State v. Lesueur, 103 Mo. 253, 15 S. W. 539; Spencer v. Maloney, 28 Colo. 38, 62 Pac. 850; Whipple v. Broad, 25 Colo. 407, 55 Pac. '172; Allen v. Burrow, 69 Kan. 812, 77 Pac. 555; Fairchild, In re, 151 N. Y. 359, 45 N. E. 943; In re Pollard, 25 N. Y. 172; Allen v. Burrow, 69 Kan. 812, 77 Pae. 555; In re Fairchild, 151 N. Y. 359, 45 N. E. 943; In re Pollard, 25 N. Y. Supp. 385; French v. Boosevelt, 41 N. Y. Supp. 1080, 18 Misc. Rep. 307; Jennings v. Board of Flection Gommrs., 137 Mich. 720, 100 N. W. 995; Beckwith v. Bucker, 28 Colo. 31, 62 Pae. 836; In re Woodworth, 16 N. Y. Supp. 147, 19 N. Y. Supp. 525, 46 N. Y. St. Rep. 432; 15 Cyc. 332.)</p> <p>What was the highest tribunal in the Democratic party, according to party usage, when the two factions came to the parting of the ways at Wallace? We answer, a majority of the duly elected and uneontested delegates in the convention. Our opponents say, the temporary chairman and the state central committee. We maintain that the state committee died with the convening of the convention. (State v. Falley, supra.)</p>

Honorable Edgar C. Steele, Judge. The defendant was convicted of the crime of manslaughter, and appeals from the judgment and order overruling a motion for a new trial. The attorney general moves to dismiss the appeal. No service of the transcript in this case has ever been made upon the attorney general, who is by law charged with the duty of representing the people of the state, or of any county thereof, in this court.

<p>Original application for a writ of mandate. Plaintiff, G. W. Gale, made original application to tbis court for a writ of mandate to compel tbe city of Moscow and its duly constituted officers to grant a license for tbe sale of intoxicating liquors.</p> <p>Tbe power which is given to cities of tbe second class to restrain, prohibit and suppress unlicensed tippling-sbops goes only to tbe power to prohibit such as have not conformed to tbe general law of tbe state, by obtaining a license from tbe county, but where tbe applicant has obtained a license from tbe county in conformity with tbe general law of tbe state, then it is beyond tbe jurisdiction of tbe city to refuse a license, even though tbe same is done under tbe guise of an ordinance, and it is against the general laws of tbe state. (Territory v. Robinson (Okl.), 92 Pac. 144.)</p> <p>Tbe ordinance passed on July 7, 1908, abolishing liquor licenses in tbe city of Moscow, was in direct conflict with art. 12, sec. 2 of tbe state constitution, and also with tbe general incorporation act, as not complying with tbe general statutes of tbe state, so far at least as tbis plaintiff is concerned. (In re Ridenbaugh, 5 Ida. 371, 49 Pac. 12.)</p> <p>Where there is a direct conflict between tbe state and the cities and villages in tbis intoxicating liquor act, tbe cities and villages must give way to the legislative will. (Allsman v. Oklahoma City (Old.), 95 Pae. 468; City of Auburn v. Mayer, 58 Neb. 161, 78 N. "W. 462.) No call for the special meeting of the council was ever issued. If the council did' meet, the object of the meeting was entered upon the journal by the clerk. (Sess. Laws 1899, p. 193, see. 13; Horr & Bemis on Mun. Police Ordinances, sec. 38, p. 40, and also sec. 293; McQuillan on Mun. Ord., sec. 92, and footnote; also sec. 110 et seq.; Sommercamp v. Kelley, 8 Ida. 712, 71 Pac. 147.)</p> <p>The notice required to be given is not for the purpose of notifying the public, but for the purpose of giving each councilman an opportunity to appear and be heard. In states where a written notice is required, the authorities hold that the same may be waived by a voluntary appearance of the councilman. In the present case all were notified and all attended who could attend, except Graham. (Magneau & Brunner v. City of Fremont, 30 Neb. 843, 27 Am. St. Rep. 436, 47 N. W. 280, 9 L. R. A. 786; Knoxville v. Knoxville Water Go., 107 Tenn. 647, 64 S. W. 1075, 61 L. R. A. 888; 28 Cyc. 329; City of Sommercamp v. Kelley, 8 Ida. 712, 71 Pae. 147.)</p> <p>The right to make and enforce police regulations as used in the constitution of the state carries with it the right to prohibit. {Ex parte Campbell, 74 Cal. 20, 5 Am. St. Rep. 418, 15 Pac. 318; Odd Fellows’ Assn. v. City of San Francisco, 140 Cal. 226, 73 Pae. 987.)</p> <p>Every person is presumed to know the law. At the time the license was procured, the plaintiff knew that he was accepting said license with full power given unto the city to prohibit by both the constitution and the statute. (23 Cyc. 92b, 110, subd. 4, 156.)</p>

<p>An original application to this court for a writ of mandate to compel the secretary of state to file and certify a certificate of nomination for public offices.</p> <p>If the 28th was the last day for filing the certificate of the Independence party, such party had the whole of that day to file the same. The statute gave it that right, and the secretary could not deny it if they exercised it in a reasonable manner. His office being actually open and the clerks working therein, the Independence party representative was making a reasonable exercise of his rights and the certificate should have been received. (In re Norton, 34 N. Y. App. Div. 79, 53 N. Y. Supp. 1093, reversing 53 N. Y. Supp. 924.)</p>

Hon. Lyttleton Price, Judge. An action to recover an interest in a ditch and the water flowing therein. Judgment for Plaintiff. Defendants appeal. It is the duty of the court to give the findings the most liberal construction the language used will justify in order to sustain the judgment found thereon.

Hon. Edgar C. Steele, 'Judge. Action for debt. Judgment for plaintiff, and defendant appealed. Walter Grant Dygert, Appellant, in propria persona, cites no authorities on points decided. The dismissal of the former appeal was, in effect, an affirmance of the judgment. (Sec. 4823, Rev. Stat. 1887; Fahey v. Belcher, 3 Ida. 644, 32 Pae. 1135.) This being true, no second appeal will lie, as the former affirmance is the law of the case.

<p>Suit to Quiet Title — Unrecorded Deed — Adverse Possession — Payment of Taxes — Notice of Use and Occupation — Water Eight and Easement — Pleading Information and Belief — Nature of Pleading Determined by Facts Alleged.</p> <p>1. Where S. took a conveyance of real property and paid a valuable consideration therefor and had no notice of an outstanding unrecorded deed for a ditch and right of way through the property, and recorded her deed of conveyance prior to the recording of the outstanding deed for ditch and right of way, under sec. 3001, Eev. Stat., the unrecorded deed is void as against such subsequent purchase.</p> <p>2. Where a purchaser of a right of way for a ditch across a tract of land has failed to record its conveyance prior to the record of a subsequent conveyance made in good faith, and in an action to quiet title seeks to recover on the grounds of adverse possession for the statutory period, the extent of the right of way or easement must be determined by the facts proven as to the extent of the use and occupation, and cannot be determined by the calls of such unrecorded deed.</p> <p>3. Under the provisions of see. 4043, Eev. Stat., adverse possession cannot be established unless it is shown that the land has been occupied and claimed for the period of five years continuously, and the claimant or his predecessors in interest have paid all taxes, state, county and municipal, which have been levied and assessed upon such land according to law.</p> <p>4. In a case where a party seeks to establish his right and title to real estate under the law of adverse possession, he must prove, and the court must find, that he has paid or caused to be paid all the taxes which have been levied and assessed against the property for five years continuously, or that the property was exempt from taxation or has never been assessed.</p> <p>5. Under the provisions of sec. 1402, Eev. Stat., as adopted by act of February 10, 1899 (Sess. Laws 1899, p. 221), all irrigating canals and ditehes and water rights appurtenant thereto are exempt from taxation when the owner or owners of the canals and ditches use the water thereof exclusively upon land owned by the owner of the ditches and water right, but where any water is sold or rented from such canal or ditch, the same is taxable to the extent of the sale or rental. Under the provisions of this statute it becomes a question of fact in eaeh case as to whether or not a canal or. ditch or water right is taxable in whole or in part or is entirely exempt from taxation.</p> <p>6. The fact that a party has located a water right and filed his notice thereof in accordance with law does not give him any right to build ditches and canals across the lands of others until he has acquired the easement and right of way therefor, either by purchase or condemnation. The ownership of a water right does not necessarily imply that the ownership of the ditch through which the water flows is vested in the same person. The ownership of the ditch and the ownership of a water right for water to flow through such ditch may exist in different parties.</p> <p>7. An allegation in a complaint that “defendant is informed and believes" that certain facts exist, without"further alleging on such information and belief that those facts do exist, is not a sufficient allegation of any issuable fact.</p> <p>8. The name and character of a pleading must be determined by the facts alleged, and the relief asked by the pleader. The right to recover will not be limited by the name given to the pleading by the pleader, except in such cases as the aetion and conduct of the pleader has misled the adverse party to his prejudice.</p> <p>(Syllabus by the court.)</p>

<p>Original application for writ of mandate. Application denied.</p>

Hon. William W. Woods, Judge. Replevin by Simon Beck against Margaret Lavin and others. A default judgment was rendered for plaintiff, which on motion was set aside, and plaintiff appeals. The laws of this state require that all pleadings in the district courts and the supreme court shall be signed by a resident attorney of the state.

Hon. W. W. Woods, Judge. Appeal from an order dismissing the case. This appeal raises no issues which were not before the court on the former appeal, and which have not been adjudicated by this court in favor of respondent, Kerns.

Hon. W. W. Woods, Judge. An action for debt. Judgment for plaintiff. Where there is a substantial conflict of evidence the findings of the court will not be disturbed. (Abbott v. Reddy, 9 Ida. 577, 75 Pac. 764.) It is immaterial whether an agreement of the nature set out in the complaint was in writing or not. If made as alleged by plaintiffs and found by the court, it was not necessary for it to be in writing.

Hon. W. W.. Woods, Judge. An action for the specific performance of a contract for the sale of real property. Judgment for plaintiff. Defendants appeal from the judgment. If it is doubtful whether an agreement has been concluded or is a mere negotiation, and unless the proof is clear and satisfactory both as to the existence of the agreement and as to its terms, chancery will not decree specific performance. (Dalzell v. Dueler Watch Co., 149 U. S. 320, 13 Sup.

<p>Complaint — Demurrer—Appropriation op Water — Mining—Irrigation — License prom State Engineer.</p> <p>1. Held, that the complaint stated a cause of action, and on the showing made, that the court did not err in granting an injunction.</p> <p>2. When all of the water of a stream has been appropriated and put to a beneficial use, the state engineer cannot legally deprive the prior appropriator of such water by granting another and subsequent applicant a license to use the same to the injury of the first appropriator.</p> <p>3. Vested rights to the use of water cannot be taken away, and the right to the use of such water granted to a subsequent locator by the state engineer.</p> <p>(Syllabus by the court.)</p>

Hon. William W. Woods, Judge. Action to quiet title to certain laud, in which action an injunction was issued pending the litigation. From the order granting the injunction the appeal was taken. Courts of equity should hesitate before granting an injunction to restrain trespass, committed under color of title or right; and when the party seeking a preliminary injunction fails to show possession in himself, it should be denied. {Carney v. Hadley, 32 Fla. 344, 37 Am.

Hon. Edgar C. Steele, Judge. Action by plaintiffs to quiet their title to a certain water right, appropriation and easement, and to enjoin and restrain defendant from disturbing or interfering therewith. Application for injunction pendente lite denied, and plaintiffs appealed.

Hon. Edgar C. Steele, Judge. An action for debt. Judgment for defendant. These notes, being Washington contracts, were subject to the law of revivor under the laws of Washington. (Leman v. Cunningham, 12 Ida. 135, 85 Pac. 212; Mills v. Duryee, 7 Cranch, 481, 3 L. ed. 411.) The laws of a state in which a contract is made are an integral part thereof and form part of its obligation.

Hou. Edgar C. Steele, Judge. Action in ejectment with cross-action to declare a resulting trust. Judgment for plaintiff. “A resulting trust, being one which results by implication or construction of law, does not fall within the provisions of the statute of frauds, and may be established by parol evidence.” (Bates v. Kelly, 80 Ala. 142; Harden v. Darwin, 66 Ala. 55; Bose v. Gibson, 71 Ala. 35; Boyd v. McLean, 1 Johns.

Hon. Edgar C. Steele, Judge. An application for mandamus to compel the defendant city to pay salary alleged to be due. Judgment for defendant.

<p>APPEAL from the District Court of the First Judicial District, for the county of Kootenai. Hon. W. W. Woods, Judge.</p> <p>Action by plaintiffs for damages caused by a steamboat collision. Judgment for plaintiffs and defendant appealed.</p> <p>There is no sufficient allegation of negligence or unskillfulness or misbehavior in the complaint. (Trans., fol. 1594, 1595; 6 Thompson on Negligence, sec. 7452; San Antonio etc. B. Co. v. Stolleis (Tex. Cr. App.), 49 S. W. 679.)</p> <p>An opinion is entitled to no weight with the court or jury, and should not be admitted unless it comes from a person who has given satisfactory evidence that he is possessed of such experience, skill or science in the particular subject of inquiry as entitled his opinion to pass for scientific truth. (Carr v. Northern Liberties, 35 Pa. 324, 78 Am. Dec. 342; Graney v. St. Louis etc. R. Co., 157 Mo. 666, 57 S. W. 276, 50 L. R. A. 153; 6 Thompson on Negligence, sec. 7753.)</p> <p>If the facts of any particular inquiry can be so placed before the jury that as men of ordinary intelligence they can fully understand the matter and draw the proper inferences and conclusions therefrom, the opinions and conclusions of a witness, whether an expert or a nonexpert, should not be received. (6 Thompson on Negligence, sec. 7747; Richardson v. Eureka, 96 Cal. 443, 31 Pac. 458; Shafter v. Evans, 53 Cal. 32; Sonnefteld v. Mayton (Tex.), 39 S. W. 116.) In de-. termining the liability for a collision, what the respective boats might have done to avoid a collision is not the proper test. (Goslee v. Shute, 18 How. 463, 15 L. ed. 462; The Nevada, 106 U. S. 154, 1 Snp. Ct. 234, 27 L. ed. 149; The Grace Girdler, 7 Wall. 196, 19 L. ed. 113.)</p> <p>By the established principles of maritime law, a vessel that anchors where vessels are passing, or near where vessels are passing, is in fault, unless she shows at night a signal light. {Brig James Gray v. The Fraser, 62 U. S. 184, 16 L. ed. 106; The St. John, 54 Fed. 1015, 5 C. C. A. 16; The Scioto, Fed. Cas. No. 12,508; The Indiana, Fed. Cas. No. 7020; Stiles v. Stevens, Fed. Cas. No. 13,443; The Clara, 102 U. S. 200, 26 L. ed. 145.) Failure to exhibit lights in accordance with custom, though no positive rule requires a light, will render a vessel at fault. {Shields v. Mayor etc. City of New York, 18 Fed. 748; The Oliver, 22 Fed. 848; The Alabama, 26 Fed. 866.)</p> <p>A vessel will be held at fault for failure to show a light when common prudence demands that a light should be carried. {Carsley v. White, 21 Pick. 254, 32 Am. Dec. 259; Meigs v. The Northerner, 1 Wash. Tr. 78; The Senator, 1 Cal. 459, 54 Am. Dec. 305; Simpson v. Hand, 6 Whart. 311, 36 Am. Dec. 231.)</p> <p>The burden is upon the complainant to show not only that their lights were burning, but also that the weather was such that they could be seen a sufficient distance to avoid the collision. {Florence P. Ball, 14 Fed. 408; The Titan, 23 Fed. 413, 23 Blatchf. 177; Culbertson v. Steamer Southern Belle, 59 U. S. 584, 15 L. ed. 493.)</p> <p>The measure of damage for case in collision is the injury sustained or loss of repairs. The loss of profits is too remote and conjectural. {Finch v. Brown, 13 Wend. 601; The City of Alexandria, 40 Fed. 697; The Cayuga, 81 U. S. 270, 20 L. ed. 828.) The measure of damage for a collision is the reasonable cost of repairing and of hiring another boat during the time of making repairs, not exceeding, at any time, the value of the boat. (The Baltimore, 8 Wall. 377, 19 L. ed. 463; Williamson v. Barrett, 13 How. (U. S.) 101,14 L. ed. 68; The Granite State, 70 IT. S. 310, 18 L. ed. 179.)</p> <p>In an action for damages where the complaint alleges that the injuries were caused by negligence of the defendant, and the answer charges contributory negligence, it is error for the court to omit all reference to this when instructing the jury. (Gamble v. Mullin, 74 Iowa, 99, 36 N. W. 909; Owens v. Owens, 22 Iowa, 274; Hill v. Auliman, 68 Iowa, 630, 27 N. W. 788; Belden v. Chase, 150 IT. S. 674, 14 Sup. Ct. 264, 37 L. ed. 1218.) An instruction is not only affirmatively erroneous, but fatally defective, that did not submit to the jitry the question whether the plaintiff by his negligence contributed to the loss. (Hackford v. New York C. By. Co., 6 Lans. 381; Chicago & A. B. Co. v. Mock, 72 111. 141.)</p> <p>The court should have instructed the jury that the profits accruing to the respondents by reason of work which they were prevented from doing by said collision is too remote and conjectural, and not the proper measure of damage. (The City of Alexandria, 40 Fed. 697.)</p> <p>In actions for negligence, the plaintiff need not set out the specific acts constituting the negligence complained of or alleged, but ultimate facts. (McLean v. City of Lewiston, 8 Ida. 472, 69 Pac. 478; 14 Ency. PI. & Pr. 333, 334.)</p> <p>The fitness of a witness to testify as an expert is a question of fact, addressed to the sound discretion of the trial court, and such question is not reviewable on appeal, unless abuse of discretion is clearly shown. (Ency. PI. & Pr. 747, 749). If the value of the loss of the use and services of the pile driver, during the time that respondents were prevented from operating the same, constituted profits, such profits are not remote, speculative or uncertain, and are recoverable in actions upon tort. (The North Star, 151 Fed. 168; Strasburger v. Barber, 38 Md. 103; Marquart v. LaFarge, 5 Duer (N. Y.), 565; 8 Am. & Eng. Ency. 2d ed., 620, 625, 626; 1 Sedgwick on Damages, 8th ed., pars. 195, 196; Belch v. Big Store Co., 46 Wash. 1, 89 Pac. 174; American Bridge Co. v. Glenmore Distilleries Co., 32 Ky. Law Rep. 873, 107 S. W. 279; The Heroine, Fed. Cas. No. 6416; New Haven Steamboat & Transp. Co. v. Vanderbilt, 16 Conn. 420; Williamson v. Barrett, 4 U. S. (13 How.) 101, 14 L. ed. 68; Oliver v. Perkins, 92 Mich. 304, 52 N. W. 609; Galveston City B. Co. v. Miller (Tex. Cr. App.), 38 S. W. 1132.)</p> <p>Yessels moored as the pile-driver was, ont of the line of customary navigation, are not bound to show a light, and if run into and sunk by a steamer, the absence of such light will not prevent a recovery of damages. (lire v. Coffman, 60 U. S. (How.) 56, 15 L. ed. 567; Hadden v. The J. H. Butter, 35 Fed. 365; City of New York v. The Express, 48 Fed. 323.)</p>

<p>Original Proceedings in Supreme Court — Costs—Motion to Tax.</p> <p>1. In original proceedings in this court, presented upon a typewritten complaint or petition, the successful party is not entitled to recover seventy-five cents per page allowed by the rules of this court for printing transcripts, as it is the duty of the plaintiff in such proceedings to present his complaint or petition in some proper or legible form, and the rule in regard to printing the transcript does not apply in such cases.</p> <p>2. The successful party is not entitled to recover for the fee paid the clerk of the district court for certifying certain papers that he desires to attach to his complaint or petition, at least until after opposing counsel has denied the correctness of such copies.</p> <p>3. It has been the custom in this court to receive typewritten briefs in all original proceedings. That being true, in this case it was not necessary to have the brief printed, and the cost of such brief is not a necessary disbursement, and therefore cannot be taxed as a part of the costs in the case.</p> <p>(Syllabus by the court.)</p>

<p>APPEAL from the District Court of the First Judicial District for the county of Kootenai. Hon. W. W. Woods, Judge.</p> <p>An action to recover debt. Appeal to the district court from a justice’s court. Appeal dismissed. Appeal to this court from the order of dismissal.</p> <p>The undertaking in the case at bar is identical with the undertaking considered in the case of Jones v. Superior Court, 151 Cal. 589, 91 Pac. 505, and we submit that every word of the decision in that case is applicable to this case. The undertaking follows the statute completely, and should be held sufficient.</p> <p>We contend that when an undertaking on appeal is signed by a surety company under sec. 9 of the amended act (Sess. Laws 1905, p. 398), there is no such thing as requiring the sureties to justify under the provisions of sec. 4842, and that the court was bound to accept the certified copy of the notice of the insurance commissioner as a sufficient justification of the surety.</p> <p>Not only must the party attempting to justify on a surety company bond show that the company has authority to do business in the state, but where the bond is signed simply by the attorney in fact, or agent of the company, and not by the regular officers thereof, the justification must be accompanied by evidence showing that such -agents are duly authorized to execute such an undertaking. (Numbers v. Rocky Mountain Bell Telephone Co., 7 Ida. 408, 63 Pae. 381.)</p> <p>The above case is just as applicable under the statute of 1905 as under the statute of 1899, as the meanings of the two are identical, although the wording is slightly different.</p> <p>The statute of 1905 did not repeal see. 4842, Rev. Stat., but was an accumulative statute. An undertaking is to be strictly construed in favor of the sureties when an action is brought on- the undertaking. “The sureties are bound by the precise terms of their undertaking, and not otherwise.” (Kelly v. Leachman, 5 Ida. 521, 51 Pac. 407.) If the undertaking in the case at bar is good for any purpose it must be for a stay of proceedings, as that is what the same is given for, and not being of a sufficient amount to cover both the costs of appeal and the stay of proceedings, it is of no effect whatever. (Wilson v. Boyle, 12 Ida. 295, 85 Pae. 928; Mc-Gonky v. Superior Court, 56 Cal. 83.)</p>

Hon. W. W. Woods, Judge. Action by the plaintiff against the defendant for damages caused by the destruction of his property by fire set by defendant’s locomotive. Judgment for plaintiff and defendant appealed.

Hon. Edgar C. Steele, Judge. An action for the partition of real property. Motion to set aside an interlocutory decree and the order confirming the report of the referees. Motion denied. Appeal from such order.

<p>APPEAL from the District Court of the Second Judicial District, for Nez Perce County. Hon. Edgar C. Steele, Judge.</p> <p>An action for partition. Judgment for plaintiffs. Defendant appeals.</p>

Hon. Edgar C. Steele, Judge, From a judgment of the district court affirming an order of the probate court appointing an administrator, petitioners Jennie S. Thomas and John J. Daggett, appealed. When parties apply in the order fixed by statute, being themselves competent, the statutory order must be followed, and any other action is a violation of the plain provisions of the law. (Owens’ Estate, 30 Utah, 351, 85 Pae. 277; Hawley’s Estate, 76 N. Y. Supp. 461, 37 Misc.

<p>APPEAL from tbe District Court of the First Judicial District for Bonner County. Hon. W. W. Woods, Judge.</p> <p>Action by the plaintiff for the recovery of damages caused by the defendant in carelessly and negligently running its railway train over plaintiff’s minor child and thereby causing its death. Judgment for plaintiff and defendant ap-' pealed.</p> <p>Neither the loss of the companionship of the child, nor the damage suffered by plaintiff in his happiness, is anything more than the infliction of mental anguish, nor more than the loss of the society of the child, neither of which is an element of damage. {Kill¿brand v. Standard Biscuit Co., 139 Cal. 233, 73 Pac. 163; Southern Ind. By. v. Moore, 34 Ind. App. 154, 72 N. E. 47.9; Webb v. Denver B. & O. By., 7 Utah, 17, 24 Pac. 616; Galveston v. Barbour, 62 Tex. 172, 50 Am. Rep. 519; Wales v. Pacific El. M. Co., 130 Cal. 521, 62 Pac. 933; Pepper v. Southern Pacific By., 105 Cal. 389, 38 Pac. 974; Kolt v. Spokane etc. By., 3 Ida. 703, 35 Pac. 39; Potter v. Chicago etc. B. Co., 21 Wis. 372, 94 Am. Dec. 548; Kedrick v. Ilwaco B. & N. Co., 4 Wash. 400, 30 Pae. 714, 54 Am. & Eng. R. R. Cas. 45; 8 Am. & Eng. Ency. of Law, 2d ed., 919; 13 Cyc. 371; Tiffany on Death by Wrongful Act, sec. 158; Lange v. Schoettler, 115 Cal. 388, 47 Pac. 139.)</p> <p>The care required in the case of the licensee calls for both reasonable lookout in advance and a reasonable effort to avoid injury after presence is discovered; while with reference to a trespasser, the only duty required is that after such discovery is made the trespasser shall not be wilfully or wantonly injured. {McConkey v. Oregon By. & Nav. Co., 35 Wash. 55, 76 Pae. 526; Curtis v. Oregon By. Co., 36 Wash. 55, 78 Pac. 133; Thomas v. Chicago etc. By. Co., 93 Iowa, 248, 61 N. W. 967; 3 Elliott on Railroads, sec. 1253-1255; 2 Woods on Railroads, see. 320.)</p> <p>The statement alleged to have been made by the engineer was not under the circumstances a part of the res gestae (giving authorities cited in opinion).</p> <p>The evidence establishes the fact that the want of ordinary care on the part of the plaintiff in this action contributed to and was the proximate cause of the accident. It appears that the parents of this child permitted it to wander from home without any care on their part for its future welfare and safety. If they failed to use ordinary care, they cannot recover for the loss of such child. (Philadelphia etc. E. Co. v. Hummell, 44 Pa. 375, 84 Am. Dee. 457; Philadelphia etc. E. Co. v. Long, 75 Pa. 257; Gillespie v. McGowan, 100 Pa. 144, 45 Am. Eep. 365; Vinnette v. Northern Pacific E. Co., 47 Wash. 320, 91 Pac. 975; 1 Thompson on Neg., sec. 333; Evansville etc. Ey. Co. v. Wolf, 59 Ind. 89; Senn v. Southern Ey. Co., 124 Mo. 621, 28 S. W. 66.)</p> <p>The degree of intimacy and loss of companionship between the plaintiff and the child, or wife, as the case may be, may be shown as affecting pecuniary loss. (Holt v. Spokane & D. Ey. Co., 3 Ida. 103, 35 Pac. 39, following the case of Beeson v. Green Mountain etc. Min. Co., 57 Cal. 20, and sustained in Munro v. Pacific Eec. Co., 84 Cal. 515, 18 Am. St. Eep. 248, 24 Pac. 303; Morgan v. Southern Pacific E. Co., 95 Cal. 510, 29 Am. St. Eep. 143, 30 Pae. 603, 17 L. E. A. 71; Pepper v. Southern Pac. Ey., 105 Cal. 389, 38 Pac. 974; Quill v. Southern Pac. Ey. Co., 140 Cal. 268, 73 Pac. 991; Eyas v. Southern Pac. Ey., 140 Cal. 296, 73 Pae. 972; Euppel v. United Eailroads, 1 Cal. App. 666, 82 Pae. 1073; Evarts v. Santa Barbara Ey. Co., 3 Cal. App. 712, 86 Pac. 830.)</p> <p>“The word ‘pecuniary,’ in connection with the loss a person sustains by the death of a parent or child, is not construed in any very strict sense, and the tendency is to still greater liberality, and to include every element of injury that may be deemed to have a pecuniary value, though its value may not be susceptible of positive proof, and can only be vaguely estimated.” (Tilley v. Hudson Eiv. E. Co., 29 N. Y. 252, 287, 86 Am. Dec. 297; Ihl v. Forty-second St. etc. Ferry Co., 47 N. Y. 317, 7 Am. Eep. 450; Webb v. Denver etc. Ey. Co., 7 Utah, 17, 24 Pae. 616, and other cases cited in Yol. 6, Words and Phrases, 5258.)</p> <p>Where the track or grounds of a railroad are used to a considerable extent by pedestrians, and the company has actual or implied knowledge of such fact, the railroad owes a special duty to such licensee in operating their road at such point by maintaining a lookout upon its engines and trains, and by giving audible signals on approaching such places. (2 Thompson on Neg., 1724; Johnson v. Lake Sup. By. Go., 86 Wis. 64, 56 N. W. 161; Clampit v. Chicago etc. B. Co., 84 Iowa, 71, 50 N. W. 673; Davis v. Chicago & B. Co., 58 Wis. 646, 46 Am. Rep. 667, 17 N. W. 406; Townley v. Chicago etc. B., 53 Wis. 626, 11 N. W. 55.)</p> <p>“At such places the railway company is bound to anticipate the presence of persons upon the track, to keep a reasonable lookout for them.” (Cassida v. Oregon <& B. Co., 14 Or. 551, 13 Pac. 438; Campbell v. Kansas City & B. Co., 55 Kan. 536, 40 Pac. 998; Whalen v. Chicago & B. Co., 75 Wis. 654, 44 N. W. 849.)</p> <p>“In dangerous situations ordinary care means great care. The greater the danger, the greater care required, and the want of the degree of care required may amount to culpable negligence.” (Farrell v. Waterbury, 60 Conn. 239, 21 Atl. 675, 22 Atl. 544; Diamond v. North. Pac. By., 6 Mont. 580, 13 Pac. 367, 371; Brown v. Lynn, 31 Pa. 510, 72 Am. Dec. 768; Young v. Citizens’ St. B. Co., 148 Ind. 54, 44 N. E. 927, 47 N. E. 142; Citizens’ B. Co. v. Gifford, 19 Tex. Civ. App. 631, 47 S. W. 1041; Grand Trunk By. v. Ives, 144 U. S. 408, 12 Sup. Ct. 679, 36 L. ed. 485.)</p> <p>When the trespasser upon the railway track is a child of tender years, the company is bound to exercise a higher degree of care and caution to avoid injuring it than in case of an adult. (2 Thomp. Neg., 1806, et seq.; Esrey v. South Pac., 103 Cal. 541, 37 Pac. 500.)</p> <p>The statement of the engineer was a part of the res gestae, and therefore admissible (giving authorities cited in opinion).</p> <p>“Where the negligence of plaintiff precedes the negligence of the defendant, and the accident might have been prevented by the exercise of ordinary care on the part of the defendant, then the defendant is bound to exercise such care.” (Esrey v. South Pac., 103 Cal. 541, 37 Pac. 500; Shearman & Red. Neg., sec. 99; Cooley on Torts, p. 674; Bomick v. Chicago etc. B. B. Co., 62 Iowa, 167, 17 N. W. 458; Bobinson v. Western Pacific By. Co., 48 Cal. 423.)</p>

<p>School District — Construction or Statute — Board op Trustees— Payment of Money on Void Contract — Refusal by Board to Bring Action — Right of Taxpayer — Allegations of Complaint.</p> <p>1. Statutes in their nature penal should not be extended by construction beyond their natural meaning.</p> <p>2. The clear intention of the provisions of sec. 82, of our school laws, as amended by the Session Laws of 1905, p. 71, was to prohibit a trustee from making a contract with his district in which he is pecuniarily interested.</p> <p>3. The penalty or prohibition in said section is that no action can be maintained or recovery had against the district on such contracts; but that does not change the rule to the effect that money paid by a municipal corporation upon a void contract may be recovered back.</p> <p>4. The rule that neither party to a transaction will be permitted to take advantage of its validity while retaining its benefits, applies only to voidable contracts and not to contracts of a municipal corporation that are absolutely void.</p> <p>5. Under the provisions of said see. 82, school trustees are prohibited from having any interest in any contract let or made by or with the board of trustees of such district or with any officer thereof, and in case such a contract is made, the same is void and no action can be maintained or recovery had in favor of the district upon any such contract or obligation. This rule is founded in publie policy, and is a salutary one to prevent the risk of abuses in the public service.</p> <p>6. Where a municipal corporation has paid money on a void contract and the properly constituted authorities of such corporation refuse to bring an action to recover back the money so illegally paid, an action therefor on behalf of the corporation may be maintained by any taxpayer thereof. ■ ’</p> <p>7. Where an action is brought under the provisions of said sec. 82, to recover money paid on a void contract, the complaint must allege that such contract was made with the defendant during the time that such defendant was a member of the board of trustees of the district.</p> <p>(Syllabus by the court.)</p>

<p>APPEAL from the District Court of the Second Judicial District, for the County of Latah. Hon. Edgar C. Steele, Judge.</p> <p>Defendant was informed against and charged with the ■crime of murder. Upon the trial he was convicted of manslaughter and moved for a new trial, and thereafter appealed from the judgment and order denying his motion.</p> <p>The information does not state facts sufficient to constitute a public offense, nor does it conform substantially to the requirements of secs. 5337, 5338 and 5339, Rev. Stat., as it does not show in what manner he came to his death. (Commonwealth v. Webster, 5 Cush. 295, 52 Am. Dec. 711; State v. Owen, 1 Murphy (N. C.), 452, 4 Am. Dec. 571; White v. Commonwealth, 6 Binn. 179, 6 Am. Dec. 443; 2 Bishop’s New Crim. Proc., secs. 514-522.) Under the stipulation in this case, the court ought to have permitted us to introduce the deposition of Martin taken before the coroner’s jury. {Territory v. Evans, 2 Ida. 651, 23 Pac. 232, 7 L. R. A. 646; Mattox v. United States, 156 U. S. 237, 15 Sup. Ct. 337, 39 L. ed. 409; Chicago St. P. M. M. Co. v. Meyers, 80 Fed. 361, 25 C. C. A. 486.) To justify conviction on circumstantial evidence, every fact necessary to the conclusion must be directly and independently proved by competent evidence, producing a moral certainty that the accused, beyond a reasonable doubt, and no one else, committed'the offense. {Commonwealth v. Webster, 5 Cush. 295, 52 Am. Dec. 711; State v. Seymour, 10 Ida. 699, 712, 79 Pac. 825; State v. Mason, 4 Ida. 543, 43 Pac. 63; State v. Crump, 5 Ida. 166, 47 Pac. 814; State v. Marquardsen, 7 Ida. 352, 62 Pac. 1034; State v. Levy, 9 Ida. 483, 75 Pac. 227; State v. Kruger, 7 Ida. 178, 61 Pac. 463.)</p> <p>“The means of the commission of a homicide need not be charged under statutes requiring the indictment to contain a statement of the facts constituting the offense in plain and concise language.” {State v. Sly, 11 Ida. 111-117, 80 Pac. 1125; Wharton on Homicide, 3d ed., p. 853; Littell v. Statey 133 Ind. 577, 33 N. E. 417; Freeze v. State, 159 Ind. 597, 65 N. E. 915; Mathis v. State, 39 Tex. Cr. 549, 47 S. W. 464;. People v. Hong Ah Duck, 61 Cal. 388.) “A coroner’s inquest is an ex parte proceeding, at which neither the prosecution nor-defense are represented. The lack of cross-examination as an element in coroner’s procedure makes such testimony inadmissible.” (2 Wigmore on Evidence, sec. 1374, and cases, cited.),</p>

Hon. Edgar C. Steele, Judge. Action by the plaintiff to foreclose a mechanic’s lien. Answer by defendant claiming damages for breach of the contract. Judgment for plaintiff and a setoff allowed in favor of defendant.

<p>Original application by J. L. Niday, an attorney, for a writ of haueas corpus.</p> <p>“The burden is upon the party seeking to suppress the evidence to show that it is within the terms of the statute relating to confidential and privileged communications.” (Sharon v. Sharon, 79 Cal. 678, 22 Pac. 26, 131; Carroll v. Sprague, 59 Cal. 660.) It must appear that the attorney was employed in relation to the matter to which the document relates, and that the communication was made for the purpose of securing his professional aid or advice. (Satterlee v. Bliss, 36 Cal. 490.)</p> <p>“If the paper is one which the client himself could be compelled to produce in evidence, the attorney must produce it.” (10 Ency. Ev. 271; 4 Wigmore, Evidence, sec. 2307.)</p> <p>As to the jurisdiction of the probate court to make an order of this character, we refer to Ex parte Latimer, 47 Cal. 133, where the court held that secs. 1209 and 1229 of the Code of Civil Procedure of that state applied to justice’s courts. These sees, are identical with sections 5165 to 5168, Rev. Stat.</p>

<p>APPEAL from tbe District Court of tbe Second Judicial District, for Latab County. Hon. Edgar C. Steele, Judge.</p> <p>Action to recover damages for trespass. Judgment for plaintiff.</p>

Hon. Edgar C. Steele, Judge. Action to enforce a specific performance of an alleged contract for the sale of real estate. Judgment for the plaintiff. A broker’s authority to find a purchaser and in a sense make sale of the property does not authorize him to execute for the vendor a contract of sale. His authority is exhausted when he has found a purchaser on the vendor’s terms.

<p>County Seat Kemoval Election — Form of Ballot.</p> <p>1. Sec. 118 of an act approved February 2, 1899 (Sess. Laws 1899, p. 33), relative to the holding of general and special elections, etc., is still in force and effect in reference to the size, form and manner of preparation of ballots for county seat removals.</p> <p>2. Sec. 48 of an act approved February 2, 1899, relating to the holding of general and special elections, etc., as amended by act of February 27, 1905 (Sess. Laws 1905, p. 315), does not apply to the ballots to be used in county seat removal elections.</p> <p>(Syllabus by the court.)</p>

Hon. Edgar C. Steele, Judge. An action for damages for failure to deliver bonds to sewerage contractor upon the completion of his contract. Judgment for defendant. Plaintiff appeals.

Hon. Edgar C. Steele,. Judge. An action to recover possession of personal property or its. value. Judgment for plaintiff. “Sickness of counsel where there is but one, or of the leading counsel where there are several, is a sufficient ground for the continuance of a cause, especially where the sickness is so sudden that another cannot under the circumstances do justice to the cause.” (Myers v. Trice, 86 Ya. 835, 11 S. E. 428; La Branch v. Montegut, Ml La.

Hou. J. M. Steveus, Judge. An application by respondent for mandamus to compel appellant, as ex-officio auditor and recorder of Custer county, to file an affidavit of proof of labor upon thirty-three mining claims for a fee of fifty cents. Judgment for plaintiff. Defendant appeals. The general intent of the act should be kept in view in determining the scope and meaning of any part. (Sutherland Stat. Constr., sec. 239; State v. Roby, 142 Ind. 168, 51 Am.

<p>Proceeding to Procure a Recommendatory Decision for Work and Labor Performed for the State of Idaho.</p> <p>1. Where D. performs services as superintendent of the state capitol grounds for and on behalf of the state, under the employment of the capitol building board, and the state board of examiners disallowed his claim for services, the legislature ought to make an appropriation sufficient to pay for such services, and it would be equitable and just for the legislature to do so.</p> <p>(Syllabus by the court.)</p>

Hon. Ed. L. Bryan, Judge. Action to recover damages and for injunctive relief. Appeal from an order quashing the summons. Motion to dismiss appeal on ground that order appealed from is not an appealable order. The order attempted to be appealed from is not, of itself, an appealable order and could become appealable only as a “special order made after final judgment.” (Subd. 3, see, 4807.

Hon. Ed. L. Bryan, Judge. Prosecution for malicious mischief in killing, wounding and maiming dogs. From a judgment of conviction and an order denying a motion for a new trial, defendant appeals. The distinction between trespass and malicious trespass must be carefully maintained, or else an act done in defense of person or property upon serious provocation may nevertheless amount to a criminal offense.

Hon. Edward A. Walters, Judge. An action to recover damages for breach of contract. Defendant demurred. Demurrer overruled. Judgment for plaintiff for want of an answer. Defendant appeals.

<p>Verdict — Insufficiency of Evidence to Sustain — No Substantial Conflict.</p> <p>1. Held, that there is no substantial conflict in the evidence, and that the evidence is insufficient to sustain the verdict.</p> <p>(Syllabus by the court.)</p>

<p>APPEAL from the District Court of the Fifth Judicial District for Bear Lake County. Hon. Edward A. Walters, Judge.</p> <p>An action to enforce the specific performance of a contract to lease real property. Judgment of nonsuit. Plaintiff appeals.</p> <p>A deed shall, if possible, be so construed as to effectuate the intention. In arriving at that intention it is always admissible to consider the situation of the parties and the circumstances, and every part of the writing should be considered with the help of that evidence'. {Bartholomew v. Muzzy, 61 Conn. 393, 29 Am. St. Rep. 206, 23 Atl. 604; 12 Am. &' Eng. Ency. 997; North Western Distilling Go. v. Bryant, 69 111. 658, 18 Am. Rep. 631; Carroll v. St. Johns Soc., 125 Mass. 565; Cohn v. Borst, 36 Hun (N. Y.), 562.)</p> <p>The description of the land upon which the bank building is located is admitted, and by stipulation the ownership in the defendant is admitted, and the improvements are admitted ; with these admissions and the agreement combined, it seems to be a clear case wherein extrinsic evidence is and was admissible, and the court erred in not permitting the introduction of extrinsic evidence on that point. {Towle v. Carmelo Land & Goal Co., 99 Cal. 397, 33 Pac. 1126; Easton v. Thatcher, 7 Utah, 99, 25 Pae. 728; Bacon v. Leslie, 50 Kan. 494, 34 Am. St. Rep. 134, 31 Pac. 1066; Boss v. Purse, 17 Colo. 24, 28 Pac. 473; Mann v. Higgins, 83 Cal. 66, 23 Pac. 206; Bichards v. Snyder, 11 Or. 197, 3 Pac. 177; Preble v. Abrahams, 88 Cal. 245, 22 Am. St. Rep. 301, 26 Pac. 99; Mulford v. Le Franc, 26 Cal. 112.)</p> <p>Appellant is attempting to reverse a judgment which is based upon the insufficiency of the evidence because of an .alleged error of law committed by the court in excluding one particular class of evidence. This cannot be done. (O’Con-■nor v. Hooper, 102 Cal. 528, 36 Pae. 939; .Archibald Est. v. Maiteson, 5 Cal. App. 441, 90 Pae. 723; Kansteiner v. Clyne, 5 Ida. 59, 46 Pae. 1019; Simpson v. Remington, 6 Ida. 681, 59 Pae. 360; Kroetch v. Empire Mill Co., 9 Ida. 277, 74 Pac. 868; Downing v. Murray, 113 Cal. 455, 45 Pae. 869; Lewis v. Lewis, 3 Ida. 645, 33 Pac. 38; Jacobson v. Bunker Hill & S. M. (& C. Co., 3 Ida. 126, 28 Pac. 396; Shields v. Johnson, 12 Ida. 329, 85 Pae. 972.)</p> <p>A ruling sustaining an objection to a question put to a witness will not be reviewed in the absence of an offer showing what the party expected to prove. (United States v. Alexander, 2 Ida. 386, 17 Pac. 746; Later v. Haywood, 14 Ida. 45, 93 Pac. 374; Spelling on New Trial & App. Prac., sec. 438; Taylor v. Kelley, 103 Cal. 178, 37 Pac. 216; 2 Cye. 697; Wittenberg v. Mollyneaux, 60 Neb. 583, 83 N. W. 842; Nebraska Telegraph Co. v. Jones, 60 Neb. 396, 83 N. W. 197; 3 Cyc. 165; Carpenter v. Bailey, 127 Cal. 582, 60 Pac. 162; Jones v. Humphrey’s Est., 10 Kan. App. 545, 63 Pac. 26; Bank v. Erese, 116 Cal. 9, 47 Pae. 783.)</p> <p>Conceding that this court will review the ruling complained of, and that said ruling is erroneous, still, under another rule of practice, such an error is harmless when, if the court had received the evidence excluded and given it due weight, the effect could not have been to change the judgment. (Bertelsen v. Bertelsen, 7 Cal. App. 258, 94 Pae. 80; Downing v. Howlett, 6 Colo. App. 291, 40 Pac. 505.) It was necessary for the plaintiff to prove, or to offer to prove, sufficiént facts to show to the court that he could make a prima facie case, and unless he does make such showing, he cannot predicate reversible error upon the exclusion of one element of proof. (Clanton v. Ryan, 14 Colo. 419, 24 Pac. 258; Nevitt v. Crow, 1 Colo. App. 453, 29 Pae. 749; People v. Weiss-Chapman Drug Co., 5 Colo. App. 153, 38 Pac. 334; Downing v. Howlett, supra.)</p> <p>The appellant has no right to prove by parol what building or room was meant by the words “our bank building.”' (Kurdy v. Rogers, 10 Ida. 416, 79 Pae. 195; Craig v. Zelian,. 137 Cal. 105, 69 Pac. 853; .Halsell v. Renfrow, 14 Okl. 674, 78 Pac. 118; Hartshorn v. Smart, 67 Kan. 543, 73 Pac. 73; Ross v. Allen, 45 Kan. 231, 25 Pac. 570, 10 L. R. A. 835; Nibert v. Baghurst, 47 N. J. Eq. 201, 20 Atl. 252; Ryan v. Davis, 5 Mont. 505, 6 Pac. 339.)</p>

Hon. E. A. Walters, Judge. Action by the plaintiff for an accounting, dissolution of partnership, and for damages for breach of a contract. Judgment for plaintiff.

Hon. J. M. Stevens, Judge. An action to recover damages for breach of the terms of a lease. Judgment for plaintiff. Defendant appeals. Unless good cause is shown for delay, an appeal from an order denying a new trial will be dismissed upon motion, where such motion for new trial was not brought on for hearing within one year after the rendition of the judgment.

<p>APPEAL from the District Court of the Sixth Judicial District for the County of Custer. Hon. J. M. Stevens, Judge.</p> <p>Objections were filed to confirming the sale of real estate by the administrator. Sale confirmed by the probate court. Appeal taken to the district court and on motion appeal dismissed. This appeal is from the order of the district court dismissing the appeal from the probate court.</p>

<p>Petition for the Incorporation of a Village — Hearing Before Board of Commissioners — Appeal to District Court — Hearing in District Court.</p> <p>1. An order for the incorporation of a village under the provisions of Bev. Codes, sec. 2222, is appealable to the district court, by any person aggrieved thereby or by any taxpayer within the territory affected by such incorporation.</p> <p>2. Bev. Codes, sec. 1953, provides that upon the appeal the matter must be heard anew, and the act, order or proceeding so appealed from may be affirmed, reversed or modified.</p> <p>3. “Heard anew,” as used in this statute, means that the cause shall be retried in the district court as though originally brought in said court, and the case must be proven in the same way, and the burden of proof rests-with the same party as before the board of commissioners. It is a retrial of the matter tried before the board of county commissioners.</p> <p>4. Upon the trial anew in the district court, upon an appeal from an order of the board of county commissioners, it is error for the trial court to require the party having the negative to tahe the affirmative and disprove the facts as found by the board of commissioners.</p> <p>(Syllabus by the court.)</p>

<p>Sufficiency of Evidence — Certificate to Statement — Affirmative Showing by Record.</p> <p>1. Where an appellant relies upon the insufficiency of the evidence for a reversal of the judgment, he must present a reeord to the appellate court which will affirmatively show that it contains all the evidence or the substance of all the evidence given in the case, or given on the specific point urged, before the appellate court will examine the evidence for the purpose of determining its sufficiency or insufficiency.</p> <p>' 2. The presumption in the first instance is that the trial court entered its judgment upon sufficient evidence, and when a defeated party attacks such judgment he must show error.</p> <p>3. If the reeord on appeal fails to show that it contains all the evidence that was produced in the ease or on the specific point in the trial court, and the evidence contained in the record is insufficient to support the judgment, the appellate court will assume that there was other and sufficient evidence before the trial court on whieh to base the judgment.</p> <p>(Syllabus by the court.)</p>

<p>APPEAL from tbe District Court of the Fourth Judicial District, for Twin Falls County. Hon. Edward A. Walters, Judge.</p> <p>An action to enjoin a public nuisance in unlawfully placing and maintaining obstructions in a publie highway. Demurrer to the complaint sustained. Plaintiff appeals.</p> <p>This road being a public highway, to obstruct it constitutes a nuisance, and the remedy to be invoked is abatement. (Rev. Code, secs. 3656, 3663, 3668.) If it is a publie nuisanee, this appellant may maintain this action “if it is specially injurious to himself.” (Rev. Stat. 1887, sec. 3633; Small v. Harrington, 10 Ida. 499, 79 Pac. 461; Redway v. Moore, 3 Ida. 312, 29 Pac. 104; Jones on Easements, sec. 547; 9 Am. & Eng. Ency. 412; Hargo v. Hodgdon, 89 Cal. 623, 26 Pac. 1106; Shirley v. Bishop, 67 Cal. 543, 8 Pac. 82, 692; Schulte v. North Pacific Transp. Go., 50 Cal. 592; County of Yolo v. City of Sacramento, 36 Cal. 193; Blanc v. Klumpke, 29 Cal. 156; Jackson v. Kiel, 13 Colo. 378,16 Am. St. Rep. 207, 22 Pac. 504, 6 L. R. A. 254; Hogan v. Central Pac. R. Go., 71 Cal. 83,11 Pac. 876; see note at end of last case cited.)</p> <p>From sec. 946, Rev. Codes, it will appear that “The road overseer must commence in the proper court an action to abate the same as a nuisance.” In the case of Stuffleheam v. Montgomery, 3 Ida. 20, 26 Pac. 125, this court held that an action to abate a nuisance caused by an obstruction of a public highway can be prosecuted only by the road overseer. We find no change, either by statute or by decision, of the law there announced, and cite it as decisive of the question at issue.</p> <p>As shown by the allegations of the complaint, the obstructions complained of were of the highway itself, and affected the public generally. They were not so placed as to prevent the appellant from getting on to the highway from his own premises, but were of such a character as to prohibit the free use of the highway by the general public. This being true, the ease comes under the rule announced by this court and by the courts of other states. (Aram, Trustee etc. v. Schallenherger, 41 Cal. 449; San Jose Ranch Go. v. Brooks, 74 Cal. 463, 16 Pac. 250.)</p>

Hon. J. M. Stevens, Judge. Action by the plaintiffs to declare a deed a mortgage. Judgment for defendant. Plaintiffs appeal.

Hon. Edward A. Walters, Judge. An action by the payee against' the drawer to recover money upon a bank check. Judgment for plaintiff. One partner is agent for the others for partnership purposes alone. If one partner does an act for a purpose apparently not within the partnership purpose, the firm is not bound unless he had actual authority. (22 Am. & Eng. Ency. 2d. ed., 144-146; Cannon v. Lindsey, 85 Ala. 198, 7 Am.

Hon. J. M. Stevens, Judge. Action by plaintiff for damages for breach of contract. Judgment for plaintiff and defendant appealed.

<p>Contracts — Undisclosed Principal — Liability op Agent — Instructions — Limitation op Damages.</p> <p>1. Where an agent makes a contract in his own name and conceals the fact of his agency, he may be treated as the principal by the party with whom he deals, and may be held liable on the contract to the same extent as if he were in fact the principal in interest.</p> <p>2. Where there is a substantial conflict in the evidence, the verdict of the jury will not be set aside.</p> <p>3. An instruction which requires the jury to fix the amount of damages which the plaintiff may recover within the evidence under the pleadings is not erroneous.</p> <p>4. Evidence in this case examined and held to support the verdict.</p> <p>(Syllabus by the court.)</p>

Hon. J. M. Stevens, Judge. Action by the plaintiffs to have a mortgage declared void and canceled. Cross-complaint by defendant to foreclose the mortgage and answer by plaintiffs to the cross-complaint. Judgment for defendant and plaintiffs appeal.

<p>ACCUSATION by original proceedings in this court for the disbarment of A. M. Henry, an attorney of this eourt.</p>

<p>Constitution — Amendment — Proposal — Submission—Time of Taking Effect — What is a Separate Amendment — Jurisdiction of the Courts to Determine.</p> <p>1. Art. XX, sec. 1, of the constitution provides that amendments to the constitution may be proposed in either branch of the legislature, and if the same shall be agreed to by two-thirds of the members of each of the two Houses, voting separately, such proposed amendment or amendments shall, with the yeas and nays thereon, be entered on their journals, and it shall be the duty of the legislature to submit such amendment or amendments to the electors of the state at the next general election; and if a majority of the electors shall ratify the same, such amendment or amendments shall become a part of the constitution.</p> <p>2. The provisions in this section with reference to entering the proposed amendment or amendments, together with the yea and nay vote thereon, upon the journal, are mandatory.</p> <p>3. See. 2 of the same article provides if two or more amendments are proposed, they shall be submitted in such manner that the electors shall vote for or against eaeh of them separately. This provision of the constitution is also mandatory.</p> <p>4. Amendments to the constitution may be proposed in either branch of the legislature by a joint resolution, and the provision of sec. 18, art. Ill of the constitution, governing amendments to statutes, does not apply.</p> <p>5. In determining the validity or constitutionality of a constitutional amendment, the court will not concern itself with the justice or wisdom of the amendment, and will presume that the legislature acted regularly in submitting the same to the voters of the state, and will uphold and sustain such amendment unless it appears that the same has not been proposed, submitted and adopted in accordance with the provisions of the constitution.</p> <p>6. The question, as to whether the constitution has been complied with in proposing, submitting and adopting a constitutional amendment, is a judicial question, and no authority is vested in any officer, department of state, body politic, or tribunal, other than the courts, to consider and determine such matter.</p> <p>7. The provision of sec. 2, art. XX of the constitution, wherein it is provided that “if two ox more amendments are proposed, they shall be submitted in such manner that the. electors shall vote for or against each of them separately,” means that all changes which relate to one subject and accomplish a single purpose, shall be treated, recognized and submitted as a single amendment.</p> <p>8. Under this provision of the constitution the legislature cannot incorporate into a single amendment several distinct and independent subjects and submit the same as a single amendment.</p> <p>9. The determination of the question as to whether a proposed change or changes in the constitution constitutes one or more amendments, depends upon whether the change as proposed relates to one subject and accomplishes a single purpose. If it does not, then there are as many amendments as there are independent subjects, and it matters not whether the proposed change affects one or many sections or articles of the constitution.</p> <p>10. While the constitution prescribes no particular method or form for proposing and submitting amendments to the constitution, the better course to pursue is to indicate in the resolution proposing the amendment the particular matter to be inserted or omitted as an amendment, and the particular place in the section the amendment is to be inserted.</p> <p>11. Where several distinct and independent changes to the constitution are proposed, and are incorporated in the same resolution, they must be submitted in such a way that the electors may vote upon each amendment separately.</p> <p>12. Where a section of the constitution is amended at the same time by two different amendments, and the amendments adopted are directly in conflict, and it is impossible to determine which should stand as a part of the constitution, or to reconcile the same, they must both fail. .</p> <p>13. See. 1, aTt. XX, of the constitution, provides that an amendment shall become a part of the constitution upon its ratification, and the legislature has no power to change this provision of the constitution.</p> <p>14. Where it is proposed to make an amendment to the constitution become operative upon a date different from that fixed by the constitution, then the time so fixed should be incorporated in and made a part of such amendment.</p> <p>15. The legislature has no power to incorporate in a joint resolution, proposing amendments to the constitution, any matter except the amendment proposed and the question and manner of submitting the same.</p> <p>(Syllabus by the court.)</p>

<p>APPEAL from the District Court of the Fourth Judicial District for Twin Falls County. Hon. Edward A. Walters, Judge.</p> <p>Action to quiet title. Judgment for plaintiff. Defendants appeal.</p>

Hon. Fremont Wood, Judge. Action to determine the validity of certain bonds issued in payment for the construction of sewers. Judgment for the defendant. In the absence of legislative. provision for collection of assessments in installments, a city may not prescribe that an assessment be divided into installments.