Volume 2 — Idaho Reports

The facts are sufficiently stated in the opinion. The answer does not state°facts sufficient to constitute a defense, and may be raised in supreme court for first time, citing Haskell v. Moore, 29 Cal. 437. The averment of tender in the answer is insufficient, as there is no allegation that the tender was kept good. (Jouett v. Wagner, 2 Bibb, 269, 5 Am.

<p>Passage of Act — Approval by Governor — Statutory Construction. The words “passage of the act” in a statute mean its approval, or the time when the act takes effect.</p> <p>Actions — Limitations—Bar of Statute. — An act limiting the time within which an action may be commenced provided that causes of action which had theretofore accrued might be commenced within the whole time allowed by-the statute after its passage. Held, that the bar of the statute did not begin to run until the statute took effect.</p> <p>Limitation of Actions — Doubt Kesolved in Pavor of Creditors.— It is a well-settled rule that when there is doubt as to the time when the limitation of an action begins to run under a statute, that construction must be given which is most favorable to the common-law rights of the citizen.</p>

The court erred in defining the crime of murder. When the court instructs the jury to find that the circumstances of the killing showed an abandoned and malignant heart from some or any of the circumstances, while the statute requires them to find it from all the circumstances, the instruction is erroneous. Where considerable provocation appears, there is no implied malice.

The defendant was not within the jurisdiction of the court; it then becomes the duty of the respondent to show that personal jurisdiction was acquired at the time the judgment was rendered. If this is done by publication, it must appear that all the requirements of the statute were strictly complied with. (Galpin v. Page, 18 Wall. 350; S. C., 3 Saw. 103, Fed. Cas. No. 5206; Neff v. Pennoyer, 3 Saw. 295, Fed. Cas.

<p>APPEAL from District Court, Oneida County.</p> <p>No briefs were filed in this case.</p>

<p>Appeal — Statutory Right. — The right to appeal, and the manner of perfecting it, is wholly dependent upon our territorial statutes.</p> <p>Appealable Judgment — Order of Board of County Commissioners. — No appeal will lie from the judgment of the district court upon an appeal to the district court from an order made by the board of county commissioners . determining the result of an election.</p> <p>Same — Writ of Error. — In such case the remedy is not by appeal but by writ of error; and, aided by bills of exceptions, writs of error furnish a complete and perfect means of bringing causes from an inferior court to the appellate court for review, and for the' correction of errors.</p>

Affirmed. The court below, on motion, instructed the jury to find for the defendant, on the ground that the claim of appellant had not been presented to the administrator in the manner provided by law. The motion should have been denied. No laches can be imputed to the public. (1 Blaekstone’s Commentaries, Cooley’s ed. 247; Troutman v. May, 33 Pa. St. 455; People v. Gilbert, 18 Johns. 227; Wallace v. Miner, 6 Ohio, 367; Munshower v. Patton, 10 Serg, & E. 334, 13 Am.

<p>Ultra Vires — Corporate Powers. — A corporation, as a general rule, can only exercise such powers as are specifically granted by the act of incorporation, or such as are necessary for the exercise of such powers, all other acts being ultra vires.</p> <p>Same. — A corporation whose charter authorizes it to engage in the business of mining and smelting is not authorized to purchase choses in action, as such act is not neeessary to the business of mining and smelting.</p>

<p>Appealable Orders. — An appeal will not lie from a judgment of the district court, in common-law actions or proceedings, unless it is expressly allowed by statute.</p> <p>Writ oe Error — Parties are Privies. — No one can sue out and maintain a writ of error unless he is a party or privy to the record, or is prejudiced by the judgment.</p> <p>Appeal — Continuation op Case — Change op Court. — An appeal is not the commencement of a new action or proceeding, but a continuation of the same case, action or proceeding, being only transferred from one court or tribunal or body to another, for final trial and judgment.</p> <p>Title op Action — Interested Parties. — Courts will look beyond the mere title of an action or proceeding for the purpose of determining who are interested and affected as parties.</p> <p>(Syllabus by the court.)</p>

No brief on file. The only question that can be considered here is, Did the district court err in refusing to hear the case de novo upon questions of fact or to hear argument of counsel upon the questions of law raised by the demurrer?

<p>Practice — Service oe Papers — Statutory Construction. — Section 685 of our Code of Civil Procedure wliicli provides that service of papers may be made by leaving the same in the office of an attorney in a conspicuous place, etc., is in derogation of the common law, and must be strictly construed.</p> <p>Proof of Service. — An affidavit in proof of such service must state that all the conditions of the statute authorizing such service have been substantially complied with or it will be disregarded.</p> <p>(Syllabus by the court.)</p>

We maintain that the district court erred in overruling the motion of plaintiffs in error to dismiss Van Camp’s appeal from the board of equalization, and that said court had no jurisdiction to render its judgment in the ease: 1. Because the order of the board of equalization was not appealable.

<p>APPEAL from District Court, Ada County.</p> <p>The rule is, upon a motion for a new trial on the ground of newly discovered evidence, if it is probable that the verdict would be changed, or if it is doubtful how it would affect the verdict, the motion should be granted. (Jones v. Hartley, 3 Whart. 189; Windham, Go. Bank v. Kendall, 7 E. I. 77; Flanna-gan v. Newherg, 1 Idaho, 78'; 3 Graham & Waterman on New Trials, 1044; State v. Logan, 1 Nev. 509.) In capital cases, when upon a review of the whole testimony the court is not satisfied with the verdict, a new trial will be granted. (9 United States Digest, p. 635, see. 2643; Baines v. State, 33 Ga. 571; 9 United States Digest, see. 2648; Falk v. People, 42 Ill. 331; Manuel v. People, 48 Barb. 548; 9 United States Digest, •635, sec. 2658; 9 United States Digest, 636, see. 2668; State v. Packwood, 26 Mo. 340.) The court erred in refusing defend-ant’s instruction, viz.: “If the evidence introduced by the prosecution to establish the guilt of defendant be regarded by the jury as circumstantial, and the circumstances of themselves doubtful, the jury must examine and inquire very closely into the adequacy of defendant’s motive for committing such an offense as charged.” (1 Parker’s Criminal Eeports, p. 655; also ■p. 32.) To refuse such instructions as properly arise upon the record is error. (3 Graham & Waterman on New Trials, 710.)</p> <p>A new trial should not be granted on the ground of newly discovered evidence unless there is either a total deficiency of evidence or it preponderates so greatly against the verdict as to Tender it clear that the jury acted under the influence of passion or prejudice. (People v. Manning, 48 Cal. 337.) It must be shown that newly discovered evidence could not have been obtained by reasonable diligence, that it is material, not merely cumulative and corroborative or collateral. (Hilliard on New Trials, 375.) Where the evidence is conflicting, the verdict will not be set aside. (Mootry v. Hawley, 1 Idaho, 543; Ainslie v. Idaho etc. Printing Go., 1 Idaho, 641; People v. Gill, 45 Cal. 285; Giles v. State, 6 Ga. 276; 1 Archibald’s Criminal Practice, 664.) In criminal cases, the presumption is in favor of the verdict. (Waller v. State, 4 Ark. 87; 1 Archibald’s Criminal Practice, 663, note b; 3 Graham & Waterman on New Trials, 240.)</p>

<p>Burglary — Statutory Construction. — In section 59, Crimes and Punishments, Revised Laws, page 332, wherein it provides that “every person who shall in the night .... break and enter in a dwelling-house or tent with intent to commit murder, robbery, mayhem, larceny or other felony,” the term "larceny” applies alike to grand and petit larcenies.</p> <p>Indictment — Value oe Property. — In an indictment for burglary drawn under the statute it is not necessary to allege the value of the property intended to have been stolen.</p> <p>Motion and Arrest op Judgment — Objections to Indictment._</p> <p>Objection to an indictment “that it does not substantially conform to sections 233 and 234 of the Criminal Practice Act” cannot be taken advantage of upon a motion in arrest of judgment, under section 426.. Such objections, if made at all, must be made by •demurrer under section 285 as limited by section 293.</p> <p>(Syllabus by the court.)</p>

On behalf of the appellant we submit this case upon the authority of Harkness v. Hyde, 98 U. S. 476. The court is familiar with the origin and history of that case, as well as the principles laid down in the decisions.

Plaintiff was entitled to judgment upon the pleadings, as the answer is evasive and raised no issue. (Code Civ. Proc., sec. 237, subd. 2, see. 259; Higgins v. Wortell, 18 Cal. 330; Fitch v. Bunch, 30 Cal. 208; Kuhland v. Sedgwick, 17 Cal. 123; Boll v. Good, 38 Cal. 287; Norris v. Glenn, 1 Idaho, 590.) No proof of damages was required -as no issue was made upon that point. Defendant undertakes to deny the character of the act, and does not deny the act itself.

<p>CONVEYANCE — Deed—MORTGAGE—CONSTRUCTION OF CONTRACT. — !A deed absolute on its face given by A to B for real estate therein described, and a bond given by B to A, agreeing to convey to A a portion of tbe same property at a stipulated time, although given on the same date and for the same price, if not intended to be a mortgage or security for money by the parties themselves and not appearing to be such on the face of the instrument, ■will be held to be an absolute bargain and sale, and not a mortgage.</p> <p>Contract — Construction—Intention of Parties — Evidence.—The intention of the parties is to be ascertained — 1. From the instruments themselves; 2. From parol testimony, and, when ascertained, will be carried out by the courts.</p> <p>Lex Loci — Question of Usury. — The question as to whether a note which is made and delivered in Utah is usurious or not is to be decided by the laws of Utah.</p>

<p>Bill of Exceptions — Ex Paste Motion to Strike. — A bill of exceptions may not be stricken out of the transcript upon appeal upon the ground that the same was not served upon the adverse party prior to settlement.</p> <p>Presumptions. — The presumption is that the district court acted regularly in settling a hill of exceptions.</p> <p>Overcoming Presumptions — Evidence—Motion to Strike. — To overcome the presumption of regularity in the action of the trial court in settling a bill of exceptions by showing that the bill was settled without having been served upon the adverse party, proof of the failure of such service must be made, upon due notice to the adverse party.</p> <p>Service of Notice — Attorneys.—The affidavit of one attorney to the effect that a bill of exceptions was not served upon the respondent prior to its settlement is not sufficient in a case where the respondent was represented by two attorneys, as in such ease the ' affiant can actually know only of such failure of service upon himself, and can only entertain a belief as to service upon his co-counsel.</p>

<p>Criminal Law — Appeal—Reviewing Evidence. — On an appeal from the judgment only, the court cannot inquire whether the verdict is supported hy the evidence; this can be done only upon an appeal from the order denying a new trial.</p> <p>Homicide — Evidence.—In case of a homicide committed by the defendant where the fatal shot was fired while the deceased was retreating and after all danger from him was over, and while defendant was pursuing him, then the defendant is guilty of murder or manslaughter, as the case may be.</p> <p>Instruction — Witnesses.—An instruction as to the credit that should be given to a witness, and one that the same weight should be given to the testimony of defendant when corroborated, as to that of any other witness, invades the province of the jury and is properly refused.</p> <p>Homicide — Defense of Wife — Evidence of Reputation. — When the defendant seeks to justify a homicide on the ground that the killing was necessary to protect the person of his wife, evidence on the part of the prosecution tending to show the bad character of the woman alleged to be the wife of the defendant, and that she kept a house of prostitution, with a view of showing that the deceased was upon the premises for purposes other than felonious, is proper.</p> <p>Instructions — Motive.—An instruction that if the jury believe from the evidence beyond a reasonable doubt that the defendant killed deceased on account of a desire for revenge for some real or imagined injury, then defendant is guilty of murder, is proper.</p> <p>Inexcusable Homicide — Pursuing Deceased. — When the deceased was slain while endeavoring to escape from the defendant, and had succeeded in -wholly withdrawing in good faith from the vicinity of the defendant and his house, and all danger to the person of defendant, to his habitation, or anyone residing therein was over, then the killing can neither be justified, excused or mitigated by declarations of defendants, made to another person shortly before the homicide, and evidence thereof was properly refused.</p> <p>(Syllabus by the court.)</p>

The grounds of this appeal are: Error of the court in permitting the witness Williams, over the objections of defendant, to testify to statements of… Held: error, citing Jane v. Commonwealth, 2 Met. (Ky.), 30; State v. Oscar, 7 Jones (N. C.), 305; People v. Brannan, 47 Cal. 96; State v. Dineen, 10 Minn. 407; Gilf. ed. 326, 333, 334; State v. Shettleworth, 18 Minn. 209, 216; Gilf. ed. 191, 195; 14 Cent. L. J. 447; Commonwealth v. Webster, 5 Cush. 319, 320, 52 Am. Dee. 711.

<p>Challenging Juror — Practice—Criminal Law — Under our Criminal Practice Act the method of impaneling a trial jury in a criminal action is different from that of impaneling a trial jury in a civil case under our Code of Civil Procedure. In a criminal action the court may require the parties to exercise all their challenges peremptorily, or for cause, and .the juror, if accepted, be sworn to try the cause as each juror appears and before another is called, or may, in its discretion, allow the clerk to draw from the box twelve names before any challenges are interposed, and after these are examined' for cause and passed upon draw others to take the place of those excused and allow the parties to examine and pass upon all thus called before exercising their peremptory challenges, provided that in case of recess or adjournment, the peremptory challenges be exercised as to those passed and accepted for cause at the time of taking recess or adjournment, and those not excused be sworn to try the cause and thus placed under the control of the court.</p> <p>Same. — The court may, for good cause shown, permit a challenge, either peremptory or for cause, to be taken after a juror is sworn and before the jury is completed.</p> <p>(Syllabus by the court.)</p>

On the twenty-seventh day of December, 1882, the defendants, by their attorneys, appeared and demurred to the complaint (see Transcript, p. 43), which demurrer was overruled by the court.

In this case there is nothing in the briefs of either party on the point upon which the cause was dismissed, to wit, want of an undertaking on appeal.

The following are the errors assigned by defendant in his statement on motion for new trial, and are used as the specification of error on this appeal: 1. The verdict is not sustained by the evidence, in that plaintiff admitted notice of the vendor’s indebtedness and knowledge of Frank Brothers’ judgment ■ against him before the purchase of the property, and made no inquiry 'as to the effect of his (plaintiff’s) -purchase upon Stroup’s creditors; 2.

The court erred in overruling defendants’ demurrer to the complaint. The common counts cannot all be united in one count as one cause of action, without any specification of the sums due upon each cause. (Buckingham v. Waters, 14 Cal. 147; McCarty v. San Francisco etc. It. R. Co., 41 Cal. 17; White v. Cox, 46 Cal. 169.) A complaint for money had and received which fails to allege a demand is bad on demurrer.

A demand of the specific thing agreed to be performed by the covenant must be alleged and proved, otherwise no cause of action is stated. (Nelson v. Bostwick, 5 Hill, 37, 40 Am.. Dee. 310.) Sureties to an instrument cannot be charged or affected beyond the plain and necessary import of their undertaking; nor can a new term or condition be added to their stipulation.

The verdict of a jury will always be set aside, if the court should erroneously instruct the jury in a matter of law, which might have influenced their verdict. (Bolyss v. Davis, 1 Pick. 206; Sate v. Conbie, 12 Pick. 177; Boyden v. Morris, 5 Mass. 365; Dundey v. Livier, 5 Mass. 438.) The drunkenness of a juror during the trials, and his sleeping in consequence, was good cause for setting aside the verdict, and the court should have made such an order.

It does not appear from the complaint that the taxes were paid under protest or that the money was not paid voluntarily. The contents, or at least the substance of the notice of protest, should be stated, so the court may determine whether the same is sufficient in law.

It is not sufficient to find upon a probative fact, from which it might be argued that' the court below was of a certain opinion as respects one of the ultimate facts.

The names of defendants, John Doe and Eichard Eoe, are fictitious, and it is nowhere alleged in the complaint that their real names are unknown.

The owner of mining ground has a right to prohibit the erection, construction, or maintenance of any cut, ditch, or embankment upon his ground, and to remove the same, or any other obstruction placed or constructed thereon, without this express permission, unless the right is given by some mining custom or regulation.

<p>Peactice — Void Undertaking on Appear. — When an appeal is taken from the judgment, also from an order refusing a new trial in the same ease, and an undertaking given in the sum of three hundred dollars in such an appeal, the bond is void and the appeals should be dismissed.</p> <p>Same — Presenting New Bond on Appear. — When an undertaking on an appeal is void, the filing of a new and sufficient undertaking at the hearing of motion to dismiss the appeal will not avail the appellant.</p>

<p>APPEAL from District Court, Alturas County.</p> <p>An erroneous instruction is not cured by another instruction upon tbe same subject, which is correct, unless the former is specifically withdrawn. {MacKey v. People, 2 Colo. 13; Murray v. Commonwealth, 79 Pa. St. 311; Rice v. dim, 79 Pa. St. 391; Toledo etc. R. Co. v. Shuckman, 50 Ind. 42; Thompson on Charging the Jury, sec. 69; Harrison v. Spring Valley etc. Co., 65 Cal. 376, 4 Pac. 381.) The giving of inconsistent instructions is error, for the reason that the jury will be as likely to follow the one as the other. {Henschen v. O’Bannon, 56 Mo. 289, 292; Pond v. Wyman, 15 Mo. 175, 181; Chicago etc. R. Co. v. Payne, 49 Ill. 499; Clem v. State, 31 Ind. 480; Selin ¶. Snyder, 11 Serg. & R. 319; People v. Campbell, 30 Cal. 312.)</p> <p>A party who negligently or culpably stands by and allows another to contract on the faith and understanding of a fact which he can contradict cannot afterward dispute that fact in an action against the person who has himself assisted in deceiving. {Anderson v. Armstead, 69 Ill. 452; Stewart v. Munford, 91 Ill. 58; Mayer v. Br'lchardt, 88 Ill. 542; Nichols v. Pool, 89 Ill. 491; Lewis v. Lanphere, 79 Ill. 187; Kinnear v. Mackay,-85 Ill. 96; Sebright v. Moore, 33 Mich. 92; McNeil v. Bank, 46 N. Y. 325, 7 Am. Rep. 341; Moore v. Bank, 55 ]ST. Y. 41, 14 Am. Rep. 173; McStea v. Matthews, 50 N. Y. 166; Dewey v. Field> 4 Met. (Mass.) 381, 38 Am. Dec. 376, and note.)</p>

Tbe court erred in overruling appellant’s motion to quash service of summons on him, and in sustaining respondent’s motion to quash appellant’s motion, and for this purpose appellant could appear specially. {Deidesheimer v. Brown, 8 Cal. 340; Gray v. Hawes, 8 Cal. 569; Lyman v. Milton, 44 Cal. 631; Kent v. West, 50 Cal. 185; Linden Gravel Min. Go. v. Sheplar, 53 Cal. 245; Lindler v. Flemming, 47 Cal. 614; Elbridge v. Kay, 45 Cal. 49; Lung Chung v. N. P. B. B. Co. (TJ.

<p>Homicide — Statutory Definition of Murder. — The statutory definition of murder of the first degree is a distinct and substantive definition, and excludes therefrom certain homicides which would be murder at common law.</p> <p>Indictment — Language of Statute. — An indictment for murder in the first degree must be substantially in the language of the statute defining that degree of the offense.</p> <p>Same — Common Law. — An indictment for murder which would be sufficient at common law is not necessarily so for murder of the. first degree under the statute.</p> <p>Same — Criminal Pleadings — Practice.—The indictment for- murder need not name the degree, but must show by a statement of facts substantially in the language of the statute the’highest grade of the offense for which the party charged is to be tried, and then a conviction may be had for any lower degree included therein.</p> <p>Indictment — Sufficiency of — Questioning on Appeal. — The indictment must support the judgment, and this question may be raised for the first time in the supreme court.</p> <p>Same — Verdict—Modified Verdict — Presumption on Appeal,— Where the indictment sufficiently charges murder in the second degree, and the verdict is “guilty of murder of the first degree as charged,” and there is no claim that the verdict is not supported by the evidence, and no other error appearing, the supreme court may treat such verdict as a verdict for murder in the second degree and modify the judgment of the court below accordingly.</p> <p>(Syllabus by the court.)</p>

The court erred in refusing defendant’s' motion for a non-suit; the crime proven was rape, if. anything, having been committed by force. (De Groat v. People, 39 Mich. 124; People v. Jenness, 5 Mich. 305, 321; People v. McDonald, 9 Mich. 150; People v. Hanidan, 1 Park. Or.

<p>APPEAL from District Court, Alturas County.</p> <p>The referee failed to find upon all the material issues raised by the pleadings and the plaintiff was entitled under the code, as a matter of right, to such findings, and such failure is ground for reversal. (Hayne on New Trial and Appeal, sec. 239, subd. 2, p. 718, and eases cited.) A judgment based upon findings which do not determine all the issues raised by the pleadings is a decision against law, for which a new trial may be had. (Knight v. Roche, 56 Cal. 15; Brown v. Burbank, 59 Cal. 535; Soto v. Irvine, 60 Cal. 436.)</p> <p>The finding need not be directly and pointedly made that each of the several allegations of the complaint or the answer is, or is not, true, but if the court finds such facts as will be sufficient to necessarily determine every material issue in the cause, the requirement of the law in that respect will be satisfied. (Hayne on New Trial and Appeal, 723; Schroeder v. Jahns, 27 Cal. 281.)</p>

A pre-emptor of public land cannot mortgage his interest before entry. (1 Jones on Mortgages, sec. 177.) The act of acquiring title by pre-emption is a personal privilege; but the applicant cannot transfer any right arising from his possession so as to vest it in another.

“When the facts show clearly that the rights involved in the controversy and the remedies demanded are purely legal, and completely within the scope of ordinary legal proceedings, the court of equity will itself take the objection at any stage of the cause, and will dismiss the suit, although no objection has in any way been raised by the parties.” (1 Pomeroy’s Equity Jurisprudence, 114, 116; Eipp v. Babin, 19 How. 67, 271, 278; Parker v. Winnipissogee Go., 2 Black, 545,…

The judgment must accord with, and be warranted by, the pleadings of the party in whose favor it is rendered. A judgment that is not supported by the pleadings is as fatally defective as one which is not sustained by the evidence. (Bach-man v. Sepulveda, 39 Cal. 688.) When a judgment is rendered upon the default of the defendant, the judgment must follow the prayer of the complaint.

Mandamus is the proper remedy to enforce the performance of this duty, by the auditor, where, as is the case under the law of this territory, the duty is purely ministerial. (High on Extraordinary Legal Eemedies, sec 104, note 1, and sec. 17; Turner v. Melony, 13 Cal. 621; Babcock v. Goodrich, 47 Cal. 488.) The facts admitted by respondent’s answer must be considered in connection with facts found by the court, and given the same weight as the findings.

The act of the thirteenth session, known as the Prison Commission Bill, is invalid for the following reasons: l; The commission is illegally organized, being in violation of section 1857 of the Eevised Statutes of the United States; 2. The tenth section of the act is in violation of sections 1892 to 1895 of the Eevised Statutes of the United States, as amended.

A complaint in an action against the administrator of an estate that does not allege that any claim for the amount demanded was presented to the administrator for allowance, and that it was rejected, and that action was commenced within the statutory period after rejection, should be dismissed, as stating no cause of action. (Prob. Prac. Act, secs. 131, 136; Eev.

Goods are not in custody of the law until in possession of some officer or servant of a court under or by virtue of some writ or order. (6 Wait’s Actions and Defenses, p. 617; BucTcley v. BucTcley, 9 Nev. 379.) The goods not being in custodia legis, an action of replevin was the proper remedy and the one provided by the code. (Idaho Code, e. 16; Wells on Replevin, see. 16; Jones on Chattel Mortgages, sec. 442.)

<p>APPEAL from District Court, Nez Perees County.</p> <p>No briefs on file.</p>

Tbe notice of appeal must be served before the undertaking is filed. (Hastings v. Halleck, 10 Cal. 32; Hewes v. Oarville Mfg. Co., 62 Cal. 518; Shissler v. Crooks, 1 Idaho, 369; People v. Hunt, 1 Idaho, 371; Clark v. Lowenberg, 1 Idaho, 654.) The order of filing or serving notice of appeal or filing undertaking on appeal is immaterial, so that all the steps necessary to perfect the appeal are taken within the thirty days specified in the statute.

In a joint action against copartners as such, on a contract, the action must stand as to all or none, and that in such easels the common-law rule is the law. And further, that even under the code the same rule obtains as to the action.

The court erred in submitting to the jury the special issues before the equitable issues in the action had been disposed of, and before the right of respondents to recover, or to any damages or relief had been determined.

It is immaterial that the parties call the contract a lease if it shows a sale was intended. Held: and deemed a covenant real, running with and binding the land. In witness whereof the said parties have hereunto set their hands and. seals this nineteenth day of September, 1882. (Signed) “GEO.

. Norman H.Camp was convicted of embezzling government money intrusted to him as assayer, and appeals. The burden of proof rested upon plaintiff to show every single circumstance essential to the conclusion that defendant was guilty. {Sumner v. State, 5 Blackf. 579, 36 Am. Dec. 561; Commonwealth v. Webster, 5 Cush. 295, 52 Am. Dec. 711; 1 Starkie on Evidence, 571.) And the burden of proof never shifts. {Commonwealth v. McKie, 1 Gray, 61, 61 Am.

Pending proceedings for divorce, a proper ease of emergency being shown, may be enjoined from interfering with the custody of the children or of property in the possession of the wife. (Bose v. Rose, 11 Paige Ch. 166; Vanzant v. Vanzant, 23 Ill. 536; Errissman v. Errissman, 25 Ill. 136.) Temporary alimony must be limited to the actual wants of the wife. (Ger-mond v. Germond, 4 Paige, 643.) Where the wife has a separate income, alimony for support denied.

As to wben a general verdict will be set aside on tbe ground of inconsistency between special verdict and the general verdict. (Baylis v. Travelers’ Ins. Co., 113 U. S. 316, 5 Sup. Ct. Eep. 494.) When held that an action to embrace a mechanic’s lien is an action at law.

It is not only the moral, but the legal, duty of a party who seeks redress for another’s wrongs to use due diligence in preventing loss thereby.

When a writ is directed to an improper officer, but executed by a proper officer, the error in tbe direction does not vitiate the writ, and may be cured by amendment. (Walden v. Davidson, 15 Wend. 578; Hearsey v. Bradbury, 9 Mass. 95; Rollins v. Rich, 27 Me. 557; Campbell v. Stiles, 9 Mass. 217; Bronson v. Earl, 17 Johns. 63.) A writ of execution directed to the sheriff, but handed to a constable and executed by him, is valid. .{Blanchard v-. Waters, 10 Met.

Defendant claims that when he made the purchase the Snow Ely was of no value, and the Davitt of small value; this only goes to the extent, and not to the fact and quality, of the fraud.Here, also, his acts refute his word, for soon afterward he bought and paid $1,000 for a quarter of the latter without any new developments in either claim.

No brief on file. A party who negligently or culpably stands by and allows another to contract on the faith and understanding of a fact, which he can contradict, cannot afterward dispute that fact in an action against the person who has himself assisted in deceiving.

<p>Heárd upon agreed statement of facts.</p> <p>No briefs filed.</p> <p>No attorneys named in record.</p>

An affidavit on motion for a new trial that is not sworn to is not sufficient. (McDermaid v. Russell, 41 Ill. 489; Ladow v. Groom, 1 Denio, 431; People ¶. Sutherland, 81 N. Y. 5-8; Knight v. Elliott, 22 Minn. 551; Tunis v. Withrow, 10 Iowa, 307, 77 Am.

The consolidation and trial of the two causes as one case was unauthorized by law and improper, even with the consent of parties.

A judgment based upon findings which do not determine all the issues is a decision against law.

<p>APPEAL from District Court, Nez Perces County.</p> <p>A dedication of a street must be by the owner of tbe land or of an interest therein. (2 Dillon on Municipal Corporations, sees. 635-637; Irwin v. Bixion, 9 How. 10; Lee v. Lake, 14 Mich. 12, 90 Am. Dec. 220; Leland v. Portland, 2 Or. 46; Baugan v. Mann, 59 Ill. 492; Bovaston v. Payne, 2 Smith Lead. Cas. 95; Betroii v-. Railroad Go., 23 Mich. 173; United States v. Chicago, 7 How. 185.) There must be an intent upon the part of the owner to dedicate, and this intent should clearly and satisfactorily appear. (Irwin v. Bixion, 9 How. 10; San Francisco v. Ganavan, 42 Cal. 541; Fisk v. Havana, 88 Ill. 208; Grube v. Nichols, 36 Ill. 92; Rees v. Chicago, 38 111. 322; 2 Dillon on Municipal Corporations, 636, note 4, and cases there cited.) To constitute an implied acceptance, repairs must be made and ordered, or knowingly paid for by the authority which has legal power to adopt the street. (State v. Bradbury, 40 Me. 154; City of Oswego v. Oswego Canal Co., 6 N. Y. 257; Bridge Co. v. Bachman, 66 N. Y. 261; Town of Bayton v. Town of Rutland, 84 Ill. 279, 25 Am. Bep. 457; People v. Jones, 6 Mich. 176; Guthrie v. New Haven, 31 Conn. 308; Bes Moines v. Hall, 24 Iowa, 234; Requa v. Rochester, 45 N. Y. 129, 6 Am. Bep. 52; Wisby v. Bonte, 19 Ohio St. 238.) The jury are the exclusive judges of the facts, and it is erroneous for the court to assume, in its instructions to the jury, that a certain fact exists, and then submit to them the question whether or not it does exist. (Caldwell v. Center, 30 Cal. 539, 89 Am. Dec. 131; Wood v. Tomlinson, 53 Cal. 720; Bradley v. Lee, 38 Cal. 362; Crawford v. Roberts, 50 Cal. 235; McNeil v. Barney, 51 Cal. 603; Stone v. Mining Co., 52 Cal. 315.)</p> <p>If the right to injure is claimed as a punishment for traveling on the Sabbath, this right does not belong to the city of Lewiston. “Vengeance is mine; I will repay, saith the Lord.” (Bible, tit. “Bomans,” e. 12.) If the right to punish respondent is claimed by appellant for his earning his subsistence by assisting to harvest a wheat crop on the Sabbath, we cite: “It is lawful to do well on the Sabbath day.” (Bible, tit. “St. Matthew,” c. 12.) Appellant having excepted to the whole instruction, and "having failed to specify what portion thereof is excepted to before the jury retired, is estopped from assigning error here. (Thompson on Charging the Jury, pars. 115, 116; Hayne on New Trial and Appeal, sec. 129; Code Civ. Proc., sec. 402; Brown v. Kmtfteld, 50 Cal. 130; Robinson v. Railroad Co., 48 Cal. 425; Hicks v. Coleman, 25 Cal. 122, 85 Am. Dec. 103, and note.)</p>

Depositions should be taken at the place named in the commission, and, this not appearing by the certificate of- the commissioner or otherwise, they cannot be read. (Weeks’ Depositions, sec. 192; Rhoades v. Selin, 4 Wash. C. C. 723, Fed. Cas. No. 11,740.) Evidence by depositions is in derogation of the common law, and, to entitle them to be received, the statutory provisions in relation to taking depositions must be strictly complied with.

If a summons is defective, the court acquires no jurisdiction either of the persons of defendants served or of the subject matter of the action, and the entry of default by the clerk was without authority.

Findings contrary to admission in the pleadings must be disregarded, nor can a defendant controvert a fact admitted by the pleadings. (Burnett v. Stearns, 33 Cal. 468; Bradbury v. Cro-nise, 46 Cal. 287; Mill v. Den, 54 Cal. 20; Tracy v. Craig, 55 Cal. 93; Silvey v. Deary, 59 Cal. 97, 98; White v. Douglass, 71 Cal. 115,11 Pac. 860.) A refusal of a party to perform amounts to abandonment. (Hicks v. Lovell, 64 Cal. 14-21, 49 Am.

The widow could acquire no homestead interest in the property until an order of the probate court or judge was made setting it apart for her. It differs from the case of a homestead created during the existence of the community by a compliance with the provisions of the homestead act.

<p>Pleadings — Sham Answer — Test.—An answer taking issue only on an immaterial issue of the complaint is frivolous, and may be stricken out on that ground. Falsity is the test of a sham answer, and where shown to be sham by this test may be stricken out.</p> <p>(Syllabus by the court.)</p>

<p>Exceptiow to Obdek Sustaining Demubeeb. — An exception deemed to have been taken to the order sustaining a demurrer should have been settled in a bill of exceptions and brought to this court. When it is not done the court will not consider it.</p> <p>(Syllabus by the court.)</p>

<p>No briefs filed in this case.</p>

It is not necessary to plead contributory negligence in order to prove it, and especially is this true where the plaintiff has aEeged that he is without fault, and this is denied by the answer. (Pomeroy’s Remedies, secs. 6-1-2, 670-676, inclusive; Railway Co. v. ShacMet, 12 Am. & Eng. R. R. Cas. 166; Hawes v. Railway Co., 64 Iowa, 315, 20 N. W. 717.) New matter is that which, under the rule of evidence, the defendant must affirmatively establish.

Tbe rule is tbat full findings are required upon every material issue without any request therefor, and without any exceptions on account of defects. And if any material issue is left unfound, it is ground for reversal of the judgment.

<p>Nonsuit — A Final Judgment. — A judgment of nonsuit is a final judgment within the meaning of our code, from which an appeal will lie.</p> <p>Action to Recover Real Estate — Section 2326 op the Revised Statutes op the United States Construed. — Where an action to recover specific real property is brought pursuant to section 2326 of the Revised Statutes of the United States, and there is no evidence for the consideration of the jury, a nonsuit may be granted.</p> <p>(Syllabus by the court.)-</p>

<p>PleadiNG — Special Demurrer. — Defects in pleading which make them uncertain are special grounds of demurrer under our code, which cannot be taken advantage of on general demurrer.</p> <p>Improper Conduct op Party — Influencing Jury — Ground for Reversal. — A judgment in favor of a party guilty of improper conduct calculated to influence the jury, or any juror, in their favor in rendering the verdict, should be reversed and a new trial granted on the ground of public policy.</p> <p>Railroad Corporation — Negligence—Servants—Fellow-servants.— A railroad corporation is liable for damages to employees injured through the negligence of their agents or servants who are invested with a controlling or superior duty in the management of the business of the corporation.</p> <p>(Syllabus by the court.)</p>

As to the second assignment of error: The evidence shows no damage to the respondents by reason of appellant's subscription — admitting that the respondents were parties to the instrument (which the complaint does not show, neither does the evidence); they “could sustain no action upon it until after the condition had been performed, and then the measure of recovery would be, not the sum stated as the amount of the promised subscription, but the damage which the persons…

<p>Pleadings — Findings—Judgment.—-Where the findings are responsive to all the material issues raised by the pleadings, and are warranted by the testimony, and they support the judgment and no errors at law appearing, the judgment will be affirmed.</p> <p>(Syllabus by the court.)</p>

<p>APPEAL from District Court, Shoshone County.</p> <p>The court erred in instructing the jury in effect that a mining claim could not be located by an agent. (2 Estee’s Pleadings, see. 2252; Gore v. McBrayer, 18 Cal., 582; Murley ¶. En-nis, 2 Colo. 300; Bush v. French, 1 Ariz. 99, 25 Pac. 816; Morton v. Solambo, 26 Cal. 527.) It is not against public policy to allow a partner or agent to locate a mining claim for and in the name of another in his absence. {Boucher v. Mulver-hill, 1 Mont. 310.) Although the verdict may be in accord with the weight of evidence, if the essential points in dispute were by the charge withdrawn from the consideration, of the jury, a new trial will be granted. (Hilliard on New Trials, р. 46.) A court will presume injury from an error in the court below, unless the record itself refutes the presumption and shows affirmatively that no injury could have resulted. (People v. Furtado, 57 Cal. 345; McDougal v. Central B. B. Go., 63 Cal. 431; Hilliard on New Trials, p. 45; Fullam v. Cummings, 16 Yt. 697.) Motion for new trial suspends life of judgment until suit is disposed of. (Hilliard on New Trials, с. 5, p. 59; Edwards v. Edwards, 22 Ill. 121; Wright v. Mod-dock, 7 Dana, 253.) There is no difference between a statement and a bill of exceptions in form or substance, except that the former follows a notice of motion for new trial. (People v. Crane, 60 Oal. 879.)</p> <p>The marking of the boundaries by plaintiffs was one of the issues in the case. The jury, by its general verdict, found they were not marked. In the statement the judge certifies that the evidence proved they were. The verdict was not set aside, and the record, therefore, on its face contains a false recital of fact. (Hidden v. Jordan, 88 Cal. 303; 1 Abbott’s Digest, p. 587, see. 13.) Until set aside, the verdict was conclusive upon the court below, and this court should not consider a question where the alleged error is only apparent, by the incorporation in the statement of a recital of fact, which the jury in their verdict find otherwise. (Jones v. Buckell, 104 U. S. 556; Reed v. Gardner, 17 Wall. 411.) There is no appeal from an order granting or refusing a new trial. (Henderson v. Moore, 5 Cranch, 11; Pomeroy v. Bank Ind., 1 Wall. 597, 598; Desty’s Federal Procedure, 691, 698.) In Morton v. Salambo, 86 Cal. 537, the facts were similar to those in Gore v. McBrayer, 18 Cal. 583, and the court, repudiating the idea that the law or agency cut any figure in the case, rested its decision upon the mining custom of the district expressly authorizing one to locate for himself and others (pp. 531-534). The law of 1873 nowhere authorized a mining claim to be located by an agent. This act is a pre-emption law. (Belk v. Meagher, 104 U. S. 384.)</p>

Courts of equity have no jurisdiction to determine the right of possession. They determine the title to real property, but where an action in the nature of ejectment will determine the controversy as to possession, it should be resorted to. (Killian v. Ebbmghaus, 110 U. S. 568, 4 Sup. Ct. Rep. 232.) In the ease of Connecticut Life Ins. Co. v. Lathrop, 111 U. S. 612, 4 Sup. Ct. Rep. 533, the court reaffirms the doctrine by it theretofore held in the case of Phoenix Ins.

<p>APPEAL from District Court, Alturas County.</p> <p>No authorities cited upon the point which the court decides.</p> <p>No brief filed in case.</p>

<p>APPEAL from District Court, Alturas County.</p> <p>Any implied admission of liability in an offer to settle a suit cannot be given in evidence against the party making the offer. (Marsh v. Gold, 2 Pick. 290; Laurence v. Hopkins, 13 Johns. 288; Rideout v. Newton> 17 N. H. 71; Perkins v. Bail-road Go., 44 N. H. 223; Gerrish v. Sweetser, 4 Pick. 374; Batchelder v. Batchelder, 2 Allen, 105; Saunders v. McCarthy, 8 A lieu, 42; Harrington v. Lincoln, 4 Gray, 563, 64 Am. Dec. 95; Gay v. Bates, 99 Mass. 263; Durgin v. Somers, 117 Mass. 55.) Even where the offer is made under the statute, and admits as a fact there is an amount due, it cannot be given in evidence. (Code, secs. 606, 678.)</p> <p>For the breach of an obligation not arising from contract, the measure of damages is the amount which will compensate for all the detriment proximately caused thereby. (Code Civ. Proc., sec. 4453; Sedgwick on Damages, 4th ed., p. 88, and note; Boyle v. Case, 18 Fed. 800.) The value is the proper rule in the case in hand. (Butler v. Mehrling, 15 Ill. 488; Kenyon v. Goodall, 3 Cal. 257; Allen v. Fox, 51 N. Y. 562, 10 Am. Eep. 641; ’Williams v. Phelps, 16 Wis. 80; Crabtree v. Clapman, 67 Me. 326; Elder v. Frevert, 18 Nev. 446, 5 Pae. 69.) When the same goods are sold to two different persons, by conveyances equally valid, he who first lawfully acquires the possession will hold them against the other. (Lanfear v. Sumner, 17 Mass. 110, 9 Am. Dee. 119, and note; Glow v. Woods, 5 Serg. & E. 275, 9 Am. Dec. 346.)</p>

<p>■Pbactice — Presumption—Sufficiency oe Indictment. — On appeal from a judgment in a criminal case, where no part of the evidence is brought to the supreme court by bill of exceptions, or otherwise, and the indictment is sufficient to support the judgment, this court will assume that the evidence was sufficient to warrant the verdict, and will further assume that the trial court’s charge to the jury was pertinent to the facts proved on the trial.</p> <p>(Syllabus by the court.)</p>

<p>APPEAL from Third Judicial District, Bingham County.</p> <p>Following ease of People v. Woods.</p> <p>No brief filed in the case.</p>

When the principal sum may become due, upon a failure to pay interest at the option of the mortgagee, the mortgagee should have exercised his option, and given notice of it before the commencement of the suit to foreclose. (Basse v. Ga'l-legger, 7 Wis. 443, 76 Am. Dec. 325; Marine Bank v. International Bank, 9 Wis. 57; Bosseel v. Jarvis, 15 Wis. 571; Jesup v. Bank, 14 Wis. 331.) Stipulations for attorneys’ fees are against public policy and void.

<p>SALARY and Fees of Pbobate Jitdge. — The law under which the plaintiff in error claims salary and fees, and upon which his claim is based, was repealed before the services were performed.</p>

<p>APPEAL from District Court, ARa County.</p> <p>Defendant is permitted to set up as many defenses of new matter or as many counterclaims as be may have, whether legal or equitable. (Gage v. Angelí, 8 How. Pr. 335;-Waddell v. Darling, 51 N. T. 327.) That there must be findings upon all the material issues is-already settled by this court in Bowman v. Ayers, ante, p. 305, 13 Pac. 346; Carson v. Thews, ante, p. 176 9 Pac. 605.</p> <p>The defendant cannot set up and maintain as a valid counterclaim a right of action subsisting in favor of another person. The test is whether the defendant could have maintained an independent action upon the demand. (Belleau v. Thompson, 33 Cal. 495; Chase v. Bvoy, 58 Cal. 348.) Where a demand sought to be counterclaimed exists in favor of the defendant and a stranger to the action, it cannot be set up. (Hook v. White, 36 Cal. 299; Campbell v. Genet, 2 Hilt. 290; Bird v. McCoy, 22 Iowa, 549; Weil v. Jones, 70 Mo. 560; Harris v. Rivers, 53 Ind. 216; Insurance Co. v. Pierce, 1 Wyo. 45.) The counterclaim must be between the same parties, in the same right, or in the same capacities, as they appear in the original proceeding. (Naglee v. Palmer, 7 Cal. 543; Johnson v. Gunter, 6 Bush, 534; Gannon v. Dougherty, 41 Cal. 661; Ives v. Miller, 19 Barb. 196; Baldwin v. Berrian, 53 How. Pr. 81; Baldwin v. Briggs, 51 How. Pr. 477; Hopkins v. Lane, 87 N. Y. 501.) The original findings were sufficient and covered all the material issues raised by the pleadings, and they are supported by the testimony. (Cooper v. Kellogg, ante, p. 330, 13 Pac. 350; Quinn v. Anderson, 70 Cal. 454, 11 Pac. 746; Whittle v. Doty (Cal.), 13 Pac. 399.) The omission to find on an immaterial issue is not error. (Knowles v. Beale, 64 Cal. 377, 1 Pac. 159; Lowvall v. Gridley, 70 Cal. 507, 11 Pae. 777; Gary v. Brown, 58 Cal. 180.) It was immaterial whether the defendant was an attorney at law or not; a finding either that he was or was not could not have changed the result. (Tage v. Alberts, ante, p. 371, 13 Pac. 19; Bobinson v. Placerville etc. B. B. Go., 65 Cal. 363, 3 Pac. 878.) It was not error in the court filing amended or additional findings. (Hays v. Wetherbee, 60 Cal. 396; Pratalongo v. Larco, 47 Cal. 378; Ogburn v. Connor, 46 Cal. 346, 13 Am. Eep. 313; Bosquett v. Grane, 51 Cal. 505.)</p>

<p>APPEAL from District Court, Bingham County.</p> <p>The procedure in death by wrongful act cases, and the particular parties to them, are subject to statutory regulation, and only the parties named in the statute can sue. ' (Hagen v. Kean, 3 Dill. 12á, Fed. Cas. No. 5899; Kramer v. Railroad Go., 25 Cal. 435; Carey v. Railroad Co., 48 Am. Dee. 635, note 4; Dye v. Dye, 11 Cal. 163.) The essential facts in every case must be averred directly, and cannot be left to inference. (Harris v. Hillegass, 54 Cal. 463; Stringer v. Davis, 30 Cal. 318.) The deceased was not a passenger, but an employee, at the time of his death. The court should therefore have admitted in evidence the pass on which the deceased was riding. (Vick v. Railroad Co., 95 N. Y. 267, 47 Am. Eep. 36; 2 Eorer on Eail-roads, 1107; Abend v. Railway Co., 17 Am. & Eng. E. E. Cas. 614, and cases cited in note.)</p> <p>Quasi public corporations, conducting great enterprises, like the operating of a railway, cannot absolve themselves from loss for the negligent conduct of that business, by simply leasing to some foreign or insolvent person or corporation, except such leasing be done by and with such consent of the legislative power which organized them and granted them their franchises. (2 Eorer on Eailroads, sec. 22, p. 1115; Macon etc. R. R. Co. v. Mayes, 49 Ga. 355, 15 Am. Eep. 678; Railroad Co. v. Winans, 17 How. 39; Kelson v. Railroad Co., 26 Vt. 717, 62 Am. Dec. 614; Thorpe v. Railroad Co., 13 Hun, 70.) If the negligence of a master combines with the negligence of a fellow-servant, and the Wo contribute to the injury of another servant, himself free from negligence, the master is liable. (Gayzer v. Taylor, 10 Gray, 274, 69 Am. Dec. 317; Booth v. Railroad Co., 73 N. Y. 38, 29 Am. Eep. 97, and note; Paulmier v. Railroad Co., 34 N. J. L. 151; Crutchfield v. Railroad Co., 76 N. C. 320.)</p>

If an allegation can be made tbe subject of a material issue, it should not be stricken out. (Green v. Palmer, 15 Cal. 412, 76 Am. Dee. 492.) The plaintiff demurred in general terms. Either all or no part of the answer should have been stricken out on his demurrer.

The law will not allow a person by repeated trespass to completely destroy another’s property. Equity will interfere. (Stone V. Lumber Co., 59 Mich. 24, 26 N. W. 216.) In relation to public lands, which are not mineral lands, the title, as between citizens of the territory, where neither connects himself with the government, is considered as vested in the first possessor; and, to proceed from him, this possession must be actual, and not constructive.

Oregon Short Line Railway Company was created a railway ■corporation in territories of Utah, Idaho and Wyoming by act of Congress, August 2, 1882. (U. S. Stats., 81, 82, p. 185.) The sworn statement required of the president, etc., of railroad corporations is not binding upon the state board, and may be disregarded by it in the assessment.

The verdict in claim and delivery should be in the alternative, either for the delivery of the property to the respondents, or, in case delivery could not be had, for the value thereof, with damages for its detention.

He wbo first appropriates tbe water of a stream, and connects bis labor therewith for a beneficial use, is entitled to the same against the world. (Atchison v. Peterson, 20 Wall. 507, 514 et seq.; Basey v. Gallagher, 20 Wall. 671, 682; Tartar v. Mining Co., 5 Cal. 397; TJ. S. Rev. Stats., see. 3339.) One who increases the flow of water in a stream by digging out springs, or turning in another stream may appropriate such increase to bis own use.

After findings are filed, they cannot be reversed or different findings substituted. (Prince v. Lynch, 38 Cal. 528, 99 Am. Dec. 427, and note; Hayne on New Trial and Appeal, sec. 247.) After the report of the referee had been approved by the court, and judgment had been entered up accordingly, it was too late to amend the findings.

osb.one County. Persons rightfully in possession of the surface are adverse claimants, and have an adverse claim, within the meaning of the law, and are entitled to be heard in the local courts before patent is issued. (Shafer v. Cohstans, 3 Mont. 369, 1 Morr. Min. Rep. 149.) Since the passage of the act of 1872 the location of a mining claim, or rather of a lode mining claim, is the location of a piece of land with all the veins it may contain.

When a known felony is attempted upon the person, be it to rob or kill, the party assaulted may repel force by force, and any person present may interpose to prevent mischief, and if death ensues, the party so interfering will be justified.

It is competent to show bias and prejudice on the part of •a witness, tliat the jury may scrutinize and perhaps discredit his testimony.

The lands or right of way of one railroad company cannot be taken as a right of- way by another railroad company, except for mere crossings, and then only for crossing purposes, and not for exclusive occupancy. {Cake v. Railroad Co., 87 Pa. St. 307; Pennsylvania R. Co.’s Appeal, 93 Pa. St. 150; In re City of Buffalo, 68 W. Y. 167; In re New York Gent.

No brief on file. The act in question is not in conflict with any provision either' of the constitution or statutes of the United States. At all subsequent elections (that is, after the first election) in any territory, the qualifications of voters and of holding office shall be such as may be prescribed by the legislative assembly of each territory.

<p>APPEAL from Third Judicial District, County of Bear Lake.</p> <p>Following ease of Innis v. Bolton.</p> <p>No brief on file.</p> <p>Same brief as in ease of Innis v. Bolton et al.</p>

<p>Mining Law — Citizenship—Eight oe Possession. — Under the act of Congress of May 10, 1872, only citizens of the United States and persons who have declared their intention to become such can acquire any right of possession, by location or otherwise, of mineral lands on the public domain.</p> <p>Same — Pleading.—In an action for trespass upon mining ground and for damages, where the legal title to the ground is in the United States, and the right of possession is made by the pleadings a material issue, the plaintiff, in order to recover, must plead and prove that he is a citizen of the United States, or that he has declared his intention to become such.</p> <p>(Syllabus by the court.)</p>

A location of a claim upon mineral lands of the Hinted States carries with it a grant from the government to the person making the same, and confers upon such person the right to the exclusive possession and enjoyment of all the surface ground within the lines of such location.

The facts fully appear in the following statement by BEERY, J.: This is an appeal from a judgment rendered in the district court. Ada county. The action is for damages, in trespass, and aibA praying equitable relief.

The facts appear in the following statement by BEBBY, J.:. On the twelfth day of January, 1884, the plaintiff was in the employ of the defendant as traveling auditor, his duties extendw ing over the entire lines of the company west of Cheyenne, including the entire Utah and Northern road, and continued in such employment until August 17, 1886.

There is no such crime known to the laws of the United States as “unlawful cohabitation,” nor is there such a crime as “cohabitation.” The time of holding the district courts, as well as the place, is fixed by the judges of the supreme court; but they must be held in the “several counties or subdivisions” -of the district. (IT. S. Rev. Stats., sec. 1914.) To convict under the indictment, it was incumbent on the government to prove two principal facts: 1.

<p>APPEAL from District Court, Bingham County.</p> <p>.Judgment affirmed. Following case of United States v. Kuntze.</p> <p>One Cozzens was convicted of bigamy, and appeals.</p>

An instruction is vicious which ignores a qualification which the evidence tends to prove. (Railway Go. v. Rector, 9 Am. & Eng. R. R. Cas. 265, .269.) A railway company is not held to be an insurer of the safety of its employees, even as to the agencies within its control; a fortiori, it ought not to be held to this rule as to agencies without its control. (Railway Go. v. Fowler, 8 Am. & Eng.

This is an appeal from the judgment of the district court in and for Lemhi county, rendered April 26, 1888, in favor of the plaintiffs, and against the defendants severally, in the sum of $500 each. The action was commenced July 14, 1887. The defendants on the twenty-eighth day of December, 1887, appeared by tbeir attorney, C. A. Wood, Esq., and filed a demurrer to the amended complaint, which amended complaint had been filed on the nineteenth day of that month.

The lien of a judgment gives to the judgment creditor a vested right of property in the land to which it attaches. (Gunn v. Barry, 15 Wall. 622; Edwards v. Kearzey, 96 H. S. 595.) Neither occupancy, where that alone is necessary, nor recording a declaration of homestead, where that is required, will in any way affect or modify a judgment lien.

<p>Mandamus — Legislative Record — Chiee Clerk — Territorial Secretary. — Burkhart was Speaker of the House. Heed was chief clerk. At the end of the sixty days, which was the full length of the session fixed by Congress, Speaker Burkhart declared the session closed. , Speaker Burkhart and part of the members left the room. Part of the members remained and elected Wheeler a Speaker pro tem. and proceeded with the business and passed a .number of bills-. The clerk made up the proceedings of the day including that under the Speaker pro tern, and by him signed, and delivered them to Curtis, secretary of the territory, who received and receipted for them to said clerk. Speaker Burkhart petitions, this court to issue a writ of mandate, directing Secretary Curtis-to produce the record of the House to the court, that the court, direct the record to be amended by the chief clerk to correspond to the facts and permit the said Speaker Burkhart to sign the same as Speaker. Held, that mandamus will not lie to inquire into the acts of a legislative body by verbal testimony, and cause its record to be corrected, or if there be no record to make one;, and that a legislative journal can only he corrected by the body that made it.'</p>

<p>Application for Writ of Mandate. — The secretary of the territory must receive from the clerks of both branches of the legislature, at the close of each session, all bills and papers belonging to the archives of the respective Houses, and all books of both Houses, and certify to the reception of the same. He is not required nor permitted to receive any documents from any other source. It is not within the scope of mandamus to confer power upon those to whom it is directed. It only enforces the exercise of powers already existing, when its exercise is a duty.</p>

Appellant insists, however, that “the provision of the federal constitution which secures to every party, where the value in controversy exceeds twenty dollars, the right of trial by jury does not apply to trials in the state courts,” and by parity of reasoning to trials in the territorial courts which are not United States courts.

<p>APPEAL from District Court, Bingham County.</p> <p>The plaintiff has no cause of action unless the evidence shows that he brought to defendant a purchaser able and willing to pay for the ranch the stipulated price. (McArthur v. Blauson, 53 Wis. 41, 9 N. W. 784; Gassady v. Seeley, 69 Iowa, 509, 29 N. W. 432; Bradford v. Menard, 35 Minn. 197, 28 N. W. 248; Duelos v. Cunningham, 102 N. Y. 678, 6 N. E. 790; McOlave v. Paine, 49 N. Y. 562, 10 Am. Eep. 431; Wylie v. Bank, 61 N. Y. 415; Brown v. Pforr, 38 Cal. 552, 553; Mc-Gavock v. Woodlief, 20 How. 221; Dolan v. Scanlan, 57 Cal. 261.)</p> <p>No objection to the instructions can be considered, as no objection to them was made on the trial, and no objections reversed. (Black v. City of Lewiston, ante, p. 276, 13 Pac. 80; Burton v. Ferry Go., 114 H. S. 474, 5 Sup. Ct. Eep. 960; Connecticut Mut, Life Ins. Go. v. Union Trust Go., 112 H. S. 250, 5 Sup. Ct. Eep. 119.)</p>

This action is for the recovery of possession of a certain mining claim situate on Bear creek, Alturas county, Idaho, known as the “Ada Elmore Lode and Mining Claim.” The complaint alleges that the plaintiffs have' a “legal right to occupy and possess” the claim by virtue of compliance with all the requirements of law and rules of miners, and of actual prior occupancy of it as a mining claim; also that the defendant, on the fourth day of January, 1886, while in the employ of…

The language of the act under which the plaintiff claims its grant reads: “That the right of way over the public lands of the United States is hereby granted to any railroad company, etc.” Public lands within the meaning of the act are those lands the title of which remains in the United States. They are termed public lands, because all the people of the country have an interest in them.

Occupation and improvement on the public lands, with a view to pre-emption, do not confer a vested right to the land so occupied. (Frisbie v. Whitney, 9 Wall. 187; Aurora Sill Consol. Min. Co. v. Eighty-five Mining Co., 34 Fed. 520; Bouldin v. Phelps, 30 Fed. 564; United States v. Taylor, 35 Fed. 486; Union Pac. Ry.

<p>APPEAL from Third District Court, Bingham County..</p> <p>The court had no jurisdiction to try this cause, as the indictment shows that the offense charged was committed in Bear Lake, instead of Bingham county, and this court takes notice that Blaekfoot is in Bingham county. (U. S. Rev. Stats., secs. 1910, 1914; Clinton v. Englebrecht, 13 Wall. 434; Reynolds v. !United States, 98 U. S. 145; Miles v. United States, 103 U. S. 304.) Consent to a wrong is not given by silence in a criminal case. (People v. Dich, 37 Gal. 277; People v. Beeler, 6 Cal. 247; People v. Payne, 8 Cal. 344; People v. Demint, 8-Cal. 424; People v. Ah Fong, 12 Cal. 347; People v. Woppner, 14 Cal. 437; People v. Sanford, 43 Cal. 2,9; People v. Prospero, 44 Cal. 186.)</p> <p>The presumption in the supreme court is that the proceedings below were correct, except in so far as the records show the contrary. (People v. McAuslan, 43 Cal. 55.)</p>

The actual possession of another by one who has knowledge of the extent of that possession is such a trespass as will render unlawful any attempt to initiate any such title by such trespass adverse to the title of those in possession. (Attwood v. Fricotj 17 Cal. 43, 76 Am. Dec. 567; English v. Johnson, 17 Cal. 115, 76 Am. Dec. 574; Hess v. Winder, 30 Cal. 355; Golden Fleece etc. Min. Co. v. Cable Consol, etc. Min.

The only jurisdiction the court or judge had was to make an order. {Mull v. Jones, 83 Kan. 112, 5 Pac. 390; Board v. Sco-vil'le, 13 Kan. 17.) The order, if made with jurisdiction to make it, would be only an assignment of the claim from the debtor to the creditor.

Every objection that the defendant can waive is waived by failure to move in arrest of judgment, specially stating and pointing out the basis of the motion. (People v. Dick, 37 CaL 277; Gannon v. United States, 116 U. S. 77, 6 Sup. Ct.

The different killings constitute different torts, and, while they may be united in the same complaint, they must be set forth, as they are, in fact, distinct causes of action. (Bey.

. Under the system of express findings, nothing is implied, but full findings are required upon every material issue without any request therefor, and with no exception on account of defects; and, if any material issue is left unfound, it is ground for a reversal of judgment.

<p>APPEAL from District Court, Bingham County.</p> <p>This is an appeal by H. S. Wooley from a judgment rendered against him on the sixteenth day of October, 1888, in Bingham county, by the district court of the third judicial district of the territory of Idaho, dismissing his complaint and application for a writ of mandamus against C. N. Watkins, registrar of voters in Paris precinct, Bear Lake county, to compel him to register his name in the list of voters of that precinct. On the fifth day of October, 1888, the relator filed his petition, wherein he avers “that he is a male inhabitant and native-born citizen of the United States, over the age of twenty-one years; that he has resided in Bear Lake county, territory of Idaho, for ten years last past, and still resides there; that he is entitled to vote at any election for delegate to Congress, and for territorial, county, and precinct officers in said territory; that he is not under guardianship, non compos mentis, or insane; that he has not been convicted of treason, felony, or bribery in this territory, nor in any other territory or state in the Union; that he is not a bigamist or polygamist; that he does not teach, advise, counsel, or encourage any person or persons to become bigamists or polygamists, or to commit any other crime defined by law, or to enter into what is known as ‘plural’ or ‘celestial’ marriage; that he is not a member of any order, organization, or association which teaches, advises, or encourages its members or devotees, or any other persons, to commit the crime of bigamy or polygamy, or any other crime defined by law, either as a rite or ceremony of any order, organization, or association, or otherwise; that C. N Watkins is, and at all times herein mentioned has been, the duly appointed and acting registrar of Paris precinct, Bear Lake county, Idaho territory; that on the twenty-ninth day of September, 1888, between the hours of 9 o’clock A. M., and 5 o’clock P. M. (that being the time designated by said registrar for that purpose), he appeared before the said registrar at the place appointed by him for the registration of voters, and then and there offered to take and subscribe the oath prescribed by law, and known as the 'elector’s oath,’ answer all questions, give all the information under his control, take all the oaths, and do all other acts and things required of him by law, and then and there demanded of said registrar to register his name as a voter, as required by law; that the said registrar, in violation of his duty, rejected his name, and refused to enter it upon the election register, as required by law; that he has been for more than ten years continuously a resident of the said Paris precinct, and entitled to registration therein, and that Ms name has not been entered upon the election register in said precinct or elsewhere; and prays that a writ of mandamus may be issued, directed to the said 0. N. Watkins, registrar as aforesaid, commanding Mm to register Ms name in the manner prescribed by law.”</p> <p>Upon the presentation of this petition the court granted an alternative writ of mandamus, directed to the said respondent, returnable on the tenth day of October, 1888. On the return-day of the writ the respondent filed an answer admitting certain facts alleged in the petition, and denying others, as follows: "The defendant admits all the facts set forth in the petition, except that it is denied that he is an elector of the territory of Idaho, for the following reasons, and none others; That the said petitioner is a member of what is known as the 'Mormon church in Idaho,’ which organization teaches, advises, counsels and encourages its members to commit the crime of polygamy, and other crimes defined by law, as a duty arising or resulting from membersMp in such organization, and which practices bigamy or polygamy as a doctrinal rite of such organization.” On the aforesaid return-day one H. M. Bennett filed his petition, praying the court to allow him to intervene on behalf of the public or people of the territory in said proceeding, and to become a codefendant, for the reasons stated in his petition, which are as follows: “That said action is prosecuted for the purpose of procuring a judgment of this court upon certain questions in which said petitioner is deeply interested; that his interest in said questions is adverse to the interests, desires, and wishes of both plaintiff and defendant; that the issue therein is only col-orable; that said action is collusively brought'and prosecuted; that the defendant did the acts complained of by and with the advice and procurement of the agents and leaders of the Mormon ■church; that the counsel for the plaintiff, and those interested with him, have either prepared or advised the preparation of the pleadings; that by the laws of this territory every member of an organization that practices or encourages the practice of crime among its members, or other persons, is ineligible to register, vote, or hold office; that within this territory there are many members of what is known as the 'Mormon church’; that it is an organization that, among other things, encourages the practice of bigamy among its members; that the plaintiff and defendant, and their attorneys, are members of the said Mormon church; that plaintiff’s attorneys are not employed by plaintiff, but are retained and employed by the agents and representatives of the said Mormon church; that this action is collusively brought to procure a judgment of this court that will aid the leaders of said church in securing the registration of its members in violation of law; that said action is brought in such way that the agents, leaders, and representatives of said church may control both the prosecution and defense, and thereby prevent the examination and cross-examination of witnesses and parties further than they •desire; that the Mormon church, acting through its agents and leaders, has controlled and directed every step in this matter on both sides, from the inception to the present time, and intend to continue such control; that defendant, before refusing to register the plaintiff, registered a large number of .Mormons upon the same showing made by the plaintiff, and that he would have registered the plaintiff in like manner if he had not been by those interested with the plaintiff influenced not to do so, in order to bring this matter into court for the purpose hereinbefore stated.” "Upon the presentation and filing of this petition, and by the consent of the relator and respondent, H. M. Bennett, the petitioner, was by order of the court permitted to become a party respondent, and to show cause, if any there were, why the writ, of mandamus prayed for by the relator should not be issued. In pursuance of this order the said Bennett filed an answer on the same day, wherein he denies the relator’s right to the relief prayed for on two grounds: “1. That the relator is not a qualified elector of Bear Lake county, Idaho, or of any county of this territory; and 2. That he is a member of what is known as the ‘Church of Jesus Christ of Latter Day Saints,’ commonly called the ‘Mormon church’; that said church is an organization which teaches, advises, counsels and encourages its members to commit the crime of bigamy, polygamy, and other crimes defined by law, as a duty arising or resulting from membership in that organization, and that practices bigamy, polygamy or plural or celestial marriage as a doctrinal rite of such organization, and prays that the proceedings be dismissed,” etc. The case was tried by the court below without a jury, upon the issues made by the aforesaid pleadings, and upon the evidence introduced by the relator and respondents respectively. TJpon the issues and proofs so made and given the learned judge who presided at the trial, upon his findings of fact and conclusions of law, denied the writ, and entered judgment against the relator, with costs. From this judgment the relator appealed, and brings the record here for review.</p> <p>A person who withdraws from a church does not continue a member of it simply because he holds the same religious faith and tenets with the members of that church. (2 Wait’s Actions- and Defenses, 257; Lucas v. Case, 9 Bush, 297; Groesbeeclc v. Dunscomb, 41'How. Pr. 302; Den v. Bolton, 12 N. J. L. 206; Bouldin v. Alexander, 15 Wall. 131.) The statute, being so construed as to disfranchise a person for past conduct or relations,, and by requiring him, as a condition of the right to vote or hold any office^ to establish his innocence of such past conduct or relation by means of an expurgatory test oath, is clearly in violation of the provisions of the constitution forbidding bills of attainder and ex post facto laws, and that no person shall be required to be a witness against himself. (Cummings v. State of Missouri, 4 Wall. 277; Ex parte Garland,A Wall. 333; Fierce v. Garskadon,. 16 Wall. 234, 239.) If a person is to be disfranchised because guilty of some past conduct or relation, bis guilt must be first judicially ascertained. The right of suffrage, when granted, will be protected. He who has it can only be deprived of it by due process of law. (Minor v. Happersett, 21 Wall. 176; Huber v. Reily, 53 Pa. St. 112; Goetcheus v. Matthewson, 61 N. Y. 420; Green v. Bhumway, 39 N. Y. 418.) :</p> <p>The right of suffrage is purely conventional, and is granted or withheld according to the legislative will. (Anderson v. Baker, Bright. Elect. Cas. 27.) A test oath may be prescribed to be taken in order to ascertain if the party offering to register or vote possesses the qualifications prescribed by law to entitle him to vote. (Blair v. Ridgely, Bright. Elect. Cas. 83; Innis v. Bolton, ante, p. 442, 17 Pac. 264.) Society must possess this power as a means of self-preservation, and it may disfranchise persons, or prevent them from holding office, on account of the belief they may entertain upon a given subject. (Clawson v. United States, 114 TJ. S. 447, 5 Sup. Ct. Eep. 949.) This statute does not violate the first amendment to the constitution. It is in the power of the legislature to prohibit criminal practice, even if performed in the name of religion, by imposing penalties or disabilities. (Reynolds’ Case, 98 IT. S. 145; Cooley on Torts, 33.)</p>

<p>Prejudicial Error. — All errors which do not prejudice the party in his substantial rights must be disregarded; that he was prejudiced in any of his substantial rights will not be presumed when not shown.</p> <p>Instruction's to Quit — Advise Jury. — At the close of the testimony for the prosecution the defendant moved the court to instruct the jury to acquit, which motion the court denied. Held, that such an instruction would have taken the facts from the jury, which the court cannot do, as it can only advise the jury.</p> <p>Testimony — Waiver.—Where a defendant introduces testimony after a motion to instruct the jury to return a verdict of not guilty is denied, he waives his right to assign as error the order denying such motion.</p>

<p>Judgment Creditor — Receiver.—A judgment creditor is without an adequate legal remedy when the title of the defendant’s property is clouded by a fraudulent assignment thereof and by another judgment which, though fraudulent, is held a prior lien, and when such property is in the hands of a receiver to be sold for the benefit of such fraudulent judgment.</p> <p>Receiver. — A receiver cannot be sued without first obtaining the permission of the court which appointed him.</p> <p>(Syllabus by the- court.)</p>

<p>Death op Partt — Substitution.—After judgment was rendered, and before notice of appeal was filed or served, one of the defendants died, no substitution having been made; held, that all proceedings on the appeal were null and void as to the representatives of the deceased defendant.</p> <p>Serving Notice op Appeai. — If a party to an action dies after the rendition of judgment and before filing and serving notice of appeal, the authority of the deceased’s attorney to act terminates, and any subsequent action of the attorney before substitution will not bind the representatives of the deceased or any other party in interest.</p> <p>Same. — Any party to an action, whether plaintiff or defendant, may appeal, but the notice of appeal must be served on all parties who would be affected by any order of the appellate court, whether said parties be plaintiffs or defendants or inter-veners.</p> <p>(Syllabus by the court.)</p>

<p>APPEAL from District Court, Cnster County.</p> <p>No brief on file.</p> <p>No brief on file.</p>

<p>APPEAL from District Court, Alturas County.</p> <p>Defendant’s order, being specific as to amount, acceptance,, and time of payment, was a bill of exchange, negotiable and subject to all rules of commercial paper. (Code, secs. 3520, 3525, 3546, 3550; Cowan v. Bollock, 9 Colo. 572, 13 Pac. 700; Parsons on Mercantile Law, 2d ed., p. 84, sec. 1; Parsons on Bills and Notes, pp. 52, 54, 353, see. 1.) Plaintiff, being the holder, was bound to make demand for payment, and, if dishonored, to give defendant “drawer” notice. (Dean on Commercial Law, Bryant & Stratton ed., sec. 353; Donohoe Gamble, 38 Cal. 340, 99 Am,. Dee. 399.)</p> <p>There being no exception in the record, if complaint states a cause of action, and will support a judgment, the judgment must be affirmed. (LamTdn v. Sterling, 1 Idaho, 120; Purdy v. Steel, 1 Idaho, 216; Gamble v. Dunwell, 1 Idaho, 268 Diehl v. Hull, 1 Idaho, 352; McCoy v. Oldham, 1 Idaho, 465; Hyde v. HarlcnesSj 1 Idaho, 638; Fox v. West, 1 Idaho, 782.)</p>

<p>APPEAL from District Court, Ada County.</p> <p>No briefs filed.</p>

The issues being all material, it was the duty of the court to find thereon, and the failure to fully find upon them, and each of them, is sufficient ground for reversal of the judgment herein.

A person is not competent to act as a juror if he be not an elector of the county. (Rev. Stats., sec. 3941; Sampson v. Schaffer, 3 Cal. 107.) A memorandum or deposition taken before an examining magistrate is not competent evidence against the defendant upon trial. (State v. Thomas, 64 N. C. 74; Jackson v. Commonwealth, 19 Gratt. 656; People v. Lambert, 5 Mich. 349, 72 Am.

<p>APPEAL from District Court, Bear Lake County. Following case of Territory v. Evans.</p>

The sheriff’s right to recover on the attachment bond does not in any manner depend upon the question whether the giver of the bond was benefited or not by the seizure and sale, nor upon the fact whether he received any part of the money for which the property was sold. (Weber v. Ferris, 37 How.

On the thirtieth day of October, 1884, Alonzo Leland and the appellant, M. M. Williams, duly made their joint and several promissory note, payable to the order of one A. J. Shaw, six months after date, and thereafter delivered the same to the payee. The note was given for the debt of Leland, and Williams joined in it at the request of Leland, as surety only, though the fact that he was surety did not appear on the face of the note.

<p>APPEAL from District Court, Shoshone County. ■</p> <p>In law the- center line is assumed to be the line of the lode, and the discovery lode is the controlling fact in the making of a valid location. This center line cannot be afterward changed so as to affect rights subsequently acquired. (Idaho Rev. Stats., see. 3100; Patterson v. Hitchcock, 3 Colo. 533; Wolfley v. Labanon Go., 4 Colo. 116; Eureka etc. Min. Go. v. Richmond Min. Go., 4 Saw. 323-324, Fed. Cas. No. 4548.) It is for the sole purpose of protecting subsequent locators that the legal claim of not to exceed fifteen hundred by six hundred feet is required to be so marked upon the ground that its boundaries can be readily traced. (White v. Lee, 78 Cal. 596, 12 Am. St. Rep. 115, 21 Pac. 363.) It is only valuable mineral deposits that are declared to be “open to exploration and purchase, and the lands in which they are found to occupation purchase.” Where the contention is over a lode claim, the discovery of a vein or lode must be clearly shown to support a valid location. (U. S. Rev. Stats., sec. 2320; Terrible Min. Co. v. Argentine Min. Co., 5 McCrary, 639, 89 Fed. 583; Belk v. Meagher, 104 U. S. 279; Hauswirth v. Butcher, 4 Mont. 299, 1 PaC. 714; Gleeson v. Martin White Co., 13 Nev. 457; Johnson v. Lowsly, 13 Wall. 90; Lansdale v. Daniels, 100 U. S. 115, 116, 117.) A vein or lode is a continuous bed of mineralized rock within any other well-defined boundaries on the earth’s surface and under it, and clearly separating it from the neighboring rock. (Eureka Min. Co. v. Richmond Min. Co., 4 Saw. 308-313, Fed. Cas. No. 4548.) And this bed of mineralized rock must be within defined boundaries within the general mass of the mountain. (Stevens v. Williams, 1 McCrary, 487, Fed. Cas. No. 13,413, et seq.; Iron Silver Min. Co. v. Cheeseman, 2 McCrary, 194, 8 Fed. 297.) The right to locate and the right to purchase a mining claim is an entirety, and -cannot be divided, and if the plaintiffs have not shown the discovery of a vein beyond a dispute, they have neither a valid location nor right to purchase the area in conflict of the United States. (Tibbits v. Ah Tong, 4 Mont. 537 et seq., 2 Pac. 759; Noyes v. Black, 4 Mont. 534, 2 Pac. 769.) The court erred in refusing to submit special issues to the jury and refusing to allow them to find a special verdict thereon. The court seemed to treat this proceeding as an action of ejectment solely, and assigned as his reasons for refusing the issues requested to be specially found, that it would tend to confuse the jury and that a general verdict would be sufficient. (Thomas v. Chisholm, 13 Colo. 105, 21 Pac. 1019; McGinnis v. Egbert, 8 Colo. 41, 5 Pac. 652; Becker v. Pugh, 9 Colo. 589, 13 Pac. 906; Manning v. Strehlow, 11 Colo. 451, 18 Pac. 625; Rosenthal v. Ives, ante, p. 265, 12 Pac. 904.) Location notice under law of 1872 and law of Idaho territory. (Drummond v. Long, 9 Colo. 538, 13 Pac. 543; Quimby v. Boyd, 8 Colo. 206, 6 Pac. 462; Gilpin Min. Co. v. Drake, 8 Colo. 590, 9 Pac. 787; North Noonday v. Orient, 1 Fed. 522; Jupiter Min. Go. v. Bodie Min. Go., 11 Fed. 610-666.)</p> <p>Where controverted questions of facts are submitted to a jury, an appellate court will not attempt to set aside the conclusion arrived at by the jury in the absence of fraud or corrupt practices. (McKeever v. Market St. B. B. Go., 59 Cal. 300; Wilson v. S. P. B. B. Go., 8 Pac. C. L. J. 936; Graves v. Moore, 58 Cal. 435; Bensley v. Whipple, 57 Cal. 268; School District v. Heath, 56 Cal. 478; Glenn v. Arnold, 56 Cal. 632; Myers v. Spooner, 55 Cal. 257; Nathan v. Doane, 55 Cal. 349; Fitz v. Bynum, 55 Cal. 461, 462; and about a hundred eases cited under section 288 of Hayne on New Trial and Appeal, p. -857.) What constitutes permanent monuments or natural objects is one purely for the jury. (O’Donnell v. Glenn, 8 Mont. 248, 19 Pac. 302; Bussell v. Ghumasero, 4 Mont. 317, 1 Pac. 713; Flavin v. Mattingly, 8 Mont. 242, 19 Pac. 385; Gamer v. Glenn, 8 Mont. 371, 20 Pac. 654; North Noonday Go. v. The Orient, 9 Morr. Min. Rep. 541; Upton v. Larkin, 7 Mont. 449, 17 Pac. 728.)</p>

<p>No briefs filed.</p>

No briefs found on file. The complaint shows the plaintiff to he the owner, and entitled to the possession, of one compact piece of mining lands in the Yreka mining district, Shoshone county, Idaho territory, embraced within the outer boundary lines of three contiguous mining claims, called the “Apex,” the “Rambler,” and the “Tip Top,” all constituting the plaintiff’s said mining grounds; that while the plaintiff was so in possession, on the 29th of October, 1888, the…

The conveyance of the mining property to the defendant was not intended as a sale, bet was made by the plaintiff for a certain purpose of his own, and upon an understanding with the defendant that the land was afterward to be conveyed back in the event of certain contingencies, and that the note was given at the time under an agreement that it was not to be paid. This fact was sought to be proven by the defendant, and the court below refused to admit the evidence.

A judgment based upon findings which do not determine all the issues raised by the pleadings is a decision against law, for which a new trial may be had. (Knight v. Boche, 56 Cal. 15.) A chattel mortgage reserving the right to dispose of the goods in the usual course of trade is void, and taking possession thereafter by the mortgagee will not cure the fraud. {Wells v. Langbein, SO Fed. 183; Ghenery v. Palmer, 6 Cal. ISO, 65 Am.

Before tbe judgment could be attacked, the findings must be set aside, because not justified by the evidence, and this could only be done on motion for a new trial. (Reed v. Bernal, 40 Cal. 628.) When a court draws erroneous conclusions of law from its findings of facts, it is a decision against law, for which a new trial should be granted.

Where error is shown, the presumption is that appellant has, been prejudiced by it, and it is incumbent on the respondent to see that the record discloses the fact that the appellant has not been so prejudiced. (Norwood v. Kenfield, 30 Cal. 393;. Jackson v. Water Go., 14 Cal. 18.) The right of a prior appropriator to water appropriated for a beneficial use is superior to that of a riparian owner of land, who became the owner after the appropriation. (Osgood v..

<p>Pro Poema Judgment — Appeal prom. — A complaint is filed in the justice’s court alleging defendant is indebted to plaintiff in the sum of $150. Defendant files an answer denying the indebtedness. Justice has jurisdiction only in sums of $100. Defendant consents that judgment may be entered against him as prayed for simply to expedite an appeal. District court dismisses the appeal. Held, that the judgment must be reversed, and tried in the district court.</p>