Volume 19 — Idaho Reports

Petitioner was prosecuted in the probate court of Canyon county under see. 6456, Rev. Codes, on the charge of assisting a prisoner to escape, and held to answer in the district court. A writ of habeas sorpus was applied for in the district court and the application denied.

<p>APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. W. W. Woods, Judge.</p> <p>Action to have title quieted to certain land and to recover compensation for a railway right of way. Judgment for defendants.</p> <p>The running of the statute of limitations was suspended during the pendency of the contest between the respondents and appellant in the land department of the United States. (St. P- M. & M. By. Go. v. Olson, 87 Minn. 117, 94 Am. St. 693, 91 N. W. 294; Braun v. Sauerwein, 10 Wall. 218, 19 L. ed. 895; Gaines v. Thompson, 7 Wall. 347, 19 L. ed. 62; Johnson v. Towsley, 13 Wall. 72, 20 L. ed. 485; Marquez v. Frisbie, 101 U. S. 473, 25 L. ed. 800; Cosmos Exp. Co. v. Gray Eagle Oil Co., 112 Fed. 4, 7, 50 C. C. A. 79 et seq., and cases cited, 190 U. S. 301, 308, 23 Sup. Ct. 692 et seq.; Craig v. Leitersdorfer, 123 U. S. 189, 210, 8 Sup. Ct. 85, 31 L. ed. 114 et.seq.; Martinson v. Marzolf, 14 N. D. 301, 103 N. W. 937; Matthews v. O’Brien,.84 Minn. 505, 88 N. W. 12; McHenry v. Nygaard, 72 Minn. 2, 74 N. W. 1106; Zimmerman v. McCurdy, 15 N. D. 79, 106 N. W. 125, 12 Ann. Cas. 29; Le Fevre v. Amonson, 11 Ida., 45, 81 Pac. 71.)</p> <p>Since the jurisdiction to - determine what lands passed under the grant was vested in the interior department, equally with the jurisdiction to determine the better right to public lands as ..between contesting claimants, the rule of law prohibiting courts from taking jurisdiction of any cause which would infringe upon the land department’s jurisdiction is as applicable to the contest between the appellant and a homestead, claimant as it is to a contest between two homestead claimants. (Litchfield v. Register and Receiver, 9 Wall. 575, 19 L. ed. 681; S. C. & St. P. R. Co. v. United States, 34 Fed. 835; Phoenix & E. B. Go. v. Arizona E. P. Co., 9 Ariz. 434, 84 Pac. 1097; Humbird v. Avery, 110 Fed. 465, 195 U. S. 480, 502, 25 Sup. Ct. 123, 49 L. ed. 286; Brown v. Hitchcock, 173 U. S. 473, 19 Sup. Ct. 485, 43 L. ed. 772; Northern Lumber Go. v. O'Brien, 124 Fed. 819; French v. Fyan, 93 U. S. 169, 23 L. ed. 812; Wright v. Boseberry, 121 U. S. 488, 7 Sup. Ct. 985, 30 L. ed. 1039; Barden v. N. P. B. B. Go., 154 U. S. 288, 14 Sup. Ct. 1030, 38 L. ed. 992.)</p> <p>It is a necessary conclusion from the foregoing premises that the pendency of the contest between the appellant and the respondents before the officers of the interior department from 1902 to 1908 precluded the running of the statute of limitations in favor of the respondents and against the appellant. (St. P. M. & U. Go. v. Olson, 87 Minn. 117, 94 Am. St. 693, 91 N. W. 294; Delacey v. Commercial Trust Go., 51 Wash. 542, 130 Am, St. 1112, 99 Pac. 575; Blumer v. Iowa B. Land Go., 129 Iowa, 32, 113 Am. St. 444, 105 N. W. 342, 206 U. S. 482, 27 Sup. Ct. 769, 51 L. ed. 1148; Frink v. Hoke, 35 Or. 17, 56 Pac. 1093.)</p> <p>The possession pleaded by the respondents was not adverse within the meaning of the statute, ,nor sufficient to set the statute of limitations in motion in their favor. (Beynolds v. Willard, 80 Cal. 605, 22 Pac. 262; Tuffree v. Polhemus, 108 Cal. 670, 41 Pac. 806; Altschul v. O’Neill, 35 Or. 202, 57 Pac. 95, and cases cited; Litchfield v. Sewell, 97 Iowa, 247, 66 N. W. 104 et seq.; Doe v. Beck, 108 Ala. 71, 19 So. 802; Delacey v. Commercial Trust Go., 51 Wash. 542, 130 Am. St. 1112, 99 Pac. 574; Flewélten v. Bandall, 32 Tex. Civ. 361, 74 S. W. 49; Port Townsend v. Lewis, 34 Wash. 413, 75 Pae. 982.)</p> <p>The grant to the Northern Pacific Railroad Company to said lot No. 10 was a grant in praesenti, and the legal title thereto passed to said company on December 12, 1882, the date of the filing of its map of definite location of its railroad. (New York Indians v. United States, 170 U. S. 1, 17, 18 Sup. Ct. 531, 42 L. ed. 927; Iowa B. B. Co. v. Blumer, 206 U. S. 482, 491, 27 Sup. Ct. 769, 51 L. ed. 1148; Balderston v. Brady, 17 Ida. 567, 107 Pae. 498.)</p> <p>The Northern Pacific Railroad Company was entitled to the possession up to the time that this lot was conveyed to the appellant in 1896, and might have maintained an action of ejectment from the date of the filing of its map of definite location up to the time of the transfer in 1896 to appellant; and adverse possession could commence at the date of filing map of definite location of railroad. (Toltec Banch Co. v. Babcock, 24 Utah, 183, 66 Pac. 879.)</p> <p>The statute of limitation would not be suspended or tolled during the time of pendency ,of any contest before the interior department, and the officers of the department are without jurisdiction to hear or determine any controversy as to title of land from date of definite; location of railroad, and subsequent to that time controversies concerning the land should be submitted to the courts for determination. (Mo. Valley Land Co. v. Weise, 208 U. S. 234, 28 Sup. Ct. 294, 52 L. ed. 466; Sage v. Budnick, 91 Minn. 325, 98 N. W. 89, 100 N. W. 106; So. Pac. B. Co. v. Whitaker, 109 Cal. 268, 41 Pac. 1083; Northern Pac. B. Co. v. Kranich, 52 Fed. 911; 9 Am. & Eng. Ency. of Law, 1st ed., 58; Edwards v. University, 1 Dev. & B. Eq. (N. C.) 325, 30 Am. Dec. 170.)</p> <p>A claim of right which is subservient to the government and hostile to all others does not rob the adverse claimant of his right under the statute of limitations. (Blumer v. Iowa Land Co., 129 Iowa, 32,113 Am. St. 444,105 N. W. 342; Toltec Banch Co. v. Babcock, supra; Northern Pac. B. Co. v. Krcunich, supra; Allen v. McKay, 120 Cal. 332, 52 Pac. 828.)</p>

Hon. Eobert N. Dunn, Judge. Action by plaintiff on a promissory note.

<p>Navigable Streams — Improvement op Streams — Franchise to Improve Streams and Collect Tolls — Act op February 28, 1899— Bights on Biparian Proprietors — Damages Caused by Flooding Lands — Estoppel.</p> <p>(Syllabus by the court.)</p> <p>1. The act of the legislature of February 28, 1899 (1899 Sess. Laws, p. 332), authorizing the state board of land commissioners to grant a license and franchise to a company or corporation to clear, deepen, straighten, and improve the channel of a stream and collect tolls for the floating of logs and lumber thereon, if not constitutional, affords no protection to the grantee of the license and franchise; and if constitutional, it cannot be construed to authorize the grantee of the franchise and license to enter upon the lands of the riparian proprietor or to interfere with the banks of the stream or the growing timber along the stream, or to commit any injury against or trespass upon the lands of such proprietor.</p> <p>2. Every stream of water within this state whieh in its natural state is capable of floating logs or other commercial and floatable commodities for any practical period of time is to such extent and for such time a navigable stream, and the bed thereof is for such purposes subject to the regulation and control of the state.</p> <p>3. All navigable streams within this state are highways to the extent and for the purpose of their navigability, and the state has a right to enter upon and improve the beds of such streams or highways.</p> <p>4. In improving and keeping open navigable streams of this state, neither the state nor its licensee has any right to trespass upon the lands of the riparian proprietors, cut timber therefrom, cut away the banks, or impair the littoral rights of such proprietors without first compensating the proprietor in the manner provided by law.</p> <p>5. A riparian proprietor who makes no protest or objections to the improvement of a stream by deepening and widening and straightening the same, and cutting away timber along the banks thereof, by a company that represents to him that it is acting under a license and franchise from the state, is not estopped by his inaction or quiescence from thereafter maintaining an aetion against the company for damages caused in the overflowing of his land and depositing logs and timber and debris thereon, which is directly caused by the cutting away of the timber and the weakening of the banks and the erection of splash dams above his lands, whereby the volume of water in the stream is greatly augmented and a flooding is caused.</p> <p>6. No one is liable for damages caused by the forces of nature, but he who wrongfully augments and accelerates those forces is liable for the damages caused by his wrongful acts.</p>

<p>Mining Claim — Assessment Work — Forfeiture—Co-owners—Application for Patent — Implied Promise — Nonsuit.</p> <p>(Syllabus by the court.)</p> <p>1. tinder the provisions of see. 2324, Bev. Stats, of the United States, where a co-owner of a mining claim fails to do his assessment work or fails to contribute his proportion of the expenditure required in doing such work, his co-owners who have performed the labor may give such delinquent personal notice in writing or by publication, as provided in said statute, and if at the expiration of ninety days such delinquent should fail or refuse to contribute his proportion of such expenditure, his interest in the claim shall become the property of his co-owners who made such expenditures, and the defaulting eo-owner is not personally responsible for any part of the assessment work, under the provisions of said section.</p> <p>2. There is no implied contractual relation between cotenants and tenants in common, and one cotenant cannot bind the other without his consent for the expenses incurred in developing or improving their common mining property; but the delinquent cotenant may ratify such expenditure and thereby become liable for his proportional part thereof.</p> <p>3. The issues made by the pleadings were whether the defendant had performed or paid his part of the assessment work on said mining claim, and whether a patent was issued to all of the parties to this suit for said mining claim by the government, and this appeal must be decided upon the theory of the case made by the pleading and proof. Held, that the evidence shows or tends to show that the defendant failed to pay for his proportional part of the assessment work, at least for the years 1904 and 1905, and for his proportional part of the expense of procuring a patent, and the presumption arising from the issuance of a patent is that all of the requirements of the law in regard to its issuance have been complied with.</p> <p>4. Held, that the evidence tends to establish that there was an implied promise on the part of the defendant to pay his proportionate part of said expenses.</p> <p>5. On application for a nonsuit, the defendant is deemed to admit all of the facts whieh the evidence tends to prove.</p>

<p>Revenue — Tax Sale — Tax Sale Certificate — Tax Deed — Correction of Tax Deed — Right of Redemption.</p> <p>(Syllabus by the court.)</p> <p>1. A tax sale certificate issued under the provisions of sec. 1759 of the Rev. Codes, which recites that the tax for which the property was sold was, “State and county, $28.00; penalty and costs, $3.05; total, $31.05,” and leaves blank the spaces following the enumeration of poll tax, city, town, village and Independent School district tax, is a substantial compliance with the statute, for the reason that such statement on its face excludes the idea that the taxes for which the property was sold included anything other than “state and county tax,” and “penalties and costs.”</p> <p>2. Where a tax sale certificate shows on its faee the year for whieh the tax was assessed, and a deed thereafter issued leaves the year blank and does not show upon its face the year for whieh the tax was assessed, it is competent and proper for the officer on discovering the mistake to execute a new deed for the correction of the error.</p> <p>3. Secs. 1763 and 1764 of the Revised Codes must be construed together, and when so construed only require the officer making a tax deed to incorporate therein “substantially the matters contained in the certificate,” and a substantial compliance therewith is ail that is necessary.</p> <p>4. Under the provisions of sec. 1653 of the Rev. Codes, dealing ■with the assessment and collection of taxes, “no mistake in the name of the owner or supposed owner of real property shall render the assessment thereof invalid”; and under the provisions of see. 1788, no informality will render an assessment, or any act relating to an assessment, or the collection of a tax illegal.</p> <p>5. Where a tax deed was not in fact made, executed and delivered until after the time for redemption by the property owner had expired, it is not fatal to the deed and will not render it invalid if it recite upon its face that the purchaser or his assignee was entitled to a deed one day earlier than he was in fact entitled to it under the law.</p> <p>6. Where the proceedings have been in substantial compliance with the law and the tax sale has been made in substantial conformity therewith, and the time within which the land owner may redeem is fixed and limited by the statute, there is no right of redemption, whether a deed has been issued or not, after the expiration of the statutory period allowed for redemption.</p> <p>7. W'here the power is vested in an officer to execute a tax deed, such power and authority is not exhausted until a deed is made in compliance with the law, provided the preceding steps have been taken in accordance with the law as the same appears of reeord in his office. The making of an insufficient, defective and invalid deed does not exhaust the power of the officer where the facts exist upon which a valid deed may be made.</p>

Hon. Edgar C. Steele, Judge. Action to quiet title. Judgment for defendant. “When tax sales are under 'consideration, a fundamental condition to their validity is that there should have been a substantial compliance with the law in all the proceedings of which the sale was the culmination.” (Cooley, Taxation, 3d ed„ 912.) “Proceedings on tax sales are in invitum, and to be valid must be stricti juris.

<p>APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. Robt. N. Dunn, Judge.</p> <p>Action to recover tolls for towing logs in booms down the St. Joe river. Judgment for plaintiff.</p> <p>The act of 1899 (p. 332, Sess. Laws) is void because it attempts to impose duties and burdens upon the board of land commissioners not recognized by the constitution of the state. It is void for the further reason that it authorizes the deepening, clearing and straightening of the channels of streams without providing any compensation for damages done to riparian owners.</p> <p>This grants the right of entry upon the lands of others, the effect of which is dispossession of the owners and interference with their dominion over property without any provision for compensation. (Garth Lumber & Shingle Co. v. Johnson, 151 Mich. 205, 123 Am. St. 262, 115 N. W. 52; De Camp v. Thomson, 16 App. Div. 528, 44 N. Y. Supp. 1014.)</p> <p>Even if the legislature had authority to confer such power on the state board of land commissioners, it had no authority nor was it the intention of the legislature to confer authority on companies like the plaintiff to charge tolls for logs which their owners tow down a navigable stream in brails or booms. (Washougal Biv. Co. v. Skamania Log Co., 23 Wash. 89, 62 Pae. 450.)</p> <p>Neither in the title nor in the act itself is any authority granted for charging tolls on booms or brails for logs. (Ames v. Fort Huron etc. Co., 11 Mich. 139, 83 Am. Dee. 731.)</p> <p>Statutes like this are to be construed strictly against the plaintiff. (Cooley’s Const. Lim, 7th ed., 565.)</p> <p>Courts will not lightly set aside or overturn the legislative will when clearly expressed, nor will an act be held to be void for conflict with the constitutional provisions, unless the,repugnancy is clearly pointed out. (Wooley v. Watkins, 2 Ida. 590, 555, 22 Pae. 102;. Gillesby v. Board of County Commrs., 17 Ida. 586, 107 Pae. 71; Sabin v. Curtis, 3 Ida. 662, 32 Pac. 1130; In re Gale, 14 Ida. 761, 95 Pae. 679; Noble v. Bragaw, 12 Ida. 265, 85 Pae. 903; Wright v. Kelley, 4 Ida. 634, 43 Pac. 565; State v. Dolan, 13 Ida. 715, 92 Pac. 995, 14 L. R. A., N. S., 1259.)</p> <p>There is nothing in the constitution of this state that in any way prohibits the legislature from conferring the ministerial power of granting franchises either upon an individual or upon any of the constitutional boards which it creates. Neither see. 1 of art. 4 nor sec. 7 of art. 9 can be so construed as in any way to interfere with this legislative right. (Cooley, Const. Lim., 7th ed., p. 151; Sands v. Manistee River Imp. Co., 123 U. S. 288, 8 Sup. Ct. 113, 31 L. ed. 149.)</p>

<p>APPEAL from the District Court of the Second Judicial District, for Nez Perce County. Hon. Edgar C. Steele, Judge.</p> <p>Action to quiet title and for an injunction. Judgment for defendant.</p> <p>The allegations of the answer setting up claims adverse to the title of the plaintiff alleged in the complaint supplied the allegation in the complaint that the defendants “claimed an interest in the real estate” adverse to the plaintiff’s title, which claim is without right, unfounded, and a cloud upon plaintiff’s title. (31 Cyc. 714, 717; 32 Cyc. 1357.)</p> <p>The main jurisdiction of the court invoked by the action is that wherein and whereby the title of Thomas W. Jones can be quieted against the adverse claims of Wesley Steele, and since Steele sets up the adverse claims and use in his answer, the plaintiff was relieved from proving the claims or the use, and only had to show that the claims and use are without right, unfounded.</p> <p>The trial court erred in trying the ease as one solely for an injunction, when an injunction is only an incident. (.Richey v. Bues, 31 Utah, 262, 87 Pac. 903; Hanley v. Beatty, 117 Fed. 59, 54 C. C. A. 445; Wheelock v. Noonan, 108 N. Y. 179, 15 N. E. 67; White v. Codd, 39 Wash. 14, 80 Pac. 836; McRae v. Blakeley, 3 Cal. App. 171, 84 Pae. 679; Kaiser v. Dalto, 140 Cal. 167, 73 Pac. 829; 22 Cyc. 834, 854.)</p> <p>An injunction can be decreed to prevent the acquirement or enlargement of an easement as the wrongful use thereof by the owner of the easement, or can be decreed to prevent trespass upon an easement. (Vestal v. Young, 147 Cal. 715, 82 Pac. 381; Mendelson v. McCabe, 144 Cal. 230, 103 Am. St. 78, 77 Pac. 915; 22 Cyc. 762, 826, 836, 837.)</p> <p>In an action like the one at bar the court has jurisdiction to fix, determine and settle the boundary line between two lots. (Bayhouse v. TJrquides, 17 Ida. 286, 105 Pac. 1066.)</p> <p>The court forgot that the action at bar is to quiet title and only a preponderance of evidence is required. (32 Cyc. 1372, 00.)</p> <p>In the very great majority of cases injunction is a merely preventive remedy, and in some cases courts have on this ground refused to issue an injunction mandatory in its nature, or have declared that it is not the object of an injunction to redress a consummated wrong or to undo what has already been done. (22 Cyc. 741, 742, and authorities cited in note 13.)</p> <p>Where the title to real property is in dispute between two claimants and one of them takes possession of the property, he will not be enjoined from its occupancy and erection of buildings thereon before the title is judicially determined. {McGregor v. Silver King Min. Co., 14 Utah, 47, 60 Am. St. 883, 45 Pac. 1091; Sharpe v. Loam, 124 N. C. 1, 32 S. E. 318.)</p> <p>Courts of equity should hesitate before granting injunctions to restrain trespass committed under color of title or right. {Keller v. Bullington, 101 Ala. 267, 14 So. 466.)</p>

<p>Revenue — Assessment—Railroad Property — Railroad Track — Second Track — Jurisdiction of State Board of Equalization.</p> <p>(Syllabus by the court.)</p> <p>1. Under the provisions of secs. 1710 to 1715, inclusively, of the Rev. Codes of this state, it is provided that all railroad property used in connection with maintaining and operating a main track or main line of railroad, including the right of way, stations and superstructures upon the right of way, sidetracks, switches, turnouts, “seeond tracks,” “rolling stock” and franchises, within the state, shall be estimated and valued together as a whole for the full length of the line within the state, and that the total valuation so ascertained shall be divided by the total number of miles of “main track” or “main line” in ascertaining a uniform valuation per mile for the full length of such main line or main traek within the state and in each county, city, incorporated town or assessment district, and that each mile thereof shall bear the same valuation as every other mile of such “main line” or “main track.”</p> <p>2. The state board of equalization in valuing and assessing railroad property under the provisions of the statute of this state (secs. 1710-1715, inclusive, Rev. Codes) are authorized, directed and required to value and assess “main line or main track,” and to cause such valuation and assessment to be certified to the auditors of the several counties, and they have no power or authority to separately value and assess “seeond traek” as a separate and independent railroad property or to certify such an assessment.</p> <p>3. Where it appears that the state board by error or mistake have failed to include an item of railroad property designated as 5.67 miles of “seeond track” within the total valuation of the property of such company for the purpose of ascertaining the valuation per mile to be placed on the main traek of such road, but, on the contrary, have certified the same down as an independent assessment, and the railroad company seeks to remove the cloud of such invalid assessment from its property and to enjoin and restrain the taxing officers from collecting such tax or holding a lien therefor against the property, and it appears that the company has not in fact paid its proportionate part of taxes for the year upon such piece or parcel of property, it will be required to do equity before it can take a decree clearing its title, and must accordingly pay to the county the proportionate share of taxes on the specific piece of property to which the county would have been entitled by reason of the total mileage or main line of road within its borders had the state board of equalization complied with the statute in including the valuation of such property within the total valuation of the railroad company’s property.</p>

Hon. Robert N. Dunn, Judge. Action by plaintiffs to set aside certain conveyances and for the appointment of a receiver. Judgment for the plaintiffs and certain of the defendants appealed. The district court, by the order of April 5th, solemnly adjudicated that the cause was removable, and ordered that all further proceedings in this ease be stayed and discontinued.

<p>Promissory Note — Sale and Transfer — Action by Holder — Breach of Note.</p> <p>(Syllabus by the court.)</p> <p>1. Where bank N. transmits a promissory note owned by it to bank E. and guarantees the payment thereof, and bank E. thereupon pays to bank N. the face value of such note, with the further agreement that the transferee shall receive eight per cent interest on the same and. that bank N. shall receive the difference between eight per cent and the rate of interest which the note bears, and when instalments of interest fall due, bank E. charges the same to bank N. and draws for the amount, and bank N. responds by paying the same and collects from the maker of the note, and thereafter and prior to the payment of the principal bank E. sells and transfers the note to H. & Co.; held, that the title to the note had passed to bank E., and that it had a right to sell and transfer the note, and that the holder thereof may maintain its action for the collection of the same.</p> <p>2. Under the provisions of secs. 3508 and 3648, Bev. Codes, the person in possession of a negotiable promissory note is presumed to be the owner and holder thereof, and may sue thereon.</p> <p>3. The facts in this case examined and held to show the defendant and appellant entitled to a credit of $400 more than was allowed by the jury.</p>

Hon. W. W. Woods, Judge. Action to quiet title to certain mining claims. Judgment for respondent.

<p>Sale of Lobs — Corporation—Contract by Bookkeeper of — Ratification of Contract — Verdict of Jury — Technical Errors and Defects — Substantial Rights — Instructions.</p> <p>(Syllabus by the court.)</p> <p>1. Where a contract for the purchase of sawlogs was made with the bookkeeper of a corporation and the corporation had the logs scaled or measured, and received them, the corporation thereby ratified the contract made by its bookkeeper and is liable to the seller for the contract price of the logs.</p> <p>2. A corporation like a natural person may ratify any act which it can perform.</p> <p>3. Under the provisions of sec. 4231, Rev. Codes, where technical errors or defects in the proceedings or trial occur which do not affect the substantial rights of the parties, the judgment must not be reversed by reason of such errors or defects.</p> <p>4. Held, that no substantial rights of the appellant have been affected by the technical errors that appear in the record.</p> <p>5. Held, that the corporation having ratified the contract and received the benefits of it, it must perform its part thereof.</p> <p>6. The instructions contain a clear and concise statement of the law of the case, and, taken as a whole, are sufficient.</p>

Hon. Edgar C. Steele, Judge. Action to recover for plans and specifications for the construction of a building. Judgment for plaintiff. An architect, like any other professional man, impliedly holds himself out as possessing skill and knowledge which his clients do not have themselves. His position is one of trust and confidence. To this extent the ordinary law of contracts is modified by the relation of the parties.

Hon. Robert N. Dunn, Judge. An action to enjoin further proceedings in attachment against property of the wife for the debt of the husband, where it is claimed property is the separate estate of the wife. Judgment for plaintiff. Defendant appeals.

Hon. W. W. Woods, Judge. Application for an order permitting the plaintiff to examine and inspect a mining claim, levied upon and advertised for sale under an execution sale. Demurrer to the complaint sustained. Plaintiff appeals. The entire property was in custodia legis. (17 Cye. 954, 1121.) The court certainly had the power to make such an order. The request for an inspection was an entirely reasonable one.

Hon. W. W. Woods, Judge. Action to recover the value of a horse alleged to have been killed by the defendant railway company at a place where the company was required to fence its right of way. Judgment for plaintiff. Agreeable to the decision in the case of Bernardi v. Northern Pac. By.

Hon. Edgar C. Steele, Judge. Action to quiet title. Judgment for plaintiffs. Defendant appeals. The tax deed must contain substantially the matters contained in the tax sale certificate. (Sees. 1763, 1764, Rev. Codes; De Frieze v. Quint, 94 Cal. 653, 28 Am.

Hon. Edgar C. Steele, Judge. Action by plaintiff for damages on account of trespass vi et armis. Judgment for defendant and plaintiff appealed. Tbe evidence offered and rejected showed that Bennie McClain bad a fixed market value on bis services of $15,000 a year; that Cain bad been offered that sum for Bennie’s services, and bad been offered $5,000 for first refusal.

Hon. Edgar C. Steele, Judge. Action to recover money paid at the request of the defendants. Judgment for plaintiffs.

<p>Irrigation District — Organization of — Regularity of Proceedings— Attorney in Pact — Special Session of Board — Loss of Original Order — Evidence—Sufficiency of.</p> <p>(Syllabus by the court.)</p> <p>1. An attorney in fact duly appointed in writing in the name, place and stead of the principal, to sign a petition to the county commissioners for the organization of an irrigation district, has the power and authority to sign such petition for his principal, and the signing of such petition by said attorney in fact will bind the principal as fully and to all intents and purposes as if he had personally signed the same.</p> <p>2. Held, that the special session of the board of county commissioners for the consideration of said petition was properly and regularly called.</p> <p>3. "Where the original order signed by the members of the board of county commissioners calling a special session of the board has been lost, the record copy thereof may be introduced in evidence and is prima fade evidence of what the original order contained.</p> <p>4. Under the provisions of see. 5979, Rev. Codes, entries in public or official books or records made in the performance of his duty by a public officer of this state or by any other person in the performance of a duty specially enjoined by law are prima fade evidence of the facts therein stated.</p> <p>5. The clerk of the board, under the provisions of sec. 1915, Rev. Codes, is required to enter the order calling a special meeting upon the records of said board, and under the provisions of said see. 5979 the reeord copy becomes prima fade evidence of the facts stated in sueh order.</p>

<p>Judgment — Appeal from — Bill of Exceptions — Judgment-roll — What It must Contain.</p> <p>(Syllabus by the court.)</p> <p>1. Where an appeal is taken from the judgment on the judgment-roll alone, and where the defendant has answered (subd. 2 of see. 4456, Bev. Codes, as amended by Sess. Laws 1909, p. 76), the judgment-roll consists of the pleadings, a copy of the verdict of the jury or the findings of the court or referee, a copy of any order made on demurrer or relating to a change of parties, and a copy of the judgment. Bills of exception are not made a part of the judgment-roll.</p> <p>2. Under the provisions of sec. 4818, Bev. Codes, on an appeal from a final judgment the appellant is required to furnish the court with a copy of the notice of appeal, of the judgment-roll and of any bill of exceptions or statement in the case upon which the appellant relies; hence a bill of exceptions found in the transcript is properly there when appellant relies on it upon his appeal.</p> <p>3. Held, that no reversible error appears on the face of the transcript.</p>

<p>Child Stealing — Statute—Construction op — Evidence—Parents— Rights and Duties of — Custody of Child — Support op — Verdict— Insufficiency of Evidence.</p> <p>(Syllabus by the court.)</p> <p>1. Under the provisions of see. 6800, Rev. Codes, a person who "maliciously, forcibly or fraudulently” takes or entices away a child under the age of twelve years, with intent to detain and conceal such child from its parents, guardian or other person having the lawful charge of it, is punishable by imprisonment in the state prison or in the county jail and by fine not exceeding five hundred dollars.</p> <p>2. Where the mother has possession of an infant between two and three years of age and leaves her husband and takes with her such child, and is assisted by the defendant in leaving the state with said child, and after such separation the child continues in the possession of the mother until her death, or until the legal authorities take the child from her, held, that the defendant is not guilty of enticing said child away from its father, under the provisions of said sec. 6800.</p> <p>3. The evidence held insufficient to support the verdict of guilty.</p> <p>4. Under the provisions of sec. 2675, Rev. Codes, the husband is the head of the family and may choose any reasonable place or mode of living and a wife must conform to it while she lives with him.</p> <p>5. Held, under the facts of this case that the mother had the lawful custody of said child at the time she removed it from this state to the state of Washington.</p> <p>6. Under the provisions of see. 5774, Eev. Codes, either the father or mother of a minor, being respectively competent to transact his or her own business, and not otherwise unsuitable, is entitled to the guardianship of the minor child.</p> <p>7. Under the provisions of sec. 2696, Eev. Codes, the mother as well as the father is liable for the support of their minor child, and if they neglect to provide articles necessary for its support, according to their circumstances, they or either of them may be compelled to do so.</p> <p>8. Under the provisions of sec. 2698, Eev. Codes, “When a husband and wife live in a state of separation, without being divorced,” any court of competent jurisdiction may inquire into the custody of their minor child and may award its custody to either, for such time and under such regulations as the case may require,, and the decision of the court in. that matter must be guided by the welfare of the child.</p> <p>9. Under the laws of this state the father has no absolute right to deprive the mother of the care and custody of an infant child simply because he is the father.</p>

<p>APPEAL from the District Court of the Fourth Judicial District, for Lincoln County. Hon. Edward A. Walters, Judge.</p> <p>Prosecution for sale of intoxicating liquors contrary to the local option statute. Judgment of conviction. Defendant appeals.</p> <p>“Panel includes within its definition jurors returned upon the special venire to fill out a deficiency after a regular panel has been exhausted.” (People v. Coyodo, 40 Cal. 586.)</p> <p>Sec. 1064, Kerr’s Cal. Codes, is identical with sec. 7824, Eev. Codes of Idaho, except “or in part formed” is omitted.</p> <p>The same test applies as to bias of elisor and talesmen. (People v. Teshara, 134 Cal. 542-544, 66 Pac. 798.)</p> <p>If the intent was to interpose a challenge to a panel called on special venire, this could only be done on account of the bias of the officer who summoned them, which would be good ground of challenge to a juror. {People v. Oliverio, 127 Cal. 376, 59 Pac. 772, and cases cited.) These cases recognize the right to challenge a panel in the exact words of the statute. {People v. Fellows, 122 Cal. 233, 54 Pae. 830, and cases cited.)</p> <p>If L. M. Zug could not sit as a juror because of implied bias set forth by the statute, he certainly, under sec. 7824, could not summon jurors that were not subject to challenge for implied bias. {People v. Coyodo, supra.)</p> <p>“It is a general rule that in proceedings under a local option law, such as a prosecution for violation of it, the fact of the law being in force being duly proved, it is not necessary for the state to present evidence that each of the necessary preliminary steps was taken, or of their regularity, this being presumed from the proof of the general result.” (23 Cyc. 91.)</p> <p>Thus it would seem that at least some degree of proof was necessary to show that Lincoln county was a local option district. The record fails to disclose that such an election was held.</p> <p>“The great purpose of the right to challenge a juror for actual or implied bias is to secure to the defendant and the state a fair and impartial jury, and when it is apparent from the record, as it is in this case, that this end was reached, this court will not reverse the judgment of the trial court.” {State v. Gordon, 5 Ida. 299, 48 Pae. 1061; State v. McGlear, 11 Nev. 39; eases under note 1, 12 Cyc. 910; eases under sec. 3084, p. 873, 15 Cent. Dig.)</p> <p>Under the circumstances, it was proper for the court to instruct that the territory included within Lincoln county on the date alleged in the information was a prohibition district. (Joyce on Intoxicating Liquors, sec. 418.)</p>

<p>Writ of Mandate — Physician and Surgeon — License to Practice — • Laws of 1887 — Requirements of Laws of 1899 — Medical Board— Answer — Denials on Information and Belief — Insufficiency of — Power of Board.</p> <p>(Syllabus by the court.)</p> <p>1. Under the provisions of sec. 1298, Rev.' Stats. 1887, no person was permitted to practice medicine or surgery in this territory (now state) who had not received a medical education and a diploma from some regularly chartered medical school having a bona fide existence at the time the diploma was granted, and when it appears from the •complaint that the applicant for a license to practice medicine and surgery in the state was engaged in the practice of his profession under the provisions of the laws of 1887 and had complied with all <of the provisions of sec. 5 of the act of 1899 (Sess. Laws, p. 346), it was the duty of the State Board of Medical Examiners to issue to him a license to practice medicine and surgery in this state.</p> <p>2. Under the provisions of sec. 9 of the medical law of 1899, there is no provision for an appeal from an order of the State Board of Medical Examiners refusing to grant a license to an applicant; but said section contains a provision whereby the proper court may review by certiorari certain proceedings of said board.</p> <p>3. Seld, under the provisions of said act that a plaintiff has no plain, speedy and adequate remedy at law by appeal.</p> <p>4. A diploma from a regularly chartered medical school which had a bona fide existence at the time the diploma was granted, and a compliance with the provisions of said secs. 1298a and 1298b, Rev. Stats. 1887, was all of the proof that the statute required at that time of the applicant’s .having a medical education, and under the act of 1899, the medical board had no authority to require any other or further evidence of that fact.</p> <p>5. A denial of matters which are of record and accessible to the defendant is insufficient and is no denial, and does not raise an issue.</p> <p>6. The State Board of Medical Examiners, under the law of 1899, has no authority to refuse a license to an applicant who was engaged in the practice, of medicine and surgery under the laws of 1887, on the ground that the college issuing the medical diploma under which he was practicing was not a “reputable college of medicine in good standing,” as the law of 1887 provides that the diploma referred to must be from some “regularly chartered medical school” having a bona fide existence at the time when said diploma was granted.</p> <p>7. Held, that the reason for refusing to grant the plaintiff’s application was based on the ground that the Independent Medical College of Chicago was not a “reputable college of medicine in good standing,” and not on the ground that said application was not in proper form.</p> <p>8. Held, that the answer fails to raise any material issue of fact.</p> <p>9. Held, that facts sufficient are alleged in the complaint to entitle the plaintiff to a license from the State Board of Medical Examiners to practice medicine and surgery in this state.</p>

Hon. Alfred Budge,. J udge. An action to enjoin the diversion and appropriation of water. Judgment for plaintiff. Defendant appeals. The findings of fact do not cover the issues raised by the pleadings and are not responsive to the issues, and do not sustain the judgment of the court. (8 Ency. of PI. & Pr. 943, 949; Winterburn v. Chambers, 91 Cal. 170, 27 Pae. 658; Kim-ball v. Lohmas, 31 Cal. 154; Pouting v. Isaman, 7 Ida. 581.. 65 Pac. 434.).

Hon. Edward A. Walters, Judge. An action to foreclose a real estate mortgage. Judgment ■ for plaintiff. Defendant appeals. The granting of a loan by a foreign corporation, and the taking as security of a note and mortgage on property within the state, is the doing of business, and comes within the spirit of the law. (Chattanooga etc. Assn. v. Denson, 189 U. S. 408, 23 Sup.

Original application to this court for writ of prohibition affecting the constitutionality of House Bill No. 47, an act authorizing the appointment of an additional judge in the third judicial district of this state. Writ quashed. The article “a” is used in the second line of sec, 11 of art. 5 of the constitution.

<p>Public Lands — Bailroad Eight op Way — Government Easement — • Construction op Statute.</p> <p>(Syllabus by the court.)</p> <p>1. Lands withdrawn under the act of Congress of June 17, 1902, known as the Beclamation Act, for the purposes of irrigation under an irrigation system constructed by the government, and which lands are subject to homestead entry under the act of Congress, are public lands within the meaning of the act of March 3, 1875, known as the Bailroad Bight of Way Act, and are subject to railroad rights of way for any railroad company which complies with the provisions of the act.</p> <p>2. The act of Congress of August 30, 1890, reserving to the government an easement for ditches and canals over all lands west of the 100th meridian, which might thereafter be patented by the government to any entryman, does not apply to railroad rights of way acquired under the provisions of the act of Mareh 3, 1875.</p> <p>3. The act of Congress of August 30, 1890, which refers to lands “taken up,” and land “entries,” and lands “patented,” does not refer to or include easements and rights of way granted for specific purposes where the feo does not pass and where no patents are issued and where the amount of land covered by the easement is not limited in area or extent.</p> <p>4. The acts of Congress relative to the public lands providing for entries thereof and authorizing easements and rights of way there-over must be construed together and in the light of the conditions of the country as they existed when the several acts were passed, as well as to the purposes declared by the acts, and force and effect should be given to the provisions of each and every act in so far as it is possible to do so.</p>

<p>APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Fremont Wood, Judge.</p> <p>Action to recover a one-seventh interest of the net proceeds arising from the sale of certain mining claims. Judgment for the defendant.</p> <p>Several writings of different dates may be read in connection with each other to show a memorandum of an agreement, when taken as a whole. (Beckwith v. Talbot, 2 Colo. 639; Townsend v. Kennedy, 6 S. D. 47, 60 N. W. 164; Ide v. St aristón, 15 Yt. 685, 40 Am. Dec. 698; Fisher v. Kuhn, 54 Miss. 480.)</p> <p>The rule as laid down above is applicable where the contract is made by an agent of the party and the memorandum is signed by him during the existence of his agency. (White v. Dahrquist Mfg. Co., 179 Mass. 427, 60 N. B. 791.)</p> <p>We desire to call the attention of the court to the statute of frauds, which has been invoked by the answer, and upon which the decision of the lower court is based. Sec. 6007, Rev. Codes, is modified by sec. 6008, “nor to abridge the power of any court to compel the specific performance of' an agreement, in case of part performance thereof.” (McGinness v. Stanfield, 6 Ida. 372, 55 Pae. 1020; Feeney v. Chester, 7 Ida. 324, 63 Pac. 192; Male v. Leflang, 7 Ida. 348, 63 Pac. 108; Stowell v. Tucker, 7 Ida. 312, 62 Pac. 1033; Francis v. Green, 7 Ida. 668, 65 Pac. 362; Barton v. Dunlap, 8 Ida. 82, 66 Pac. 832; Grice v. Woodworth, 10 Ida. 459, 109 Am. St. 214, 80 Pac. 912, 69 L. R. A. 584; Fleming v. Baker, 12 Ida. 346, 85 Pae. 1092; Thompson v. Burns, 15 Ida. 572, 99 Pac. Ill; Ames v. Howes, 13 Ida. 756, 93 Pae. 35.)</p> <p>Counsel for plaintiff take the position that there are sufficient memoranda in writing in the shape of letters, telegrams, etc., to show that there was an agreement and what the terms of the agreement were. We contend that all the memoranda taken together are not sufficient to fulfill the requirements of the statute. (Williams v. Morris, 95 U. S. 444, 24 L. ed. 360; Whelan v. Sullivan, 102 Mass. 204; Wood, Statute of Frauds, sec. 345; Cooley v. Lobell, 153 N. Y. 596, 47 N. B. 783.)</p> <p>The memorandum or writing, whether made at the time or after, must be sufficient within itself, and cannot be aided by parol evidence. {Ross v. Allen, 45 Nan. 231, 25 Pac. 570, 10 L. R. A. 835; Odell v. Montross, 68 N. Y. 499; Doty v. Wilder, 15 111. 407, 60 Am. Dec. 756; Ellis v. Denver By. Co., 5 Nan. App. 341, 48 Pac. 457; Darke v. Smith, 14 Utah, 35, 45 Pac. 1006.)</p> <p>Nothing was done by plaintiff in. this case which in any way could be construed as being part performance of the oral agreement, if there was an oral agreement. (Burden v. Sheridan, 36 Iowa, 125, 14 Am. Rep. 505.)</p> <p>Counsel quote from the syllabus of the case of Feeney v. Chester, 7 Ida. 324, 63 Pac. 192. The facts in that case, as well as in every Idaho case cited by counsel, show that there was a part performance of the contract. Counsel for appellant use considerable space in their brief to show the character of services rendered by appellant in the performance on his part of the alleged contract. "We can assume for the purposes of this ease that appellant performed all the services he claims he did, yet he did nothing that could be construed to be such a part performance of the contract as to entitle him to specific performance on the part of the defendant. . If appellant performed any services whatever, he was not without remedy, for he could have brought an action to recover the value of the services.</p> <p>Although the alleged agreement was void, if appellant performed any services, they could easily be measured in an action at law and a recovery could have been had, as the action would lie on the implied promise to pay for said services. (20 Cyc. Law & Procedure, 299.)</p>

Original action in this court by Curtis F. Pike for a writ of prohibition against the state board of land commissioners.. Alternative writ was issued, and a hearing was had. The word “school,” without something to indicate that a-wider meaning was intended to be given to the word, will not be taken to indicate such higher institutions of learning as; colleges or universities or institutions for the teaching of' trades, professions or business.

[APPEAL from tbe District Court of the Sixth Judicial District of the State of Idaho, in and for the County of Fremont. Hon. James M. Stevens, Judge. An action for damages for the wrongful foreclosure of a chattel mortgage. Judgment for plaintiff. The line of testimony and questioning admitted in this case has been so uniformly held reversible error that it has become fundamental in our law. (Axtell v. M. P. By. Co., 9 Ida. 392, 74 Pac. 1095; McEissick v. O. S. L. By.

Hon. Fremont Wood, Judge. Agreed statement of facts submitted to trial court as to the validity of a sale of certain state lands. Judgment sustaining the validity of the sale from which the state appeals. At this time the state of Idaho has no title, right or interest in or to any timber now situate upon such lands, but only a right by reversion of any timber that may remain upon such lands at the expiration of such term of twenty years.

Hon. Fremont Wood, Judge. Action by plaintiff for debt. Judgment for plaintiff against defendants Monarch & Porter and in favor of the other defendant, Title Guaranty & Surety Co. ■ Plaintiff and defendant Monarch & Porter appeal. “The contract need not be expressed, but may be implied from the conduct of the parties.” (23 Cyc. 453, citing many authorities.) “The right to bring an action exists whenever a person, natural or artificial, has in his or its possession money…

Hon. Ed. L. Bryan, Judge. An action to determine the legality of the organization of Good Road District No. 1 of Washington county, and to enjoin the issue of bonds of said good road district. Judgment for defendant. Plaintiff appeals. There was not sufficient notice of the election called for the purpose of determining whether this district should be organized.

Original proceeding in this court for a recommendatory judgment. Where changes in construction or repairs are made necessary because of defects in the plans and specifications, the owner must pay for the extra work; whether the extra work consists in repairs necessitated through failure of the structure, or in addition to the work originally contemplated, is the same in principle. (30 Am. & Eng.

Hon. Ed. L. Bryan, Judge. An action to determine the validity of the organization of the Emmett Irrigation District and the issuance of its bonds. Judgment for plaintiff irrigation district. Defendant appeals. It is well settled that a law which acts upon a whole class alike cannot be said to contravene the prohibition of special legislation.

Hon. Fremont Wood, Judge. Action to set aside a deed on the ground of undue influence. Judgment for defendant. If there is reason to believe that influence has been acquired over a person of weak mind, the transaction will be carefully scrutinized in equity.

<p>Flood Waters — Flooding Lands.</p> <p>(Syllabus by the court.)</p> <p>1. In the winter and early spring months, flood waters gather-from time to time in several draws or basins above respondent’s lands and flow down across appellant’s canal and over and upon-the lands of the respondent in large volumes. The irrigation district, in order to prevent these flood waters washing out the banks ¡ of its canal and breaking down the canal, built a spillway 16 feet wide in the bank of the canal on the lower side, and when the flood-waters come, opens the spillway and allows the entire volume of" water to run through and upon the lands of respondent. It appears that in the natural flow of water down these draws and drainage-basins, it runs in several channels and spreads out over the lands. of the respondent; held, that the irrigation district cannot collect. the waters and pour them out through one spillway in one volume on to the lands of the respondent so as to increase the damage done ■ to his lands, but that, on the contrary, the district must, if it desires to collect the waters and turn them through spillways, so distribute the waters as to allow them to flow over the respondent’s land in as nearly the same manner and proportion as they would in their natural state, and in sueh manner as to do no greater damage than: they would inflict on respondent in their usual and ordinary flow.</p>

<p>'APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. "W. W. Woods, Judge.</p> <p>Aetion by plaintiff to foreclose a chattel mortgage. Cross-action by one of the defendants to foreclose a chattel mortgage. Judgment in part for the plaintiff and in part for the defendants, from which both parties appeal.</p> <p>The personal service of the cross-complaint is the method directed by the legislature for acquiring jurisdiction to prosecute the cross-complaint as against a cross-defendant. Without this personal service the cross-plaintiff had no jurisdiction as to his mortgage foreclosure against the plaintiff Collins’ mortgage. (Rev. Codes, sec. 4188; White v. Patton, 87 Cal. 151, 25 Pac. 270; 5 Ency. PI. & Pr. 683; Fitnam’s Trial Procedure, sec. 252.^</p> <p>The reformation of the mortgage is merely a matter of right as between the parties and those having knowledge of the land intended to be described. All parties to this transaction knew what land was meant, and there was a perfect right of reformation in this case. (24 Am. & Eng. Ency. of Law, 2d ed., 654, 655; Parish v. GampUn, 139 Ind. 1, 37 N. E. 607; Perkins v. Canine, 113 Mich. 72, 71 N. W. 457; Christensen v. Hollingsworth, 6 Ida. 87, 91, 96 Am. St. 256, 53 Pae. 211.)</p> <p>The class of eases in which personal service is required is radically different from the case at bar, and service of a cross-complaint is not a case that ■ would require personal service upon a party who had duly appeared in the action. Service on the attorney in cases of this kind was not only proper and admissible, but the only service that should have been made. (Sec. 1015, Cal. Code Civ. Proc.; see. 4893, Rev. Codes of Idaho; Matthews v. Superior Court, 70 Cal. 527, 11 Pae. 665; Silva v. Serpa, 86 Cal. 241, 24 Pac. 1013; Lacosta v. Eastland, 117 Cal. 673, 49 Pae. 1046; In re Nelson’s Estate, 128 Cal. 242, 60 Pac. 772.)</p> <p>The sum of $1,171.63 was ordered and directed to be paid to plaintiff Orville M. Collins from the moneys in the hands of the receiver, the proceeds of the sale of two-thirds of John Troutman’s 1909 grain crop placed in said receiver’s hands, the other one-third of the crop having been delivered to the appellant and accepted by him as rental of the land in question. This cross-appellant appeals from such portion of such judgment and decree on the grounds that the same is contrary to law and unsupported by the evidence.</p> <p>Assuming for the purpose of this argument the plaintiff might have some latent right to demand that this money be applied in part satisfaction of the mortgage debt, by his own actions he must be deemed to have waived any such right. (7 Cur. Law. 1227, 1228, 1229; Watson v. Perkins, 88 Miss. 64, 40 So. 643; Pederson v. Christ off erson, 97 Minn. 491, 106 N. W. 958.)_</p>

Hon. James M. Stevens, Judge. Action by plaintiff for damages and an injunction to restrain defendants from removing hay, fences, wire, and posts from certain lands. Judgment for plaintiff and defendants appeal.

Hon. Alfred Budge, Judge. An aetion to adjudicate the priorities of the waters of Big-Wood river. From an order vacating an order to make additional defendants the said defendants appealed. “Plaintiff in an action will be precluded from dismissing-his action on his own motion where an answer has been filed. showing defendant to be entitled to and praying for affirmative relief.

Hon. Fremont Wood, Judge. Action by plaintiff for libel. Judgment for defendant, and the plaintiff appealed.

Hon. Fremont Wood, Judge. Action for damages for personal injury. Judgment for plaintiff and defendant appealed. The evidence of the plaintiff himself conclusively establishes the faet that he has assumed whatever risk, if any, there was, by reason of the defects and negligence alleged in the plaintiff’s complaint, for the reason that such defects were open and obvious, and were known to the plaintiff during all the time he was employed by the defendant company.

<p>APPEAL from the District Court of the Seventh Judicial District, for Washington County. Hon. Ed. L. Bryan, Judge.</p> <p>Prosecution for conspiracy to secure the absence of a witness in a criminal action. Defendant convicted and appealed.</p>

Original action for a recommendatory judgment. It is indisputable that the value of the labor and material furnished by Colson & Son is the amount fixed by the architect Loring as $7,845.76. He was the architect in charge of the work and his estimates are binding upon the parties. (Thompson v. Bradbury, 5 Ida. 760, 51 Pac. 758; Tally v. Parsons, 131 Gal. 516, 63 Pac. 833; Amer. Bonding Go. v. Gibson, 127 Fed. 671, 62 C. C. A. 397; 30 Am. & Eng.

Original application for writ of habeas corpus. “The rendering of judgment and the final sentencing of the defendant cannot be made a mere matter of discretion with the judge or the public prosecutor nor to depend upon the subsequent conduct of the convicted person.” (People ex rel. Boenert v. Barrett, 202 111. 287, 95 Am.

<p>Appucation por Recommendatory Judgment.</p> <p>(Syllabus by the court.)</p> <p>1. The plaintiff bank loaned to Colson & Sons, who had the contract for the construction of the foundation of the Administration Building of the University of Idaho, $7,500. Said construction contract was forfeited and the Board of Regents completed the contract. It does not appear from the evidence introduced at the hearing that said $7,500, or any part thereof, was expended by Col-son & Sons on said foundation. Held, that the evidence fails to establish any liability on the part of the Board of Regents to or in favor of the bank, or any liability on the part of the state to the bank for the money so loaned Colson & Sons.</p> <p>2. Held, that said claim should be recommended to the legislature for payment.</p>

Hon. Edward A. Walters, Judge. Action by plaintiff to modify a decree. Judgment for the plaintiff, and defendant Raft River Land & Livestock Co. * appealed.

Hon. Edward A. Walters, Judge. Action for debt. Judgment for defendant. Plaintiff appeals. On motion for nonsuit, the defendant admits the existence of every fact which the evidence tends to prove, or which can be gathered from any reasonable view of the evidence.” {Later v. Haywood, 12 Ida. 78, 85 Pac. 494.) For a good and valuable consideration respondent agreed to pay and discharge the debts due, and liabilities to third persons.

<p>APPEAL from the District Court of the Third Judicial District for Ada County. Hon. Fremont Wood, Judge.</p> <p>Prosecution and conviction for the crime of burglary.</p> <p>Counsel cite no authorities on points decided.</p>

Hon. Edward A. Walters, Judge. Action by the plaintiff for debt. Judgment for plaintiff and defendants appeal. From the record in this case it appears manifest that the appeal is not well taken. Held: that all proceedings on the appeal were null and void as to the representatives of the deceased defendant.” (Quoting Judson v. Love, 35 Cal. 466, and Sheldon v. Dalton, 57 Cal. 20; Coffin v. Edging-ton, 2 Ida. 627 (595), 23 Pac. 80; 2 Cye. 776.)

Hon. Ed. L. Bryan, Judge. Action to determine the validity of sewer and waterworks bonds of the city of Payette. Judgment for defendant and plaintiff appealed. Sec. 2316, Rev. Codes, empowers the council to issue bonds “for any of the purposes aforesaid.” Does that section use the word “any” in the singular or the plural, especially when construed with the provision in sec. 2315, Amended Session Laws of 1909, page 174, “for any or all of the following purposes”?

and for the County of Bannock. lion. Alfred Budge, Judge. Suit in condemnation. Judgment for the defendant establishing its damages, from which plaintiff appealed. The real damages are what the party is damaged.

Hon. Fremont Wood, Judge. An action to secure a permanent injunction against maintaining obstructions in the Boise river. Plaintiff appeals from a modified order of the lower court, partially restraining defendant. The owner of land bordering on a body of water is entitled to have the relation of the water to his land remain unchanged so far as interference by third persons or the public are concerned.

Hon. James M. Stevens, Judge. Action to confirm the organization and the issuance of bonds by the Progressive Irrigation District. Judgment of confirmation entered by the trial court.

Hon. Fremont Wood, Judge. Action by plaintiff to enjoin the issuance of bonds. Judgment for the defendant and the plaintiff appealed.

Hon. Alfred Budge, Judge. Prosecution and conviction for statutory rape. Acts of sexual intercourse occurring subsequent to one charged in the indictment and relied on for conviction should not be considered by the jury, either in corroboration of the main offense charged or for any other purpose, as proof of subsequent offenses have no tendency to prove that previous thereto the defendant had probably committed the crime charged against him.

Original application for writs of habeas corpus. After-hearing, it is ordered that the petitioner, Sehriber, be admitted to bail by the district judge; and the application of Haggerty denied, and he is remanded to the custody of the sheriff of Bear Lake county. The defendant Sehriber should be released upon this application for a writ of habeas corpus. He was only sentenced to pay a fine of $250, and under the statute (sec. 8104) he is entitled to bail as a matter of right.

Hon. Ed. L. Bryan, Judge. Action by plaintiff for injunction to restrain trespass and waste. Judgment for plaintiff and defendant appealed.

Hon. Fremont Wood, Judge. Action to quiet title to certain lands. Judgment for plaintiff. The land, under the homestead law, is virtually a gift or donation by the government to the family, and- when the title thereto is taken in the name of a single member of the family, it is contemplated by the act that it is for the benefit of all. (Newkirk v. Marshall, 35 Kan. 77, 10 Pae. 571; Adams v. Church, 193 TJ. S. 510, 24 Snp.

Hon. Edward A. Walters, Judge. Action by plaintiff for debt. Judgment for defendant and plaintiff appealed to the district court. Appeal was dismissed. This check had been certified at the request of the payee, and had become a certificate of deposit. {Met. Nat. Bank v. Jones, 137 111. 634, 31 Am. St. 403, 27 N. E. 533, 12 L. E. A. 492; Clews v. Bank of N. Y., 89 N. Y. 418, 42 Am. Eep. 303; Merchants’ Bank v. State Nat.

<p>Local Option — Prohibition District — Allegations of Information— Proofs — Judicial Notice — Evidence of Other Offenses.</p> <p>(Syllabus by the court.)</p> <p>1.. Under the provisions of sec. 12 of the local option statute (1909 Sess. Laws, p. 13), it is not necessary for the prosecutor to allege in his information for the violation of the local option statute the facts showing that the required number of voters petitioned for the election, or that the election was held, or that a majority of the people voted in favor of prohibiting the sale of intoxicating liquors; nor is it necessary to allege or prove that the defendant did not have a license permitting him to sell or dispose of intoxicating liquors. Under the provisions of this section of the statute, the burden is on the defendant to show that he held a license at the time of the commission of the act complained of and to justify his action thereunder or under some provision of the statute.</p> <p>2. An information charging the unlawful sale of intoxicating liquors which concludes with the clause, “Contrary to the form, force and effect of the statutes in such cases made and provided and against the peaee and dignity of the state of Idaho,” is a sufficient allegation that the liquor was sold or disposed of contrary to law, whether it be the local option law or any other public statute.</p> <p>3. Under the provisions of subd. 2, sec. 5950, Bev. Codes, courts of this state will take judicial notice as to whether or not the local option statute is in force in -any particular county, and will advise the jury accordingly in the case of a prosecution for a violation of such statute.</p> <p>4. Where one is prosecuted for aiding and abetting an unlawful sale of intoxicating liquor in a prohibition district by prescribing a quart of whisky and directing on the prescription that the purchaser thereof shall “drink all at once,” and the defendant claims that the direction as to the amount to take at a time was a mere pleasantry or humorous addition made to the prescription, it is not improper for the state to prove that at or about the same time the defendant gave other prescriptions for like quantities and wrote on the prescription the same direction, “drink all at once.”</p>

Hon. Fremont Wood, Judge. Action to recover damages for personal injury. Judgment for plaintiff. A transaction between two parties ought not to operate to the disadvantage of a third. It is manifestly unjust that a man should be bound by the acts of strangers, neither ought their acts or conduct be used as evidence against him. (1 Elliott on Evidence, 159; Broom’s Legal Maxims, 954; Cleveland Ry. Co. v. Jenkins, 174 111. 398, 66 Am.

Hon. Robt. N. Dunn, Judge. Action to recover damages for trespass and conversion of timber. Judgment for plaintiff. The rule seems to be that separate verdicts should be returned where several counts state different causes of action. (12 Current Law, pp. 2262, 2263; Freedman v. N. Y. etc. By. Go., 81 Conn. 601, 71 Atl. 901, 15 Ann. Cas. 464.) It may be a single verdict containing separate findings. (Graves v. St. Louis etc. By. Go., 133 Mo.

Hon. Robert N. Dunn, Judge. Action by plaintiff to condemn a tract of land overflowed by the waters of Coeur d’Alene lake by reason of raising the level of the waters therein by means of dams and mechanical appliances placed in the Spokane river at Post Falls. Judgment for the defendants and plaintiff appealed.

Hon. Robt. N. Dunn, Judge. Action on promissory note. Judgment for plaintiff. The question as to what is a reasonable or unreasonable time is a question of law, to be determined by the court from the evidence. (Turner v. Iron Chief Min. Co., 74 Wis. 335, 17 Am. St. 168, 43 N. W. 149, 5 L. R. A. 533; Nash v. Harrington, 2 Yt. 9, 16 Am. Dee. 672; Jones v. Robinson, 11 Ark. 504, 54 Am.

<p>Action to Quiet Title — Default op Defendant — Setting Aside Default and Judgment — Discretion op Trial Court — Meritorious Defense.</p> <p>(Syllabus by the court.)</p> <p>1. TTuder the showing of facts made in this action, the respondent was entitled to have the default set aside, the judgment vacated and to be allowed to defend.</p> <p>2. The showing of respondent in support of his motion to set aside the default and vacate the judgment, with regard to the circumstances of mistake, inadvertence, surprise or excusable neglect, specified as grounds for such motion in sec. 4229, Bev. Codes, is sufficient.</p> <p>3. Where only documentary evidence is before the court below, and it renders its decision upon such evidence alone, this court will make an original examination of the evidence as contained in the record, and will exercise its judgment and discretion, the same as if the ease were being presented to it in the first instance.</p>

<p>APPEAL from the District Court of the Second Judicial District, for Nez Perce County.</p>

Hon. Edgar C. Steele; Judge. Action for debt. Judgment for plaintiff, and on motion a new trial was granted by the trial court. Appeal from the order granting a new trial. The trial judge has abused his discretion in granting a new trial in this case. (Dennison v. Willcut, 3 Ida. 793, 35 Pac. 698; Vnion etc. National Bank v. Gillespie, 137 U. S. 411, 11 Sup.

<p>Change of Venue — Showing of Prejudice — Discretion of Trial Court.</p> <p>(Syllabus by tbe court.)</p> <p>1. An application for a change of venue is addressed to the sound legal discretion of the trial court, and the decision reached by the trial court on such matter will not be reversed on appeal unless the showing made is such as to convince the appellate court that the trial court has abused such discretion.</p> <p>2. In determining whether or not a trial court has abused the discretion vested in it in denying a motion for change of venue, some weight and consideration may be given to the fact that the judge is personally acquainted with a large number of the citizens of the counties of his district, and is in a large degree familiar with the sentiment prevailing in his district touching questions of public importance, and those matters which necessarily attract the attention of the press and the public generally.</p> <p>3. An application for change of venue ought to be supported by the affidavits of persons who have either been over the county generally, or through large communities thereof, and have heard the citizens generally express themselves in regard to the matter at issue, or by residents of different portions of the county who know of the sentiment prevailing in their respective communities.</p> <p>4. The facts disclosed by the showing made in this case examined, and held, that there was no abuse of discretion in the ruling of the trial judge denying the application for change of venue.</p>

Hon. Edgar C. Steele, Judge. Action to recover over by the city for personal injuries. Judgment for plaintiff. “It is universally admitted that there is no common-law liability of abutting property owners to repair sidewalks.” (Browning v. City of Springfield, 17 111. 143, 63 Am. Dec. 355.) There is nothing in our statutes that changes the common law in this respect.

Hon, Robert N. Dunn, Judge. Action for perpetual injunction.

Hon. R. N. Dunn, Judge. ■ Action to recover the value of timber cut from certain lands. Judgment for plaintiff. There is absolutely nothing in the record to show that either Hye, Melnturff, Kent, the Alamo Colony, or the Northern Pacific Co. ever acquired title to this land from the gov-eminent, and the failure to show those facts is absolutely fatal. There is nothing in the record to show that any of these parties except Melnturff ever had possession of the lands.

<p>APPEAL from the District Court of the Eighth Judicial District, in and for the County of Kootenai. Hon. Eobt. N. Dunn, Judge.</p> <p>Prosecution for murder in the first degree. Conviction had and defendant appealed.</p> <p>r Where an information describes an article with particularity, the proof will be held to that article so particularly described, and the allegation of the fifteen jeweled watch was not supported by the testimony of a watch with eleven jewels. (Morgan v. State, 61 Ind. 447; Turner v. State, 50 Tenn. 452; Karris v. State (Tex. Cr. App.), 30 S. W. 221; State v. Kube, 20 Wis. 217, 91 Am. Dec. 390.)</p> <p>“The defendant in a criminal action, who has testified in his own behalf, can only be cross-examined by the state as to facts stated on his direct examination or connected therewith. ’ ’ (State v. Larkins, 5 Ida. 200, 47 Pae. 945; Evans v. O’Connor, 174 Mass. 287, 75 Am. St. 316, 54 N. E. 557; People v. Arrighini, 122 Cal. 121, 54 Pac. 593.)</p> <p>Instructions Nos. 34, 35, and 38 refer to the question of insanity as governed by heredity and also tender to the jury an instruction in regard to the effect of the suicide of defendant’s father. These instructions correctly state the law and should have been given. (Brown, Medical Jurisprudence of Insanity, secs. 524, 525; Wharton and Stille, Medical Jurisprudence, p. 93; The Arrowsmith Case, 1 Am. Law Reg. 353; People v. Smith, 31 Cal. 466.)</p> <p>It was error for the prosecuting attorney to state to the jury in argument that, ‘ ‘ They might acquit the defendant and allow him to go out and kill somebody else. ’ ’ (State v. Irwin, 9 Ida. 35, 71 Pac. 608.)</p> <p>Two offenses are not charged, but one offense is charged, and the second alleged offense, as shown by the second count in the information, to wit, robbery, is only for the purpose of showing the means which go to make the said offense murder in the first degree. (Wharton on Homicide, p. 876.)</p> <p>An application for continuance is addressed to the sound judicial discretion of the court, which will not be revised unless abused. (Citing authorities cited in the opinion of the court.)</p> <p>Every fact from which the jury may legally deduce or infer the guilt of the accused shall be submitted, when, taken in connection with these facts or all the other facts, its relevancy is made to appear. (Sec. 323, Underhill, Criminal Evidence; sec. 584, 3d ed., Wharton on Homicide; State v. Peed, 53 Kan. 767, 42 Am. St. 322, 37 Pae. 174; Jenkins v. State, 35 Fla. 737, 48 Am. St. 267, 18 So. 182.)</p> <p>The opposite party may cross-examine the witness as to any facts stated in his direct examination or connected therewith. (Sec. 6079, Rev. Codes; State v. Anthony, 6 Ida. 383, 55 Pae. 884; State v. Larkins, 5 Ida. 200, 47 Pac. 945; People v. Arrighini, 122 Cal. 12Í, 54 Pac. 591; People v. Meyer, 75 Cal. 383, 17 Pae. 431; People v. Preshour, 55 Cal. 375; People v. Davenport, 13 Cal. App. 632, 110 Pac. 318; People v. Gallagher, 100 Cal. 474, 35 Pac. 80; People v. Schmitz, 7 Cal. App. 330, 94 Pac. 407-419; People v. Rozell, 78 Cal. 91, 20 Pac. 36.)</p> <p>The prosecuting attorney has' the right to state his view of what the evidence shows and the conclusion to be drawn therefrom. (People v. Romero, 143 Cal. 458, 77 Pac. 163.)</p>

Hon. Robert N. Dunn, Judge. Action by the plaintiff to recover damages for personal injury. Judgment for the plaintiff and defendant appealed. There is no presumption of negligence in a case of this kind and the burden was on the respondent to show that the rock injured him by reason of the appellant’s negligence. Having failed to show what caused the rock to be thrown or started, he failed to prove sufficient facts to make any question for the jury. {Penn.

Hon. Fremont Wood, Judge. Action to recover the cost of constructing a bridge. Judgment for plaintiff and defendant appealed. Where a ditch company has possession of a right of Way and constructs a ditch thereon prior to the time that the highway crossing the same has been laid out and dedicated to the public, it cannot be compelled to construct at its own expense and keep in repair bridges across said ditch or canal which may be necessary for the public travel.

Hon. Alfred Budge, Judge. Action to establish the respective rights and priorities of claimants to the use of the waters of Wood Canyon in Oneida county. Judgment for the plaintiff and defendants appealed. It was undoubtedly the intention of the legislature that the method prescribed by the 1903 law was the exclusive method thereafter to be followed in the appropriation of the public waters of this state.

<p>Original application to this court for writ of mandate to compel the trial judge to settle a statement on motion for a new trial and appeal.</p> <p>When a proposed statement, on motion for a new trial, is served on the adverse party within the statutory time, and no amendments thereto are proposed by the adverse party, the statement as proposed may be presented to the judge or delivered to the clerk for settlement within any reasonable time thereafter. (Miller v. Hunt, 7 Ida. 486, 63 Pac. 803.)</p> <p>The failure of the moving party to deliver the amendments with the proposed statement to the clerk for the judge within ten days after such amendments are served is in effect an adoption of such amendments, in which case the statement may be settled by the court within a reasonable time. (Coast Lumber Co. v. Wood, 18 Ida. 29, 41, 108 Pac. 338.)</p> <p>The statement of the case must be settled upon the record made in the court below. Excuses for delay should have been set out when it was settled, for without it the court had no jurisdiction to settle and certify the statement. (Estate of Kruger, 130 Cal. 621, 63 Pac. 31; Kaltschmidt v. Weber, 136 Cal. 675, 69 Pac. 497; Hoehnan v. New York Drygoods Co., 8 Ida. 66, 67 Pac. 796.) In Coast Lumber Co. v. Woods, 18 Ida. 28, 108 Pac. 338, an engrossed copy of the statement was presented to the judge, whereas in this case no engrossed statement was ever presented to him.</p> <p>The statute of Montana is similar to the statute of Idaho upon this question. In Woodard v. Webster, 20 Mont. 279, 50 Pac. 791, the court of that state expressly holds that where amendments are proposed and adopted, the statement may be presented for settlement within a reasonable time. Where statement, with proposed amendments, is not presented until after ten days from time such amendments were presented, court was not authorized to settle such statement, and on it to grant motion for new trial. (Henry v. Merguire, 106 Cal. 142, 39 Pac. 599; Connor v. Road Co., 101 Cal. 429, 35 Pae. 990.) It being the duty of moving party to prepare statement on motion for new trial and present for settlement, he will be required to use due diligence in so doing. (Moore v. Kendall, 121 Cal. 145, 53 Pac. 647; Wright v. Mathews, 28 Mont. 442, 72 Pac. 820.)</p>

Hon. Ed. L. Bryan, Judge, Action for damages. Judgment for plaintiff, and defendr ants appealed.

Hon. Robt. N. Dunn, Judge. Application for restraining order to restrain defendant from storing gasoline and transacting a gasoline business on certain premises adjoining the city of Coeur d’Alene. Temporary restraining order granted. “An injunction pendente lite is very like an execution before judgment, and ought not to be issued except in clear eases of right. “(Amelia Mining Co. v. Tenn.

Original action praying for a writ prohibiting and restraining the state land board from the commission of certain alleged and threatened acts. The grant of secs. 16 and 36 was in praesenti, and the title to these sections passed eo instanti from the government to the state without further action on the part of either the government or the state to perfect such title. No selection was necessary, because the act designated the land by recognizing subdivisions.

<p>Waters and Watercourses — Canal Companies — Priorities Among Consumers — Mandamus to Compel Delivery — Form op Judgment.</p> <p>(Syllabus by the court.)</p> <p>1. A decision of the supreme court oh appeal establishes the law of the case for the guidance of the trial court, and for the purposes of a subsequent appeal.</p> <p>2. There is a priority among consumers from a canal analogous to that which exists among appropriators from a natural stream, and the rights of later applicants for water are subordinate to those of prior consumers, which, when exercised in full, exhaust the carrying capacity of the canal.</p> <p>3. Evidence showing the use of drain or waste water, or water primarily belonging to a prior consumer under a canal system, does not establish a dedication of water direct from the canal to the lands of such user.</p> <p>4. Evidence showing the delivery of water directly from a canal for the express purpose of irrigating a certain tract of land establishes a prima fade dedication of water to sueh tract.</p> <p>5. Evidence showing the capacity of a canal, the loss by seepage and evaporation, and the acreage irrigated therefrom, is insufficient to show whether or not the waters of the canal have been fully dedicated, in the absence of any proof of the duty of water, or of the aggregate number of inehes of water to whieh consumers who have acquired a prior right are entitled.</p> <p>6. Where the evidence shows the average duty of water under a canal to be five-sevenths of an inch to the acre, a judgment awarding over seven-eighths of an inch is erroneous, in the absence of any testimony establishing a lower duty of water on that particular tract.</p> <p>7. Where on an application for a writ of mandate to compel the delivery of water the evidence establishes a dedication inferior to that of prior consumers, a judgment awarding the plaintiff the same right as prior consumers is erroneous, and should be modified so as to make such right subordinate, to that of the prior consumers.</p>

Hon. Alfred Budge, Judge. Action for divorce. There was an order for judgment denying the relief prayed for and plaintiff appeals.

Hon. Ed. L. Bryan, Judge. Application for writ of mandate. Judgment of dismissal was entered after sustaining a demurrer to the complaint, and the plaintiffs appealed. The water users on the city lots acquired vested water rights, and it is the duty of the defendant corporation to deliver water. (Wilier ding v. Green, 4 Ida. 773, 45 Pac. 134; People ex rel.

Hon. Fremont Wood, Judge. Action for claim and delivery. Judgment for plaintiff and defendant appeals. “If the original possession of property is acquired by a tort, no demand previous to the institution of a suit is necessary. ’ ’ {Sargent v. Sturm, 23 Cal. 359, 83 Am.

<p>APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. Ed. L. Bryan, Judge.</p> <p>Action praying for a decree declaring a deed absolute on its face to be a mortgage only, and as having been given as security for the payment of a debt. Judgment for the plaintiff and the defendant appealed.</p> <p>The course of judicial proceedings or the time when the action must be commenced are covered by the lex fori. (Fed. Cases No. 10,260; Scudder v. Union Nat. Bank, 91 ü. S. 414, 23 L. ed. 245.)</p> <p>The evidence in this case clearly shows that the transaction took place in the city of Pittsburg, Pennsylvania, where both of the parties hereto were residing and where the deed and alleged defeasance were made and executed, which makes it clearly a Pennsylvania contract and transaction, and especially the validity of the alleged defeasance must depend upon the laws of that state. (Andreios v. Torrey, 14 N. J. Eq. 357; De Wolf v. Johnson, 10 Wheat. (U. S.) 367, 6 L. ed. 343; Cubbedge v. Napier, 62 Ala. 522; Goodrich v. Williams, 50 Ga. 425; Eastwood v. Kennedy, 44 Md. 572; Chase v. Dow, 47 N. H. 406; Shipman v. Bailey, 20 W. Va. 144; Newman v. Kershaiu, 10 Wis. 343.)</p> <p>The law of the place where the contract is entered into at the time of making the same is as much a part of the contract as though it were expressed therein. (Parsel v. Barnes, 25 Ark. 261; Sterrett v. Sweeney, 15 Ida. 424. 128 Am. St. 68, 98 Pae. 418, 20 L. R. A., N. S., 963; Mitchell v..Doggett, 1 Ida. 356; Talbot v. Merchants’ Dispatch, 41 Iowa, 247, 20 Am. Rep. 589; Collins v. Collins, 79 Ky. 88; Moale v. Baltimore, 56 Md. 496; Carter v. Cox, 44 Miss. 148; Pdrks v. Conn. Fire Ins. Co., 26 Mo. App. 511; 9 Cye. 583; Pritchard v. Norton, 106 XL g. 124, 1 Sup. Ct. 102, 27 L. ed. 104.)</p> <p>Where plaintiff sets up that the deed was intended as a mortgage, he must show an offer to redeem before he can be entitled to ruling in equity, or deprive the defendant of his right of possession under the deed. (Hughes v. Davis, 40 Cal. 117.)</p> <p>If the transaction is construed under the laws of Idaho and is held to be a mortgage, should the plaintiff prevail in this action in view of his laches, which are undisputed, by sitting quietly by and not asserting any right to redeem or to a reconveyance for a period of time of more than ten years? (Byan v. Woodin, 9 Ida. 528, 75 Pae. 261; Bradley v. Jolmson, 11 Ida. 689, 83 Pac. 927; Godden v. Kimmell, Admr., 99 XJ. S. 201, 25 L. ed. 431; Badger v. Badger, 2 Wall. (U. S.) 87, 17 L. ed. 836.)</p> <p>Admitting for the sake of argument that the deed in this ease amounts in all equity to a mortgage; yet, if afterward the parties agreed thereto, it may lose its character as an equitable mortgage and become what it purports to be — an unconditional conveyance. (Carpenter v. Carpenter, 70 111. 457.)</p> <p>The validity of a mortgage of real estate and its construction and effect are to be tested and determined by the laws of the state where the mortgaged property is situated, although the mortgage itself is executed and the parties reside in another state. (27 Cyc. 975; Post v. Bank, 138 111. 559, 28 N. E. 978; Commercial Bank etc. v. Jackson, 7 S. D. 135, 63 N. W. 548; 3 Am. & Eng. Enc. Law, 563, 567, 662; Jones, Mortg., secs. 661, 823; Otis v. Gregory, 111 Ind. 504, 13 N. E. 39; Brown v. Bank, 44 Ohio St. 269, 6 N. E. 648; Post v. Bank, 138 111. 559, 28 N. E. 978; U. S. v. Crosby, 7 Cranch (U. S.), 115, 3 L. ed. 287; 77. S. v. Fox, 94 U. S. 320, 24 L. ed. 192; Bowdle v. Jencks, 18 S. D. 80, 99 N. W. 98; Morris v. Linton, 61 Neb. 537, 85 N. W. 565; McCormick v. SulUvant, 23 U. S. 192, 6 L. ed. 300; Richardson v. DeGiverville, 107 Mo. 422, 28 Am. St. 426, 17 S. W. 974; Blanton v. Seiberling &' Co., 107 Iowa, 534, 78 N. W. 194; Washburn v. Van Steenwyk, 32 Minn. 326, 20 N. W. 324; Brine v. Hartford Fire Ins. Co., 96 U. S. 627, 24 L. ed. 859; Loving v. Pairo, 10 Iowa, 282, 77 Am. Dec. 109; Fessenden v. Taft, 65 N. H. 39, 17 Atl. 713; Conradt v. Pepper, 13 "Wyo. 473, 81 Pac. 307, 82 Pac. 2.)</p> <p>If the laws of the state of Idaho apply in this case, and the evidence shows that the deed was given as security for a loan, the instrument is a mortgage. (Brown v. Bryan, 6 Ida. 1, 51 Pac. 995; Thompson v. Burns, 15 Ida. 572, 99 Pae. Ill; 27 Cyc. 720, 991; Hall v. Arnott, 80 Cal. 348, 22 Pac. 200; 3 Pomeroy’s Eq. Jur., sec. 1192; Kelly v. Leachman, 3 Ida. 392, 29 Pac. 849; Byrne v. Hudson, 127 Cal. 254, 59 Pac. 597; Smith v. Smith, 80 Cal. 323, 21 Pac. 4, 22 Pac. 186, 549; Reilly v. Cullen, 159 Mo. 322, 60 S. W. 126.)</p> <p>If such an agreement as is alleged had ever been made, it would not, under our statutes, change the mortgage into a deed. The statutes provide the way to divest the mortgagor of his title, and he cannot be divested in any other way. (TJllman v. Devereux, 46 Tex. Civ. App. 459, 102 S. W. 1163; Keller v. Kirby, 34 Tex. Civ. App. 404, 79 S. W. 82; Lynch v. Rycm, 132 Wis. 271, 111 N. W. 707, 112 N. W. 427.)</p>