Volume 16 — Arizona Reports

<p>1. Parent and Child—Duty of Parent—Care of Child.—A parent is required to care for Ms eMld during the time it is unable to care for itsolf, and is entitled to use the child’s estate for that purpose only in exceptional cases.</p> <p>[As to obligation of parent to support eMld, see note in 64 Am. Dec. 279.]</p> <p>2. Parent and Child—Persons in Loco Parentis—Stepfather.— While a stepfather was under no natural or legal obligation to care for a minor stepcMld, the assumption of that duty by the stepfather carried with it the resulting legal responsibilities.</p> <p>3. Parent and Child—Support of Child—Recovery by Parent.—A parent or one in loco parentis, such as a stepfather, who advances money to support the child, cannot, years thereafter, recover such expenditures as upon an implied contract by the child to repay them.</p> <p>[As to claim of parent or one standing in loco parentis for supporting ehild, see note in 58 Am. Dee. 226.]</p> <p>4. Guardian and Ward—Settlement—Proceedings—Sufficiency of Evidence.—In proceedings for the settlement of the account of a guardian, who was the ward’s stepfather, evidence'-held to show that the guardian expected no remuneration from the child for expenditures made for her support, ete.</p> <p>5. Parent and Child—Support of Child.—The intention of one in loco parentis, such as a stepfather, to require repayment of amounts advanced for. the maintenance, etc., of a stepchild must be shown in order to entitle the stepfather to repayment, as otherwise the maintenance will be deemed gratuitous.</p> <p>6. Homestead—Sale for Debts—Time of Contracting.—Under Devised Statutes, section 2296 (U. S. Comp. Stats. 1901, p. 1398), providing that no land acquired under the chapter, which relates to the entry of public land as a homestead, shall in any event become liable 'for debts contracted prior to the issuing of the patent, the land cannot be sold for debts of the heir of an entryman contracted before issuance of patent.</p>

<p>APPEAL from a judgment of the Superior Court of the County of Navajo. Frank 0. Smith, Judge.</p> <p>The facts are stated in the.opinion.</p>

<p>1. Counties—Issuance op Bonds—Statutory Authority.—A county may not issue bonds unless the power is specifically conferred, or necessarily implied from the law governing the powers of counties.</p> <p>2. Counties—Bonds—“Fundins” op Debt.—Where bonds of a county are issued as the original evidence of indebtedness contracted by it, the bonds are not a funding of a debt as ordinarily understood.</p> <p>3. Counties—Erection oe Public Buildings—Bonds—Statutory Authority.—Under Civil Code of 1913, paragraphs 5266-5285, governing county and municipal indebtedness, and authorizing by vote of electors an indebtedness in excess of four per cent of the value of the property in the county, providing that, if the county shall desire to fund an indebtedness by the issuance of bonds, bonds may be issued for public buildings, a county whose indebtedness does not exceed four per cent of the assessed valuation of the property thereof may issue, if authorized at an election ealled for the purpose, bonds for the construction of a courthouse where the former indebtedness and the indebtedness created by the bonds will not in the aggregate exceed four per cent of the assessed valuation.</p>

Prank 0. Smith, Judge. STATEMENT OF FACTS BY THE COURT. Appellee, a corporation, commenced this action to enforce the payment of a subscription contract executed and delivered by the appellant to a voluntary association of citizens acting for the purpose of soliciting such subscriptions, and by such association the contract was delivered to and became the property of the appellee.

<p>1. Subscriptions—Fraud.-—-Where the execution of a subscription contract is induced by a fraudulent representation of fact, the contract is not binding on the subscriber, but the fraud must relate to the-subject matter of the contract.</p> <p>2. Evidence—Parol Evidence—Subscription Contracts—Conditions. One who in writing subscribes to a fund to provide a building and site for a Y. M. C. A. in consideration of subscriptions of'others, provided a specified sum-is subscribed, is bound on his subscription on the performance of the specified condition, and he cannot, by parol, show other conditions.</p> <p>[As to supplementing subscription contract -by proof of collateral oral agreement, see note in Ann. Cas. 1914A, 458.]</p>

<p>1. Executors and Administrators — Public Lands — Entryman— Land as Part of Estate.—Where a widow who had made a homestead. entry on public land died before she was entitled to a patent, the land did not belong to her estate, and a decree of the probate court distributing it was void; the heirs of the widow having only a preferential right, under Revised Statutes of the United States, sections 2291, 2292 (U. S. Comp. Stats. 1901, pp. 1390, 1394), to perfect the homestead entry.</p> <p>2. Courts — Decisions — Precedent.—In determining the conflicting rights of a minor child of a widow who, after making entry on public land, remarried and died before she was entitled to a patent, and the second husband, the construction by the federal supreme court of the federal laws governing the rights of entrymen is binding on the state courts.</p> <p>3. Public Lands—Rights op Heirs.—A widow, after filing on public land for a homestead, remarried, and before she-became entitled to a patent died, leaving her second husband and a minor child sole heirs. Revised Statutes of the United States, section 2291 (U. S. Comp. Stats. 1901, p. 1390), declares that, in ease a widow makes an entry under the homestead laws, her heirs or devisees may, upon her death, make final proof, and shall be entitled to a patent. Section 2292 (U. S. Comp. Stats. 1901, p. 1394) provides that, in case both the father and mother shall die leaving an infant child or children, the right and fee shall inure to the benefit of such infant child or children. Held, that, as the federal supreme court has construed these sections as giving the land to the minor children exclusively only when there were no other heirs, and the word “heirs” as meaning those capable of inheriting under the state laws, the widow’s second husband was entitled to a lile estate in one-third of the homestead after the issuance of the patent, for Civil Code of 1913, paragraph 1092, declares that, when any wife having title to any estate of inheritance shall die, leaving a surviving husband and children, the surviving husband shall be entitled to an estate in one-third of the land for life, remainder to the ehild or children.</p> <p>[As to succession to rights of homesteader on his death before perfection of title, see note in Ann. Cas. 1912C, 696.]</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. New Trial—Motion—Denial—Statutory Provisions.—A motion for new trial not determined within twenty days after filing thereof nor continued by order of court or by stipulation of the parties is, under Civil Code of 1913, paragraph 5-91, deemed denied.</p> <p>2. Appeal and Error—Transcript op Reporter’s Notes—Time to Pile—Extension op Time—Statutory Provisions.—Under Civil Code of 1913, paragraph 609, providing for the incorporation into the record of the transcript of the reporter’s notes within sixty days after judgment or order denying new trial or within additional time allowed by the court by order, and order extending the time for filing the transcript must be made within the time allowed by law, and a transcript within the time fixed by an order thereafter made cannot be considered as a part of the record.</p> <p>3. Appeal and Error—Questions Reviewable—Evidence—Merits op •Controversy.—The court on writ of error cannot consider the merits unless it has all the evidence before it, and the mere fact that the record contains a small part of the evidence, consisting of papers marked as exhibits, is insufficient to justify a review.</p> <p>4. Appeal and Error—Record Proper—Review.—Where the record on writ of error consists only of the pleadings and judgment and they disclose no fundamental error, the judgment must be affirmed.</p> <p>5. Waters and Watercourses—Right op Appropriation—-Pleadings— Objections.—The defect, if any, in a complaint to adjudicate water rights and the priorities of the parties arising from the faet that it does not show that plaintiff is an inhabitant of the state, cannot •be reached by general demurrer, though it be assumed that under Civil Code of 1913, paragraph 5346, only inhabitants of the state are entitle'! to appropriate water.</p>

<p>1. Dismissal and Nonsuit—Amendment after Dismissal.—Where a cause was dismissed, a subsequent motion to amend the title of the action was properly refused.</p> <p>2. Quo Warranto—Title to Office—Actions—Parties.—An action in. quo warranto to determine title to a eounty office is properly brought by a private individual in his own name, and he may not use th& name of the state as plaintiff on his relation.</p>

J. E. O’Connor, Judge. STATEMENT OP PACTS BY THE COURT. The appellees, as plaintiffs, commenced this action for the purpose of restraining the appellant, the defendant, from obstructing the flow of the flood waters of the Santa Cruz river, and diverting such flow from the lands of plaintiffs, thereby depriving plaintiffs of the use of such waters in the irrigation of their lands.

<p>1. Appeal and Error—Perfection of Appeal.—Where defendant, on the overruling of a motion for a new trial, gave notice of appeal and a few days later filed a bond for costs on appeal, which was duly approved, the appeal was perfected, and the trial court lost jurisdiction of the action and could not entertain an application for a writ of error thereafter, and hence a writ of error so sued out should be dismissed.</p> <p>2. Appeal and Error—Dismissal—Abandonment.—Where defendant, who gave notice of appeal after denial of a motion for new trial, filed a bond for costs, which, was duly approved, but failed to file any record in the supreme court, although the reporter’s transcript was filed below within the time fixed, the appeal will be considered purposely abandoned, and will be dismissed; defendant having attempted to sue out a writ of error thereafter.</p>

Frank Baxter, Judge. STATEMENT OF FACTS BY THE COURT. The appellant commenced this action against the appellee to recover judgment upon the following instrument in writing: “Yuma, Arizona, April 22, 1911. “One year after date for value received will pay to Jose Asencio the sum of three hundred and no/100 dollars ($300.00). “J. RUBY.” It is alleged in the complaint that said instrument was sold and assigned to the plaintiff August 24, 1913, for a valuable consideration, and…

<p>1. Criminal Law—Complaint—Objections—Time to Make.—An objection to a complaint on the ground that it was sworn to by the wife of accused, prohibited- by Penal Code of 1901, section 1111, from testifying against accused, without his consent, must be made at the preliminary examination, and thereby afford the magistrate an opportunity to correct the mistake, and the objection cannot be made for the first time in the superior court on arraignment.</p> <p>2. Rape—Evidence—Admissibility.—On a trial for rape, aceused could not complain because, on the cross-examination of prosecutrix, he was not permitted to inquire who had instructed her as to the name of certain parts of the human body.</p> <p>3. Witnesses—Competency—Husband and Wipe.—Under Penal Code of 1913, section 1228, authorizing a wife, at her own request, but not otherwise, to testify for or against her husband on a trial for rape and other enumerated offenses, she is given the privilege to testify, and the husband cannot invoke the disqualification of the wife and prevent her from testifying. .</p> <p>[As to eompeteney of husband or wife to testify for or against each other in criminal prosecutions, see notes in 27 Am. Dec. 377; 106 Am. St. Rep. 763; Ann Cas. 1912D, 1121.]</p> <p>4. Witnesses—Examination as to Competency—Conduct oe Prosecuting Attorney.—Where it is known or discovered that a witness is the wife of accused, on trial for rape, the court should restrict the county attorney to the simple inquiry as to whether she wishes to testify, and it is improper to permit the county attorney to ask her if she knows what the ease is about and elicit testimony on the merits before asking her whether she wishes to testify.</p> <p>5. Criminal Law—Trial—Argument oe Prosecuting Attorney.—The county attorney, in his argument to the jury on a trial for rape, ought not to make adverse comment on the refusal of the wife of accused to testify, for the privilege of testifying is hers alone.</p> <p>6. Criminal Law—Argument oe Counsel—Objections.—Accused, objecting to the argument of the county attorney to the jury, should preserve in the record the argument, so that the court on appeal may determine whether it is prejudicial to accused.</p>

<p>1. Appeal and Error—Review—Questions.or Pact.-—Where plaintiff sued in one count for compensation under a contract to do certain work for defendant for $3,176.54, and in a second count on a quantum meruit for doing of the same, work, whether plaintiff performed the contract so as to be entitled to recover on the first count was a question of fact for the trial court.</p> <p>2. Work and Labor—Measure of Damages—Reasonable Value of Services—Contract Price.—Un a quantum meruit for work and •labor performed, plaintiff’s measure of damages is the reasonable value of the services performed, and not the amount agreed to be paid for the work under contract.</p> <p>3. Work and Labor — Performance — Value — Evidence — Contract Price.-—-Where, in a suit on a quantum meruit for work and labor, there is a controversy as to the manner and sufficiency of performance, and it is sought to recover the reasonable value of the services on the theory of unjust enrichment, it is ineumbent on plaintiff to prove the value of the services to defendant by evidence dehors the contract, with the limitation that it cannot .recover the contract price, and hence evidence of the contract price was insufficient to show that it was the reasonable value of the services.</p> <p>4. Work and Labor—Quantum Meruit—Evidence.—In a suit on a quantum meruit for work and labor performed under a contract with defendant, a finding in plaintiff’s favor for $1,000 held contrary to the evidence.</p>

<p>1. Partnership—Sales Between Copartners.—A .purchase in good faith by one partner of his copartner’s interest in the firm property vests the ownership of such property in the purchasing partner.</p> <p>2. Partnership—Actions by Purchaser oe Partnership Property.— Civil Code of 1901, paragraphs 3520-3524, prohibiting suit by a partnership trading under a fictitious name upon any contract, where the firm has not filed a certificate of partnership as required, does not declare the contract invalid or prohibit assignment of the claim; and hence, where one of two copartners assigned his interest in the firm to the other, the remaining copartner may sue upon a firm contract in his own name, although the required certificate was not filed.</p> <p>[As to validity of contract entered into by partnership which has not complied' with statutes, see note in Ann. Cas.-1913C, 700.]</p> <p>3. Sales—Contracts—Breach.—Where plaintiff purchased beef cattle, he cannot be compelled to receive cattle not ready for immediate butchering.</p> <p>4. Sales—Measure oe Damages—Seller’s Breach op Contract.— In case of breach of a contract of sale, the party injured should be made whole so far as money can do it; the damages recoverable being the actual loss sustained, provided it is such as would follow from the breaeh, and whieh, under the circumstances, might be presumed to have been in contemplation of the parties.</p> <p>5. Partnership—Contracts—Breach—Damages.—Where a partnership engaged in butchering contracted for the purchase of beef cattle which were necessary to supply their trade, the ordinary consequences of the failure of the seller to supply the cattle must be considered to have been within the contemplation of the parties to the contract.</p> <p>6. Damages—Breach op Contract—Measure op Damages—-Actual Compensation.-—In actions for breach of contract, the circumstances of each case must determine what measure of damages should apply, having in view always the giving of actual compensation for the actual loss.</p> <p>7. Sales—Breach op Contract—Measure op Damages.—Defendant, who agreed to sell plaintiff a large number of beef cattle, breached his contract, and plaintiff, who was engaged in the butchering business, obtained cattle in the vicinity which, with transportation, cost a large sum in excess of the contract price. Held, that, as plaintiff was bound to minimize the result of the breach as far as possible, ' and as there was no regular market for cattle at the -point of sale, plaintiff’s damages were not restricted-to the difference -between the contract price and the market price of cattle at the time and place of delivery under the contract, but were the difference between the contract price and the value of cattle at place of delivery within a reasonable time after -breaeh.</p>

Prank J. Duffy, Judge. STATEMENT OP PACTS BY THE COURT. J. S. McDonald in his lifetime owned seven certain mining locations situate in Santa Cruz county, near Oro Blanco, called the Golden Eagle group.

<p>Appeal and Error—Writ op Error—Beview.—Where a judgment was rendered on November 20, 1912, followed on the same day by a denial of a new trial, it is not reviewable on writ of error sued out on November 18, 1913; that remedy having been abolished by Civil Code of 1913, paragraph 1226, in effect October 1, 1913, providing for review by appeal.</p>

<p>1. Appeal and Eeror—Dismissal op Appeal—Delay in Prosecution. Where judgment was rendered on July 19th, a motion for a new trial denied, and notice of appeal given on September 20th, and a supersedeas bond filed on September 27th, and appellant thereafter took no further steps to bring the case to the supreme court, and did not appear on a motion to dismiss, the appeal will be dismissed for want of prosecution.</p> <p>2. Costs—Damages por Frivolous Appeal.—Such appeal having apparently been taken for delay and without sufficient cause, damages as for a frivolous appeal may be awarded under Civil Code of 1913, paragraph 1272, providing that, when the supreme court shall be of opinion that an appeal has been taken for delay, and that there was not sufficient cause for taking it, it may in its discretion include in its judgment an additional sum as damages for a frivolous appeal.</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>APPEAL from a judgment of the Superior Court of the County of Greenlee., F. B. Laine, Judge.</p> <p>The faets are stated in the opinion.</p>

<p>1. Criminal Law—Trial—Instructions—Weight op Evidence.—An instruction, in a prosecution for larceny, that the intent with which defendants committed the crime complained of must be determined by the jury from all the evidence in the case is erroneous, being an unwarrantable invasion of the province of the jury in informing them that a crime had been committed.</p> <p>[As to invasion by court of province of jury, see note in 14 Am. St. Rep. 36.]</p> <p>2. Criminal Law—Appeal—Harmless Error.—In a criminal prosecution, the giving of an instruction that the jury must determine from all the evidence in the case the intent with which accused committed the crime complained of is reversible error, and cannot be disregarded, as it direetly informed the jury that a crime, the matter to be determined, had been committed.</p>

<p>Criminal Law—Time of Trial—Discharge of Accused for Delay.— Under Constitution, artiele 2, section 24, providing that the accused shall have a right to a speedy public trial, and Penal Code of 1913, section 1274, providing that, unless good cause to the contrary is shown, the court must order the prosecution to be dismissed, if a defendant whose trial has not been postponed upon his application is not brought to trial within 60 days after indictment, where defendant, after being found guilty and granted a new trial, was not brought to trial for 95 days, though he had obtained no postponement, a trial jury had been drawn and in attendance during that time, and no cause whatever -for the delay was shown, he was entitled to be discharged.</p> <p>[As to right of accused to speedy trial, and his remedy for enforcing it, see notes in 41 Am. Dec. 604; 85 Am. St. Eep. 187; Ann. Cas. 1912D, 1273.]</p>

J. C. Phillips, Judge. STATEMENT OP PACTS BY THE COURT. The appellant, in his representative capacity, commenced two actions, seeking to recover separate city lots alleged to belong to the estate of L. E. Payson, deceased. The property involved in the first action was in the actual occupancy of Jessie P. Tull and her husband, M. Tull. The property involved in the second action was in the actual occupancy of J. M. Barney.

<p>’APPEAL from a judgment of the Superior Court of the County of Pima. Wm. F. Cooper, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Bail—-Action—Party Plaintiff—County.—Under Penal Code of 1913, section 1430, providing that the amount of a forfeited bail bond shall be paid into the county treasury, and section 1215, authorizing the county attorney to bring an action upon such -bond, the county is the real party in interest, in an action to recover the amount of the forfeited bail bond, and the action is properly brought, in its name.</p> <p>2. Bail—Action—Complaint—Sufficiency.—A complaint, in an action upon a forfeited bail bond given to secure the appearance of one bound over to the district court by a magistrate, need not allege facts showing the jurisdiction of the magistrate to bind over the principal.</p> <p>3. Bail—Validity of Bond—Absence of Principal's Signature.—A .bail undertaking given by a person held to answer for a publie offense after preliminary examination, before the enactment of Penal Code of 1913, section 1195, requiring such undertaking to be signed by the principal, is valid, although not signed by the principal.</p> <p>4. Bail—Validity of Bond—Omission of Principal’s Name in BeCITAL.-—-Where the name of a defendant was left blank in a preliminary recital of an undertaking given upon preliminary examination, but the undertaking reeited that the named individual would appear and answer, the undertaking is not invalid for uncertainty.</p>

<p>APPEAL from a judgment of the Superior Court of the County of Pima. W. C. Cooper, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Homicide—Evidence—Admissibility.—In a prosecution for homicide, where accused conceded that he fired the fatal shot, but claimed that he fired in self-defense and that deceased first shot at him, the ex-elusion of evidence that deceased was armed and had threatened accused is error; Penal Code of 1913, paragraph 1046, providing that, the commission of the homicide by the accused being proved, the burden of -proving circumstances of mitigation or of justification devolved1 upon accused, unless the proof of the state shows the homicide io be excusable or justifiable, and the attitude of deceased, as shown by his threats and ability to carry them into execution, was material on the question of self-defense.</p> <p>[As to law of self-defense, see notes in 74 Am. St. Rep. 717; 109 Am. St. Rep. 804. As to burden of proof on issue of self-defense, see note in Ann. Cas. 19120, 47.]</p>

<p>1. Larceny—Offenses—Elements.—Where accused took a horse under the honest belief that it was his right to do so, he is not guilty of lareeny, though the horse belonged to another, for the felonious intent was absent.</p> <p>[As to what constitutes larceny, see notes in 57 Am. Dee. 271; 88 Am. St. Bep. 559. As to retention of property taken by mistake, see note in Ann. Cas. 1912B, 340.]</p> <p>2. Larceny—Evidence—Burden of Proof.—Under Penal Code of 1913, section 1036, providing that a defendant in a criminal action is presumed to be innocent until the contrary is shown, and should be acquitted in the ease of a reasonable doubt, whether guilt is shown, it is not necessary for one accused of larceny to satisfy the jury that be took the property under a bona fide belief that he was entitled to do so, but the burden is on the prosecution to establish his guilt beyond a reasonable doubt.</p> <p>3. Criminal Law—Instructions'—Burden op Proop.—In a prosecution for horse theft, an instruction that if accused went after the horse alleged to have been stolen in response to a letter from another informing him that he had caught the horse, and accused honestly believed the animal belonged to his principal, he should be acquitted is improper in placing upon accused the burden of proving his bona fides and relieving the state from the burden of proving his guilt beyond a reasonable doubt.</p> <p>4. Criminal Law—Appeal—Harmless Error.—An accused cannot complain that an instruction, given at his request, cast upon him the burden of proof instead of the state.</p> <p>5. Criminal LAW'—Trial—Instructions.—Under Penal Code, section 1033, subdivision 6, declaring that the court may charge the jury on any pertinent issue, and must do so if requested by either party, the failure of the court to charge the jury -on a matter of defense, when no charge was requested, cannot be complained of on appeal.</p>

<p>1. Indictment and Information—Sufficiency.—The offense of selling intoxicating liquor in local option territory being wholly statutory, an indictment in the language of the statute (Civ. Code 1913, par. 3829) is sufficient.</p> <p>2. Criminal Law—Evidence—Other Offenses.—Evidence of sales, in a prosecution for selling intoxicating liquor in violation of the local option law, other than the sale relied upon, is admissible as in corroboration of the offense charged or to show plan or knowledge or to rebut defenses, where the sale, in accordance with the usual custom, is secret.</p> <p>[AjS to evidence of other crimes in criminal prosecutions, see note in 105 Am. St. Eep. 976.]</p> <p>3. Criminal Law—Instructions—Purpose and Effect of Evidence.— In a prosecution for violation of the loeal option law, where evidence of sales other than the one relied upon 'by the state for conviction was admitted, an instruction that evidence of other sales could be considered for the purpose of determining whether the accused committed the act charged, and that sueh evidence was admitted as corroboration of the principal charge, in so far as it ■tended to throw light thereon, and that accused should be acquitted unless found guilty of that charge beyond a reasonable doubt, while not limiting the evidence of the other sales to show purpose, plan, knowledge or intent or to rebut accused’s defense that he had only sold patent' medicines, and that the prosecuting witness had procured his whisky elsewhere, is not erroneous, where no additional instruction was requested.</p>

G. W. Shute, Judge. STATEMENT OF FACTS. BY THE COURT. The following instrument was offered with the petition of the appellees for probate as the last will and testament of Isabella Anderson, deceased: ‘ ‘ This deed, made and entered into this 25th day of August, 1902, between Peter Anderson of the first part and Isabella Anderson of the second part, both of Safford, Graham county, Arizona, witnesseth that the parties hereto are husband and wife and have agreed to make this…

<p>APPEAL from a judgment of the Superior Court of the County of Yavapai. J. 0. Phillips, Judge.</p> <p>The facts are stated in the opinion.</p>

J. C. Phillips, Judge. STATEMENT OP PACTS BY THE COURT. Appellee commenced this action upon a' promissory note by filing his complaint on the 28th day of September, 1910. The note sued on bears date, of October 8, 1906, and was due six months after date, viz., April 8, 1907. Summons was issued on the date of filing the complaint, September 28, 1910. No service of this summons was had upon the defendant.

Carl G. Krook, Judge. STATEMENT OE FACTS BY THE COURT. We adopt appellant’s statement of the facts as being full and correct: “This is an action brought by a stockholder of a corporation, on behalf of himself and all other stockholders, to right certain wrongs to the corporation; the corporation itself, and its directors, having refused to sue.

<p>1. Appeal and Error—Notice of Appeal—Sufficiency.—Notice of appeal given in open court and entered in the minutes, together with the filing of an appeal bond describing the judgment and the order overruling the motion for a new trial and reciting an appeal there-’ from, was sufficient, and gave the supreme, court jurisdiction.</p> <p>2. Replevin—Right of Action—Possession.—The aetion of replevin. rests upon the defendant’s wrongful detention of the property involved and plaintiff’s legal right to its immediate possession; it is-not a chancery proceeding and will not lie to correct, modify or caneel a contract.</p> <p>[As to when replevin is sustainable, see note in 89 Am. St. Rep. 741.]</p> <p>3. Replevin—Pleading—Proof and Variance.—In replevin, where the-complaint contained the ordinary allegations necessary to such aetion, which were put in issue by defendant claiming under a bill of sale from the plaintiff, the execution of which was not denied, the issues in the ease would not permit plaintiff to show mistake on his part and fraud or inequitable conduct on the part of the defendant by which an instrument intended to be a chattel mortgage-of the property became a bill of sale, so as to make the aetion. in effeet one to reform the bill of sale into a chattel mortgage and to enforce it as reformed.</p>

<p>1. Jury—Eight to—Constitutional Provision—Construction.—Constitution, article 2, seetion 23, providing that the right to jury trial shall remain inviolate, does not confer any new rights to trial by jury, but merely preserves the pre-existing right to trial in that manner.</p> <p>2. Jury—Eight of Jury Trial—Equity Cases.—In the absence of express constitutional or statutory provisions, there is no right to a jury trial in suits in equity.</p> <p>3. Jury—Jury Trial—Eight—Equity.—Where.it is doubtful whether the right to jury trial in equitable eases exists, the right should be denied.</p> <p>4. Constitutional Law—Distribution of Powers—Power of Judiciary.—The courts are not concerned with the wisdom of legislative enactments where they are within the power of the legislature.</p> <p>5. Jury—Jury Trial—Eight of Legislature.—It is within the authority of the legislature to provide for trial by jury in equitable actions.</p> <p>€. Jury—Eight to Jury Trial.—Civil Code of 1901, paragraph 1389, provided that in all cases, both in law and in equity, either party should have the right to submit all issues of fact to a jury. Constitution, article 2, section 23, which was thereafter adopted, declares that the right to trial by jury shall remain inviolate. Held that, the statute being clear and explicit, a party, erven in an equitable action, is entitled to a right to jury trial, although the mode of the trial is governed by Civil Code of 1913, paragraph 542.</p> <p>[As to right to jury trial in action of law where equitable defense is interposed, see note in Ann. Cas. 1913D, 168. As to right of defendant in equitable action to jury trial with respect to counterclaim, see note in Ann. Cas. 1914C, 852.]</p>

<p>1. Venue—Change—Objections—Waiver.—Under Civil Code of 1901, paragraph 1377, as amended by Laws of 1907, chapter 74, providing that a change of venue shall be deemed abandoned unless the applicant shall, within five days, give an undertaking conditioned for the payment of all costs adjudged against him, where defendant appeared in the court to whieh a cause was transferred on change of venue and demanded a jury trial, he could not thereafter be heard to urge objections to the jurisdiction of the court because of the failure to file such undertaking, especially where the venue was changed on his own application, and in urging objections he was tha-efore endeavoring to take advantage of his own default, since upon a change of venue objections to the jurisdiction must be made in the proper manner and at the earliest opportunity.</p> <p>2. Venue—Change—Objections—Failure to Pay Fees.—There being no statute or rule of court regarding the payment of fees upon a change of venue, no jurisdictional question was involved in the failure to pay filing fees to the clerk of the court.</p> <p>3. Trial—Notice of Trial—Sufficiency.—While a more definite notice of the setting of a case for trial than a letter to defendant’s counsel by the trial judge might have been given, such letter advising counsel that the case had been set for trial was sufficient to put him upon inquiry, and, in the absence of any showing of unpreparedness to go to trial, the court did not err in ordering the cause to proceed notwithstanding the alleged insufficiency of the notice.</p> <p>4. Pleading—Demurrer—Abandonment or Waiver op Demurrer.— Where, though demurrers to the complaint and to the answer to the cross-complaint were not ruled upon toy the court from which a cause was transferred on a change of venue, defendant, after mentioning the demurrers when the case was called for trial in the court to which it was transferred, did not contradict a statement that they had been passed upon by the court from which it was transferred and permitted the court to proceed upon the theory that they had previously been ruled upon, it was not error to go to trial without ruling upon the demurrers.</p> <p>5. Appeal and Error—Objections in Lower Court—Necessity.—Error could not be predicated upon the failure to rule on motions to strike the answer to the cross-complaint and certain portions thereof, where such motions were never brought to the attention of the trial court in any manner whatever.</p> <p>6. Jury—Bight to Jury Trial—Waiver op Bight.—Under Constitution, article 2, section 23, providing that the right of trial by jury shall remain inviolate, but that provision may be made by law for waiving a jury in civil cases where the consent of the parties is given thereto, Civil Code of 1901, paragraph 1389, providing that on the first day of the term, or such day as the court may direct, the docket shall be called and a jury must be demanded or the right to a trial by jury shall be regarded as waived, and a rule of the trial court requiring parties desiring a jury to demand it on the call of the calendar, where defendant had not previously consented to a waiver of a trial by jury a demand for a jury trial on the day the cause was set for trial was not too late, whether or not the trial calendar had been previously called and whether or not the case could properly have been on the trial calendar because of demurrers and motions to strike which had not been ruled upon, since the right to a trial by jury is an absolute right and not a privilege, and the statute and rule of court so far as they conflict with the provisions of the constitution are inoperative.</p> <p>7. Jury—Bight to Jury Trial—Waiver op Bight.—Under a rule of the superior court providing that the trial calendar would contain all cases in which issues of fact had been joined and in which all preliminary motions and demurrers had been disposed <of, and that parties desiring a jury must demand it on the call of the trial calendar, the failure to demand a jury trial upon the call of the trial calendar did not defeat the right thereto, where motions to strike the answer to the cross-complaint and certain portions thereof had not been determined, as the case could not properly have been upon the trial calendar.</p>

<p>1. Mines and Minerals—Conveyances—-Property Conveyed—Appurtenances.—If ore on tie dump was a part of real estate, it passed under a deed of the real estate regardless of the grantor’s mental reservation thereof.</p> <p>'2. Mines and Minerals—Conveyances—Construction.—To determine whether ore severed from mines and placed on the dump nearby is realty and a part of the mines, or personalty, the intention with which it was extracted and the purpose and intention of the owner in placing it on the dump is controlling.</p> <p>3. Mines and Minerals—Conveyances—Evidence.—In an action by a grantor of mining property against his grantee to recover for the conversion of ore on the dump near the mines, on the theory that it was personalty and did not pass with the mines, evidence held to support a finding that the owner’s purpose and intention in extracting the ore and placing it on the dump was not to sever it from the realty, but to remove a part of the realty under ground to the surface.</p> <p>4. Partnership •— Firm Property — Adverse Possession. — A partner cannot initiate title by adverse possession as against his partner until and unless he makes adverse claim of title under such circumstances as will charge the partner with notice of the adverse claim.</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>APPEAL from a judgment of the Superior Court of the County of Maricopa. Frank 0. Smith, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Elections—Election Precincts—Establishment—“Convenient.” The word, “convenient” means fit or adapted to an end, suitable, becoming or appropriate, and a convenient number of election precincts, within Civil Code of 1913, paragraph 2913, requiring the board of supervisors of each county prior to each general election to establish a convenient number of election precincts and define the boundaries when possible, is a fit, suitable or appropriate number of precincts, giving the voters a reasonable opportunity to cast their . votes and sufficient to accommodate the needs of the voters in casting their votes.</p> <p>2. Elections — Election Precincts — Establishment — Review bt Courts.—In establishing a convenient number of election precincts in the county, as required by Civil Code of 1913, paragraph 2913, the board of supervisors exercises a discretion within its jurisdiction, which is conclusive upon the courts and cannot be reviewed, unless its determination is the result of an abuse of discretion and injury results from sueh abuse; and henee the court could not by mandamus require the board to establish the boundaries of a district, so as to include only the territory of an incorporated town, notwithstanding the pending submission of a constitutional amendment prohibiting the importation and sale of intoxicating liquors, and of another amendment providing that when, upon the question of prohibition throughout the state, a majority of votes is cast against prohibition, the sale of intoxicating liquors shall be permitted in those towns or precincts where a majority of the votes shall be against prohibition, and prohibited in towns or precincts where the vote is in favor of prohibition.</p> <p>3. Mandamus—Subjects of Relief—Matters of Discretion.—Under Civil Code of 1913, paragraph 1553, authorizing the issuance of .a writ of mandamus to compel the performance of an act which the law specially enjoins, the writ will not be granted to control the action of any. inferior court, board or officer, wherein their acts are of a judicial character, or in which they are called upon to exercise discretion, or to command in what manner the act shall be performed.</p> <p>[As to right of individual to mandamus to compel court or magistrate to perform duty, See note in Ann. Cas. 1912A, 1118.]</p>

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

<p>1. Witnesses—Competency—Obligation op Oath.—Under Penal Code of 1913, section 1226, providing that all persons who can perceive and express their perceptions may be witnesses, and sections 1227 and 1228, excepting persons of unsound mind, children incapable of perceptions or their relation, an aged Indian woman, who, on her voir dire, in answering a question as to whether she understood the consequences of telling a lie, said that she would tell no lie and would “show what she had seen, that’s all,” was competent.</p> <p>2. Witnesses—Determination as to Competency.—A witness’ capacity to testify is a question for the judge or court.</p> <p>3. Witnesses-—Competency—Constitutional Provisions.—Since Constitution, article 2, section 12, provides tliat no person shall be incompetent as a witness in consequence of Ms religious opinions, nor be questioned thereon in any court to affect the weight of his testimony, questions to an aged Indian woman to test her belief in God or the Great Spirit were improper.</p> <p>4. Trial—Province of Jury—Weight and Effect of Testimony.— The weight and effect of the testimony of competent witnesses was properly left to the jury.</p>

A. G. McAlister, Judge. STATEMENT OE FACTS BY THE COTJET. The appellant, May Hayes, formerly May Bailey, during the month of December, 1913, filed her petition in the superior court of Maricopa county, alleging that she is the mother of Susie Bailey, a minor child of the age of five years; that Prank Bailey is the father of the child; and that for more than two years prior to the date of filing the said petition the said father had deserted his family and wife, this…

<p>1. New Trial—Motion—Time or Filing.—Civil Code of 1901, paragraph 1478, providing that motions for new trial shall be made within five days after verdict or judgment if the term of court continues so long, and, if not, before the end of the term, is mandatory, and a motion filed out of time may be either stricken from the files or overruled.</p> <p>'2. New Trial—Motions—Requisites.—Civil Code of 1901, paragraph 1473, requiring every motion for new trial to be in writing specifying the grounds on which it is founded, is mandatory, and the court may not pass on an oral motion in anticipation that a written one will be filed.</p> <p>3. Appeal and Error—Questions Reviewable—Records.—Where motion for new trial was filed out of time, the court on appeal can only consider the questions presented by the judgment-roll.</p> <p>4. Waters and Watercourses—Appropriation op Water—Statutory Provisions.—The right to appropriate water under Civil Code of 1901, paragraph 4169, depends on whether the water is unappropriated and on the purpose for which the water is to be applied after appropriation, and a person first in time who uses unappropriated waters for any of the statutory purposes acquires the better right, and may, when necessary or convenient, construct and maintain reservoirs, dams, canals, ditches, flumes or other ways.</p> <p>[As to what constitutes an appropriation of water and priority among appropriators, see notes in 98 Am. Dec. 542; 60 Am. St. Eep. 799.]</p> <p>5. Waters and Watercourses—Appropriation—Prior Eights—Pleadings.—A plaintiff suing to establish rights in waters and to restrain defendant from diverting the same must state facts from whieh it may reasonably appear that plaintiff has appropriated to some beneficial use some of the unappropriated waters or surplus or flood waters prior to the time defendant did an adverse act of appropriation in his own right, and that defendant performed or threatened to perform some aet depriving plaintiff of a right acquired by appropriation.</p> <p>6. Waters and Watercourses—Appropriation—Prior Eights—Pleadings.—A complaint, in an action to establish rights to flood waters and to restrain the diversion thereof, whieh alleges that for about 15 years plaintiff has maintained a dam and diteh, that flood waters to the amount of the carrying capacity of the diteh during that period have been diverted and used by plaintiff to furnish his sheep with water, and that recently defendant constructed a dam which diverted all of the water, states a cause of action against a demurrer.</p> <p>7. Waters and Watercourses—Appropriation—Prior Eights—Pleadings—Decree.—Where, in a suit to establish rights to flood waters and to restrain the diversion thereof, the general verdiet and findings of fact by the court established the truth of the complaint that plaintiff was entitled to flood waters to the amount of the carrying capacity of a ditch, and the verdict and findings were sustained by the evidence, a decree awarding to plaintiff flood waters to the amount of the carrying capacity of the ditch was in conformity to the pleadings, evidence and verdict, and gave to him the relief he was entitled to within Civil Code of 1901, paragraph 1428.</p> <p>8. Appeal and Error-—Eecord—Eeview.—Where a special verdiet is not in the abstract of record, it cannot be considered in determining the correctness of the judgment. ■</p>

<p>1. Extortion—Information—Sufficiency.—Under Penal Code of 1913, section 943, providing that an information is sufficient if it states the act charged as the offense clearly and distinctly in ordinary and concise language, so as to enable a person of common understanding to know what is intended, and with sufficient certainty to enable the court to pronounce judgment, and which contains the formal allegations of the necessary jurisdictional facts, an information for extortion by threat to accuse another of a crime as defined by Penal Code of 1913, sections 512, 513, whieh charges that the defendant threatened to aeeuse another of grand larceny, is sufficient without alleging the particulars of the larceny.</p> <p>2. Criminal Law—Evidence—Admissibility—Other Offenses.—In a prosecution for extortion by threatening to aeeuse another of the larceny of a cow, where the theory of the prosecution was that defendant compelled the prosecuting witness to kill a cow belonging to another so that defendant and his confederates could aeeuse him of the crime, and then extorted money from him to forego making the accusation, evidence that the defendant pointed a gun at the witness, and thereby forced him to kill the cow, is admissible as part of the transaction, although it tends to show the commission of another crime by defendant.</p> <p>[As to evidence of other crimes, see note in 105 Am. St. Rep. 976.]</p> <p>3. Extortion —Evidence— Admissibility—Circumstances.—Evidence that tracks were found leading to the place where the cow was killed was also admissible as tending to corroborate the testimony of the prosecuting witness.</p> <p>4. Criminal Law—Instructions—Reading Statute.—In a prosecution for extortion by a threat to aeeuse another of a crime as defined by Penal Code of 1913, section 513, subdivision 2, it was error for the court to read to the jury subdivisions 1, 3 and 4 of that section defining extortion by other threats.</p> <p>5. Criminal Law—Appeal—Harmless Error—Instruction.—The error in such instruction was harmless where the only evidence of threats was a threat to accuse the other of grand larceny, especially where the court, after reading subdivision 2 of the section, stated that that was the one under which thg prosecution was brought.</p> <p>6. Criminal Law—Instructions—Heading Statute.—In a prosecution ■for extortion by threatening to accuse another .of grand larceny, it was error to read to the jury all of Penal Code of 1913, sections 481, 483, 484, defining grand larceny, and not to confine the instruction to the particular kind of larceny to which the threat referred.</p> <p>7. Extortion — Threats — Accusation op Crime — Guilt op Person Threatened.—One who extorts money from another by a threat to accuse the other of a crime is guilty of extortion, whether the . other is in fact guilty or innocent of the crime referred to in the threat.</p> <p>[As to what constitutes extortion, see notes in 96 Am. Dee. 193; 116 Am. St. Hep. 446; Ann. Cas. 1913D, 453.]</p>

<p>1. Criminal Law—Preliminary Examination—Waiver.-—Where one arrested for burglary, after being informed of his rights, waived examination before the justice who had issued the warrant, and the justice then entered an order reciting such waiver, finding that a burglary had been committed, and that there was sufficient cause to believe that the defendant was guilty thereof, and ordering him to be held to answer the charge, there was a sufficient compliance with Penal Code of 1913, section 893, requiring a preliminary examination for one accused of an offense, unless he shall waive the same, whereupon the justice shall enter such waiver on his docket, and immediately order the defendant held to answer, as if he had been held after examination.</p> <p>2. Indictment and Information—Form—Felony.—Under the express provisions of Constitution, article 2, section 30, one charged with a felony may be prosecuted either by indictment or information; the only limitation upon prosecution by information being by Penal Code of 1913, section 885, requiring the information to be filed within 30 days after the order of the magistrate holding the defendant to answer is made.</p> <p>3. Indictment and Information—Burglary—Degree.—Under an information charging burglary in general terms, defendant may be convieted of burglary in either the first or second degree, if the evidence warrants it.</p> <p>4. Criminal Law—Instructions—Comment on Evidence.—Where the information was sufficient to charge burglary in either degree, an instruction that the testimony showed that, if any burglary was committed, it was committed in the daytime, so that the defendant could be convicted only of burglary in the second degree, was erroneous, as a comment on the weight of evidence.</p> <p>A Criminal Law—Appeal—Harmless Error—Error Favorable to Accused.—The error was favorable, and not prejudicial, to accused, and he cannot therefore complain.</p> <p>6. Burglary—Criminal Law—Instructions'—Possession op Stolen Property—Comment on Facts.—In a prosecution for burglary, an instruction that possession of stolen goods by the accused recently after a burglary in whieh larceny was committed, if unexplained, is a circumstance from which the complicity of the accused in the larceny might be inferred, when followed by a statement that the value of such evidence was to be determined by the jury after considering all the facts and circumstances connected with the possession and their relation to the other proofs in the case is ’correct, and not a charge or comment on the facts, which ’ is forbidden by Constitution, article 6, section 12.</p> <p>7. Criminal Law—Instructions—Construction as a Whole.—Instructions given in a criminal trial must be considered as a whole and so- construed.</p> <p>8. Criminal Law—Requests—Necessity.—Under Penal Code of 1913, section 1033, subdivision 6, requiring the judge to charge the jury on any points pertinent to the issues, if requested by either party, the failure of the court to give a specific instruction good in law and pertinent to the issues, but whieh was not requested, is not ground for reversal.</p> <p>9. Criminal Law—Appeal—Harmless Error—Invited Error.—•Where*' a judgment of conviction was set aside upon motion of the defendant, so that he might move in arrest of judgment, the defendant cannot, on appeal from a judgment of conviction entered after the overruling of his motion in arrest, contend that the court lost jurisdiction to enter the judgment.</p> <p>[As to what constitutes burglary, see notes in 22 Am. Dee. 150; 2 Am. St. Rep. 383; Ann. Cas. 1913C, 517.]</p>

<p>1. Judgment—Collateral Attack.—An action to obtain a judgment which will destroy the effect of a former judgment is a collateral attaek, and relief can only be granted on proof that the former judgment was rendered without jurisdiction and is void.</p> <p>2. Courts—Jurisdiction-—Superior Courts.—The superior courts are courts of general jurisdiction, and have jurisdiction of foreclosures-of mortgages and liens.</p> <p>3. Judgment—Validity—Jurisdiction of Court.—A judgment of a court within its jurisdiction is not void, though wrong, and cannot be attacked collaterally, but the remedy is by appeal.</p> <p>4. ’Courts—“Jurisdiction”—“Jurisdiction of Subject Matter.”—The test of jurisdiction of the court is whether it has power to enter on the inquiry presented, and not whether its conclusion is right or wrong, and jurisdiction of the subject matter is the power to deal with the general abstract question, to hear particular facts in any case relating to the question, and to determine whether they are sufficient to invoke the exercise of the power.</p> <p>5. Judgment—Jurisdiction of Court—Collateral Attack.—Where . jurisdiction of the court over a particular case depends on the facts, its decision is conclusive against collateral attaek.</p> <p>6. Judgment—Jurisdiction of Court—Collateral Attack.—Where a complaint states a case within the general class over which jurisdiction of the court extends, it has jurisdiction to determine whether the pleading is good or bad.</p> <p>7. Judges—Powers of Successor—Changing Determination.-—The action of the court in a suit to^foreelose a lien for oil sold and hauled to a mining company in overruling a special demurrer to-the complaint and denying a motion to strike on the ground that the statutes did not give a lien for hauling materials for use in or on mining claims did not thereby finally determine the matter, and did not preclude the judge succeeding in offiee from changing the decision, and did not require plaintiff to abandon his lien, but the owner’s remedy was by appeal.</p> <p>8. Judgment—'Collateral Attack—Default Judgment.—A default judgment of a court having jurisdiction is conclusive against collateral attack.</p> <p>9. Pleading—Complaint—Aider by Exhibit.—A defeet in the complaint to foreclose a lien arising from the failure to describe the property subject to the lien asserted may be aided by reference to the claim for lien sufficiently describing the property made an exhibit and a part of the complaint.</p> <p>10. Bankruptcy—Piling of Petition—Effect.—The rule that the filing of a petition in bankruptcy is a caveat and an attachment applies only to parties having no substantial elaim of lien on or title to, the property of the bankrupt, but against persons having existing liens or titles the filing is neither a caveat nor an attachment.</p> <p>11. Bankruptcy—Court’s Jurisdiction.-—The actual possession by the •bankruptcy court of the property of a bankrupt is an indispensable condition of its exclusive jurisdiction.</p> <p>12. Bankruptcy—Liens Created by Contract or State Statute— Protection.—The bankruptcy act (Act July 1, 1898, e. 541, 30 Stat. 544, 545 [U. S. Comp. Stats. 1913, secs. 9585-9656]), protects liens created by contract or state statute, unless expressly annulled, and does not avoid a lien for labor preserved and enforced by legal proceedings, especially where -the lien attached more than eight months before proceedings in bankruptcy and the action to foreclose the lien was also commenced long prior thereto.</p> <p>13. Bankruptcy—“Lien”—“Lien Obtained Through Legal Proceedings.”—A lien for materials and labor created by state statute is not “a lien obtained through legal proceedings” within the bankruptcy act, though it is necessary to file a elaim and proseeute a suit to enforce it, a “lien” being a right of property and not mere matter of procedure.</p> <p>14. Bankruptcy—Proceedings in State Court—Effect of Petition in Bankruptcy.—A suit in a state court to foreclose a lien against specific property brings the property into the control of the eourt, and withdraws it from the jurisdiction of every other eourt, and, where the suit is begun before filing a petition in bankruptcy against the debtor, the state court may proceed to a decree of foreclosure and sale and pay the debt secured without interference from the court of bankruptcy.</p> <p>15. Judgment—-Rendition in Absence of Defendant—Validity-—Collateral Attack.—A judgment foreclosing a statutory lien, rendered in the absence of the owner of the property, adjudicated a bankrupt pending the suit, is not void, where the complaint on which it was rendered was relevant, and the suit was tried on the merits, and the judgment is not subject to collateral attack.</p> <p>16. Evidence—Judicial Notice—Judicial Proceedings in Federal ■Courts.—The superior court of the state cannot take judicial notice of bankruptcy proceedings in the bankruptcy court.</p>

A. C. Lockwood, Judge. STATEMENT OP PACTS BY THE COURT. Bessie Anna Iler filed a petition in the superior court alleging that she is the mother of Henry Le Roy Dillman ,• that Howard Pay Dillman is the father of said child; that petitioner and Howard Pay Dillman were married, and that they were divorced by decree of the court; that Henry Le Roy Dill-man is a child of six years of age, and praying that she be appointed guardian.

<p>1. Assignments for Benefit of Creditors—Validity—Conformity to Statute.—A general assignment for the benefit of creditors, which does not show that the assignor was insolvent, does not give a list Df the creditors, and is otherwise defective as a statutory assignment, may nevertheless be valid as a common-law assignment and is not forbidden by statute.</p> <p>2. Assignments for Benefit of Creditors—Validity—Change of Possession—“PrIma Facie Evidence.”— Under Civil Code of 1913, paragraph 3276, providing that every assignment of chattels not accompanied by immediate delivery and change of possession is prima facie evidence of fraud for the benefit of creditors or bona fide purchasers, a creditor who attached property after an assignment for the benefit of creditors, unaccompanied by change of possession, is entitled thereto, unless the statutory presumption of fraud is rebutted, since prima facie evidence is such evidence as in law is sufficient to establish .á .fact- and, if not rebutted, remains sufficient for that purpose.</p> <p>3. Fraudulent Conveyances—Assignment por Benefit op Creditors— Change of Possession.—The fact that the assignment shows on its face that it is for the benefit of creditors does not rebut the prima facie presumption of fraud, where the property assigned consisted of a stock in trade and fixtures, and the assignor remained in possession thereof conducting the business and keeping the proceeds of sales of the stock.</p> <p>4. Fraudulent Conveyances—Assignments for Creditors—Change of Possession—Bights op Parties.-—An assignment for the benefit of creditors, which is prima facie void against creditors because there was uo change of possession, is sufficient to pass the title between the parties.</p> <p>5. Fraudulent Conveyances—Change of Possession—Sale to Wife. Where a baker assigned his stock and fixtures to an assignee for the benefit of creditors, and the latter, without having taken possession, sold it to the assignor’s wife, who had assisted her husband in the business, and the sign on the place of business was not changed, nor was there any apparent change in the relation of the husband and ‘ ■ Wife to the business, although the husband claimed to be in the employ of Ms wife, the transaction should be treated as one between the husband and wife directly, and is prima facie void against the husband’s creditors.</p> <p>6. Fraudulent Conveyances—Change op Possession—Sale to Wife. WMle a husband may seil Ms property to his wife, the statute rendering a sale prima facie void unless accompanied by delivery and change of. possession, applies to such sale, and the law requires stricter proof that the transaction was in good faith.</p> <p>7. Fraudulent -Conveyances—Retention op Possession—Questions - of Fact—Fraud.—Under the statutes making a sale of a stock of - goods and fixtures, where there was no change of possession, prima facie void, the question of good faith in the transaction is one of fact for the trial court or the. jury.</p> <p>8. Evidence—Declarations—Recital.—Where a baker assigned his stock and fixtures to an assignee for the benefit of his creditors, and the assignee thereafter sold the property to the. baker’s wife, a reeital in the bill of sale to the wife that the money paid by her was her separate property is not evidence of that fact.</p> <p>9.. Constitutional Law-—Fraudulent Conveyances—Bulk Sales Act —Police Power—Class Legislation.—The Bulk Sales Act (Civ.. -Code 1913, tit. 51, c. 7) is a proper exercise of the police power and not elass legislation.</p> <p>10.-Fraudulent Conveyances—Effect op Partial Invalidity—Bulk Sales Act—Fixtures.—Where a baker sold.his stock in trade and ■ fixtures, the salé of the stock being void 'under the Bulk Sales Act, the sale of the fixtures may nevertheless be valid.</p> <p>[As to construction of statutory provision that sales of goods in ■bulk are presumed fraudulent, see note in Ann. Cas. 1913C, 1214.]</p>

<p>1. Trial—Direction oe Terdict—Sufficiency of Evidence.—It is only where the -court can find no evidence which, in its deliberate and ultimate judgment, is entitled to be weighed that a verdict should be directed.</p> <p>2. Indemnity—Bonds—Evidence.-—In an action on a bond to seeure payment of notes given for the price of sewing-maehines, evidence held sufficient to take the question of the execution of the bond and the existence of indebtedness on the notes to the jury.</p> <p>3. Bonds—Existence of Exactly Similar Bond—Effect.—It is no defense to an action against the parties to a bond that there is another bond outstanding, executed by the same persons, for the same purpose, and containing exactly the same conditions.</p>

<p>APPEAL from a judgment of the Superior Court of the County of Pima. W. F. Cooper, Judge.</p> <p>The facts are stated in tbe opinion.</p>

<p>APPEAL from a judgment of the Superior Court of the County of' Pima. W. F. Cooper, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Contracts-—Question for Jury.—What the parties actually agreed to in an oral agreement to build a house, in case of dispute as to terms, is a question of fact for the jury.</p> <p>2. Trial—Province of Jury—Conflicting Evidence.—Where there is conflict in the evidence, it is within the province of the jury to weigh the testimony and give credit where they believe credit should be given.</p> <p>3. Contracts—Breach—Complaint.—A complaint for damages for breach of contract need only contain a concise statement of facts constituting the cause of action, and the dry formalism of a common-law pleading may be discarded with safety.</p> <p>4. Pleading—Presumptions in Favor of.—Every reasonable intendment will be made to sustain a pleading.</p> <p>5. Pleading—General Demurrer.—If a cause of action for breach of contract may be reasonably inferred from its averment, a general demurrer should be overruled.</p> <p>6.. Contracts—Breach—Complaint.—In an action for damages for breach of contract, the complaint need only state the making of the contract, the obligation assumed, and the breach, superadding a statement of the amount claimed and a prayer for judgment.</p> <p>7. Contracts—Complaint for Breach—Sufficiency.—A complaint alleging that defendant agreed to construct and to furnish all labor and materials for the erection of a dwelling-house for the plaintiff, according to plans and specifications submitted, and said dwelling-house was to be ereeted on lots owned by plaintiff and for a fixed agreed price, is sufficient as against a general demurrer.</p> <p>8. Contracts •—• Mutuality — Implied Obligation. — Mutual consent is requisite to the creation of a contract, but it becomes binding when a proposition is made on one side and accepted on the other, and the obligation to show mutuality may be implied.</p> <p>9. Contracts—Consideration—Implied Agreement.—A consideration may be agreed on as well impliedly as expressly.</p> <p>10. Estoppel—Contracts—Performance—Estoppel to Urge Objection.—After performance of a contract by a building contractor, he is not in a position to urge lack of mutuality or want of consideration for doing the thing he agreed to do.</p> <p>11. Appeal and Error—Parties Entitled to Allege Error.—Evidence, admitted at the instance of a party, may not be complained of by</p> <p>12. 'Contracts-—Action fob Breach—Evidence—Plans and Specifications.-—In an action for breach of contract to erect a dwelling-house, the admission in evidence of the plans and specifications is not error, where they were made a part of the contract by reference and clearly identified.</p> <p>13. Contracts—Building Contract—Action for Breach—Evidence.— In an action against building contractor for breach of contract, in that the house constructed cost more than the agreed price, evidence-as to the disposition of the money paid by the plaintiff to the contractor is relevant on the question of what the house actually eost.</p> <p>14. Trial—Instructions—Cure by Other Instructions.—Objections; to particular instructions are cured where the objections are overcome in other instructions.</p> <p>15. Costs—Superior Court—Pees of Jurors.—Under Civil Code of 1913, paragraph 638, costs in the superior courts do not include jurors’ fees, as such fees are paid by the county, as provided by - paragraph 3207.</p> <p>[As to right of building contractor to recover upon substantial performance of his contract, see note in 134 Am. St. Bep. 678.]</p>

<p>1. Municipal Corporations — Public Improvements — Referendum — Constitutional Provisions.—The Sewer Act (Civ. Code 1913, pars. 1978-2025) provided that real property benefited by an improvement should be liable for its cost, created a special fund to be used only in paying for the improvement, and provided for the issuance of bonds for assessments payable out of such fund, and expressly exempted the city from other liability. The mayor and common council by resolution declared that the publie health required a sewer and septie tank as a general benefit to the whole eity, and made the city a district for assessing the cost thereof. Constitution, article 4, section 1, subdivision 8, reserves the referendum to the qualified electors of every city as to all local matters, and article 7, section 13, requires bond issues or special assessment to be submitted to a vote of property taxpayers to be qualified electors of the political subdivision “affected by such question,” and article 9, section 6, authorizes local improvements by special assessments. 1Held, that the city was not “affected” by the assessment so as to require submission to a referendum vote; the qualified electors being entitled to vote only on questions of a general character such as those relating to publie health, police, etc.</p> <p>2. Municipal Corporations—Public Improvement—Assessments for Benefits—Conclusiveness.—Under Sewer Act (Civ. Code 1913, par. 1984), providing that any owner liable to be assessed for an’ improvement may make written protest against it or against the ex-tern! of the district and have a hearing by the city council, whose decision shall be final, paragraph 1985, providing that if no protests are filed, or if they are denied, the council shall have jurisdiction to order the proposed improvement, and paragraph 1988, subdivision 4, providing that when the improvement is assessed upon a district the assessment shall be upon each of the lots in proportion to the estimated benefits thereto, in the absence of any protest, a city’s determination that a sewer and septic tank was required by the public health, and was of a general benefit to the city, and constituting thé city an assessment district, was final.</p> <p>3. Municipal Corporations — Public Improvements — Liability op Property.—Where a city is authorized to establish a sewer assessment district, it is not essential to the validity of an assessment that the property shall adjoin or abut on the line or street in which the sewer is laid.</p> <p>4. Municipal Corporations — Public Improvements — Assessment — “Local Improvement"—Constitutional Provisions.—Under Constitution, article 9, section 6, empowering cities to make local improvements by special assessments, a proposed sewer and septic tank declared by resolution of a city council to be of general benefit to the whole city was not a “local improvement,” or a public improvement which, by reason of its being confined to a locality, enhances the value of adjacent property, as distinguished from benefits not generally enjoyed by property in the city, which could be made by special assessment, but one that eould be made only by general assessment; and hence a special assessment therefor would be enjoined.</p> <p>[As to validity of special assessment levied by front foot instead of according to benefit, see note in Ann. Cas. 1913A, 655.]</p>

<p>1. Appeal and Error—Law op the Case..—Where the facts presented in two appeals are the same, the decision on the first appeal is the law of the case and will not be reviewed on the second appeal.</p> <p>2. Appeal and Error—Law op the Case.—A decision of the supreme court on appeal that a complaint, attacked by objections to evidence on the ground that it did not contain facts to constitute a cause of action, stated a cause of action, operates to estop defendant from attacking the sufficiency of complaint on other grounds, such as bringing the action prematurely.</p> <p>3. Judgment—New Trial—Pleading—Complaint—Supficiency—Manner op Raising Objections.—Objection that a complaint does not state a cause of action may be raised by demurrer, objections to evidence, motion for judgment on pleadings, motion in arrest of judgment, or motion for new trial.</p> <p>4. Appeal and Error—Law op the Case.—A decision of the court on appeal, construing the contract relied on, is the law of the ease on a subsequent trial.</p> <p>5. Brokers—Employment—Contracts..—An owner declining to give a broker an option authorized him to put any responsible party in communication with the owners direct, with the understanding that he would' not accept less than a specified sum for the property, and that if anyone should buy, as the direct result of the broker’s efforts, the owner would pay a suitable commission. No time for performance of the contract was fixed. The broker accepted the terms. Subsequently the parties entered into a contract authorizing the broker to sell the property to a third person or to such other person as might be approved by the owner for a specified sum before a designated date for a specified commission. A sale was not effected under the subsequent contract. Held, that the subsequent contract superseded the first contract, under the rule that a contract, complete in itself, supersedes a prior one in relation to the same subject matter, and the broker could not recover commissions under the first contract.</p>

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

<p>APPEAL from a judgment of the Superior Court of the County of Santa Cruz. W. A. O’Connor, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Mines and Minerals—Laborer’s Lien on Mining Claims.—Civil Code of 1901, paragraph 2904, giving laborers on any mining claim a lien for the amount unpaid, does not give a lien to laborers on mining property, unless they perform labor at the request of the owner or his agent, and an owner who gives to a purchaser an option contract, and permits him to enter on and develop the property, does not make him an agent, and does not authorize a lien for employees of the purchaser.</p> <p>[As to who is a “laborer” within statute, giving liens to laborers, see note in Ann. Cas. 1913B, 138.]</p> <p>2. Constitutional Law—Impairing Obligation or Contracts—Statutes—Construction.—Civil Code of 1913, paragraph 3654, giving laborers on mining claims a lien for labor by virtue of a contract between them and the owner or his agent, trustee, receiver, contractor or contractors, or purchaser under option contract, cannot apply to an owner giving an option contract to sell prior to the passage of the provision, for otherwise the provision will impair the obligation of a contract, in violation of Constitution, article 2, section 25.</p> <p>3. Mines and Minerals—Laborer’s Lien on Mining Claims—Statutes —Validity.—This section, when applied to contracts made subsequent to its taking effect, is valid.</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>

W. A. O’Connor, Judge. STATEMENT OP PACTS BY THE COURT. The parties to this cause have stipulated that the findings of the court are the facts of this ease. The findings are .as follows: “1.

J. C. Phillips, Judge. STATEMENT OF FACTS BY THE COURT. The appellee was the owner of a tract of land, and the appellant owned 7,000 shares of stock of the Overland Telephone and Telegraph Company. The appellee exchanged the land for the said stock and one bond of the said corporation. The value placed upon the land was $4,250.

<p>1. Limitation op Actions—Commencement op Action—Filing op Complaint—Issuance op Summons.—Under Civil Code of 1913, paragraph 390, providing that civil suits shall be commenced by complaint filed with the clerk, and paragraph 434, providing for the issuance of summons at any time within a year after the filing of the complaint, the filing of a complaint before the bar of limitations has attached stops the running of limitations, and plaintiff has one year in which to procure the issuance of a summons.</p> <p>2. Limitation op Actions—Commencement op Actions—Prosecuted. Civil Code of 1913, paragraph 434, providing that plaintiff may have a summons issued at any time within one year after filing complaint, applies to all civil cases, and affects only the procedure and applies to paragraph 714, declaring that actions for debt shall be commenced and prosecuted within four years after accrual of cause of aetion, which merely destroys the remedy.</p> <p>3. Statutes—Construction—Legislative Intent.—The court in construing a statute will seek to ascertain and give effect to the legislative intent, and may enlarge or restrict words or clauses to effeetuate the intent as ascertained from the words of the statute and its obvious purpose.</p> <p>4. Statutes—Construction.—Different statutes bearing on the same subject matter should be so construed, if possible, as to give effect to all. .</p>

W. F. Cooper, Judge. STATEMENT OF PACTS BY THE COURT. This is an action for specific performance. The appellant, who was plaintiff below, brings it as trustee of the contract beneficiaries against the appellee, who is the trustee of the estate by will. The facts set forth in the complaint briefly are these: In 1892 Julia A. Knapp, 58 years of age and unmarried, residing in New Jersey, entered into a verbal agreement with Farrand 0.

Frank O. Smith, Judge. STATEMENT OF FACTS BY THE COURT. This action was commenced on April 5, 1912, by Mary Aileen and Patricia Julia Cunningham, minors, as the heirs at law of Patrick Cunningham, deceased, by the guardian of their estate, Emil Marks, against the estate of Martin Costello and Mary M. Costello, as the executrix of the last will of Martin Costello, deceased, seeking an accounting for the net proceeds of the sales of 17 mines situate in the Warren mining…

<p>1. Appeal and Error—Reservation of Grounds of Review—Motion for New Trial.—The failure to move for a new trial waived all questions triable upon such a motion.</p> <p>2. Estoppel—Estoppel by Deed.—Where a person liable to account to-C. for the proceeds of a sale of certain mining claims made a settlement with C.’s widow and administratrix, which was approved and confirmed by the probate court, and the widow individually executed a deed of release, settlement oand compromise, she was thereby estopped from claiming anything further from the proceeds of the sale.</p> <p>[As to estoppel against married women, see note in. 57 Am. St. Rep. 169.J</p> <p>3. Trusts—Enforcement—Laches.—C., who it was claimed owned an interest in mining claims under an agreement whereby defendant’s testator held the title to such claims in trust for himself and C., died in 1899. Defendant’s testator died in 1911, and the only other witness to the facts bearing upon C.’s right in the claims died in 1909. All of the claims were sold prior to or in 1906. C.’s widow assigned her rights in the claims to her minor children in 1912, having taken no steps in the meantime to enforce such rights, except to consult an attorney in 1911. She claimed that the delay was due to the false and fraudulent statements and promises of defendant’s testator; that C. was not a citizen; that the titles were bad; that she and her children would eventually get all that was coming to them; and that to let the facts be known would result in a loss of the property—but it appeared that she knew that the statements concerning her husband’s citizenship were false, though she did not know their effect, and she concealed from her attorney her claim and such promises. Held, that no sufficient excuse appeared for the delay in enforcing her rights, and the trial court did not err in holding that they were barred by laehes.</p> <p>[As to when equity will refuse relief on account of laches, see notes in 54 Am. Dec. 130; 2 Am. St. Bep. 795; 23 Am. St. Bep. 148. As to enforcement in equity of stale claims, see note in Ann. Cas. 1914B, 314.]</p>

W. A. O’Connor, Judge. STATEMENT OP PACTS BY THE COURT. The appellee commenced this action seeking to quiet title to 1,000,000 shares of the capital stock of the West Coast Copper Mines Company, standing in his name as trustee, alleging that the defendant asserts some claim to the said stock adverse to plaintiff, and is threatening to force plaintiff to turn said stock into the defendant’s treasury, but that the claim of defendant is without foundation or right.

Frank 0. Smith, Judge. . STATEMENT OF FACTS BY THE COURT.' The appellee commenced this action to recover $1,402 for services rendered and supplies furnished appellant, at his instance and request, from December 5, 1912, to January 5, 1914. The defendant answered, denying generally and answering specially, alleging that the services were rendered and supplies furnished pursuant to a contract of lease of a ranch for one year, and alleging that said contract was fully performed.

<p>I. Master and Servant—Powers op Municipal Corporation—Duty op Common Council.—Under Phoenix City Charter (Laws 1881, No. 58), article 13, section 1, as, amended by Laws of 1885, No. 61, giving the common council of Phoenix exclusive control over the streets, and Civil Code of 1901, paragraph 465, giving to cities power to light and cleanse their streets, the sprinkling of streets is within the control of the common council, and it is their duty, in employing men, to furnish them with safe teams and wagons.</p> <p>2. Master and Servant—Injuries to Servant—Delegation op Liability.—The duty of a master to furnish his servants with a reasonably safe place in which to work and with reasonably safe instrumentalities cannot be delegated so that the master may escape liability.</p> <p>3. Master and Servant—-Contracts op Service—Law.—Contracts are to be construed in connection with the law in force at the time of their execution, and the liability of a master is dependent upon the state of the law at the time the contract of service was entered into.</p> <p>4. Master and Servant—Injuries to Servant—Contracts.—Contracts whereby a servant agrees that the master shall not Ipe liable for injuries are not favored, and, in the absence of statutory permission, are against public policy.</p> <p>5. Master and Servant—Liability op Municipal Corporation—Statute.—Phoenix City Charter (Laws 1881, No. 58), article 18, section 7, as amended in 1885 (Laws 1885, No. 61), provides that the municipality shall not be liable to anyone for any loss or injury to person or property growing out of, or caused by, the malfeasance, misfeasance or neglect of any officer or other authority. Plaintiff, who was engaged in sprinkling streets for the city, was injured owing to the unruly horses with whieh he was furnished. Held, that, as the eity could only act through its officers, it was not liable for plaintiff’s injuries; for, while Constitution, article 18, section 3, prohibits any person, company, association or corporation from contracting with its servants that it shall be free from liability, that provision, in view of other sections of the same article, applies only to private corporations.</p> <p>6. Municipal Corporations — Charter — Liability — Constitutional Protection.—Phoenix City Charter (Laws 1881, No. 58), article 18, section 7, as amended in 1885 (Laws 1885, No. 61), declaring that the city of Phoenix shall not he liable for the misfeasance or nonfeasance of its officers, is not in violation of Constitution, article 18, section 6, declaring that the right of action to recover damages for injuries shall never be abrogated.</p> <p>[As to liability of city for negligence or miseonduet of agents or officers, see notes in 53 Am. Dec. 320; 30 Am. St. Rep. 376.]</p>

<p>1. Pardon—Constitutional Provisions.—The pardoning power is not inherent in any state officer or department, but the people, in adopting a Constitution, may confer the power on officers or departments as they see fit.</p> <p>2. Pardon—Constitutional Provisions.—Under Constitution, article 5, section 5, declaring that the Governor shall have power to grant pardon after conviction on such conditions and with such restrictions and limitations as may be provided by law, Penal Code of 1913, sections 1301, 1302, creating a board of pardons with exclusive power to pass on and recommend pardons, and declaring that no pardon shall be granted by the Governor unless recommended by the board, adopted by the people at a referendum, is valid.</p> <p>3. Constitutional Law—Statutes—Validity.—The court will sustain a statute, if possible, and, if it entertains any doubt of its invalidity, it will resolve the doubt in its favor and sustain it.</p> <p>4. Constitutional Law—Constitutional Provisions—Construction. The court, in construing a constitutional provision, will, if possible, ascertain and give effect to the intention of the framers of the Constitution; and, where the language is plain and easily understood, it will be construed without extrinsie aid.</p> <p>[As to definition and effect of pardons, see note in 59 Am. Dec. 572. As to conditional pardons, see note in 111 Am. St. Rep. 108. As to power of Governor to pardon as confined to offenses against state, see note in Ann. Cas. 1914A, 484.]</p>

<p>1. Judgment — Process to Sustain — Publication — Prayer for Belief.—The faet that plaintiff, in a suit in which the defendant was served by publication, asks for relief, which cannot be given without personal service or appearance, does not prevent the court from acquiring jurisdiction by constructive service to grant the. relief that is proper on such service.</p> <p>2. Process—Service by Publication — Statutes — Validity.— Civil Code of 1913, paragraphs 447-451, providing for constructive service, which by their terms apply to all actions, are not for that reason invalid, when applied to an action in which constructive service is proper.</p> <p>3. Judgment—Process to Sustain — Publication.—.Personal Judgment.—Where the defendant is served only constructively, no personal judgment can be rendered, nor can the defendant be required to do some specific act, but the aetion must partake of an action in rem.</p> <p>4. Corporation^—“Certificate of Stock.”—“Certificates for corporate stock,” while in themselves property and transferable by indorsement, with the elements of negotiability, are not the shares of stoek, but merely evidence of their ownership.</p> <p>5. Corporations—“Share of Capital Stock”—Nature of Property. A share of capital stock is an intangible thing, technically known as a chose in aetion, being the interest or right which the owner has in the management of the corporation, in its surplus profits, and in its assets after dissolution.</p> <p>6. Courts — Jurisdiction — Situs of Property.—All property must have a situs which governs the jurisdiction of courts over it; that of real property being always fixed, that of tangible chattels being the place where they happen to be, and that of ordinary choses in action being the owner’s domicile.</p> <p>7. Courts—Jurisdiction—Situs of Property—Shares of Stock.— The situs of shares of stoek in a corporation, as distinguished from the certificate, for the purpose of determining the jurisdiction of courts, is in the jurisdiction where the corporation was created, whose laws alone give the shares any existence, though the owner thereof is a nonresident of that jurisdiction.</p> <p>8. Corporations—Service by Publication—Nature oe Action—Ownership of Corporate Stock.—An aetion to determine the ownership of shares of stock in a domestic corporation, which have their situs immovably fixed within the state, is so far an action in rem that the courts of the state may bind all parties as to the ownership thereof, though such courts acquire jurisdiction over some of the claimants only by constructive service, especially in view of Civil Code of 1913, paragraph 552, providing that a decree for the delivery of personal property may pass the title thereto without any act to be done on the part of the party against whom the decree is rendered.</p> <p>9. Corporations — Service by Publication — Nature oe Action — Seizure of Property—Corporate Stock.—Since such stock cannot be removed from the partial jurisdiction of the court by the owner, it is not necessary to the jurisdiction that it be seized under some process.</p> <p>10. Action—Nature—Actions in Bem—“Bight in Bem”—“Bight in Personam.”—Actions in rem apply to personal property as well as to realty, particularly to personal property like shares in corporate stock, which from its nature has a fixed situs, since primarily a “right in rem” is one available against persons generally, while a “right in personam” is one available exclusively against certain or determinate persons.</p> <p>11. Action—Nature—“Action Quasi in Bem”—“Action in Bem.”— Actions which seek to reach and dispose of property owned by the parties, or in which they have an interest, are not strietly “actions in rem,” which are for the purpose of disposing of the thing itself, without regard to the title of particular claims, but may be termed “actions quasi in rem.”</p> <p>12. Courts—Jurisdiction—Territorial Limits.—The courts of a state have jurisdiction over persons and property, coextensive with the limits of the state, and supreme, except as restrained by the federal Constitution.</p> <p>13. Constitutional Law — Due Process oe Law — Action Against Nonresident.—It is not contrary to the due process clause of the federal Constitution for a state court to take jurisdiction of an action directed against or only affecting property located within the state, if reasonable^otiee thereof is given to nonresident defendants.</p> <p>14. Corporations—Shares of Stock—Action to Determine Ownership—Jurisdiction—Parties.—In an action against a nonresident defendant to determine the ownership of shares of stoek in 'a domestic corporation, the failure to join the corporation as defendant, though it may render the deeree ineffectual, does not deprive the court of jurisdiction, under Civil Code of 1913, paragraphs 468 (4), 469, making a defect of parties a ground of demurrer or a defense by answer, and section 409 providing for the bringing in of additional parties necessary for a full determination of the controversy.</p> <p>15. Corporations—Shares of Stock—Action to Determine Ownership—Jurisdiction—Parties.—The fact that lis pendens does not apply to actions for corporate stock, and that such stock may therefore be sold to an innocent purchaser before trial, does not defeat the jurisdiction, of the court over an action against a nonresident defendant to determine the ownership of the stock of the domestic Corporation, since lis pendens does not affect the question of jurisdiction, but only of notice.</p> <p>[As to right of state to authorize entry of personal judgment on service of process on resident outside of state limits, see note in Ann. Cas. 1912D, 695. As to validity of statute providing for constructive service on nonresident or unknown claimants to land, see note in Ann. Cas. 1914D, 677. As to what are local and transitory actions,- see note in 22 Am. St.. Rep. 22. As to jurisdiction over citizens of another state or country, see note in 6 Am. St. Rep. 179. As to jurisdiction over foreign corporations, see notes in 85 Am. St. Rep. 905; 89 Am. St. Rep. 654.]</p>

J. C. Phillips, Judge. STATEMENT OF FACTS BY THE COURT. Appellant is the owner of land intervening between the Eastern Canal (Reclamation Service canal) and 40 acres of land owned by appellee. To irrigate his 40 acres appellee, according to-his complaint and evidence, obtained parol permission or license from appellant to make temporary ditches over and across the land of appellant. Two of such ditches were made and used for a short time, when appellant revoked the license.

<p>1. Mines and Minerals — Liens for Labor on Minino Claims — “Agent.”—Civil Code of 1901, paragraph 2904, giving miners lien for any sum unpaid, does not give a lien to miners unless the labor was done at request of the owner or his agent; and a purchaser, obtaining an option contract, with right to go on the mining claims and work and develop the same, is not an “agent,” and cannot authorize a lien for his employees.</p> <p>2. Constitutional Law—Impairing Obligation of Contracts—Statutes—Construction.—The amendment of Civil Code of 1901, paragraph 2904, by Laws of 1912, chapter -66, so as to give to employees of a purchaser of mining property under an option contract a lien for labor, cannot be given a retroactive operation, and cannot apply to an owner who gave an option prior to the amendment; for otherwise the amendment would impair the obligation of a contract, in violation of the state and federal Constitutions.</p> <p>[As to validity of mechanic’s lien laws, see note in Ann. Cas. 1912C, 339.]</p>