Volume 2 — Arizona Reports

<p>APPEAL from a judgment of the District Court of the Third Judicial District in and for the County of Yavapai.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the District Court of the Third Judicial District in and for the County of Yavapai.</p> <p>The facts are stated in the opinion.</p>

<p>1. Verdict—Uncertainty—Practice to Remedy—Not Cured by Judgment.—Where a verdict is too uncertain to justify judgment the jury may be requested to retire and put it in proper form, but where the verdict is bad for uncertainty it cannot be corrected or cured by judgment.</p> <p>2. Appeal and Error—Verdict Incorporated into Judgment Verbatim is Before Court Without Bill of Exceptions.—A verdict, copied verbatim into a judgment, is before the court on appeal the same as if brought up by a bill of exceptions.</p>

<p>1. Pleading—Action against Drawer on Bank Check—Complaint must Allege Either Demand and Notice or Facts Excusing Failure.—In a complaint against the drawer of a bank clieek or bill of exchange, so-called, it is necessary to aver either demand and notice to the drawer of non-payment, or such facts as would excuse demand and notice.</p>

<p>APPEAL from a judgment of tlie District Court of tlie Second Judicial District in and for tlie County of CocMse.</p> <p>The facts are stated in the opinion.</p>

<p>1. Assignment for Benefit of Creditors—Evidence of Title as Assignee Admissible though Suing in Personal Capacity—Parties—Assignee may Sue Either in Personal or Representative Capacity to Recover Property Reduced to Possession from Third Party Wrongfully Depriving Him of Same.—Certain evidence of title in plaintiff as assignee held admissible in action of replevin though plaintiff sued simply in his individual capacity. Where an assignee has taken possession of the personal property conveyed to him by a deed of assignment, and has been wrongfully deprived thereof by a third party, he may sue for its recovery either in his personal or representative capacity.</p> <p>2. Same—Presumptions—Without Proof of Creditors Dissent Their Assent Presumed.—In the ease of a general voluntary assignment for the benefit of creditors without preference, and without restrictions, in the absence of proof of dissent, the law presumes the assent of the creditors to the assignment.</p> <p>3. Appeal and Error—Necessity for Motion for New Trial—findings Will not be Reviewed Without—Findings on Same Footing as Verdict of Jury—Practice to Obtain Review of Question of Want or Insufficiency of Evidence to Support Judgment.— ■ The findings of the court below will not be reviewed on appeal unless there is a motion for a new trial. Federico v. Sancoclc, 1 Ariz. 512, 25 Pac. 650, cited and approved. Findings by the court stand on the same footing as the verdict of the jury. When a party complains that the evidence was insufficient to justify a verdict or decision the appropriate remedy is by motion for a new trial. If the verdict or written findings support the judgment so long as they remain undisturbed the judgment cannot be assailed on the ground that it is not justified by the evidence. Before the judgment can be attacked on this ground the verdict or finding must be set aside because not justified by the evidence and this can only be done on motion for new trial. In the absence of motion for a new trial findings are conclusive and binding on this court.</p> <p>4. Same—Findings—Where Attacked for Want of Evidence Record Must Purport to Contain all the Evidence.—When the statement on appeal does not purport to contain all the evidence an appellate court mil not consider an objection that the findings are not supported by the evidence.</p> <p>5. Same—Judgment—Clerical Error not Prejudicial to Appellant, —"Where the judgment shows a clerical mistake not prejudieal to appellant judgment will be affirmed.</p>

<p>1. Counties—Pleading—Allegations in Action of Assumsit—Jurisdiction of District Court—Action on Account Lies against Counties.—Where complaint after setting forth the contract as executed, alleges full performance by plaintiffs, and presentation to and rejection of their demand by the board of supervisors of a county such complaint is not subject to demurrer for want of jurisdiction of district court, under act of February 12, 1881. The right to sue a county remains unimpaired and extends to every case of account after presentation to and rejection by the board of supervisors.</p> <p>2. Statutes Construed—Act of February 12, 1881—Section 3 of chapter 2, Comp. Laws of 1877.—By the act of February 12, 1881, the legislature intended simply to prescribe the manner of presenting claims against counties, and to define the duties of the board of supervisors in passing on same, and it in no way modifies or affects section 3 of chapter 2 of the Compiled Laws, authorizing counties to sue and be sued.</p>

<p>1. Criminal Law—Indictment Under Edmunds Act—Polygamy-Allegation op Cohabitation in Same Count Following Charge op Oppense of Polygamy Harmless Surplusage.—Objectionable words, referring only to cohabitation after a proper allegation of a polygamous marriage, in a count of an indictment under the Edmunds Act, are harmless surplusage, and do not vitiate the indictment.</p> <p>2. Same—Evtdence-^General Reputation as Corroborative Evidence in Proof op Marriage—In Absence op Federal. Statute Territorial Law Governs Rule of Proof—Section 123, c. 10, Comp. Laws 1871.—Evidence of' general reputation as to the relation of husband and wife admissable as corroborative proof of marriage under territorial statute, supra, which in absence of congressional enactment governs rule of proof in criminal cases of this character.</p> <p>3. Same—Same—Appeal and Error—Where Party Opens Door to Evidence not Strictly Admissable He Will not be Heard to Complain on Appeal That His Opponent Was Permitted to Follow.—Where the record shows that evidence as to facts oeeuring without the jurisdiction of the court and prior to the finding of the indictment was introduced by the defense the trial court is justified in allowing the prosecution to follow. The defense having opened the door it will not be heard to complain.</p> <p>4. Same.—Same—Census Return Properly Filed Evidence op its Contents—Witness Refreshing Recollection—Practice in Proof op Facts Shown by Census Returns.—Census return filed in the office of the secretary of the territory is by statute made an “ official document, ” and evidence of its contents. A census enumerator may use his official returns to refresh his memory. The independent recollection of a census enumerator as to facts stated in his official returns and the official and authenticated returns correct method of proving facts shown by returns.</p> <p>5. Appeal and Error—Instructions—Charge to Jury to be Considered as a Whole.—In the review of a charge to'the jury the whole and entire charge should he considered together.</p> <p>6. Practice—Trial op Causes Under Federal Statutes—In Absence op Congressional Enactment as to Matters op Practice Local Statutes Prevail.—Where in matters of practice the statutes of the United States are silent, in the territory or state where United States courts are held for the trial of causes under the United States laws, the local statutes may be invoked for tbe purpose of interpreting the law governing the practice and conducting the proceedings of the court.</p> <p>7. Statutes Cited—§ 123, Comp. Laws Ariz. 1877, Comp. Laws, § 21, p. 397; Comp. Laws, § 7, p. 571; Par. 1891, Comp. Laws.</p> <p>8. Criminal Law—Prosecution Under “Edmunds Act”—Instructions as to Constituent Elements op Marriage Contract and Method op Proof—Reference to Territorial Statutes Proper in Instructions When Taken in Connection With Other Portions op Charge.—Where in prosecution under the “Edmunds Act, ’ ’ the court in instructing the jury as to the constituent element's of the marriage contract and the manner of the proof of polygamous marriages read par. 1891, and portion of § 123, e. 10, Comp. Laws, defining marriage and the maimer of proof of polygamous marriages, which statutes correctly embodied the essential points which would have been the law even in their absence, a reference to them is unobjectionable, when taken in connection with the other portions of the charge by which the jury were distinctly instructed that they must be satisfied that the first marriage existed and that the second marriage was contracted within the territory, within the time fixed by the United States Statute defining and punishing polygamy.</p> <p>9. Criminal Law—Pinney, J., Concurring Specially—Evidence— Admissions of Dependant That Woman He Lives With is His Wipe Prima Facie Evidence op Marriage Contract.—Where a man deliberately admits that the woman he lives with is his wife such admission is prima facie evidence that there has been a marriage contract between the parties.</p> <p>Opinion on Re-hearing, post, 127.</p>

<p>APPEAL from a judgment of the District Court of the •First Judicial District in and for the County of Pima.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Cochise.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Cochise.</p> <p>The facts are stated in the opinion.</p>

<p>1. Criminad Law—Rape—Evidence—Repute eor Chastity or House Where Prosecuting Witness Thirteen Years or Age Lived Immaterial.—The general bad reputation for chastity of the house where the prosecuting witness lived is immaterial where the record shows that she was thirteen years old, and lived alone with her mother.</p>

<p>APPEAL from- a judgment of the District Court of the First Judicial District in and for the County of Graham.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the District Court of the Second Judicial District in and for the County of Maricopa.</p> <p>The facts are stated in the opinion.</p>

<p>1. Fraudulent Conveyance—Statute of Frauds—Comp. Laws 1877, p. 363 par. 2133 Construed.—§ 20 of ehap. 36 of the Compiled Laws, idem supra, is a limitation upon the absolute right of disposition of property by its owner, in that he may not sell and convey his property if in so doing he have the express or implied intent to hinder, delay or defraud his creditors.</p> <p>2. Same—Assignment for Benefit of Creditors—Burden of Proof of Fraudulent Intent on Creditor Attacking Conveyance—Construction of Such Conveyances—Failing Debtor May Assign For Benefit of Creditors—Assignment Void if Fraudulent Intent Be Proved or the Assignment Shows an Actual Fraud.— Where it is charged that a conveyance is of this character, the onus is upon the creditor who assails the assignment to show that it is in plain violation of the law. The same fair and reasonable rules of construction must be applied to such conveyances as’are adopted in ascertaining the meaning of other instruments. The doctrine that a> man in failing circumstances may assign his property for the benefit of all his creditors, provided he does so in good faith, has become too well established to now be questioned. If, however, a fraudulent intent' be proved, or if the terms of the assignment itself show that a fraud has actually been committed the assignment is in violation of the statute and void.</p> <p>3. Saüíe—Construction—Provision for Possession by Grantor of Beal Estate not Presumptive Fraud—Bule as to Betention of Possession in Transfers of Beal Property Different from Transfers of Personal Property—Unreasonable Delay in Selling Assigned Property—One Tear Beasonable Time.— Where a conveyance of real property is made to a trustee for the benefit of the creditors of the grantor, with a provision for possession by the vendor, such provision is not presumptive evidence of fraud, though it would be had personal property been assigned. To hold otherwise would be in effect to abolish the distinction between personal and real property, and to lose sight of the different methods of conveying the title to the two kinds of property. .It is the law that the postponement to an unreasonable time of the time of sale will avoid the assignment. Less than one year is not unreasonable.</p> <p>4. Same—Where Assignment Shows That the Property Is to Be Devoted to the Payment of all Debts of Grantors and There Is no Evidence of Praud in Pact Presumption in Pavor of Validity.—Where an assignment places the property in the hands of a trustee to be devoted to the payment of all the debts of the grantors, with no evidence of fraud in fact, the court must assume that it was made in good faith, and for the benefit of the creditors, rather than for their injury, and the court cannot say that it is fraudulent as a matter-of law.</p>

<p>1. Negotiable Instruments—Order by Corporate Officer on Disbursing Officer—No Acceptance Necessary to Bind Corporation —May be Treated as Either Note or Bill of Exchange.—Where an order for the payment of money is drawn by an officer of a corporation having authority to incur indebtedness upon a disbursing officer of the same corporation no acceptance is necessary to bind the corporation. Such an order may be treated by the holder as either a promissory note or bill of exchange.</p> <p>S. Same—Genuineness—Principal and Agent—Principal Bound by Acts of Agent Within Scope of Apparent Authority Implied •From Course of Business Dealing—Maxim That He Who, Without Intentional Fraud, Has Enabled a Person to Do an Act Which Must Be Injurious to Himself, or to Another Innocent Party, Shall Himself Suffer the Injury, Bather Than the Innocent Party Who Has Placed Confidence in Him, Applied.— In a case where a bank in discounting a draft inquires concerning its validity of the bookkeeper of the corporation upon whom drawn, and the bookkeeper undertakes to say that it is genuine and will be paid when due, and it appears that such bookkeepr has in the ordinary course of business with such bank been accustomed to pass upon the validity of similar drafts, and has every opportunity to determine their validity, and in the absence of the superintendent has paid them, even though such bookkeeper has no express authority to pass upon the validity of the draft, such act is within the apparent scope of his authority as determined by his former course of dealing on behalf of his principal, and his principal will be bound. The maxim of natural justice here applies with its full force, that he who, without intentional fraud, has enabled any person to do an act which must be injurious to himself, or to another innocent party, shall himself suffer the injury, rather than the innocent party who has placed confidence in him.</p>

<p>APPEAL from a judgment of the County Court in and for the County of Pima.</p>

<p>1. Courts—Have Power to Render Decisions and Enter Judgments In Yacation—Statutes Cited—§ 146 § 637, Chapt. 48 Compiled Laws 1877—Rule 37 Supreme Court, Promulgated In 1879, Approved.—The court has power to render a decision, and cause a judgment to be entered, and file its reasons therefor, in vacation, in a cause which has been regularly heard and submitted to the court in the term, and taken under advisement. Statutes supra cited. Rule 37 of Supreme Court consistent with the laws of territory and acts of Congress.</p>

<p>1. Husband and Wife—Separate Estate—Wife Has Right to Convey Or Lease—Rents and Profits Are Separate Estate—“Married .Woman's Act” of 1871 Construed (par. 2000 p. 332, Comp. Laws 1877) —Miller v. Fisher, 1 Ariz. 232, 25 Pac. 651, Charouleau v. Woffenden, 1 Ariz. 346, 25 Pac. 662, Cited and Approved—Stare Decisis—Woffenden v. Charouleau, Ante—, 8 Pac. 302, Reviewed and Disapproved in Part.—Under “Married Woman’s Act” of 1871, a married woman may convey or lease her separate real estate, and may enforce such lease by collecting rents, and the rents so collected are her separate property. Cases, supra, reviewed and approved. Where opinions of this court have stood • for more than ten years and have become a settled rule of property upon the faith of which rights have become established, and to overrule them would work confusion, rule of stare decisis should be invoked. Woffenden v. Charouleau, ante, p. 44, 8 Pae. 302, reviewed, and, so far as question of ownership of rents and profits is discussed, held obiter dicta, and disapproved.</p>

<p>1. Principal and Agent—Agent Contracting With Respect to Matter of Agency for Individual Benefit—Acting as Agent For Both Parties—Where Contract Is Entered Into for Fraudulent Purpose Equity Will Befuse all Parties Affirmative Belief.—Where an agent for the sale of a mine makes a contract with respect thereto for his individual benefit, and further attempts to represent both parties to the transaction, in an action to enforce such contract a court of equity will refuse relief and will leave the parties in the position in which it finds them.</p> <p>Opinion on Second Appeal, 3 Ariz., 20 Pac. 183.</p>

<p>APPEAL from a judgment of tbe District Court of tbe First Judicial District in and for tbe County of Graham.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the District Court of the Second Judicial District in and for the County of Maricopa.</p> <p>The facts are stated in the opinion.</p>

<p>1. Taxation—Chapt. 33, Comp. Laws 1877—§§ 4, 5, 18, Cited— Net Proceeds op Mines par. 2062 to 2073, Comp. Laws 1877, cited— Repealed by Act No. 40 and Act No. 77, Laws op 1881—Chapt. 33, Comp. Laws op 1877 Repealed Chapt. 33, Howell’s Code, Comp. Laws 1864, p. 312—Exemptions.—No property within the territory is exempt from the operation of these revenue laws, unless put beyond them designedly and unequivocally by the legislature or other sovereign power.</p> <p>2. Same—Mines Taxable as Real Estate—“Real Estate” as Used In Revenue Act Includes “Mines”—“Mines” Includes Patented (Tt.awk and Claims Where the Purchase Money Has Been Paid and the Patent Is Not Yet Issued by the Government—“Mining Claims” or “Mining Interests” Regarded as Personalty and Taxable Under the Revenue Act.— “Mines,” to which patents have been issued, are clearly within the definition of the word ‘ ‘ lands, ’ ’ and also 1 ‘ real estate, ’ ’ as used in this act, which terms are defined in chapt. 1, Compiled Laws 1877, and are subject to taxation as real estate. So also mining claims where the occupants have paid to the proper officer of the United States the purchase money therefor, although patent may not have issued; in such cases, by the payment of the money and the acceptance of it by the government, the land is his, the government holding the legal title in trust. “Mining claims” or “mining interests” as used in the revenue act includes that large class of cases where the occupants of mining property do not claim any ownership whatever in the lands in their possession. They simply enter upon the public lands and make improvements thereon, which, while the possession is tolerated by the government, are looked upon as valuable property. This property is subject to taxation under the head of personal property.</p> <p>S. Same—Without Assessment Taxes are Nullities—Arbitrary Assessment Without Reference to Actual Value Void.— Where it appears that the assessor arbitrarily listed mining claims at $500, without reference to the actual value thereof and without knowledge. of such real value, such assessment cannot be upheld. Taxes by valuation cannot be apportioned without assessment. Moreover, it is the first step in the proceedings against individual subjects of taxation, and is the foundation of all which follows it. Without an assessment they have no support, and are nullities.</p> <p>4. Same—Assessment Should Be of True Cash Value.—Assessment in this class of cases should be, as in all others, of the true cash value.</p>

<p>1. Criminal Law—Edmunds Act—Polygamy—Indictment—To. Allege Cohabitation After Marriage in Count for Polygamy Not Fatal Being Mere Surplusage—22 U. S. Stat. L. 30; Supp. Bev. St. II. S. 1891, Chap. 47, p. 331.—Where in a count in an indictment under the Edmunds Act after properly alleging a polygamous marriage the pleader proceeds further and states that cohabitation followed such marriage, such latter statement is mere surplusage and does not render the count bad.</p> <p>2. Same—Evidence—Admissions op Dependant Competent in Proof Op Marriage—Open Cohabitation Competent—Rule op Proof Of Second Marriage Same as of First—No Ceremony of Marriage Required in This Territory—Highest Evidence of Marriage Not Required—Admissions and Cohabitation Sufficient to Establish ^Iarriage.—Admissions of defendant, often and apparently deliberately made, that he was married to the person named in the indictment and that he openly lived with the two women named as his wives and claimed them as such was competent and admissible evidence of marriage to person so named. Proof of second or subsequent marriage does not differ from proof of first one. The same kind of evidence is admissible in each casa In this territory no ceremony of marriage is required. In this class of cases the highest evidence of marriage is not required. Such proof as was made in this case is competent and sufficient to establish marriage.</p> <p>i. Same—Same—Where Evidence Is Introduced by One Party He Has no Right to Complain if the Other be Permitted to Follow—Proof of Cohabitation in Another Territory Competent To Prove Charge of Cohabitation With More Than One Woman Under Third Count—Evidence Competent and Admissible Under Any Count of Indictment at the Time Given Cannot Properly be Excluded.—Where defendant testified that he lived with the two women in Utah as his wives he cannot complain if the prosecution be permitted to put questions and ascertain the facts concerning such statements. Proof of such cohabitation was admissible and competent under the third ■ count of the indictment relating to cohabitation with more than one woman. Evidence material and competent under either count of an indictment at the time given cannot properly be excluded.</p> <p>á. Same—Instructions to Jury—Must Be Taken as Whole—Where Instruction is Correct in Principle It Matters Not Where' the Words are Obtained—Where It Appears That the Instruction Objected to as Erroneous Is Ambiguous but That Such Ambiguity Has Been Cured by Other Definite Instructions There Will be no Reversal—Instructions and Evidence Reviewed at Length.—Instructions to juries must be read and considered as a whole. Where the rule of proof of marriage was read from the Arizona Statute as an instruction to the jury as to what was proper and sufficient proof of marriage, and objection taken for the reason that the law of Arizona was not applicable to the ease, if the principle laid down was correct—as it was—it is of no importance where the court obtained the words with which he announced the principle. Where the court instructed the jury in substance that even though the defendant had two wives in the territory of Utah, in violation of law, the fact that he had continued the same offense for many years, it being a continuous offense, would be no defense to him to make against this prosecution. Although such instruction taken alone was ambiguous and susceptible of misconstruction by the jury and erroneous, yet, when read with positive instructions given with it, it appears that the jury could not have been misled, and there was no reversable error. Instructions and evidence reviewed at length.</p> <p>5. Edmunds Act—Purpose op—Polygamous Marriages Void—Knowledge That Eirst Wipe is Living Immaterial.—Under no definition of marriage, as understood by Christian people, can polygamous unions be looked upon as marriages. These unions are what the Edmunds law aims to punish and suppress. It is not necessary in order to make out the offense, that the second marriage should be a valid one. Every bigamous or polygamous marriage is void, and it is the entering into the void marriage while a valid one is in existence that the law punishes. Neither has the knowledge of the fact that a prior wife was living anything to do with the question.</p> <p>Porter, J., dissenting upon the ground that the offense of polygamy was shown to have been barred by the statute of limitations.</p>

<p>APPEAL from a judgment of the District Court of the Second Judicial District in and for the County of Cochise.</p> <p>The facts are stated in the opinion.</p>

<p>1. Public Lands—Town Site Entries—§ 2387 Rev. St. U. S. 1878 Provides for Entry in Trust—Execution of Trust as to Disposal of Lots to be Under 'Territorial Regulations— Speculative Conveyance, Breach of Trust—No Power to Convey but to Occupants—Purpose of U. S. Statute to Prevent Speculation—§ 11, Comp. Laws, 1877, Construed and Held Void—Town Site Companies.—Act of Congress (Rev. St. U. S. 1878, Section 2387) provides that the “corporate authorities” may enter at the proper land office land settled and occupied, in trust for the several use and benefit of the occupants thereof; and that the execution of such trust as to the disposal of the lots shall be under such regulations as the state or territory may by law provide. The deed by Randall, Mayor, of 2168 lots out of 2394 to four persons, not in severalty as occupants, but as tenants in common, was a violation of the trust imposed upon him by law. He had no power to convey title to any one but to occupants. Any act of the legislature which would create a breach of such trust) is void. §11, c. 89, p. 585, Comp. Laws, 1877, attempting to give a town company or persons who select or lay out a town-site any ad* vantage over any other occupant, reviewed and held inoperative.</p>

<p>1. Husband and Wipe—Power of Married Women to Contract-Emancipated in 1864 by Comp. Laws 1877, p. 327, par. 1960, 1961, 1962, and 1963—Repealed by Implication in 1865 by Comp. Laws 1877, p. 328-332, par. 1967-1999, which Enacted the Community System—Repealed in Part in 1871 by Comp. Laws, p. 332, par. 2000, Which Provides Married Women shall Have Exclusive Control of Separate Property—Miller v. Fisher, 1 Ariz. 232, 25 Pac. 651, Criticized and Distinguished—Act of 1865 and 1871 to be Construed Together Without Regard to Act of 1864 Repealed—Woffenden v. Charouleau, Ante, 91, ' 11 Pac. Rep. 117, Charouleau v. Woffenden, 1 Ariz. 243, 25 Pac. Rep. 652, and Woffenden v. Charouleau, 1 Ariz. 346, 25 Pac. Rep. 662, Cited and Approved.—In 1864 (Comp. Laws, 1877, 327) was enacted chapter 32 of the Compiled Laws, supra, which completely emancipated a married woman, but in 1865, supra, there was enacted “An act amendatory of chapter 32, Howell Code," which, although it does not in terms amend the former law, and has no repealing clause, is a complete code of the law of husband and wife, so far as their property is concerned, and must be held to repeal the act of 1864 by implication. This statute enacted for this territory the community system—communio honorwn— which is founded in the civil law It has no dower or courtesy. By that law the property of husband and wife owned before marriage, or acquired thereafter by gift, etc., is separate property; all property acquired after marriage other than by gift, etc., is common property; the husband has power of management and control of separate property of wife but cannot sell it except by writing signed by both husband and wife, and has entire management and control of common property, with absolute power of sale and the rents and profits of separate property become common property. This system, established in 1865, remained unchanged until 1871, when the statute; supra, which provides that “married women of the age of twenty-one years and upwards shall have the sole and exclusive control of their separate property; ’ ’ and may convey lands without being joined by their husbands, was passed, repealing so much of the act of 1865 as is in conflict with it, and no more. Miller v. Fisher, supra, approved in holding that married woman may make valid contract for sale of personal property; and disapproved in reasoning that the act of 1871 by repealing part of act of 1865 thereby revived the act of 1864; Seld, that act of 1865 and 1871 must be construed together without regard to the act of 1864, which must rest repealed. Wofenden v. Charouleau cases, supra, approved in holding that the rents and profits of the separate estate of the wife are her separate property.</p> <p>2. Same—Power oe Married Woman to Contract—Under Act oe 1871 May Sell Land or Personalty Belonging to Separate Estate—Negotiable Instruments—Married Woman, Under Act Supra, has no Bower to make Contract oe Indorsement—May not Make Contract oe Guaranty—Married Women’s Acts to be Liberally Construed—Statute does not Empower her to Contract Generally.—Under act of 1871 a married woman has the power to sell her separate property without her husband joining. It is not necessary to the transfer of a promissory note that she have the power to enter into contract of indorsement, and under such statute a wife’s indorsement of a bill or note is inoperative beyond divesting her of her title therein. Neither may she make a contract of suretyship or guaranty. Married women’s acts are to be construed liberally, to further the objects to be attained. But the law does not empower her to contract generally and it cannot be extended to the making of contract of endorsement.</p>

<p>1. Public Lands—Land Office—Power of Court to Review Action of in Granting Patent Limited—Court of Equity May Grant Relief in Cases of Praud upon Contestant or Department or Mistake of Law by Department.—Where there has been a contest over issuance of patent and the land department' has determined that patent shall issue to one of the contestants the courts have no right or power to interfere unless it can be shown that .fraud or imposition was practiced upon the complaining contestant, or upon the land department, or that its officers have clearly mistaken the law applicable to the ease.</p> <p>2. Same—Same—Pindings of Pact by Department Conclusive Upon Courts.—The land department is a tribunal, appointed by Congress to decide questions like this, and when finally decided by the officers of that department the decision is conclusive everywhere else, as regards questions of facts.</p> <p>3. Same—Same—Finding that Officer is Such De Facto is Mixed Finding of Law and of Fact—Receiver as De Facto Register— What Constitutes Incumbent Officer De Facto—Right to Office Cannot be Tried Collaterally—Acts of De Facto Officer 'Valid.—The question whether Daly, receiver, was the register de facto was before the department, and if not purely a question of law or of fact, it was. clearly a mixed question of law and fact, and when decided, was at rest under the decisions cited. Where under some designation the receiver undertook to exercise, and did exercise and discharge the duties and powers of register, his absolute legal right to the office cannot be tried in a collateral manner -between third parties. Whatever might be said of the acts of a mere intruder, without any claim or color of title, it is well settled that when a person actually obtains an office, with the legal indicia of title until ousted, his official acts are as valid as if his title were not disputed.</p>

<p>1. Appeal and Error—Behearing—Practice—When Befused—Purpose of—Argument on Confined to Points Baised in Petition for.—Where neither the petition for rehearing nor the argument thereon points out any misapprehension of the record or mistake of law, this court will decline to review its former decision. It is not the office or purpose of a rehearing to reopen the whole cause, and to require of the court a reconsideration thereof. Argument of points not included in the petition for rehearing is had practice. A petition for a rehearing should state particularly the ground upon which it is asked, and if granted, the argument should be confined to those grounds.</p> <p>On, Rehearing—Former Opinion, Ante, 10.</p> <p>Dismissed on Motion.—127 IT. S. 782; 32 Law Ed. 331.</p>

<p>APPEAL from a judgment of the District Court of the Second Judicial District in and for the County of Cochise.</p> <p>The facts are stated in the opinion.</p>

<p>1. Irrigation—Action for Wrongful Diversion—Parties—Water User Though not Ditch-Owner May Maintain Action for Wrongful Diversion—Ditch-owner not Necessary Party Plaintiiff.—The owners of land irrigated by means of a ditch owned by another person, or a corporation, may have an action against one who wrongfully diverts water from the ditch.</p> <p>2 Same—Ditch-owner has Eight to Toll—Water-user to Water Upon Payment of Toll.—Though the owners of the ditch be entitled to toll for the water, the owners of the land are entitled to the water on the payment of the toll.</p>

<p>1. Constitutional Law—Legislative Power op Territory Limited by Organic Law—§ 1851, Bev. S9. U. S. 1878, (Organic Law op Ariz. Bev. St. Ariz. 1601, par. 15)—Territorial Laws Must be Consistent with Constitution—§ 1891 Bev. St. U. S. 1878 (Organic Law op Ariz. Bev. St. Ariz. 1901, par. 67) Territories Under Control op Congress—§ 3, Art. 4 Const. U. S.—The limitation upon the legislative power of the territories is the organic law which governs them. A law of the territory which is not consistent with the constitution of the United States is beyond its powers, and invalid. The territories are under the complete control of Congress.</p> <p>2. Same—Criminal Law—Procedure—Act op March 12, 1885, Providing por Prosecution by Inpormation Invalid Insopar as in Conflict with the Fifth Amendment of Constitution—Act No. 83, Laws of 1885—Prosecution by Indictment for Capital and Infamous Crimes Guaranteed by Constitution—“Infamous Crime” Defined.—Act of March 12, 1885, providing for prosecution of crimes, misdemeanors and offenses by information, invalid in so far as in conflict with the fifth amendment to the constitution of the United States, which provides that “no person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury. ’ ’ Prosecution for infamous offenses by indictment by a grand jury is as firmly guaranteed by the constitution as the right of trial by jury. A crime punishable by imprisonment for a term of years at hard labor is an ‘ ‘ infamous crime. ’ ’</p>

<p>1. Forcible Entry and Detainer—Statutory Proceeding—§ 3, 4, 5, 6, e. 43, Comp. Laws 1877, Cited—Filing Complaint with Clerk op Court and Issuance op Warrant by him not a Compliance with Statute—In Summary Proceedings Statute Must be Strictly Followed.—Where a complaint in forcible entry and detainer was filed under statute, supra, with the clerk of the district court, and a capias issued by him bearing the teste of that court, such acts not being a compliance with the statute, the warrant issued and all proceedings thereunder are void. Summary proceedings of this character, to be valid, must strictly follow the law which creates them. Their jurisdiction is limited. No intendments are in their favor.</p>

<p>APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Pima.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Cochise.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Pima.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from the District Court of the Second Judicial District in and for the County of Maricopa.</p>

<p>PETITION for allowance of appeal to the Supreme Court of the United States.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the District Court of the Second Judicial District in and for the County of Maricopa.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the District Court of the Third Judicial District in and for the County of Yavapai.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the District Court of the Third Judicial District in and for the County of Yavapai.</p> <p>The facts-are stated in the opinion.</p>

<p>APPEAL from a judgment of tie District Court of the First Judicial District in and for the County of Pima.</p> <p>The facts are stated in the opinion.</p>

<p>1. Officers—County Treasurer—Custodian of Public Funds— Trustee for the Benefit of Whatever Branch of the Government May Have Funds With Him—Failure to Pay Over Funds Subjects Him and Sureties to Action—Laws of 1883, p. 157— Territory and County Each Have Bight of Action on Bond— Shortage in Gross Fund Belonging to Both Territory and County—Equity Requires that Each Should Bear its Proportion op the Loss.—The county treasurer is a county officer, and for some purposes he is the agent of the county, but as to funds in his hands he is, in the same sense, an agent of any branch of the government whose funds he may have. He is rather the custodian of funds which he may have officially, and the trustee for the benefit of whatever branch of the government may have funds with him. A failure by the treasurer to pay over funds to whomsoever has the legal right to receive them will subject him and his sureties to action, "by the territory, or any person injured or aggrieved." Statute, supra. The territory and county have each the right to recover on his official bond. Where the present treasurer has in his hands a gross sum less than the amount due both teritory and county, and the shortage is due from his predecessor who defaulted, equity requires that each should bear its proportion of the loss.</p>

<p>MANDAMUS.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the District Court of the Third Judicial District in and for the County of Yavapai.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a Judgment of the District Court of the First Judicial District, in and for the County of Pima.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a Judgment of the District Court of the Second Judicial District in and for the County of Pinal.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a Judgment of the County Court in and for the County of Cochise.</p> <p>The facts are stated in the opinion.</p>

<p>1. Bailment—Gratüitious—Duty of Bailee—Agreement to Use Money Deposited—Relation Changed to Debtor Upon Use of Money.—'Where a bailee as matter of accommodation allows money to be deposited in his safe he is not responsible for the loss of the money through the robbery of the safe, being only bound to exercise the same care of the deposit as he is in the habit of bestowing on his own money; and if there be an agreement for the use of the money deposited, the relation of debtor and creditor commences with the use, and if the robbery took place before that time the loss must fall upon the depositor.</p> <p>2. Trial—Instructions to Jury—Ignoring Evidence.—'Where the evidence tends to show that money was deposited with defendants by plaintiff for safe keeping and defendants requested the use of the money, if they needed it, but had not used it, an instruction to the jury that if they believed that defendants had made such request and that it was for the benefit of defendants then the relation of bailor and bailee was changed to debtor and creditor whether the money was in fact used or not was erroneous.</p>

<p>APPEAL from a Judgment of the District Court of the First Judicial District in and for the County of Cochise.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a Judgment of the County Court in and for the County of Pima.</p> <p>The facts are stated in the opinion.</p>

<p>1. Fraudulent Conveyances—From Husband to Wiee—Creditors May Subject Property in Wieb’s Hands to Claims.—A conveyance of real estate by a husband to wife, in consideration of love and affection, is fraudulent as to creditors where the deed is unrecorded and the property is openly dealt with by the husband as his own, is assessed to him and he has paid, the taxes thereon, and creditors may pursue such property into the wife’s hands.</p> <p>2. Limitation oe Actions—Claims Against Estates—Comp. Laws Ariz. 1877, p. 274, par. 1647, Construed—Construction oe Statutes oe Limitations.—Failure to present a judgment claim against a decedent within the ten months allowed by the statute, supra, forever bars it as a claim against the estate proper. In the construction of statutes of limitation appertaining to various subjects reference should always be had to the object designed to be accomplished in fixing each period of limitation. It does not bar an action to subject property to judgment which was and is a specific lien upon property fraudulently conveyed by decedent to his wife, such conveyance being good as between the parties and divesting the estate of title.</p> <p>3. Fraudulent Conveyances—Executors and Administrators—Not Necessary Party to Suit to Subject Property Fraudulently Conveyed by Intestate—Comp. Laws Ariz. 1877, p. 290, par. 1719-1720, Construed.—An executor is not a necessary party to a suit to subject property, fraudulently conveyed by his testator, to the payment of a debt of a judgment creditor. Statute, supra, construed.</p> <p>Barnes, J., concurring specially, construes Comp. Laws Ariz. 1877, p. 274, pari 1647.</p>

<p>APPEAL from a Judgment of the District Court of the First Judicial District in and for the County of Cochise.</p> <p>The facts are stated in the opinion.</p>

<p>Original application for writ of Mandamus.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a Judgment of the District Court of the First Judicial District in and for the County of Pima.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a Judgment of the District Court of the Second Judicial District in and for the County of Maricopa.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a Judgment of the District Court of the Third Judicial District in and for the County of Yavapai.</p> <p>The- facts are stated in the opinion.</p>

<p>APPEAL from, a Judgment of the District Court of the Second Judicial District in and for the. County of Maricopa.</p> <p>W. W. Porter, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a Judgment of the District Court of the Third Judicial District in and for the County of Yavapai.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a Judgment of the District Court of the Third Judicial District in and for the County of Yavapai. James H. Wright, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a Judgment of the District Court of the Third Judicial District in and for the County of Yavapai. W. W. Porter, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a Judgment of the County Court in and for the County of Cochise. Webster Street, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Findings—Responsive to Issue—Equity—May Grant Less Relief Than Prayed in Complaint.—Findings that the amount of water appropriated was less than that claimed in the complaint are responsive to the issue raised by a denial of the allegation of appropriation. A court of equity is not bound by the exact measure of the relief asked, and may grant less in accordance with the proof.</p> <p>2. Water and Water Courses—Riparian Rights—Appropriation-Vested Rights—Ownership of Land Immaterial to Right of Appropriation.—Riparian rights are the same in Arizona as else-, where, wherever they apply, but they are subject to intervening rights of prior appropriators, who acquire vested rights in waters. It is immaterial whether or not plaintiffs owned their land at the time their appropriation was initiated.</p> <p>3. §§ 2339-2340 Rev. St. L. S. 1878 Cited and Construed.</p>

<p>Petition for alternative writ of mandamus.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a Judgment of the District Court of the First Judicial District in and for the County of Pima. Wm. EL Barnes, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>' APPEAL from the District Court of the Third Judicial District in and for the County of Yavapai. J. C. Shields, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Principal and Surety—Defalcation—False Report by Principal—Sureties Estopped.—In an action upon a treasurer’s official bond, to recover a shortage his sureties are estopped from denying the truth of their principal’s reports, as to amount of money on hand made just prior to the execution of the bond and during its life, for the purpose of showing that the defalcation occurred during his previous term.</p>

<p>1. Court—Supreme Court—Adjourned Terms—Rev. St. T7. S. 1878, Sec. 1934, Construed.—An adjourned term of the Supreme Court, held pursuant to an order signed by a majority of the judges, under Rev. St. U. S., Sec. 1934, is a distinct and separate term and not merely an adjourned session of the same term.</p> <p>2, Appeal and Error—Transcript—Leave to Pile—Showing Sufficient—Rev. St. Ariz. 1887, par. 938, Cited.—Under par. 938, supra, where a party is unable to file his transcript in the time limited therein, frbm any unavoidable cause, the court shall, upon satisfactory proof thereof, permit such transcript to be filed at a later period: Held, appellant’s showing on a cross-motion for leave to file the transcript sufficient.</p>

<p>1. Appeal and Error—Conflict of Evidence—Verdict of Jury Will Not be Disturbed.—Where the testimony is contradictory this court will not disturb the verdict of a jury.</p> <p>2. Trial—Suit in Equity—Verdict of Jury Advisory.—In a suit in equity a verdict of the jury is only advisory.</p>

<p>1. Irrigation—Notice op Appropriation—Evidence—Eppect op—Reasonable Time por Completion op Work—Evidence op Intent to Appropriate.—While mere posting of notice of appropriation, unaccompanied by work, is insufficient to constitute an appropriation, yet it tends to show that, in accordance therewith, the work was done. Where one has done no work, but has taken all the preliminary steps for the construction of his ditch, he should have a reasonable time therefor. The building of a house on land worthless without water is evidence of intent to appropriate.</p> <p>Rev. St. IT. S. 1878, § 2339, Rev. St. Ariz. 1887, par. 3201, Cited.</p>

<p>APPEAL from a Judgment of the District Court of the First Judicial District in and for the County of Pima. Wm. H. Barnes, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Mines and Mining—Sale—Recovery of Consideration—Defendant Estopped to Dispute Title—Evidence of Location and Assessment Work.—Where grantors seek to recover the consideration for the transfer of unpatented mining claims a defendant holding under them, with knowledge of their title, cannot dispute it and such grantors need not show that they had complied with the mining laws in the matter of location of claims and annual labor thereon.</p> <p>2. Limitations of Actions—Enforcement of Trust—When Action Accrues.—Where H. was made trustee of the title to certain mines for the purpose of organizing a corporation and distributing the stock among the owners after. disposing of a certain part for working capital, the grantors were entitled to their stock when the company was organized and this stock set apart to this purpose. The statute of limitations does not begin to run in such a case. H. holds this stock in trust for the plaintiffs.</p> <p>Affirmed with Costs, for Want of Prosecution. 154 tT. S. 505, 38 L. Ed., 1082, 14 Sup. Ct. Eep. 1147.</p>

<p>APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Pima. Wm. H. Barnes, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Set-Off and Counterclaim—Suits by United States—Rev. St. U. S. 1878, Sec. 951, Construed—Evidence.—In a suit by the United ' States against an individual under Sec. 951, supra, a claim for credit, submitted to the accounting officers of the treasury and disallowed in whole or in part may be pleaded as a counterclaim. Under this section legal evidence to prove the claims is admissible. By Sec. 886,' Rev. St. U. S. 1878, authenticated transcripts are properly received as evidence.</p> <p>2. Same—Same—What Constitutes Proper Set-Off—Rejection of Claim—Accounting Officers—Action of But Prima Facie Evidence.—The purchase of supplies by order of the commissioners of Indian Affairs and the performance of certain services and the incurring of certain expenses, all in a proper account, with vouchers presented to and rejected in whole or in part by the proper accounting officers, is a proper set-off in a suit by the government. The action of the accounting officers is only prima facie evidence, and not final.</p>

<p>APPEAL from a Judgment of the District Court of the First Judicial District in and for the County of Pima. Wm. H. Barnes, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a Judgment of the District Court of the Third Judicial District in and for the County of Yavapai. James H. Wright, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Banks and Banking—Successors in Business—Estoppel—Depositors.—Where one banking firm has succeeded another, paying and-collecting the accounts of its predecessor, assuming its obligations, taking and continuing to use its books until the necessities of the business required a new set, it is estopped to deny its indebtedness to á depositor with the old firm who acquiesced in the change of firms, permitted his funds to remain with the new firm, and was treated by the successor as its depositor.</p> <p>2. Joint Debtors—Release—Rev. St. Ariz. 1887, sec. 133, Cited.— A release of the foriher firm by the depositor does not operate as a release of the latter upon the principle that the release of one joint debtor is a release of all. Statute, supra, repeals this doctrine and enacts that the release of one joint debtor does not re. lease the other. The contracts of each firm were separate obligations.</p> <p>3. Limitations of Actions—Deposits in Bank—Statute Buns Prom Demand.—When a bank holds the funds of a depositor subject to call at any time, the contract is to pay on demand, and the statute of limitations does not begin to run until demand.</p>

<p>APPEAL from the District Court of the First Judicial District in and for the County of Cochise.</p>

<p>APPEAL from the District Court of the First Judicial District in and for the County of Cochise.</p>

<p>APPEAL from the District Court of the First Judicial District in and for the County of Pima.</p>