Volume 17 — Arizona Reports

J. C. Phillips, Judge. STATEMENT OP PACTS BY THE COURT. The appellee, as plaintiff, commenced this action' against the incorporated town of Tempe, the appellant, seeking to recover damages resulting from a breach of a contract alleged to have been entered into by the parties on June 1, 1912. A Copy of.■the contract was annexed to the complaint and considered as proven on the trial.

<p>1. Cancellation of Instruments — Ground for Cancellation. — Where the consideration for a note and mortgage wholly failed, the mortgagor is, the instruments remaining in the possession of the mortgagee, entitled to their cancellation, notwithstanding the parol evidence rule and the fact that such documents import a consideration.</p> <p>2. Cancellation of Instruments — Necessary Parties. — Where plaintiffs alone had executed a note secured by a mortgage, they could maintain a suit to cancel the instruments, consideration having failed, without joining others interested in the mortgaged property.</p> <p>3. Setoff and Counterclaim' — Subject Matter to-Counterclaim. — In a suit to caneel a note and mortgage, defendant cannot by* erosseomplaint set up a right of action under a contract to which others besides plaintiffs were parties.</p> <p>[As to right to set off partnership debt against claim by individual partner, see note in Ann. Cas. 1915C, 809.] •</p> <p>4. Appeal and Error — -Bill of Exceptions — Authentication.—An instrument indorsed “Bill of Exceptions and Statement of Facts,” authenticated only by appellant’s signature, is no part of the reeord and cannot be considered.</p>

<p>APPEAL from a judgment of the Superior Court of the County of Pima. W. A. O’Connor, Judge.</p>

<p>Taxation — Tax Sales — Effect.—Laws of 1903, No. 92, enacted for the collection, of all back taxes which had beeome delinquent for a period of five years before it took effect, and for the collection of delinquent taxes for each subsequent year, provides for a baek tax book for the five years next preceding 1903 in which is to be entered a. correct list of all lands on which taxes are due, together with the amounts uncollected. It also provides that all back taxes of whatever kind shall be extended in the back tax book, and that the collectors of the respective counties shall proceed to collect taxes contained in the baek tax book, and any person interested, or the owners of land contained in the baek tax book, may before the 31st of December, 1903, redeem such property by paying the amount of the original taxes with interest, provided that, if suit shall have been commenced, costs, in addition to the taxes and interest, must be paid. The act further provides that if on the 1st of January, 1904, any real estate on which back taxes are extended in the book shall remain unredeemed, it shall be the duty of the tax collector to enforce payment by suit in the name of the state, and for a baek tax book for each year subsequent to 1903. Held that, as statutes should be construed to give effect to the intent of the legislature, and avoid inconvenience, a sale of land for taxes delinquent for the year 1911, though held in 1912, after taxes for that year had become due, but before they had become delinquent, does not bar the state from collecting by subsequent suit and sale taxes for 1912, particularly where the purchaser knew that such taxes were due and unpaid; for, as taxes become due early in the year, though they do not become delinquent until the last of the year, the state, if precluded from selling property for past taxes under pain of losing taxes for the year of the sale, would be unable to collect revenue.</p> <p>[As to power of legislature to make tax deeds conclusive, see note in á Am. St. Rep. 187.]</p>

<p>APPEAL from a judgment of the Superior Court of the County of Cochise. Fred Sutter, Judge.</p>

<p>APPEAL from a judgment of the Superior Court of the County of Cochise. A. C. Lockwood, Judge.</p>

<p>Appeal and Error — Dismissal op Appeal — Grounds—Failure to Give Notice. — Where the record fails to show that notice of appeal was given in open court and entered on the minutes or by written notice served on the adverse party as required by Civil Code of 1913, paragraph 1234, the supreme court has no jurisdiction of the appeal, and it must be dismissed.</p>

<p>1. Appeal and Error — Transcript op Testimony — Authentication— Notice to Appellee. — Where ¡appellant failed to give appellee notice of the filing of the transcript of the reporter’s notes or to have them remain on file with the clerk for 20 days before being presented to the judge for authentication, the transcript must be stricken; since the appellee is thereby deprived of his right to call the judge’s attention to any error in the notes before they are approved.</p> <p>2. Appeal and Error — Assignments op Error — Objection—Waiver.— Assignments of error which are not sufficiently specific under the rules will nevertheless be considered where the appellee failed to comply with Civil Code of 1913, paragraph 1262, providing that the appellee, if he deems the assignments of error insufficient or defective in form, shall within ten days after the service of appellant’s brief serve a written notice setting forth his objections to the assignments, and thereafter the appellant may amend his assignments, and that any objection not specified in the notice shall be deemed waived by the appellee.</p> <p>3. Appeal and Error — Assignments op Error — Waiver—-Failure to Argue. — Assignments of error not argued in the brief will be deemed waived.</p> <p>4. Forcible Entry and Detainer — Judgment—¡Condition.—In an action for forcible entry and detainer, where the" jury rendered a verdict of guilty, the court can only give judgment for the restitution of the premises and for costs and rent due, and a condition in such judgment that the plaintiff recover possession only on payment to the defendant of a sum of money is irregular and voidable on direct attack.</p> <p>5. Appeal and Error — Modification of Judgment — Provision Favorable to Appellant. — Where defendant assigned as error the insertion of such condition in the judgment, the judgment will be modified by directing the condition to be stricken therefrom, though apparently it was in favor of defendant.</p> <p>6. Appeal and Error — Review—Scope of Appeal. — On an appeal from a judgment and order defying a new trial in forcible entry and detainer, error cannot be assigned to the form of the writ of restitution issued under the judgment.</p> <p>7. Judgment — Conclusiveness—Matters Concluded — Forcible Entrt and Detainer — Removal of Buildings. — In forcible entry and detainer the only issue is plaintiff’s right to recover possession of the premises described in the complaint, and a judgment for him does not bar proper proceedings by defendant to enforce his right to remove the buildings therefrom-.</p>

<p>APPEAL from a judgment of the Superior Court of the County of Cochise. A. C. Lockwood, Judge.</p>

<p>Taxation — “Mining Claim” — “Mine.”—A “mining claim” is possessory interest which the locator has under Revised Statutes of the United States, section 2322 (U. S. Comp. Stats. 1913, sec. 4618), as distinguished from a “mine,” which indicates that the miner is the owner of the soil, being vendible property distinet from -the land itself, and declared by Civil Code of 1913, paragraph 4847, for purpose of taxation, included in the term “personal property,” may, without taxing property of the United States, which is exempt, be taxed, and, when nonproductive, have its value determined, for such purpose, as provided by paragraph 4983, as though it were real estate.</p> <p>[As to holder of inchoate title to publie land as “freeholder,” see note in Ann. Cas. 1913D, 328.]</p>

<p>APPEAL from a judgment of the Superior Court of the County of Gila. G. W. Shute, Judge.</p>

W. F. Cooper, Judge. statement op pacts by the court. The appellant commenced this action, alleging, in-brief, that he claimed the ownership of an equitable estate in certain described patented >mines, amounting to an undivided one-twentieth part of the premises, describing them, and alleging “that he is credibly informed and believes that the above-named defendant [Empire Zinc Company] makes some claims adverse to the complaint and adverse to the plaintiff and the…

<p>Appeal and Error — Appeal Bond — Parties Bequired to Give Bond.— Under Civil Code of 1913, paragraph 1236, providing that the party appealing shall file an appeal bond or undertaking, paragraph 1249, providing that no bond shall be required upon an appeal by the state or any county thereof, or by the corporation commission, tax commission or any other state board or commission, or by any state or county officer in his official capacity, and paragraph 1250, providing that executors, administrators, guardians, or trustees in bankruptcy need not give a bond on appeal, a town is not excepted in terms nor by implication, from the general rule that all parties appealing shall give a bond, and the exemptions, being in derogation of the general rule, may not be extended to inelude cases not within the terms thereof.</p>

<p>APPEAL from a judgment of the Superior Court of the County of Cochise. A. C. Lockwood, Judge.</p>

<p>APPEAL from a judgment of the Superior Court of the County of Cochise. A. C. Lockwood, Judge.</p>

<p>1. Attachment — Conditions Precedent — Statutory Provisions.— Under Civil Code of 1913, paragraph 1393, providing that, in an action on any contract for payment of money not fully secured by mortgage, plaintiff may obtain an attachment of property as security, a plaintiff, suing on a note, may obtain an attachment where the chattel mortgage given to secure it is void, or where the mortgage, if valid, does not fully secure the note.</p> <p>2. Bills and Notes — Chattel Mortgage — Validity of Note. — A note and a chattel mortgage securing it are independent, and the loss of the security, not chargeable to the holder of the note, does not prevent recovery on the note.</p> <p>[As to mortgage as “security,” see note in Ann. Cas. 1914D, 625.]</p> <p>3. Bills and Notes — Chattel Mortgage — Validity of Note. — A note, given for money borrowed, is not invalid because a chattel mortgage securing it stipulates that the mortgagor shall, during the life of the mortgage, purchase from the mortgagee all ice, beer and other products handled and sold by the mortgagee, which the mortgagor may use in his retail saloon business, though it be assumed that the stipulation is invalid as contrary to publie poliey.</p>

<p>Replevin — Complaint—Sufficiency.—A complaint in replevin of cattle, which alleges that plaintiff was the owner and in the actual possession, and entitled to the possession, of the cattle, that defendants without just cause unlawfully took possession of the cattle without consent of the plaintiff, and ever since unlawfully withhold the cattle from plaintiff, to his damage in a specified sum, and which avers a demand for the possession, and a refusal, and which prays for the possession of the cattle and for damages for their detention, states a cause of action as against a demurrer.</p> <p>[As to necessity and sufficiency of allegation as to ownership or right of possession in complaint in replevin, see note in Ann. Cas. 1912A, 333.]</p>

<p>1. Bills and Notes — Pleading—Payment.—The defense of payment of a note is a special one, which must be specifically pleaded to be relied upon.</p> <p>2. Bills and Notes — Actions—Pleading—Payment—Suittciency.— The complaint alleged a note had not been paid. The answer averred that if the note ever was executed and delivered it had been fully paid and discharged. Civil Code of 1913, paragraph 419, declares that an answer shall consist of a concise statement of faets constituting a defense. Paragraph 483 declares that if defendant desires to prove any payment it shall be plainly described. Held, that the averment of payment was not a concise statement of the nature of the defense, but was a mere allegation of the conclusion, and evidence of payment was not admissible.</p> <p>[As to necessity for pleading payment as defense to action for existing balance, see note in Ann. Cas. 1912B, 487.]</p>

<p>APPEAL from a judgment of the Superior Court of the County of Pima. Wm. P. Cooper, Judge.</p>

<p>1. Appeal and Error — Review—Extent—Motion to Set Aside Appointment of Guardian ad Litem. — Where the denial of defendant’s motion to set aside the appointment of a guardian ad litem for the plaintiff was assigned as error, and such motion was not verified, only the grounds for the setting aside of the appointment apparent on the face of the papers were properly before the court for review.</p> <p>2. Infants — Actions—Guardian ad Litem — Petition for Appointment.- — -Where the petition for the appointment of a guardian ad litem failed to show facts justifying sueh appointment, but made reference to the complaint, in a suit by the infant, setting forth the cause of action, which, taken in connection with the fact of infancy set out in the petition, showed the necessity of the appointment of such guardian, the appointment was proper.</p> <p>3. Infants — Actions—Guardian ad Litem — Consent of Guardians— Under Civil Code of 1913, paragraph 412, authorizing the court to appoint a guardian ad litem on petition of any relative or friend of a minor, or, if such minor is over 14 years, on his own petition, for the purpose of bringing a eivil action if the minor shall desire, and paragraph 414, providing that no person shall be appointed guardian ad litem except upon his written consent, where plaintiff’s guardian ad litem, at the time of his appointment had not given his consent in writing, but thereafter actively entered upon the discharge of the duties imposed by his appointment by filing and prosecuting suit, he voluntarily appeared and submitted to the jurisdiction of the cotirt, and was amenable to its orders and judgments, so that any judgment rendered was binding on the ward, and his failure to aeeept his appointment was no ground for reversal of judgment for the infant.</p> <p>4. Infants — Actions—Guardian ad Litem — -Request to Act — Consent of Guardian. — Where the application for the appointment of a guardian ad litem for an infant plaintiff over 14 years old was not made by the minor, as permitted by statute, and such guardian did not consent to act in writing, but, before the case was submitted to the jury, such plaintiff filed a request for the incumbent’s appointment as his guardian ad litem, and the guardian filed his written consent to act, any error in the appointment was cured before verdict and judgment, since the defect was not jurisdictional.</p> <p>5. Appeal and Error — Reversal—Technical Error. — Under Constitution, article 6, section 22, forbidding the reversal of judgment for téehnieal error when, on the whole case, substantial justice has been done, the court could not reverse a verdict for an infant plaintiff in an action for personal injuries because, although such plaintiff was more than 14 years old, the application, as permitted by statute, for the appointment of his guardian ad litem had not been made by him nor had the guardian filed his written consent to act, until immediately before the case was submitted to the jury.</p> <p>6. Infants — Release of Claim for Tort — Voidability.—Where an infant had a claim for personal injuries against his employer and released such employer for $820, such infant could thereafter repudiate sueh release by bringing suit for the injury, since all the contracts of an infant, except for necessaries, are voidable at his election, and may be disaffirmed before reaching his majority, although he is incompetent to affirm until sueh time.</p> <p>7. Infants — Release of Claim for Tort — Disaffirmance by Suit Brought. — The bringing of suit by an infant plaintiff was a sufficient disaffirmance by him of a previously executed release of his right to sue for personal injuries.</p> <p>8. Infants — Action by Infant — Evidence—Satisfaction of Infant With Release. — In an action by an infant for personal injuries brought in disaffirmance of his release of liability, evidence of admissions of satisfaction with the settlement made by the plaintiff after the bringing of suit was inadmissible, since the admissions were of one legally incapable of protecting his rights, while the subject matter of the suit was in the hands of a guardian ad litem under the supervision of the court.</p> <p>[As to compromise and settlement of claim in hands of guardian ad litem, see note in 97 Am. St. Rep. 997.]</p> <p>9. Infants — Release of Claim for Tort — Disaffirmance—Return of Consideration. — Where an infant had a claim for personal injuries against his employer, and executed a release to such employer for $820, the sum being paid to his father, sueh infant thereafter disaffirming the settlement by bringing suit, the return of the consideration for the settlement was not a condition precedent to the maintenance of the action by the plaintiff, since an infant can be required to return on disaffirmance only what he has kept intact of what he received on his contract, while he can be required to account only for so much of the consideration received by him as has been used for purposes the court would sanction as being necessary for him; so that, in view of the fact that plaintiff received none of the release money, an instruction that the jury should credit on any vordiet tie sum paid for the release by the defendant was even, more favorable to such defendant than the law authorized.</p> <p>10. Infants — Action in Disaffirmance of Release — Basis—Fraud.— Where an infant has executed a release of a elaim for personal injuries, it is not a condition precedent to the maintenance of suit by him in disaffirmance thereof that he should show that his assent and signature to the release were obtained by fraud and misrepresentations.</p>

<p>1. Criminal Law — Evidence—Judicial Notice. — Courts cannot take judicial notice of municipal ordinances and resolutions.</p> <p>2. Elections — Crimes — Information — Sufficiency. — Penal Code of 1913, section 36, declares that every person who willfully procures another to be registered as an elector of any county, city or precinct knowing such person is not qualified shall be punished. Civil Code of 1913, paragraph 1922, declares that the mayor and common council of any city shall have the power to provide for and require the registration of all voters. An information charged that accused, knowing her not to be a competent person, procured the registration of a named individual as an elector of a city. Penal Code of 1913, section 947, declares that in pleading a private statute or a right “derived” therefrom it is sufficient to refer to the statute. Held, that a conviction could not be had without proof of an ordinance requiring registration; the right to proeeed against accused, being “derived” from such ordinance.</p> <p>[As to the offense of illegal registration or voting “knowingly,” see note in Ann. Cas. 1912A, 436.]</p>

<p>APPEAL from a judgment of the Superior Court of the County of Gila. G. W. Shute, Judge.</p>

<p>APPEAL from a judgment of the Superior Court of the County of Pima. Wm. F. Cooper, Judge.</p>

<p>APPEAL from a judgment of the Superior Court of the County of Gila. G. W. Shute, Judge.</p>

<p>APPEAL from a judgment of tlie Superior Court of the County of Cochise. J. E. O’Connor, Judge.</p>

<p>APPEAL from a judgment of the Superior Court of the County of Gila. G. W. Shute, Judge.</p>

<p>1. Courts — Arizona Supreme Court — Jurisdictional Amount. — The notice of protest, on appeal from the ruling of the board of equalization to the superior court in a proceeding to reduce an assessment for taxation, must set forth the reasons why appellant objects, and state the amount he considers as excessive, or wherein it is erroneous. The protest was against the payment of taxes for 1914 as levied or assessed by the county, and on appeal the levy was reduced from $484 to $326, a reduction of $157, whereupon the county appealed to the supreme court. Held that, as the validity of the tax was not and could not be questioned, but only the value or Quantity of the property assessed, the appeal was not within the exception permitting the appeal to the supreme court where the amount does, not exceed $200 unless involving the validity of a tax or assessment, but that, as the whole assessment of $484 was questioned, the amount in dispute brought the appeal within the supreme court’s jurisdiction.</p> <p>2. Taxation — Equalization—Appeal—Statutes — “Court” — “Final Judgment” — “Final Order” — “Order.”—Under Civil Code of 1913, paragraph 4887, containing the whole law of the subject, and providing a summary method for contesting an assessment for taxes, as fixed by the board of equalization, by a special proceeding with prescribed issues, procedure and form of judgment, but not providing for an appeal, there was no appeal to the supreme court from a final judgment of the superior court in such special proceeding on appeal from the county board of equalization, since under paragraph 1227, subdivision 1, -allowing an appeal to the supreme court from a final judgment entered in an action or special proceeding, commenced in the superior court or brought thereto from any other “court,” a board of equalization is not a “court,” and since subdivision 6, allowing an appeal from a final order affecting a substantial right, made in special proceedings, applies to a final order in a special proceeding “commenced in the superior court or brought into a superior court from any other court,” and “final order” as used therein is not a “final judgment” as used in paragraph 1228, defining “final judgment” as a judgment entered in an action originating in the superior court, or one brought to that court, and defining every other order of a superior court as an “order.”</p> <p>3. Constitutional Law — Self-executing Provisions — Board of Equalization — Appeal—Constitutional Provisions.— Constitution, article 6, section 4, giving the supreme court appellate jurisdiction in all actions and proceedings, except in civil actions at law for recovery of money or personal property where the original amount in controversy and the value of the property does not exceed $200, unless the action involves the validity of a tax, etc., while conferring an appellate jurisdiction which the legislature cannot take away, is not self-executing, but may lie - dormant, and, in the absence of legislative provisions defining the procedure or method of bringing it before the court, gives the supreme court no jurisdiction of a county’s appeal from a final judgment of a county superior court, reducing an assessment of the board of equalization by $157.</p> <p>[As to .self-executing constitutional provisions as to taxation, see note in Ann. Cas. 1914C, 1116.]</p> <p>4. Taxation — Equalization—Appeal—Constitutional and Statutory Provisions. — Under Constitution, article 9, section 11, providing that the manner of assessing, equalizing and levying taxes shall be such as prescribed by law, assessment of taxes and valuations of property are under supervision of the legislative department, and where it has provided that the property shall be listed and valued by assessors, and equalized by the board of equalization, and that a dissatisfied taxpayer may • appeal from the board to the superior court, but giving no appeal to the supreme court, the supreme court has no jurisdiction of an appeal from the superior court.</p> <p>5. Taxation — Equalization—Appeal of County. — Under Civil Code of 1913, paragraph 4887, containing the whole law on the subject and providing a summary method for contesting assessments for taxes as fixed by the board of equalization, but providing no appeal to the supreme court, the county can neither appeal from the decision of the board of equalization nor from the verdict - and judgment on the taxpayer’s appeal to the superior court.</p>

<p>1. New Trial — Grounds—Newly Discovered Evidence. — Plaintiff brought suit to recover certain shares of stoek, on the ground that the owner thereof had failed to comply with his agreement to finance the corporation. Defendant claimed that the stock was delivered to him outright as a bonus. Held, that newly discovered evidence, consisting of statements in a letter that plaintiff’s actions had been criticised for giving defendant the stoek before fulfilling his agreement, was not sufficient to justify a new trial after verdict for defendant; it not tending to explain the terms of the contract but being merely in impeachment.</p> <p>[As to motion for new trial on ground of newly discovered evidence, see note in Ann. Oas. 1913E, 147.]</p> <p>2. Evidence — Admissions—By Parties. — -In an action to recover corporate stock, evidence that plaintiff stated that he was obliged to give defendant the stock as a bonus at the time of the execution of the contract was admissible as showing the construction of the contract by a party thereto, and as being a statement against interest.</p> <p>3. New Trial — Grounds — Contradicting Testimony. — Plaintiff brought suit to recover corporate stock, alleging that such stoek was delivered to defendant in consideration of a contract to finance the corporation. A motion for a new trial was made by plaintiff on the ground of newly discovered evidence, consisting of a statement in a letter that defendant’s witness criticised plaintiff’s actions in giving defendant the stock before his agreement was fulfilled. Held, that sueh statement, if substantiated, would not sufficiently contradict evidence already given as to' the contract to constitute ground for a new trial.</p>

<p>1. Action — Causes of Action — Joinder — Jurisdiction — Lumping Penalties. — Under Civil Code of 1901, paragraphs 1280 and 1291, providing that the complaint may contain several different causes of action, and that only such causes of action may be joined as are capable of the same character of relief, actions ex contractu, not being joinable with actions ex delicto, and actions to recover for injuries to the person, to property, or to character not being join-able, where the state sued to recover the penalty assessed upon any eleetrie light or power company, by Laws of 1912, chapter 50, that should permit any employee about its plant to be on duty more than 8 hours in 24, under penalty of $100 fine for each day’s violation of the act, the statute providing that the suit for such penalty may be instituted in any court of the state having competent jurisdiction, the recovery sought being for 15 violations, separately stated in the complaint, the superior court had jurisdiction of the suit, since the several penalties sued for were grounded in the same right, the parties and the causes of action the same, and eaeh capable of the same character of relief.</p> <p>2. Courts — Jurisdiction—Amount—Joinder of Causes. — Constitution, article 6, section 9, provides that the number of justices of the peace shall be provided by law, and that their jurisdiction shall not trench on that of any court of reeord, exeept that they shall have concurrent jurisdiction with the superior court where the amount of damage claimed does not exeeed $200. Article, 6, section 6, provides that the superior court shall have original jurisdiction in all eases in which the demand or the value of the property amounts to $200 exclusive of interest and costs. The state sued a corporation in the superior court to recover penalties aggregating $1,500 for 15 violations of Laws of 1912, chapter 50, forbidding any corporation operating an electrie light or power plant to permit any employee about its plant to be on duty more than eight hours a day. Seld, that the superior court had jurisdiction, although the individual penalty assessed for each violation was within the -jurisdictional limit of justice courts, since to exclude the jurisdiction of the superior court the grant of jurisdiction to another court must be exclusive and not merely concurrent.</p> <p>3. Trial — Verdict—Number of Jurors Required to Concur — Actions for Penalty. — Under Civil Code of 1901, paragraph 1413, providing that in civil cases, exeept those cognizable at common law, 9 of the 12 jurors may return a verdict, in an action by the state for the penalty under Laws of 1912, chapter 50, forbidding any eleetric light or power concern to work the employees in its plant more than 8 hours in each 24, a verdict by 9 jurors was bad, the suit being one cognizable at common law.</p> <p>[As to whether jury in criminal case may be more or less than twelve, see note in Ann. Cas. 1914A, 872.]</p> <p>4. Constitutional Law — Statutes —• Vested Rights — Verdict by Nine Jurors — Validity—Retroactive Operation. — Although action is begun, and issue joined, before the adoption of a law authorizing nine jurors in a civil case to render a verdict, subh verdict is valid, since there is no vested right in the modes of procedure.</p>

<p>1. Statutes — Construction—Retroactive Effect. — Statutes will not be given a retroactive effect unless it clearly appears that the legislature so intended, and the intention is manifest, or the exigencies of the case compelling.</p> <p>[As to retrospective laws, see note in 120 Am. St. Rep. 468.]</p> <p>2. Highways- — Road Districts — Statutes — Amendment.— The reenactment, in 1912 (Civ. Code 1913), of Laws of 1907, chapter 66, by which the former provisions for the organization of road districts were substantially re-enacted, and there were added thereto paragraph 5115, providing that no road district should be more than one mile in width and ten miles in length, and paragraph 5116, declaring that road districts formed under existing statutes and in conformity with the chapter were valid, did not abolish a road district theretofore legally established whose dimensions exceeded the limits prescribed by paragraph 5115.</p> <p>3. Highways — Road Districts — Collateral Attack. — A taxpayer cannot collaterally attack the legality of a road district in a suit to enjoin the collection of taxes by it.</p>

<p>1. Appeal and Error — Former Judgment — Law op Case. — A judgment on a former appeal becomes the law of the case on a subsequent appeal.</p> <p>2. Estoppel — Equitable Estoppel. — Where plaintiff refused to allow defendant to exercise his option to convey part of mining claims, the fact that defendant did not tender a deed duly executed cannot be taken advantage of, as the law does not require a vain thing.</p> <p>[As to what is equitable estoppel, see note in 134 Am. St. Rep. 172.]</p> <p>3. Vendor and Purchaser — Mining Claims — Sale—Performance—■ Waiver. — Plaintiff contracted to convey certain mining claims to defendant, payments to be made at stipulated times. Thereafter the two co-operated in litigation between plaintiff and a third person to defeat an adverse claim. The contract authorized defendant to convey plaintiff an interest in the claims in lieu of the last payment. Defendant was in possession at the time the last payment became due, and plaintiff did not demand performance or formally declare a forfeiture. Held, that strict performance of the contract was waived, and plaintiff could not thereafter forfeit defendant’s rights without giving him an opportunity to pay the balanee of the price or to convey the interest specified.</p>

<p>APPEAL from a judgment of the Superior Court of the County of Cochise. A. C. Lockwood, Judge.</p>

<p>APPEAL from a judgment of the Superior Court of the County of Graham. A. G. McAlister, Judge.</p>

<p>1. Bills and Notes — “Negotiable Instrument” — What is. — A note payable to the maker’s own order in a specified sum, with interest and reasonable attorney’s fee, and indorsed by the maker in blank, is a negotiable instrument.</p> <p>[As to what is a negotiable note, see note in Ann. Cas. 1912D, 4.]</p> <p>2. Corporations — Stock Subscription Contracts — Fraud.— A contract to subscribe for the stock of a corporation, induced by fraudulent representations of the value of the assets of the corporation and relied on by the subscriber, executing a note for the price, may be rescinded and the note repudiated because of failure of consideration.</p> <p>3. Corporations — Stock Subscription Contracts — Fraud.—Evidence held to justify a finding that one was induced, by fraudulent representations of the value of the assets of a corporation, to subscribe for stock and give a note for the price.</p> <p>4. Bills and Notes — Holder in Due Course — Evidence.—Evidence held not to show that the holder of a note or some person under whom he claimed acquired title in due course, as required by negotiable instrument law (Civ. Code 1913, par. 4204), to authorize a recovery against the maker, pleading and proving failure of consideration and fraud inducing the execution of the note.</p> <p>5. Bells and Notes — “Payable to Bearer.” — A note payable to the maker and indorsed by him in blank, whieh indorsement is the last one, is payable to bearer, within negotiable instrument law (Civ. Code 1913, par. 4154, subd. 5), declaring that an instrument is payable to bearer when the only or last indorsement is an indorsement in blank.</p> <p>6. Corporations — Stock Subscription Contracts — Performance.—A contract to subscribe for stock of a corporation is not performed by the issuance of stock of a subsequent corporation, acquiring the assets of the former corporation.</p>

<p>1. Setoff and Counterclaim — Actions by Assignee — Defenses. — ■ Ordinarily, a party, when sued on a contract for services by the party rendering them or his assignee, may plead in offset any damages sustained by the negligent performance of the contract.</p> <p>2. Carriers — Actions fob Freight — Parties—Initial Carrier. — In an action by the terminal carrier for freight charges on a shipment of livestock, including charges advanced by it to the initial carrier, where the shipper claimed that the stock was injured by the negligence of the initial carrier, the initial carrier is not a necessary party. ,</p> <p>[As to liability of initial carrier of livestock for negligence or torts of connecting carrier, see note in 106 Am. St. Rep. 609.J</p>

<p>APPEAL from a judgment of the Superior Court of the County of Gila. G. W. Shute, Judge.</p>

<p>APPEAL from a judgment of the Superior Court of the County of Maricopa. R. C. Stanford, Judge.</p>

<p>APPEAL from a judgment of the Superior Court of the County of Cochise. A. C. Lockwood, Judge.</p>

<p>Criminal Law — Appeal and Error — Time op Appeal. — The right to appeal being purely statutory, and conferring no jurisdiction on the supreme court where not exercised within the time prescribed, jurisdiction was not conferred by attempting to appeal from a conviction for murder after the statutory time, notwithstanding Penal Code of 1913, paragraph 1164, providing that no appeal to the supreme court shall be dismissed if sufficient matter or substance be contained in the record to enable the court to decide the ease on its merits.</p>

<p>APPEAL from a judgment of the Superior Court of the County of Cochise. A. C. Lockwood, Judge.</p>

<p>APPEAL from a judgment of the Superior Court of the County of Gila. G. W. Shute, Judge.</p>

C. Phillips, Judge. STATEMENT OF FACTS BY THE COURT. The appellant is charged and convicted of the willful and deliberate murder of Carl Peterson, committed on the ninth day of September, 1912, by crushing his head with an iron bar or other blunt instrument. The jury returned a verdict of guilty of murder of the first degree and fixed the punishment at death.

<p>APPEAL from the Superior Court of the County of Maricopa. J. C. Phillips, Judge.</p>

<p>APPEAL from a judgment of the Superior Court of the County of Greenlee. F. B. Laine, Judge.</p>

<p>APPEAL from a judgment of the Superior Court of the County of Cochise. A. C. Lockwood, Judge.</p>

<p>1. Waters and Watercourses — Surface Waters. — The owner of lower premises is not bound to permit tbe flow of surface and flood waters over it, but may, by improvements, embankments, etc., prevent the flow from the upper premises.</p> <p>[As to diminishing or impeding surface water flowing upon one’s land, see note in 85 Am. St. Rep. 715.]</p> <p>2. Waters and Watercourses — Surface Waters — Injunction.—In an action to enjoin defendant, a lower adjoining owner, from constructing embankments which stopped and pooled the surface water on the plaintiff's higher premises, where it was found that the .“plaintiff has permitted manure and other filth to accumulate on his premises and to fall on to defendant’s lot and walk, and to be washed by the rains on to the walk and premises, plaintiff, not being himself free from fault, was not entitled to enjoin defendant.</p> <p>3. Appeal and Error — Findings — Conclusiveness. —Where the evidence taken at the trial was not made a part of the record, the findings of fact must be treated by the supreme court as true, and as fully supported by the evidence.</p>

<p>1. Corporations — Interlocking Directorate — Ratification of Contracts. — A smelting company contracted with a mining company to make advances to it, to be paid by the mining company out of the first net proceeds of the ores of the mining company treated by the smelting company. Thereafter, at a time when two of the smelting company’s directors were directors of the mining company, which had five directors, and when the board of directors of the mining company were under the control of the directors of the smelting company, the mining company gave a note for the advanees, which was afterward renewed and secured by a mortgage. There was no intimation that the smelting company’s control of the mining company’s board of directors was obtained by undue, unfair or fraudulent means, and when the renewal note was given, none of the directors of the smelting company were directors of the mining company. Held, that the renewal of the original indebtedness by a board of directors entirely disconnected with the smelting company was a ratification of the indebtedness, especially in the absence of any showing that such board was not in full possession of all the faets and circumstances surrounding the original transaction, as contracts which are merely voidable, because contrary to good conscience or equity, may be ratified and thus established.</p> <p>2. Corporations — Interlocking Directorate — Validity op Contracts. Corporations having the same directors may make contracts with each other; and, when they are entirely honest and fair, the courts will enforce them.</p>

<p>1. Mechanics’ Liens — Proceedings to Foreclosure — Variance.—Civil Code of 1913, paragraph 3639, provides for liens for labor and materials furnished in the construction or repair of buildings, ■whether the work was done or articles furnished at the instance of the owner or his agent, and declares that every contractor shall be the agent of the owner, and the owner shall be liable for the reasonable value of labor or materials furnished to an agent. The complaint, seeking to foreclose a materialman’s lien, averred that the contract price and reasonable value of materials furnished under an express contract was a given sum. Seld, that, as the lien is for only the reasonable value of the materials furnished, recovery might be had on proof of their reasonable value, without proof of an express contract.</p> <p>2. Mechanics’ Liens — Enforcement — Eight of Lienholder. — Civil Code of T913, paragraph 3639, which is part of title 29, chapter 2, providing for mechanics’ liens and their enforcement, declares that the contractor shall be held to be the agent of the owner and .that the owner shall be liable for the reasonable value of labor and materials furnished t'o an agent. Seld, that a materialman, while entitled to a lien for the reasonable value of the property furnished, is not entitled to a personal judgment against the owner for the contract price.</p> <p>[As to right to personal judgment in action to enforce mechanic’s lien,, see note in Ann. Cas. 1912A, 129.]</p>

<p>APPEAL from an order of the Superior Court of the County of Cochise, granting a new trial. A. C. Lockwood, Judge.</p>

Carl G. Krook, Judge. STATEMENT OF FACTS BY THE COURT. This action was commenced by F. W. Piper, as the plaintiff, to recover of the defendant the agreed value of goods, wares and merchandise, viz., $96; to recover $225, money loaned at divers times and in divers sums; to recover for meals, hoard, bed and room furnished defendant, of the value of $72; to recover for washing, laundry work and mending furnished defendant, of the value of $10.

<p>APPEAL from a judgment of the Superior Court of the County of Graham. A. G. McAlister, Judge.</p>

<p>APPEAL from a judgment of the Superior Court of the County of Maricopa. John C. Phillips, Judge.</p>

<p>I. Appeal and Error — Brief on Appeal — Waiver of Errors. — Errors assigned on the trial below, but not argued in the brief on appeal, will be treated as waived.</p> <p>2. Judgment — Conclusiveness—Bes Adjudicata — Matters Concluded. Where defendants, in an action to quiet title to the M. K. mining claim, pleaded ownership of the S. C. and G.-H. claims adjoining the M. K. claim, and no issue was made as to a conflict in the boundaries of the three claims, and the judgment simply quieted title in the S. C. and G. H. claims in defendant without delineation of boundaries, but in a subsequent adverse action to try the right to possession of the M. claim, identical with the former M. K. claim, it appeared that the claims had always overlapped, the former judgment, though comprehensive enough to be res adjudicata as to the boundaries, was to that extent beyond the pleadings and'issues made in the former ease, so that, the question as to boundaries not having been decided therein,' the judgment is not on that question res adjudicata in the second action.</p> <p>3. Adverse Possession — Bequisites.—A finding of a jury that the defendants had been in possession of the property involved, without a finding that their possession was peaeeable and adverse, does not show adverse possession, since to show title the possession must be peaeeable, adverse, open and exclusive.</p>

<p>1. Counties- — Fiscal Management — Remedies op Taxpayers — Good Faith of Board.- — Under Civil Code of 1901, paragraph 955, providing that when supervisors without authority of law order money paid from the county treasury, they or the party in whose favor the order is made shall be responsible for the money and a penalty of 20 per cent, it is immaterial that the board aeted, in so paying out money, in a judicial matter, or that its members were acting in good faith; the only requisite to recovery being that the money shall have been paid “without authority of law.”</p> <p>2. Constitutional Law — Powers op Courts — Control op Legislature. That a decision compelled by provisions of a statute is harsh does not affect the obligation of the eourt to render it, the remedy being with the legislature.</p> <p>3. Counties — Officers—Clerk op Board op Supervisors — Additional Compensation — “Payment Without Authority op Law.” — Under Laws of 1905, chapter 11, providing that county officers shall receive the statutory compensation and no other, Civil Code of 1901, paragraph 2626, fixing a definite salary for the clerk of the board of supervisors, Civil Code of 1901, paragraph 3882, providing that the board of supervisors shall cause a true copy of the assessment-roll to be made and styled a duplicate assessment-roll, and Civil Code of 1901, paragraph 970, providing that the clerk of the board must perform all duties required by law or any rule or order of the board, the granting of additional compensation to the clerk for preparing a duplicate assessment-roll was a payment of money without authority of law, for which the taxpayer can recover.</p> <p>4. Counties — Officers—Clerk op Supervisors — Additional Compensation — Recovery—Defenses—-Bleading.—Where it appeared that money was illegally paid as additional compensation to the clerk of the board of supervisors for preparing a duplicate assessment-roll, the fact that he was acting as agent in the collection for another who actually prepared the roll, if not pleaded, cannot be offered in evidence, where the answer was a demurrer and general denial.</p> <p>5. -Counties — Public Buildings — Construction — Compensation op Architect. — Under Civil Code of 1901, paragraph 3560, providing that the board of supervisors shall securq plans and specifications for county buildings and advertise for same, stating the amount of premium to be awarded to the architect, paragraph 3561, providing that before an award of a premium to the architect shall be made the board shall require of him a bond upon certain conditions, and paragraph 3562, providing that all contracts entered into in violation of the last section are null and void, the payment to the architect of the premium before requiring a bond of him is a mere irregularity insufficient to show a payment in violation of law, so that the taxpayer cannot recover therefor.</p> <p>6. Counties — Fiscal Management —• Remedies op Taxpayers — Mere Irregularities — “Payment Without Authority oe Law.” — Civil Code of 1901, paragraph 955, providing that the board of supervisors shall be liable for amounts paid out without authority of law and for a penalty thereon of 20 per cent, should not be applied to cases where money is paid out due to a mere irregularity which causes no injury to the county or the taxpayers.</p> <p>[As to effect of allowance of invalid claims, see note in 55 Am. St. Rep. 208.]</p> <p>7. Counties — Fiscal Management — Conventions — Expenses — Powers op Board. — It is beyond the power of the board of supervisors to pay the expenses of a representative to a good roads convention, in spite of Civil Code of 1901, paragraph 1171, subdivisions 9 and 10, making county charges all contingent expenses necessarily incurred for the benefit of the county, and all sums directed to be raised and paid by law, and' paragraph 959, subdivision 3, giving the board power to make contracts necessary to the exercise of its powers, and money so paid may be recovered on suit of a' taxpayer under Civil Code of 1901, paragraph 955, providing that moneys paid out by the board of supervisors without authority of law, together with 20 per cent penalty thereon, are recoverable in the action of the taxpayer against the supervisors.</p> <p>8. Appeal and Error — Assignment op Cross-errors — Right to Assign. — -Where the appellee filed no notice of appeal nor appeal bond, he was not entitled to allege cross-errors upon matters not connected with the part of the judgment appealed from.</p>

<p>APPEAL from a judgment of the Superior Court of the County of Maricopa. J. C. Phillips, Judge.</p>

<p>I. New Trial — Motions tor — Order oe Continuance. — In view of preceding legislation, a motion for new trial, under Civil Code of 1913,. paragraph 591, declaring that all motions for new trial shall be-determined within 20 days after the rendition of judgment, and, if' not so determined, shall be deemed denied unless continued by order of court or stipulation, will be deemed denied where no order eon- • tinuing the motion was made within the 20-day period, notwithstand- - ing after the expiration of that time the court made an entry reciting that the motion for new trial had been argued and was taken under advisement; for in such ease the motion had already 'been denied by operation of law.</p> <p>2. New Trial — Grounds eor New Trial — Material Evidence. — A new trial cannot be granted under Civil Code of 1913, paragraph 584,. authorizing new trial on account of newly discovered evidence which could not with reasonable diligence have been produced at trial,,. where the existence of such evidence was known before trial, and plaintiff went to trial without it.</p> <p>[As to right to new trial on ground of newly discovered evidence not in existence when trial was had, see note in Arm. Cas. 1913E, 147.]</p>

<p>1. Guardian and Ward — Petition im Guardian’s Removal — Evidence. On a petition by a minor’s guardian ad, litem to remove tbe guardian of her estate on the ground of his presentation of illegal claims against the estate and his failure to support the ward, the ward’s letter to her grandmother a few days before the grandmother was given the custody of her person setting forth the ward’s mental state because of her removal to the guardian’s ranch was inadmissible, since such mental state Was not involved.</p> <p>2. Guardian and Ward — Powers oe Guardian — Custody and Care op Person and Estate. — Such letter was also inadmissible, as, under Civil Code of 1901, paragraph 1974, the guardian of the person of a minor ward as well as of her estate was charged with her custody and might fix her residence at any place in the state, and as, under paragraph 1973, his power over her personal property continued until otherwise ordered.</p> <p>3. Guardian and Ward — Custody—“De Pacto Guardian” — Statutes. The grandmother of a minor under general guardianship, after the court’s order taking her out of the custody of the general guardian, and giving her custody to such grandmother, became a special or “de facto guardian” of the person of such ward, charged by Civil Code of 1913, paragraph 1124, with her custody, support, education and with fixing her residence.</p> <p>4. Guardian and Ward — Removal—Performance of Trust — Statutes. A general guardian of a minor ward, charged by Civil Code of 1913, paragraph 1125, with keeping the ward’s property without sale thereof except by order of court, and by paragraph 1123 having power over the ward’s person and property until other order of court, who, after the court had given her custody to another, and who under paragraph 1127 might be removed for abuse of his trust or for failure or incapacity to perform his duties, would not be removed because of his presentation to the court of a claim against the estate, since that was no abuse of his trust; nor for failure to provide the ward a suitable house to live in and funds for common necessities, since after he was deprived of her custody that duty rested upon the special guardian.</p> <p>[As to removal of guardian as vesting in discretion of court, see note in Ann. Cas. 1912C, 868.]</p>

<p>Proceedings in contempt.</p>

<p>APPEAL from a judgment of the Superior Court of the County of Maricopa. J. C. Phillips, Judge.</p>

Frank O. Smith, Judge. STATEMENT OP PACTS BY THE COURT. The appellant commenced this action by filing his petition in quo warranto against the appellee to try the appellee’s title to the office of chief of police of the city of Prescott. Appellant bases his title to the office upon his election thereto at the general municipal election held on the first Tuesday in January, 1913, under the authority of Ordinance No. 8 of said city.

<p>APPEAL from a judgment of the Superior Court of the County of Maricopa. R. C. Stanford, Judge.</p>

<p>APPEAL from a judgment of the Superior Court of the ■•.County of Maricopa. R. C. Stanford, Judge.</p>

<p>1. Appeal and Error — Nature op Remedy. — The right to appeal in any-case depends wholly upon the statute permitting an appeal in sueh case.</p> <p>2. Appeal and Error — Appealable Orders — “Pinal Order” — Demurrer — Plea in Bar. — Civil Code of 1913, paragraph 1227, provides for an appeal from (1) final judgments in actions in the superior court; (2) from certain enumerated orders; (5) from orders affecting a substantial right and determining the action and preventing judgment from which an appeal might be taken. Paragraph 1230 provides that, on appeal from a final judgment the supreme court may Teview any intermediate order involving the' merits and necessarily affecting the judgment. Paragraph 1231 requires ■ the supreme court to review all orders assigned as error only upon appeals from a final judgment. Paragraph 509 provides that all issues of law arising on the pleadings and all pleas in abatement or which do not go to the merits shall be disposed of by the court before trial on the merits. In an action for an accounting, from OTders overruling defendant’s general and special demurrer and disallowing his plea in bar, he appealed. Held, that while the orders appealed from determined the issues of law raised by the pleading applicable to the facts, they left the questions of fact unsettled, and were intermediate orders in contemplation of the trial on the merits, and not final appealable orders.</p>

<p>I. Pleading — Demurrer.—Where a complaint stated a good cause of action in quantum meruit for services, and quantum, valebant for supplies furnished, a general demurrer must be overruled.</p> <p>2. Appeal and Error — Review—Harmless Error. — The filing of an unnecessary reply is a technical defect which will not, under Constitution, article 6, section 22, warrant reversal.</p> <p>3. Frauds, Statute of — Tenancies from Year to Year — Implied Tenancy. — Where an oral agreement for a lease for five years was made, and the tenant went into possession under the agreement and continued in possession, but the parties were unable to agree upon the terms of the written lease, .which was to be executed, no-implied tenancy for a yearly term was created, the oral ágreenient for the lease being void under the statute of frauds, there-being no meeting of the minds as to the covenants governing such tenancy.</p> <p>4. Frauds, Statute of — Lease—Breach of Oral Agreement — Recovery for Labor. — Where defendant orally agreed to lease his premises to plaintiff for five years, and plaintiff 'entered on the premises, cultivating and improving the same, and defendant refused to execute the lease, and demanded possession at the end of the year, plaintiff could recover the reasonable value of his services, together with the value of moneys expended for supplies necessary to cultivate the land.</p> <p>[As to landlord’s duty to put tenant in possession, see note in 134 Am. St. Rep. 916.]</p> <p>5. Compromise and Settlement — Effect of Same. — Where, though an. equal division of the erops was agreed on, plaintiff declined to accept a share of the crops in payment for his services, he may- recover, their monetary value.</p> <p>6. Frauds, Statute of — Implied Agreements — Actions.—Plaintiff might recover the value of the services rendered up to the time that he was ousted from the premises, though the lessor prior to that time informed plaintiff that he would not’ perform the agreement.</p> <p>7. Appeal and Error — Review—Verdict.—A verdict supported by evidence will not be disturbed on appeal.</p>

<p>1. Criminal Law — Appeal—Record—Sufficiency.—Under Civil Code of 1913, paragraph 614, a reporter’s, transcript of the evidence cannot be considered as such, where not certified by the trial judge as correct; so an assignment depending on the evidence cannot be reviewed.</p> <p>2. Criminal Law — Appeal—Record—Sufficiency.—A reporter’s transcript of the evidence, not authenticated by the trial judge or certified as correct by the parties, cannot be considered as a bill of exceptions or statement of facts; so an assignment depending on evidence cannot be reviewed.</p>

<p>Bills and Notes — Negotiable Instruments — Conditional Promise.— To an ordinary promissory note there was added a notation under the maker’s signature, “for payment under contract of even date.” Civil Code of 1913, paragraph 4146, provides that a negotiable instrument must contain an unconditional promise or order to pay a sum certain in money, while paragraph 4148 declares that there may be inserted in a promissory note, without destroying its negotiability, a statement of the transaction whieh gives rise to the instrument. Held, that as the instrument was otherwise negotiable, the notation must be construed as a mere statement or reference to a transaction for the purpose of identification, and that the collection of the instrument was not made to depend upon the maker’s performance of the contract, this being particularly true in view of the fact that the contract called for the execution of promissory notes, which are always negotiable.</p> <p>[As to what is a negotiable note, see note in Ann. Cas. 1912D, 4.]</p>

<p>‘ APPEAL from a judgment of the Superior Court of the County of Cochise. A. C. Lockwood, Judge.</p>

<p>APPEAL from a judgment of the Superior Court of the County of Greenlee. A. G. McAlister, Judge.</p>

<p>APPEAL.from a judgment of the Superior Court of the County of Maricopa. R. C. Stanford, Judge.</p>

<p>1. Commerce — Intoxicating Liquors — Interstate Commerce — Prohibition. — The Webb-Kenyon Act (Act Cong. March 1, 1913, c. 90, 37 Stat. 699 [U. S. Comp. Stats. 1913, sec. 8739])-, having divested intoxicating liquors of their interstate character, they become subject to the state police power, and Constitution, article 23, section 1, prohibiting the disposal or introduction into the state of intoxicating liquors, is valid, not being in interference with interstate commerce, notwithstanding Congress alone can regulate such comnjpree.</p> <p>2. Intoxicating Liquors — Offenses—Introduction into State. — As Constitution, article 23, section 1, prohibiting the sale of intoxicating liquors or the introduction into the state, does not make the drinking of intoxicants an offense, the introduction into the state of intoxicating liquors intended for accused’s own use is not an offense, and the fact that they were intended for his own use may be shown as a defense.</p> <p>3. Indictment and Information — Duplicity—“Bring”—“Introduce.” An information charging that accused did unlawfully “bring” and “introduce” intoxicating liquor into the state from outside is not duplicitous as charging the offense of bringing, and the offense of introducing, intoxicating liquor into the state, for in view of Penal Code, section 941, requiring words to be construed in their usual acceptance, the two words must be construed as synonymous, charging the single offense, denounced by Constitution, article 23, section 1, of introducing intoxicating liquor into the state.</p> <p>4. Indictment and Information — Negative Offenses. — As Constitution, article 23, section 1, prohibiting the bringing into the state of intoxicating liquors, does not specifically except intoxicants intended for personal use, though the bringing of such liquors is not an offense, an information charging the bringing into the state of intoxicants need not negative that they were intended for personal use; that being a matter of defense to be urged.</p> <p>6. Intoxicating Liquors — Offenses — Information — Sufficiency. Under Penal Code of 1913, sections 943, 944, requiring words in an information to be construed in their ordinary sense, and providing that no information is insufficient by reason of any defect in form whieh does not tend to the prejudice of a substantial right of the defendant, an information charging that accused on or about a certain day before the filing of the information did then and there unlawfully bring and introduce into the state, from outside, intoxicating liquors, to wit, one quart of wine, is sufficient to state an offense under Constitution article 23, section 1, prohibiting the introduction into the state of intoxicants, for it apprises accused of the eharge against him.</p> <p>6. Intoxicating Liquors — Offenses—Defenses.—One bringing intoxicants into the state does so at his peril, it being a matter for the jury to determine whether they were intended for his own use.</p> <p>[As to place of sale of intoxicating liquors shipped C. O. D., see note in Ann. Cas. 1912D, 983.]</p>

<p>APPEAL from a judgment of the Superior Court of the County of Mohave. John A. Ellis, Judge.</p>

<p>APPEAL from a judgment of the Superior Court of the County of Cochise. Alfred C. Lockwood, Judge.</p>

<p>Fines — Imprisonment—Teem.—Penal Code of 1913, section 1128, providing that a judgment that defendant pay a fine may also direct that he be imprisoned until the fine is satisfied, but the judgment must specify the extent of the imprisonment, whieh must not exceed one day for eaeh dollar of the fine, nor extend beyond the term for which defendant might be sentenced to imprisonment, authorizes a judgment of imprisonment and a fine coupled with imprisonment until paid; the sentence of imprisonment not exceeding the maximum of imprisonment for the offense.</p> <p>[As to sentences above the maximum, see note in 55 Am. St. Eep. 267.]</p>

<p>1. Contracts — Building Contracts — Nonpayment of Installments —Effect.-—The mere refusal of one employing a contractor to pay an installment due under the contract stipulating for periodical payments as the work progressed on estimates of the work done is not a breach of a condition precedent or a prevention of performance, and the contractor abandoning the work may not recover on the eon-tract for profits.</p> <p>2. Contracts — Building Contracts — Nonpayment of Installments— Effect. — The remedy, if any, of contractor abandoning the work on failure of the owner to pay an installment due under the contract is on a quantum meruit, and not on the contract.</p> <p>3. Pleading — Complaint—Requisites.—Though the Code abolishes technical forms of action, the complaint must set forth with reasonable certainty the cause of action relied on.</p> <p>4. Pleading — Complaint—Amendments.—Where plaintiff can state a cause of action though a recovery may be doubtful, it is not an abuse of discretion for the trial court to permit plaintiff to amend, his complaint not stating a cause of action.</p>

<p>1. Brokers — Nature of Agreement — Compensation of Broker— “Beal Property” — “Property”—“Other Property.” — Under Civil Code of 1913, paragraph 3272, subdivision 7, providing that no action shall be brought on an agreement employing an agent or broker to purchase or sell real estate, mines or other property for compensation or a commission unless the agreement or some memorandum thereof shall be in writing and signed by the parties to be charged, and paragraph 5552, defining “real property” as coextensive with lands, tenements and hereditaments and “property” as including both real and personal property, the words “other property,” in paragraph 3272, include personal property, and no aetion can be brought on an agreement employing a broker to purchase or sell either real or personal property unless in writing.</p> <p>2. Brokers — Operation of Statutes — Effect of Performance.- — That an oral contract employing a broker to sell property has been fully performed by the broker does not entitle him to recover thereon.</p> <p>[As to brokers’ remedies, see note in 74 Am. St. Bep. 483.]</p>

<p>APPEAL from a judgment of the Superior Court of the County of Maricopa. R. C. Stanford, Judge.</p>

<p>APPEAL from a judgment of the Superior Court of the •County of Greenlee. F. B. Laine, Judge.</p>