Volume 20 — Arizona Reports

Alfred C. Lockwood, Judge. STATEMENT OP PACTS BY THE COURT. This action was commenced to restrain acts of trespass alleged to have been committed and threatened by the appellee on appellant’s Stockton mining location, and to recover damages for trespasses already committed.

Alfred C. Lockwood, Judge. STATEMENT OE EACTS BY THE COURT. The appellees are charged in the complaint with organizing a strike against the appellants’ English Kitchen Restaurant in Bisbee, and with promoting the said strike by causing pickets to patrol the streets in front of appellants’ said place of business, carrying banners and passing handbills and loud talking, thereby informing the sympathizers with organized labor and the public at large of the existence 'of the…

<p>APPEAL from a judgment of the Superior Court of the county of Yuma. Frank Baxter, Judge.</p>

<p>1. Indictment and Information — Statutory Language — Sufficiency. An indictment' charging in the words of Penal Code of Arizona of 1913, section 537, that defendant willfully and feloniously mingled gold with a sample of gold-bearing ore, etc., with intent to cheat and defraud other persons, is sufficient, as the statute describes the act's which shall constitute the offense.</p> <p>2. False Pretenses — Injury.—In a prosecution under Penal Code of Arizona of 1913, section 537, where defendant was charged with mingling gold with gold-bearing ore, with intent to defraud third persons, the fact that they were not injured by defendant’s acts is no defense.</p> <p>3. Criminal Law — Appeal.—The supreme court will examine the record in a criminal case, though there is no abstract of the record, brief or assignment of errors, etc. -</p> <p>'4. Criminal Law — Appeal—Verdicts.—Where there is substantial evidence tending to prove defendant’s guilt and the trial court refuses to set aside the verdict of conviction, the appellate court will not ordinarily reverse the action of both the trial court and jury.</p> <p>[As to when indictment and information, charging crime, may be in the language of the statute, see note in 94 Am. Dec. 253.]</p>

<p>1. Trial — Special Interrogatory — Assumption of Matter in Dispute. — A special interrogatory assuming a matter in dispute is erroneous.</p> <p>2. Appeal and Error — Invited Error — Bight to Complain. — Where a special interrogatory was given at the request of appellant, he eannot assert on appeal that it was erroneous and ground for new trial.</p> <p>3. Bills and Notes — Holders in Due Course. — The indorsee of a note may be a holder in due course, though he knew the consideration for' the note was an executory contract, if he had no notice the contract had been broken.</p> <p>4. Bills and Notes — Actions—Evidence.—In an action on a note the ' consideration for which was an executory contract, evidence held not to warrant a finding that the contract had been broken before the note was transferred to plaintiff, an indorsee.</p> <p>5. Bills and Notes — Actions—Instructions.—In an action on a note the consideration for which was an executory contract, instructions submitting the question whether the contract had been broken before plaintiff purchased the note from the original payee held not warranted.</p> <p>6. Bills and Notes — Bona Fide Purchaser — Fraud.—While it is not fraud to buy negotiable, paper for less than its face value, it may under some circumstances be evidence of fraud.</p> <p>7. Bills and Notes — Bona Fide Purchaser — Fraud.—Fraud in obtaining a note by the payees from the maker can in no way impress the transaction between the payees and a purchaser unless the purchaser had notice thereof.</p> <p>8. Bills and Notes — Actions—Instructions.—In an action on a note which plaintiff purchased from the payees at a discount, an instruction that fraud in obtaining a note may be proved by circumstantial evidence, and that the question whether the heavy rate of discount amounted to fraud, etc., was for the jury, held erroneous and misleading.</p>

<p>APPEAL from a judgment of the Superior Court of the county of Yavapai. John J. Sweeney, Judge.</p>

<p>1. Trusts — Express Trusts. — If plaintiffs executed and delivered their quitclaim deed to W. and it was mutually agreed that W. should accept and hold title for the purpose of making a sale, that as soon as the premises were sold the proceeds should be divided equally, etc., there was an express trust.</p> <p>2. Trusts — Oral Trust as to Realty — Validity.—When the pleadings and the evidence both show an express trust, the grantor in a deed absolute upon its face duly executed and delivered, cannot impress or ingraft a parol trust in his own favor, although no consideration was actually paid.</p> <p>3. Appeal and Error — Judgment Supported by Evidence — Reversal on Facts. — Jury trial being waived, court occupied same relation to facts as jury, and its judgment will not be reversed on the ground that it was not justified under the evidence, where there is evidence in the record of a substantial nature tending to support it.</p> <p>4. Appeal and Error — Judgment Supported by Evidence — Reversal on Pacts. — It is the duty of the trial court to give full consideration to the evidence and pass upon its weight and sufficiency, and the court on appeal cannot say that its conclusions were wrong, where there is evidence of a substantial nature tending to support the judgment.</p> <p>5. Appeal and Error — Reversal on Pacts — When Warranted. — The court on appeal should reverse the judgment of the lower court only when there is a want of fevidence to sustain it or when the judgment is so manifestly against the weight of the evidence as to show it to be the result of bias or prejudice.</p>

<p>1. Ejection of Remedies — Election to Sue Under, Employers’ Liability Law — Preclusion from Other Recovery. — Where plaintiff servant suing for injuries expressly alleges his action is brought under employers’ liability law, he is precluded by such election of remedy from -a recovery other than is permissible under such law.</p> <p>2. Master and Servant — Employers’ Liability Law- — Facts Essen, tial to Recovery. — An injured servant, to recover under employers’ liability law, is required to allege and prove he was employed by defendant in an occupation declared hazardous, was injured while in performance of duties required of him, and that injury was caused by accident due to a condition of employment, not caused by his own negligence.</p> <p>3. Pleading — Defect of Complaint — Cure by Answer. — In a servant’s aetion for injuries under employers’ liability law, any deficiency of complaint in failing to show that risks assumed by plaintiff were great and inherent in occupation was cured by answer describing all appliances and manner óf use, and expressly admitting plaintiff’s occupation was hazardous.</p> <p>4. Master and Servant — Employers’ Liability Law — “Arising Out of and in Course of Employment.” — -Where smelter employee was injured because he was led to believe from a warning given by another employee, that a fettling car was overturning, so that he jumped back, and fell into an open slag spout, the injury was occasioned by accident arising out of and in the course of his employment, and due to condition of occupation, giving right of action under employers’ liability law.</p> <p>5. Master and Servant — Injuries to Servant — Complaint—IndefiNiteness. — In servant’s action under employers’ liability law, general allegations of complaint somewhat indefinite and uncertain as to exact conditions existing at time of accident, when attacked by proper pleading, should have been amended to state facts more clearly for information of court and defendant.</p> <p>6. Appeal and Error — Harmless Error — Failure to Require Amendment of Complaint.- — Error of trial court in failing to require plaintiff, an injured servant, to amend his complaint to state particulars of accident more clearly, was not reversible error, where answer supplied all defects in complaint in such respect.</p> <p>7. Pleading — Surplusage-—Action Under Employers’ Liability Law. Injured servant’s complaint, expressly alleging action was brought under employers’ liability law, was not subject to demurrer as attempting to state inconsistent causes of action, one given by statute, the other a common-law aetion for negligence, plaintiff being preeluded from relying on expressions appropriate in stating a cause of aetion for negligence which was surplusage.</p> <p>8. Pleading — Motion to Strike — Employers’ Liability Law. — Expressions appropriate to common-law aetion for negligence, used in injured servant’s complaint expressly alleging aetion was brought under employers’ liability law, might be attacked by motion to strike, if facts stated otherwise were sufficient to constitute cause of aetion under statute.</p> <p>9. Negligence — Contributory Negligence — Comparative Negligence. Where smelter employee was injured in stepping back from fettling car into uncovered hole in floor made necessary by operations, fact that plaintiff’s negligence concurred with inherent risks of employment in causing injuries did not constitute such negligence of plaintiff as would defeat recovery, but only such contributory negligence as is within proviso of paragraph 3159 of employers’ liability law (Civ. Code Ariz. 1913, tit. 14, e. 6), a modification of common law, making contributory negligence only partial defense.</p> <p>10. Constitutional Law — Right to Question Validity of Statute.— Employer sued for injuries under employers’ liability law (Civ. Code Ariz. 1913, tit. 14, c. 6), contending that facts stated in answer are sufficient to constitute negligence by plaintiff as sole efficient cause of injuries, and therefore a complete defense, cannot question validity of proviso of paragraph 3159, making contributory negligence which merely co-operated with risk of employment in causing injury only partial defense.</p> <p>11. Damages — Employers’ Liability Law — Proof of Loss. — In servant’s action for injuries under employers’ liability law, plaintiff must prove by a preponderance of evidence to the jury’s satisfaction the actual loss sustained by him primarily caused by the alleged accident.</p> <p>12. Damages — Employers’ Liability Law — Loss and Extent of Loss —Questions for Jury. — In servant’s action for injuries under employers’ liability law, whether plaintiff suffered any loss, and, if any, what loss, is for the jury’s determination from a consideration of all the evidence under the instructions.</p> <p>13. Appeal and Error — Reservation of Grounds of Review — Motion for New Trial — Excessive Damages. — Where defendant employer did not allege excessive damages as a ground for new trial of its servant’s action for injuries under employers’ liability law, matter cannot be raised for first time in supreme court on appeal.</p> <p>[As to necessity that servant be acting in course of employment when injured in order to recover under Employers’ Liability Act, see note in Ann. Cas. 1918A, 1070.]></p>

<p>APPEAL from a judgment of the Superior Court of the county of Mohave. John A. Ellis, Judge.</p>

<p>APPEAL from a judgment of the Superior Court of the county of Maricopa. -Frank H. Lyman, Judge.</p>

<p>APPEAL from a judgment of the Superior Court of the county of Graham. A. G. McAlister, Judge.</p>

<p>I. Husband and Wife — Community—Contract by Husband — Ratification by Wife. — -In an action for the specific performance of a contract to exchange land, defendant cannot object that plaintiff’s property was community property, and that the wife had not joined in the contract, where the wife later ratified and approved the contract by joining her husband in executing a deed conveying the lands to the defendant.</p> <p>2. Frauds, Statute of — Authority of Agent — Pleading.—In an action on a contract to exchange land, the pleading need not allege that plaintiff’s agent had authority in writing to dispose of the property, under Civil Code of 1913, paragraph 3272, subdivision 6; there being a presumption to that effect in the absence of allegation.</p> <p>3. Specific Performance — -Consideration.—An agreement in writing to exchange one piece of land for another piece of land is supported by a sufficient consideration 'to entitle a party to specific performance.</p> <p>4. Specific Performance — Contracts—Enforceability.—-Whenever a contract concerning real property is in its nature and incidents entirely unobjectionable, a court of equity will decree specific performance.</p> <p>5. Appeal and Error — Specific Performance — Discretion—Review. There is a wide discretion in the trial court as to whether he will order specific performance or not, and while that discretion is subject to review upon appeal, the presumption is, in the absence of the evidence, that there was no abuse of discretion.</p>

F. B. Laine, Judge. STATEMENT OP PACTS BY THE COURT. The appellee was employed by the appellant about its mines at Morenci, in said Greenlee county. One of appellee’s duties required him to take samples of ore from the workings of the mine. While engaged in the performance of such duty, he was necessarily standing in a dangerous position, one foot on the rungs of a ladder, and the other bracing against a wall. The ladder was suspended from above.

<p>1. Master and Servant — Injuries to Servant — Instructions—Ambiguity. — In employee’s action for personal injuries, instruction on assumption of risk held not to be ambiguous or confusing.</p> <p>2. Master and Servant — Assumption or Rise — Question or Fact.— Whether injured employee assumed risk of his employment is a question of fact, made so by the Constitution.</p> <p>3. Master and Servant — Assumption op Risk — Ordinary Risks. — A servant assumes the ordinary risks incident to his employment.</p> <p>4. Master and Servant — Assumption op Risk — Negligence of Master. — A servant does not assume the extraordinary risks of the master’s negligence.</p> <p>5. Master and Servant — Assumed Risk — Dangerous Place — Unsafe Appliances and Master’s Orders. — An employee working in a dangerous place with unsafe appliances, or in dangerous manner in obedienee to master’s, orders, does not assume the risk, unless the danger was so imminent that a man of ordinary prudence would not have ineufred the risk or hazard.</p> <p>6. Master and Servant — Assumed Risk — Extraordinary Dangers— Appreciation of Danger. — A motor helper on underground ore train assumed such extraordinary and unusual dangers of sueh work as were open and obvious and were fully observed, understood and appreciated by him.</p> <p>7. Trial — Instructions—Construction as a Whole. — Instructions are-to be considered as a whole.</p> <p>8. Master and Servant — Injury to Employee — Underground Ore Train — Negligence of Mine Owner. — A mine operator, which was negligent in failing to furnish adequate footboard on locomotive motor of underground ore train and adequate headlight, or in moving at excessive speed with timbers in close proximity to track,» was liable for injuries to motor helper, where he was not fully informed as to dangers, which were not obvious.</p> <p>9. Damages — Personal Injuries — Loss of Earning Capacity. — An injured employee was entitled to damages for loss or diminution of his earning capacity during his entire expectancy of life.</p> <p>10. Damages — Instructions—Earning Capacity. — An instruction, authorizing consideration of employee’s probable ehance of increased earnings was objectionable as speculative, sueh probable chance being included in the element of “loss of earnings,” for which jury had been charged.</p> <p>11. Appeal and Error — Harmless Error — Instructions.—A misleading instruction, authorizing jury in personal injury action to consider plaintiff’s probable chance, if any, of increased earnings had he not been injured, where it had previously been instructed to award damages for loss of earnings, if any, in the future of his life, was harmless, where no complaint was made that verdict was excessive by reason of sueh instruction.</p> <p>12. Appeal and Error — Keview—Verdict—Excessive Damages. — The supreme court will disturb a verdiet -for excessive damages only when it appears that the damages are so excessive that the award cannot be sustained on any other theory than that it was the result of passion of prejudice on the part of the jury; sueh gward being within -the intelligent discretion of the jury.</p>

<p>APPEAL from a judgment of the Superior Court of the. county of Santa Cruz. Samuel L. Pattee, Judge.</p>

<p>APPEAL from a judgment of the Superior Court of the comity of Yavapai. Prank H. Lyman, Judge.</p>

<p>1. Escrows — Effect—Title.—Where a deed is placed in escrow, the grantor holds the legal title and the grantee the equitable title.</p> <p>[As to creation and requisites of escrows, see note in 130 Am. St. Rep. 912.}</p> <p>2. Pleading — Demurrer—Admission.—On demurrer the allegations of the complaint must be taken as true.</p> <p>3. Escrows — Delivery by Depositary. — Neither Civil Code of Arizona of 1913, paragraph 2080, nor any other statute, requires an escrow deed to be plaeed of record before its second delivery.</p> <p>4. Escrows — Effect—Transfer by Grantee. — A grantee in a deed in escrow could transfer his equitable interest prior to delivery and recordation of the escrow deed.</p> <p>5. Fraudulent Conveyances — Purchaser for Value. — The fact that a buyer at one time had some interest in land did not make it available to his creditors long after he sold to a purchaser for value.</p> <p>6. Execution — Restraining Execution Sale. — Where grantee in deed in escrow transferred his equitable interest to plaintiff prior to an attachment by creditors, an injunction will be issued to restrain a sale of the property under execution; the test being whether purchaser at such sale would be entitled prima facie to judgment in an action to recover the property upon exhibiting in evidence his title derived from the sale, in view of Civil Code of Arizona of 1913, paragraphs 1363, 1408.</p>

<p>APPEAL from a judgment of the Superior Court of the county of Cochise, A, G, McAlister, Judge.</p>

<p>APPEAL from a judgment of the Superior Court of the county of Apache. George H. Crosby, Jr., Judge.</p>

<p>APPEAL from a judgment of the Superior Court of the county of Santa Cruz. S. L. Pattee, Judge.</p>

<p>APPEAL from a judgment of the Superior Court of the county of Yuma. Frank Baxter, Judge.</p>

<p>1. Limitation of Actions- — Suit for Salary — Limitations.—In suit by clerk of superior court of defendant county to recover balances of salary, the court erred in denying defense of one-year statute of limitations (Civ. Code Ariz. 1913, par. 709, subd. 3), and in permitting a recovery for balances of salary accruing more than one year prior to commencement of action.</p> <p>2. Officers — Change of Salary — Statute.-—Salary of plaintiff as clerk of superior court of defendant county fixed by order of board of supervisors on February 19, 191?, was changed by Laws of 1917, chapter 61.</p>

<p>APPEAL from a judgment of the Superior Court of the 'county of Graham. A. G. McAlister, Judge.</p>

<p>APPEAL from a judgment of the Superior Court of the county of Maricopa denying writ of mmdamus. Prank O. Smith, Judge.</p>

A. G. McAlister, Judge. STATEMENT OF FACTS BY THE COURT. This action was commenced by the appellant to recover on a road construction contract entered into between plaintiff and defendant county on the sixth day of April, 1914. On the original trial the plaintiff had judgment, and defendant county appealed to this court.

Frank Baxter, Judge. STATEMENT OP PACTS BY THE COURT. This action was commenced by the appellant as plaintiff to restrain and enjoin the defendant city and its officer’s from enforcing the provisions of an ordinance of the city, known as “Ordinance No. 150a,” for the alleged reason that said ordinance was enacted without authority of law and is void because in conflict with the Constitution of the state.

<p>1. Criminal Law — Questions for Jury. — It is the sole province of the jury to determine, in a criminal case, which of two conflicting versions of the evidence is true.</p> <p>2. Criminal Law — Review.—Where the evidence was conflicting, the court on appeal cannot, in the absence of prejudicial error, disturb the verdict resting upon substantial evidence.</p> <p>3. Criminal Law — Questions for Jury — Credibility of Detectives. In prosecution for illegal sale of liquor, credibility of testimony of detectives employed to discover violations is for the jury.</p> <p>4. Criminal Law — Testimony of Accomplices — Corroboration — “Aid” — "Abet”—“Accomplice.”—One who purchased intoxicating liquor is not an accomplice with the seller within Penal Code of Arizona of 1913, sections 27, 1051, since to aid or abet, within section 27, requires an approach to the crime from the same angle as the principal, whereas a purchaser of liquor approaches from a different angle than that of the seller.</p> <p>5. Criminal Law- — Instructions — Credibility of Detectives. — In -prosecution for illegal sale of intoxicating liquors, where the only evidence of sale was that of three detectives, instruction that the fact that they were detectives and bought liquor for the purpose of securing evidence could be considered in weighing their testimony, and was all that accused was entitled to.</p> <p>6. Intoxicating Liquors — Illegal Sale — Evidence—Admiss3ility.— Where owner of pool-hall was accused of selling Bourbon whiskey illegally, the fact that a keg of rye whiskey was found in the basement of his pool-hall was admissible in evidence and proper for consideration of the jury.'</p> <p>7. Criminal Law — Limiting Number of Character Witnesses. — In prosecution for illegal sale of intoxicating liquor, action of court in limiting character witnesses of defendant to seven held not an abuse of discretion.</p> <p>8. Criminal Law — Harmless Error — Limiting Number of Witnesses. In prosecution for illegal sale of intoxicating liquors, limiting accused’s character witnesses to seven was not prejudicial, where the testimony of the seven was not controverted.</p> <p>9. Criminal Law — Limiting Number of Character Witnesses. — As a ’ general rule, the trial court, in the exercise of a sound and reasonable discretion, has the power to limit the number of witnesses who shall testify to a particular fact.</p> <p>10. Witnesses — Impeachment — Specific Acts. — In prosecution for illegal sale of liquor, witnesses for the prosecution eouldmot be impeached by showing that they had sold whiskey to women, that one of them had stolen a dog, that one of them was seen drunk, and that they collected money from others for the purpose of buying whiskey to he drunk at a dance; such matters not being felonies, and the character and reputation of a witness1 not being provable by specific instances of misconduct.</p> <p>11. Witnesses — Corroboration of Unimpeacehd Witness. — In prosecution for illegal sale of intoxicating liquors, where the prosecution did not attack accused’s reputation for truth and veracity, evidence to sustain his credibility was not admissible.</p>

<p>APPEAL from a judgment of the Superior Court of the county of Maricopa. R. C. Stanford, Judge.</p>

A. G. McAlister, Judge. STATEMENT OF FACTS BY THE COURT. The appellant as plaintiff commenced this action August 23, 1917, seeking to recover $1,350 as the aggregate sum claimed by him as additional salary due him as treasurer of Cochise county. Plaintiff received as salary $3,000 per annum in accordance with the Salary Law of 1912 (Laws 1912, c. 93).

<p>APPEAL from a. judgment of the Superior Court of the county of Graham. A. G. McAlister, Judge.</p>

<p>Appeal and Error — Notice oe Appeal — Necessity—Record.—Notice of appeal from the superior court is jurisdictional under Civil Code of Arizona of 1913, paragraph 1234, and where the record fails to show such notice the appeal must be dismissed.</p>

<p>1. Criminal Law — Evidence of Other Offenses. — In a prosecution for purchasing metal from a boy unckr 16 years of age, where defendant denied purchase of articles, and alleged that he was formerly engaged in electrical business and owing to removal of plant to different places, and its destruction by fire, copper wire used about plant had beeome scattered, and that he had arranged with the boy to gather up this wire and bring it to him, evidence of purchase by defendant of metal and junk from toys under 16 years of age npon other occasions was admissible.</p> <p>2. Criminal Law — Misdemeanor—Preliminary Examinations. — No preliminary examination is necessary or essential to proper institution of criminal proceedings against one charged with a misdemeanor.</p> <p>[As to other offenses as essential element of crime charged, see note in 105 Am. St. Eep. 982.]</p>

<p>APPEAL from -a judgment of tlie Superior Court of the county of Pinal. A. G. McAlister, Judge.</p>

<p>1. Criminal Law — Appeals—Grounds.—By Penal Code of Arizona of 1913, section 1153, accused may appeal from final judgment of conviction, from order denying new trial, and from order made after judgment affecting his substantial rights.</p> <p>2. Criminal Law — Appeal—“Orders Made After Pinal Judgment.” Orders in prosecution for wife abandonment, after eonvietion fixing bond for support of wife and suspending sentence for three years, were not “orders made after final judgment,” supporting appeal under Penal Code of Arizona of 1913, section 1153.</p> <p>3. Criminal Law — Appeal—Waiver of Bight — Suspension of Proceedings. — Defendant, convicted of wife abandonment, waived right to appeal from order denying new trial where, immediately after denial of motion, he offered to enter into undertaking mentioned in Penal Code of Arizona of 1913, section 251, for support of his wife, to induce court to suspeud proceedings against him, which was done.</p>

<p>APPEAL from a judgment of the Superior Court of the county of Pima. W. A. 0 ’Connor, Judge.</p>

<p>Criminal Law — Preliminary Examination — Violation or Prohibition Amendment. — In prosecution for misdemeanor, no preliminary examination was necessary prior to filing of the information.</p> <p>[As to law relating to intoxicants, see note in 64 Am. St. Kep. 98.]i</p>

<p>Habeas Corpus — Voluntary Surrender Into Custody. — One may not procure his own imprisonment as by voluntarily surrendering himself into custody, and thereafter secure a discharge therefrom by the aid of habeas corpus writ.</p>

<p>1. Appeal and Error — Review—Presentation or Grounds in Court Below. — Error in the admission of evidence will not be considered where the reeord did not show an objection to the admission of such evidence.</p> <p>2. Appeal and Error — Review—Findings.—The supreme court will not disturb findings of fact of the trial court in an action tried to the court where the findings are supported by substantial evidence.</p> <p>3. Husband and Wife — Transfer of Property — Equitable Estoppel —What Constitutes.- — Though a wife who was interested in an option on mining property which was in the name of her husband consented to the husband’s transfer of the option to a eosporation formed after plaintiff had performed services as mining expert in examining the property, and for a long time allowed stock received for the option to remain in the name of the husband, held, that wife was not estopped thereafter to claim an interest in stock received, for an equitable estoppel arises only where by voluntary act of a party another changes his position, etc., and the subsequent'- hots of the wife did not cause plaintiff to change his position.</p>

<p>1. Master and Servant — Injury to Third Person — Relation oe Parties — Evidence.—Proof of ownership is prima faeie evidence that the driver of the automobile, causing damage by negligent operation, is the servant or agent of the owner, and nsing the vehicle in the owner’s business.</p> <p>2. Master and Servant — Injury to Third Person — Relation op Parties. — It is not essential that the agency of the driver of an automobile presumed from proof of ownership should he a business agency, or the service a remunerative service.</p> <p>3. Master and Servant — Damage to Property op Third Persons— Presumptions and Burden op Proop. — The presumption of use and control arising from proof of ownership of an automobile, destroying property of third person by its negligent operation, is not conclusive, but easts the burden on the owner to show that the driver was not his servant or agent, or if he was sueh, that he was not, at the time he was using the vehicle, engaged in the owner’s business.</p> <p>4. Master and Servant — Damage to Property op Third Person— Negligence op Driver Imputed to Owner. — Where damage resulted to plaintiff from negligent operation of defendant’s automobile by its driver when defendant was seated in the machine, it must be held that defendant was consenting to such negligent operation, tacitly at least, and the driver’s negligence is to be imputed to him.</p> <p>5. Pleading — Trial Amendments — Discretion of Court. — It is a common practice to allow trial amendments to conform pleadings to proof at any stage of the proceedings, and permitting plaintiff to so amend his complaint after resting was within the discretion of the trial court, under Civil Code of Arizona of 19-13, paragraph 422.</p> <p>6. Appeal and Error — Review — Instructions — Necessity for Request. — If instructions given were not sufficiently full or specific, it was the duty of defendant-appellant to request fuller and more specific instructions, and, failing to do so, he may not complain on appeal.</p> <p>[As to burden of proof as evidence of negligence, see note in 98 Am. St. Rep. 321,]i</p>

<p>APPEAL from a judgment of the Superior Court of the county of Gila. G. W. Shute, Judge.</p>

<p>1. Appeal and Error — Want of Actual Controversy — Moot Questions. — Where, after appeal was taken in proceedings to prevent submitting the question of county seat removal to the electors on ground of unconstitutionality of the county seat removal act (Laws 1915, e. 5), an election was held, at which the county electors voted against removal and in appellant’s favor, -the appeal will be dismissed, especially in view of section 17 of the act, providing that the question of removal cannot be again submitted within six years.</p> <p>2. Evidence — Judicial Notice — Elections.—The court will take judicial'notice that at a general election the question of county seat removal was submitted to the electors of a county and was voted upon by them.</p> <p>3. Prohibition — Acts of Board of Supervisors — Premature Application. — Where all that was done by the board of supervisors a^ time of filing an application for writ to prohibit the consideration of a petition for county seat removal and to submit that question to the voters was to notice the hearing upon such petition; the application was premature; the mere apprehension that the board might act without jurisdiction being insufficient to support a writ of prohibition.</p> <p>4. Appeal and Error — -Review—Moot Questions — Costs.—The rule as to dismissal of moot questions is not altered by the fact that questions of costs are involved.</p>

<p>APPEAL from a judgment of the Superior Court of the county of Graham. A. G. McAlister, Judge.</p>

<p>1. Executors and Administrators — Claims Against Estate — Contest by Heirs. — Civil Code of Arizona of 1913, paragraphs 879-903, as to presentation of claims against an estate, making no provision for a hearing thereon at which heirs may be heard as contestants, they may not contest them on their original presentation; but their remedy, in ease of allowance thereof, is by contest of administrator’s current account, under paragraph 999, or on his final settlement' and accounting, under paragraph 1011.</p> <p>2. Appeal and Error — Litigation as to Personal Property — Heirs As Parties. — Personal property and assets of an estate are solely in the keeping and protection of the personal representative, and heirs of decedent have no standing in litigation affecting the same, and may not appeal when such is the subject matter; but that duty pertains to and may be exercised only by the personal representative.</p> <p>3. Executors and Administrators — Allowance op Claim- — Appeal.— Appeal from allowance of claim against a decedent’s estate is not authorized, allowance-or rejection of claim being under Civil Code of Arizona of 1913, paragraphs 884r-888, by the judge of the court, and appeal to supreme court, from superior court provided for by paragraphs 1226, 1227 (3), being from judgment or order of the court.</p> <p>[As to presentation of claim as condition precedent to enforcement of mortgage against decedent’s estate, see note in Ann. Cas. 1917B, 156.]</p>

<p>1. Executors and Administrators — Claims for Personal Property —Duty to Protect. — Title to personal property of a decedent’s estate vesting in the administrator, on his qualification, it is his duty to protect it as against claims therefor of others against the estate.</p> <p>2. Courts — Jurisdiction—Superior Court Exercising Probate Jurisdiction. — There is no authority under the statutes for the superior court, while exercising probate jurisdiction, to entertain a petition of a stranger that part of the assets of the estate be turned over to her; but jurisdiction to try and determine claim to any such assets is in the superior court exercising law and equity power.</p> <p>[As to allowance of elaims by administrator and when and against whom conclusive, see note in 65 Am. Dec. 121.}</p>

<p>APPEAL from an order of the Superior Court of the county of Gila, denying a petition for a writ of Habeas Corpus. G. W. Shute, Judge.</p>

<p>APPEAL from a judgment of the Superior Court of the county of Maricopa. R. C. Stanford, Judge.</p>

A. C. Lockwood, Judge. STATEMENT OF FACTS BY THE COURT. One Conmy was charged with the crime of forgery in the superior court of Pinal county and put on his trial. The county attorney employed Milton Carlson, a prominent expert on handwriting, to make certain microscopical examinations, measurements and comparisons of the signature alleged to have been forged, and to testify in the case as an expert on behalf of the prosecution.

<p>1. Judgment — Default—Motion to Vacate — Discretion of Court.— A motion to vacate a default judgment on grounds of surprise, inadvertence and excusable neglect is addressed to trial court’s sound discretion, vesting a legal, and not an arbitrary or personal, discretion, and requiring some legal justification for exercise of the power and some substantial evidence to support it.</p> <p>2. Appeal and Error — Vacating Default — Discretion of Trial Court — Review.—Unless there has been an abuse of the trial court’s discretionary .power on a motion to vacate a default judgment on the grounds of surprise, inadvertence or excusable neglect, the appellate court will not interfere with its action on the motion.</p> <p>3. Judgment-Opening Default — Excusable Neglect. — Under Civil Code of Arizona of 1913, paragraph 600, permitting vacation of a judgment for excusable neglect and in view of paragraph 2100, requiring articles of incorporation to contain names and addresses of corporators and corporation’s name and principal place of business, the negligence of a corporation’s statutory agent in not notifying it of pendency of a suit against it because “he did not know the address of the company” was not excusable neglect. ,</p> <p>4. Judgment — Vacation of Default — Meritorious Defense. — A defendant applying to have a default against him set aside must show, not only that he has a meritorious defense, but that he has been without fault in failing to interpose it by plea.</p> <p>[As to time of granting relief by vacating judgment, see note in 52 Am. St. Rep. 795.]</p>

<p>1. Infants — Contracts—Sale of Partnership Interest — Disaffirmance. — Infant partner’s agreement to sell his partnership interest to his copartner was unenforceable whpre it had been disaffirmed by the infant partner because .of his infancy.</p> <p>2. Appeal and Error — Assignment of Error — Judgment of Dismissal. — Where judgment is rendered for plaintiff against one defendant, and complaint is dismissed as to another, and plaintiff, being dissatisfied with relief granted as to former, appeals without assigning error upon order dismissing complaint as to latter, judgment of dismissal will not be disturbed.</p> <p>[As to partnership agreements of infants, see note in 18 Am. St. Rep. 601.]</p>

<p>APPEAL from a judgment of the Superior Court of the county of Graham. A. G. McAlister, Judge.</p>

<p>1. Pleading — Truth of Allegations not Denied. — Defendant lessee not having controverted- construction placed on lease by plaintiffs and having failed to deny the allegation that rent for balance of term was due and payable, such allegation must be deemed true, unless defendant’s defenses avoiding the lease altogether are sufficient excuse for refusing t'o pay rent.</p> <p>2. Landlord and Tenant — Title of Landlord — Estoppel to Deny.— Where, because of default in payment of rent, lessors elected to exercise option to substitute, for agreement to pay rent by the month, agreement to pay immediately rent for balance of the term, thus affirming lease for the balance of the term, held, that lessee could not while in possession resist judgment for rent for balance of the term by denying lessors’ title or right to possession either directly or indirectly.</p> <p>[As to necessity that tenant surrender possession before asserting title adverse to landlord, see note in Ann. Cas. 1917D, 548.]</p>

<p>1. Courts — Jurisdictional Amount — Amendment of Complaint — “Original Amount in Controversy.” — Complaints in justice court having sought to recover aggregate amount of $239.99, and complaint having been amended, after consolidation of cases in superior court, to reduce amount to $200, plaintiff would not have been allowed recovery in any greater sum, so that “original amount in-controversy,” within Constitution, article 6, section 4, conferring appellate jurisdiction on supreme court, does not exceed $200, and appeal must be dismissed.</p> <p>2. Constitutional Law — Adoption of Provision of Other State— Construction in Such Other State. — That Arizona adopted a provision of the Constitution of Washington after certain construction was placed on it by the supreme court of Washington is persuasive, if not binding, on the supreme court of Arizona, if construction is reasonable.</p> <p>[As to method of determining amount in controversy, see note in 21 Am, St, Rep. 617-622.]</p>

F. B. Laine, Judge. STATEMENT OP PACTS BY THE COURT. This action was tried upon an agreed statement of facts, prepared, certified and filed as permitted by paragraph 510, Revised Statutes of Arizona of 1913.

<p>1. Appeal and Error — Findings op Fact — Review.—A verdict or judgment will not be disturbed on appeal, where the testimony is conflicting.</p> <p>2. Master and Servant — Injuries to Third Person — Automobiles.— A father who furnishes an automobile for the pleasure and convenience of the members of his family makes the use of such vehicle for such purpose his affair or business, and any member of the family driving the vehicle with his consent, either express or implied, is the father’s agent, and the father is liable for his negligence.</p> <p>3. Evidence — Conclusion op Witness. — In an action by a bicyclist injured in a collision with defendant’s automobile, driven by defendant's son, a question asked the father whether or not the son was on the father’s “business” at the time of the accident called for a conclusion of the witness.</p> <p>4. Evidence — Res Gestae — Declarations op Agents. — The declaration of an agent at the time of a particular transaction which is the subject of inquiry, and while acting within the scope of his authority, may be given in evidence against the principal as a part of the res gestae, but declarations of an agent made after the transaction is fully completed and ended are not admissible.</p> <p>5. Evidence — Res Gestae — Discretion op Court. — The question whether a declaration made by an agent at. the time of a particular transaction which is the subject of inquiry should be admitted against ■the principal as a part of the res gestae should in a great measure be left to the discretion of the trial court.</p> <p>6. Appeal and Error — Matters Renewable — Objections.—In an action against two persons for negligence, it cannot be held error that the court admitted evidence which was admissible against only one of the defendants, where the objection thereto was general.</p> <p>7. Negligence — Contributory Negligence — Proximate Cause. — To bar recovery, negligence of plaintiff must have contributed to his injuries.</p>

<p>APPEAL from a judgment of the Superior Court of the - county of Maricopa. R. C. Stanford, Judge.</p>

<p>APPEAL from a judgment of the Superior Court of the county of Greenlee. A. G. McAlister, Judge.</p>

<p>1. Schools and School Districts — School Boards — Transaction of Business. — Under Civil Code of Arizona of 1913-, paragraph 2733, and paragraph 5552, subdivision 2, any two of the three members of a board of school trustees ean transact business.</p> <p>2. Schools and School Districts — School Boards — Transaction-of Business — Employment of Teachers. — In absence of statutory requirement that employment of teachers shall be done only at meetings of board of trustees, or that the board shall transact official business only at a general or special meeting regularly convened, it is not necessary that formal meeting be held for purpose of employing teacher.</p> <p>3. Municipal Corporations — Contracts—Validity—Irregularities. Generally, a contract which is within the scope of the powers of a municipal corporation or public body, but which, owing to some irregularity, is not binding upon the corporation or body, may be ratified.</p> <p>4. Municipal Corporations — Contracts—Ratification.—A municipal corporation’s contract, whieh is not binding upon the corporation because of some irregularity, may be ratified, though statute requires the contract be in writing.</p> <p>5. Contracts — Irregularities — Ratification. — As a general proposition, there can be no ratification of an unauthorized or irregular contract, without full knowledge on the part of the party alleged to have ratified of all the insufficiencies or irregularities.</p> <p>6.. Schools and School Districts — Irregular Contract — -Ratification. — -The rule that an irregular contract cannot be ratified, except with full knowledge of the irregularities by party ratifying, does not apply to officers of school district, since such officers are bound to know the facts relating to the irregularities.</p> <p>7. Schools and School Districts — Duty of School Board. — It is the duty of officers of school district to provide teachers, and to make contracts with them, and to know under what conditions a teacher, whom they know to be teaching, claims to act.</p> <p>8. Schools and School Districts — Teacher’s Contract — Irregularity — Ratification.—"Where teacher's contract, required to be signed by two trustees, was signed by only one of them, but trustee not signing knew that the teacher was teaching, without objecting thereto, and’ concurred in paying teacher’s salary, the school district ratified the contract.</p> <p>9. Contracts — Ratification — Retroactive Effect. — Ratification of contract extends back to the inception of the contract, and makes it valid from the beginning.</p> <p>10. Contracts — Pleading—Variance.—There is no variance between pleading of written contract and proof of ratified irregular contract, since the ratification takes effect from the inception of the contract.</p> <p>11. Schools and School Districts — Teacher’s Contract — Construction. — Provision of ’ teacher’s contract that, in case the teacher “proves unsatisfactory as instructor, the board, upon the sanction of a competent judge, reserves the right to dismiss upon 15 days’ notice,” does not prevent discharge of teaeher for good cause; the term “upon the sanction of a competent judge” applying only to the particular manner of discharge provided for in such provision.</p> <p>[As to ratification of alteration of instrument, see note in 86 Am. St. Rep. 126.]</p>

R. C. Stanford, Judge. STATEMENT OP PACTS BY THE COURT; This is an action brought by Charles Korrick, as assignee for the benefit of creditors, to recover the sum of $470.80, the amount of an alleged unlawful preference paid by the defendant J. W. Robinson and Irl R. Robinson, alleged copartners, doing business under the firm name of J. W. Robinson & Son, which said payment was made to the defendant J. W. Robinson, guardian of the estate of Irl R. Robinson, a minor, in…

<p>APPEAL from a judgment of' the Superior Court of the county of Maricopa. F. H. Lyman, Judge.</p>

<p>APPEAL from a judgment of the Superior Court of the county of Maricopa. R. C. Stanford, Judge.</p>

<p>1. Bills and Notes — Holder in Due ' Course — Burden op Proof.— The negotiable instrument law (Civil Code of Arizona of 1913, section 4204) casts the burden of proof on the corporation holding notes negotiated to it by a person whose title was defective to show that it was a holder in due eourse, under section 4197.</p> <p>2. Bills and Notes — Notice of Fraud in Inception of Notes — Evidence. — In an action on notes, defendant’s testimony that he had given actual notice that the notes were obtained by fraud and misrepresentation to plaintiff’s president by letter was wholly insufficient to make a primary showing of notice of fraud, where the president denied its receipt and defendant did not show that the letter was properly addressed, stamped and deposited in the mail, particularly where the letter was answered by another and from a town other than where plaintiff’s president lived.</p> <p>[As to who are bona fide holders affected by fraud in inception, see note in 11 Am. St. B.ep. 309.}</p>

<p>1. Trial — Question op Law — Beal Party in Interest. — Where the facts are undisputed, it is a question of law whether plaintiff is the real party in interest.</p> <p>2. Parties — Beal Party in Interest. — Action of replevin for an' automobile was properly brought by agent of company insuring the former owner against theft, to whom, after theft of the ear and payment of the policy by the insurer, such owner had assigned its conditional contract of sale and all moneys payable thereunder; he being the real party in interest, either as owner of the automobile and the contract, or, having accepted the assignment .“for the benefit of another,” as trustee of an express trust and authorized to sue, under Civil Code of 1913, paragraph 401.</p> <p>3. Sales — Stolen Property. — Whether the act of depriving the owner of his property he straight larceny, or conspiracy and larceny compounded, it would be as futile in one ease as the other to pass title from the owner.</p> <p>4. Sales — Stolen Property — Bona Fide Purchaser. — The good faith or honesty of purpose of one purchasing a stolen automobile is immaterial.</p> <p>5. Pleading — Necessity op Proof — Matters not Denied. — Matters well pleaded, and not denied in the answer, need not be proved by plaintiff.</p> <p>6. Pleading — Matters to be Proved — Admission by Failure to Deny. — In action of replevin for automobile, it was not necessary for plaintiff to prove defendant was in possession of the car when suit was instituted, where defendant did not deny it was in his possession, but his denial was limited to the character of his possession; he stating in his answer that it was not unlawful.</p> <p>7. Replevin — Necessity of Demand. — In replevin for automobile, no formal demand was necessary before suit, where it appeared plaintiff had made repeated efforts to obtain the ear from defendant before suing.</p> <p>[As to necessity of demand in replevin, see note in 80 Am. St. Rep. 753.]</p>

<p>APPEAL from a judgment of the Superior Court of the' county of Maricopa. R. C. Stanford, Judge.</p>

<p>1. Railroads — Negligence—Statutes.—Tie legislature bad the power to adopt Civil Code of Arizona of 1913, paragraph 3780, making the killing of animals by the engines and ears of a railroad prima facie evidence of negligence.</p> <p>2. Railroads — Injuries to Stock — Questions for Jury — Statutory Presumption of Negligence. — Whether the presumption raised by Civil Code of Arizona of 1913, paragraph 3780, making the killing of animals by railroad ears prima fade evidence of negligence, has been overcome by evidence that there was no negligence, is a question for the jury.</p> <p>[As to duty to cattle on tracks, see note in 20 Aia. St. Rep. 161.] <</p>

<p>APPEAL from a judgment of the Superior Court of the county of Maricopa. E. C. Stanford, Judge.</p>

<p>1. Municipal Corporations — Prescribing Fire Limits and Character of Buildings — Review.—The city of Phoenix, under Civil Code of 1913, paragraph 1897, subsection 17, having the power to prescribe fire limits and to regulate the kind of materials to be used and the character of buildings to be erected, the right of the city to exercise such power may not be questioned.</p> <p>2. Municipal Corporations — Prescribing Fire Limits — Inquiry into Motives. — Courts, on; complaint of a property owner, will not inquire into the motives or purposes of a city commission in prescribing fire limits and stipulating as to the character of buildings to be erected therein.</p> <p>[As to building wooden structures in fire limits, see note in 78 Am. St. Rep. 240.]</p>

<p>APPEAL from a judgment of the Superior Court of the county of Maricopa. • F. H. Lyman, Judge.</p>

<p>1. Judges — Absence op Judge from County — Validity op Telegraphic Orders. — A trial judge who is absent from his county seat and in another county cannot make a valid order to continue a ease aud transmit it by telegraph to the clerk of the court for entry on the minutes; the judge’s presence in the county being absolutely necessary to the validity of all judicial acts unless excepted by statute.</p> <p>2. Stipulations — Sufficiency — Assent to Continuance op Hearing. — Assent by attorneys to minute entries continuing a hearing at the judge’s request because of his illness was a sufficient stipulation to enable judge to retain jurisdiction to grant a new trial, notwithstanding Civil Code of Arizona of 1913, paragraph 591, deeming a motion for new trial denied after 20 days from judgment.</p> <p>3. Corporations — Sale op Stock — Action on Contract — Verdict— Amount. — In an action on a note given for corporate stock sold under an agreement for the cancellation of the note and return of the money upon the buyer’s demand if dissatisfied, the buyer could not, on the seller’s refusal to return the money paid, recover the amount paid after having received as a stockholder part of the price thereof on account of liquidation of the stock, since to do so would give the purchaser an amount in excess of that paid for the stock.</p> <p>[As to absence of judge, see note in 122 Am. St. Hep. 721.]</p>

John J. Sweeney, Judge. STATEMENT OE FACTS BY THE COURT. The county attorney filed añ information against the defendant, Quen Guey, in the superior court of Yavapai county, wherein it is charged that the said defendant “did . . . willfully, unlawfully and feloniously commit a battery upon the person of one Minnie Schemer, by choking and striking -the said Minnie Schemer, the said Quen Guey then and there being an adult male person, and the said Minnie Schemer being then and…

Samuel L. Pattee, Judge. STATEMENT of facts by the court. This action was commenced in the superior court of Cochise county, and thereafter transferred for trial to Pima county.

<p>APPEAL from a judgment of the Superior Court of the county of Maricopa. P. H. Lyman, Judge.</p>

<p>1. Pleading — Personal Injury Actions — Election Between Counts. — In an aetion by a passenger against a street railroad company for personal injuries, it was permissible for plaintiff to allege that the injury was due to the negligent starting of the car while plaintiff was alighting, in one count, and in another count to allege that plaintiff’s skirt was caught on a protruding bolt, and no election between the two counts was required.</p> <p>2. Carriers •— Passengers — Personal Injury — Evidence — Sufficiency. — In a street-car passenger’s aetion for personal injuries while alighting, the mere fact that her skirt caught on something on the car does not justify a finding of negligence on defendant’s part; it appearing that it performed its duty in furnishing a car of the kind in ordinary use and in good repair.</p> <p>3. Carriers'— Personal Injury Actions — Evidence — Question of Fact. — In street railroad passenger’s action for personal injuries while alighting from a ear, due to the catching of her skirt on something and the starting of the car before she had time to alight, evidence of negligence held sufficient to make the question one for the jury. , i</p> <p>4. Carriers — Passengers—Personal Injury — Proximate Cause. — If a street-car passenger was injured from the concurrence of the catching of her skirt on something on the car and the starting of the car before she had time to alight, that defendant was not responsible for her skirt eatehing does not relieve it from responsibility for the accident if it negligently started its ear while plaintiff was thus embarrassed.</p> <p>5. Carriers — Passengers—Personal Injury — Cause.—Where a street railroad passenger was injured while alighting, due to her skirt catching on something on the ear, and defendant negligently started the car while plaintiff was thus impeded, the fact of plaintiff’s clothes being caught, and not the cause thereof, was proper for the jury to consider in determining whether defendant exereised due care.</p> <p>6. Appeal and Error — Harmless Error — Submission op Issues.— Where passenger on street-car, injured when alighting, based negligence of defendant on starting of street-car while her clothing was caught, submission of issue of defects in car, not sustained by evidence, by instruction placing burden of proof on plaintiff to show defects, was harmless error.</p> <p>7. Pleading — Pleading and Proof — Allegations not Essential.— Plaintiff must prove all the material allegations of the complaint before he is entitled to relief, although he need not establish allegations not essential to the cánse of action.</p> <p>8. Negligence — Pleabing — Concurring Causes of Accident. — The plaintiff must prove the specific act of negligence assigned as cause of injury, but, if the aeeident resulted from concurring causes, the proof need not show that both occurred through defendant’s negligence, even if it be so alleged.</p> <p>9. Trial — Instructions—Construction as Whole. — Instructions must be taken and construed as a whole.</p> <p>10. Trial — Instructions—Ignoring Defenses. — In a street-car passenger’s action for injuries incurred while alighting, an instruction that the conductor started the car prematurely held not erroneous as ignoring the defenses of unavoidable accident or contributory negligence in view of the pleading and proof.</p> <p>11. Trial — Instructions—Ignoring Evidence. — In a street-ear passenger’s action for injuries incurred when alighting from a car, instruction that defendant was liable if it started its car prematurely was not erroneous as ignoring knowledge or want of knowledge that plaintiff was alighting when the car was started; it being defendant’s duty to know whether plaintiff had alighted before starting the car.</p> <p>12. Carriers — Actions for Negligence — Alighting from Car. — A ' street railroad company is under the duty of observing whether a , passenger has actually alighted before starting the ear.</p> <p>13. New Trial — Grounds—Newly Discovered Evidence. — It was not error to refuse a new trial for newly discovered evidence in an aetion for injuries to a street-car passenger, where it appeared that defendant might have discovered such evidence by the exercise of due diligence.</p>

R. C. Stanford, Judge. STATEMENT OF FACTS BY THE COURT. The appellant commenced this action, alleging that it, as a corporation, on the first day of February, 1917, by written instrument, “let, leased, and rented unto-the said defendants the following described real estate, situate in Maricopa county, Arizona, to wit,” describing the lands, amounting to 440 acres, more or less, “together with all water from the Buckeye canal necessary to properly irrigate all the crops to be…

<p>APPEAL from a judgment of the Superior Court of the county of Maricopa. R. C. Stanford, Judge.</p>

<p>1. Statutes — Subjects and Title — School Districts. — Laws of 1917, chapter 5, amendatory of 'Civil Code of Arizona of 1913, paragraph 2770, authorizing creation of high school district out of a high school district, does not violate Constitution, article 4, section 13, subdivision 2, in that the title “establishment and maintenance of high schools” does not cover the subject.</p> <p>2. Constitutional Law — Delegation of Power — School Districts. Laws of 1917, chapter 5, amendatory of Civil Code of Arizona of 1913, paragraph 2770, authorizing creation of high school district out of high school district, is not invalid as unlawful delegation of power of dismembering union high school districts to electors of a portion of such district's.</p> <p>3. Constitutional Law — Privileges to Voters in School Districts —Creation of New District. — Laws of 1917, chapter 5, amendatory of Civil Code of Arizona of 1913, paragraph 2770, authorizing creation of high school district' out of high sehool district, is not invalid as an unlawful attempt to confer privileges on a portion of the electors of a union high sehool district which are not conferred on the remaining electors.</p> <p>4. Constitutional Law — Validity of Statute — Persons Entitled to Assail. — High sehool district which, after another high sehool district was created out of it, "had statutory assessed valuation of $3,000,000, and remaining territory was contiguous, could not urge that Laws of 1917, chapter 5, amendatory of Civil Code of Arizona of 1913, paragraph 2770, which authorized creation of new district, was by reason of provision for assessed valuation and contiguous territory of old district invalid because it will not operate uniformly on all communities similarly situated.</p>

<p>APPEAL from a judgment of the Superior Court of the county of Maricopa. R. C. Stanford, Judge.</p>

<p>1. Schools and School Districts — Subdivision—Proceedings—Necessity op Petition. — Despite Civil Code of Arizona of 1913, paragraph 2418, subdivision 2, the board of supervisors of a county, under paragraph 2722, have no jurisdiction to form two. districts out of a school district by subdividing it, ignoring the requirements of paragraph 2720, requiring a petition to be filed with the board.</p> <p>2. Schools and School Districts — Division op School Districts— Remedy op Taxpayers — Injunction.—A school district and its trustees in their official capacity and as taxpayers and residents held entitled to enjoin enforcement of a void division of the district into two districts by the board of supervisors of the ■ county, because enforcement of the order would deprive complainants of their property rights, and cause them injury not to be compensated by damages;</p>

R. C. Stanford, Judge. STATEMENT OF FACTS BY THE COURT. The appellants and appellee entered into a contract on the eighteenth day of July, 1917, in words and figures following: “Glendale, Ariz.

R. C. Stanford, Judge. STATEMENT OE PACTS BY THE COURT. The plaintiff (appellee) recovered a judgment for damages in the sum of six thousand dollars against the defendant (appellant) in an action for libel. The defendant appeals from the judgment and the order overruling a motion for a new trial.

<p>1. Appeal and Error — Presumptions.—On record consisting of judgment-roll only, the directed verdict must oe by t'he Supreme Court presumed correct, in the absence of the oral testimony in the case.</p> <p>2. New Trial — Newly Discovered Evidence — Impeaching.—Verdict having been directed for defendant for plaintiff’s failure to estab-' lish a prima facie case, newly discovered evidence, to be sufficiently material to warrant granting new trial under Civil Code of Arizona of 1913, paragraph 584, must be of a nature to supply the necessary absent elements of plaintiff’s case, and not merely such as t'o establish, however conclusively, that defendant made contradictory or even purposely false statements.</p>

<p>APPEAL from a judgment of the Superior Court of the county of Pima. S. L. Pattee, Judge.</p>

<p>1. Bills and Notes — Presentation of Check — Statute.—By negotiable instrument law, a cheek must be presented for payment within a reasonable time after its issue, although not at the earliest opportunity, or the drawer will be discharged from liability thereon to the extent of the loss caused by the delay.</p> <p>2. Bills and Notes — Presentation of Check for Payment — Sufficiency of Evidence. — In an action against the drawers of a cheek, evidence held to sustain the trial eourt’s finding that plaintiff payee presented the eheck to the hank on which it was drawn for payment within a reasonable time after its issue.</p> <p>3. Appeal and Error — Review—Finding on Conflicting Evidence.— A conclusion of faet reached by the trial court on conflicting evidence will not be disturbed by the supreme court.</p> <p>4. Rills and Notes — Presentation of Check for Payment — Ques- ■ tion of Pact. — Whether plaintiff, payee of a eheck, presented it for payment to the bank on which it was drawn within a reasonable time under the circumstances held a question of fact.</p> <p>5. Bills and Notes — Liability on Check. — The drawers of a cheek were liable to the payee where he within reasonable time presented it for payment to the bank on which it was drawn, and the bank requested him to return later for payment, as it was short of cash; the payee then going elsewhere and depositing the cheek for collection when the drawee bank bad become insolvent.</p> <p>6. Payment — Check — Acceptance as Payment. — A debt was not paid, by the issuance by the debtors of a check to the creditor, unless as a faet the creditor accepted the check as final payment.'</p> <p>7. Bills and Notes — Delay in Presenting Check. — Prom the fact that when debtors drew a cheek for the debt and delivered it to the creditor they had funds in bank' sufficient in amount to pay. the eheck, but the debtor did not seek to collect it through another bank until the drawee hank had become insolvent, no inference can be drawn that the debtors suffered a loss because of the creditor’s unreasonable delay in presenting the eheck for payment so as to release them from liability on the check to him.</p> <p>[As to presentment and notice of nonpayment, see note in 17 Am. St. Rep. 807.]i</p>

<p>1. Mines and Minerals — Location—Discovert of Minerals. — The discovery of mineral within the limits of the mining claim located is a necessary prerequisite to a complete and valid mining location.</p> <p>2. Mines and Minerals — Location-—Discovert of Minerals — Relocation. — Locator need not be the first or original discoverer of mineral on the mining claim located, but may appropriate an abandoned or forfeited discovery by locating the claim as a relocation; it being sufficient if he knew at the time of making his location that there had been a discovery of mineral on the location.</p> <p>3. Mines and Minerals — Discovert of Minerals — Evidence.—When controversy is between two mineral claimants, the rule respecting the sufficiency of a discovery of mineral is more liberal than when it is between mineral claimant and one seeking an agricultural entry, since where land is to be taken out of category of agricultural lands, the evidence of its mineral character should be reasonably clear. '</p> <p>4. Mines and Minerals — Discovery op Minerals — Fact Question por Trial Court. — Whether there had been a discovery of minerals on mining claim was a question of fact for trial court under the evidence. *</p> <p>6. Mines and Minerals — Discovery op Minerals — Suppiciency op Evidence. — Evidence held to warrant finding that there had been a sufficient discovery of minerals upon mining claim to satisfy statutory requirement.</p> <p>6. Mines and Minerals — Discovery op Minerals — Finding.—In suit to quiet title to mining claims, involving conflicting claims of mineral claimants, finding of failure of evidence to disclose minerals in place held to have reference to disclosing mineral in place in the discovery shaft required to be sunk within ninety days after location, under Civil Code of Arizona of 1913, paragraph 4030, subdivision 2, and not to discovery of minerals upon the claim.</p> <p>7. Mines and Minerals — Quieting Title to Mineral Claims — Materiality op Finding. — In action to quiet title to mining claims, where defense was invalidity of location by plaintiff's predecessors in interest because land had previously been located by defendant’s predecessors, finding as to whether defendant’s predecessors had complied with statute as to disclosing mineral in place in discovery shaft was immaterial, since cross-complaint had been dismissed and judgment did not determine defendant’s title to land.</p> <p>8. Mines and Minerals — Belocation — Monuments — Adoption.— Monuments placed upon land by relocator the day before the claim became open to location, where no objection thereto was made by locator then upon land, could be legally adopted by relocator upon relocating upon land the following day when it became open to location.</p> <p>9. Mines and Minerals — Monuments — Adoption by Belocator.— Monuments existing on the ground at the time of the location may be adopted by a relocator.</p> <p>10. Mines and Minerals — Location Notices. — Some precaution must be taken by prospector to protect his location notice from destruction.</p> <p>11. Mines and Minerals — Location Notice — Suppiciency op Evidence. — Evidence held to show substantial compliance with Civil Code of Arizona of 1913, paragraph 4028, requiring posting of location notice upon conspicuous monument of stones, or upon securely fixed upright post, at least four feet out of ground.</p> <p>12. Mines and Minerals — Prior Location. — Attempted location upon land withdrawn from the public domain by a prior, valid and subsisting location is wholly void for purpose of founding any right or claim to the land.</p> <p>[As to basing location off additional ground on discovery of abandoned location, see note in 139 Am. St. Bep. 165.]</p>

G. W. Shute, Judge. STATEMENT OP PACTS BY THE COURT. An action under the employers’ liability law (Civ. Code 1913, tit. 14, c. 6) by the administrator of the estate of Allen Bryan, deceased, to recover compensation for loss occasioned by an accident resulting in the death of said Allen Bryan. The cause was tried to a jury. The jury rendered a verdict for plaintiff. The defendant moved to vacate the verdict and moved for a judgment for defendant notwithstanding the verdict.

<p>APPEAL from a judgment of the Superior Court of the county of Maricopa. George H. Crosby, Jr., Judge.</p>

<p>APPEAL from a judgment of the Superior Court of the county of Gila. G. W. Shute, Judge.</p>

<p>1. Taxation — Orders Appealable — Appeal prom Board op Equalisation. — Order of superior court on taxpayer’s appeal from board of equalization, under Civil Code of Arizona of 1913, paragraph 4887, is appealable.</p> <p>2. Taxation — Assessment — Appeal — Superior Court. — Superior court, under Civil Code of Arizona of 1913, paragraph 4887, held without jurisdiction of appeal by taxpayer dissatisfied with amount of assessment of mills and smelters for reduction of ore, as fixed ■by state tax' commission and board of equalization; the matter being wholly within province of state tax commission’s duties.</p>

<p>'APPEAL from a judgment of the Superior Court of the county of Maricopa. F. H. Lyman, Judge.</p>

<p>APPEAL from a judgment of the Superior Court of the county of Yavapai. John A. Ellis, Judge.</p>

Frank Baxter, Judge. STATEMENT OF PACTS BY THE COURT. Action to recover the damages given by the employers’ liability law (Civ. Code 1913, pars. 3153-3162) for personal injuries suffered by James Chapman, which resulted in his death. The plaintiff alleges that the said deceased was in the employ of the defendant, and that he was injured by accident arising out of and in the course of his said employment, which resulted dn his death.

<p>1. Constitutional Law — Power of LEGiSLATURE.-r-The legislature has all power not prohibited to it by the state or federal Constitution.</p> <p>2. States — Power of Governor. — The governor can exercise only such power as is granted to him by the state Constitution.</p> <p>3. Constitutional Law — Construction of Constitutional Provisions. — Provisions of the Constitution dealing with same subject matter are to be construed together.</p> <p>4. Statutes — Time of Taking Effect — Emergency Act not Approved by Governor. — Laws of 1919, chapter 160, relating to state land department, having been passed as emergency legislation and having been retained by the Governor without approval or veto for ten days after adjournment of legislature, took immediate effect as a law under Constitution, article 4, sections 12 and 13, and article 5, section 7, notwithstanding article 4, section l‘ subdivision 3, requiring emergency bill to be passed by a two-thirds vote “and also approved by fhe Governor.”</p> <p>5. Statutes — Emergency Legislation — Necessity of Governor’s Approval. — Under Constitution, article 4, section 13, and section 12, requiring that “every measure ... be presented to the Governor for his approval or disapproval,” and article 5, section 7, providing that “any bill,” not returned within five days, or filed with objections within ten days after adjournment, shall become a law, an emergency measure retained by Governor without action for t'en days after adjournment took immediate effeet, notwithstanding article 4, section 1, subdivision 3, requiring emergency bill to be passed' by two-thirds vote “and also approved by the Governor,” sinee, being a “bill,” an emergency measure can become a law in-same manner as ordinary measures,., by express approval of Governor, by passage over veto, or by Governor’s failure to return bill.</p> <p>6. Statutes — Emergency Legislation — Approval by Governor. — t Constitution, article 5, section 7, relating to Governor’s power to approve or veto bill, is applicable to emergency as well as ordinary measures notwithstanding provision that “this section shall not apply to emergency measures as referred t'o in section 1 of the article on the legislative department”; such provision, in view of section 1, having reference merely to preceding sentence relating to reconsideration and passage of bills over Governor’s veto.</p> <p>7. Constitutional Law — Construction of Constitutional Provisions. — The prime effort in construing constitutions is to ascertain the intention of those wsjio framed them, and, to give effeet to the intention therein expressed when sueh intention can be collected therefrom, words may be modified, altered, or supplied so as to obviate any repugnancy to- or inconsistence with such intention, although in so doing particular provisions may not be read or construed according to their literal meaning.</p>

<p>APPEAL from a judgment of the Superior Court of the County of Maricopa. Samuel L. Pattee, Judge.</p>

<p>1. Indictment and Information — Information Insufficient for Failing to State Acts Constituting Offense. — In view of Penal Code of Arizona of 1913, sections 934, 936, 938, 939, 943, and Constitution, article 2, section 24, an information charging that accused, “on. or about the twenty-seventh day of December, 1918, at and in the county of Turna, state of Arizona, did then and there willfully and unlawfully give, sell, and dispose of intoxicating liquor to another, contrary,” etc., was fatally defective, in that it did not contain a statement of the acts constituting the offense in ordinary and concise language notwithstanding the rule as to the sufficiency of charging offense in the language of the statute.</p> <p>2. Intoxicating Liquors — Information must Give Name of Buyer of Liquor. — An information for violation of the prohibition law must, in view of Penal Code of Arizona of 1913, sections 934, 936, 938, 939, 943, and Constitution, article 2, section 24, name the person to whom the liquor was sold or given.</p> <p>[As to prohibited sales and gifts in general, see note in 12 Am. St. Rep. 353.]</p>

<p>1. Appeal and Error — Erroneous Instruction not Reversible Error Where Evidence not Brought Up. — Assuming that an instruction is an incorrect statement of law and not overlooking the presumption of prejudice which generally follows an erroneous ruling of the trial court, it cannot be said, in the absence of the evidence from the record, that the instruction prejudicially affeeted the result, so that the instruction cannot be reviewed upon appeal unless prejudicial in any conceivable state of the evidence,</p> <p>2. Appeal and Error — Instruction not Warranted by Pleadings Harmless Error. — An instruction that the jury could not allow anything by way of attorneys’, fees in a personal injury action was erroneous and wholly uncalled for, where the pleadings made no reference to attorneys’ fees and the plaintiff claimed none, but could not have been prejudicial to plaintiff, appellant, and would" not warrant reversal.</p>

<p>APPEAL from a judgment of the Superior Court of the County of Yavapai. John J. Sweeney, Judge.</p>

P. H. Lyman, Judge. STATEMENT OF FACTS BY THE COURT. Action by the appellee as the owner of lot 15, block 3, Bella Vista place, to compel the appellant tax collector to accept one-half of the amount of the delinquent taxes, penalties, and costs constituting a lien on lots 14 and 15 of said block 3 for the taxes assessed against said lots as one item as the taxes payable thereon for the year 1915, assessed as the property of Murphy & Irwin as the owner of said two lots.

<p>APPEAL from a judgment of the Superior Court of the County of Maricopa. P. H. Lyman, Judge.</p>

<p>APPEAL from a judgment of the Superior Court of the County of Maricopa. F. H. Lyman, Judge.</p>