Volume 18 — Idaho Reports

Hon. E. A. Walters, Judge. Action by plaintiff praying for a decree adjudging it, together with a number of individuals in whose behalf.it sues, to be the legal owners of the irrigation system described in the complaint. Judgment for the defendants, and the plaintiff appeals. This court has held that where the consideration has been •paid, the contract may be enforced independent of a written contract.

Hon. W. W. Woods, Judge. Action to recover damages for animals alleged to have been appropriated by the defendant. Judgment for the plaintiff. The court must either say that the legislature by adding the words “other animals” did not mean what it said and added superfluous words, or these words must be construed in. their ordinary meaning. (Sec. 15, Rev. Codes; Henderson v. Wabash etc. By.

<p>APPEAL from the District Court of Shoshone County, First Judicial District. Hon. Wm. W. Woods, Judge.</p> <p>Action to quiet title to real estate. Judgment for defendant.</p>

First Judicial District. Hon. Wm. W. Woods, Judge. Action at law to recover for money due and received and for services rendered. Judgment for plaintiff. A decision and judgment that does not find on all of the-material facts raised by the pleadings is against law, and its findings should be reversed.

An original application to this court for a writ of mandate lo Honorable Fremont Wood, Judge of the District Court of the Third Judicial District, to compel him to settle a statement on motion for a new trial. The question now before the court for decision has in principle been directly decided in the case of Miller v. Hunt, 7 Ida. 486, 63 Pac. 803.

Hon. Edgar C. Steele, Judge. An action to recover npon a compromise agreement. Judgment for plaintiff. Defendant appeals. The defendant cannot be held liable in damages because one of its employees, a managing officer, advises an injured man to go to a hospital to effect a cure and later promises the injured man that the company will pay him wages until he is cured if he will not sue for damages growing out of the assistant manager’s poor judgment in recommending a doctor.

<p>APPEAL from the District Court of the Second Judicial District, for Nez Perce County. Hon. Edgar C. Steele, Judge.</p> <p>An application to open and set aside a default. Application denied. Defendant appeals.</p> <p>The default is filed April 6, 1909, but it is conceded that there was no entry of this default in the clerk’s record at the time the demurrer was filed on April 15, 1909. Anyway, the misdirection of the letter containing the money sent by client to attorney was the cause of any further affirmative action not being taken for client, except the filing of the demurrer.</p> <p>The Smith family is so numerous, their initials so varied and intermingled, that courts should take judicial knowledge thereof, and should also hold that errors in initials of any man by the name of “Smith” are sufficient to excuse an ordinary man for any default arising therefrom. (Wheeler v. Castor, 11 N. D. 347, 92 N. W. 381, 61 L. R. A. 746.)</p> <p>The attorney for appellants relied upon the record of the clerk as not showing any default at the time the demurrer was filed, and thereafter repeatedly requested from the clerk the information shown by the affidavit at folio 144, also 155; 156. (Not denied.) He had the right to rely upon this information. (Melde v. Reynolds, 129 Cal. 308, 61 Pae. 932; Anaconda Min. Co. v. Saile, 16 Mont. 8, 50 Am. St. 472, 34 Pac. 909.)</p> <p>“An application to vacate a default judgment is addressed to the discretion of the trial court, and such discretion will not be reviewed unless abused.” (Baker v. Knott, 3 Ida. 700, 35 Pae. 172; Pease v. County of Kootenai, 7 Ida. 731, 65 Pac. 432; Sandstrom v. Smith, 11 Ida. 779, 84 Pae. 1060.)</p>

Kootenai. Hon. Bobert N. Dunn, Judge. Action by plaintiff to recover wages as stipulated and agreed by contract. Judgment for defendant and the plaintiff appeals. Agreements like the one in this case are held to be definite and certain, and therefore binding. (McMullan v. Dickinson Co., 63 Minn. 405, 65 N. W. 661; Pennsylvania Co. v. Dolan, 6 Ind. App. 109, 51 Am. St. 289, 32 N. E. 802; Carnig v. Carr, 167 Mass. 544, 57 Am.

<p>Annexation or a Part or One County to Another — Payment op Indebtedness — Liability op Part Annexed.</p> <p>(Syllabus by the court.)</p> <p>1. Where a county is enlarged by annexing a portion of another county, the annexed portion is liable to pay its proportionate share of the indebtedness of the county to which it is annexed.</p> <p>2. Under the provisions of sec. 1963, Eev. Codes, which pledges the faith, credit and all taxable property within the limits of the county as it was constituted at the time the indebtedness was incurred for its payment, all taxable property subsequently brought into the county is liable for its proportionate share of such indebtedness.</p> <p>, 3. Under the provisions of our statute, the indebtedness of a ■county becomes a burden upon all of the taxable property brought •within the county after the creation of such indebtedness, as well as upon the taxable property that was within the county at the date of the creation of the indebtedness.</p>

<p>Railroad — Duty to Pence.</p> <p>(Syllabus by the court.)</p> <p>1. Under the provisions of Rev. Codes, see. 2815, it is the duty of every railroad company operating any steam or eleetric railroad in this state to erect and maintain lawful fences on each side of its road where the same passes through, along, or adjoining inclosed or cultivated fields or inclosed lands.</p> <p>2. Until such fences shall be made and maintained, such corporation shall be liable to pay all damages which shall be done by its agents, engines, or cars, to horses, cattle, mules, or other animals on said roa.dj regardless of whether the person operating or in charge of such engine or cars was negligent or not.</p> <p>3. The language used in sec. 2815 as follows: “where the same passes through, along or adjoining inclosed or cultivated fields or inclosed lands,” refers to country districts or where a railroad runs along, adjoining or through cultivated fields or inclosed lands, and was not intended to apply to municipalities or towns whether incorporated or not, unless such town was so extended as to include cultivated fields or inclosed lands other than residence lots.</p> <p>4. It is clearly within the power of the legislature as a police regulation to require railroad companies to fence their track, and it is for the judgment of the legislature whether such duty shall be extended to the requirement that a railroad shall fence its road in municipalities or towns or in rural sections where the lands are not cultivated or inclosed, such as the open prairie, sage-brush and timber lands not cultivated or inclosed.</p> <p>5. Held., under the evidence in this case that the appellant was not required to fence its road where the animal for which damages were sought entered upon the track.</p> <p>6. A railroad company is not required, under the provisions of sec. 2815, to fence its road where the same runs through a narrow canyon with a public traveled road occupying almost the entire space between the ends of the ties and the foot of a precipitous mountain on one side of the track, and residences and stores, occupying almost the entire space between the ends of the ties and the foot of a precipitous mountain on the other side, and there are no cultivated fields or inclosed lands through, along or adjoining which such road runs at the place of the accident.</p>

<p>APPEAL from the District Court of the First Judicial District (now the Eighth Judicial District], for the County of Bonner. Hon. W. W. Woods, Judge.</p> <p>Action by plaintiff to recover on an insurance of benefit certificate. Judgment for plaintiff and defendant appealed.</p> <p>The answers; in the application for the benefit certificate herein sued on are warranties. (Beard v. Boyal Neighbors, 53 Or. 102, 99 Pac. 83, 19 L. R. A., N. S., 789; Hoover y. Boyal Neighbors, 65 Kan. 616, 70 Pac. 595; Sinon v. Boyal Neighbors, 135 Ill. App. 599.)</p> <p>As a warranty is in the nature of a condition precedent to the validity of a policy, and must be literally true, if the fact warranted is not true, there is a breach of warranty. It follows that a breach of warranty will avoid the policy. (3 Cooley's Briefs on the Laws of Insurance, 1950, and eases cited.)</p> <p>In view of the general principle that the materiality of the fact is wholly unessential in the case of a warranty, it is readily deduced that where there is a breach of warranty the policy is avoided, though the statements on which the breach is predicated is in no way material to the risk. (3 Cooley’s Briefs on the Law of Insurance, 1951; 3 Joyce on Insurance, sec. 1962; Beard v. Boyal Neighbors, supra, Hoover v. Boyal Neighbors, supra; McDermott v. Modern Woodmen, 97 Mo. App. 636, 71 S. W. 833; Price v. Phoenix Mutual Life Ins. Co., 17 Minn. 497 (Gil. 473), 10 Am. Rep. 166; Peterson v. Des Moines Life Assn., 115 la. 668, 87 N. W. 397; National Union v. Arnhorst, 74 Ill. App. 482; Cerys v. State Ins. Co., 71 Minn. 338, 73 N. W. 849; Sehane v. Met. Life Ins. Co., 76 App. Div. 271, 78 N. T. Supp. 582; Aloe v. Mutual Beserve Fund Life Assn,, 147 Mo. 561, 49 S. W. 553; Supreme Lodge v. McLaughlin, 108 Ill. App. 85.)</p> <p>A breach of warranty is fatal to the policy, though the insured had no knowledge of the falsity constituting the breach, and did not intend to deceive the insurer. (3 Cooley’s Briefs on the Law of Insurance, 1954; May on Insurance, see. 156; 3 Joyce on Insurance, sec. 1964; 1 Bacon on Benefit Societies, sec. 197; Standard Life & Accident Ins. Go. v. "Sale, 121 Fed. 664, 57 C. C. A. 418, 61 L. R. A. 337; Alabama Gold Life Ins. Go. v. Johnston, 80 Ala. 467, 59 Am. Rep. 816, 2 So. 125; Continental Life Ins. Co. v. Rogers, 119 Ill. 474,. 59 Am. Rep. 810, 10 N. B. 242; O’Connell v. Supreme Conclave, 102 Ga. 143, 66 Am. St. 159, 28 S. E. 282; Conn. Life Ins. Co. v. Pyle, 44 Ohio St. 19, 58 Am. Rep. 781, 4 N. B. 465; McGowan v. Supreme Court I. O. F., 104 Wis. 173, 801 N. W. 603; Leonard v. State Mut. Life Assur. Co., 24 R. I. 7, 96 Am. St. 698, 51 Atl. 1049; Peterson v. Des Moines Life Assn., 115 la. 668, 87 N. W. 397.)</p> <p>The statement by an applicant that she had not consulted a physician regarding any personal ailment within seven years preceding her application, and which was warranted to be true, and which said answer was untrue, constituted a breach of warranty relieving the defendant from liability, without regard to the character of the ailment for which the physician was consulted. (Beard v. Royal Neighbors, supra; Hoover v. Royal Neighbors, supra; Metropolitan Life Ins. Co. v. McTague, 49 N. J. L. 587, 9 Atl. 776; Cobb v. Assn.r 153 Mass. 176, 25 Am. St. 619, 26 N. B. 230, 10 L. R. A. 666;. McDermott v. Modern Woodmen, supra, and cases therein cited; Caruthers v. Kansas Mut. L. Ins. Co., 108 Fed. 487.)</p> <p>Even if the answers in the application were, under a proper construction of the contract, misrepresentations, then they avoid the benefit certificate, if material to the risk. (Aetna-Life Ins. Co. v. France, 94 U. S. 561, 24 L. ed. 287; Alabama Gold Life Ins. Co. v. Johnston, supra; Campbell v. New England Mut. Life Ins. Co., 98 Mass. 381; Price v. Phoenix Mut. Life Ins. Co., 17 Minn. 497, 10 Am. Rep. 166.)</p> <p>Reading and commenting, over defendant’s objection, on defendant’s original answer, which had been withdrawn, was improper and prejudicial, and is, therefore, ground for reversal. (Giffen et ux. v. City of Lewiston, 6 Ida. 231, 55-Pae. 545; Burke v. McDonald, 3 Ida. 296, 29 Pac. 98; State-v. Harness, 10 Ida. 18, 76 Pae. 788; Smith v. Smith, 106 N. C. 498, 11 S. E. 188; Biley v. Town of Iowa Falls, 83 la. 761,. 50 N. W. 33; Taft v. Fiske, 140 Mass. 250, 54 Am. Rep. 459,. 5 N. E. 621.)</p> <p>The court erred in overruling defendant’s objection to tbe question asked plaintiff as to whether defendant had tendered him the amount of dues and assessments paid by his wife.. (Thompson v. Travelers’ Ins. Co., 11 N. D. 274, 91 N. W. 75.)'</p> <p>Proofs of death are admissible in evidence, and are prima; facie proof of the facts stated therein and against the beneficiary and on behalf of the society, the same being admissions by the said beneficiary. (Ins. Co. v. Newton, 22 Wall.. 32, 22 L. ed. 793; Home Benefit Assn. v. Sargent, 142 U. S. 691, 12 Sup. Ct. 332, 35 L. ed. 1160; Grand Lodge v. Wieting,. 168 Ill. 408, 61 Am. St. 123, 48 N. E. 59; Walther v. Mutual Ins. Co., 65 Cal. 417, 4 Pae. 413; Modern Woodmen of America v. Yam, Wald, 6 Kan. App. 231, 49 Pae. 782; Elliott on Evidence, sec. 2387; Bliss on Insurance, 2d ed., sec. 265.),</p> <p>A pleading, or an admission or allegation in a pleading,, notwithstanding it has been withdrawn or stricken from the record by amendment, is competent in evidence against the party from whom it proceeded, like any other admission or declaration. (Abb. Trial Brief, Civil Jury Trials, 2d ed., p. 296, and eases cited.)</p> <p>We believe that in every case cited by appellant where a forfeiture was upheld, the death of the insured was directly connected with, and grew out of some conditions of health covered by the questions, in regard to which the representations and statements of the applicant were made.</p> <p>When an application is made and approved, there is no duty on the holder of the certificate issued on such application to notify the company of any subsequently discovered evidence of pregnancy. (Merriman v. Grand Lodge, 77 Neb. 544, 124 Am. St. 867, 110 N. W. 302, 8 L. R. A., N. S., 983, 15 Ann. Cas. 124.)</p> <p>Statements in sueh an application for insurance are merely representations, and not warranties. (Boyal Neighbors v. Wallace, 73 Neb. 409, 102 N. W. 1020; Bcmta v. Supreme Tent Maccabees, 97 Minn. 454, 107 N. W. 156; Bupert v. Supreme Court V. O. F., 94 Minn. 293, 102 N. W. 715.)</p> <p>What constitutes consulting a physician must be construed liberally, and does not include temporary or slight ailments. The insured is entitled to a liberal construction of the language of the application. (25 Cyc. 817-720; Broum v. Met. Life Ins. Co., 65 Mich. 306, 8 Am. St. 894, 32 N. W. 610; Hann v. National Union, 97 Mich. 513, 37 Am. St. 365, 56 N. W. 834; Brown v. Ins. Co., 65 Mich. 306, 8 Am. St. 894, 32 N. W. 610; Pudritzky v. Knights of Honor, 76 Mich. 428, 43 N. W. 373; Plumb v. Penn. Mut. Ins. Co., 108 Mich. 94, 65 N. W. 611.)</p> <p>"Where there is a reasonable doubt as to whether statements in an application are warranties or representations, the doubt will always be resolved in favor of the insured. (Pnce v. Phoenix Mut. Life Ins. Co., 17 Minn. 497, 10 Am. Rep. 166.)</p> <p>If there were no fraudulent representations, and the appellant does not claim there were, and the contract never went into effect, justice and equity- would require the defendant to return the premium. Proofs of death were filed, an action was brought, the defendant made no offer to return the money which had been contributed to its fund by the insured. It should then have manifested its election to treat the contract as void. (May on Insurance, 3d ed., see. 4; Allen v. Phoenix Assur. Co., 14 Ida. 745, 95 Pac. 829; Clement on Fire Ins. 428; Modern Woodmen v. Vincent, 40 Ind. App. 711, 80 N. B. 427, 82 N. E. 475, 14 Ann. Cas. 89, and cases cited.)</p> <p>The appellant compelled the insured to perform her part of the contract in the payment of dues, and it should not be permitted to escape the obligations of the contract on its part, by seeking in after years to avoid the policy, on grounds that have never increased its risk. (Schreiber v. Germcm-American Hall Ins. Co., 43 Minn. 367, 45 N. W. 709; Fish-beck v. Phenix Ins. Co., 54 Cal. 427; Harris v. Society, 64 N. T. 196; First Nat. Bank v. Manchester Fire Assur. Co., 64 Minn. 96, 66 N. W. 136; Mee v. Bankers’ Life Assn., 69 Minn. 210, 72 N. "W. 74; Gray v. Nat. Benevolent Assn., 11 Ind. 531, 11 N. E. 477; Kerr on Insurance, p. 308; Taylor v. Grand Lodge, 96 Minn. 441,105 N. W. 408, 3 L. B. A., N. S., 114.)</p> <p>“The relation between a subordinate lodge of a benefit society and the principal lodge is that of agency. ’ ’ (Modern Woodmen v. Breckenridge, 75 Kan. 373, 89 Pac. 661, 12 Ann. Cas. 636; High Court etc. v. Schweitzer, 171 Ill. 325, 49 N. E. 506.)</p> <p>STATEMENT OP PACTS.</p> <p>The plaintiff commenced this action in the district court to recover upon a benefit certificate for $1,000 issued by the defendant, the Boyal Neighbors of America, to plaintiff’s wife, Emeline Basicot. About May 14, 1902, Emeline Basicot was elected as a beneficiary member of Dewey Camp No. 1037 of the Boyal Neighbors of America located at Little Falls, Minn. Under date of April 25th she answered the prescribed list of questions, and made application for a benefit certificate in the society. This application appears to have been witnessed and filed by the Camp recorder on June 4th, and on the same date she was given the medical examination and answered the list of questions submitted by the Camp physician. On June 28th the society issued its benefit certificate for the sum of $1,000, payable to Victor B. Basicot, husband of the insured. The insured afterward removed to Idaho and transferred her membership to Lakeside Camp No. 2373, located at Sandpoint, Idaho, and thereafter kept up the regular payment of all dues and assessments until the date of her death, February 7, 1907: The beneficiary, Victor B. Basicot, made the necessary proofs of death and demanded payment on the certificate. The society refused payment, and. this action was accordingly instituted. The defendant filed an answer, denying generally the allegations of the complaint and setting up four separate affirmative defenses. The first defense pleaded the by-laws of the society, and the application made by Emeline Basicot for insurance, and alleged that certain of her answers were false and untrue, and that by tbe provisions of the application and benefit certificate she had warranted the literal truth of every answer given, and that the policy was therefore void, and never became effective by reason and on account of the falsity and untruth of her answers. The second affirmative defense alleged that under the stipulations and agreements of the application and certificate it is essential to the validity of the policy or certificate that it should be delivered to the applicant while she was in sound health, and that in truth and in fact she was1 not in. sound health at the time' of the delivery of the certificate, and that therefore the policy never took effect. The third and fourth defenses are each to substantially the same effect, • and allege that the insured died from a criminal and self-inflicted abortion and miscarriage, and that under the terms of her-certificate no recovery could be had in such a case. The-defendant subsequently filed an amended answer, containing-more specific denials of the allegations of the complaint, and later it filed a second amended answer on which the case was. finally tried.</p> <p>The defendant omitted from this last answer the third and fourth defenses relating to the charge that the insured', had died from a self-inflicted operation. This answer contained a further' allegation as to the falsity of a further question propounded by the company and answered by the applicant. The answer as it finally stood alleged that the applicant, had given false and untrue answers to questions 17, 18, 25 (in two particulars), 28, 33-j, 33-v, and 33-1, the questions, and answers being as follows:</p> <p>“17. Are you now of sound body and mind, in good health,, free from disease or injury, of good moral character, exemplary habits and a believer in a Supreme Being?” “Yes.”</p> <p>“18. Have you within the last seven years, consulted any-physieian or physicians in regard to personal ailment ? If so,., give dates, ailment and physician or physicians’ names and. addresses.” “No.”</p> <p>“25. Have you ever had any disease of the following named! organs, or any of the following named diseases, or symptoms ?; Fistula.” “No.”</p> <p>“25. Have yon ever bad any disease of tbe following named -organs, or any of tbe following named diseases or symptoms? Rheumatism ?” “No.”</p> <p>“28. Have you ever bad any disease of tbe urinary or genital organs?” “No.”</p> <p>“33-j. Is your menstruation regular and bealtby?” “Yes.”</p> <p>“33-v. Have you-now or ever bad any disease of tbe breast, ovaries or uterus ? ” “ No. ”</p> <p>‘ ‘ 33-1. Are you now pregnant ? ” “ No. ’ ’</p> <p>The application contains tbe following provision in several different forms and in different paragraphs and subdivisions thereof:</p> <p>“I have verified each of tbe foregoing answers and statements, from 1 to 33, both inclusive, adopt them as my own, whether written by me or not, and declare and warrant that they are full, complete and literally true, and I agree that the exact literal truth of each shall be a condition precedent to any binding contract issued upon the face of tbe foregoing answers, and I hereby constitute and make tbe officers of tbe local Camp and of tbe Royal Neighbors of America, who have aided in making this application, my agents for such purpose. I further agree that the foregoing answers and statements, together with tbe preceding declaration, shall form the basis of the contract between me and the Royal Neighbors of America, and are offered by me as a consideration for the contract applied for, and hereby made a part of any benefit certificate that may be issued on this application, or a substitute therefor issued at my request, and shall be deemed and taken as a part of any such certificate. That this application may be referred to in any said benefit certificate as the basis thereof, and that they shall be construed together as one entire contract ; and I further agree that if any answer or statement in this application is not literally true, or if I should fail to comply with and conform to any and all of the laws of said Royal Neighbors, whether now in force or hereafter adopted, that my benefit certificate shall be void. ’ ’</p> <p>When it came to the trial the chief controversy revolved about the answer to question 33-1. On this question special findings were submitted to the jury, and the questions submitted and the answers thereto are as follows:</p> <p>“1. State whether or not the deceased, Emeline Rasicot, was pregnant at the time she made application for a policy of insurance with the defendant, to wit, on June 4, 1902.</p> <p>“Answer: We, the jury, answer Yes.</p> <p>“2. State whether or not the said decedent, Emeline Rasicot, if you answer that she was pregnant on June 4, 1902, or June 28, 1902, knew of her condition as to pregnancy on either of said dates, and if so, on what date.</p> <p>“Answer: We, the jury, answer that she did not know her condition on the 4th day of June, 1902, and did not know such condition June 28, 1902.”</p> <p>The jury at the same time returned a general verdict in favor of the plaintiff for the sum demanded by his complaint.</p>

<p>APPEAL from the District Court of the Second Judicial District, for Latah County.- Hon. Edgar C. Steele, Judge.</p> <p>An action to recover tbe contract price of a safe. Judgment for tbe defendants. Plaintiff appeals.</p> <p>All conversations of negotiation bad prior to the execution of a written contract are inadmissible in evidence. (Jacobs v. Shenon, 3 Ida. 281, 29 Pac. 44; First National Bank.v. Bews, 5 Ida. 678, 51 Pac. 777.)</p> <p>The evidence of what other Victor safes have done in protecting their contents from fire should have been admitted. It was the best evidence which could be provided. (1 Wig-more on Evidence, sec. 442.)</p> <p>The court erred in permitting the witness Chick for the defendants to compare the safe in controversy with the safe of other manufacturers, and erred in refusing to allow the plaintiff to compare the safe in controversy with other safes of the same company, as to their fire-protecting qualities. {Davis v. Sweeney, 80 Iowa, 391, 45 N. W. 1040; Kramer v. Messner, 101 Iowa, 88, 69 N. W. 1143; Nat. Bank & Loan Co. v. Dunn, 106 Ind. 110, 6 N. E. 131; Vietti v. Nesbitt, 22 Nev. 390, 41 Pae. 152, 18 Morr. Min. Rep. 247; Chicago St. L. & P. R. Co. v. Champion (Ind.), 32 N. E. 874; Leonard v. Southern Pac. Co., 21 Or. 555, 28 Pac. 887, 15 L. R. A. 221; Shea v. Glendale E. F. Co., 162 Mass. 463, 38 N. E. 1123; Bemis v. Temple, 162 Mass. 342, 38 N. E. 970, 26 L. R. A. 254; Reeve v. Dennett, 145 Mass. 23, 11 N. E. 938; Commonwealth v. Leach, 156 Mass. 99, 30 N. E. 163; Grand Trunk R. Co. v. Richardson, 91 U. S. 454, 32 L. ed. 356; 1 Wigmore on Evidence, sec. 451.)</p> <p>No warranty can be implied, where the manufacturer or dealer sells a specific article even although such manufacturer or dealer knows the purpose for which the article is to be used, yet no implied warranty arises that the article will be sufficient for the purpose. {Morris v. Bradley Fertilizer Co., 64 Fed. 55, 12 C. C. A. 34; McCray & C. 8. Co. v. Woods, 99 Mich. 269, 41 Am. St. 599, 58 N. W. 320; Cosgrove v. Bennett, 32 Minn. 371, 20 N. W. 359; Goulds v. Brophy, 42 Minn. 109, 43 N. W. 834, 6 L. R. A. 392; Wisconsin Red Pressed■ ■ Brick Co. v. Hood, 54 Minn. 543, 56 N. W. 166; Wheaton Boiler M. Co. v. Noye Mfg. Co., 66 Minn. 156, 68 N. W. 854; ■ Milioaukee Boiler Co. v. Duncan, 87 Wis. 120, 41 Am. St. 33, 58 N. W. 233; J. I. Case Plow Works v. Niles <Ss Scott Co., 90 Wis. 590, 63 N. W. 1013; DeWitt v. Berry, 134 U. S. 306, 10 Sup. Ct. 536, 33 L. ed. 896; Davis Calyx Drill Co. v. Mal-dory, 137 Fed. 332, 69 C. C. A. 662, 69 L. R. A. 973.)</p> <p>“The representations of a seller familiar with machinery ■or other articles amount to a warranty, whether so intended by him or not, where the buyer is not familiar with machinery and such articles, and relying on the statements as a warranty, is thereby induced to purchase.” (North Western Lumber Co. v. Calender, 36 Wash. 492, 70 Pac. 30; Huntington v. Lombard, 22 Wash. 202, 60 Pad 414; Elliott v. Puget Sound etc., 22 Wash. 220, 60 Pae. 410 -,'Lcmder v. Sheehan, ■32 Mont. 25, 79 Pac. 408.)</p> <p>“Where goods are sold by description for a particular purpose known to the seller, there is an implied warranty that they are as represented and suitable for the intended purpose.” (Lens v. Blake-McFall Co., 44 Or. 569, 76 Pac. 356; Nixa Canning Co. v. Lehmamv-Higginson Grocery Co., 70 Nan. 664, 79 Pac. 141, 70 L. R. A. 653; Lane v. Pacific & I. N. By. Co., 8 Ida. 230, 67 Pae. 656; Morse v. Union Stockyard 'Co., 21 Or. 289, 28 Pac. 2, 14 L. R. A. 157; Hunter v. Porter, 10 Ida. 86, 77 Pac. 434.)</p> <p>“In an action for breach of contract of a sale of machinery or other articles, evidence that other machinery or articles, made on the same pattern and of like materials, did good work, is inadmissible.” (Lander v. Sheehan, 32 Mont. 25, 79 Pac. 408; Fox v. Stockton etc. Harvester Works, 83 Cal. 333, 23 Pac. 295; Stockton etc. Works v. Am. Fire Ins. Co., 121 Cal. 182, 53 Pae. 573.)</p> <p>If any error was committed it was in the court not allowing the respondent to state what representations were made by the plaintiff at the time of and just prior to the signing of the contract for the sale of the safe to the defendants as to what the safe was to be and what it would do, also as to what its protective qualities were, as well as what they were to get. (Davis v. Sweeney, 80 Iowa, 391, 45 N. W. 1040; Kramer v. Messner, 101 Iowa, 88, 69 N. W. 1143.)</p>

<p>APPEAL from the District Court of the Second Judicial District, for Nez Perce County. Hon. Edgar C. Steele, Judge.</p> <p>Action for divorce. Decree denied, and plaintiff appeals.</p> <p>In this ease none of the witnesses appeared before the district judge. The case was beard before a referee and appellant invokes the rule laid down in Roby v. Roby, 10 Ida. 139, 77 Pae. 213; Stoneburner v. Stoneburner, 11 Ida. 603, 83 Pac. 938.</p> <p>Extreme cruelty may be as effectually caused by conduct which produces mental suffering, and robs complainant of his or her peace of mind as by blows inflicted; and to many persons the burden of the mental suffering will be much harder to bear than the burden of any ordinary physical suffering. (Sylvis v. Sylvis, 11 Colo. 319, 17 Pac. 916; Barnes v. Barnes, 95 Cal. 171, 50 Pae. 298,16 L. R. A. 660; McDonald v. McDonald, 155 Cal. 665, 102 Pae. 927, 25 L. R. A., N. S., 45; Kapps v. District Court (Nev.), 103 Pae. 235; Avery v. Avery, 148 Cal. 239, 82 Pac. 967.)</p> <p>The gravamen of the complaint of appellant is cruelty and inhuman treatment. It is essential to establish this ground for divorce that the wrongs inflicted must be wilful and intentional. The absence of this element will defeat the divorce. (Ring v. Ring, 118 Ga. 183, 44 S. E. 861; Miller v. Miller, 78 N. C. 108; Everton v. Everton, 50 N. C. 210; Shaw v. Shaw, 17 Conn. 189, 7 Bish. Mar. & Div., sec. 1575; Bechley v. Bechley, 23 Or. 226, 31 Pae. 470; Ennis v. Ennis, 92 Iowa, 107, 60 N. W. 228; 14 Cyc. 601, 602.)</p> <p>“The cruelty which lays a just and legal foundation for a divorce must be unmerited and unprovoked.” (Taylor v. Tcnjlor, 11 Or. 303, 8 Pac. 353.)</p> <p>The plaintiff himself has been guilty of such action as estops him from claiming any grounds for divorce, because of the result which such actions had upon his wife, and because of her resentment of the treatment which he accorded her. {Mastorinan v. Masterman, 58 Kan. 748, 51 Pae. 277"; Wheeler v. Wheeler, 18 Or. 261, 24 Pac. 900; Johnson v. Johnson, 14 Cal. 460; Stonebumer v. Stonebumer, 11 Ida. 603, 83 Pae. 938; Ennis v. Ennis, 92 Iowa, 107, 60 N. W. 228; Reed v. Reed, 4 Nev. 836; Boone v. Boone, 12 Or. 437, 8 Pac. 450.)</p> <p>Where it appears that a defendant in a divorce proceeding has means and his wife has not, the court will allow her suit money and counsel fees. (Bay v. Day, 12 Ida. 556, 86 Pac. 531, 15 Ida. 107, 96 Pac. 431.)</p> <p>It is proper to grant counsel fees to wife, and order them paid. {Pike v. Pike, 123 Ill. App. 553; 9 Current Law, 93, sec. 7.)</p>

Hon. Edgar C. Steele, Judge. From a judgment of the district court allowing certain claims against an estate on appeal from the probate court, this appeal is taken. The claims of the Lewiston National Bank were finally and conclusively adjudicated by the probate court in the orders of May 25, 1908, settling the final account and finally accepting the resignation of J. Howard Howe, as administrator of said estate, and finally discharging him as such administrator.

Hon. Fremont Wood, Judge. An appeal from a judgment of the district court affirming an order of the board of county commissioners transferring money from the current expense fund to the road fund.

Hon. Wm. W. Woods, Judge, Action to recover damages for an injury alleged to have occurred because of the negligent manner in which appellant had erected a scaffold for the purpose of timbering a tunnel. Judgment for plaintiff.

<p>APPEAL from the District Court of the First Judicial District of tbe State of Idaho, for the County of Shoshone. Hon. W. W. Woods, Judge.</p> <p>Action by plaintiff to vacate a judgment and set aside a sale made on execution and cancel a sheriff’s deed, and to quiet his title to certain lands sold under execution. Judgment for the defendant, and plaintiff appeals.</p> <p>This court has repeatedly held that the reservation of title in a vendor creates such a lien in his favor as bars him from resorting to attachment under our statute. (WUlman v. Friedman, 3 Ida. 734, 35 Pac. 37; Barton v. Oroseclose, 11 Ida. 227, 81 Pae. 623; Mark Means etc. Co. v. Mackenzie, J Ida. 165 73 Pae. 135; Porter v. Brooks, 35 Cal. 199; Barbieri v. Bamelli, 84 Cal. 154, 23 Pae. 1086; Gessner v. Palmater, 89 Cal. 89, 26 Pae. 789, 13 L. R. A. 187; Ferguson v. Blood, 152 Fed. 98, 82 C. C. A. 432.)</p> <p>In tbe attachment suit the defendant was entitled to the best and every notice provided by law. Failure on the part of respondent to publish the name- of its attorney was a substantial defect in the notice. Any defect or failure to perform the strict requirements of the statute is a failure to give the defendant the best notice provided by law, and a judgment which assumes to take his property upon the publication of such notice amounts to the taking of his property without due process of law. (Choate v. Spencer, 13 Mont. 127, 40 Am. St. 415, 32 Pae. 651, 20 L. R. A. 424; Sharman v. Euot, 20 Mont. 555, 63 Am. St. 645, 52 Pac. 558; Sanford v. Edwards, 19 Mont. 56, 61 Am. St. 482, 47 Pae. 212; Strode v. Strode, 6 Ida. 67, 96 Am. St. 249, 52 Pae. 161; Mills v. Smiley, 9 Ida. 325, 76 Pac. 783.)</p> <p>The judgment in the attachment suit is void. The statute was not complied with. By the failure of the respondent and its attorneys to give notice provided by law one of the means by which appellant might have been advised of the pendency of the proceeding against his property was cut off. (Yerhes v. McFaddeh, 141 N. T. 136, 36 N. E. 7; Haywood v. McCrory, 33 Ill. 459; O’Bear v. Lazarus, 8 Colo. 608, 9 Pac. 621.)</p> <p>Statutory provisions with reference to attachment are mandatory and must be strictly complied with. (Murphy v. Montandon, 3 Ida. 325, 35 Am. St. 279, 29 Pac. 851; Kerns v. McAulay, 8 Ida. 568, 69 Pac. 539; Pennoyer v. Neff, 95 U. S. 714, 24 B. ed. 565; Shockley v. Bulloch, 18 Ga. 283; Jaffray v. Jennings, 101 Mich. 515, 60 N. W. 52, 25 L. R. A. 645; Marnine v. Murphy, 8 Ind. 272.)</p> <p>The proceeding by which the jurisdiction is initiated should show affirmatively that the defendant has property within the state. (Cassidy v. Woodward, 77 Iowa, 354, 42 N. W. 33.9; Lutz v. Kelly, 47 Iowa, 307; Wilson v. Seligmam, 144 U. S. 41, 12 Sup. Ct. 541, 36 L. ed. 338.)</p> <p>“When real property consists of several known lots or 'parcels, they must be sold separately, or offered for sale in ■parcels.” (Rev. Codes, see. 4484; Ollis v. Kirkpatrick, 3 Ida. '247, 28 Pae. 435; Odell v. Oox, 151 Cal. 70, 90 Pac. 194.)</p> <p>The several transactions of the respondent within the state •of Idaho clearly constitute such a doing of business as takes the transactions out of the class of cases which .are held to be interstate commerce, and respondent is therefore bound by the provisions of our statute with reference to the filing of articles of incorporation in this state. (Katz v. Herrick, 12 Ida. 1, 86 Pae. 873; Tarr v. Western Loan & Savings Co., 15 Ida. 741, 99 Pac. 1049, 21 L. R. A., N. S., 707; War Eagle 'Con. Min. Co. v. Dickie, 14 Ida. 534, 94 Pac. 1034.)</p> <p>Looking at the substance of this action the court will find that it is a direct attack upon the judgment in the attachment suit. Being a direct attack, under the authority of O’Neill v. Potvin, 13 Ida. 721, 93 Pac. 20, 257, the want of jurisdiction to render the judgment may be shown even though it does not appear upon the face of the judgment-roll.</p> <p>The action is without question a collateral attack upon the former judgment. (O’Neill v. Potvin, 13 Ida. 725, 93 Pac. 20, 257; Pennoyer v. Neff, 95 U. S. 714, 24 L. ed. 565.)</p> <p>In ease the writ of attachment is brought against the property of a nonresident, it is sufficient to set forth in the affidavit just what is required by the second subdivision of said section 4303, and no more. (Kerns v. McAnley, 8 Ida. 568, 69 Pac. 539; Boss v. Gold Bidge Min. Co., 14 Ida. 687, 95 Pac. 821 • Vollmer v. Spencer, 5 Ida. 557, 51 Pae. 609.)</p> <p>Our statute does not require that an alias summons must be indorsed, except by inference, and if such indorsement is required, such defect in form is not fatal or jurisdictional if the same cannot mislead anyone interested in the litigation. (McKnight v. Grant, 13 Ida. 629, 121 Am. St. 287, 92 Pac. 989; People v. Wrin, 143 Cal. 11, 76 Pac. 646; Hill v. Morgan, 9 Ida. 718, 76 Pae. 323.)</p> <p>No question was raised by the pleadings as to the execution sale, and the appellant cannot for the first time bring the matter to the attention of this court. “The proper remedy to set aside a judicial sale which has been wrongfully made, prior to the making of the sheriff’s deed, is by motion in the principal action.” (Wooddy v. Jameson, 5 Ida. 466, 50 Pac. 1008.)</p> <p>In this case there is no allegation whatever in relation to the manner of sale or the value of the property sold. (Booker v. Bass, 127 Ga. 133, 56 S. E. 283; People v. Owyhee Lumber Co., 1 Ida. 420; Leppel v. Kus, 38 Colo. 292, 88 Pac. 448.)</p> <p>The respondent was not obliged to comply with the requirements of the state of Idaho relative to foreign corporations, in order that it might sell an Apollo piano player and a lot of music within said state; it had the right to engage in interstate commerce. (Toledo Computing Beale Co. v. Young, 16 Ida. 187, 101 Pac. 257; Bell City Mfg. Co. v. Frizzell, 11 Ida. 1, 81 Pac. 58; In re Kinyon, 9 Ida. 642, 75 Pac. 268; In re Abel, 10 Ida. 288, 77 Pae. 621.)</p> <p>If the defendant had the right to engage in interstate commerce it necessarily had the right to enforce the collection of its debts. If it became necessary, in order to enforce collection of its debts, to purchase property upon which execution had been levied, it had the right to hold or dispose of such property. (Columbus Buggy Co. v. Craves, 108 Ill. 459; Elston v. Piggott, 94 Ind. 14; 19 Cyc. 1240, and note.)</p> <p>It has also been held that a foreign corporation does not do business in the state by merely purchasing property at a judicial sale. (19 Cyc. 1281; Meddis v. Kinney, 176 Mo. 200, 98 Am. St. 496, 75 S. W. 633.)</p> <p>STATEMENT OE FACTS.</p> <p>This action was instituted by the appellant, who was plaintiff in the lower court, to procure the cancellation of a default judgment entered against him on the 6th day of January, 1905, and in favor of the respondent in this case, the Simon Piano Co. Plaintiff also prayed for the cancellation of sheriff’s deed that had been executed and delivered under execution sale and to quiet his title to the lands sold in satisfaction of the judgment. On the 30th day of June, 1904, the appellant was a resident of Alberta, Canada, and was at that time the owner of 320 acres of timber land situated in Shoshone county and which was subsequently sold under the execution involved in this case. Prior to the departure of appellant for Alberta, he had been a resident of Coeur d’Alene city, Kootenai county, and while residing at the latter place and on the 9th day of December, 1902, he purchased from the respondent corporation an automatic music machine, called an "Apollo.” This Apollo was purchased under a conditional sale contract, by the terms of .which title remained in the piano company until the final payment should be made. On the 30th day of June, 1904, the Simon Piano Co., a foreign corporation, filed its complaint in the district court of the first judicial district of this state in and for Shoshone county, against the appellant herein, in which complaint it alleged that the defendant therein was indebted to the plaintiff in the sum of $110.05, together with interest thereon from the 7th day of June, 1904, at the rate of 7% per annum. This action was prosecuted for the collection of the alleged balance due from the appellant herein to respondent on the conditional sale contract for the Apollo. On the same date an affidavit for attachment was made and filed with the clerk, and a summons and writ of attachment were issued, and the writ of attachment was levied on the real estate involved in this present action. On July 16th following, the summons was returned, the officer stating thereon that it had not been served, for the reason that after diligent search and inquiry defendant could not be found within Shoshone county. Thereafter and on the 11th day of October, affidavit for publication of summons was made and filed, and an order for publication of summons was thereupon made by the probate judge, and thereafter a summons designated as "an alias summons” was duly published in the "Idaho Press,” a newspaper printed and published in Shoshone county. The summons as published did not show the name of the attorney for the plaintiff as the same had been indorsed on the summons. Notice of the issuance of the writ of attachment was not posted or published by the clerk of the district court as required by the provisions of the statute, sec. 4304, Rev. Codes. Judgment by default was entered in that action against the appellant herein and in favor of the Simon Piano Co. for the amount demanded, and execution was issued and levied on a tract of land comprising 320 acres, which was sold in one body to satisfy the judgment and was bid in by the plaintiff in that case, the Simon Piano Co. The plaintiff in the attachment suit had not complied with the foreign corporation laws of this state at the time of the prosecution of its action, nor did it until some time after the execution sale. The appellant appears to have had no actual notice of the pendency of the action or of any proceedings had thereunder until the month of June, 1906, and after the execution of the sheriff’s deed. On September 26, 1906, appellant filed his complaint in this action to set aside the judgment and cancel the deed. The case went to trial on February 5, 1909, and was submitted, and findings and judgment were made and entered in favor of the respondent. This appeal was thereupon prosecuted.</p>

Hon. E. T. Morgan, Judge. Petition and motion by respondent, A. H. Featherstone, to bave tbe equity of bis lien for attorney’s fees established as a charge against a judgment procured by him, and to bave tbe satisfaction of that judgment vacated and set aside on the grounds of fraud and for an execution on the original judgment. Judgment entered in favor of tbe petitioner, and tbe judgment debtor and one of the judgment creditors appeal.

Hon. Win. W. Woods, Judge. Action to recover balance due upon the sale of certain mining claims. Judgment for plaintiff. Where parties have been diligent in their efforts to be ready for trial, but have been prevented by circumstances beyond their control, the court should grant them a continuance.

<p>FORECLOSURE OS’ MORTGAGE — FRAUD—WAIVER OF — USURY—ATTORNEY’S Fee — Badge op Fraud — Bank Exchange — Cover por Usury— Note and Mortgage — Conflict Between — Default in Payment —Penalty for — Payment of Interest — Stipulation for — Separate Property of Wife — Contracts of Wife.</p> <p>(Syllabus by tbe court.)</p> <p>1. Held, that there was no fraud, deception or failure of consideration in the contract for the sale of the land involved in. this case.</p> <p>2. Where an original contract has been made for the purchase of land and under that contract the purchasers take possession of the land and have full opportunity to ascertain all of the facts in regard to the water rights and roads connected therewith, and thereafter procure the seller to waive the contract and to deliver them a deed for the premises, and execute a mortgage for the purchase price upon different terms from that provided by the original contract, they thereby waive any question of fraud in the original contract.</p> <p>3. Under the provisions of subd. 5 of sec. 3459, Eev. Codes, an attorney’s fee may be legally stipulated for in case payment shall not be made at maturity, and such stipulation is not a usurious contract.</p> <p>4. A stipulation to pay bank exchange on borrowed money is not usurious unless it appears that such stipulation is a device to cover a usurious contract and it was not intended that the money should be remitted to the place to which exchange is provided.</p> <p>5. Where the provisions of a promissory note, secured by mortgage, vary from the terms of the mortgage, the provisions of the note must control.</p> <p>6. Where it is stipulated in a promissory note that “the whole sum of both principal and interest shall become immediately due and collectible at the option of the holder of the note” if payment of interest and principal instalments are not made when due, such stipulation is a penalty, and will not be enforced as to the interest not yet earned on the principal.</p> <p>7. Held,, that Mrs. Ellsworth is one of the principals upon the promissory notes involved in this ease and not a surety.</p> <p>S. Under the laws of this state, a married woman may bind her separate property jointly by her contract for her own or her husband’s debt.</p>

Hon. W. W. Woods, Judge. Action by plaintiffs in support of an adverse claim to establish the title to a certain mining claim called the “Senator.” Judgment for the plaintiffs and the defendant appealed. The locations of the respondents were so excessive in size as to be void.

The federal courts have uniformly held that nothing less than an official survey by the federal government will serve to identify public land. It follows that, until this is done, the federal government retains the exclusive right of possession as well as a species of title — indeed, the custody, control and limited right of alienation is still in the federal government, until survey, despite the grant in praesenti. (Hibierd v..

Hon. Edward A. Walters, Judge. Action to foreclose mortgage. Judgment for plaintiff. Defendant appeals.

<p>Administrator — Claims Against Estate — Legal Remedy at Law— Equitable Relief — Contract of Guaranty — Liability of Deceased Thereon — Charges of Collusion.</p> <p>(Syllabus by tbe court.)</p> <p>1. An action in equity cannot be maintained to release tbe liability of an estate upon a contract of guaranty made by tbe decedent, when there exists a legal remedy at law, either affirmative or defensive, which would be adequate, certain and complete.</p> <p>2. A court of equity will not decree the release of a guarantor upon tbe contract of guaranty unless special and peculiar circumstances are shown to exist which could not be shown as a defense in an action at law based upon such contract of guaranty.</p> <p>3. Where C. signs a joint and several contract of guaranty guar ■ anteeing the payment of promissory notes, and afterward dies, and an administrator is appointed, and the holder of such notes files the same as claims against the estate of C., and full opportunity is given to contest such claims upon any legal or equitable ground by the administrator, heirs or creditors of said estate, such administrator, heirs or creditors of said estate cannot afterward maintain an action in equity against the holder of said notes for the purpose of releasing said estate from its liability upon said contracts of guaranty, upon the ground that a conspiracy was entered into between the holder of such notes, the administrator of said estate and the stockholders of the principal debtor, whereby property belonging to the principal debtor was transferred to the holder of such notes at less than its actual and true value and the purchase price thereof improperly applied upon such indebtedness.</p>

Hon. ¥m. W. Woods, Judge. An action brought in support of an adverse claim on application for a patent to a mining claim. Judgment for the defendant. The surface ground of a lode mining claim can only be of the length of 1,500 feet and width of 600 feet, but if the location exceeds that it is void only as to excess. (Burke v. McDonald, 2 Ida. 679, 33 Pac. 49, 13 Morr. Min. Rep. 325; 1 Lind. Mines, 2d ed., sec. 362; Snyder on Mines, 398; Stem-winder Min.

Original action for a writ of mandate. In the cases contemplated by the constitution, the state or municipality would not become the absolute owner of the railroad, with power to manage, operate and control the same, or the owner of an interest therein; hence if these provisions were applicable to districts other than political subdivisions of the state, and we submit they are not, they would not prevent such districts from constructing railroads that were to become their…

Hon. Ed. L. Bryan, Judge. Action to recover from a stockholder taxes paid by tbe bank subsequent to tbe sale of such stock by tbe stockholder. Judgment for tbe plaintiff and defendant appealed. The gist of sec. 1672, Eev. Codes, is that tbe stock must be assessed in tbe name of tbe stockholders, tbe bank must furnish tbe assessor with a list of its stockholders and tbe number of shares held by each, and tbe bank must pay tbe tax.

Hon. Ed. L. Bryan, Judge. Action to recover from a stockholder taxes paid by the bank subsequent to the sale of such stock by the stockholder. Judgment for the plaintiff and defendant appealed. citing same authorities given in Shainwdld v. Bank, ante, p. 290, 109 Pac. 257. Appellant contends that it was the duty of the respondent bank to pay the tax out of any surplus funds or undivided profits on hand, as the current expenses of banks are usually paid.

Hon. Ed. L. Bryan, Judge. Action brought under provisions of sec. 1835 to recover license tax for conducting a saloon business. Demurrer to complaint sustained. It is incumbent upon every person desiring to sell or carrying on the business of selling intoxicating liquors or wines to first provide himself with the necessary ■ license.

Fremont Wood, Judge. Action to recover attorneys’ fees and exchange charges. Judgment for defendant. The terms of the note apply to all amounts realized from a sale of the notes or collection of any of said collateral security or the note. Therefore, the payee in the note is entitled to all expenses paid by it -as attorney’s fees for services disclosed by the facts which are legal services. (1Mc-Ghee v. Importers’ & Traders’ Nat.

Hon. Edgar C. Steele, Judge. Action to enjoin the city of Moscow from issuing refunding bonds. Judgment for defendant. The supreme court of the United States in Township of Doon v. Cummins, 142 U. S. 366, 12 Sup. Ct. 222, 35 L. ed. 1044, held that the issuance of refunding bonds creates a new indebtedness.

the District Court of the Sixth Judicial District, for Custer County. Hon. Edward A. Walters, Presiding Judge. From a judgment setting aside an order for the confirmation of the sale of real estate and refusing to confirm the sale by the district court on an appeal from the probate court, the purchaser at the sale appeals.

<p>APPEAL from tbe District Court of the Sixth. Judicial District, for Fremont County. Hon. J. M. Stevens, Judge.</p> <p>Application to have a bill of exceptions settled. Denied.</p> <p>A bill of exceptions is a proceeding within the meaning of see. 4229, Rev. Codes, which is identical with sec. 473, Code of Civil Procedure of Cal. (Lukes v. Logan, 66 Cal. 33, 4 Pae. 883; Irwin v. Bank, 6 Ohio St. 86; Wilson v. Allen, 3 How. Pr. 371; Rich v. Husson, 1 Duer, 620; Wilson v. M.ack-lin, 7 Neb. 52; Strong v. Hardenburgh, 25 How. Pr. 438; Pollitz v. Wicker sham., 150 Cal. 238, 88 Pac. 911; Stonesifer v. Eilburn, 94 Cal. 33, 29 Pac. 332; Banta v. Siller, 121 Cab 414, 53 Pac. 935; Vinston v. Los Angeles By. Go., 147 Cal. 479, 82 Pac. 53; Cole v. Wilcox, 99 Cal. 549, 34 Pac. 114; Sandstrom v. Smith, 11 Ida. 779, 84 Pac. 1060.)</p> <p>If the time for the preparation and service of a bill of exceptions has expired, the court has lost jurisdiction to extend that time, and it cannot under any circumstances be extended. (Sandstrom v. Smith, 11 Ida. 779, 84 Pac. 1060; Hoehnan v. New York Drygoods Go., 8 Ida. 66, 67 Pac. 796; Simpson v. Pioneer Irr. Dist., 17 Ida. 435, 106 Pac. 1.)</p> <p>Ignorance of the law is no excuse. The courts in • the following cases refused to relieve laymen from a condition caused by ignorance of law. Why, then, relieve a member of the bar? (Chase v. Swain, 9 Cal. 130; Busy v. Prudom, 95 Cal. 646, 30 Pac. 798; Harper v. Mallory, 4 Nev. 447; Chaffin v. Fulkerson, 95 Ky. 277, 24 S. W. 1066; Beekman v. Franker, 3 Caines, 95; Abrams v. Virginia F. Ins. Co., 93 N. C. 60; Sherman v. Jorgenson, 106 Cal. 483, 39 Pac. 863.)</p> <p>When it subsequently is made to appear to the trial court that an order has been made or entered which does not correctly state his decision, he has authority to correct it. ('Whitney v. Superior Court, 147 Cal. 536, 82 Pac. 37; O’Brien v. O’Brien, 124 Cal. 422, 57 Pac. 225; Canadian A. M. & T. Co. v. Clarita L. & L. Co., 140 Cal. 672, 74 Pac. 301.)</p>

Hon. Edward A... Walters, Judge. Action by plaintiff to recover a judgment on a foreign. judgment. Judgment for plaintiff and defendant appealed.. In a suit on a judgment rendered in tbe courts of another state, the judgment sued on may be attacked collaterally for want of jurisdiction. In such suit all jurisdictional questions are open to inquiry. (Raymond v. Raymond, 1 Ind. Ter. 334, 37 S. W. 202; Rond v. Simons, 17 Ind.

Hon. Fremont Wood, Judge. Action to quiet title to real estate. Judgment for plaintiffs,.

Hon. Fremont Wood, Judge. Action by the plaintiff for the foreclosure of a mortgage. Judgment for defendants and plaintiff appealed. It was not necessary that respondents should promise to pay the indebtedness to extend a new date for the statute to commence running as to the mortgage. All that was required was a plain and distinct acknowledgment in writing of the existence of the mortgage.

<p>APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. Ed. L. Bryan., Judge.</p> <p>Defendant was tried and convicted for the crime of grand larceny, which crime consisted of the stealing of a certain mare.</p> <p>Under the -circumstances bearing upon and surrounding this ease the probability or improbability, the reasonableness or absurdity of what is represented to have been the conduct of appellant is of controlling importance in determining the sufficiency of the evidence to justify the verdict. (Knowles v. Knowles, 86 Ill. 1, 8; Gardner v. Weston, 18 Iowa, 533, 535.)</p>

Hon. Ed. L. Bryan, Judge. Action for an accounting and to quiet title. Judgment for the plaintiff. “A judgment must be supported- by the verdict or findings in the case, and a judgment which goes beyond the verdict is erroneous.” (11 Ency. of PI. & Pr. 904, par. 10; Richards v. Scott, 7 Ida. 726, 65 Pac. 433; Butte Electric By.

Hon. Ed. L.. Bryan, Judge. Action by the Gem Irrigation District for confirmation of the proceedings organizing the district. Judgment for the; plaintiff and defendant appeals. The statutes expressly authorize the signatures of' entrymen so far as making up the number required is concerned. Therefore, whatever is the interpretation of sec. 2372, Rev. Codes, this petition is sufficient, and gave the county commissioners jurisdiction to act. (See Nevada Nat.

Hon. Alfred Budge, Judge. Action to recover damages for an' alleged mistake made by the telegraph company in transmitting a message. Motion for nonsuit was granted and judgment of dismissal entered. An error made in a plainly written message, each word distinguishable by the naked eye, is gross negligence, unless some exculpatory evidence is adduced.

Hon. Ed. L. Bryan, Judge. Prosecution for rape on a female under the age of consent. From a judgment of conviction defendant appealed. “The -declaration, to be admissible, must not only be made during the pendency of the criminal enterprise, but also in furtherance of its objects.

Hon. Fremont Wood, Judge. Action to recover possession of certain railroad bonds or their value in case a return cannot be had. Demurrer to the complaint on the ground that it does not state a cause of action, and other grounds, sustained by the trial court. Under the provisions of our code the technicalities of pleading have been dispensed with, and the plaintiff need only state his cause of action in ordinary and concise language.

Hon. Fremont Wood, Judge. Action by plaintiffs to determine the respective interests of several parties to real estate. Judgment for defendant. Plaintiffs appeal.

Original proceedings in this court for writ of prohibition and writ of mandate. The order made by the court below was a discretionary order, and is not subject to be revised upon an application either for prohibition or mandamus. (Bust v. Stewart, 7 Ida. 558, 64 Pae. 222; Connolly v. Woods, 13 Ida. 591, 92 Pac. 573; State ex rel.

An original application to this court for an order declaring “the judgment and order appealed from to be superseded by the taking of the appeal. While the legislature permits of an appeal from an order appointing a receiver, it does not require any additional bond upon such appeal, except as is provided in sec. 4817.

Hon. Edward A. Walters, Judge. Action to recover on promissory notes. Judgment for plaintiff. Under the rules of practice in this court, “where there is a substantial conflict in the evidence, the findings of the trial court will not be disturbed.” (Heckman v. Espey, 12 Ida. 755, 88 Pac. 80, and eases cited.)

Original application for writ of habeas corpus. Writ issued and bearing bad on return thereto. We do not believe that tbe statute interpreted by tbe usual rules by wbicb a well-educated man would interpret any writing can be called ambiguous, for we cannot conceive of any construction being correct which would limit the phrase “used as a beverage and produce intoxication,” to the preceding words describing mixed drinks.

Original action in this court for writ of habeas corpus. Petitioner was convicted in the justice’s court of Boise precinct, Ada county, of a violation of the Sunday rest law in unlawfully keeping .open a place of publie amusement, to wit, a scenic railway, on Sunday. Hearing had on return to writ. The defendant’s contention is that he has not violated sec.. 6825, Bev.

This is an original proceeding for a writ of prohibition to restrain the secretary of state from certifying to the several county auditors of the state a list containing the names, post-office address and party designation, etc., of candidates as required by the primary election law. The provision in see. 14 -of the act, “Vote for both first and second choice if there are more than twice as many candidates as there are positions,” is ambiguous and uncertain.

Fremont Wood, Judge. Action on water contracts to declare the respective rights and priorities of the parties. Judgment for plaintiff. Defendant appealed. This court has already passed upon the law controlling this particular case.

Original action in this court for a writ, of habeas corpus. The petitioner was convicted of the crime of keeping open a place of public amusement on Sunday, such amusement consisting in opening and conducting what is alleged to be a theater known as “The Boz” in Boise, and therein producing a moving picture exhibition to which He admitted the pubiic on payment of an admission fee. The prosecution was had under sec. 6825 of the Rev. Codes.

<p>Specification of Error — Powers of the Bank Cashier — Ratification of Unauthorized Act of Cashier.</p> <p>(Syllabus by the court.)</p> <p>1. Held, that under the facts of this ease the specifications of insufficiency of evidence to sustain the decision are sufficient to authorize and require the court to examine the evidence on appeal.</p> <p>2. In contemplation of law, the leasing of property belonging to a national banking association is not within the ordinary powers and duties of the cashier of the bank.</p> <p>3. Where the cashier of a national bank has entered into a contract to lease certain of the bank property for a term of years and it does not appear that he had any express authority from the board of directors to do so, but it does appear that the contract signed by the cashier and the lessee has been in possession of the bank for eighteen months, and that at least a majority of the directors of the bank had knowledge of the contract and its terms and conditions, and that the cashier was exercising the power and authority of leasing the bank property, and especially vacant rooms in the bank, building, and that the bank’s building committee or its board of directors made changes in the plans and specifications of its building on the suggestion of the lessee and incorporated the same in the building as erected, and finished the room to be occupied by the lessee in accordance with his request and suggestions, and the board of directors never repudiated the contract or notified the lessee that they would not live up to the same until after the expiration of eighteen months and the completion of the building, held, that suek acts and conduct on the part of the board of directors amounted to a ratification of the action of the cashier and rendered the contract entered into by him the contract of the bank.</p>

Hon. Ed. L„ Bryan, Judge. Action by the plaintiff for debt. Judgment for the plaintiff and defendant appealed. The complaint utterly fails to allege that the defendant is a corporation properly incorporated, the state of its incorporation or its principal place of business. (Citing cases embodied in opinion as cited by appellant; Martin v. Cook,. 14 N. Y. Supp. 329; Oesterreicher v. Sporting Times Pub.

<p>Tort — Poem or Summons — Jurisdiction of Court.</p> <p>(Syllabus by tbe court.)-</p> <p>1. An action by a land owner within an irrigation district against the district for damages on account of failure to supply water to which he was entitled is an action in tort and not on contract.</p> <p>2. Where the notice contained in a summons is given under the provisions of subd. 4, see. 4140, instead of under the provisions of subd. 5 of that section, and notifies the defendant that if it fails to appear the plaintiff “will take judgment for the sum demanded in the complaint,” naming it, instead of notifying the defendant that the “plaintiff will apply to the court for the relief demanded m the complaint,” and the plaintiff applies to the court for the relief demanded instead of taking a default judgment by the clerk, the error or mistake is not fatal to the jurisdiction of the court.</p>

<p>PROMISSORY Note — Failure of Consideration — Defense—Rescission and Damages.</p> <p>(Syllabus by the court.)</p> <p>1. The maker of a promissory note cannot avoid payment of the same on the grounds of failure of consideration, where the answer and proofs admit that there was not a total failure of consideration and that he in fact received and retains a part of the consideration as the same was agreed upon.</p> <p>2. Where there has been a partial failure of consideration for the execution of a promissory note, the maker of the note, in order to obtain relief, must either rescind the contract and return the consideration received or claim damages for breach of the contract or pursue some remedy whereby the holder of the note may be enabled to receive just compensation for such part of the consideration as actually passed.</p>

Hon. E. A. Walters, Judge. Action to enjoin the canvassing board from canvassing and certifying an abstract of the vote in Hillsdale precinct, Lin* coin county. Application denied.

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

Original application for a writ of habeas corpus to dis■charge tbe prisoner from custody on tbe ground tbat tbe trial court bad no jurisdiction to pronounce tbe sentence tbat was imposed on tbe applicant. Tbe sentence must be definite and certain as regards tbe time of its duration. (Rev. Codes, see. 6307.) Tbe prisoner should bave been sentenced under tbat law, ■as provided in tbe act of March 11, 1909, Sess.

<p>Original application for writ of habeas corpus. Writ issued and bearing had on return thereto.</p> <p>It is incumbent upon the state to show that there is such a relation between this act of the accused and the death of Mrs. Riegleman as to prove beyond reasonable doubt that such act was the exact cause of her death. (21 Am. & Eng. Enc. of Law, 97 (c).)</p> <p>A person must be presumed to do that which he voluntarily and wilfully does in fact do, and that he intends all the natural, probable and usual consequences of his acts (Commonwealth v. Webster, 5 Cush. 305, 52 Am. Dec. 711; People v. Mum, 65 Cal. 211, 3 Pac. 650), but not all the possible ■consequences of his act. (People v. Munn, supra; People v. Rockwell, 39 Mich. 503.)</p> <p>Counsel, after a protracted and careful search, have failed to discover in the boobs a single case presenting the same precise facts as are here presented. The only cases that approach .anywhere near are those cited in note 4, p. 98, 21 Am. & Eng. Enc. of Law.</p> <p>A person is responsible for a homicide in whatever manner or by whatever means the death was caused, provided it was caused by 'his unlawful act or omission resulting in physical or corporal injury. (21 Cyc. of Law & Prac. 694, 695, and authorities cited.)</p> <p>A person may be guilty of murder or manslaughter, according to the circumstances, if by reason of fright, intentionally and unlawfully caused by him, physical or corporeal injury and death resulted. (Thornton v. State, 107 Ga. 683, 33 S. E.. 673; Adams v. People, 109 Ill. 444, 50 Am. Rep. 617; Hen-drickson v. Gommomvealth, 85 Ky. 281, 7 Am. St. 596, 3 S. W. 166; Cox v. People, 80 N. Y. 500; Hopkins v. Gommomvealth, 117 Ky. 941, 80 S. W. 156, 4 Ann. Cas. 958, and authorities: cited in note.)</p> <p>A person will not be permitted to do an act which jeopardizes the life and safety of another, and then upon the plea of accident escape liability for a homicide involuntarily resulting from his recklessness. (Potter v. State, 162 Ind. 213, 102 Am. St. 198, 70 N. E. 129, 64 L. R. A. 942, 1 Ann. Cas. 32; 21 Am. & Eng. En. of Law, 98, 191, and authorities-cited; Stephen, Digest Cr. Law, art. 221; People v. Stuben-vail, 62 Mich. 329, 28 N. W. 883.)</p> <p>The unintentional killing of a person through the negligent handling of a firearm in any way indicating a disregard of human life is manslaughter. (State v. Grote, 109 Mo. 345, 19 S. W. 93; State v. Emory, 78 Mo. 77, 47 Am. Rep. 92; People v. Fuller, 2 Parker Crim. Rep. (N. Y.) 16; State v. Vines, 93 N. C. 493, 53 Am. Rep. 466; Sparks v. Commonwealth, 3 Bush (Ky.), Ill, 96 Am. Dec. 196; Pool v. State, 87 Ga. 526, 13 S. E. 556.)</p>

District, for Ada County. Hon. Fremont Wood, Judge. Action to recover damages on. sale of real estate. Judgment for defendants. When a positive assurance of an area of a parcel of land is made by the vendor to the' vendee, with the design of making the vendee believe it, that assurance is very material,, and equivalent to an assurance of measurement.

Hon. Fremont Wood, Judge. Action to quiet title. Judgment for defendant. A statute which undertakes to make a tax deed conclusive evidence of a complete title, and to preclude the owner of the original title from showing the invalidity of such deed, is not a law merely regulating evidence; it is unconstitutional confiscation of property. (Cooley on Taxation, 2d ed., 298, 521; Cooley, Const.

<p>Building Contract — Surety—Materialman’s Lien — Waiver op Lien by Surety — Admission op Principal Binding on Surety.</p> <p>(Syllabus by tbe court.)</p> <p>1. Where S. subscribes his name to a contract executed by B. and K., and no mention of S.’s name appears in the body of the contract and no reference to his liability is made in the contract, held, that S. signed as surety and should be held as such.</p> <p>2. Where a building contract was indefinite or uncertain in certain particulars and the principal obligor placed his own construction and interpretation on the contract and erected the building in accordance therewith, and there does not appear to have been any fraud or collusion between the contractor and the owner of the building, held, that the surety will be bound by the construction, placed on the contract by his principal.</p> <p>3. The surety for a contractor on a building contract cannot, maintain an action for the foreclosure of a lien for materials furnished in the carrying out of the contract and erection of the-building, where it appears that the full contract price has been paid to the contractor, or on his order, prior to any claim being made by the surety or notice being given to the owner of the-building.</p> <p>4. An admission made by the contractor in the course of the performance of his contract or upon the completion thereof as to having no claims for extras against the owner of the building, held, admissible against the surety in an action where the surety seeks to foreclose a materialman’s lien for materials furnished in. the construction of the building.</p>

Original application by the secretary of state against the state board of canvassers for a writ of review. Under our statute the state board of canvassers is certainly vested with judicial functions.

<p>APPEAL from tbe District Court of the Third Judicial District of the State of Idaho, in and for Ada County. Hon. Fremont Wood, Judge.</p> <p>Prosecution for sale of lard hy short weights under the provisions of sec. 7109 of the Rev. Codes. Verdict and judgment of conviction, from which defendant appealed.</p> <p>The jury in this case did not find against the defendant upon the issue as expressed in the complaint, nor was there a special verdict found; but it sought to and did find appellant guilty of a crime — or supposed crime, rather — which is not only not charged in the complaint but is not known in the criminal law generally, and is not a creature of our statute, to wit, “selling by short weights.”</p> <p>California has a statute identical with sec. 7929, from which our section was undoubtedly taken. (Kerr’s Cal. Code (Penal), see. 1162; People v. Tilley, 135 Cal. 61, 67 Pac. 42; People v. Small, 1 Cal. App. 320, 82 Pac. 87; Bishop’s New Criminal Proc., sec. 1005.)</p> <p>The facts as shown by the respondent were not sufficient to justify such a verdict and judgment even if the same is valid and was properly rendered and entered. (Harris v. Allwood (Eng.), 57 J. P. 7; State v. Swift & Co., 84 Neb. 244, 120 N. W. 1127.)</p> <p>The court erred in giving instruction No. 6. "What the complaining witness meant and what the appellant understood in this transaction were matters to be determined by the jury from the evidence, and it was error upon the part of the court to instruct them as to such meaning or understanding.</p> <p>If it were necessary to name the offense, since the statute itself does not give a name to the offense, a brief general description is sufficient. (22 Cyc. 302, and cases under note 49.)</p> <p>“Generally, indictments or informations for statutory offenses, although they give an erroneous appellation, or fail to give any appellation to the offense, if the facts constituting the offense as defined by the statute are sufficiently stated, are good.” (22 Cyc. 302, and cases under notes 51 and 52; People v. McCarty, 48 Cal. 559; People v. Brady (Cal.), 65 Pac. 823.)</p> <p>• It is very generally held that the verdict is good if the intention of the jury can be ascertained. (Eellum v. State, 64 Miss. 226, 1 So. 174; State v. Wilson, 40 La. Ann. 751, 5 So. 52, 1 L. R. A. 795; Cheek v. Commonwealth, 87 Ky. 42, 7 S. W. 403; Crook v. State, 27 Tex. App. 198, 11 S. W. 444; Bidwell v. State (Tex. Cr.), 20 S. W. 556; Stepp v. State, 31 Tex. Cr. 349, 30 S. W". 753; Pave v. State (Tex. Cr.), 20 S. W. 762; Jenkins v. State, 92 Ga. 470, 17 S. E. 693; People v. O’Callaghan, 2 Ida. 156, 9 Pac. 414; State v. Collyer, 17 Nev. 275, 30 Pac. 891; Burgess v. State, 33 Tex. Cr. 9, 24 S. W. 286; Wallace v. State, 70 Tenn. (2 Lea) 29; State v. Jenkins, 60 Wis. 599, 19 N. W. 406.)</p>

Hon. Alfred Budge, Judge. Action to recover damages for leaving open certain gates. Judgment for defendant. Tbe first action was brought to determine tbe question as' to whether or not tbe respondent bad a right to travel over tbe premises of tbe appellant, on a road which be and others bad used for more than thirty years. It is admitted that he-had, and the court in decreeing bis right of way erroneously,, as we contend, denominated this private way a private road.

<p>Criminal Law — Burglary—Insufficiency of Evidence — Requested Instructions — Instructions Given by Court on Its Own Motion —Exceptions to.</p> <p>(Syllabus by tbe court.)</p> <p>1. Tbe evidence held sufficient to support tbe verdict.</p> <p>2. Where no exception is taken to tbe introduction of certain evidence and the admission thereof is not specified as error in the-assignment of errors in appellant’s brief, the admissibility of such evidence will not be passed upon on appeal.</p> <p>3. Held, that tbe court did not err in refusing to give certain instructions requested by the defendant.</p> <p>4. Under tbe provisions of sec. 7940, Rev. Codes, instructions given by tbe court on its own motion will not be reviewed on appeal unless exception thereto is duly taken and embodied in a bill of exceptions.</p>

<p>APPEAL from tbe District Court of tbe Third Judicial District, for Ada County. Hon. Fremont Wood, Judge.</p> <p>Action to recover for personal injuries alleged to have been caused through the negligence of the defendants. Judgment for the plaintiff.</p> <p>As a general rule, expenses incurred for medical attention, nursing, etc., cannot be recovered under the general allegation of damages, but must be specially pleaded. (5 Ency. PI. •& Pr. 751, and note 2.)</p> <p>Loss of earnings and loss of capacity to attend to business affairs are generally held to require a special averment to recover therefor. (Silsby v. Michigan Gar Go., 95 Mich. 204, 54 N. W. 761; Chicago v. 0’Brennan, 65 Ill. 160; Mellor v. Missouri B. Go., 105 Mo. 455, 16 S. W. 849, 10 L. E. A. 36; City of Pueblo v. Griffin, 10 Colo. 367, 15 Pac. 616; Tucker v. Parks, 7 Colo. 62, 298, 1 Pac. 427, 3 Pac. 486; 5 Ency. PI. & Pr. 753, and note 2.)</p> <p>The allegations of the complaint as to grounds of damages •are all in the past tense, and do not even inferentially allege or claim damages for future pain, mental anguish and suffering. The instruction complained of expressly states, “The jury may find for future pain, anguish and suffering,” and this clause is united with the past pain and suffering. This is fatal error, and of itself must cause a reversal of the case. (Shute v. Griffith, 103 Iowa, 150, 72 N. W. 445, 40 L. E. A. 117.)</p> <p>Although the supreme court may be satisfied that the verdict of a jury is reasonable in amount, a new trial will be granted, when an erroneous instruction has been given by the district judge which may have influenced the verdict. (Yonge v. Pacific Mail S. S: Co., 1 Cal. 353; Brown v. Mc-Allister, 39 Cal. 573; Friedenberg v. Bobinson, 14 Fla. 130; Goode v. State, 16 Tex. App. 411.)</p> <p>Where permanent injuries have been alleged and sustained, all elements of damage, including future pain, anguish and suffering, medical attendance and nursing, and all damages which are the natural and uniform effects of the injury, may be shown, although not specifically alleged. (16 Ency. PL & Pr. 391-449; Crank v. Bailway Go., 53 Hun, 425, 6 N. T. Supp. 229; Chi. B. B. Go. v. Warner, 108 Ill. 538; Bienke v. Bentley, 90 Wis. 457, 63 N. W. 1055; Texas By. Go. v. Gurry, 64 Tex. 85; Treadwell v. Whittier, 80 Cal. 574,13 Am. St. 175, 22 Pac. 266, 5 L. E. A. 498; Batteree v. Chapman, 79 Ga. 574, 4 S. E. 684; Wilson v. B. B. Co., 132 Pa. 27, 18 Atl. 1087; Schmitz v. Bailway Co., 119 Mo. 256, 24 S. W. 472, 23 L. R. A. 250; Miller v. Boone County, 95 Iowa, 5, 63 N. W. 352; Hopkins v. Atlantic By. Co., 36 N. H. 9, 72 Am. Dee. 289; 2 Eorer on Railways, p. 1098; Brown v. Hannibal B. Co., 99 Mo. 318, 12 S. "W. 655; 5 Eney. PI. & Pr. 754; Chicago v. McLean, 133 Ill. 148, 24 N. E.*527, 8 L. R. A. 765; Tyson v. Booth, 100 Mass. 258; Bobinson v. Marino, 3 Wash. 434, 28 Am. St. 50, 28 Pae. 752; 16 Eney. PI. & Pr. 391-449.)</p>

Hon. Fremont Wood, Judge. Action on two several promissory notes. Judgment for plaintiff and defendants Howard appeal. In matters of contract, a foreign corporation cannot transact business in this state nor maintain actions at law in this state in relation to such contracts before complying with the constitution and laws of the state, and can maintain no action on contract created before such compliance.

Hon. Edgar C. Steele, Judge. Appeal from an order granting a change of the plaee of trial on the grounds of the prejudice of the judge. Except under statutes expressly authorizing change of venue upon the filing of an affidavit by a party that he believes he cannot have a fair trial on account of the bias or prejudice of the judge, or some like provision, an affidavit of belief merely is insufficient.

Hon. Edgar C. Steele, Judge. Proceeding involving the order of the board of county commissioners in incorporating the village of Ilo.

Hon. Edgar C. Steele, Judge. Action to recover damages on contract for failure to comply with its terms. Judgment for plaintiff. After Bell had expended a large amount of money in- carrying out the terms of the agreement, it had then become an irrevocable license, and if violated by Shields would subject him to any damages which Bell may have suffered. (Rhodes v. Otis, 33 Ala. 578, 73 Am. Dee. 439; Beatty v. Gregory, 17 Iowa, 109, 85 Am.

Hon. Robert N. Dunn, Judge. Action by the plaintiff to recover damages sustained by reason of the wrongful issuance of an injunction. Judgment for defendant and plaintiff appealed.

Hon. W. W. Woods, Judge, Action to recover title to certain mining claims. Judgment for defendants. “Laches cannot be imputed to one in the peaceable possession of land for delay in resorting to a court of equity to correct a mistake in the description of premises in a conveyance through which title must be deduced.

Original application for a writ of prohibition against tbe Honorable William W. Woods, as judge of tbe District Court of tbe First Judicial District. Alternative writ issued and return and motion made to quash tbe writ. Sec. 14 of art. 1 of our constitution specifically prohibits tbe taking of property until a just compensation to be ascertained in a manner prescribed by law shall be paid for tbe same. It has been held by this court in Portneuf Irr.

Hon. Robert N. Dunn, Judge. Proceeding in condemnation. Judgment on findings and report of commissioners and award of damages. From decree and judgment and order refusing to vacate decree and judgment plaintiff appealed. The claim for costs incurred in the proceedings before the commissioners is untenable. (5 Ency.

Hon. Edgar C. Steele, Judge. Proceeding in the district court for a writ of mandate to the board of county commissioners to compel them to issue a license to petitioner authorizing him to engage in the business of retailing intoxicating liquors in the city of Lewiston. Writ denied and judgment of dismissal entered.

<p>Costs or Appeal — Stenographic Record — Copt or.</p> <p>(Syllabus by tbe court.)</p> <p>1. Under the provisions of sec. 3984, Rev. Codes, either party to a suit in which a stenographic reeord has been made may demand a typewritten copy of a part or the whole thereof, and the reporter must furnish the same upon the payment of a fee of seven and one-half cents per hundred words.</p> <p>2. When a party procures a typewritten copy of the stenographic record to be used in the preparation of his bill of exceptions or statement of the case, and intends to have the cost thereof taxed as costs in the ease on appeal, he must serve the copy of the stenographic record upon the adverse party when he serves his proposed bill or statement, so that the adverse party may have the benefit of it in preparing amendments or in ascertaining whether the proposed bill or statement is correct.</p> <p>3. A transcript of such reeord in narrative form made by the reporter is not a compliance with said statute requiring the reporter to furnish a typewritten copy of the stenographic reeord, and the cost of procuring said record in narrative form will not be allowed as costs on appeal.</p> <p>4. All fees earned by the reporter or his deputy under the provisions of the reporter statutes, which include section 3980 and the following seven sections, must be turned into the state treasury, and the reporter cannot evade that requirement by reducing the stenographic reeord to narrative form.</p>

Hon. Edgar C. Steele, Judge. Action by plaintiff to contest a local option election beld in Nez Perce county.

Hon. W. W. Woods, Judge. Prosecution for murder and defendant convicted of murder in the second degree. Defendant appeals. It is well-settled law, that if a defendant voluntarily submits to a preliminary examination, he may not thereafter question the sufficiency of the complaint. This would be true even though the complaint had been made on information and belief instead of being a direct statement. (12 Cyc. 294, and eases cited under note 63.)

Hon. Eobt. N. Dunn, Judge. Action to rescind a contract for the sale of real estate. Judgment for plaintiff. It is expressly alleged in the complaint that no tender or offer was made by respondent before the commencement of this action. Eespondent did not offer nor attempt to return what he had received, or to put the parties in statu quo.

Hon. W. W. Woods, Judge. Action by the plaintiff for damages for personal injury. Judgment for plaintiff and defendant appealed. There is absolutely no evidence to show that anyone was negligent and that it was not one of those accidents incident to any business which cannot with reasonable prudence be foreseen. The plaintiff must make his case. He has failed to do so. (Reino v. Montana Mineral Land Bevel.

<p>Motion foe Postponement op Tbial — Pellow-servant—Assumption op Bisk — Duty op Master — Conflict op Evidence — Misconduct op Jueor — New Trial.</p> <p>(Syllabus by the court.)</p> <p>1. A motion for a new trial is addressed to the sound discretion of the trial court, and the court’s ruling thereon will not be disturbed on appeal unless it appears there has been an abuse of such discretion.</p> <p>2. A party is not entitled to a continuance without showing due diligence and the use of legal means to procure the desired evidence, or a clear and sufficient excuse for not resorting to sueh legal means. A bare request to furnish the evidence is in no sense a compliance with the requirements of the law.</p> <p>3. In an action to recover damages for personal injuries, evidence which tends to show the respective duties and relations of the alleged principal and his employees, as well as their relations to the business generally, and all of the surrounding circumstances, is admissible to aid in determining whether the injured employee sustained sueh injury by reason of the negligence of a fellow-servant or of a vice-principal.</p> <p>4. Evidence in this case examined and held to support the ver-diet of the jury.</p> <p>5. Maloney v. Winston Bros. Co., ante, p. 740, 111 Pac. 1080, cited and approved as the law governing this case.</p> <p>6. It is not error for the trial court to deny a motion for a new trial on account of the intoxication of a juror, where it clearly appears that such intoxication is brought on by the indulgence of the juror during a recess of the court and when the jury is permitted to separate, and no motion is made at the time that the panel be discharged and a new jury selected, or that the particular juror be discharged and another juror selected in his stead, or any objection made to resuming the trial on account of the intoxication of such juror, and it further clearly appears as a fact that the trial was not resumed until the juror had fully recovered his normal condition and faculties, although such conduct of the juror calls for severe censure and punishment from the trial court.</p>