Volume 17 — Idaho Reports

Hon. Fremont Wood, Judge. Action by the state of Idaho to establish a trust lien against the state and assets of the Capital State Bank of Idaho, insolvent, and to have its right decreed to be that of a preferred creditor. Judgment in favor of plaintiff to the extent of the cash on hand in the bank at the time it suspended business and against the state as to 'all other assets. Plaintiff appeals.

<p>Bill op Exceptions — Assignment op Errors — Insufficiency op the Evidence — Government Survey.</p> <p>1. This court will not review the sufficiency of the evidence to sustain the findings or judgment on an appeal from the judgment, unless the bill of exceptions contains a specification of the particulars in which it is claimed the evidence is insufficient.</p> <p>2. Errors of law oeeurring at the trial may be reviewed upon an appeal from the judgment, although no specification of the particular errors of law, on which the appellant relies, is contained in the bill of exceptions.</p> <p>3. “Assignment of errors” on the ground that the evidence does not support the findings and judgment, printed as a part of the transcript but not made a part of the bill of exceptions, will be stricken from the transcript on motion.</p> <p>4. A bill of exceptions will not be stricken from the transcript because it does not contain “an assignment of errors” of the particulars in which it is claimed the evidence is insufficient to support the judgment, but will be retained and considered, for the purpose of determining alleged errors of law occurring during the progress of the trial.</p> <p>5. In an action brought for the purpose of having determined the corners and lines of a government survey, in which the issue is made as to whether either of two different surveys conforms to the government survey, and in which the issue is made as to whether the parties to the aetion entered such land according to one of such surveys, any evidence in relation to the correctness of such surveys, the manner in which the same were made and the circumstances under which the parties to said suit entered such land, is admissible.</p> <p>(Syllabus by the court.)</p>

Hon. W. W. Woods, Judge. Action by plaintiff to recover damages for personal injury sustained while traveling over a cross-walk in the defendant village. Judgment for plaintiff. Defendant appealed. Notice' to the corporation of the defect which caused the injury, or facts from which notice thereof may reasonably be inferred, or proof of circumstances from which it appears that the defect ought to have been known and remedied by it, is essential to liability. (2 Dillon on Mun.

Hon. W. W. Woods, Judge. Action by plaintiff for recovery of a debt. Judgment for plaintiff. Defendant appeals. In order that an act may be capable of ratification, it must have been performed by one who purports to act as the agent of another. (31 Cye. 1251.) Even had the Alameda company desired to ratify the work of Mayo-Saebs & Co., it could not have done so, under the law, when Mayo had never assumed to act for it.

Hon. W. W. Woods, Judge of the First District, presiding. Action by plaintiff for injunction. Temporary order granted and subsequently modified and suspended. Held: as a restraining order against defendants except for the period of twenty-five days after the giving of the undertaking provided in said order. (Wilson v. Boise City, 7 Ida. 69, 60 Pac. 84.^ The granting or refusing of an injunction pendente lite is within the sound discretion of the court. (10 Ency.

<p>APPEAL from the District Court of the First Judicial District, for the County of Shoshone. Hon. W. W. Woods, Judge.</p> <p>Action by the plaintiff for recovery of damages. Judgment for plaintiff. Defendant appeals.</p> <p>cite no authorities.</p> <p>The presumption is that the laws of Montana are the same as the laws of Idaho. (5 Ene. Ev. 814, and eases there cited in note 21.) See. 3120, Rev. Codes, provides that, by the use of the word “grant” in any conveyance by which an estate of inheritance is to be passed, certain -covenants (naming them) are implied, and among them the covenant, to wit, that the estate so conveyed is at the time of the execution of the conveyance free from encumbrance done, made or suffered by the grantor or any person claiming under him. The covenant there expressed is not one of warranty of title. (Warren v. Stoddard, 6 Ida. 692, 59 Pac. 540.) A mere misrepresentation is not sufficient to avoid a contract. Something more must be alleged and proven. (Brown v. Bledsoe, 1 Ida. 746; Eemmerer v. Pollard, 15 Ida. 34, 96 Pac. 206.)</p> <p>Where a vendee has notice of an imperfect title and the vendor does not agree to warrant the title, the vendee cannot be held to complain that the title is defective. (Leonard v. Woodruff, 23 Utah, 494, 65 Pac. 199; Ten Broeck v. Livingston, 1 Johns. Ch. 357; Thompson v. Hawley, 14 Or. 199, 12 Pae. 276; Pomeroy Spec. Per., 2d ed., secs. 157, 346. Also note 1 under see. 346.)</p>

<p>APPEAL from the District Court of the Second Judicial District, for the County of Nez Perce. Hon. Edgar C. Steele, Judge.</p> <p>Action to recover damages for personal injuries. Judgment for plaintiff. Defendants appeal.</p> <p>The complaint is ambiguous, uncertain and unintelligible in that it does not state where the accident occurred — ■ whether in the state of Washington or state of Idaho. The defendants were entitled to have the complaint made definite and certain upon this point, for the reason that if the accident alleged occurred in a state where a statute gave one remedy and the state of Idaho gave a remedy entirely inconsistent, the court could not entertain the action, as in personal actions the remedy is governed by the lex fori. (.Anderson v. Milwaukee & St. P. It. Co., 37 Wis. 321; Mexican Nat. B. Co. v. Jackson, 89 Tes. 107, 59 Am. St. 28, 33 S. W. 857, 31 L. R. A. 276.)</p> <p>The complaint does not state facts sufficient to constitute a cause of action, in that there is no allegation that the animal in question was accustomed to do or had done, before the act complained of, similar acts to those alleged in the complaint, or that the defendant Vollmer had knowledge of such act or acts. The scienter is not alleged. (Mason v. Keeling, 12 Mod. 332; Fritsche v. Clemow, 109 Ill. App. 355; Feldman v. Sellig, 110 Ill. App. 130; Ward v. Danzeizen,. Ill IE. App. 163 - Harvey v. Buchanan, 121 Ga. 384, 49 S. E. 281; Fettman v. Hecken etc. Co., 91 N. Y. Supp. 773; Cook v.. Levintan, 94 N. T. Supp. 396; Staetter v. McArthur, 33 Mo. App. 218; Smith v. Donohue, 49 N. J. L. 548, 60 Am. Rep. 652, 10 Atl. 150.) “The owner or harborer of a domestic animal is liable for personal injuries1 inflicted by ■ it only when he has notice of its vicious traits.” (7 Current Law,. 121; Cooper v. Cashman, 190 Mass. 75, 76 N. E. 461, 3 L. R. A., N. S., 209; Petey Mfg. Co. v. Dryden, 5 Del. 166, 62 Atl. 1056; St. Louis Nat. Stock Yards, v. Morris, 116 Ill. App. 107; Bentz v. Page, 115 La. 560, 39 So. 599.)</p> <p>There is a misjoinder of parties defendant. Norman Voll-mer is improperly joined as defendant with the Lewiston Interstate Fair and Racing Association, in that no concert of action between the defendants is shown, and no acts were pleaded or alleged sufficient to show whereby the defendants may be made liable as joint tort-feasors. (Minnich v. Lancaster Elec. By. Go., 203 Pa. 632, 53 Atl. 501 fWiest v. Electric Traction Go., 200 Pa. 148, 49 Atl. 891; Bard v. Yohn, 26 Pa. 482; Gallagher v. Kemmerer, 144 Pa. 509, 27 Am. St. 673, 22 Atl. 970; Miller v. Highland Ditch Go., 87 Cal. 430, 22 Am. St. 254, 25 Pac. 550; Ghipman v. Palmer, 77 N. T. 51, 33 Am. Rep. 566; Navigation Go. v. Richards, 57 Pa. 142, 98 Am. Dee. 209; Blaisdell v. Stephens, 14 Nev. 17, 33 Am. Rep. 523; Butler v. Ashworth, 110 Cal. 614, 43 Pac. 4, 386; Goodman v. Goal Twp., 206 Pa. 621, 56 Atl. 65.)</p> <p>The facts set forth in the amended complaint clearly show that the accident could not have been reasonably foreseen by a man of ordinary intelligence, and the negligence, if any, is not such as to be actionable. (Drum v. MiUer, 135 N. C. 204, 102 Am. St. 528, 47 S. E. 421, 65 L. R. A. 890; Gleg-horn v. Thompson, 62 Kan. 727, 64 Pac. 605,. 54 L. R. A. 404; Chicago B. & Q. By. Go. v. Stumps, 55 Ill. 374; City of Alleghany v. Zimmerman, 95 Pa. 287, 40 Am. Rep. 649; Gravelle v. Minneapolis & St. L. By. Go., 10 Fed. 711, 3 McCrary, 352; Shaw v. Graft, 37 Fed. 317.)</p> <p>All of paragraphs 13, 14 and 15 of the complaint which relates to the question of damages is speculative, redundant, surplusage, and immaterial, and the damages are not such as are proper to be included in the complaint or for which a recovery could be had. They are speculative, uncertain, exemplary, expected profits, and the allegation was insufficient to admit the line of proof offered in support of the same. (Bierbacli v. Goodyear Rubber Co., 54 "Wis. 208, 41 Am. Rep. 19, 11 N. W. 514; Wolff Shirt Go. v. Frankenthal, 96 Mo. App. 307, 70 S. W. 378; Central Coal etc. Co. v. Hartman, 111 Fed. 96, 49 C. C. A. 244. ^</p> <p>‘‘In an action for injuries to an infant, plaintiff may recover for loss of time and earnings caused by such injury after reaching his majority, but not the loss of time and earning power during minority.” (16 Ency. PL & Pr. 468.)</p> <p>If at the time of the accident the plaintiff was aiding and abetting knowingly, and was an instrument of a gambling device in violation of the gambling laws of the state in which the accident occurred, he is in no position to ask the aid of the courts for any injury received while so furthering and aiding such device. (St. Louis Fair Assn. v. Gar-mody, 151 Mo. 566, 74 Am. St. 571, 52 S. W. 365; Downing v. Ringer, 7 Mo. 585; Ashhrook v. Dale, 27 Mo. App. 649; Friend v. Dorter, 50 Mo. App. 89; Sprague v. Rooney, 104 Mo. 358, 16 S. W. 508; Beach Cont. Neg., see. 47; Cooley on Torts, 2d ed., p. 151; Devor v. Knauer, 84 Ill. App. 184; Hall v. Corcoran, 107 Mass. 253, 9 Am. Rep. 30.) Gambling on horseraces is a game, under the statutes prohibiting games of chance. (Swigart v. People, 154 Ill. 284, 40 N. E. 432; Bollinger v. Commonwealth, 98 Ky.-574, 35 S. W. 553; People v. Weithoff, 51 Mich. 203, 47 Am. Rep. 557, 16 N. W. 442; Ellis v. Beale, 18 Me. 337, 36 Am. Dec. 726; State v. Stripling, 113 Ala. 120, 21 So. 409, 36 L. R. A. 81, 82.)</p> <p>This court has no jurisdiction of the appeal, because John P. Vollmer has not joined in the appeal, nor in the bill of exceptions nor in the motion for a new trial nor in any of the appellate process, although he is a defendant in a case of joint tort. No bond of appellants runs in favor of John P. Vollmer, and no adversary process on appeals was served on him. (Humphrey v. Hunt, 9 Okla. 196, 59 Pac. 971; Jones v. Qumtrell, 2 Ida. 153, 9 Pac. 418; Baker v. Drews, 9 Ida. 276, 74 Pae. 1130; Doust v. Rocky Mountain Bell Tel. Co., 14 Ida. 677, 95 Pac. 209.)</p> <p>John P. Vollmer is the owner of the dog as to third parties, because the dog is as much a member of his family as it is possible for such an animal to be, and the sustaining of the nonsuit as to John P. Vollmer is clear error. Hence a reversal of the judgment as to him, and as to all the joint defendants, would affect his rights. (Hornbein v. Blanchard, 4 Colo. App. 92, 35 Pac. 187, 2 Cyc. 379, collating cases.) The dog was a trespasser when the injury happened. Therefore, his owners, harborers, keepers and masters were all liable for all injuries inflicted by him. (State v. Churchill, 15 Ida. 645, 98 Pae. 853, 19 L. E. A., N. S., 835; Chunot v. Larson, 43 Wis. 536, 28 Am. Eep. 567; Becker v. Gammon, 44 Me. 322, 69 Am. Dec. 99; Beckett v. Beckett, 48 Mo. 396; 2 Cyc. 376, eases; 21 Eney. PL & Pr. 894, cases.)</p> <p>The propensity of dogs to chase animals is of such general knowledge that scienter is presumed. {Lyons v. Merrick, 105 Mass. 71 (76); Schmid v. Humphrey, 48 Iowa, 652, 30 Am. Eep. 414; Hussey v. King, 83 Me. 568, 22 Atl. 476; Conway v. Grant, 88 Ga. 40, 30 Am. St. 145, 13 S. E. 803, 14 L. E. A. 196; 2 Jaggard on Torts, 856, 857.) The dog being a trespasser, however, it was not necessary to either allege or prove the habit or disposition, nor the scien-ter, both of which affirmatively appear in the above allegations of the complaint. {Chunot v. Larson, supra; Becker v. Gammon, supra; Kemp v. Briard, 5 Neb. (Unof.) 499, 98 N. W. 1048; Beckwith v. Shordike, 4 Burr. 2092; Green v. Boyle, 21 Ill. App. 205; Plummer v. Bicker, 71 Yt. 114, 76 Am. St. 757, 41 Atl. 1045; Hayes v. Smith, 62 Ohio St. 161, 56 N. E. 879; Shulz v. Griffith, 103 la. 150, 72 N. W. 445, 40 L. E. A. 117; Harris v. Carstens Packing Co., 43 Wash. 647, 86 Pac. 1125, 6 L. E. A., N. S., 1164; Van Leuven v. Lyke, 1 Comst. (1 N. Y.) 515, 49 Am. Dee. 346; Bearth v. Baker, 22 Wis. 73; 21 Eney. PI. & Pr. 894, eases; 2 Cyc. 376, cases.)</p> <p>The omission of the place (from the complaint) of the accident 'was cured by the answer of the defendant in setting it up affirmatively, and availing himself of every pretended defense which he claims the place would give him. The rule of pleading over prevails in Idaho. {State v. Thum, 6 Ida. 323, 55 Pac. 858.) No injury was caused because of the alleged “gambling,” nor was it attributed thereto. The injury was not caused by the race; the race was a condition and not a cause. The cause of the injury was a supervening act of the defendants, and bad no connection with the attempt to suppress the race. (1 Street’s Foundation of Legal Liability, 171-185; 1 Jaggard on Torts, 185-191; Norris .v. Litchfield, 35 N. H. 271, 69 Am. Dee. 546; Welch v. Wesson, 6 Gray, 505; Oates v. Burlington, C. B. <& N. B. Go., 39 Iowa, 45; Maguire v. Middlesex By. Co., 115 Mass. 239; City of Pueblo v. Smith, 3 Colo. App. 386, 33 Pae. 685.) The racing of horses for premiums is not “gambling.” ■{Harris v. White, 81 N. Y. 532; Ballard v. Brown, 67 Yt. 586, 32 Atl. 485; People v. Fallon, 152 N. Y. 12, 57 Am. St. 492, 46 N. E. 296; Alvord v. Smith, 63 Ind. 58.)</p> <p>Horseracing is not a game within the meaning of the gambling statutes. (State v. Borie, 23 Ark. 726; State v. Hayden, 31 Mo. 35, 20 Cyc. 887.)</p>

<p>APPEAL from tbe District Court of the First Judicial District, for the County of Shoshone. Hon. W. W. Woods, Judge.</p> <p>An action to recover damages for loss of goods received by a carrier for shipment. Judgment for plaintiff.</p> <p>Where the shipper accepts a special contract from the carrier, he is conclusively presumed, in the absence of fraud, imposition, accident or mistake, to have consented to all the terms and conditions contained in it, and he cannot afterward be heard to say that he did not read the instrument or did not know its contents. (St. Louis etc. By. v. Weakly, 50 Ark. 397, 7 Am. St. 104, 8 S. W. 134; Jones v. Ci/ncin-nati etc. By., 89 Ala. 376, 8 So. 61; Byan v. Mo. By., 65 Tex. 14, 57 Am. Rep. 589; Western By. Co. v. Harwell, 91 Ala. 340, 8 So. 649; Bose v. Northern Pae. By., 35 Mont.. 70, 88 Pac. 767; Lame v. Pacific etc. By., 8 Ida. 230, 67 Pac. 656; Mires v. St. Louis etc. By. (Mo. App.), 114 S. W. 1052; In-man v. Seaboard etc. By., 159 Fed. 960; Nashville etc. By. v. Stone, 112 Tenn. 348, 105 Am. St. 955, 79 S. W. 1031.)</p> <p>Tbe option of entering into a common-law contract or a special contract need not in fact be offered to tbe shipper. It is sufficient if either would have been given him bad be demanded it. (Nashville etc. By. v. Stone, 112 Tenn. 318, 105 Am. St. 955, 79 S. W. 1031; Louisville etc. By. Go. v. Manchester Mills, 88 Tenn. 653, 14 S. W. 314; Louisville etc. By. v. Sowell, 90 Tenn. 17, 15 S. W. 837; Gau v. Texas. & Pac. By., 194 U. S. 427, 24 Sup. Ct. 663, 48 L. ed. 1053; Mires v. St. Louis etc. By., supra.)</p> <p>Plaintiff must make affirmative proof of want of consideration to avoid a special stipulation exempting tbe carrier from its common-law liability. The presumption is there was sufficient consideration for a limitation, and unless plaintiff proves absence of consideration by clear and satisfactory proof, the presumption of consideration will prevail. (Secs. 3314, 3315, Rev. Codes; secs. 1614, 1615, Deering’s Ann. Cal. Codes; Henke v. Eureka Endowment Assn., 100 Cal. 429, 34 Pac. 1089; Schaller v. Chicago etc. By., 97 Wis. 31, 71 N. W. 1042; L. & E. By. Go. v. Holland, 162 Ind. 406, 69 N. B. 138, 63 L. R. A. 948; Evansville v. McKinney, 34 Ind. App. 402, 73 N. B. 148; Chicago etc. By. Go. v. Hare, 36 Ind. App. 422, 75 N. B. 867; United States etc. Go. v. Joyce, 36 Ind. App. 1, 69 N. E. 1015; Mires v. St. Louis etc. By. (Mo. App.), 114 S. W. 1052; Shelton v. St. Louis etc. By., 131 Mo. App. 560, 110 S. W. 627.)</p> <p>Common carriers may by express terms or special contract with their employer be exonerated from that rigorous rule of tbe common law which in the absence of contract makes them insurers of the safety of the goods intrusted to them. {Hart v. Pennsylvania By. Go., 112 U. S. 331, 5 Sup. Ct. 151, 28 L. ed. 717; Bailway Go. v. Lockwood, 17 Wall. 357, 21 L. ed. 627; Goa v. Texas & Pacific By., 194 U. S. 427, 24 Sup. Ct. 663, 48 L. ed. 1053; Be Beleased Bates, 13 Int. Com. Rep. 551; Hill v. Northern Pacific By. Go., 33 Wash. 697, 74 Pac. 1054; Peterson v. Seattle Traction Co., 23 Wash. 615, 63 Pae. 539, 65 Pae. 543, 53 L. R. A. 586; Mires v. St. Louis, etc. By., supra; Saunders v. Southern Pacific By. Co., 128 Fed. 19; Hutchinson on Carriers, 3d ed., sec. 401.)</p> <p>There was no consideration for the contract limiting the liability of defendant from its common-law liability of an insurer. There must be such a consideration. (Lake Erie B. Go. v. Holland, 162 Ind. 406, 69 N. E. 138, 63 L. R. A. 948; Chicago 1. & L. B. Go. v. Hare, 36 Ind. App. 422, 75 N. E. 867; Fieklin v. Wabash B. B. Go., 117 Mo. App. 221, 93 S. W. 847; Scott Comity Mill Co. v. Bailroad Co., 127 Mo. App. 80,104 S. W. 924; St. Louis etc. B. B. Co. v. Pearce, 82 Ark. 353, 101 S. W. 760; Southern Express Co. v. Hill, 81 Ark. 1, 98 S. W. 371.)</p> <p>When a bill of lading contains restrictions upon the carrier’s common-law liability, the court will not presume, in the absence of testimony, that it was done upon a proper and sufficient consideration. (McMillan v. Mich. S. & N. I. B. Co., 16 Mich. 79, 93 Am. Dec. 208.) When there is but one contract open and offered to the shipper by a common carrier and no option is given him, a special provision limiting the common-law liability of the “ carrier to loss or damage occasioned by wrongful acts or gross negligence” is without consideration. (Illinois Cent. B. Co. v. Lancashire Ins. Co., 79 Miss. 114, 30 So. 43.)</p> <p>The clause in the bill of lading limiting defendant’s liability will not be held valid on the ground that a reduced rate was intended, no rate being specified, and none being talked of by the parties. {Phoenix Powder Co. v. Wabash B. Co., 101 Mo. App. 442, 74 S. W. 492,196 Mo. 663, 94 S. W. 23b, 120 Mo. App. 566, 97 S. W. 256; Kellerman v. Bailroad Co., 136 Mo. 177, 34 S. W. 41, 37 S. W. 828.) The contract limiting the liability of the carrier must be strictly construed against the carrier. (Elliott on Railroads, 2d ed., see. 1505.)</p> <p>Where the consideration for limitation of liability is a reduced freight rate, it must appear that both rates of transportation are reasonable. A rate fixing the common-law liability at twenty per cent more than the limited liability is unreasonable. (5 Am. & Eng. Enc. Law, 2d ed., 298 (b).)</p>

<p>APPEAL from tbe District Court of tbe Second Judicial District, for Nez Perce County. Hon. Edgar C. Steele, Judge.</p> <p>An action to recover debt. Judgment for plaintiff. Defendants appeal.</p> <p>“It is error to refuse to grant a motion for a continuance on account of tbe absence of a witness, or admit tbe affidavit in evidence, when it is in due form, and shows tbe evidence to be material, and tbe inability of tbe affiant to procure bis attendance.” {Switzer v. Lottenville, 4 Ill. App. (4 Bradw.) 219; Bradbury v. Dougherty, 7 Blacbf. (Ind.) 467; Wardlaw v. Wardlaw, 89 Ga. 58; Robertson v. Woolley, 6 "Wash. 156, 32 Pac. 1060.)</p> <p>“A continuance on account of tbe serious illness of tbe plaintiff is properly granted.” {Elliott v. Field, 21 Colo. 378, 41 Pae. 504.)</p> <p>All of tbe portions of tbe transcript on appeal sought to be stricken on tbe grounds specified in respondent’s motion to strike are in strict compliance with tbe provisions of sec. 4428, Rev. Codes, tbe papers, pleadings, etc., being printed in tbe transcript and fairly identified in each bill of exception. {Shurtliff v. Extension Ditch Co., 14 Ida. 416, 94 Pac. 574.) Tbe time within which affidavits sought to be stricken by this motion were filed is not and was not jurisdictional. {Smith v. Whittier, 95 Cal. 279, 30 Pae. 529; Spotiswood v. Weir, 80 Cal. 448, 22 Pac. 289; Howe v. Briggs, 17 Cal. 386.)</p> <p>"Where an order or decision and the papers upon which it is made are a part of tbe records and files in tbe action, they need not, unless desired by the party objecting thereto, be embodied in a bill of exceptions, but tbe same appearing in tbe records or files, may be reviewed upon appeal as though settled in such bill of exceptions. (See. 4427, Rev. Codes; Taylor v. McCormick, 7 Ida. 524, 64 Pae. 239; Warren v. Stoddart, 6 Ida. 692, 59 Pae. 540.)</p> <p>The granting or refusing a continuance rests in the sound discretion of the trial court, and this court will not review that discretion unless there appears to have been a very gross abuse in its exercise. (Herron v. Jury, 1 Ida. 166; Cox v. Northwestern Stage Go., 1 Ida. 376; Lillienthal v. Anderson, 1 Ida. 676;.Bichardson v. Buddy, 10 Ida. 151, 77 Pac. 972; Bobertson v. Moore, 10 Ida. 115, 77 Pac. 218; Holt v. Gridley, 7 Ida. 416, 63 Pac. 188; Beynolds v. Corbus, 7 Ida. 481, 63 Pac. 884.)</p> <p>The notice of intention failed to state that the motion for a new trial would be based upon affidavits as required by sec. 4441, Bev. Codes. (Gregg v. Garrett, 13 Mont. 10, 31 Pac. 721; Hughes v. Alsip, 112 Cal. 587, 44 Pac. 1027.) “Notice must specify upon what evidence motion will be made, whether upon affidavits, minutes of the court, bill of exceptions, or a statement of the case.” (14 Bney. PL & Pr. 876; 29 Cyc. 938.)</p> <p>After the time in which affidavits, statements and bills of exceptions may be filed, as required by sec. 4441, the right is absolutely barred. (In re Kasson’s Estate, 141 Cal. 33, 74 Pac. 439; Freese v. Freese, 134 Cal. 48, 66 Pac. 43; Hoeh-nan v. N. 7. Dry Goods Co., 8 Ida. 73, 67 Pac. 796; Swartz v. Davis, 9 Ida. 239, 74 Pac.' 800; Henry v. Merguire, 106 Cal. •142, 39 Pac; 599; Connor v. Southern Cal. Motor Boad Co., 101 Cal. 429, 35 Pac. 990.)</p>

Hon. W. W. Woods, Judge. Action to recover damages for flooding plaintiff’s land. Changed at the request of the defendant to a condemnation suit. Judgment for plaintiff. Final judgment cannot be rendered in a cause until the ease has been brought to issue, and the plaintiff and defendant have had their day in court upon all the issues raised. {Kennwrd v. Louisiana, 92 TJ. S. 480, 23 L. ed. 478; llagar v. Beclwmation List., Ill TJ. S. 701, 4 Sup.

<p>"APPEAL from the District Court of the First 'Judicial District, for the County of Shoshone. Hon. Fremont Wood, Presiding Judge.</p> <p>Action to rescind contract and to quiet title to an undivided one-half interest in certain mining claims. Judgment for plaintiff.</p> <p>Where there has been a part performance of a contract, one party cannot rescind the same without returning the consideration or whatever of value he has received and doing everything necessary and proper to put the other party in statu quo; and if the fruits or benefits of the contract be such that they cannot be returned, then the party cannot rescind such contract. (6 Pomeroy’s Eq. Jur., see. 688; 21 Am.. & Eng. Ency. of Law, 84, 91; Caldwell v. Buddy, 2 Ida. 1, 7, 1 Pae. 339; Bowman v. Ayers, 2 Ida. 465, 470, 21 Pac. 405; Allen v. Galloway, 30 Fed. 471; Carlton v. Eulett, 49 Minn. 320, 51 N. W. 1055; Timmerman v. Stmley, 123 Ga. 850, 51 S. E. 760, 1 L. E. A., N. S., 379; Grymes v. Sanders, 93 U. S. 55, 23 L. ed. 798.)</p> <p>When the tender of performance of an act is necessary to the establishment of any right against another party, such tender or offer to perform is waived or becomes unnecessary when it is reasonably certain that the offer will be refused. (Sills v. Bank, 105 U. S. 319, 26 L. ed. 1052.)</p> <p>A contract giving an option to purchase a mine, wherein the vendees covenant to sink a shaft at least one hundred feet, imposes upon them the absolute duty of sinking the shaft to the agreed depth, although they find no evidence that the mine contains enough valuable ore to justify them in purchasing it. (27 Cyc. 673; Davis v. Eames (Cal.), 35 Pae. 566.)</p> <p>While it is true that the defendant did make tender of the first instalment due, which tender was refused at the time by the plaintiff, the fact of such tender did not discharge the defendant from his liability to the plaintiff, and he was compelled to keep his tender good at all times. (Bhorer v. Bila, 83 Cal. 51, 23 Pac. 274; Bedington v. Chase, 34 Cal. 666.) The plaintiff, by refusing the tender of the sum of $1,000 made to him by the defendant in payment of the first instalment, did not forfeit his right to that amount. (Sill v. Carter, 101 Mich. 158, 59 N. W. 413.)</p> <p>In nearly all options or agreements for the future transfer of title to mining operations, it is customary for the •parties to agree that the option holder shall perform such assessment work as may be necessary to save the rights of the holder of the title in such property. The option holder’s agreement to thus comply with the mining laws as to assessment work and by such work to demonstrate the merits of the operation are deemed the consideration for the giving of the option. (Davis v. Eames (Cal.), 35 Pac. 566.),</p>

<p>APPEAL from tbe District Court of tbe First 'Judicial District, for Sbosbone County. Hon. W. W. Woods, Judge.</p> <p>Action to set aside a deed conveying certain interests in mining claims. Judgment for plaintiff.</p> <p>“Tbe real test of delivery is tbis: ‘Did tbe grantor, by bis acts or words, or both, intend to devest bimself of title 1’ If so, the' deed is delivered.” (9 Am. & Eng. Ency. of Law, 154; Doty v. Barker (Kan.), 97 Pae. 965; Creveling v. Banta, 138 Iowa, 47,115 N. W. 600; Eneeland v. Cowperthwaite, 138 Iowa, 193, 115 N. W. 1026.)</p> <p>“Acts and declarations of the grantor and grantee which, in connection with surrounding circumstances, indicate that the parties intended to deliver the deed, and belief that they had done so, constitute a delivery.” (Hildebrcmd v. Willig, 64 N. J. Eq. 249, 53 Atl. 1035.) “The delivery of a deed is complete when the grantor parts with all control and dominion over same, with the intention that the title shall pass to the grantee.” (Biggins v. Lambert, 213 Ill. 625, 104 Am. St. 238, 73 N. E. 371.) “The rule that the grantor must part with all dominion and control over the deed does not mean that he must put it out of,his physical power to procure possession of it.” (Sneathen v. Sneathen, 104 Mo. 201, 24 Am. St. 326, 16 S. W. 497.)</p> <p>“If a deed be handed to a third person under such circumstances as to evidence an intention to make a delivery thereof to the grantee named therein, it is immaterial whether there be express directions so to do or not.” (Criswell v. Cris-well, 138 Iowa, 607, 116 N. W. 713; Gardiner v. Gardiner, 134 Mich. 90, 95 N. W. 973; Franklin Ins. Co. v. Feist, 31 Ind. App. 390, '68 N. E. 188; Diekman v. Arnold, 71 Mich. 656, 40 N. W. 42; Burk v. Sproat, 96 Mich. 404, 55 N. W. 985; Coulson v. Coulson, 180 Mo. 709, 79 S. W. 473; Martin v. Flaharty, 13 Mont. 98, 40 Am. St. 415, 32 Pac. 287, 19 L. E. A. 242; Standiford v. Standiford, 97 Mo. 231, 10 S. W. 836, 3 L. E. A. 299.)</p> <p>The fact that the deed remained in the possession of Mr. Norris under the facts of this case until after the grantor’s death would not in any manner affect the sufficiency of the delivery of the deed. (Berry v: Young, 98 Cal. 446, 35 Am. St. 186, 33 Pac. 338; Sutton v. Cramer, 10 Ariz. 110, 85 Pae. 483; White v. Watts., 118 Iowa, 549, 92 N. ~W. 660; Munro v. Bowles, 187 Ill. 346, 58 N. E. 331, 54 L. E. A. 865; Gris-wold v. Griswold, 148 Ala. 239, 121 Am. St. 64, 42 So. 554.)^</p> <p>So long as there is left in tbe grantor of a deed power, at bis discretion, to reclaim, recall, alter or cancel tbe instrument, it bas not been delivered, nor put in a condition snob that bis failure to exercise tbis power will give to tbe acts done tbe character of a delivery. (Williams v. Schatz, 42 Ohio St. 47; Prutsman v. Baker, 30 Wis. 644, 11 Am. Rep. 592; Bettinger v. Van Alstyne, 29 N. T. Supp. 904; Cook v. Brown, 34 N. H. 460; Baker v. Haskell, 47 N. H. 479, 93 Am. Dec. 455; Porter v. Woodhouse, 59 Conn. 568, 21 Am. St. 131, 22 Atl. 299, 13 L. R. A. 64; Hayes v. Boylan, 141 Ill. 400, 30 N. E. 1041, 33 Am. St. 326; Commercial Bank v. Beckless, 5 N. J. Eq. 430, 452; S chuff ert v. Grote, 88 Mieb. 650, 26 Am. St. 316, 50 N. W. '657; Fitzpatrick v. Brigman, 130 Ala. 450, 30 So. 500; Brown v. Brown, 66 Me. 316; Alsop v. Swathel, 7 Conn. 500; Duer v. James, 42 Md. 492.)</p> <p>“Tbe delivery of a deed is complete when tbe grantor or obligor bas parted with bis dominion over it, with tbe intent that it shall pass to tbe grantee or obligee, provided tbe latter assents to it, either by himself or bis agent.” (Green-leaf on Ev., see. 297; 3 Washburn, 5th ed., “Real Property,” pp. 300, 302; Beardsley v. Hilson, 94 Ga. 50, 20 S. E. 272; Moore v. Flynn, 135 Ill. 74, 25 N. E. 844; Bittmaster v. Brisbane, 19 Colo. 371, 35 Pac. 739; Beel v. Beel, 59 W. Ya. 106, 52 S. E. 1023; Powell v. Banks, 146 Mo. 620, 48 S. W. 664; Stockwell v. Williams, 68 N. H. 75, 41 Atl. 973.)</p> <p>In reviewing cases of tbis sort where there is at best involved little more than a proper conclusion from tbe evidence. presented, tbe reviewing court will not lightly set aside tbe decision of tbe trial judge. (Spacy v. Bitter, 214 Ill. 266, 73 N. E. 447.) It is only where it is plainly shown that there is no substantial conflict in tbe evidence on tbe material issues, or tbe trial court bas ignored tbe evidence entirely and rendered judgment without support from tbe evidence, that tbis court will interfere and order a new trial. (Bobertson v. Moore, 10 Ida. 115, 77 Pac. 218; Abbott v. Beedy, 9 Ida. 577, 75 Pae. 764; Thompson v. Wise Boy etc. Co., 9 Ida. 363, 74 Pac. 958; Sabin v. Burk, 4 Ida. 28, 111, 179, 37 Pac. 352.)</p>

Original action for writ of habeas corpus. In the following cases it is held that alternative punishments are void: Ex parte Baldwin, 60 Cal. 432; Malter of Bollig, 31 Ill. 88; Browntridge v. People, 38 Micb. 751; Matter of Hoffman, 1 N. Y. Crim. Rep. 484; State v. Perkins, 82 N. C. 681; In re Deaton, 105 N. C. 59, 11 S. E. 244; State v. Camden, 63 N. J. L. 501, 43 Atl. 1069.

<p>Original proceeding in this court for writ of habeas corpus.</p> <p>Counsel file no briefs.</p>

Hon.- W. W. Woods, Judge of tbe First District, Presiding. Action by plaintiffs to recover damages. Judgment for plaintiffs, and defendant moved for a new trial and bis motion was granted. Plaintiff appealed from tbe order granting a new trial. It is tbe province of this court to examine tbe record to ascertain if there is a sufficient conflict of tbe evidence to warrant tbe trial court in vacating tbe verdict of the jury and granting a new trial in tbe action.

Hon. W. W. Woods, Jttdge. An action to recover debt. Judgment, for defendant. Plaintiff appeals. This court has repeatedly held that if the evidence introduced in an action even tends to establish the allegations of the complaint, its sufficiency should be determined by the jury and not by the court.

Hon. Edgar C. Steele, Judge. An action for surrender and cancellation of certain promissory notes. Judgment for defendants. Plaintiff appeals. Plea of payment is an affirmative defense and must be pleaded and established by the defendant. (2 Green, on Ev., see. 516; 18 Am. & Eng.

<p>Original action praying for a writ of mandate.</p> <p>Any attempt upon the part of tbe defendant to require plaintiff or any other consumer to enter into a contract sueh as proposed by defendant, which would be a lien upon plaintiff’s property for all time, would be unreasonable. {Wheeler v. Northern Colo. Irr. Go., 10 Colo. 582, 3 Am. St. 603, 17 Pac. 487; Rockland Water Co. v. Adams, 84 Me. 472, 30 Am. St. 368, 24 Atl. 840; State v. Butte City1 Water Co., 18 Mont. 199, 56 Am. St. 574, 44 Pac. 966, 32 L. R. A. 697.)</p> <p>A regulation that in case a consumer is in default his supply will be eut off is reasonable and may be enforced. But such a regulation cannot be made the instrument by which the water company can become the judge in its own ease, or shut off water to enforce payment of a disputed bill; nor by its means can payment be enforced which it is not the duty of the consumer to make. (1 Farnham on Waters, 877, and cases there cited.) The account is with the premises and not with the consumer, so that water cannot be refused to an applicant because he is in arrears for water furnished him elsewhere. (1 Farnham on Waters, p. 880; Dayton v. Quigley, 29 N. J. Eq. 77.)</p> <p>There is also a line of authorities which hold that gas companies may refuse to supply gas when the consumer is in arrears for gas furnished; but these authorities all seem to be based upon a statute giving the gas company the right to refuse to furnish gas while any rates remain unpaid. But it is held that even where there is a statute on the subject, that the right does not exist where there is an honest dispute as to the amount due. (20 Cye. 1161, and eases there cited.)</p> <p>The consumer could not legally be required to pay for a portion of the company’s system, and neither could the company legally require an unreasonable payment in advance in order to secure water for domestic purposes. (Pocatello Water Co. v. StcuncCley, 7 Ida. 155, 61 Pac. 518; Bothwell v. Consumers Co., 13 Ida. 568, 92 Pac. 533.)</p> <p>A water company may make and enforce all reasonable rules and regulations which shall insure to it a fair return on the money invested, and also providing for the proper security to it of the payment of the rates fixed and amounts charged, as well as for the safety and preservation and conservation of its several instrumentalities. (Tacoma Hotel Go. v. Tacoma Light & Water Co., 3 Wash. 316, 28 Am. St. 35, 28 Pae. 516, 14 L. R. A. 669; Shepard v. Gaslight Go., 6 Wis. 539, 70 Am. Dec. 479; Harbison v. Knoxville Water Co. (Tenn. Ch.), 53 S. W. 993; Williams v. Mutual Gas. Co., 52 Mieh. 499, 50 Am. Rep. 266, 18 N. W. 236; Miller v. Wilkes-Barre Gas Co., 206 Pa. 254, 55 Atl. 974; Cedar Rapids Gaslight Co. v. City of Cedar Rapids (Iowa), 120 N. W.‘ 966; Watauga Water Co. v. Wolf, 99 Tenn. 429, 63 Am. St. 841, 41 S. W. 1060; Poole v. Paris Mt. Water Co., 81 S. C. 438, 128 Am. St. 923, 62 S. B. 874; People v. Manhattan Gaslight Co., 45 Barb. 136; Girard Life Ins. Co. v. Philadelphia, 88 Pa. 393; City of Atlanta v. Burton, 90 Ga. 486, 16 S. E. 214.)</p> <p>The requirement of a quarter’s rent in advance is not unreasonable. (Harbison v. Knoxville Water Co., supra.) A rule requiring a deposit of $20 has been held to be reasonable. (Northern Colo. etc. Co. v. Richards, 22 Colo. 450, 45 Pae. 423.) The right of a company to protect itself by requiring a deposit or other assurance that it will be paid for water furnished is well established. (Cedar Rapids Gaslight Co. v. City of Cedar Rapids, supra; Williams v. Mutual Gas. Co., 52 Mich. 499, 50 Am. Rep. 266, 18 N. W. 236.) A regulation requiring applicant to agree to pay a reasonable charge for connections is a- reasonable and proper one, especially when the commission has fixed such charge and it appears that the commissioners in fixing the charge for such connections had due regard to the monthly rate and vice versa. (Foley v. Hillyard Water Co., 49 Wash. 232, 94 Pac. 1080; Public Service Co. v. American Co., 67 N. J. Eq. 122, 57 Atl. 482; Prindiville v. Jackson, 79 Ill. 337; Jackson v. Ma/yor of Ellendale, 4 N. D. 478, 61 N. W. 1030; Palmer v. Danville, 154 Ill. 156, 38 N. E. 1067.)</p> <p>A company cannot be compelled to furnish taps free, without assurance of continued use. (Public Service Co. v. American Co., supra; Foley v. Hillyard Water Co., supra; San Diego Water Co. v. Sm Diego, 118 Cal. 556, 62 Am. St. 261, 50 Pae. 633, 38 L. R. A. 465.)</p> <p>A private owner has a right to enter the street and mate connections with main pipe, and it is his duty to do so at his own charge under certain conditions. (Faraham on Waters and Water Eights, p. 752; Gleason v. Waukesha Go., 103 Wis. 225, 79 N. W. 249.)</p> <p>A corporation cannot be required to use its property for the benefit of the public without receiving just compensation for the services rendered by it. (Smyth v. Ames, 169 U. S. 466, 18 Sup. Ct. 418, 42 L. ed. 819; San Diego Land & Town Go. v. National City, 174 IT. S. 739, 19 Sup. Ct. 804, 43 L. ed. 1154; Trammell v. Dinsmore, 102 Fed. 799; San Diego» Land & Town Go. v. Jasper, 110 Fed. 714; Jack v. Williams., 113 Fed. 827; Boise City Irr. & Land Go. v. Clark, 131 Fed. 415, 422.)</p> <p>The appropriation of private property to public use, no matter under what form of proceeding it is taken, amounts to a violation of the provisions of the federal constitution. (Chicago B. & Q. B. Go. v. Chicago, 166 U. S. 226, 17 Sup. Ct. 581, 41 L. ed. 979.) When property is devoted to a use in which the public have an interest, the state may regulate the charges, but such' charges must be reasonable. (Cotting v. Godard, 183 U. S. 79, 22 Sup. Ct. 30, 46 L. ed. 92; Spring Talley Waterworks v. San Francisco, 124 Fed. 585; Budd v. New York, 143 U. S. 517, 12 Sup. Ct. 468, 36 L. ed. 247; Sam, Diego Water Co. v. San Diego, 118 Cal. 556, 62 Am. St. 261, 50 Pac. 633, 38 L. E. A. 467; Dmwille v. Danville Water Co., 178 IU. 299, 69 Am. St. 304, 53 N. E. 118; Agua Pura Co. v. Los Yegas, 10 N. M. 6, 60 Pae. 208, 50 L. E. A. 234; Atlantic & Pac. B. Go. v. United States, 76 Fed. 190.)</p> <p>Legislation or decisions amounting'to destruction of value of property amounts to a taking of property without due process of law. (St. L. & S. F. B. Go. v. Gill, 156 TJ. S. 649, 15 Sup. Ct. 484, 39 L. ed. 567; Smyth v. Ames., supra; Capitol City Gaslight Go. v. Des Moines, 72 Fed. 839; San Joaquin etc. Co. v. Stanislaus Go., 90 Fed. 521; Emerhill Gaslight Go. v. Barker, 109 Fed. 694, 697; New Memphis Gas & Lt. Go. v. Memphis, 72 Fed. 955.)</p>

Hon. Edgar C. Steele, Judge. Action to compel the husband to pay out of the community property the debt of the wife contracted by her for her own use and benefit and for the benefit of her separate property. Judgment against plaintiff. The statute has modified the common law in so far as it renders the separate property of the wife liable for her debts and exempts the separate property of the husband.

<p>[APPEAL from the District Court of the Second Judicial District, for Latah County. Hon. Edgar C. Steele, Judge.</p> <p>An. action to enjoin the payment of an alleged illegal claim by a city. Temporary injunction granted. Defendant appeals.</p> <p>The detectives were employed in such a manner as to create a legal claim which the city could pay. (Rice v. Gwinn, 5 Ida. 394, 49 Pac. 412.) Under the existing circumstances of this particular case, it would hardly seem reásonable that this money expended by the mayor in the performance of his official duty should not be a legal charge against the town. (28 Cyc. 454.)</p> <p>The constitution of the state of Idaho by granting the right to the city to make said ordinance also granted unto the city the right to use such means as the eity might deem necessary to enforce the same. (8 Cyc. 741.) The regulation of police matters by a city and the manner of the enforcement thereof is left entirely with the city, and the legislature of the state has been vested with no power by the constitution to interfere therewith. (Ex parte Murphy, 8 Cal. App. 440, 97 Pac. 199 ■ Gale v. City of Moscow, 15 Ida. 332, 97 Pac. 828; State v. Quong, 8 Ida. 191, 67 Pac. 491.)</p> <p>A municipality, as a governmental agency, acting and bound always to act as trustee of the powers delegated to it, may not, by contract, license, or by law surrender or restrict any portion of the police power conferred upon it. (28 Gye. 643, 696; Walsh v. City of Denver, 11 Colo. App. 523, 53 Pac. 458; Cooley’s Const. Lim., p. 249.) Although the nominal and official head of the municipality, the mayor has no power to bind the corporation by written or oral contract or representation, unless he has been duly thereunto authorized by the governing body or by the state. (28 Cyc. 647; Cooley’s Const. Lim., p. 234.)</p> <p>“A taxpayer may enjoin any board or body from entering into a contract or doing any act not authorized by law, which might result in the creation of a public burden.” (Water, Light & Gas Co. v. Hutchinson etc. By. Co., 74 Kan. 661, 87 Pae. 883; Brummitt v. Ogden Waterworks, 33 Utah, 289, 93 Pac. 831.) There is no law in the state of Idaho giving to municipal corporations the power to hire or maintain a detective force, in addition to its police force. (People v. ¡Supervisors, 28 How. Pr. (N. Y.) 22.)</p>

<p>APPEAL from tbe District Court of tbe Second Judicial District, for Latab County. Hon. Edgar C. Steele, Judge.</p> <p>Action on a promissory note. Judgment for tbe plaintiff. Defendants appeal.</p> <p>It is relevant to put in evidence any circumstances wbicb tend to make tbe proposition at issue more or less probable. (Wharton on Ev., secs. 21, 22; Moran v. Abbey, 58 Cal. 163.) Any testimony which will assist tbe court or jury in determining wbicb party speaks tbe truth as to tbe issues in tbe action is relevant, and should be received. (Prior v. Oglesby, 50 Fla. 248, 39 So. 593; 2 Enc. of Ev. 173, and authorities there cited.)</p> <p>This eourt will not review tbe sufficiency of tbe evidence to sustain a verdict or a judgment, on an appeal from tbe judgment, unless the bill of exceptions contain a specification of the particulars in which it is claimed the evidence is insufficient. (Humphrey v. Whitney, ante, p. 14, 103 Pae. 389.)</p>

Original action by the board of regents of the State University against the governor, state treasurer, secretary .of state, and attorney general, to compel the issuance and sale of certain state bonds as authorized by an act, entitled “An act providing for the issuance and sale of state bonds in the aggregate sum of seventy-three thousand dollars ($73,000), and appropriating the proceeds thereof to the University of Idaho for completing the main or administration building,…

<p>APPEAL from the District Court of the Second Judicial District, for the County of Nez Perce. Hon. Edgar C. Steele, Judge.</p> <p>Action to foreclose a mortgage and to have a prior mortgage on the premises canceled. Judgment for defendants.</p> <p>George W. Bashor, having assumed and agreed to pay the Pitts Ellis note and mortgage as part of the consideration for certain real estate to him, and it becoming primarily his obligation, could not defeat a discharge of same by having the note assigned to a third person. (Jones on Mortgages, secs. 864, 865; 27 Cyc. 1333.)</p> <p>“A promise to pay notes imposes an obligation upon a party to discharge the same, and where such duty exists, the party owing it cannot purchase the notes and continue them in force.” (7 Cyc. 1018 (and note), 1026; Gordon v. Wan-sey, 21 Cal. 78.)</p> <p>Since there was no sale of the Pitts Ellis note and' mortgage, and it was in truth and fact paid by George W. Bashor, the only other possible theory upon which Lester Bashor could have any right or interest in and to the mortgage security would be by reason of subrogation. The doctrine of subrogation could not apply, for the reason that no part of the note was paid by Lester Bashor. Subrogation applies only where there has been an actual payment of a debt by some person who must pay it to protect his interests, or who does so under an agreement between the party, who pays it and the debtor or creditor that he is to have the security. (Jones on Mortgages, 874, 885, 886, 27 Cye. 1437, 1438.)</p> <p>cites no authorities.</p> <p>If George Bashor became the principal debtor, he only became so as between himself and Pitts Ellis. As to the creditor, the obligation could only be shifted with his consent. (Keller v. Ashford, 133 U. S. 610, 10 Sup. Ct. 494, 33 L. ed. 667.) When one person, being under obligation to do so, or is interested in so doing, pays the debts of another, he may be subrogated to all the rights, securities, and remedies of the creditor. (Wilson v. Wilson, 6 Ida. 597, 57 Pae. 708; Jones on Mortgages, 6th ed., see. 885b; Quinlan v. Stratton, 128 N. Y. 659, 28 N. E. 529; Shrove, v. Eankmson, 34 N. J. Eq. 76; Gomins v. Culver, 35 N. J. Eq. 94; Magee v. Leggett, 48 Miss. 139.) ■</p> <p>But Lester Bashor’s rights do not rest on the doctrine of subrogation. He has received his security properly assigned. He is not required to ask the court to substitute him for another payee. He is substituted by act of the parties. He is a purchaser who bought the paper for less than par. (Carter v. Burr, 113 U. S. 737, 5 Sup. Ct. 713, 28 L. ed. 1147; Rodman v. Sanders, 44 Ark. 504, cited and followed in Davies v. Pugh, 81 Ark. 253, 99 S. W. 78.)</p> <p>A court of equity will keep an encumbrance alive, or consider it extinguished, as will best subserve the purposes of justice and tbe actual and just intention of the parties. (Thompson v. Connecticut Mut. Life Ins. Co., 139 Ind. 325,' 38 N. E. 796.)</p> <p>Advantage of a payment by a third person cannot be taken by the debtor, as a discharge of his indebtedness, unless it was intended by the payer and the creditor to operate as a discharge. (Whiting v. Mut. Ins. Go., 15 Md. 297; King v. Barnes, 109 N. T. 266, 16 N. E. 332; Jones on Mortgages, 6th ed., 906.)</p> <p>“The passing of any consideration, even the due amount of money, from the mortgagor to the mortgagee may, or may not, discharge the mortgage according to their intention, and it will not be held to operate as a payment if the parties meant to beep the security alive and not to extinguish it.” (27 Cyc. 1393; 20 Am. & Eng. Ency. of Law, 2d ed., 1055; Keet v: Baker, 141 Mo. 175, 42 S. W. 940; Morris v. Alston, 92 Ala. 502, 9 So. 315; Martin v. Central L. & T. Co., 78 Iowa, 504, 43 N. W. 301; Capital Nat. Bank v. Holmes, 43 Colo. 154, 127 Am. St. 108, 95 Pac. 314, 16 L. R. A., N. S., 470.) When the amount, due on a mortgage is paid, the intent of the parties in making such payment, whether to extinguish or keep alive the security, will govern. (Coles v. Appleby, 87 N. Y. 114; Kennelly v. Kelly, 51 Conn. 329; Weidner v. Thompson, 69 Iowa, 36, 28 N. W. 422; Bleckman v. Butler, 77 Iowa, 128, 41 N. W. 593; Howe v. Lewis, 14 Pick. (Mass.) 329; Johnson v. Valido Marble Co., 64 Yt. 337, 25 Atl. 441; Flower v. Elwood, 66 Ill. 438; Sidener v. Pavey, 77 Ind. 241.)</p> <p>This court has in several instances held that the question of whether a mortgage is extinguished is a question of intent of the parties to be determined from all the circumstances. (Western etc. Co. v. Kendrick State Bank, 13 Ida. 331, 90 Pac. 112; Vollmer v. Estate of James W. Reid, 10 Ida. 196, 77 Pae. 325.).</p>

Hon. Edgar C. Steele, Judge. Action to recover damages for the wrongful appropriation of certain grain.

<p>APPEAL from the District Court of the Fourth Judicial District,, for Elmore County. Hon. Edward A. Walters, Judge.</p> <p>An action to determine the interest of plaintiff in an irrigation system and for the appointment of a receiver of such property pending such litigation. Appeal from the order appointing a receiver.</p> <p>As this action is not brought to enforce a contract, it would not come within the inhibition of see. 2653, Rev. St., as amended by the Laws of 1903, p. 49. (See War Eagle Con. Min. Go. v. Dickie, 14 Ida. 534, 94 Pac. 1034; Katz v. Herrick, 12 Ida. 7, 86 Pae. 873.)</p> <p>The court should have considered appellant’s answer as well as the plaintiff’s complaint, and finding therein a full and complete denial of every material allegation in the complaint was without jurisdiction to appoint a receiver. (Sweeney v. May hew, 6 Ida. 455, 56 Pac. 87.)</p> <p>The constitution, art. 15, sec. 1, declares that appropriation of waters for sale, rental or distribution is a public use, and the first concern of the courts is to see that the public gets the benefit of that use, and if it becomes necessary, for the courts to take charge of the distribution of water, in order that the public may have the use to which they are entitled, the courts will not hesitate to take such charge. The water is exclusively dedicated to the public. (Witter-ding v. Green, 4 Ida. 773-779, 45 Pae. 134.) The constitution also declares, art. 15, see. 2, that the right to collect rates or compensation for the use of water is a. franchise. Art. 11, sec. 15, prohibits the legislature “from passing any law permitting the leasing or alienation of any franchise so as to release or relieve the franchise or property held thereunder from any of the liabilities of the lessor or grantor, or lessee or grantee,” etc.</p> <p>Appellant cannot, in the face of the constitutional provisions above quoted, ask this court to relieve its franchise and property from the burden placed upon it by the lessee.</p>

Hon. Fremont Wood, Judge. Action in ejectment and to quiet title to a strip of land about five feet in width. Judgment for plaintiff, and defendant appealed. The defendant in this case could not be bound by the survey made by the commission, for the reason that none of the parties who made said survey were called to the stand to testify as to its 'accuracy, and the defendant did not have an opportunity to cross-examine the parties who made the commission survey.

<p>APPEAL from tbe District Court of tbe Fifth Judicial District, for Oneida County. Hon. Alfred Budge, Judge.</p> <p>Action to quiet title to certain real estate. Judgment for plaintiff.</p> <p>“A contract by which one person agrees to acquire title to ■a tract of public land through the homestead laws, and to convey the same to another, cannot be enforced by the prom-isee after the entry has been consummated.” (Moore v. Moore, 130 Cal. 110, 80 Am. St. 78, 62 Pac. 294; Pacific livestock Co. v. Gentry, 38 Or. 275, 61 Pac. 422, 65 Pac. 597; Clark v. Barley, 5 Or. 343.) If the illegality of a contract sued on appears from the testimony of plaintiff’s witnesses (and in this case from the findings of the court is made to appear), although not pleaded in the answer, the court of its own motion ought to dismiss the action. (Pacific Livestock Co. v. Gentry, 38 Or. 275, 61 Pae. 427, 65 Pae. 597; Ah Loon v. Smith, 25 Or. 89, 34 Pae. 1093; Buchtel v. Evans, 21 Or. 309, 28 Pae. 67; Bradfeldt v. Cooke, 27 Or. 194, 50 Am. St. 701, 40 Pae. 1.)</p> <p>A contract which was void when executed cannot be made valid by ratification of parties. (Wait Fraud Conv., sec. 489.) Nor is there any method whereby an illegal contract— one which never had life — can be rendered efficacious. (Brad-feldt v. Cooke, 27 Or. 194, 50 Am. St. 701, 40 Pae. 3.)</p> <p>A mere permissive possession or one consistent with the title of another, however long continued, can never ripen into a title by adverse possession. (1 Am. & Eng. Ency. of Law, 2d ed., 794; Smith v. Smith, 80 Cal. 323, 21 Pae. 4, 22 Pac. 186, 549; Anderson v. McCormick, 18 Or. 301, 22 Pac. 1062.)</p> <p>We are not seeking to enforce the contract between the father and the son; we are simply asking for a decree quieting what .title the father had — that is, a mere judicial declaration of an existing right. An action to quiet title will lie, although the plaintiff has no legal title to the premises in question. (Coleman v. daggers, 12 Ida. 125, 118 Am. St. 207, 85 Pac. 894; Johnson v. Hurst, 10 Ida. 308, 77 Pae. 784.)</p> <p>The rule that precludes a court from enforcing an agreement against public policy does not extend to a refusal to declare that such agreement has been enforced or performed by the parties themselves. “By reason'of the part performance of said contract, it does not come within the statute of frauds prohibiting oral sales of real estate.” (Fleming v. Baker, 12 Ida. 346, 85 Pac. 1092.)</p> <p>We do not contend that the title was made complete by possession, but we rely rather on an executed agreement and the doctrine of estoppel.- (Grice v. Woodworth, 10 Ida. 459, 109 Am. St. 214, 80 Pac. 912, 69 L. R. A. 584.)</p>

<p>APPEAL from tbe District Court of the Seventh Judicial District, for Washington County. Hon. Ed. L. Bryan, Judge.</p> <p>Action by the First National Bank of Weiser and its stockholders to review the action of the board of equalization of Washington county ordering certain property assessed against the bank, and in also ordering a raise in the valuation of the capital stock of the bank as the same had been assessed against the stockholders. Judgment for the plaintiffs, and the defendants appeal.</p> <p>Respondents are held to a knowledge of the meeting of the board of equalization on the second Monday of July of each year for the equalization of assessments, regardless of any notice, for such is the statutory provision, see. 1692, Rev. Codes. (Inland Lumber Co. v. Thompson, 11 Ida. 520,114 Am. St. 274, 83 Pac. 933.) If a party appear in a suit or proceeding, he thereby cures or waives whatever defects may exist in the original process itself necessary to bring a party into court, or whatever irregularity may have occurred in the service of such process. (Moore v. Koubly, 1 Ida. 58; Godfrey v. Douglass Co., 28 Or. 446, 43 Pac. 174; Hayes v. Skattuck, 21 Cal. 52; 4 Cent. Dig., col. 2817, and cases cited.)</p> <p>The shares in national banks are taxed at their actual value as affected by the surplus and undivided profits,’ and this must be without regard to whether such surplus and undivided profits are in this state or out of this state, so long as they affect the value of such shares. (Palmer v. McMahon, 133 U. S. 660,10 Sup. Ct. 324, 33 L. ed. 775; Bank Tax Cases, 70 U. S. 387, 18 L. ed. 229; First Nat. Bank v. Harwell, 7 Fed. 518, 10 Biss. 270.)</p> <p>To entitle a shareholder to a deduction of his individual indebtedness from the value of his stock, he must make the necessary claim provided for in paragraph 6 of -sec. 1682, Rev. Codes of Idaho. (Williams v. Weaver, 100 U. S. 547, 25 L. ed. 709; Stanley v. Albany Co., 121 U. S. 535, 7 Sup. Ct. 1234, 30 L. ed. 1000; Supervisors v. Stanley, 105 U. S. 305, 26 L. ed. 1044.)</p> <p>The respondent had the right to appear before the board and show that such increase or “raise” in his assessment should not be made. We are not authorized to presume that said order was made without evidence. The board had jurisdiction to make said order. That is the only question before us for determination. (Murphy v. Board, 6 Ida. 749, 59 Pae. 715.) The record does not show what evidence was before the board, but we must presume that the board had proper evidence before it on which to base its decision. {Becker v. Malheur Go., 24 Or. 217, 33 Pae. 544; Godfrey v. Douglass County, 28 Or. 446, 43 Pac. 174.)</p> <p>The scope of this review is confined to the question whether the board of equalization had jurisdiction and proceeded regularly. (Sec. 4968, Rev. Codes; Smith v. City of Portland, 25 Or. 297, 35 Pac. 666; McConnell v. State Board, 11 Ida. 662, 83 Pac. 494; 4 Bncy. PL & Pr. 287; 6 Cye. 832.) The writ of review is a statutory remedy. The limitations and the authority for its issuance in any particular case must be sought for and found in the statutes. {McConnell v. Board, supra; Adelman v. Pierce, 6 Ida. 294, 55 Pac. 658.)</p> <p>The writ is only granted when there is no appeal or no plain, speedy and adequate remedy, and when some tribunal, iboard or officer exercising judicial functions has exceeded the jurisdiction conferred upon such tribunal, board or officer. (See. 4962, Rev. Codes1; Rogers v. Hayes, 3 Ida. 598, 32 Pac. 259; Dahlstrom v. Portlmd Min. Co., 12 Ida. 87, 85 Pae. 916.)</p> <p>Secs. 28, 29, 32 and 43 of the revenue act of 1901 clearly point out the statutory right to offset debts against stocks in banks. Besides this, there is abundant authority to support the contention that “other moneyed capital” includes all unsecured notes, bonds, ehoses in action, loans on account, etc. {People v. Miearner, 100 U. S. 543, 25 L. ed. 705; Pel-ton v. Com. Nat. Bk., 101 U. S. 143, 25 L: ed. 901; Palmer v. McMahon, 133 U. S. 660, 10 Sup. Ct. 324, 33 L. ed. 775; Bank of Redemption v. Boston, 125 U. S. 60, 8 Sup. Ct. 772, 31 L. ed. 689; First Nat. Bk. v. Chapman, 173 U. S. 205, 19 Sup. Ct. 407, 43 L. ed. 669.)</p> <p>The property of the bank, consisting of its money, furniture, fixtures, and notes are its property, and the stock held by the stockholders is but the paper representative of said property. To assess the stock and also assess any part of the property, except the real estate, is to double assess the association. In this respect the assessment made by the board was void and without jurisdiction. (City and County of San Francisco v. Crocher-Woolworth Nat. Bk., 92 Fed. 273.)</p> <p>If stocks in a national bank are not credits, against which the respective stockholders may offset their debts due to bona fide residents of Idaho, then the entire assessment against said stock is illegal and void> because in such ease a clear discrimination would be made against the owners of national bank shares and in favor of the owners of credits arising from other moneyed capital. (See. 5219, U. S. Rev. Stat.; Miller v. Heilbron, 58 Cal. 133; Bodge v. Nevada Nat. Bit., 109 Fed. 727, 48 C. C. A. 626; McHenry v. Downer, 116 Cal. 20, 47 Pac. 779, 45 L. R. A. 737; Wasson v. First Nat. Bit., 107 Ind. 217, 8 N. E. 97; First Nat. Bank of Albia'v. City Council, 86 Iowa, 37, 52 N. W. 334; Bressler v. Wayne Co., 25 Neb. 473, 41 N. W. 356.)</p> <p>The article of the state constitution which provides that all property shall be assessed at a uniform rate is violated when it is shown that assessing officers assess in any considerable amount property at one-third or one-half and other property at two-thirds of its cash value. (First Nat. Bit. v. Lindsay, 45 Fed. 619.)</p> <p>Shares in national banks shall not be assessed to the bank in solido, but only the shares to the individual owners, and they must be taxed separately in order that the owner may deduct from their value the amount of his personal indebtedness, where the state laws permit such deductions and require equality of taxation.. (First Nat. Bit. v. City of Richmond, 39 Fed. 309.) The taxation of national bank shares by the Indiana statute without permitting the shareholder to deduct from their assessed value the amount of his bona fide indebtedness, as in the case of other investments of moneyed capital, is a discrimination forbidden by the act of Congress. (Brit-ton v. Evmsville Nat. Bit., 105 U. S. 322, 26 L. ed. 1053.)</p> <p>“Where there is any irregularity or illegality in the proceedings of the assessors, a writ of certiorari will lie to review and correct such errors.” (4 Eney. of PI. & Pr. 117, and notes 1 and 2.) “In such cases the whole assessment will be set aside.” {Bouton v. Brooklyn, 2 Wend. (N. Y.) 395; People v. Board of Assessors, 39 N. Y. 81; Baldwin v. Cal-kins, 10 Wend. (N. Y.) 167.)</p> <p>The review may be extended to every issue of law and fact involved in the question of jurisdiction, and not only the record, but the evidence itself, when necessary for the determination of this question, must be returned. {Sweeney v. Mayhew, Judge, 6 Ida. 455, 56 Pac. 87; People v. Board, 14 Cal. 479.)</p> <p>If the owners of other moneyed capital are permitted to deduct from the assessed value thereof the amount of debts which they owe, the same privilege must be allowed to the holders of national bank stock. {People v. Weaver, 100 U. S. 539, 25 L. ed. 705; Britton v. Evansville Nat. Bk., 105 Ü. S. 322, 26 L. ed. 1053; Supervisors v. Stanley, 105 U. S. 305, 26 L. ed. 1044; First Nat. Bk. of Leoti v. Fisher, 45 Kan. 726, 26 Pac. 482 • Mercantile Nat. Bk. v. Shields, 59 Fed. 952.)</p> <p>“The board of equalization acting on assessments is a tribunal of limited and inferior powers, and hence its jurisdiction must affirmatively appear on the record of its proceedings.” {Copper Queen Con. M. Co. v. Board of Eq., 7 Ariz. 364, 65 Pac. 149; Montana Ore Purchasing Co. v. Maher, 32 Mont. 480, 81 Pac. 13.)</p> <p>“Failure to give a taxpayer the ten days’ notice of a proposed increase in his assessment is not waived by his subsequently appearing and securing a reduction of the increased assessment.” {Western Bmches, Ltd., v. Custer County, 28 Mont. 278, 72 Pac. 659, and cases cited.) Previous notice must be given to the taxpayer, and this is jurisdictional. (1 Cooley on Taxation, 3d ed., pp. 628-628; Dykes v. Lockwood Mort. Go., 2 Kan. App. 217, 43 Pac. 268; Topeha Water Supply Go. v. Roberts Go. Treas., 45 Kan. 363, 25 Pac. 855.)</p>

Hon. Edward A. Walters,. Judge. Application for patent to mineral ground by appellant. Respondent adverses. Judgment for respondent. A relocation under the law is merely a new location of ground formerly held but abandoned. When one claim is abandoned and another located-, all rights are -determined with reference to the new location. (Cheesman v. Shreeve, 40 Fed. 787; Van Valkenburg v. Suff, 1 Nev. 142; Lavagnino v. JJhligr 198 U. S. 443, 25 Sup.

Hon. J. M. Stevens, Judge. An application for a writ of assistance in foreclosure proceeding.

Hon. Alfred Budge, Judge. A petition to call an election under tbe local option law was presented to tbe board of county commissioners. Tbe election was ordered by tbe board. Appeal to the district court. Order of tbe board affirmed.

Hon. Fremont Wood, Judge. Action to recover for personal injuries alleged to have been sustained by reason of defective appliances in machín-ery. Demurrer to tbe complaint sustained and judgment of dismissal entered. Contributory negligence is a defense only when pleaded and proven. (Adams v. Bunker Hill & 8. Go., 12 Ida. 637, 89 Pae. 624, 11 L. R. A., N. S., 844.) The master must furnish appliances which are reasonably safe and proper.

Hon. Fremont Wood, Judge. .An action to foreclose a chattel mortgage. Judgment for plaintiff. Defendant and cross-complainant appeals. Tbe undisputed facts in this case entitle tbe appellant as against tbe plaintiff to an “equitable assignment by way of subrogation” of the First National Bank mortgage, to the extent that the appellant has furnished money which directly or indirectly was used in the payment of the bank’s mortgage. (3 Pomeroy Eq.

<p>APPEAL from the District Court of the Sixth Judicial District, for the County of Custer. Hon. James Stevens, Judge.</p> <p>Appeal to the district court from the action of the board of commissioners of Custer county disallowing a claim. Judgment in the district court in favor of the plaintiff, and the county appealed.</p> <p>cites no authorities.</p> <p>. "Where the sheriff and his deputy are both obliged to devote their time to the general duties of the office, any expense incurred in earing for a criminal becomes a county charge. (Lansdon v. Washington County, 16 Ida. 618, 102 Pac. 344.)</p>

Hon. Fremont Wood, Judge. ■ Action by the plaintiff for debt. Answer and counterclaim by defendant denying the maturity of the obligation and alleging damages to real estate. Judgment for plaintiff and defendant appealed. The remedy of injunction and ejectment cannot be invoked' after the road has been constructed and possession of the land taken by the company for railway purposes. Defendant’s, action then was only an action for damages.

Hon. Ed. L. Bryan, Judge. An action to recover upon a contract of employment to perform labor and for the foreclosure of a laborer’s lien. Judgment for plaintiff. Defendant appeals. The fact of Findlay’s labor upon the Mayflower mine, or group of mines, is supported only by his own testimony.

Hon. Ed L. Bryan, Judge. Action to recover from defendant the cost of constructing a bridge over its irrigating canal.

<p>APPEAL from, tbe District Court of tbe Sixth Judicial District for Bingham County. Hon. James M. Stevens, Judge. '</p> <p>Action to recover damages alleged to have been sustained because of a rough and slippery sidewalk. Judgment for the plaintiff.</p> <p>“The city is not liable for accidents occasioned by mere slipperihess caused by ice upon the walk, if the ice' is not so rough and uneven, or so rounded up, or at such an incline as to make it an obstruction, and to cause it to be unsafe for travel with the exercise of due care.” (Calder v. Walla Walla, 6 Wash. 377, 33 Pac. 1054; Henkes v. Minneapolis, 42 Minn. 530, 44 N. W. 1026; Chicago v. McGiven, 78 Ill. 347; Cook v. Milwaukee, 24 Wis. 270, 1 Am. Rep. 183; Chase v. Cleveland, 44 Ohio St. 505, 58 Am. Rep. 843, 9 N. E. 225; Broburg v. Des Moines, 63 Iowa, 523, 50 Am. Rep. 756, 19 N. W. 340; Kennenberg v. Alpena, 96 Mich. 53, 55 N. W. 614; Hutchinson v. Ypsilanti, 103 Mich. 12, 61 N. W. 279; Peard v. Mt. Vernon, 31 N. Y. Supp. 395; Aurora v. Parks, 21 Ill. App. 459; Dillon on Mun. Corp., sec. 1006; Smyth v. Bangor, 72 Me. 249; Hutchins v. Boston, 97 Mass. 272; Harrington v. Buffalo, 121 N. Y. 147, 24 N. E. 186; Greenlaw v. Millihen, 100 Me. 440, 62 Atl. 145; Norwalk v. Tuttle, 73 Ohio St. 242, 76 N. E. 617.)</p> <p>Where a person goes upon a sidewalk known by him to be in a dangerous and defective condition, with the thought in mind at the time that the sidewalk is dangerous and defective, but with the further thought that he can get safely over it and escape such danger, in which undertaking he fails and is injured on account of the very dangerous conditions in mind, he is guilty of contributory negligence as a matter of law, and cannot recover. (Wright v. St. Cloud, 54 Minn. 94, 55 N. W. 819; Pittman v. HI Reno, 4 Okl. 638, 46 Pac. 495; Norwood v. Somerville, 159 Mass. 105, 33 N. E. 1108; Schaefler v. Sandusky, 33 Ohio St. 246, 31 Am. Rep. 533; Macomb v. Smithers, 6 Ill. App. 470; Aurora v. Brown, 12 Ill. App. 122; Sumner v. Scaggs, 52 III. App. 551; Norwalk v. Tuttle, 73 Ohio St. 242, 76 N. E. 617.)</p> <p>In this state cities and villages are liable in damages for the negligent discharge of the duty of keeping their streets and alleys in a reasonably safe condition for use by travelers in the usual modes. (Carson v. City of Genesee, 9 Ida. 244, 108 Am. St. 127, 74 Pac. 862; Moretón v. St: Anthony, 9 Ida. 532, 75 Pac. 262.) Where the ice and snow has been allowed to accumulate for an unreasonable length of time, and the same is in a rough and uneven condition, then liability attaches to the municipality. (Elliott on Roads and Streets, 2d ed„ see. '625; Tobin v. City of Waterloo, 131 Iowa, 75, 107 N. W. 1031; Norton v. St. Louis, 97 Mo. 537, 11 S. W. 242; Cook v. Milwaukee, 24 Wis. 270.)</p> <p>“If ice or snow is permitted to remain upon a sidewalk or street crossing in such an uneven and rounded form that a person cannot walk over it, using due care, without danger of falling down, it constitutes a defect for which the city or town is liable.” (Collins v. Council Bluffs, 32 Iowa, 324, 7 Am. Rep. 200; Todd v. Troy, 61 N. T. 506; McLaughlin v. City of Corry, 77 Pa. 109, 18 Am. Rep. 432; Barton v. Montpelier, 30 Yt. 650; Salzer v. Milwaukee, 97 Wis. 471, 73 N. W. 20; Huston v. Council Bluffs, 101 Iowa, 33, 69 N. W. 1130, 36 L. R. A. 211.)</p> <p>It is not negligence per se for a person to pass .over a street known to be dangerous. (7 Am. & Eng. Ency. of Law, 2d ed., 392; Carson v. Genesee, 9 Ida. 244, 108 Am. St. 127, 74 Pae. 862; Wells v. Village of Herman, 4 N. Y. St. Rep. 773; Koch v. Ashland, 88 Wis. 603, 60 N. W. 990; Dewire v. Bairley, 131 Mass. 169, 41 Am. Rep. 219; Ball v. City of El Paso, 5 Tex. Civ. App. 103, 23 S. W. 835.)</p>

Hon. Edward A. Walters, Judge. Action to recover for money loaned. Judgment for plaintiff. Service of summons on the corporation must be made on some person designated by the statutes, or, to bind a corporation, the service of process must be made upon the identical agent provided by the statutes. (Applington v. G. V. B. Min. Co., 6 Ida. 216, 55 Pac. 241; Aiken v. Mariposa Min. Co., 6 Cal. 186; O’Brien v. Shaws Flat. etc. Co., 10 Cal. 343; Great West Min.

Hon. Fremont Wood, Judge. Motion to deny application for the settlement of a proposed statement on motion for a new trial. Motion granted. The court did not lose jurisdiction absolutely so that counsel for the respective parties could not, by agreement, continue said matter.

Hon. Ed L. Bryan, Judge. An action to recover the grazing license fee npon sheep brought into the state from another state. Judgment for plaintiff.

<p>APPEAL from tbe District Court of the Seventh Judicial District, for the County of Canyon. Hon. Ed L. Bryan, J udge.</p> <p>Prosecution for murder; conviction of manslaughter. Defendant appealed.</p> <p>The prosecuting attorney is limited in his powers to charging the offense upon which the defendant has been committed. (Charge to Grand Jury, 2 Saw. '667, 30 Fed. Cas. No. 18,255; In re Bain, 121 IT. S. 1, 7 Sup. Ct. 781, 30 L. ed. 849; 20 Cyc. 1294, and cases cited; Hurtado v. California, 110 U. S. 516, 4 Sup. Ct. Ill, 28 L. ed. 232.)</p> <p>The supreme court of California, with constitutional and statutory provisions quite similar to our own, has taken this view in the ease of People v. Nogiri, 142 Cal. 596, 76 Pac. 490.</p> <p>The prosecuting attorney can-proceed by information only upon the offense designated by the magistrate who holds the examination. (State v. Boulter, 5 "Wyo. 236, 39 Pac. 883; Yaner v. People, 34 Mich. 286; People v. Bechtel, 80 Mich. 623, 45 N. W. 582; People v. Pichette, 111 Mich. 461, 69 N. W. 739.)</p> <p>Where the right to file an information by the prosecuting attorney is based upon statutes or constitutions like our own, they are uniform in requiring the prosecuting attorney to file an information for the same offense as that named ,by the committing magistrate or for an offense of a lesser grade than that named, and in no instance do they permit the prosecuting attorney to file an information charging a different offense or a higher grade of offense than that named by the committing magistrate. (People v. Jones, 24 Mich. 215; People v. Sessions, 58 Mich. 594, 26 N. W. 291; People v. Handley, 98 Mieh. 46, 52 N. W. 1032; Kennegar v. State, 120 Ind. 176, 21 N. E. 917; Alderman v. Stale, 24 Neb. 97, 38 N. W. 36; City of Galt v. Elder, 47 Mo. App. 164; Mills v. State, 53 Neb. 263, 73 N. W. 761; Hanson v. State (Tex. Cr. App.), 61 S. W. 120.)</p> <p>The fact that the court gave a correct instruction upon the particular phase of the right of self-defense in instruction No. 20 does not render harmless the giving of an erroneous instruction on the same subject. (Harris v. People, 32 Colo. 211, 75 Pac. 427; 1 Blashfield Ins. to Juries, see. 78; State v. Well, 6 Ida. 428, 55 Pac. 892.)</p> <p>The court erred in giving instruction No. 46, in regard to character evidence to the jury. (Latimer v. State, 55 Neb. 609, 70 Am. St. 403, 76 N. W. 207; State v. Tm Kuran, 25 Utah, 8, 69 Pac. 60; People v. Garlutt, 17 Mich. 9, 97 Am. Dec. 162; Commonivealth v. Leonard, 140 Mass. 473, 54 Am. Rep. 485, 4 N. E. 96; Powers v. State, 74 Miss. 777, 21 So. 657; Edgington v. United States, 164 U. S. 361, 17 Sup. Ct. 72, 41 L. ed. 467; Bemsen v. People, 43 N. Y. 6; People v. Casey, 53 Cal. 360; Hughes, Instructions to Juries, see. 341.)</p> <p>From the earliest time until the ease of People v. Nogiri, 142 Cal. 596, 76 Pae. 490, decided by the supreme court of California, in 1904, that court uniformly held in a long line of cases that the public prosecutor, in filing his information, was governed, not by the commitment of the magistrate, but by the depositions taken at the preliminary hearing. (People v. Vierra, 67 Cal. 231, 7 Pac. 640; People v. Lee Ah Chuck, 66 Cal. 662, 6 Pae. 859; People v. Christian, 101 Cal. 474, 35 Pae. 1043.)</p> <p>At the time of the adoption of this statute (see. 7579), the California court was holding in line with the above authorities. In adopting a statute from a sister state, the construction which has been put upon that statute by the courts of that state is adopted with the statute. (Territory v. Evans, 2 Ida. 651, 23 Pac. 232.)</p> <p>“The prosecutor has a right to describe the offense, as it is declared by the facts appearing upon preliminary examination.” (People v. Karste, 132 Mich. 455, 93 N. W. 1081; Brown v. People, 39 Mich. 37; Alderman- v. State, 24 Neb. 97, 38 N. W. 36; State v. Jwrrett, 46 Kan. 754, 27 Pae. 146; State v. Reedy, 44 Kan. 190, 24 Pae. 66; Redmond v. State, 12 Kan. 172.)</p> <p>The state of Washington holds definitely to the doctrine that the basis of the information is the depositions taken at the preliminary hearing (State v. Myers, 8 Wash. 177, 35 Pac. 580), and has a statute identical with our statute. (Sec. 7660, Rev. Codes. See Ballinger’s Code, sec. 6835; State v. Farris, 5 Ida. 666, 51 Pae. 772.)</p> <p>The defendant was not prejudiced by the information filed against him charging murder, when as a matter of fact he was convicted of the crime for which he was committed and for the crime for which he contends he should have been committed in the first instance. (Territory v. Evans, 2 Ida. 651, 23 Pae. 232; State v. Rice, 7 Ida. 762, '66 Pac. 87; Territory v. Neilson, 2 Ida. 614, 23 Pac. 537.)</p>

Hon. Edward A. Walters, Judge. Trial and conviction of murder in the first degree. Defendant appeals. The defendant did not have a reasonable opportunity between the date of the offense and that of the trial to procure witnesses and prepare his defense,- and if such is the case, a continuance should be granted.

<p>APPEAL from the District Court of the Seventh Judicial District of the State of Idaho, for Canyon County. Hon. Ed L. Bryan, Judge.</p> <p>Action in ejectment. Judgment in favor of the plaintiff and the defendant Green, and against the defendant Scott. Defendant Scott appealed from the judgment and an order denying a motion for a new trial.</p> <p>Whenever the question in any court, state or federal, is whether the title to land which has once been the property of the United States has passed from the federal government, that question must be resolved by the laws of the United States. (Wilcox v. Jackson, 13 Pet. 517 -, 10 L. ed. 273; Irvine v. Marshall, 20 How. 558, 15 L. ed. 994; Gibson v. Chouteau, .13 Wall. 92, 20 L. ed. 534.)</p> <p>The courts of the United States will construe the grants of the general government without reference to the rules of construction adopted by the states for their grants, but whatever incidents or rights to the soil under navigable waters attach to the ownership of land conveyed by the government will be determined by the states, subject to the condition that their rules do not impair the efficacy of the grants or the use and enjoyment of the property by the grantee. (Shively v. Bowlby, 152 U. S. 1, 14 Sup. Ct. 548, 38 L. ed. 331, 347; St. Anthony etc. Co. v. St. Paul, 168 U. S. 349-362, 18 Sup. Ct. 157, 42 L. ed. 497, 502; Packer v. Bird, 137 U. S. 661, 11 Sup. Ct. 210, 34 L. ed. 819.)</p> <p>Islands in existence at the time of the survey of the mainland and prior to the admission of the state into the Union are subject to survey and grant by the government as other public lands, and do not pass to the grantees of the mainland opposite the island or to the state. (United States v. Mission Bock Co., 189 U. S. 391, 23 Sup. Ct. 606, 47 L. ed. 865; Mission Bock Co. v. United States, 109 Fed. 763, 48 C. C. A. 641; 1 Farnham on Waters, p. 50; Granger v. Swart, I Woolw. 88, Fed. Cas. No. 5685; Packer v. Bird, 71 Cal. 134, II Pac. 873, 137 U. S. 661, 11 Sup. Ct. 210, 34 L. ed. 819; ■Horne v. Smith, 159 U. S. 40,15 Sup. Ct. 988, 40 L. ed. 68.)</p> <p>The government is not required to survey an island in navigable waters at the time the mainland is surveyed. And the failure of the surveyor to show such island on the official plats does not operate to pass title from the government to the riparian owner, or estop it from making claim thereto when its attention is directed to it. (Kirwan v. Murphy, 189 U. S. 35, 23 Sup. Ct. 599, 47 L. ed. 698; Niles v. Cedar Point Club, 175 U. S. 300, 20 Sup. Ct. 124, 44 L. ed. 171; Moffat v. United States, 112 U. S. 24, 5 Sup. Ct. 10, 28 L. ed. 623; Whitside v. United States, 93 IT. S. 247, 23 L. ed. 882.)</p> <p>The executive department has not the power to strip the government of its public lands by a mere method of survey, and the running of a meander line does not affect the title of the United States to the land beyond the meander, and one receiving a patent for the full acreage paid for will not be heard to insist that by reason of an error on the part of the surveyor he is entitled to more land than he paid for. (Niles v. Cedar Point Club, supra; Barnhart v. Ehrhart, 33 Ok. 274, 54 Pac. 195; Horne v. Smith, 159 U. S. 40, 15 Sup. Ct. 988, 40 L. ed. 68; Security Land etc. Co. v. Burns, 193 U. S. 167, 24 Sup. Ct. 425, 48 L. ed. 662; Security Land etc. Co. v. Burns, 87 Minn. 97, 94 Am. St. 684, 91 N. W. 304, 63 L. R. A. 157; French Glenn Livestock Co. v. Springer, 35 Or. 312; 58 Pac. 102; French Qle'ivn Livestock Co. v. Springer, 185 U. S. 47 , 22 Sup. Ct. 563, 46 L. ed. 800; Carr v. Moore, 119 Iowa, 152, 97 Am. St. 292, 93 N. W. 52; Grant v. Hemphill, 92 Iowa, 218,59 N. "W. 263, 60 N. W. 618; Lammers v. Nissen, 4 Neb. 245; Bissell v. Fletcher, 19 Neb. 725, 28 N. W. 303; James v. Howell, 41 Ohio St. 696.)</p> <p>The statutes of the United States relating to the disposal of the public domain confer no power to sell unsurveyed public land; neither do they invest the courts with authority to enlarge the grants actually specified in the patents of the United States. (Barnard v. Ashley, 18 How. 43, 15 L. ed. 285; Grogan v. Knight, 27 Cal. 519; United States v. Curtner, 38 Fed. 1; Shiveley v. Bowlby, supra; Chas. Biver Bridge v. Warren Bridge, 11 Pet. 420, 544-548, 9 L. ed. 773, 822-824; Central Trans. Co. v. Pullman’s Palace Car Co., 139 U. S. 24, 11 Sup. Ct. 478, 35 L. ed. 55.)</p> <p>An island in existence at the time of the admission of the state into the Union, consisting of 138 acres of dry land and adapted to the ordinary agricultural uses, and not subject to overflow, is not part of the river bed, and title thereto does not pass by implication or legal intendment to either the state or the riparian owner, but may be claimed, surveyed and sold by the government as other public lands. (Mission Bock Go. v. TJnited States, 109 Fed. 763, 48 C. C. A. 641; S. C., 189 U. S. 391, 23 Sup. Ct. 606, 47 L. ed. 865, and cases cited supra.)</p> <p>A grantee of the government of fractional lots containing within the meander lines the entire acreage for which the government received pay does not take title under his patent to an’unsurveyed island (subsequently claimed and surveyed by the government) under the facts of this ease. In such eases the riparian owner will take only to the meander thread of the nearest channel of the river. (Steinbuchel v. Lane, 59 Kan. 7, 51 Pac. 886; Shoemaker v. Hatch, 13 Nev. 261.)</p> <p>Where the land department, when its attention is called to an unsurveyed island containing 138 acres of upland situated in a navigable river and surrounded by large and permanent channels of running water during all seasons of the year, causes it to be surveyed and sold as other public lands, its decision that the island is part of the public domain will be sustained by the courts. (United States v. Moore, 95 U. S. 760, 24 L. ed. 588; Whitaker v. McBride, 197 U. S. 510, 25 Sup. Ct. 530, 49 L. ed. 857; White v. Whitcomb, 13 Ida. 490, 512-514, 90 Pae. 1080; Heath v. Wallace, 133 U. S. 582, 11 Sup. Ct. 380, 34 L. ed. 1068; 32 Cyc. 1020 et seq.)'</p> <p>The riparian owner takes title to the thread of the stream, both in navigable and non-navigable rivers, subject to an easement for the use of the public. (Johnson v. Hurst, 10 Ida. 308, 77 Pac. 784; Shields v. Johnson, 10 Ida. 481, 79 Pac. 391; Moss v. Barney, 14 Ida. 598, 95 Pac. 513; Johnson v. Johnson, 14 Ida. 561, 95 Pac. 499; Shaw v. Oswego Iron Co., 10 Or. 379, 45 Am. Rep. 146; 15 New International Ency. 49.),</p> <p>STATEMENT OE CASE.</p> <p>This action, was instituted by plaintiff to quiet his title to a tract of land commonly known by the designation of “Poole Island” in the Snake river. The plaintiff claimed a part of the island by reason of owning the upland which meandered the river, and claimed the balance of the island against the owner of the upland by reason of adverse possession. The defendant, Scott, who is appellant in this case, claimed that while the island was public unappropriated lands he entered upon the same, and that the title to the land is in the United States government, and that the plaintiff” has no title or right of possession in or to the property.</p> <p>The facts of the case are as follows: This land was surveyed under the order and direction of the commissioner of the general land office of the government in September, 1868. The field-notes to sections 10, 15, and 22 of township 9 north, range 5 west, among other things show as follows: In the survey of the north boundary to see. 22, the surveyor says: “Set a post with charred stake in mound of earth, with pits as per instructions for cor. to frac. secs. 15 and 22 on the right bank of Snake river.” With reference to lines between secs. 10 and 15 the notes say: “Set post with charred stake in mound of earth with pits as per instructions for cor. to frac, secs. 10 and 15 on the right bank of Snake river.” Again, with reference to the east boundary of see. 10, he says: “Set post with charred stake in mound of earth with pits as per instructions for cor. to frac. secs. 10 and 11, on right bank of Snake river.” With reference to line between sections 21 and 22, he says: “Set post with charred stake in mound of earth with pits as per instructions for cor. to frac. secs. 21 and 22 on right bank of Snake river.” This is followed by the notes of the meanders of the right bank of Snake river for sections 10, 15, and 22. Among other things to be found in the “general description” to the township, it is said: “This township contains a fair proportion of rich bottom land situated on the Snake and Payette rivers.” The following map is a copy of that portion of the plats returned anl filed by the surveyor covering and including the land in question in this ease, which is located in sections 15 and 22:</p> <p> </p> <p>Some years prior to May 29, 1894, Samuel ~W. Poole made application under the act of Congress of April 24, 1820, for the purchase of lots numbered 2, 3, and 4 in section 15, town. 9 N., range 5 W., and paid for 73.30 acres of land, and thereafter on the 29th day of May, 1894, the patent of the United States duly and regularly issued to Poole for the above-described tracts. About one-half of the island in length lay opposite and directly west of these three fractional lots of land. Poole had been residing on the island since prior to 1883, and he and his successors, assigns, and grantees have ever since been in the possession and occupancy of the land, claiming the same. The plaintiff Lattig is the successor in interest by mesne conveyance from Poole, the original patentee. Some years prior to 1895, the respondent, Eobert Green, entered and filed upon lots numbered 1 and 2, and the SB. *4 of the NE. *4 of Sec. 22, town. 9, under the Homestead Act of May 20, 1862; and in pursuance thereof and on the 4th day of February, 1895, a patent of the United States issued to Eobert Green for the lands last above described. In each of these patents it was recited as a part of the description of the land that it was “according to the official plat of the survey of the said land returned to the general land office by the surveyor general. ’ ’ The defendant Green appears to have likewise taken possession of that portion of the island which lay directly west of and opposite to the fractional subdivisions patented to him, and to have continuously used and occupied and claimed the same up to the time of the commencement of this action.</p> <p>Some years prior to the commencement of this action the appellant, John E. Scott, entered upon this island as the employee of one of the owners of the upland, but thereafter asserted his rights as a settler on public domain and took steps with a view to connecting his claim with the title of the United States to such lands. He made application to the general land office to have the island surveyed as a part of the public domain, and thereafter and in the month of March, 1906, the commissioner of the general land office ordered a survey of the island. Such proceedings were accordingly had that thereafter and about the month of June, 1906, a survey was made and the surveyor returned his field-notes together with a plat showing the land surveyed. The portion of this plat covering the island and the lands in question is as follows:</p> <p> </p> <p>The ease went to trial before the court without a jury, and the court made findings of fact as follows:</p> <p>“This cause came on regularly for trial on the 9th day of July, 1907, before the court without a jury, a jury trial having been duly waived by the parties, at chambers, in the city of Payette, Idaho, by stipulation of counsel, I. W. Ken-ward, Esq., appearing as attorney for plaintiff, Richards & Haga, Esqs., for defendant J. E. Scott, and Karl Paine, Esq., for the defendant'Robert Green, the defendants Bert Jakoaks, George T. Thebo, John Talbot, Charles Cravin, and S. L. Sparks not appearing by counsel or otherwise, and the court having heard all the evidence and proofs produced herein and duly considered the same, and being fully advised in the premises, and it appearing therefrom to the satisfaction of the court that the defendants, Bert Jakoaks, George T. Thebo, John Talbot, Charles Cravin and S. L. Sparks, were duly and regularly summoned to answer unto the plaintiff’s complaint herein, and that each has made default in that behalf, and that the default of each for not appearing and answering unto plaintiff’s complaint was duly and regularly entered herein, from the evidence introduced at the trial the court finds the facts as follows, to wit :</p> <p>“1. That on the 2d day of July, 1904, the plaintiff was and ever since has been, and his grantors were for many years prior thereto, the owners of and entitled to the possession of lots 1, 2, 3 and 4 of section 15, township 9 north, range 5 west, Boise meridian, situated in Canyon county, state of Idaho, and all of that portion of the island known as Poole island which lies west of and opposite the meander line of said lots and between said meander line and the middle of the main channel of Snake river.</p> <p>“2. That the defendant Robert Green now is, and for more than thirteen years last past has been, the owner of, in the possession of, and entitled to the possession of all of the fractional north half of section 22 in township 9 north, range 5 west, Boise meridian, in Canyon county, Idaho, and of that portion of the island known as Poole island which lies west of and opposite the meander line of said' fractional north half, and between said meander line and the middle of the main channel of Snake river.</p> <p>“3. That at the time of the commencement of this action, and for ten years and more prior thereto, the defendant S. L. Sparks was the owner, in the possession of, and entitled to tbe possession of tbe fractional sontb balf of section 22, township 9 north, range 5 west, Boise meridian, in Canyon county, Idaho, excepting, however, that portion thereof which lies west and opposite the meander line of said fractional south half and east of the middle of the main channel of Snake river, known as part of Poole island, and as to that part of Poole island the court finds: That for the last twenty years immediately preceding the beginning of this action and continuously during said twenty years, the plaintiff and his grantors have claimed title to, have claimed and occupied, have been in possession of and controlled and managed, cultivated and improved the same land, and during all of said twenty years continuously the plaintiff and his grantors have paid all the taxes, state, county, municipal or school, which have been levied and assessed upon the above-described lands, according to law; and that no taxes have been levied thereon during said time, and that plaintiff is the owner thereof.</p> <p>“i. That at the point opposite the land and the whole thereof before described, Snake river is a navigable stream and the main channel thereof is west of said Poole island, and the center of said main channel forms the boundary line between the states of Oregon and Idaho, and said island lies east of the center of said main channel and within the state of Idaho.</p> <p>“5. That on the 16th, 18th and 19th days of June, 1906, upon application of defendant J. E. Scott, the government of the United States, through its land department and at the request of the commissioner of the general land office, caused the said Poole island to be surveyed at its own expense, which survey was proved and certified to by the surveyor general of the United States for the state of Idaho, on the 18th day of October, 1906, and accepted by the commissioner of the general land office on or about the 15th day of December, 1906, and the plat of such survey sent to the United States land office at Boise, Idaho, by said commissioner, to be filed in such office after notice as is required by law and the rules of the land department for the filing of plats and authorizing the entry of public lands. And tbe register and receiver of the United States, land office for Boise, Idaho, on the 20th day of May, 1907, did issue, post and publish the notice required by law and the rules of such department, wherein it was stated that the said plat of the survey of said island would be filed in said land office at Boise, Idaho, at 9 o ’clock A. M. on the 8th day of July, 1907; that no protest or objection of any kind was made by the plaintiff or the defendant Bobert Green against the making of said survey or against the application of this defendant for a survey of said island, and that due notice of defendant Scott’s application for a survey of the said island was duly and regularly served on the defendant Bobert Green, but the same was not served upon the plaintiff; that the defendant Bobert Green was by said notice advised, notified and requested to file with the United States surveyor general for the state of Idaho, within thirty days from service thereof, his objections, if any he had, to the survey of said island, or to the application of defendant Scott for a survey thereof, but defendant Green wholly ignored the said notice, but informed the defendant Scott that he was the owner of that part of Poole island which lies west and opposite to his said land; that the said land embraced in said island and as shown by the plat and the survey made of said island and now on file in the office of the United States surveyor general in the general land office of the United States, consists of lots numbered 5, 6 and 7 of section 15, and lots numbered 5 and 6 of section 22, township 9 north, range 5 west, Boise meridian, and contains 138.15 acres; that the said land embraced in said island is not now and has not been part of the public domain of the United States since the government parted with its title to the said lands of plaintiff, defendant Scott and defendant Sparks by its patents duly issued more than thirteen years ago; that the defendant Scott has occupied and. claimed said island for several years last past and prior to the commencement of this action; that he claimed and held and occupied the same and cultivated a part thereof, under the provisions of chapter 4, title 10 of the Code of Civil Procedure of the Bevised Statutes of Idaho of 1887, and with the intention to enter, file upon and claim the said island as a homestead under the public land laws of the United States as soon as the same was surveyed and subject to entry; that plaintiff and defendant Green were the owners and in the possession of said island at the time that defendant Scott went upon said island and occupied or claimed the same.</p> <p>“6. That for a long time prior to the commencement of this action the defendant Scott was and still is claiming an interest in and to said island adverse to the plaintiff and the defendant Green; that he has no right, title,' estate or interest in or to said island or to any part thereof, and that plaintiff and defendant Green are entitled to a decree quieting their title to said island and enjoining the defendant Seott from setting up or asserting or claiming any right, title or interest therein.”</p> <p>Conclusions of law were drawn accordingly and decree was entered in favor of plaintiff Lattig, holding that he was the owner of that portion of the island lying directly west of and within the lines of the fractional subdivisions owned by him meandering the Snake river, and likewise in favor of the defendant Green, holding that he was the owner of that portion of the island lying directly west of and within the side lines and the fractional subdivisions owned by him and meandering the river. The defendant Scott has appealed from the judgment and order denying his motion for a new trial.</p>

Hon Edgar C. Steele, Judge. Action by plaintiff to enjoin and restrain the sale of school bonds. Judgment for the defendant and plaintiff appealed. The election for the issuance of these bonds was void for the reason that the election was called for the purpose of submitting at one time several distinct and independent propositions.

<p>APPEAL from the District Court of the Fifth Judicial District, for Bear Lake County. Hon. Alfred Budge, Judge.</p> <p>Action by plaintiff for debt. Judgment in favor of the plaintiff, and defendant appealed.</p> <p>Counsel cite no authorities.</p>

Hon. Ed L. Bryan, Judge. Respondent moved to dismiss tbe appeal on tbe ground, among other things, that the undertaking on appeal was not filed within five days after the notice of appeal was served as provided by sec. 4808, Rev. Codes. cite no authorities on point decided.

<p>APPEAL from the District Court of tbe Third Judicial District, for the County of Ada. Hon. Fremont Wood, Judge.</p> <p>Action by plaintiff to collect from the defendant his pro rata share of the expense of maintaining the canal from which defendant used water for irrigation purposes for the year 1906. Judgment for defendant, and plaintiff appealed.</p> <p>“Res adjudicata” means facts directly in issue, and does not embrace facts which may be in controversy but are merely collateral. The question is not simply, were given facts controverted at former trial, but were they in issue? (Hall v. Susskind, 109 Cal. 203, 206, 41 Pac. 1012; King v. Chase, 15 N. H. 9, 16, 41 Am. Dec. 675; note to Kerr’s Cal. Code Civ. Proe., p. 2324, note 45.)</p> <p>Where several parties are entitled to the use of water from a ditch without payment therefor, as an incident to such title an obligation rests upon each of the co-owners to contribute pro rata to the maintenance of the canal. (Long on Water Rights, sec. 75; Shelby v. Farmers etc. Ditch Co., 10 Ida. 723, 80 Pac. 222.)</p> <p>In the case in the United States court the claimant’s bill of complaint was dismissed, but it was dismissed upon the merits of the case for the reason that complainant had shown no ground for relief. There is no question that a dismissal of that character is res judicata as to all matters involved. (Lyon v. Perrin Mfg. Co., 125 U. S. 698, 8 Sup. Ct. 1024, 31 L. ed. 839; Subbell v. United States, 171 U. S. 203, 18 Sup. Ct. 828, 43 L. ed. 136; Stewart v. Ashtabula, 107 Fed. 857, 47 C. C. A. 21; Brown v. Kirkbride, 19 Kan. 588; Lewis v. Lewis, 106 Mass. 309; Schulmeister v. Blendon Tp., 126 Mich. 488, 86 N. W. 237; Neafie v. Neafie, 7 Johns. Ch. (N. Y.) 1, 11 Am. Dec. 380.)</p> <p>The precise question now before this court has been passed upon in the case of Knowles v. New Sweden Irr. Dist., 16 Ida. 217, 101 Pac. 81, and this court held that “When it [the district] purchased this canal system it purchased it subject to, and burdened with, the rights and equities of appellant’s grantor.”</p>

Hon. Alfred Budge, Presiding Judge. Action for contribution by one joint judgment debtor against another for his proportionate share of the judgment.

Original action by tbe plaintiff to procure a writ of prohibition, restraining and prohibiting the state board of land commissioners from relinquishing the state’s right and title to certain indemnity school lands. The defendant board demurred to the petition. Plaintiff brings this application on the theory that the threatened action of the state land board is of qwasi-.judicial nature. The board can and does exercise quasi-judicial functions.

Hon. Ed L. Bryan, Judge. Tbe county commissioners of Canyon county ordered an election to be held under tbe loeal option statute. Appellant here appealed from snob order to tbe district court where the order was affirmed, and appellant appeals to this court. See. 10 of the local option law provides that the provisions of the general election law shall only be followed so far as the same are applicable.

Hon. Edgar C. Steele, Judge. Application to enjoin the prosecuting attorney from prosecuting violations of the local option statute on the ground that it has never been adopted in the county of Idaho. From an order denying the injunction this appeal is taken.

'APPEAL from tbe District Court of tbe Sixth Judicial District, for Fremont County. Hon. James M. Stevens, Judge. Action to foreclose a chattel mortgage. Defense, damages for failure of warranty, for personal services and ihorse feed. Judgment for defendants. Neither the court nor jury made any findings whatever upon the material issues, or any issue, raised by the pleadings in the equity side of this cause.

Hon. Fremont Wood, Judge. Action by the plaintiff to recover judgment against the defendants on a contract. Held: in harmony with the courts of the other states, that it is only necessary to find upon the material issues. (Bowers v. Cottrell, 15 Ida. 221, 96 Pac. 936.) The cause of action rests upon the compromise agreement and not upon matters outside of such agreement or upon matters which are merged into it and concluded by it.

Hon. W. W. Woods, Judge. An adverse suit upon application for patent. Judgment for defendant. This being an adverse suit, tbe burden to establish its case is upon tbe defendant tbe same as upon tbe plaintiff. (Rosenthal v. Ives, 2 Ida. 265, 12 Pac. 904, 15 Morr. Min. Rep. 324; Jackson v. Roly, 109 U. S. 440, 3 Sup.

Hon. Edward A. Walters, Judge. Action by plaintiff against the defendant for damages caused by obstructing and closing up a publie highway, and to enjoin and restrain the defendants from continuing such acts. Judgment for the defendants and plaintiff appealed.

Hon. Edward A. Walters, Judge. Motion was made to vacate and set aside a judgment entered by the clerk against a garnishee. Motion sustained. Plaintiff appeals from the order. This was an action upon a judgment; therefore, one “arising upon contract for the recovery of money or damages only,” so the clerk could do nothing, under the law, but enter judgment as he did.

<p>APPEAL from the District Court of the Fourth Judicial District, for the County of Elmore. Hon. Edward A. Walters, Judge.</p> <p>Action by the plaintiff for damages and to procure an injunction. Judgment for the defendant, and the plaintiff appealed.</p> <p>The words “standing in the relation of debtor or creditor, ” when used as a disqualification of jurors, imply liability. (Melvin v. State, 121 Cal. 16, 53 Pac. 416; Fowles v. Treadwell, 24 Me. 377, 381; Goolc v. Bartholomew, 60 Conn. 24, 22 Atl. 444, 13 L. R. A. 452; Dodson v. Taylor, 53 N. J. L. 200, 21 Atl. 293.)</p> <p>Webster’s definition is: “That which is due from one person to another, whether money, goods or services; that which one person is bound to pay to another or perform for his benefit; thing owed; obligation; liability.”</p> <p>Taking this definition in the light of the statutes and the object thereof, the relation of debtor and creditor existed between these parties.</p> <p>The fulfillment of the conditions precedent goes to the existence of the debt. (1 Daniel on Neg. Inst., p. 87.)</p> <p>Even had the holder of the escrow delivered the notes, there would have been no liability (except perhaps in hands of bona fide purchaser), until the conditions (the completion of the well which must be dry), had been fulfilled. (Provident Life etc. Go. v. Mercer Go., 170 U. S. 593, 18 Sup. Ct. 788, 42 L. ed. 1156; Long Island etc. Go. v. Columbus etc. By. Go., 65 Fed. 455.)</p>

Hon. Edward A. Walters, Judge. An action for damages and for injunctive relief. Judgment for plaintiff. Defendant appeals. It was error to enter default and take judgment when there was a demurrer on file undisposed of. (6 Ency. PI. & Pr. 93:) And it is immaterial that the demurrer was filed after the time required to answer. (6 Ency.

<p>APPEAL from, the District Court of the Third Judicial District, for Ada County. Hon. Fremont Wood, Judge.</p> <p>Action to foreclose a mechanic’s lien. Judgment for plaintiff.</p> <p>Before a lien of this kind can be claimed it must be expressly granted by statute, as it is a creature of the statute, and persons claiming the benefit thereof must bring themselves clearly within its provision. (27 Cyc. 18 (eases cited) ; 20 Am. & Eng. Eney. of Law, 2d ed., 269; Pitschke v. Pope, 20 Colo. App. 328, 78 Pac. 1077.)</p> <p>Upon an examination of our statutes it will be observed that there is no provision granting a lien against abutting property for materials furnished in the construction of a sidewalk situated upon a public street without the request of the owner of such lot made to the person furnishing the material. (See. 5112, Rev. Codes.)</p> <p>In cases of this kind a lien is not allowed against abutting property for labor or material furnished in the construction of a sidewalk or other improvement upon a street. (27 Cyc. 40 (cases cited); Boisot on Mechanics’ Liens, sec. 110; Fleming v. Prudential Ins. Go., 19 Colo. App. 126, 73 Pac. 752; Santa Cruz Bock Pavement Go. v. Lyons, 117 Cal. 212, 59 Am. St. 174, 48 Pac. 1097; Coenen v. Staub, 74 Iowa, 32, 7 Am. St. 470, 36 N. W. 877; Smith v. Kennedy, 89 Ill. 485; Seeman v. Schultze, 100 Ga. 603, 28 S. E. 378; Knaube v. Kerchner, 39 Ind. 217; Bradley Co. v. Gaghan, 208 Pa. 511, 57 Atl. 985; Dugan Cut Stone Co. v. Gray, 43 Mo. App.' 671.)</p> <p>Before a lien can be granted it must appear that the owner has such an interest in the property as the court can order sold. (See. 5113, Rev. Codes.)</p> <p>Under subd. 3, see. 4901, the plaintiff is only entitled to (iosts when he recovers the sum of $100. (Richards v. Scott, 7 Ida. 726, 65 Pac. 433.) Attorney’s fees in cases of this kind are a part of the costs, and unless the plaintiff recovers $100, he is not entitled to any attorney’s fees. (See. 5121, Rev. Codes.)</p> <p>The general rule and presumption is in the absence of a positive statute that the public takes merely an easement in the streets. (Elliott on Roads and Streets, sec. 149.)</p> <p>A conveyance of land bounded on a highway conveys with it the fee to the center of a road as part and parcel of the grant (unless such inference shall be expressly excluded), and this rule is applicable where the land conveyed is a lot or a part of a lot in a town or city designated oh the plat by its number. (Cox v. Louisville etc. B. B. Co., 48 Ind. 178.)</p> <p>Under the statutes of Idaho, as they stood at the time of the filing of the plat, the title of the appellant Johnston extended to the middle of the street, and this was true even if the conveyances described the lots merely by their number.</p> <p>The statute of Arkansas is very similar to our own, and the case most nearly in point is one from that state wherein a lien was held valid upon a sidewalk constructed in the street in front of the premises. (Leiper v. Minnig, 74 Ark. 510, 86 S. W. 407; see, also, Moran v. Chase, 52 N. T. 346; Keeney v. Apgar, 93 N. Y. 539; see, also, Dugan Cut Stone Co. v. Gray, 114 Mo. 498, 35 Am. St. 767, 21 S. W. 854; which overrules the same case in 43 Mo. App. 671, cited by appellant.)</p> <p>Under tbe California statute, it bas been beld that the attorney’s fees are not a- part of the costs, but are, under the code, an incident to the foreclosure of the lien, and that such being the case, there can be no recovery for attorney’s fees unless the plaintiff succeeds in his foreclosure proceeding. (McIntyre v. Trautner, 78 Cal. 449, 21 Pac. 15; 8 chal-lert-Ganahl etc. Co. v. Neal, 94 Cal. 192, 29 Pac. 622.)</p> <p>Therefore, the fact that the plaintiff in the lower court recovered less than the sum of $100 is immaterial so far as attorney’s fees are concerned. Attorney’s fees are a lien upon the property. (Peclcham v. Fox, 1 Cal. App. 307, 82 Pac. 91.)</p>

<p>APPEAL from tbe District Court of tbe Seventh Judicial District, for tbe County of Canyon. Hon. Ed L. Bryan, Judge.</p> <p>Action in claim and delivery. Judgment for plaintiff. Defendant appealed.</p> <p>Tbe terms of tbe written contract were violated. Tbe payments were not made when due. The right to purchase the sheep and the rights under the contract running to Newland & Co. were thereby forfeited, and they held the sheep as simple bailees, with the sole obligation (and without any power to sell or right to buy) to return them to appellant. The contract of sale was at an end; the condition which alone kept it alive was violated and there was no sale. (Citing authorities given in opinion.)</p> <p>The authorities cited by respondent to support the authority to resell under the conditional contract of sale can be ■differentiated from the case at bar in this: Such cases involve the resale of goods, wares and merchandise where the ■clear intent and purpose, as well as the nature of the goods, indicated a placing of the goods for the express purpose of .■selling them. In the case at bar this is not the fact. New-land & Co. took the contract for the purpose of going into the sheep business and securing, so soon as they might pay ■out,, flocks,'making them proprietors and flock-masters. The question of resale is incidental and subsidiary only, and was for the purpose of giving such flexibility to the relationship .as would permit them to continue the business as sheep men and flock-masters. Certainly there was no such intention as to permit an absolute and complete sale of all of the sheep. (1 Mecham on Sales, sec. 601; Pralt v. Burhans, 84 Mich. 487, 22 Am. St. 703, 47 N. W. 1064; Lewis v. McCabe, 49 Conn. 140, 44 Am. Rep. 217.)</p> <p>On the question of conditional sale and construction of contract eliminating the question of agency, we cite: Harkness v. Bussell, 188 U. S. 663, 7 Sup. Ct. 51, 30 L. ed. 285; Warner v. Both, 2 Wyo. 63; Studebaker Bros. v. Mau, 14 Wyo. 68, 82 Pae. 2; Freed etc. Co. v. Sorensen, 28 Utah, 419, 107 Am. St. '731, 79 Pac. 564; Page v. Uriels,, 31 Wash. 601, 96 Am. St. ‘924, 72 Pac. 454; Kidder v. Machinery Co., 38 Wash. 179, 80 Pac. 301; Badgers v. Bachman, 109 Cal. 552, 42 Pac. 448; Yarn Allen v. Francis, 123 Cal. 474, 56 Pac. 339; Ward Land <& Stock Co. v. Mapes, 147 Cal. 747, 82 Pae. 426; Loomis v. Bragg, 50 Conn. 228, 47 Am. Rep. 638; Sumner v. Wood, 67 Ala. 139,- 42 Am. Rep. 104; Baüey v. Harris, 8 Iowa, 331, 74 Am. Dec. 312; Cole v. Hines, 81 Md. 476, 32 Atl. 196, 32 L. R. A. 455, and note; Mark Means Transfer Co. v. McKenzie, 9 Ida. 165, 73 Pac. 135; Barton v. Groseclose, 11 Ida. 227, 81 Pac. 623; Kester v. Schuldt, 11 Ida. 663, 85 Pac. ■974.</p> <p>The contract between Noble and Newland & Co. expressly provides that Newland & Co. should have power to sell the property, or any part thereof, and account to Noble for the proceeds. In making such a sale, by the exercise of the power of sale above referred to, Newland & Co. became the agents of Noble, and Peasley, being the purchaser, was under no obligation to see that the proper accounting was made to Noble. Title passed to the plaintiff under the power of sale, and the question of account was one wholly between New-land & Company and Noble. (A. J. Enollin & Go. v. Jones, 1 Ida. 474, 63 Pae. 638; TJjford v. Winchester, 69 Yt. 542, 38 Atl. 239; F. J. Dewes Breiuery Go. v. Merritt, 82 Mich. 198, 46 N. W. 379, 9 L. R. A. 270; New Haven Wire Co. Gases, 57 Conn. 384, 18 Atl. 266, 5 L. R. A. 300; Winchester Mfg. Co. v. Carman, 109 Ind. 35, 58 Am. Rep. 382, 9 N. E. 707; Fitzgerald v. Fuller, 19 Hun, 180; Bent v. Jerkins, 112 Ala. 485, 20 So. 655; Winchester Mfg. Co. v. Carman, 109 Ind. 31, 58 Am. Rep. 382, 9 N. E. 707; Wilder Co. v. Wilson, 84 Tenn. (16 Lea) 548; Columbus B. Co. v. Turley, 73 Miss. 529, 55 Am. St. 550, 19 So. 233, 32 L. R. A. 260; Armington v. Houston, 38 Yt. 448, 91 Am. Dec. 366; Rogers v. Whitehouse, 71 Me. 222; Spooner v. Cummings, 151 Mass. 313, 23 N. E. 839; Wright v. Solomon, 19 Cal. 77, 79 Am. Dec. 196.)</p> <p>A careful consideration of its language shows that the contract did not terminate of itself in ease of default. The law abhors a forfeiture, and will not construe a contract in favor of a forfeiture unless such construction is plainly indicated by the context, but in this case such construction is not only not clearly indicated, but the contract itself clearly shows that such was not the intent of the parties, but their intent was to clothe the party of the first part, Mr. Noble, with the power to declare a forfeiture if he saw fit. .(Aultman v. Mallory, 5 Neb. 178, 25 Am. Rep. 478; Cole v. Hines, 81 Md. 476, 32 Atl. 196, 32 L. R. A. 455; Hutchings v. Munger, 41 N. Y. 158; Holt Mfg. Co. v. Ewing, 109 Cal. 353, 42 Pac. 435; Park etc. Co. v. White River Lumber Co., 101 Cal. 37, 35 Pac. 442; Bailey v. Hervey, 135 Mass. 174.)</p> <p>When Noble failed to take the sheep as tendered to him upon the first default in payment, and stated to the purchasers that he did not want the sheep and that they should keep them and pay as they could, it was a complete waiver of title. His position was inconsistent with the right to take possession of the sheep. (Norwegian etc. Co. v. Hunger, 52 Kan. 371, 35 Pac. 11; De Yoe v. Jamison, 33 Mich. 95; Green v. Bennett, 23 Mich. 470; Kimball v. Farnham, 61 N. H. 348; Oester v. Sitlington, 115 Mo. 256, 21 S. W. 820; Hill v. Townsend, 69 Ala. 286; Henkins v. Miller, 45 Ill. App. 37; Winnesheik Ins. Co. v. Schueller, 60 Ill. 465; Gorham v. Holden. 79 Me. 319, 9 Atl. 894.)</p>

Hon. Fremont Wood, Judge. Application for writ of mandate to compel the common council of Boise City to issue to respondents a license to sell intoxicating liquor. Judgment for plaintiffs. City appeals.

Hon. Edward A. Walters, Judge. Action to recover for violation of escrow agreement. Judgment for plaintiffs. Such a transaction as this cannot be a bank matter, but purely a personal matter of the cashier, one in which the cashier acts as agent for the parties depositing the money and not as agent for the bank. (United States v. City Bank of Columbus, 21 How.

Hon. Edgar C. Steele, Judge. Prosecution for the unlawful sale of grain stored in a warehouse. From a judgment of conviction and an order denying a new trial defendant appealed. The defendant should have been permitted to show that the complaining witness had invited, authorized and directed him to do the very acts in regard to such grain that he did, even though such assent and direction was by parol.

Hon. Fremont Wood, Judge. Appeal from a judgment of the district court reversing an order of the board of county commissioners, denying the application of the clerk of the district court and ex officio auditor and recorder for clerical assistance. Sec. 2119, Political Code, shows very clearly that the legislature distinguished between a deputy and a clerical assistant.

Hon. Fremont Wood, Judge. Action by the receiver of the Capital State Bank to foreclose a pledge and to recover on the promissory note' of the appellant given as the purchase price for ten shares of the capital stock of said bank. Judgment for the receiver.

Lion. Edward A. Walters, Judge. Defendant was convicted of murder of the second degree and appeals from the judgment and order overruling a motion for a new trial. The memory of a witness cannot, under our statute, be refreshed by stenographer’s transcript of the evidence; it was an attempt to get before the jury the substance of the witness Thurber’s testimony taken at the former trial, the purpose of which was to bolster up his testimony.