Volume 20 — Idaho Reports

Original action for writ of mandate. A judgment lien obtained against a judgment debtor’s property in bis lifetime is still a valid lien after tbe death of the judgment debtor.

Hon. E. A. Walters, Presiding Judge. Action to recover damages for personal injuries on account of defective sidewalk. Judgment for plaintiffs. Both parties appeal. Instructions must be based on the evidence, and it is error to give any instructions not so predicated. (11 Ency.

Original action praying for a writ of mandate. “In the exposition of a statute the intention of the lawmakers will prevail over the literal sense of the terms; and its reason and intention will prevail over the strict letter.

<p>APPEAL from the District Court of the Third Judicial District, in and for Owyhee County. Hon. John F. Mac-Lane, Judge.</p> <p>Action for approval and confirmation of the proceedings taken for the organization of the Gem Irrigation District and for the issue of the bonds of said district. Judgment by the district court confirming said proceedings.</p> <p>In this district the board is still maintaining the idea of a pumping plant, as was proposed at the inception of the district, and intends to pump water to all the lands included in the district, but over seven thousand acres have been annexed to the district by petition, and it is found beneficial to these lands, and also to the lands originally under the pumping system, to store the waters of Succor creek to supply these lands so added to the district, and also to use its waters in the irrigation of the lands under the pumping system. {Nampa etc. Irr. Hist. v. Brose, 11 Ida. 474, 83 Pac. 499.)</p>

Hon. C. O. Stockslager, Judge. Action by plaintiff to enjoin the issuance and sale of certain municipal coupon bonds. Judgment for the defendant, and plaintiff appealed. In elections of this character, the ballots must be so prepared that every elector may declare his choice as to- each purpose, and the amount proposed to be applied thereto must also be stated.

Hon. Jas. M. Stevens, Judge. Action to recover damages for breach of contract for the sale of hay. Judgment for defendant. Merchantable means fit for sale; vendible in the market; of a quality such as will bring the ordinary market price.

Hon. Alfred Budge, Judge. Action by plaintiffs to recover damages for breach of contract of warranty.

<p>APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. Robert N. Dunn, Judge.</p> <p>Action by plaintiff to recover damages from the defendant caused by the careless and negligent setting of fire. Judgment for the plaintiff, and defendant appealed.</p> <p>“In an action to recover damages for loss occasioned by railroad fires, it devolves on the plaintiff to prove by a preponderance of the evidence that the fire was communicated by sparks or cinders from the railroad engine.” (Union Pac. Ry. Go. v. Keller, 36 Neb. 189, 54 N. W. 420; Stratton v. U. R. R. Go., 7 Colo. App. 126, 42 Pac. 602; Refer v. Mo. Pac. Ry. Go., 98 Mo. App. 291, 71 S. W. 1073.)'</p> <p>The courts have held in cases where the evidence was very much stronger than in this case that it was insufficient to justify a verdict for plaintiff. (L. & N. R. Go. v. Mitchell, 17 Ky. L. 977, 29 S. W. 860; Megow v. G. M. & St. P. Ry. Go., 86 Wis. 466, 56 N. W. 1099; Lake Erie <& W. R. Go. v. Gossard, 14 Ind. App. 244, 42 N. E. 818; Gyle v. Denver R. G. R. Go., 37 Colo. 298, 86 Pac. 1010; International & G. R. Co. v. Morgan, 28 Tex. Civ. App. 348, 67 S. W. 425.)</p> <p>The admission in evidence of Plaintiff’s Exhibit “A,” which was an alleged statement or admission of defendant’s agent Travers, is reversible error. A statement of an agent or employee such as a section foreman is not admissible to bind the defendant, and it makes no difference whether this admission be verbal or in writing. {A. T. & S. F. Ry. Go. v. Osbum, 58 Kan. 768, 51 Pac. 286; Union Pac. Ry. Go. v. Fray, 35 Kan. 700, 12 Pae. 98; Tennis v. Railway Go., 45 Kan. 503, 25 Pac. 876; A. L. & S. F. Ry. Go. v. Wilkinson, 55 Kan. 83, 39 Pac. 1043; 16 Cyc. 1214.)</p> <p>The court erred in refusing to allow admissions made by Mrs. Travers at the time of the fire, as these actually were a part of the res gestae, simultaneous with the beginning of the fire and showing exactly the cause of the same. (State v. Kaiser, 124 Mo. 651, 28 S. W. 182.) This is even the rule in criminal eases. (State v. Desroches, 48 La. Ann. 428, 19 So. 250: Sullivan v. State (Miss.), 32 So. 2.)</p> <p>The alleged admissions or declarations of the station agent were not admissible as proof of the plaintiff’s case, and therefore they are a collateral matter upon which impeachment will not lie. (Shephard v. State, 88 Wis. 185, 59 N. W. 449; People v. Webb, 70 Cal. 120, 11 Pac. 509; Wojtylak v. K. & T. Goal Go., 188 Mo. 260, 87 S. W. 506; State v. Davidson, 9 S. D. 564, 70 N. W. 879.)</p> <p>The trial judge did his duty, and his action was proper in refusing to grant a new trial. (Walsh v. Winston Bros., 18 Ida. 768, 111 Pac. 1090.)</p> <p>It is a well-established rule of this court that when there is a substantial conflict in the evidence, the findings and verdict of the jury will not be disturbed. (Eaves v. Sheppard, 17 Ida. 268, 134 Am. St. 256, 105 Pac. 407; Edmondson v. Taylor, 17 Ida. 618, 106 Pac. 991; Valley L. Go. v. Mc-Gilvery, 16 Ida. 338, 101 Pac. 94; Lamb v. Licey, 16 Ida. 664, 102 Pac. 378; Just v. Ida. G. & I. Co., 16 Ida. 639, 133 Am. St. 140, 102 Pac. 381, Leggett v. Evans, 16 Ida. 760, 102 Pac. 486; Church v. Van Housen, 15 Ida. 249, 97 Pac. 36; Whitney v. Woodmansee, 15 Ida. 735, 99 Pac. 968; Later v. Haywood, 15 Ida. 716, 99 Pac. 828; Buckle v. Mc-Gonaghy, 12 Ida. 733, 88 Pac. 100.)</p> <p>The rebutting evidence of the appellant was not sufficiently clear to warrant the trial court in taking the ease from the jury. (McCullen v. Chicago & N. W. By. Go., 101 Fed. 66, 41 C. C. A. 365, 49 L. R. A. 642; Minn. St. P. & S. S. M. By. Co. v. Emerson, 80 Fed. 993, 26 C. C. A. 296.)</p>

Hon. Fremont Wood, Judge. Action by plaintiff to recover damages. Judgment for plaintiff and defendant moved for a new trial and his motion was granted. Plaintiff appealed from the order granting a new trial. It is generally held an invasion of the province of the jury to set aside a verdict that is not clearly or decidedly against the evidence or the weight of evidence. (Drennen v. Brown, 10 Ark. 138; Clark v. Whitaker, 19 Conn. 319, 48 Am.

Hon. Edgar C. Steele, Judge. Action for an injunction to restrain the defendant from erecting a dam in the North Fork of the Clearwater river, and to have declared unconstitutional a certain act of the legislature. Judgment for defendant. The North Fork of the Clearwater river is, and from time immemorial has been, a navigable river and a public highway.

Hon. James M. Stevens, Judge. Action to have a certain deed and contract declared a mortgage and to redeem therefrom, and for damages. Judgment for plaintiff, from which he appeals. Deed intended as mortgage does not pass legal title. (Ma-bury v. Ruiz, 58 Cal. 11.) If a mortgage at the beginning, the instrument always remains a mortgage. (Burton v. Lies, 21 Cal. 89.) Right to redeem from a mortgage cannot be waived by express stipulation of parties.

Hon. Edward A. Walters, Judge. Action of claim and delivery to recover possession of a steer. Judgment for defendant, from which and from an order denying a new trial plaintiffs appeal.

Hon. Edward A. Walters, Judge. Action for. specific performance of contract. Judgment for the defendant and plaintiff appealed. As a general rule, the covenant against encumbrance is broken by any outstanding easement which diminishes the value of the land conveyed, nor will the knowledge by the grantee of the existence of the easement make any difference. (Ensign v. Colt, 75 Conn. Ill, 52 Atl. 829, 946; Weiss v. Binnian, 178 111. 241, 52 N. E. 969 (affirming 78 111.

<p>APPEAL from the District Court of the Fourth Judicial District for Twin Falls County. Hon. Edward A. Walters, Judge.</p> <p>Action to recover the purchase price for the alleged sale of real estate. Judgment for the defendants.</p> <p>All prior or contemporaneous negotiations were merged into the written deed, executed and delivered on July 6, 1909, and as restricted by the contract. (Jacobs v. Shenon, 3 Ida. 274, 29 Pac. 44; Morrow v. Matthews, 10- Ida. 423, 79 Pac. 196; Tyson v. Neill, 8 Ida. 603, 70 Pae. 790.)</p> <p>“Every grant or conveyance of an.estate in real property is conclusive against the grantor, also against every one subsequently claiming under him.” (Sec. 3114, Rev. Codes; 16 Cyc. 686, 700, and authorities cited; Dennison v. Willcut, 3 Ida. 793, 35 Pac. 698; State v. McDonald, 4 Ida. 468, 95 Am. St. 137, 40 Pae. 312; Davis v. Nat. Sec. Go., 139 Cal. 223, 72 Pac. 1001; Wells-Fargo & Go. v. Alturas Gom. Go., 6 Ida. 506, 56 Pae. 165; Dutton v. Ensley, 21 Ind. App. 46, 69 Am. St. 340, 51 N. E. 380; Deiderich v. Alexander, 58 Kan. 56, 48 Pac. 594; Hutchison v. Lord, 1 Wis. 286, 60 Am. Dee. 381; Daniels v. Tearney, 102 U. S. 415, 26 L. ed. 187.)</p> <p>Belle Brown and Salsbury are estopped from denying the terms of the deed and the contract. (13 Cyc. 604, 611, and cases cited.)</p> <p>For the court to allow Tyler and Schurger to be divested of their interest, by proof of oral consent, is clearly contrary to the plain provisions of law, and should have been stricken. (Sees. 6007 and 6009, Rev. Codes; McGinness v. Stanfield, 6 Ida. 372, 55 Pac. 1020; 20 Cyc. 218; 12 Ency. of Ev. 23.)</p> <p>The rights of tenants in common are distinct and separate, that is, one can sell and dispose of his interest without the consent of, and without affecting, the other or others. (17 Am. & Eng. Ency. of Law, 655; Pewris v. Govillaud, 6 Cal. 617, 65 Am. Dec. 543.)</p> <p>A sale of the whole property by one tenant in common does not dispose of nor affect the interest or interests of the other or others, but passes only the title which he may have. (Ames v. Howes, 13 Ida. 766, 93 Pac. 35; People v. Marshall, 8 Cal. 51; Emeric v. Alvarado, 90 Cal. 444, 27 Pac. 356.)</p>

<p>APPEAL from tbe District Court of tbe Fourth Judicial District, for Twin Falls County. Hon. Edward A. Walters, Judge.</p> <p>From an order vacating and setting aside a default judgment and opening a default and allowing tbe defendant to answer, plaintiff appealed.</p> <p>On appeal tbe court will not presume from the giving of a notice of motion that such motion was actually made. This fact must appear from tbe record. (Heerlich v. McDonald, 80 Cal. 472, 22 Pac. 299; Lewis v. Fireman’s Ins. Co., 67 111. App. 195; People v. Ah Sam, 41 Cal. 645; Thomas v. Superior Court, 6 Cal. App. 629, 92 Pac. 739; Spencer v. Bran-ham, 109 Cal. 336, 41.Pae. 1095.)</p> <p>“The attention of the court must be called to the relief prayed for, and tbe court moved to grant it." (14 Eney. PI. & Pr. 74.)</p> <p>When an application is made for an order, the grounds of the motion should be stated specifically, and the grounds not so stated cannot be considered by the courts. (Thompson v. Los Angeles, 125 Cal. 270, 57 Pac. 1015; Robson v. Colson, & Ida. 215, 72 Pae. 951; Ida. Mer. Co. v. Kalanquin, 7 Ida. 295, 62 Pac. 925; Civens v. Keeney, 7 Ida. 335, 63 Pae. 110; Miller v. Luco, 80 Cal. 257, 22 Pae. 195; Loring v. Stewart, 79 Cal. 200, 21 Pae. 651; Shain v. Forbes, 82 Cal. 577, 23 Pac. 198.)</p> <p>The record in the case at bar contains no motion whatever. Further, there is nothing in the record whereby this court can infer that such a motion was ever made.</p> <p>Correct practice and the rule in this state to be followed is that, in addition to the showing of one of the grounds mentioned in sec. 4229, Eev. Codes, the defendant in his affidavit of merits must set forth the substance of his defense, so that the court may judge for itself whether the alleged defense is frivolous or meritorious. (Holland Bank v. Lieu-alien, 6 Ida. 127, 53 Pac. 389; Holzeman v. Henneberry, 11 Ida. 428, 83 Pac. 497; Western Loan & Savings Co. v. Smith, 12 Ida. 94, 85 Pac. 1084; Beck v. Lavin, 15 Ida. 363, 97 Pac. 1028; Council Imp. Co. v. Draper, 16 Ida. 541, 102 Pae. 7; Harr v. Kight, 18 Ida. 53, 108 Pac. 539; Morbeck v. Bradford-Kennedy Co., 19 Ida. 83, 113 Pac. 89.) The California courts have held to this rule: “In order to justify the vacating of a judgment and the setting aside of a default, the party claiming to be thus aggrieved must show excusable neglect or present a reasonable excuse for his default.” {Shearman v. Jorgensen, 106 Cal. 483, 39 Pac. 863; Edwards v. Hellings, 103 Cal. 204, 37 Pac. 218; Heine v. Treadwell, 72 Cal. 217, 13 Pac. 503.) Also the Washington court, under a similar statute. {Minneapolis Steel & Mach. Co. v. Aetna etc. Co., 56 Wash. 699. 106 Pac. 160.) And the Colorado court. {Thompson v. Crescent Mill & Elev. Co., 47 Colo. 4, 105 Pac. 880.) Also Montana. {Thomas v. Chambers, 14 Mont. 423, 36 Pac. 814; City of Helena v. Brule, 15 Mont. 429, 39 Pae. 456, 852; Morse v. C allant i/ne, 19 Mont. 87, 47 Pac. 635; Jones v. Jones, 37 Mont. 155, 94 Pae. 1056; Brown v. Weinstein, 40 Mont. 202, 105 Pae. 730, and other cases.)</p> <p>There is no showing in the record of objection to the sufficiency of respondents’ affidavit, nor any showing of objection as to the motion or want of a motion to vacate and set aside the default judgment herein taken against respondents. The presumption, therefore, is that even if insufficient, the appellant waived his objections, if any he had, and cannot now for the first time raise objections thereto.</p> <p>“The application to set aside and vacate a judgment is addressed to the sound legal discretion of the court, and unless it appears that such discretion has been abused, the order will not be disturbed upon appeal.” (Culver v. Mountain Borne Elec. Co., 17 Ida. 669, 107 Pac. 65.)</p> <p>The trial court should always exercise its discretion in favor of setting aside a default when the application is made in good faith and any reasonable showing is made. (Dougherty v. Nevada Bank, 68 Cal. 276, 9 Pae. 112, 5 Am. & Eng. Ency. of Law, 496; Buell v. Em-erich, 85 Cal. 116, 24 Pac. 644; Anaconda Min. Co. v. Saile, 16 Mont. 8, 50 Am. St. 472, 39 Pac. 909; Webster v. Somer (Cal.), 114 Pae. 575.)</p> <p>“There is a plain difference in meaning between ‘default’ and ‘absence’; ‘default’ signifying that there has not been an appearance at any stage of the action by the party in default, while ‘absence’ means that the party was not present at a particular time.” (Covart v. Baskins, 39 Kan. 571, 18 Pac. 522.)</p>

Original application to this court for a writ of habeas corpus on the ground that the petitioner is illegally imprisoned and restrained of his liberty. All persons within the territorial jurisdiction of the United States are within the protection of the fourteenth amendment to the constitution, without regard to differences of race, of color or nationality. (Tick Wo v. Hopkins, Sheriff, 118 U. S. 356, 6 Sup.

<p>APPEAL from tbe District Court of the Third Judicial District for Ada County. Hon. Fremont Wood, Judge.</p> <p>Action by plaintiff for damages sustained by reason of the flooding and overflowing of city lots. Judgment for the plaintiff and defendant appealed.</p> <p>A municipal corporation, in grading its streets, constructing gutters, sewers and other waterways, need not provide against extraordinary storms, such as are not reasonably to be anticipated, but performs its whole duty if such improvements are carefully constructed on a reasonably sufficient plan, só as to be sufficient for all ordinary seasons. (5 Thomp. Neg., sec. 5877; 2 Farnham, 1159.)</p> <p>Ordinary care and skill does not require the occurrence of cloudbursts to be foreseen or guarded against, though it is known that they have many times happened, and that they will certainly recur. (Central Trust Co. v. Wabash, St. L. & P. Co., 57 Fed. 441.)</p> <p>Notwithstanding the defendant in this case may have been negligent, still if the storm described in the pleading was of such overwhelming character that it would have produced the injury independently of such negligence of the defendant, in such case the storm would be an intervening agency, which could not have been anticipated, and such agency becomes the proximate cause of the injury complained of by the plaintiff, and plaintiff cannot recover. (Grand- Talley Irr. Go. v. Pitzer, 14 Colo. App. 123, 59 Pae. 420; Siegfried v. St. Bethleham Ch., 27 Pa. Sup. Ct. 456; Thomas v. Birmingham Canal Co., 49 L. J. Q. B. 851, 45 J. P. 21; Schmidt v. Mitchell, 84 111. 195, 25 Am. Rep. 446.)</p> <p>A municipal corporation is not an insurer, and if it takes reasonable precaution to have the passageway sufficient by the employment of competent engineers, it will not be liable for honest mistake of judgment. (Boss v. Madison, 1 Ind. 281, 48 Am. Dec. 361; Evansville v. Decker, 84 Ind. 325, 43 Am. Rep. 86; Haynes v. Burlington, 38 Yt. 350; 1 Farnham, 361.)</p> <p>A municipal corporation is not bound to anticipate extraordinary floods, but must provide for that which must reasonably be expected to occur. (Madison v. Boss, 3 Ind. 236, 54 Am. Dee. 481; Evansville v. Decker, 84 Ind. 325, 43 Am. Rep. 86; 1 Farnham on Waters, 362, 363.)</p> <p>A municipality in constructing and caring for its sewers is bound to use only the care and skill which a reasonably prudent person would exercise. It is not liable for injuries from accidents or acts of God, nor for injuries which are caused by an unprecedented rainstorm or flood. The measure of its liability in this regard is to provide for such floods as may have been reasonably expected, judging from such as have previously occurred, although they may have been at wide and irregular intervals of time. (Willson v. Boise City, 6 Ida. 391, 55 Pac. 887; Axtell v. Northern Pac. B. Co., 9 Ida. 392, 74 Pac. 1075; Lamb v. Dicey, 16 Ida. 664, 102 Pae. 378; Chicago v. Rustin, 99 111. App. 47; Haney v. Kansas, 94 Mo. 334, 7 S. W. 417.)</p> <p>This court, in a case where the present litigants were the parties, held the city liable for damages caused by the water and sand of 'Cottonwood creek overflowing the banks of the same flume that is now in question. (Willson v. Boise City, 6 Ida. 395, 55 Pac. 887.)</p> <p>This decision, while it needs no support -to make it the law of this case, has support in later authorities. (Farnham on Water Rights, pp. 1490, 2569.)</p> <p>The question of the city’s responsibility for Cottonwood flume might be said to be res adjudicata, for while the identical damage is not here concerned that was concerned in the former case referred to, still the main point of responsibility is. identical. (Hilton v. Stewart, 15 Ida. 150, 128 Am. St. 48, 96 Pac.579, 18 L. R. A., N. S., 886; Elliott v. Porter, 6 Ida. 684, 56 Pae. 360; Kester v. Schuldt, 11 Ida. 663, 85 Pac. 974; Shephard v. Coeur d’Alene Lbr. Co., 16 Ida. 292-295, 101 Pac. 591; Keane v. Pittsburg Lode Min. Co., 17 Ida. 179-192, 105 Pac. 60.)</p> <p>One who pleads the act of God must show that his negligence did not contribute as a proximate cause to the act of God relied upon as a defense. (10 Current Law, 1093.)</p> <p>“One must provide against such acts of God as may be reasonably anticipated, and one may be liable for the results of negligence notwithstanding an act of God concurred in producing them.” (Carhart v. State, 115 App. Div. 1, 100 N. T. Supp. 499; Gulf etc. Co. v. Boyce, 39 Tex. Civ. App. 195, 87 S. W. 399; 10 Current Law, 1025; Mahaffey v. Company, 61 W. Va. 571, 56 S. B. 893, 8 L. R. A., N. S., 1263; Birsch v. Citizens’ Elec. Go., 36 Mont. 574, 93 Pac. 940; Goe v. N. P. R. Co., 30 Wash. 654, 71 Pac. 182.)</p> <p>The term “act of God,” in its legal sense, applies only to events in nature so extraordinary that the history of the climatic variations and other conditions in the particular locality afford no reasonable warning of them. (Gulf Red Cedar Co. v. Walker, 132 Ala. 553, 31 So. 374; By an v. Rogers, 96 Cal. 349, 31 Pac. 244; Polack v. Pioche, 35 Cal. 416, 95 Am. Dee. 115; Smith v. Western R. R. of Ala., 91 Ala. 455, 24 Am. St. 929, 8 So. 754, 8 L. R. A. 619; Los Angeles Scale etc. Co. v. Los Angeles, 103 Cal. 461, 37 Pac. 375; Lamb v. Licey, 16 Ida. 664,102 Pac. 378; 1 Cyc. 758; Kuhnis v. Lewis River etc. Co., 51 Wash. 196, 98 Pac. 655.)</p> <p>Where human agency contributes to the act of God or vis major, then it is no defense. (Benedict Pineapple Co. v. Atl. C. Line R. Co., 55 Fla. 514, 46 So. 732, 20 L. R. A., N. S., 92; Booker v. Southwest Mo. R. Co., 144 Mo. App. 273, 128 S. W. 1012; St. Louis S. W. R. Co. v. Mackey (Ark.), 129 S. W. 78; Buel v. Chicago R. I. & P. R. Co., 81 Neb. 430, 116 N. W. 299; Kansas City v. King, 65 Kan. 64, 68 Pac. 1093.)</p> <p>The burden of proving an unprecedented flood as an act of God is upon the defendant. (Jones v. Seaboard Air Line R. Co., 67 S. C. 181, 45 S. E. 188; 5 Ency. Daw, Supp. 30, par. 579.)</p> <p>Injury and loss can never be attributed to the act of God if in any fair view of the evidence it can be held to be due to the act of man. (Georgia S. & F. R. Co. v. Barfield (Ga. App.), 58 S. E. 236; Richards v. City of Ann Arbor, 152 Mich. 15,115 N. W. 1047.)</p>

<p>APPEAL from the District Court of the Seventh Judicial District for Canyon County. Hon. Ed. L. Bryan, Judge.</p> <p>Upon motion of plaintiffs for an injunction pendente lite and upon answer of defendants asking for a like order, an order for injunction pendente lite was made. Defendants appeal from such order.</p> <p>The defendants having denied plaintiffs’ title, possession and right of possession and also the ousting, and it being admitted that the defendants were in the possession of the real property in dispute, the court erred in disturbing, prior to final hearing, said possession. (22 Cyc. 743, and authorities cited; San Antonia Water Go. v. Bodenhamer Water Go., 133 Cal. 248, 65 Pac. 47; Hagen v. Beth, 118 Cal. 330, 50 Pac. 425.)</p> <p>There was no impropriety, whether we consider the second motion for a preliminary injunction as a new and original motion or as a renewal of the old motion, in making and entering the order from which the appeal is taken. The court having considered the second motion upon its merits must be deemed to have given leave that it should be made; but even without leave of court a motion denied merely for irregularity in the motion papers may be renewed. (Marvin v. Lewis, 12 Abb. Pr. (N. Y. Supr. Ct.) 482; Adams v. Bush, 2 Abb. Pr., N. S. (N. Y.), 112; Gorwith v. Illinois State Bank, 15 Wis. 289; Skinner v. Steele, 88 Hun (N. Y.), 307, 34 N. Y. Supp. 748; Hoffman v. Livingston, 1 Johns. Ch. (N. Y.) 211; Dodd v. Astor, 2 Barb. Ch. (N. Y.) 395.)</p> <p>Although notice of application for a preliminary injunction be required by statute, it may be waived by the defendant by voluntarily appearing. (Marsh v. Bennett, 5 McLean (U. S.), 117, Fed. Cas. No. 9110; Brown v. Pacific Mail S. S. Go., 5 Blatchf. (U. S.) 525, Fed. Cas. No. 2025; Patterson v. Stair, 26 Ind. 137; Brammer v. Jones, 2 Bond- (U. S.), 100, Fed. Cas. No. 1806.)</p> <p>“An injunction, whether temporary or permanent, cannot, as a general rule, be sought as a matter of right, but its granting or refusal rests in the sound discretion of the court under the circumstances, of the particular case. Especially is this the rule in the case of a temporary injunction where the granting of the injunction depends upon the determination of questions of fact and the evidence is conflicting.” (22 Cye. 746-748.)</p>

<p>APPEAL from the District Court of the Sixth Judicial District for Lemhi County. Hon. James M. Stevens, Judge.</p> <p>An action to determine the validity of a proposed issue of municipal bonds.</p> <p>This court has held that different propositions for different objects may he embodied in one ordinance, provided that each proposition is so clearly and distinctly submitted to the electors of the municipality that they may adopt or reject it, independently of the others. (Sommercamp v. Kelly, 8 Ida. 712, 71 Pae. 147; Platt v. City of Payette, 19 Ida. 470, 114 Pae. 25.)</p> <p>The inference from these two cases is so plain that the court would be bound to reverse itself in order to sustain a proposed issue of bonds, as in the present case, where one vote is taken for three separate and distinct purposes. But the inference is supported by authorities from other states, in which the question is directly ruled upon. (McBryde v. City of Montesano, 7 Wash: 69, 34 Pac. 559; City of Denver v. Kayes, 28 Colo. 110, 63 Pac. 311; Cain v. Smith, 117 Ga. 902, 44 S. E. 5; North Tonawanda v. Western Trans. Co., 16 Abb. Pr., N. S. (N. Y.), 297; note 67, 28 Cye. 1590.)</p> <p>In the case at bar it was the purpose and intention of the village trustees to purchase the waterworks, system, rights and franchises of a local company for the sum of $30,000, and to expend in addition an amount not exceeding $15,000 in enlarging and extending the same, and an amount not exceeding $5,000 in the purchase of a site and the erection of a building thereon in which to keep the tools and supplies used and needed in maintaining and operating a water system, and in which it might have necessary quarters for making repairs and proper offices for the use of persons representing the city in the care and control of the plant.</p> <p>Each of the three objects specified were dependent on the other two, and must in some way be secured before the city will have a complete waterworks system that can be maintained and operated practically and economically.</p> <p>If the three objects enumerated in Ordinance No. 98, and for which the bonded indebtedness was to be incurred, were so connected as to constitute a complete plan or system, then only one proposition was involved, and only one question was required to be submitted at the special election held with reference to the approval or disapproval of said bond issue. (Corker v. Village of Mountainhome, ante, p. 32, 116 Pac. 108; City of Oakland v. Thompson, 151 Cal. 572, 91 Pac. 387; People v. Counts, 89 Cal. 15, 26 Pac. 612; Stern v. City of Fargo, 18 N. D. 289, 122 N. W. 403; Cary v. Blodgett, 10 Cal. App. 463, 102 Pac. 688; State v. Wilder, 200 Mo. 97, 98 S. W. 465; Coleman v. Town of Eutaw, 157 Ala. 327, 47 So. 703; Kemp v. Toivn of PLazelhurst, 80 Miss. 443, 31 So. 908; Louisville v. Board of Park Commrs., 112 Ky. 409, 65 Pac. 860.)</p> <p>The power-to construct and maintain, or words of similar meaning, includes the power to purchase. (Seymour v. Tacoma, 6 Wash. 138, 32 Pac. 1077; Dick v. Scarborough, 73 S. C. 150, 53 S. E. 86; 2 Abbott on Mun. Corporations, sec. 457.)</p> <p>A liberal construction must be given to a statute authorizing the issue of public improvements bonds, so as not to defeat the manifest object of the enactment, a substantial compliance only being required. (City of Cheyenne v. State, 17 Wyo. 90, 96 Pac. 244; Edwards v. City of Cheyenne (Wyo.), 114 Pae. 677.)</p>

Hon. Carl A. Davis, Judge. Action to recover maintenance fees and charges for use of canal and laterals. Judgment for the defendant. Plaintiff moved for a new trial and the motion was granted and defendant appealed. An order granting a new trial will not be disturbed in the absence of abuse of discretion.

Hon. Fremont Wood, Judge. An action to foreclose a mechanic’s lien. Judgment for plaintiff. Defendant appealed. It does not seem tenable that under the general laws of this state in regard to the commencing of civil actions one may file his complaint and not have summons issued until the last day of the time allowed by sec. 4139, Eev.

An original application in this court for a writ of habeas corpus. The matter of the defendant waiving a jury trial under a plea of guilty in felony cases has been presented to the California courts and has been decided by them. The earliest case seems to be that of People v. Noll, 20 Cal. 164. The court ■in this case, wherein the defendant was charged with the crime of murder and had plead guilty thereto, said: -“No issue was shown upon which there could be a trial.

<p>APPEAL from tbe District Court of tbe Fourth Judicial District, in and for Elmore County. Hon. Edward A. Walters, Judge.</p> <p>Action by plaintiff for damages. Judgment in favor of tbe plaintiff and defendant moved to vacate tbe judgment and appealed from tbe order denying bis motion.</p> <p>“A statute providing for tbe opening or vacation of a judgment by default is remedial, and should be liberally construed by tbe courts, especially in those eases where such a construction is calculated to advance justice.” (6 Ency. PI. & Pr. 154; Meade Go. Bank v. Decker, 19 S. D. 128, 102 N. W. 597; Walsh v. Boyle, 94 Minn. 437, 103 N. W. 506; Lemon v. Hubbard, 10 Cal. App. 471,102 Pac. 554; Fildew v. Milner (Or.), 109 Pac. 1092; Harr v. Eight, 18 Ida. 53, 108 Pac. 539.)</p> <p>“Tbe power of tbe court should be freely and liberally exercised under this and other sections of tbe act, to mold and direct its proceedings so as to dispose of eases upon their substantial merits.” (Boland v. Ereyenhagen, 18 Cal. 455; Buell v. Emerich, 85 Cal. 116, 24 Pae. 644; Harbaugh v. Honey L. & W. Go., 109 Cal. 70, 41 Pac. 792; Cutler v. Haycock, 32 Utah, 354, 90 Pae. 897.)</p> <p>While it is true that in such proceedings a great deal is conceded to tbe discretion of tbe trial judge, such discretion is within circumscribed legal limits. (Holzeman v. Henneberry, 11 Ida. 428, 83 Pac. 497; Mitchell v. Cal & O. C. 8. S. Co., 156 Cal. 576, 105 Pae. 590.)</p> <p>“An application to set aside and vacate a judgment is addressed to the sound, legal discretion of the court, and unless it appears that such discretion has been abused, the order will not be disturbed on appeal.” (Harr v. Eight, 18 Ida. 53, 108 Pac. 539; Culver v. Mountainhome Electric Co., 17 Ida. 669, 107 Pac. 65; Western Loan etc. Co. v. Smith, 12 Ida. 94, 85 Pac. 1084; Holzeman v. Henneherry, 11 Ida. 428, 83 Pac. 497; Pease v. Kootenai County, 7 Ida. 731, 65 Pac. 432; Baker v. Knott, 3 Ida. 700, 35 Pac. 172.)</p> <p>“To entitle a party to relief from a judgment or order entered by default, it is necessary that such person make a sufficient showing of mistake, inadvertence, surprise, or excusable neglect.” (Harr v. Eight, supra.)</p>

<p>APPEAL from the District Court of the Third Judicial District for Ada County. Hon. Fremont Wood, Judge. •</p> <p>Action by plaintiff to procure a writ of mandate against an irrigation district. On application of the district the appellants herein were brought into the case to set up and litigate their interests. Judgment for the plaintiff and the defendants Irish appeal.</p> <p>The judgment of confirmation, in so far as the action was concerned, was res adjudicata, and in all collateral proceedings the benefits assessed against the land are conclusively presumed to be received, and the assessment is not open to revisal or review. (Knowles v. New Siveden Irr. Hist., 16 Ida. 217, 101 Pac. 81: Oregon etc. It. Go. v. Pioneer Irr. Dist., 16 Ida. 580, 102 Pac. 904.)</p> <p>“Whether the water right is an appurtenance depends on whether it is an incident necessary to the enjoyment of the land. The water right is not necessarily appurtenant.to or parcel of any land; and whether it is an appurtenance or parcel is a question of fact resting chiefly upon whether it was used, specially for'the benefit of the land in question. When used for irrigation, there will seldom be any doubt of such necessity.” (Péndola v. Bamm, 138 Cal. 517, 71 Pac. 624; Wiel, Water Rights, p. 340, sec. 226.)</p> <p>“Water originally appropriated by a person for his use on his land became appurtenant thereto, so that when the right was divided, the several rights became appurtenant, respectively, to the tracts conveyed.” (Wiel, Water Rights, p. 343, see. 227; Bloom v. West, 3 Colo. App. 212, 32 Pac. 846; Senior v. Anderson, 138 Cal. 716, 72 Pac. 349; Rev. Codes of Idaho, secs. 3111, 3262.)</p> <p>“The owner of a right to the use of water under a rental system .may sell and dispose of such right and have the place of use of such water changed to other lands.” (Hard v. Boise City Irr. Co., 9 Ida. 589, 76 Pac. 331, 65 L. R. A. 407.)</p> <p>The proceedings relative to the approval and confirmation of the proceedings of an irrigation district do not involve the contract relations of parties, but relate solely to the assessment of benefits under the irrigation district law. (Knowles v. Neiv Sweden Irr. Dist., 16 Ida. 235, 241, 101 Pac. 81.)</p> <p>Since a water right is a distinct subject of grant, and transferable either with or without the land, whether a deed to the land conveys the water right depends upon the intention of the grantor, which is to be gathered from the expressed terms of the deed; or, when the deed is silent as to the water right, from the presumption that arises from the circumstances and whether the right is essential to the beneficial enjoyment of the land. (Arnett v. Linhard, 21 Colo. 188, 40 Pac. 355.)</p>

Hon. Fremont Wood, Judge. Defendant was charged with crime of assault with intent to commit murder and from a conviction of assault with a deadly weapon appeals. It is always permissible for the defendant to show, if he can, that some third person did in fact commit the crime charged against him.

Hon. Edward A. Walters, Judge. Action to enforce a contract. Nonsuit granted and judgment of dismissal entered. Forfeitures are not looked upon with favor by the law, and if enforced, the circumstances must be such as to preclude any waiver of the right to enforce the same.

<p>APPEAL from tbe District Court of the Fourth Judicial District for Elmore County. Hon. Edward A. Walters, Judge.</p> <p>An action to foreclose a mortgage. Cross-complaints filed. Judgment foreclosing mortgage and finding priorities for cross-complainants.</p> <p>Findings must rest exclusively on the proceedings had in the ease in which such findings are made, and not on the proceedings had in an independent action to which the persons whose rights are affected were not parties. (Laughlin v. TJ. S. S. Go., 64 Fed. 25; Union Trust Co. v. III. M. By. Co., 117 U. S. 434, 6 Sup. Ct. 809, 29 L. ed. 963.)</p> <p>We contend that the plaintiff had never had his day in. court, so far as the priority of the amount of these receiver’s receipts is concerned. (Bibber-White Co. v. White River etc. Co., 115 Fed. 786, 53 C. C. A. 282; Farmers’ L. & T. Co. v. Centralia & C. R. Co., 96 Fed. 636, 37 C. C. A. 528; Ferry v. Miltimore etc. Co., 71 Yt. 457, 76 Am. St. 787, 45 Atl. 1035.)</p> <p>“A court of equity has no authority to place its receiver in charge of such property and operate the same, carrying on a general mining business, and when it turns out to be at a loss, as is likely to be the result in such cases, charge the same up as a preferred claim and lien against the property to the prejudice and loss of the holders of prior recorded liens on the same property.” (Dalliba v. Winschell, 11 Ida. 364, 114 Am. St. 267, 82 Pac. 107.)</p> <p>That the rule as applied to railroad cases has no application to private corporations seems well settled. (Fidelity Ins. & 8. D. Co. v. Shenandoah I. Co., 42 Fed. 372; Snively v. Loomis Coal Co., 69 Fed. 204; Merriam v. Victory Mining Co., 37 Or. 321, 56 Pac. 75, 58 Pac. 37, 60 Pac. 997; V. 8. I. N. V. Corporation v. Portland Hospital, 40 Or. 523, 64 Pac. 644, 67 Pac. 194, 56 L. R. A. 627; Baltimore B. & L. Assn. v. Alderson, 90 Fed. 142, 32 C. C. A. 542; Doe v. N. W. C. & T. Co., 78 Fed. 62; Farmers’ L. & T. Co. v. Grape C. C. Co., 50 Fed. 481, 16 L. R. A. 603.)</p> <p>A receiver of a canal system, under orders of court, can issue certificates for the care, preservation and maintenance thereof, that will be prior liens to all other liens. (Dalliba v. Winschell, 11 Ida. 364, 114 Am. St. 267, 82 Pac. 107.)</p> <p>Water companies and canal companies are of a similar public nature, and in this respect treated the same as railroads, as g«<m-public corporations. (High on Receivers, 4th ed., sec. 312-b; Atlantic Tr. Co. v. W. C. & Irrigation Co., 79 Fed. 39-42; Filis v. V. I. L. & W. Co., 86 Tex. 109, 23 S. W. 858 ; Jerome v. McCarter, 94 U. S. 734, 24 L. ed. 136; 17 Eney. P. & P. 749; Insolvent & Failing Corps. (Jones), see. 547; Price v. Irrigation Co., 56 Cal. 431; Merrill v. 8. Irr. Co., 112 Cal. 430, 44 Pac. 720; 7 Am. & Eng. Ency. of Law, 638; 3 Cook on Corp., sec. 932; Wiggins v. Neversink L. & P. Go., 47 Misc. 315, 93 N. T. Supp. 853, Hooper v. G. T. Go., 81 Md. 559, 32 Atl. 505, 29 L. R. A. 262; McKenzie v. Bismark Water Go., 6 N. D. 361, 71 N. W. 608.)</p> <p>Most of those authorities which hold the strongest against permitting expenses for the carrying on of a business to be made prior liens admit that such part of the expenses as were for the care and preservation of the property can be made prior to mortgages and other liens. {Baht v. Attrill, 106 N. T. 423, 60 Am. Rep. 456, 13 N. E, 282; International Tr. Co. v. Decker Bros., 152 Fed. 85, 81 C. C. A. 302, 11 L. R. A., N. S., 152; International Tr. Co. v. United Coal Go., 27 Colo. 246, 83 Am. St. 59, 60 Pac. 621; Hanna v. Tr. Go., 70 Fed. 2, 16 C. C. A. 586, 30 L. R. A. 201; High on Receivers, 4th ed., sec. 312-b; Insolvent and F. Corp. (Jones), sec. 548.)</p> <p>Knowing its object and giving his consent to its continuance as a going concern, the purchaser under foreclosure assumes the burdens placed upon the franchise and property by the mortgagor. (Wiel on Waters, 2d ed., p. 336; Stocker v. Nehama County, 72 Neb. 255, 100 N. W. 308.)</p> <p>“Where a water company is under mortgage which is after■ward foreclosed, the purchaser at the foreclosure sale will usually contend that he is not bound by water right contracts made subsequent to the mortgage; but were this true, contracts for water supply would be of little security to the consumer and the courts hold the purchaser is bound by them.” (Wiel on Waters, p. 336.)</p> <p>The law is clear that where a mortgagee knows of the existence of any instrument or conveyance affecting the title to the property on which he is about to take a mortgage, he- is placed upon notice and fails to make suitable inquiry at his peril. (27 Cyc. 1201, 1202.)</p> <p>There is no duty imposed upon the purchaser of a water right relative to the release of the mortgage, as that matter is left entirely with the vendor of such water right and mortgagee. (Wiel on Waters, p. 336.)</p>

<p>APPEAL from the District Court of the Fourth Judicial District, iu and for Twin Falls County. Hon. Edward A. Walters, Judge.</p> <p>Action by plaintiff to rescind a contract and cancel an assignment thereof. Judgment for plaintiff and defendants appeal.</p> <p>The cancellation of the bona fide indebtedness in the purchase of the real estate was of itself and alone sufficient consideration to sustain the purchase. {Knox v. McFarran, 4 Colo. 586; Murray v. National Concordia, 5 Kan. App. 456, 49 Pac. 326; Schluter v. Harvey, 65 Cal. 158, 3 Pac. 659; Frey v. Clifford, 44 Cal. 355.)</p> <p>The respondent was guilty of such laches in pressing her claim as to have waived her right, if any she had, and should not be permitted to set up her claim as against John Hea.</p> <p>It was her duty to rescind at once upon the discovery of the facts. Equity demands of her diligence in her own protection in giving notice, and pursuing her remedy, as well as for the protection of those who might innocently become interested in the contracts. {Barfield v. Price, 40 Cal. 535; Bien v. Bear River etc. Min. Co., 20 Cal. 602, 81 Am. Dec. 132; 3 Morr. Min. Rep. 435; Caldwell v. Ruddy, 2 Ida. 1 (5), 1 Pae. 339; Cowen v. Harrington, 5 Ida. 329, 48 Pac. 1059.)</p> <p>“The assignee of a non-negotiable chose in action stands exactly in the place of his assignor, has no greater rights than his assignor in the thing assigned, and takes it subject to all of the defenses, such as illegality in its inception, which arose out of the original transaction.” (2 Ency. of Law, 2d ed., p. '31079; Myers v. Water Co., 10. Cal. 569, 2 Morr. Min. Rep. 541; 15 Ency. of Law, 2d ed., 1012, 1080, and cases.)</p>

Hon. Edward A. Walters, Judge. Action to foreclose a mechanic’s lien. Judgment for the plaintiff. There is absolutely no contract set out in the claim of lien; the terms upon which the material was sold, the time in which it was to be paid for, the conditions of the contract are nowhere mentioned. This omission was fatal.

<p>APPEAL from tbe District Court of the Seventh Judicial District for Washington County. Hon. Ed. L. Bryan, Judge.</p> <p>Prosecution for battery. Judgment of conviction. Defendant appeals.</p> <p>The requirement of sec. 7656, Rev. Codes, is mandatory, and to depart from the rules therein established is to invade the legal rights of the defendant. {State v. Wihnbusse, 8 Ida. 608, 70 Pae. 849; State v. Crea, 10 Ida. 88, 76 Pac. 1013; State v. Barber, 13 Ida. 65, 88 Pae. 418.)</p> <p>‘■‘To say that a statute is directory approaches so near legislative -discretion that this rule of construction ought to be • applied by the courts with reluctance, and only in extraordinary cases, where great public mischiefs would otherwise occur.” (Koch v. Bridges, 45 Miss. 247 ; 36 Cyc. 1157; Corbett v. Bradley, 7 Nev. 106.)</p> <p>Upon reading the statute, it becomes obvious that its purpose is to prevent the prosecution from surprising a defendant with witnesses whose testimony he is not prepared to combat, and that he is entitled to know before the trial who will testify against him in order that he might be in a position to combat or rebut such testimony. In the case at bar, the defendant was not taken by surprise.</p> <p>“It is not necessary at common law that the names of witnesses examined before the grand jury shall be indorsed or otherwise appear on the indictment, but this is sometimes required by statute. As a general rule, it is held that these statutes are merely directory, and that a failure to comply with them will not render' an indictment invalid.” (22 Cyc. 258, par. 5, and cases cited; Commonwealth v. Glass, 107 Ky. 160, 53 S. W. 18; Seed v. State, 75 Neb. 509, 106 N. W. 649; State v. Thompson, 76 Kan. 365, 91 Pac. 79; State v. Bundy, 71 Kan. 779, 81 Pac. 459; State v. Jeffries, 210 Mo. 302, 109 S. ~W. 614, 14 Ann. Cas. 524; People v. Weil, 243 111. 208, 134 Am. St. 357, 90 N. E. 733; State v. Wilson, 223 Mo. 173, 122 ■S. W. 675; People v. Crowey, 56 Cal. 38, 39.)</p>

<p>Water Eights — Spring—Artesian Well — Appropriation op Water — ■ Permit — State Engineer — Prior Appropriation.</p> <p>(Syllabus by the court.)</p> <p>1. Where one enters land under the desert land laws of Congress, on which is situated a spring and an artesian well, which well was constructed prior to the entry of such land for the purpose of increasing the flow of the water, and the water was used for watering stock, and the one who made the well thereafter sold his interest in said well to the entryman and she made application of the water to the desert land so entered by her for growing crops thereon, held, that her appropriation is as valid as though she had made application to the state engineer for a permit to appropriate the same.</p> <p>2. The state engineer has no power or authority to interfere with vested rights or to grant a permit for the appropriation and diversion of water where the same has already been appropriated and applied to a beneficial use.</p>

Hon. Carl A. Davis, Judge. Application for mandamus. Application denied. Plaintiffs appeal. Idaho has no administrative board performing duty in the way of regulating the distribution of water to consumers, but the legislature by the section in question has sought to make every canal or irrigation district a board in itself, performing the very simple duty of recognizing a prima facie right.

Hon. Ed. L. Bryan, Judge. Action by plaintiff for an injunction to restrain tbe defendant from continuing to trespass upon plaintiff’s land and to flood and overflow tbe same. From a temporary restraining order, pendente'lite, defendant appealed. “Where jurisdiction has attached to person or thing, it is (unless there is some provision to the contrary) exclusive in. effect until it has wrought its function.” (Taylor v. Taint or, 16 Wall.

Hon. Edward A. Walters, Judge. Action to foreclose a materialman’s lien for materials and supplies furnished in constructing mills and furnishing and supplying a mining claim. Judgment and decree for the plaintiff and the defendant mining company and the mortgagee appeal. Where the court fails to find on all the material issues made by the pleadings, the judgment will be reversed unless a finding made upon such issues would not affect the judgment entered.

<p>APPEAL from the District Court of Canyon County, the case having been commenced in Elmore County and transferred to Canyon County for trial. Hon. Ed. L. Bryan, Judge.</p> <p>Action to quiet title to certain real estate situated in Elmore county. Judgment for plaintiffs.</p> <p>Where a person has declined to loan another money with which to take up an option on land and take a mortgage on the land as security for the loan, but pays the money direct -to the owner and takes a warranty deed to himself and gives the former holder of the expired option an agreement to convey to him the land upon payment of certain sums, the deed cannot be declared a mortgage, but the legal title passes with the deed, and the other party must recover, if at all, upon the agreement or option to sell. (Baird v. Baird, 48 Colo. 506, 111 Pae. 79; Sullivan v. Woods, 5 Ariz. 196, 50 Pac. 113; Conner v. Clapp, 37 Wash. 299, 79 Pae. 929; Blumberg v. Beekman, 121 Mich. 647, 80 N. W. 710; Wallace v. Johnstone, 129 U. S. 58, 9 Sup. Ct. 243, 32 L. ed. 619; Morrison v. Jones, 31 Mont. 154, 77 Pae. 507; Reed v. Parker, 33 Wash. 107, 74 Pae. 61; Glendenning v. Johnston, .33 Wis. 347; Emery v. Lowe, 140 Cal. 379, 73 Pac. 981; Einchmcmn v. Cook, 45 Wash. 490, 88 Pac. 931.)</p> <p>The findings -and decree of the court in which it is decreed that respondents are the owners of the premises in dispute are supported by the evidence. And under the agreement between Garrett and appellant, Garrett or his' assigns are entitled to a decree requiring appellant to execute -a deed to them upon a tender of the amount due appellant. (Crane v. Cheney, 77 Kan. 815, 91 Pac. 67.)</p> <p>‘ ‘ It. is a settled doctrine of equity that the form of a transaction will never preclude inquiry into its real nature, but in all cases the intention of the parties must control, irrespective of the form.” (27 Cyc. 991-993, and cases cited.).</p> <p>“The plain intention of our law is that, when the parties are once in court, all conflicting claims shall be settled between them arising out of the subject matter involved in the issues.” {Burke Land etc. Co. v. Wells, Fargo & Co., 7 Ida. 42-56, 60 Pac. 87.)</p> <p>An unrecorded instrument purporting to convey title is void as to a subsequent purchaser. (Swank v. Sweetwater Irr. & Power Co., 15 Ida. 353, 98 Pac. 297.)</p>

<p>APPEAL from the District Court of the Third Judicial District for Ada County. Hon. Carl A. Davis, Judge.</p> <p>Action to recover on a promissory note. Judgment for plaintiff.</p> <p>The admissibility of the evidence adduced to show the respondent’s knowledge of such facts and circumstances as would make his action in taking the instrument bad faith is c] early established by the authorities.</p> <p>Knowledge need not necessarily be proved by direct and positive evidence; on file contrary, it may be inferred from facts and circumstances. (Park v. Wooten, 35 Ala. 242; Kneeland v. Wilson, 12 Cal. 241; Knight v. State, 88 Ga. 589, 15 S. E. 450; Lynch v. Richardson, 163 Mass. 160, 47 Am. St. 444, 39 N. E. 801; Robinson v. Worden, 33 Mich. 316; Abbe v. Justus, 60 Mo. App. 300; Van Raalte v. Harrington, 101 Mo. 602, 20 Am. St. 626, 14 S. W. 710, 11 L. R. A. 424; Pendexter v. Carlton, 16 N. H. 482; Parker v. Conner, 93 N. Y. 118, 45 Am. Rep. 178; Stainback v. Junk Bros. Lumb. & Mfg. Co., 98 Tenn. 306, 39 S. W. 530; Murray v. State, 46 Tex. Cr. 128, 79 S. W. 568; Davis v. Van Wie (Tex. Civ. App.), 30 S. W. 492; Stanton v. Simpson, 48 Yt. 628.)</p> <p>It is competent to prove the notoriety of a fact in the neighborhood of a party sought to be charged with knowledge of it. (Merrill v. Hole, 85 Iowa, 66, 52 N. W. 4; Jones v. Hatchett, 14 Ala. 743; Ward v. Herndon, 5 Port. (Ala.) 382; Brooks v. Thomas, 8 Md. 367; Hahn v. Penney, 62 Minn. 116, 63 N. W. 843; State v. Flint, 60 Yt. 304, 14 Atl. 178.),</p> <p>Taking up the evidence introduced by the appellant under the rule of law that the burden of proof is on him to show circumstances sufficient to defeat the note, we contend that nothing short of actual fraud or mala fides is sufficient to overcome the effect of such evidence, or invalidate the title of the holder supported by such evidence. (Collins v. Gilbert, 94 U. S. 753, 24 L. ed. 170; Forbes v. Nat. Bank, 21 Okl. 206, 95 Pac. 785.)</p> <p>Our law does not permit a man to place on the market an instrument which on its face is negotiable and then defeat recovery on it, as against an innocent purchaser, by showing a secret understanding that it was to be non-negotiable. (Joyce, Defenses to Commercial Paper, sec. 307; Parsons v. Parsons, 17 Colo. App. 154, 67 Pac. 345.)</p> <p>Instruction No. 3, excepted to, is in strict conformity with the provisions of sees. 3481, 3502 and 3485 of our code, and is in harmony with the ruling of this court in Yates v. Spofford, 7 Ida. 737, 97 Am. St. 267, 65 Pac. 501.</p> <p>The whole question to be determined is whether or not respondent was a holder in “due course.” If he is, then the defense of failure of consideration is no defense. (Daniels v. Englehart, 18 Ida. 548, 111 Pac. 3.)</p> <p>Appellant did not make sufficient showing to shift the burden of proof to the respondent to show that he was an innocent purchaser in due course. (Brown v. Feldwert, 46 Or. 363, 80 Pac. 414.) It would have been an error for the court to assume such a state of facts in its instructions. {Owens v. Snell etc. Co., 29 Or. 483, 44 Pae. 827.)</p> <p>Failure of consideration is no defense against a bona fide purchaser for value. {Station v. Stone, 15 Colo. App. 237, 61 Pac. 481; Spencer v. Alkali etc. Co., 53 Wash. 77, 132 Am. St. 1058,101 Pac. 509.)</p> <p>“The rights of the holder are to be determined by the simple test of honesty and good faith, and not by a speculative issue as to his diligence or negligence.” {Murray v. Lardner, 2 Wall. 110, 17 L. ed. 857.)</p>

Hon. Fremont Wood, Judge. An action upon a guaranty of the payment of a promissory note. Judgment for defendant. Plaintiff appeals. A release of the principal debtor by the guarantee will also release the guarantor. In such case the debt is extinguished, and where there is no debt there is nothing on which to hold the guarantor. (Irons v. Manufacturers’ Nat. Bank, 36 Fed. 843; Glassel v. Coleman, 94 Cal. 260, 29 Pac. 508; Brown v. Ayer, 24 Ga. 288; Jamieson v. Holm, 69 111.

<p>APPEAL from tbe District Court of the Fourth Judicial District for Lincoln County. lion. Edward A. Walters, Judge.</p> <p>Action to foreclose a mortgage on real estate. Judgment for plaintiff.</p> <p>A tender of the amount of the interest due on this note and mortgage before the mortgagee exercised the option to declare a forfeiture was good, and will be considered as a waiver of the option by the mortgagee. (Weinberg v. Naher, 51 Wash. 591, 99 Pae. 736; Matsger v. Page, 113 Pac. 254.)</p> <p>Mr. Mullen never authorized the commencement of the suit, and not having made any other statement or declaration from which a forfeiture could be- inferred, it follows, then, that at the time this tender of the interest was made, if the same was a valid tender, that no legal declaration of a forfeiture had been made, and that this action cannot be maintained. (Sykes v. Arne (Cal.), 47 Pac. 868; Matsger v. Page, supra; Pattén v. Pepper Hotel Go., 153 Cal. 460, 96 Pae. 296.)</p> <p>Even if the commencement of this action constituted a declaration of forfeiture, then this forfeiture wás waived by Mr. Mullen. (Insurance Go. v. Norton, 96 U. S. 234, 24 L. ed. 689; Bell v. San Francisco Sav. Union, 163 Cal. 64, 94 Pae. 226; Knarston v. Manhattan Life Ins. Go., 124 Cal. 74, 56 Pae. 773; Gladius v. Amusement Go., 109 Mo. App. 346, 84 S. W. 354; Clark v. West, 193 N. Y. 349, 86 N. E. 5; Rausch v. Hanson (S. D.), 128 N. W. 611; Yer Planck v. Godfrey, 58 N. Y. Supp. 784; Hewitt v. Dean, 91 Cal. 5, 27 Pac. 424; Jacobs v. Swift, 8 Kan.. App. 857, 56 Pae. 1127.)</p> <p>The check of the trustee for the interest due January 1, 1911, was a good tender to the plaintiff, as the latter made no objection on the ground that the tender was by check, or that a forfeiture had been declared. (Kollits v. Fire Ins. Go., 92 Minn. 234, 99 N. W. 892; Bonaparte v. Thayer, 95 Md. 548, 52 Atl. 498; Browning v. Grouse, 40 Mich. 342; Gunby v. Ingram (Wash.), 106 Pac. 496; Zeimantz v. Blake, 39 Wash. 6, 80 Pac. 822.)</p> <p>“He agreed to pay the whole sum of the principal immediately in case of a failure to pay any instalment of the interest — such a condition is not in the nature of a forfeiture or penalty, but was of the substance of the contract. ’ ’ (Dean v. Nelson, 101 Wall. 158, 19 L. ed. 926; Houston v. Curran, 101 111. App. 203; Conn. Mut. Life v. Westerhoff, 58 Neb. 379, 76 Am. St. 101, 78 N. W. 724, 79 N. W. 731; Swearingen v. Lahner, 93 Iowa, 147, 57 Am. St. 261, 61 N. W. 431, 26 L. R. A. 765; Morling v. Bronson, 37 Neb. 608, 56 N. W. 205; Eastern Banhing Go. v. Seeley, 55 Neb. 660, 75 N. W. 1102; Wheeler etc. Mfg. Go. v. Howard, 28 Fed. 741; WMtcher v. Webb, 44 Cal. 127; Schooley v. Bomain, 31 Md. 574, 100 Am. Dec. 87.)</p> <p>The failure to pay the interest makes the whole amount of the note due absolutely, at the option of the holder, if he so elects, without any notice from the holder to the payor. (WMtcher v. Webb, supra.)</p> <p>A tender of interest made by the payor to the payee after a suit in foreclosure has been commenced is no bar to plaintiff’s right to continue to foreclose. (Swemñngen v. Lahner, supra; Malcolm v. Allen, 49 N. T. 448; Morling v. Bronson, 37 Neb. 608, 56 N. W. 205.)</p>

<p>APPEAL from the District Court of the Third Judicial District for Ada County. Hon. Fremont Wood, Judge.</p> <p>Action by the plaintiff to recover on certain time checks. Judgment for the defendant and the plaintiff appealed.</p> <p>“Under all the law and evidence the appellant is entitled to a reversal, for the reason that the estoppel of respondent has been established.</p> <p>“Whenever a party has by his own act, declaration, or omission deliberately and intentionally led another to believe a particular thing true and to act upon such belief, he cannot be permitted to deny it.” (Bigelow on Estoppel, 4th ed., 445; Herman on Estoppel, sec. 788; 16 Cyc. 679, 722-724; 11 Am. & Eng. Ency. of Law, 2d ed., 387; Pomeroy Eq. Jur., see. 804.)</p> <p>“Fundamental element of estoppel is that the party sought to be estopped has said or done something in reliance on which the person in whose favor the estoppel is invoked has acted or relied to his prejudice.” (Maryland Telegraph & Telephone Go. v. Ruth, 106 Md. 644, 124 Am. St. 506, 68 Atl. 358, 14 L. R. A., N. S., 427, 34 Ann. Gas. 576; Nell v. Dayton, 43 Minn. 242, 45 N. W. 229, 230; Branson v. Wirth, 17 Wall. (U. S.) 32, 21 L. ed. 566; Dickerson v. Golsgrove, 100 U. S. 578, 25 L. ed. 618, 619; Dolbeer v. Livingston, 100 Cal. 617, 35 Pae. 328.)</p> <p>Where a person with actual or constructive knowledge of the facts induces another by his words or conduct to believe that he acquiesces in or ratifies a transaction, or that he will offer no opposition thereto, and that other, in reliance on such belief, alters his position, such person is estopped from repudiating the transaction to the other’s prejudice. (16 Cyc. 791, 792; Bigelow on Estoppel, sec. 632; 11 Am. & Eng. Ency, of Law, 2d ed., 427; Herman on Estoppel, sec. 776; Martin v. Webb. 110 U. S. 5, 3 Sup. Ct. 428, 28 L. ed. 49; Garpy v. Dowdell, 115 Cal. 677, 47 Pac. 695; Scott v. Jackson, 89 Cal. 258, 26 Pac. 899.)</p> <p>“He who does not forbid what he can forbid seems to assent.” (Herman on Estoppel, sec. 735; Marshal v. Foltz, 221 Pa. 570, 70 Atl. 857; Priewe v. Wis. State Land & Imp. Co., 103 Wis. 537, 74 Am. St. 904, 79 N. W.*780.)</p> <p>“Wherever one of two innocent persons must suffer by the acts of a third, he who has enabled such third person to occasion the loss must sustain it.” (16 Cyc. 773; Madden v. Caldwell Land Go., 16 Ida. 59, 100 Pae. 358, 21 L. R. A., N. S., 332; Pennypacker v. Latimer, 10 Ida. 625, 81 Pae. 55.)</p> <p>“Whenever a person has held out another as his agent authorized to act for him in a given capacity, or has knowingly and without dissent permitted such other to act’ as his agent in such capacity, or where his habits and course of dealing have been such as to reasonably warrant the presumption that such other was his agent, authorized to act in that capacity, his authority to such other to act for him in that capacity will be conclusively presumed, so far as it may be necessary to protect the rights of third persons who have relied thereon in good faith and in the exercise of reasonable prudence.” (Mechem, Agency, 84; also Thompson’s Comm, on Corporations, sec. 4880; Mosley v. Morgan, 141 Ky. 557, 133 S. W. 226; Jones Cotton Co. v. Snead (Ala.), 53 So. 988; Hubbard v. Tenbrook, 124 Pa. 291, 10 Am. St. 585, 16 Atl. 817, 2 L. R. A. 823; Over v. ScMffling, 102 Ind. 191, 26 N. E. 91; Rice v. Groff mown, 56 Mo. 434.)</p> <p>The appellant cannot invoke the doctrine of estoppel because he was not reasonably prudent. He did not exercise that degree of prudence which an ordinarily prudent man would have exercised under like circumstances. (Gregory v. Loose (Wash. 1898), 54 Pac. 33; Van Allen v. Francis, 123 Cal. 474; Clark & Skyles, Law of Agency, p. 140; Davidson v. Jennings, 27 Colo. 187, 83 Am. St. 49; Moore v. Bowman, 47 N. H. 494; Douglass v. Craig, 13 S. C. 371; 2 Herman on Estoppel, see. 969.)</p> <p>The fact that the appellant did not show that he knew that the printed order blanks were furnished by the respondent to the Guay Brothers precludes the appellant from using such fact as a basis of estoppel. Facts necessary to work an estoppel must appear affirmatively. (Hill v. Epley, 31 Pa. 331.)</p> <p>Appellant did not make any inquiry disclosing to respondent that appellant was not fully cognizant of the true state of affairs and the true relations between respondent and the Guay Brothers, so there was no duty on the part of the respondent to speak. (77 Am. & Eng. Ency. of Law, 427.)</p> <p>“It does not appear that the acts of the company which are supposed to have been sufficient to justify a belief in the agent’s authority were known to the plaintiff, and if not, they could not have generated in his mind any belief on the subject of agency.” (Harris v. San Diego Flume Co., 87 Cal. 526.)</p> <p>Representations made or acts done subsequent to the change of position by the other, which they do not invite or influence, will not operate as an estoppel. (77 Ency. of Law, 439.)</p> <p>Where the facts are known to both parties, or both have the same means of ascertaining the truth, there can be no estoppel. (11 Am. & Eng. Ency. of Law, 2d ed., 434.)</p>

<p>APPEAL from the District Court of the Fourth Judicial District for Lincoln County. Hon. Edward A. Walters, Judge.</p> <p>Action to recover the value of certain cattle killed by the engine and train of the defendant. Judgment for plaintiff.</p>

Hon. J. M. Stevens, Judge. An action to recover a debt for labor done upon a canal. Judgment for plaintiff. Defendant appeals. Where different causes of action are alleged and are not inconsistent, the one with the other, the plaintiff may recover on either. (Darlcnell v. Coeur d’Alene & St. Joe Trams.

<p>APPEAL from the District Court of the Sixth Judicial District for Bingham County. Hon. J. M. Stevens, Judge.</p> <p>An action for the foreclosure of a real estate mortgage. Judgment for defendant and plaintiff appeals.</p> <p>Where the verdict and findings are manifestly against the evidence, the judgment will be reversed, notwithstanding the trial court has refused to set aside the verdict. (Works v. Kinney, 7 Ida. 460, 63 Pac. 596; 3 Cyc. 352, and cases cited.)</p> <p>The court in this action gave judgment against the plaintiff for the statutory penalty of $100 for its failure to release and satisfy this mortgage. This was clearly error. {Portneuf Lodge etc, v. Western Loan & Savings Co., 6 Ida. 673, 59 Pac. 362.)</p> <p>“Where there is a substantial conflict in the evidence, the verdict of the jury or the findings of the court will not be disturbed on appeal.” (Kendrick State Bank v. N. P. By. Co., 10 Ida. 483, 79 Pac. 457; Abbott v. Beedy, 9 Ida. 577, 75 Pac. 764; Sabin v. Burke, 4 Ida. 28, 37 Pac. 352; Coffin v. Bradbury, 3 Ida. 770, 95 Am. St. 37, 35 Pae. 715.)</p>

lion. William W. Woods, Judge. Prosecution for voting in violation of the provisions of see. 360 of the Rev. Codes. From a judgment of conviction defendant appealed. The regular justice court procedure was adopted in violation of the provisions of see. 8, art. 1 of the constitution.

<p>APPEAL from the District Court of the Third Judicial District for Ada County. Hon. Carl A. Davis, Judge.</p> <p>Action by a taxpayer to have a certain order of the board of county commissioners of Ada county, levying and fixing a tax of three mills on the dollar for general school purposes for the county for the year 1911, set aside and annulled. Judgment for plaintiff.</p> <p>An appeal from any act of the board of county commissioners will only lie when directly authorized by statute, and unless there is some statute of the state which in express terms authorizes such an appeal, it cannot be taken. (Felt-ham v. Board of County Commrs., 10 Ida. 182, 77 Pae. 332; Uumbird Lumber Co. v. Morgan, 10 Ida. 327, 77 Pac. 433; General Custer Mining Co. v. Yam, Camip, 2 Ida. 40, 3 Pac. 22; Olympia Water Co. v. Thurston Go., 14 "Wash. 268, 44 Pac. 267.)</p> <p>See. 2, art. 7 of the constitution, which reads in part as follows: “The legislature shall provide such revenue as may be needful by levying a tax by valuation, ” is a restriction on the power of the legislature, and the legislature cannot authorize the levy of any tax in an amount in excess of what is needful or necessary for the purpose for which it is levied, and any attempt to authorize a levy in excess of such necessity is contrary to this provision of the constitution, and as to such excess the attempted levy would be void. This section of the constitution applies to all tax levies, whether for state, county or other purposes, which may be authorized by the legislature. The county commissioners being the board authorized to make the levy, had the right to investigate under this section of the constitution the necessity in connection with the amount of the levy to be made. (State v. County of Multnomah, 13 Or. 287, 10 Pac. 635.)</p> <p>When the legislature grants the power to tax to another tribunal, it can only be exercised in strict conformity to the terms in which the power is granted, and a departure in any material part will be fatal to the attempt to exercise it. (iJudge v. Taylor, 71 Ky. 206; People v. Lake Erie <& W. B. Go., 167 111. 288, 47 N. E. 518; Gage v. Graham, 57 111. 144.)</p> <p>A school district is a municipal corporation within the meaning of sec. 6, art. 7, of the constitution. A school district is a body corporate (Rev. Codes, sec. 614; 1 Dillon, Mun. Corp., 4th ed., secs. 19-27, ine.), and a municipal corporation as that term is used in our constitution. (Maxon v. School District, 5 Wash. 142, 31 Pac. 462, 32 Pac. 110; State v. Grimes, 7 Wash. 191, 34 Pac. 833; Commissioners of Public Instruction v, Fell, 52 N. J. Eq. 689, 29 Atl. 816, 817; Davis v. Steuben Twp., 19 Ind. App. 694, 50 N. E. 1, 4.)</p> <p>This constitutional provision was adopted from the state of Colorado, and at the time of its adoption the supreme court of that state had held definitely that a school district was a municipal corporation. (People ex rel. v. County Commrs., 12 Colo. 93, 19 Pac. 892.)</p> <p>If this court should hold that see. 65, p. 510, Sess. Laws of 1911, is valid and mandatory, then the legislature has, in effect, levied upon all the property of the county a tax of five mills for general school purposes, and the county commissioners, in making the levy, are performing only a ministerial duty. (People v. County Commrs., 12 Colo. 93, 19 Pac. 892; Hughes v. Ewing, 93 Cal. 418, 28 Pac. 1067; Board of Education v. Board of Trustees, 129 Cal. 603, 62 Pae. 173; State ex rel. Wyatt v. Ashbrook, 154 Mo. 375, 77 Am. St. 765, 55 S. W. 627, 48 L. R. A. 265; Waterhouse v. Board, 8 Heisk. (Tenn.) 857; People v. Martin, 60 Cal. 153; People v. Lodi High School, 124 Cal. 694, 57 Pac. 660.)</p> <p>An appeal lies from an order of the board of county commissioners levying a tax. (Village of Ilo v. Barney, 18 Ida. 642, 112 Pae. 126; Beynolds v. Board, 6 Ida. 787, 59 Pae. 730; School District v. Bice, 11 Ida. 99, 81 Pae. 155.)</p> <p>The act in question provides that the board “shall levy a tax of not less than five mills nor more than ten mills on each dollar of taxable property.” The command is absolute, and in addition, negative words are used. (Lewis’ Sutherland Stat. Const., sees. 611-627; 36 Cyc. 1158, 1159; 11 Cyc. 576; Cooley on Taxation, 280, 476-479; Pacific E. Go. v. Los Angeles, 118 Fed. 746; State v. Bussell, 90 Iowa, 569, 58 N. W. 915, 28 L. R. A. 195; Koch v. Bridges, 45 Miss. 247; Hurford v. City of Omaha, 4-Neb. 336; Bladen v. Philadelphia, 60 Pa. 464; Smith v. Chicago etc. B. Co., 124 Wis. 120, 102 N. W. 336.)</p> <p>The legislature is directed by the constitutional provision to vest the power in counties, cities, etc., to assess and collect taxes.. If the legislature grants this power to the subordinate subdivision of government, it has the right to say by the grant in what manner this power shall be exercised. (Ex parte Pfirrmann, 134 Cal. 143, 66 Pac. 205; Baldwin v. City Council, 53 Ala. 437; Vance v. City of Little Bock, 30 Ark. 435; State v. Yellowstone Co., 12 Mont. 503, 31 Pac. 78; State v. Hannibal etc. Co., 87 Mo. 236; 28 Cyc. 1659, 1660.)</p> <p>It has always exércised this power of limitation on the amount of tax levies that may be laid by these taxing bodies. {City of Genesee v. Latah Co., 4 Ida. 141, 36 Pae. 701.)</p> <p>Neither the statutes nor the constitution of this state deal with or treat school districts as municipal corporations. (28 Cyc. 131.)</p>

Hon. W. W. Woods, Judge. An action to collect a license under the provisions of Rev. Codes, see. 1506. Judgment for plaintiff. Defendant appeals. The legislature never intended to have see. 1506 or any of the so-called liquor statutes apply to such institutions as the Boise Commercial Club prior to the local option law of 1909. (Guzner v. California Club, 155 Cal. 303, 100 Pae. 868, 20 L. R. A., N. S., 1095; -Klein v. Livingston Club, 177 Pa. 224, 55 Am.

<p>APPEAL from the District Court of the Eighth Judicial District for Kootenai County. Hon. John- M. Flynn, Judge.</p> <p>Appeal from an order of the county commissioners whereby the board made a tax levy of 2.45 mills for public school purposes. On appeal to the district court the order was reversed, and judgment for the plaintiff was entered.</p> <p>It is not competent for the legislature to delegate its powers of taxation wholly or in part to either of the other departments of government, or to any individual, private corporation, officer, board or commissioner. (Houghton v. Austin, 47 Cal. 646; Meriwether v. Garrett, 102 U. S. 472, 26 L. ed. 197; James v. U. S. Fidelity etc. Go., 133 Ky. 299, 117 S. W. 406; Hovey v. Wyandotte Go., 56 Kan. 577, 44 Pac. 17; State v. Ashbrooh, 154 Mo. 375, 77 Am. St. 765, 55 S. W. 627, 48 L. R. A. 265; 1 Sutherland, Stat. Const., p. 145; Oswego etc. B. B. Go. v. Todd, 91 Ky. 175,15 S. W. 56, 11 L. R. A. 285.)</p> <p>The principle of home rule is now generally established by constitutional provisions. The legislature may levy taxes only for state purposes, taxes for the use of municipal corporations being left entirely within the control of the municipality. (Hauser v. Miller, 37 Mont. 22, 94 Pac. 197; State v. Ashbrooh, 154 Mo. 375, 77 Am. St. 765, 55 S. W. 627, 48 L. R. A. 265; State v. St. Louis, 216 Mo. 47, 115 S. W. 534; Chicago v. Wolfe, 221 111. 130, 77 N. E. 414; Fat jo v. Pfister, 117 Cal. 83, 48 Pac. 1012.)</p> <p>Our constitution is clear on this point, and it was the intention that local taxation should be left to the local authorities.</p> <p>The legislature has authority to provide for the levy of this tax in the manner which it has done, by the county commissioners between the limits of five and ten mills. (Visalia Savings Banh v. City of Visalia, 153 Cal. 206, 94 Pac. 888.)</p> <p>The legislature must always prescribe the rule under which the taxation is imposed. (Macklin v. Trustees, 88 Ky. 592, 11 S. W. 657; Board of Education v. Board of Trustees, 129 Cal. 599, 62 Pac. 173.)</p> <p>The legislature of the state has all the power of legislation that belongs to or resides in the people, except when restricted by express provisions or necessary implication in the constitution. (State v. Mayor of Bristol, 109 Tenn. 315, 70 S. W. 1031.)</p> <p>Statutes authorizing and directing a board of trustees or county commissioners, or other district officers, to levy a tax of not greater than a certain sum for school districts, have been sustained by every court that has been called to pass upon the same where there was no constitutional provision explicitly prohibiting. (Shepardson v. Gillett, 133 Ind. 125, 31 N. E. 788; Kent v. Town of Kentland, 62 Ind. 291, 30 Am. Rep. 182; Robinson v. Schenck, 102 Ind. 307, 1 N. E. 698.)</p>

Hon. John M. Flynn, Judge. Application for writ of mandate to the Board of County Commissioners. To supersede a remedy by mandamus, the party must not only have a specific, adequate legal remedy, but one competent to afford relief upon the subject matter of his application, and one which is equally convenient, beneficial and effective as the proceeding by mandamus.

<p>Appeal — Piling Transcript — Divorce — Presumption of Pacts — Common-law. Marriage — Delivery of Deed — Undue Influence.</p> <p>(Syllabus by the court.)</p> <p>1. Held, that the transcript on appeal in this case was filed within sixty days after the appeal was perfected, as defined by the rules of this court.</p> <p>2. Where H. and D. were married in August, 1857, and on April 1, 1871, H. abandons his said wife and thereafter does not live with her or support her, and on March 14, 1880-, marries B. and continuously lives with B. as her husband from that time to the time of his death in 1908, and during that time there is born to them as the issue of such marriage six children, and at all times they conduct themselves and hold themselves out as husband and wife, and at the time of such marriage B. had ho knowledge that H, had not obtained a divorce from D. and that such marriage was entered into in good faith, and B. believed that H. and herself were legally qualified to make a contract of marriage, and it appears that H. had under consideration and took some steps looking toward securing a divorce from D. before he married B., are matters of sufficient importance and of such a serious character by reason of the issue of said marriage to raise the presumption of fact that a divorce had been obtained by H. from D. prior to the time of his marriage to B.</p> <p>3. Where H. and B. are married by a minister upon authority of a certificate issued by authority of law, and at the time such ceremony is performed H. has a wife still living from whom he had not been divorced, and the first wife died about a year and seven months after said marriage ceremony between H. and B. was performed, and after said death H. and B. continued to live together as husband and wife for a period of twenty-eight years, and there was born to them six children, and they conducted themselves as husband and wife and sustained toward each other every natural association and relation consistent with married life, a marriage will be presumed to have occurred after the removal of the legal impediment by the death of the former wife.</p> <p>4. Where- it is shown that a married man is desirous of giving to his wife the property they have aeeumulated during their marital relation, and in order to carry out such purpose makes a conveyance of said property to a third party, who conveys to the wife, and it appears that such deeds of conveyance are intended as the deeds of the grantor, and both deeds are duly executed and delivered to the wife, who receives and accepts the same and records the same, there is a sufficient delivery of said deeds and the title to the property passes to the grantee.</p> <p>5. Evidence in this case examined and held not to be sufficient to show undue influence of the wife over the husband or fraud in inducing the execution and delivery of a deed of conveyance of real property from the husband to the wife.</p>

Hon. Ed. L. Bryan, Judge. Action by the plaintiff to have a trust declared. Judgment for plaintiffs and defendants appealed. The evidence required to entitle plaintiff to a decree declaring a resulting trust must be satisfactory, clear and convincing. (Bice v. Bigley, 7 Ida. 129, 61 Pac. 290, 20 Morr. Min. Rep. 558; 2 Pom. Eq. Jur., 1st ed., sec. 1040; 10 Am. & Eng.

Hon. Robert N. Dunn, Judge. Submission on an agreed statement of facts as to the right of the plaintiffs to the waters of an artificial lake constructed on their own land. Judgment for the plaintiffs and defendant appeals. The waters of a lake which was formed from a slough by means of dams and dikes, and which is wholly upon private lands, may be legally appropriated and diverted for irrigation or domestic purposes, without the consent of the owner of such lands.

Hon. Robert N. Dunn, Judge. Action to recover damages for injury to and interference with a ferry across the St. Joe river.

Hon. Eobert N. Dunn, Judge. Action to recover damages for the wrongful killing of plaintiff’s minor son. Judgment for plaintiff. Damages should have been limited to the expectation of the life of the .plaintiff. (Louisville etc. Co. v. Wright, 134 Ind. 509, 34 N. E. 314; Bouse v. Detroit etc. By., 128 Mich. 149, 87 N. W. 68, 70; Jones v. McMillan, 129 Mich. 86, 88 N. W. 207; Fidelity etc. Co. v. Buzzard, 69 Kan. 330, 76 Pae. 832.) The amount awarded is grossly excessive.

<p>APPEAL from the District Court of the Eighth Judicial District for Kootenai County. Hon. R. N. Dunn, Judge.</p> <p>Action to recover damages for wrongfully causing the death of the daughter of plaintiff. Judgment for plaintiff.</p> <p>Where a parent seeks to recover damages for loss of services and the like because of the death of a major child, there must be “evidence justifying a reasonable expectation of pecuniary benefit therefrom.” (3 Sutherland, Damages, p. 283; 2 Sedgwick, Damages, 8th ed., sec. 576; 8 Am. & Eng. Eney. of Law, 2d ed., p. 920; Penn. B. B. Co. v. Adams, 55 Pa. 499; Cooper v. By. Co., 66 Mich. 261, 11 Am. St. 482, 33 N. W. 306; St. Louis etc. Go. v. Davis, 55 Ark. 462, 18 S. W. 629; McIntyre v. Bailway Co., 47 Barb. 515; Trinity Val. B. Go. v. Stewart (Tex. Civ. App.), 62 S. W. 1085; Andrews v. Boedecker, 17 111. App. 213; St. Louis etc. Go. v. Bobbins, 57 Ark. 377, 21 S. W. 886; Paulmier v. Bailway Co., 34 N. J. L. 151; Carpenter v. Bailway Co., 38 Hun, 116; Mexican etc. By. Co. v. Pinch, 8 Tex. Civ. App. 409, 27 S. W. 1028; Lindstrom v. Nav. Co., 117 Fed. 170; Hirschkovitz v. Bailway Co., 138 Fed. 438; Beiter-Connolly Co. v. Hamlin, 144 Ala. 192, 40 So. 280; Commercial Club v. Hilliker, 20 Ind. App. 239, 50 N. E. 578; Seeley v. Bailway Co., 8 App. Div. 402, 40' N. Y. Supp. 866; Flaherty v. Bailway Co. (R. I.), 35 Atl. 308; San Antonio etc. Co. v. Englehorn, 24 Tex. Civ. App. 324, 62 S. W. 561, 65 S. "W. 68; Atchison etc. Co. v. Van Belle, 26 Tex. Civ. App. 511, 64 S. W. 397; Innes v. Milwaukee, 103 Wis. 582, 79 N. W. 783; Burk v. Areata etc. By. Co., 125 Cal. 364, 73 Am. St. 58, 57 Pac. 1065; Atchison etc. Co. v. Byan, 62 Kan. 682, 64 Pac. 603.)</p> <p>It was incumbent upon respondent to make proof of the earning capacity of the deceased. (Peters v. Southern Pac. Co., 160 Cal. 48, 116 Pac. 400.)</p> <p>However, it was not necessary under the pleadings for respondent to prove that Frances Golden had contributed her earnings to plaintiff’s support and maintenance, and would have continued to do so, because those facts are fully alleged in the complaint and are not met by any denial in the answer.</p> <p>The pretended denial of the allegations contained in paragraph 4 of the complaint is insufficient, and does not raise any issue as to those allegations. (Rev. Codes, sec. 4183; State v. Butte City Water Co., 18 Mont. 199, 56 Am. St. 574, 44 Pac. 966, 32 L. R. A. 697; Bossiier v. Loeber, 18 Mont. 372, 45 Pae. 560.)</p> <p>To justify interference by the court with the verdict of the jury it must appear that some rule of law has been violated, or else that the verdict is so excessive or grossly inadequate as to indicate partiality, passion or prejudice in the minds of the jury. (1 Cyc. 375; Maw v. Coast Lumber Co., 19 Ida. 396, 114 Pae. 9; 3 Sedgwick on Damages, 8th ed., 640; Neal v. Phoenix Lumber Co. (Wash.), 117 Pac. 270.)</p> <p>The damages awarded to plaintiff in this case were not excessive. [Bed-field v. Oakland Con. St. By. Co., 110 Cal. 277, 42 Pac. 822; Bowles v. Borne W. & O. B. Co., 46 Hun, 324; Letter v. Kinnaire, 68 111. App. 558; Missouri Pac. By. Co. v. Lehmberg, 75 Tex. 61, 12 S. W. 838; Lyons v. Second Ave. B. Co., 89 Hun, 374, 35 N. Y. Supp. 372.)</p> <p>Should this court determine that the damages are excessive, it has ample authority, under the statutes to modify the judgment and thereby save delay, costs, annoyance and expense to both parties. (Rev. Codes Idaho, see. 3818; Maloney v. Winston Bros. Co., 18 Ida. 740, 757, 111 Pac. 1086; 4 Thompson on Negligence, 7360.)</p>

<p>APPEAL from the District Court of the Eighth Judicial District for Kootenai County. Hon. Robert N. Dunn, Judge.</p> <p>Action to determine the right to a certain tract of land along the waterfront of Mud Lake lying between the meander line and the water line. Judgment for the plaintiff and intervenor Wright appealed.</p> <p>When water of lake, whether navigable or not, recedes and land is left dry, such land belongs to riparian owners from whose shore the water has receded. (Warren v. Chambers, 25 Ark. 120, 91 Am. Dec. 538, 4 Am. Rep. 23; Mitchell v. Smale, 140 U. S. 406, 11 Sup. Ct. 819, 840, 35 L. ed. 442; St. Paul & S. P. B. Co. v. Sch-urmeir, 7 Wall. 286, 19 L. ed. 78; Hardin v. Jordan, 140 U. S. 371, 11 Sup. Ct. 808, 828, 35 L. ed. 428; Knudsen v. Omanson, 10 Utah, 124, 37 Pae. 250.)</p> <p>The land in controversy is all below the meander line and was presumed to be the bed of Mud Lake.</p> <p>The boundary line of the lots is the water line of Mud Lake, in accordance with the familiar rule “that a meander line is not a line of boundary, and that a patent for a tract of land bordering on a river (or lake) conveys the land not simply to the meander line, but to the water line.” (Johnson v. Hurst, 10 Ida. 308, 77 Pae. 784; Lattig v. Scott, 17 Ida. 506, 107 Pac. 47; Johnson v. Johnson, 14 Ida. 587, 95 Pac. 499, 24 L. R. A., N. S., 1241; St. Pcntl & P. B. Co. v. Schurmeier, 74 U. S. 272, 19 L. ed. 74; Hardin v. Jordan, 140 U. S. 371, 11 Sup. Ct. 808, 838, 35 L. ed. 428 ¡Horne v. Smith, 159 U. S. 40, 15 Sup. Ct. 988, 40 L. ed. 68.)</p> <p>The department of the interior has decided that no error was committed in surveying these lands by the government.</p> <p>“Even admitting that the deputy surveyor may not have followed the exact shore line of the lake in his meanders, and thereby left out a small fraction which should have been included in the original survey, the department will not recognize as unsurveyed public land any such small fraction where the original survey has stood for a number of years, after disposing of the adjoining lands and the rights of riparian owners have intervened.” (See case of Edward C. Hill, 17 L. D. 568; also ease of Frank Level, 21 L. D. 290.)</p> <p>Where these claims overlaps, a diagonal line must be drawn from the point on the meander line where their lands join to the center of the lake as a boundary line between them. (Murphy v. Kirwan, 103 Fed. 104; Hanson v. Bice, 88 Minn. 273, 92 N. W. 982.)</p> <p>The whole question in this ease is: Can a government lot, which by reason of being more or less than forty acres is called a lot, embrace land in more than one section? (Johnson v. Hurst, 10 Ida. 308, 77 Pac. 784; Horne v. Smith, 159 U. S. 40, 15 Sup. Ct. 988, 40 L. ed. 68; Johnson v. Johnson, 14 Ida. 587, 95 Pac. 499, 24 L. R. A., N. S., 1240; Lattig v. Scott, 17 Ida. 506, 107 Pac. 47; Tolleston Club of Chicago v. Clough, 146 Ind. 93, 43 N. E. 647; Tolleston Chib v. State, 141 Ind. 197, 38 N. E. 214, 40 N. E. 690.)</p> <p>Intervenor is not a riparian owner and has never been a riparian owner, from his own testimony, and if by reason of the drying np of water that may have been on a portion of the southwest quarter of section 6 at the time the first government survey was made, he has obtained a full quarter section, he has no reason to complain. (Niles v. Cedar Point Club, 175 U. S. 300, 20 Sup. Ct. 124, 44 L. ed. 171.)</p> <p>The meander line is not a line of boundary. (Horne v. Smith, supra.)</p>

Hon. Robert N. Dunn, Judge. Action upon a promissory note. Judgment for defendants. Plaintiff appeals. “Constructive notice from extrinsic circumstances must be clear, and it must appear that the indorsee was apprised of such circumstances as would have avoided the note in the hands of the indorser.” (1 Daniels, Neg.

<p>APPEAL from the District Court of the Eighth Judicial District for Kootenai County. Hon. Robt. N. Dunn, Judge.</p> <p>Action to rescind a contract and at the close of plaintiff’s evidence a motion for nonsuit was sustained and judgment of dismissal entered.</p> <p>A negative pregnant in pleading is not a denial of the fact alleged, and therefore should be stricken out on motion. (Grand Valley Irr. Go. v. Lesher, 28 Colo. 273, 65 Pac. 44; Woodworth v. Knoivlton, 22 Cal. 164; Bourke v. Butte Electric & Power Go., 33 Mont. 267, 83 Pae. 470; City of Santa Ana v. Brunner, 132 Cal. 234, 64 Pac. 287; Gurnow v. Phoenix Ins. Go., 46 S. C. 79, 24 S. E. 74; Bock Springs Goal Go. v. Sanatorium Go., 7 Utah, 158, 25 Pac. 742; Jackson v. Green, 13 Okl. 314, 74 Pac. 502; Dillon v. Spokane County, 3 Wash. Ter. 498, 17 Pac. 889; Swanholm v. Beeser, 3 Ida. 476, 31 Pae. 804; Bloomingdale v. DuBell, 1 Ida. 33; Burke v. McDonald, 2 Ida. 679, 33 Pac. 49, 17 Morr. Min. Rep. 325; Knowles v. New Sweden Irr. Dist., 16 Ida. 217, 101 Pae. 81; 31 Cyc. 676, 677, 678, and cases cited.)</p> <p>A party is not bound to investigate for himself, and has a right to rely solely on the statements made by the vendor. CGerner v. Mosher, 58 Neb. 135, 78 N. W. 384, 46 L. R. A. 244; Watson v. Molden, 10 Ida. 570, 79 Pae. 503; Bank of Woodland v. Hiatt, 58 Cal. 234; Wooddy v. Benton Water Co., 54 Wash. 124, 132 Am. St. 1102, 102 Pae. 1054.)</p> <p>As a matter of fact, in this case plaintiff had no means of learning the actual value of the stock in question. (Best v. Offield, 59 Wash. 466, 110 Pac. 17; Dow v. Swain, 125 Cal. 674, 58 Pac. 271.)</p> <p>If there is a single material misrepresentation made by the defendant or his agent in this case and plaintiff relied on such statement, he is entitled to a rescission of the contract. (20 Cyc. 41; Shaw v. Stine, 8 Bosw. (N. Y:) 157.) .</p> <p>Even misrepresentations as to past profits realized from a business may amount to a fraud. (Del Vecchio v. Savelli, 10 Cal. App. 79, 101 Pac. 32.)</p> <p>A careful examination of the answer will certainly convince anyone familiar with the rules of pleading that it contains no negatives pregnant. (31 Cyc. 203-205; O’Brien v. Seattle Ice Co., 43 Wash. 217, 86 Pac. 399; Rev. Codes, Idaho, 4207.)</p> <p>In their brief counsel for appellant say: “Every pleading is construed most strongly against the pleader.” This is not true under our practice. (Cantwell v. McPherson, 3 Ida. 721, 34 Pac. 1095; Stuart v. Noble Ditch Co., 9 Ida. 765, 76 Pac. 255; White v. Johnson, 10 Ida. 438, 79 Pac. 455.)</p> <p>The proof offered is not evidence that the stock was worthless or that the Winn-Barr-Chainey Co. was bankrupt or insolvent on December 24, 1909, the date when the trade was made between appellant and respondent. (1 Sedgwick on Damages, 8th ed., par. 250.)</p> <p>It cannot be contended that respondent made any material representation before the consummation of the trade, because he had no conversation with appellant and did not see him until the trade was consummated and the papers all signed. Nor does the evidence show that Nobach acted in reliance upon any representation or statement made to him by Collins. (Nounncm v. Sutter County Land Co., 81 Cal. 1, 22 Pae. 515, 6 L. R. A. 219; Choate v. Hyde, 129 Cal. 580, 62 Pac. 118; Brown v. Bledsoe, 1 Ida. 746; 20 Cyc. 49; Mentzer v. Sargeant, 115 Iowa, 527, 88 N. W. 1068; Warfield v. Clark, 118 Iowa, 69, 91 N. W. 833; 9 Cyc. 427.)</p> <p>Nobach had the same means of ascertaining the financial condition and standing of the Winn-Barr-Chainey Co. and the value of its stock that Collins and Scott had, and could have availed himself, if he did not do so, of the opportunity to acquire such knowledge, and he is presumed by law to have had such knowledge. (9 Cyc. 428; Lee v. McClelland, 120 Cal. 147, 52 Pac. 300.)</p>

Hon. Robert N. Dunn, Judge. Action in condemnation. Judgment for the defendant in the sum of $9,000, from which the plaintiff appeals. By the statute (sec. 5220, Rev. Codes), the recoverable damages are only those which accrue to the untaken portion of the land. Injuries to business or to a use of the land, if they are not injuries to the land, are not recoverable. (Philadelphia Ball Co. v. Philadelphia, 192 Pa. 632, 73 Am.

<p>APPEAL from the District Court of the Eighth Judicial District for Kootenai County. Hon. Robert N. Dunn, fiudge.</p> <p>Action for debt. Judgment for plaintiff. Defendants appeal.</p> <p>The evidence fails to disclose any cause of action at the beginning of this suit. (Pomeroy, Code Remedies, secs. 453, 775; Feeder v. Balter, 83 N. T: 156; Lawson v. Tripp, 34 Utah, 28, 95 Pac. 520; Bach v. Brown, 17 Utah, 435, 53 Pac. 991; Thompson v. Bradbury, 5 Ida. 760, 51 Pac. 758.)</p> <p>In the fourth cause of action the collection of the price of the cars and rails is not even alleged. Plaintiffs do not pretend that they have ever paid for same and offer no evidence to that effect. In finding for plaintiffs on this cause, the jury wholly ignore the uncontradieted testimony of three witnesses. (1 Spelling, New Trial and Appellate Practice, p. 420; Chicago, B & Q. B. B. Co. v. Landaner, 36 Neb. 642, 54 N. W. 976; Michaud v. Freischeimer, 16 Mont. 472, 41 Pac. 231; Cunningham v. Gans, 29 N. Y. Supp. 979, 79 Hun, 434; Homire v. Bodgers, 74 Iowa, 395, 37 N. W. 972.)</p> <p>“When a party alleges a material fact, and offers no evidence in support of it, the court is authorized, if denied, to' find its nonexistence.” (Miller v. Engle, 3 Cal. App. 325, 85 Pac. 159.)</p> <p>The burden of proving tbe allegations by a preponderance of the evidence was on plaintiff, and if be failed to do so or if the evidence was equally balanced, be could not recover. {John Ainsfield Co. v. Rasmussen, 30 Utah, 453, 85 Pac. 1002.)</p> <p>There is a conflict as to all tbe evidence in this case; tbe court heard tbe evidence, saw tbe witnesses upon tbe stand, submitted tbe case to tbe jury under proper instructions, and the ease of Say v. Eodgin (Ida.), 116 Pac. 410, and Wolfe v. Ridley, 17 Ida. 173, 104 Pac. 1014, with a long line of decisions of this court, bold that tbe court does not err in refusing to grant a new trial where there is such conflict.</p>

ON REHEARING. APPEAL from tbe District Court of the Second Judicial District for Nez Perce County. Hon. Edgar C. Steele, Judge. Action to revive a judgment. Judgment for plaintiff. Sec. 4051, Rev. Codes, includes foreign judgments, while sees. 4470, 4474, and 4611 apply exclusively to domestic judgments. Domestic judgments are divided into two classes by the statutes: Those for the recovery of money, and those not for the recovery of money.

Hon. Ed. L. Bryan, Judge. Action on an agreed statement of facts for the purpose of testing the constitutionality of sections 1, 2, 3 and 4 of an act of the legislature approved March 6, 1911. Judgment holding said sections unconstitutional.

<p>APPEAL from the District Court of the Eighth ’Judicial District for Kootenai County. Hon. R. N. Dunn, Judge.</p> <p>An action for personal injuries. Judgment for the plaintiff:.</p> <p>Even if defendant was guilty of gross negligence, contributory negligence bars a recovery. (See cases cited in 37 Cent. Dig., Neglig., see. 85 (a); Neal v. Qillett, 23 Conn. 437.)</p> <p>A man cannot place himself in a position of known danger (as did plaintiff in the case at bar), and recover for an injury resulting therefrom. (Chicago & A. B. Co. v. Murphy, 17 111. App. 444; Bobinson v. Manhattan By. Co., 5 Misc. 209, 25 N. Y. Supp. 91; Brown v. Milwaukee St. By. Co., 22 Minn. 165.)</p> <p>“Inasmuch as it was apparent from the evidence of the plaintiff that he could, by the exercise of ordinary care, have avoided, not only the injury, but the consequences to himself of the negligence of the defendant, even if such negligence was shown, he was not entitled to recover.” (Barber v. East & West B. Go., 11 Ga. 838, 36 S. B. 50; Perry v. Railroad Co., 101 Ga. 400, 29 S. E. 304; Mansfield v. Richardson, 118 Ga. 250, 45 S. E. 269; Chicago <& N. W. Ry. Co. v. Weeks, 99 111. App. 518; judgment affirmed, Weeks v. Chicago & N. W. Ry. Co., 198 111. 551, 64 N. E. 1039; Bowling Green Stone Co. v. Gapishaw, 23 Ky. Law Rep. 945, 64 S. W. 507; Illinois Steel Co. v. McNulty, 105 111. App. 594; Silcock v. Rio Grande W. Ry. Co., 22 Utah, 179, 61 Pac. 565; Cummings v. Helena & L. Smelting <& Reduction Co., 26 Mont. 434, 68 Pac. 852; Wright v. Southern Ry. Co. (N. C.), 71 S. E. 306; Murphy v. Chicago etc. R. R. Co., 45 Iowa, 661; Wilds v. Hudson River R. Co., 24 N. Y. 430; Kresanowski v. Northern Pac. R. Co., 18 Fed. 229, 5 McCrary, 528; So. Pac. Co. .v. Pool, 160 U. S. '438, 16 Sup. Ct. 338, 40 L. ed. 485; Bier v. Hosford, 35 Wash. 544, 77 Pac. 867.)</p> <p>Where there are two methods by which a service may be performed, one perilous and the other safe, an employee who voluntarily chooses the perilous rather than the safe one cannot recover for an injury thereby sustained. (Hoffman v. Am. Foundry Co., 18 Wash. 287, 51 Pac. 385; Stratton v. Nichols Lumber Co., 39 Wash. 323, 109 Am. St. 881, 81 Pac. 831; Jenkins v. Maginnis Cotton Mills, 51 La. Ann. 1011, 25 So. 643.)</p> <p>A verdict which law does not authorize upon the evidence, because not justified therefrom, is contrary to law. (Kelley v. Morris, 6 Pet. (U. S.) 523, 8 L. ed. 622; Bossekerv. Cramer, 18 Ind. 44; Holy man v. Kanawha <& M. R. Co., 65 W. Va. 264, 64 S. E. 536, 22 L. R. A., N. S., 741, 17 Ann. Cas. 1149; Sweeney v. C. P. R. R. Co., 57 Cal. 15.)^</p> <p>Where the evidence is such that different minds may reasonably draw different conclusions as to contributory negligence, the question is for the jury. (29 Cyc. 631 et seq., and cases cited.)</p> <p>This rule will not be affected by the fact that plaintiff was the only witness in his behalf. (Scholl v. Broadway R. Co., 137 N. Y. 566, 33 N. E. 339, affirming 63 Hun, 629, 17 N. Y. Supp. 755.)</p>

<p>APPEAL from the District Court of the Fourth Judicial District for Lincolu County. Hon. Edward A. Walters, Judge.</p> <p>Prosecution for the offense of receiving deposit in an insolvent bank by officer of such bank, under sec. 2985, Rev. Codes. Conviction had and defendant appeals.</p> <p>In the ease of an incorporated bank or banking institution, one officer cannot be held to be criminally liable for the act of another officer of the same institution in receiving a deposit, though the bank be insolvent and such condition be known to the accused. (Ex parte Ric.hey, 31 Nev. 82, 135 Am. St. 651, 100 Pac. 134.)</p> <p>The language of the Idaho statute is plain and unmistakable. The officer who shall receive shall be deemed guilty. To construe this as including an officer, or officers, other than the one who receives a deposit is to do violence to the English language. (Thvited States v. Wilfberger, 5 Wheat. (TJ. S.) 76, 5 L. ed. 37; Bishop, Writ. Laws, 226; Lewis’ Sutherland Stat. Const. 356; Bishop, Stat. Crimes, sec. 195 et seq.; Sedgwick; Construction of Statutes and Const. Law, 279.)</p> <p>“Penal statutes must be strictly construed and the courts can neither add to nor take from them.” (Stewart v. State, 95 Miss. 627, 49 So. 615; State v. Dunning, 130 Iowa, 678, 107 N. W. 927; State v. Youngbluth, 60 Wash. 383, 111 Pac. 240.)</p> <p>The lower court adopts in its instructions the narrower definition of the term as employed in bankruptcy and insolvency proceedings, while the defendant contends for the broader definition of the term, — for its usual and ordinary meaning as generally used and understood. (Ellis v. State, 138 Wis. 513, 131 Am. St. 1022, 119 N. W. 1110, 20 L. R. A., N. S., 444; Hamilton v. Menominee Falls Quarry Co., 106 Wis. 352, 81 N. W. 876.)</p> <p>We recognize that the statute has abolished the distinction between principal and accessory before the fact and that the latter may be indicted, tried and punished as principal. The law has not, however, changed to the extent that it is possible to hold one man criminally responsible for an act performed by another, except the former be shown to have aided and abetted the latter in the commission of the offense, and he must both “aid and abet.” (State- v. Corcoran, 7 Ida. 221, 61 Pac. 1034; People v. Dole, 122 Cal. 486, 68 Am. St. 50, 55 Pac. 581; 12 Cyc. 616; Hughes, Instructions, see. 293; Wood v. State, 28 Tex. App. 14, 11 S. W. 678.)</p> <p>“Instructions asked by the accused, presenting his defense, and which the evidence in any degree tends to support, should be given.” (State v. Manus, 48 W. Va. 480, 37 S. E. 613, 14 Am. Cr. Rep. 245; State v. Kerns, 47 W. Va. 266, 34 S. E. 734; 15 Am. Cr. Rep. 468; Hunter v. State, 101 Ind. 241, 5 Am. Cr. Rep. 336; Bryant v. Modern Woodmen of America, 86 Neb. 372, 125 N. W. 621, 27 L. R. A., N. S., 326.)</p> <p>“Aiding and abetting are affirmative in their character; consenting may be a mere negative acquiescence, not in any way made known to the principal malefactor. Such consenting, though involving moral turpitude, does not come up to the meaning of the words ‘aid and abet.’ ” (White v. People, 81 111. 333; State v. Douglass, 44 Kan. 618, 26 Pac. 476; Drury v. Terr., 9 Okl. 398, 60 Pac. 101; Gonnaughty v. State, 1 Wis. 159, 60 Am. Dec. 370; Butler v. People, 125 111. 641, 8 Am. St. 423, 18 N. E. 338, 1 L. R. A. 211; State v. Teahan, 50 Conn. 92; State v. Empey, 79 Iowa, 460, 44 N. W. 707; State v. Corcoran (Ida.), supra.)</p> <p>There can be no question, under any of the decisions, but that in case this were a private bank, and not a corporation, the statute would include in its application not only the person physically receiving the money, but also the officers of said bank who were cognizant of the condition of the bank, and were aware of the deposit. (Baker v. State, 54 Wis. 368, 12 N. W. 12; State v. Cadwell, 79 Iowa, 432, 44 N. W. 700; State v. Buck, 120 Mo. 479, 25 S. W. 573; State v. Eifert, 102 Iowa, 188, 63 Am. St. 433, 65 N. W. 309, 71 N. W. 248, 38 L. R. A. 485; Meadowcroft v. People, 163 111. 56, 54 Am. St. 447, 45 N. E. 303, 35 L. R. A. 176; State v. Boomer, 103 Iowa, 106, 72 N. W. 424; State v. Quackenbush, 98 Minn. 515, 108 N. W. 953; State v. Shove, 96 Wis. 1, 65 Am. St. 17, 70 N; W. 312, 37 D, R. A. 142'; Carr v, Statef 104 Ala. 4, 16 So. 150.)</p> <p>The same proposition applies to an incorporated bank. (State v. Mitchell, 96 Miss. 259, 51 So. 4, 26 L. R. A., N. S., 1072, and cases cited; Ellis v. State, 138 Wis. 513, 131 Am. St. 1022, 119 N. W. 1110, 20 L. R. A., N. S., 444; Parrish v. Commonwealth, 136 Ky. 77,123 S. W. 339; Ex parte Smith (Nev.), Ill Pac. 930.)</p> <p>The eases are almost unanimous in supporting the instructions of the trial court with regard to when a bank is to be deemed insolvent. (5 Cyc. 559; Jones on Insolvency and Banking Corporations, see. 12; 4 Words and Phrases, 3654; 3 Ency. of Law, 847; State v. Myers, 54 Kan. 206, 38 Pac. 296; Slate v. Cadwell, 79 Iowa, 432, 44 N. W. 700; Walton v. First National Bank, 13 Colo. 265, 16 Am. St. 200, 22 Pac. 440, 5 L. R, A. 765; State v. Stevens, 16 S. D. 309, 92 N. W. 420; State v. Sattley, 131 Mo. 464, 33 S. W. 41; State v. Darrah, 152 Mo. 522, 54 S. W. 226; State v. Burlingame, 146 Mo. 207, 48 S. W. 72; State v. Beach, 147 Ind. 74, 43 N. E. 949, 46 N. E. 145, 36 L. R. A. 179; Meadowcroft v. People, 163 111. 56, 54 Am. St. 447, 45 N. E. 303, 35 L. R. A. 176; Commonwealth v. Rockafellow, 163 Pa. 139, 29 Atl. 757; People v. Bank, 159 Cal. 65, 112 Pae. 866.)</p>

<p>APPEAL from the District Court of tbe Eighth Judicial District for Kootenai County. Hon. Robert N. Dunn, Judge.</p> <p>Action upon a promissory note. Judgment for defendants ; plaintiff appealed.</p> <p>Evidence of transactions wholly disconnected with the transaction under consideration is entirely incompetent, and will not be admitted, as such testimony could only have the effect of prejudicing the rights of the plaintiff in this action. (.Elliott v. Lyman, 85 Mass. 110; Sutter v. Lackman, 39 Mo. 91; Canon v. National Bank, 3 Neb. (Unof.) 348, 91 N. W. 585.)</p> <p>In order to impute notice to the plaintiff, the circumstances must be so pointed and emphatic as to amount to proof of mala fides in abstinence of inquiry or such as to be prima facie inconsistent with any other view than that there is something wrong in the title, and thus amount to the constructive notice. (1 Daniel on Neg. Inst., 799; Horton v. Bayne, 52 Mo. 533; Lee v. Whitney, 149 Mass. 447, 21 N. E. 948.)</p> <p>There is no connection whatever between the facts surrounding the making of the note which was sued on in this action and the facts brought out on cross-examination of the witness Park, in regard to his knowledge of other notes; the evidence was irrelevant, incompetent and immaterial and not proper cross-examination. (Otillie v. Waechter, 33 Wis. 252; Elliot v. Lyman, 85 Mass. 110; McGuire v. Kenefick, 111 Iowa, 147, 82 N. W. 485; Brown v. Schock, 77 Pa. 471; Phila. & T. B. Co. v. Stimpson, 14 Pet. (U. S.) 448, 10 L. ed. 535; State v. Anthony, 6 Ida. 388, 55 Pae. 884.)</p> <p>When a purchaser of a note proves that he is the owner and that he paid value for the note before maturity, and that he had no notice of the defenses against the note, then before it is competent for the defendants to introduce evidence showing fraud in the inception of the note, they must introduce some evidence tending to show that the plaintiff had notice of the fraud. (Drover Nat. Bank v. Blue, 110 Mich. 31, 64 Am. St. 327, 67 N. W. 1105; Reeve v. Liverpool etc. Ins. Co., 39 Wis. 520; Wetmore v. Markoe, 196 U. S. 68, 25 Sup. Ct. 172, 49 L. ed. 390, 2 Ann. Cas. 265; Catlin v. Hensen, 1 Duer (N. Y.), 310; Hart v. Potter, 4 Duer (N. Y.), 458; Winter v. Nobs, 19 Ida. 18, 112 Pac. 525.)</p> <p>There was no evidence introduced showing that plaintiff . had knowledge of any facts at the time of purchasing the instrument in question that would show bad faith on his part. (Bothwell v. Comm, 135 Ky. 766, 123 S. W. 291; Goetz v. Bank of Kansas City, 119 U. S. 551, 7 Sup. Ct. 318, 30 L. ed. 515.)</p> <p>The jury was not warranted in disregarding the positive and direct evidence of the plaintiff to the fact that he had no knowledge or notice of these fraudulent transactions. (American Nat. Bank v. Lundy (N. D.), 129 N. "W. 99; Jennings v. Todd, 118 Mo. 296, 40 Am. St. 373, 24 S. W. 148.)</p> <p>Even though the assignee be in possession of facts or circumstances sufficient to arouse suspicion in the mind of a person of ordinary prudence, and though he is guilty of negligence in not first.following up such information for the purpose of disclosing the fraud or illegality to which the suspicious circumstances may seem to point, he may recover against the maker. (Bank v. McClelland, 9 Colo. 608, 13 Pae. 723; Tourtelotte v. Brown, 1 Colo. App. 408, 29 Pac. 130; Coors v. Bank, 14 Colo. 202, 23 Pac. 328, 7 L. R. A. 845; Band v. Stationery Co., 1 Colo. App. 270, 28 Pac. 661; Swift v. Smith, 102 U. S. 442, 26 L. ed. 193; First State Savings Bank v. Webster, 121 Mich. 149, 79 N. W. 1068.)</p> <p>It was proper for the jury to pass upon the question of good faith. (Park v. Winsor (Minn.), 132 N. W. 264; Citizens’ Savings Bank v. Houtchens (Wash.), 116 Pac. 866.)</p> <p>Considering the numerous reports in which the courts have passed upon McLaughlin Brothers ’ paper, we think there is no question but what one taking this paper now simply takes it with full knowledge of the fraudulent and swindling transactions of McLaughlin Brothers, as the courts of last resort of every state under the negotiable instruments law have sustained verdicts against them based upon similar state of facts. (City National Bank v. Jordan, 139 Iowa, 499, 117 N. W. 758; Union Nat. Bank v. Winsor, 101 Minn. 470, 118 Am. St. 641,112 N. W. 999,11 Ann. Cas. 204; Winter v. Nobs, 19 Ida. 18,112 Pac. 525; Citizens’ Savings Bank v. Houtchins, supra; Park v. Winsor, supra; Hallowell v. McLaughlin Bros., 136 Iowa, 279, 111 N. W. 428, 121 N. W. 1039.)</p> <p>The jury had a right to consider the knowledge of the plaintiff, as he could not remain wilfully ignorant of facts which were apparent on the transactions of McLaughlins and then claim good faith. (Johnson County Bank v. Rapp, 47 Wash. 30, 91 Pac. 382; State National Bank v. Bennett, 8 Ind. App. 679, 36 N. E. 551; 2 Ency. of Ev. 526; Kirby v. Berguin, 15 S. D. 444, 90 N. W. 856.)</p>

Hon. Eobert N. Dunn, Judge. Action on a promissory note. Judgment for defendants and plaintiff appealed. There is nothing in the ease to show that appellant had actual knowledge of the infirmity or knowledge of such facts that his action in taking the instrument amounts to bad faith.

<p>APPEAL from tbe District Court of tbe First Judicial District for Sbosbone County. Hon. W. W. Woods, Judge.</p> <p>Action to enjoin and restrain tbe defendants from in any manner interfering with tbe railway right of way over certain land. Injunction pendente lite granted.</p> <p>Tbe sole object of a preliminary injunction is to protect property or rights in controversy until a final bearing on tbe merits, and a court of equity will not, by such preliminary injunction, take property out of tbe possession of one party and put it into tbe possession of tbe other. (2 High Inj., 3d ed., 601; 22 Cyc. 743; Toledo etc. By. Co. v. Detroit etc. B. Co., 61 Mich. 9, 27 N. W. 715; Minneapolis etc. B. Co. v. Chicago, M. & St. P. B. Co., 116 Iowa, 681, 88 N. W. 1082; San Antonio ~W. Go. v. Bodenhamer etc. Co., 133 Cal. 248, 65 Pac. 471; Calvert v. State, 34 Neb. 616, 52 N. W. 687; Warlier v. Williams, 53 Neb. 143, 73 N. W. 539.)</p> <p>Equity takes jurisdiction of infringement upon tbe right of easement and where, as in tbe case of a railroad, tbe easement is conferred for the public benefit, where tbe grantee is charged with duties and responsibilities, for the safe performance of which for the benefit of the public it is liable, an action at law can never afford it adequate relief.</p> <p>An action of ejectment, or actions for damages, would clearly be inadequate for its protection, and for these reasons, as well as because the protection of the public requires immediate action and because an impairment of this public highway constitutes a -nuisance, a court of equity will at once take jurisdiction and grant the necessary injunctive relief. (A. T. & S. F. By. Co. v. Spaulding, 69 Kan. 431,-105 Am. St. 175, 77 Pae. 106, 66 L. R. A. 587, 2 Ann. Cas. 546; K. C. P. By. Co. v. Burns, 70 Kan. 627, 79 Pae. 238; Seaboard Air Line B. Co. v. OUve, 142 N. C. 257, 55 S. E. 263; L. & N. B. Co. v. Smith, 128 Fed. 1, 63 C. C. A. 1; Kindred v. V. P. By. Co., 168 Fed. 648, 94 C. C. A. 112; Wright v. St. L. S. W. By. Co., 175 Fed. 845.)</p>

<p>APPEAL from the District Court of the Eighth Judicial District for Bonner County. Hon. Robt. N. Dunn, Judge.</p> <p>Action to recover for the alleged negligent destruction of standing timber by fire. Judgment for the plaintiff.</p> <p>The right to institute the action for damages in such a case is vested by the law in the real owner of the property, and not in the one who without color of right is in possession thereof. (Mathews v. Great Northern Ry. Co., 7 N. D. 81, 72 N. W. 1085; Northern Pac. Ry. Co. v. Lewis, 162 U. S. 366, 16 Sup. Ct. 831, 40 L. ed. 1002; Missouri Pac. Ry. Co. v. Cullers, 81 Tex. 382, 17 S. "W. 19, 13 L. R. A. 542.)</p> <p>Her possession was that of a mere naked trespasser and would not raise ahy presumption of ownership. (Shiver v. United States, 159 U. S. 491, 16 Sup. Ct. 54, 40 L. ed. 231; Conway v. United States, 95 Fed. 615, 37 C. C. A. 200; United States v. Ball, 31 Fed. 667, 12 Saw. 514.)</p> <p>Entries of record, prima facie valid, appropriate the lands covered thereby, and while they remain uncanceled the land is not subject to further entry (Witherspoon v. Duncan, 4 Wall. (U. S.) 210, 18 L. ed. 339; Hodges v. Colcord, 193 U. S. 192, 24 Sup. Ct. 433, 48 L. ed. 677; Carroll v. Safford, 44 U. S. (3 How.) 441, 11 L. ed. 671) until the original entry be canceled or declared forfeited, in which case the land reverts to the government as part of the public domain, and becomes again subject to entry under the land laws. {Hastings & Dakota By. Co. v. Whitney, 132 U. S. 357, 10 Sup. Ct. 112, 33 L. ed. 363; Kansas Pac. By. Co. v. Dunmeyer, 113 U. S. 629, 5 Sup. Ct. 566, 28 L. ed. 1122; Whitney v. Taylor, 158 U. S. 85, 15 Sup. Ct. 796, 39 L. ed. 906; N. P. By. Co. v. Sanders, 166 U. S. 620, 17 Sup. Ct. 671, 41 L. ed. 1139; McMichael v. Murphy, 197 U. S. 304, 25 Sup. Ct. 460, 49 L. ed. 766.)</p> <p>So long as Campbell’s entry remained uncanceled of record, it segregated the tract of land from the mass of the public domain and precluded Racheal King from acquiring an inceptive right thereto by virtue of her alleged settlement, {McMichael v. Murphy, supra; Ex parie Eva Brown, 3 L. D. 150; Oourley v. Countrynmi, 18 Okl. 220, 90 Pac. 427; Holt v. Classen, 19 Old. 131, 91 Pac. 866.)</p> <p>The whole theory of her case has been an injury to the land and to the fee, and the introduction of evidence as to her settlement and intention are entirely immaterial and incompetent. {Mo. Pac. By. Co. v. Cullers, supra; Knoth v. Barclay, 8 Colo. 300, 6 Pac. 924; Colo. Con. L. & W. Co. v. Morris, 1 Colo. App. 401, 29 Pac. 302.).</p> <p>In contemplation of law, the land is restored to the public domain as soon as the abandonment tabes place. {Street v. Delta Min. Co. (Mont.), 112 Pac. 701; Love v. Flahfive, 205 U. S. 196, 27 Sup. Ct. 486, 51 L. ed. 768.)</p> <p>Respondent’s rights to said lands, after the contest was decided in her favor, would by operation of law date back to the time when she first took possession thereof on February 15, 1906, between three and four months before the fire occurred.</p> <p>.Even a squatter upon the public lands of the United States has such a possession as would entitle him to sue a railroad company for damaging the property or the improvements thereon. (2 Jaggard on Torts, 669; Witt v. Si. Paul & N. P. By. Co., 38 Minn. 123, 35 N. W. 862; Fort Worth & N. O. By. Co. v. Smith (Tex. Civ. App.), 25 S. W. 1032; Galveston E. <& S. A. By. Co. v. Bheimer (Tex. Civ. App.), 25 S. W. 971; Pac. Express Co. v. Dunn, 81 Tex. 85, 16 S. W. 792.)</p> <p>Mere possession without title, but under claim of right, is sufficient to sustain the action. (Anthony v. BailroacL Co., 162 Mass. 60, 37 N. E. 780; Marks v. Sullivan, 8 Utah, 406, 32 Pac. 668, 20 L. R. A. 590; McFeters v. Pierson, 15 Colo. 201, 22 Am. St. 388, 24 Pac. 1076; Martin v. Pittman, 3 Colo. App. 220, 32 Pac. 840; Stahl v. Grover, 80 Wis'. 650, 50 N. W. 589; Bogers v. Duhart, 97 Cal. 500, 32 Pac. 570; Barbarick v. Anclerson, 45 Mo. App. 270; Gulf, C. & S. F. By. Co. v. Johnson,'54 Fed. 474, 4 C. C. A. 447; McClellan v. St. Paul M. <& M. By. Co., 58 Minn. 104, 59 N. W. 978.)</p>

<p>APPEAL from the District Court of the First Judicial District for Sbosbone County. Hon. W. W. Woods, Judge.</p> <p>Action for damages and perpetual injunction. Judgment for the plaintiff and defendant appealed.</p> <p>Respondent was bound to take notice that Eagle and Prichard creeks could be rendered navigable by the removal of a few stumps and fallen timbers before occupying the channel of said Prichard creek. (Olson v. Merrill, 42 Wis. 203; Moore v. Sanborne, 2 Mich. 520, 59 Am. Dec. 209; Johnson v. Johnson, 14 Ida. 561, 95 Pac. 499, 24 L. R. A., N. S., 1240.)</p> <p>The test to be applied in such cases is, whether a stream is inherently and in its nature capable of being used for the purposes of commerce for the floating of vessels, boats, rafts or logs. (Brown v. Chadbourne, 31 Me. 9, 50 Am. Dec. 641; Morgan v. King, 35 N. Y. 454, 91 Am. Dec. 58; Hooper v. Hobson, 57 Me. 273, 99 Am. Dec. 769.)</p> <p>“A stream capable of floating logs and timber to market is a navigable stream.” (Hallock v. Suitor, 37 Or. 9, 60 Pae. 384; La Yeine v. Stack-Gibbs Lbr. Co., 17 Ida. 51, 134 Am St. 253, 104 Pac. 666.)</p> <p>“The fact that a floatable stream has not been used by the public but has only been used by persons following a particular occupation cannot deprive such stream of its public character.” (Moore v. Sanborne, supra.)</p> <p>“It is sufficient if it appear that business men may calculate that, with a tolerable regularity as to season the water will rise to and remain at such a height as to make it profitable as a highway for transporting logs to mills and markets lower down.” (Commrs. of Burke County v. Catawba Lumber Co., 116 N. C. 731, 47 Am. St. 829, 21 S. E. 941.)</p> <p>•The legislature must be presumed to have had all the natural growth and development of the timber industry in view when they enacted section 2798, Rev. Codes, authorizing the construction of bridges over streams in this state. (Dugan v. Bridge Co., 27 Pa. 303, 67 Am. Dec. 464.)</p> <p>Had respondent properly constructed its bridge and right of way and kept out of the channel of Prichard creek, its right of way would not have been destroyed. (Edwards v. Missouri K. & E. By. Co., 97 Mo. App. 103, 71 S. W. 366.)</p> <p>“In building dams or other embankments or structures into the bed of the stream, so as to impede or interfere with the flow of the stream, the party who does so acts at his peril.” (Fischer v. Davis, 19 Ida. 493, 116 Pae. 412.)</p> <p>In Idaho, the use and navigation of our streams has been sedulously guarded by both legislative action and judicial decisions. (Secs. 837 and 2798, Rev. Codes; Powell v. Springston Lumber Co., 12 Ida. 723, 88 Pac. 97; La Veine v. StachGibbs Lumber Co., supra.)</p> <p>While this court has been liberal in applying the rule that a stream that can be profitably utilized for floating logs is a navigable stream, yet in no case has it gone so far as to say that a stream that cannot be used without improvement is navigable. (La Veine v. Stach-Gibbs Lbr. Co., 17 Ida. 51, 134 Am. St. 253, 104 Pac. 666; 1 Farnham on Waters, sec. 77, p. 365; East Bramch etc. Co. v. White etc. Lumber C.o., 69 Mich. 207, 37 N. W. 192.)</p> <p>“The navigation right does not include the right to inter-fere with the bed of the stream. Rocks and natural obstructions cannot be removed.” (1 Farnham on Waters, sec. 29a.) This is in navigable streams; much less is there any such right in a stream which is not in fact navigable. (Haines v. Hall, 17 Or. 165, 20 Pae. 831, 3 L. R. A. 609.)</p> <p>A stream to be navigable in this sense must be capable of such floatage as is of practical utility and benefit to the public as a highway for trade. (Rhodes v. Otis, 33 Ala. 578, 73 Am. Dec. 439.)</p> <p>“The one who claims the stream to be navigable has the burden of proving that it is in fact susceptible of valuable use for commercial purposes in its natural state, unaided by artificial means and devices.” (1 Farnham on Waters, sec. 26, citing numerous cases.)</p> <p>This court has heretofore considered and adjudicated the rights of respective parties as to the use of navigable streams. (Small v. Harrington, 10 Ida. 499, 79 Pae. 461; Grice v. Clear-water Timber Co., ante, p. 70, 117 Pac. 112.)</p>

Hon. E. C. Steele, Judge. Action to recover damages for the conversion of personal property. Judgment for plaintiff. Defendant appeals. The order vacating the appointment of the receiver did not require appellant to restore possession of the property to respondents nor adjudicate that he did not have the right to keep possession of the property pending the foreclosure action.

Original application for writ of habeas corpus. “State discrimination against citizens of other states in respect to commercial transactions violates the right of equal privileges and immunities.” (Ward v. Maryland, 79 IT.

<p>APPEAL from the District Court of the Eighth Judicial District for the County of Bonner. Hon. Robert N. Dunn, Judge.</p> <p>Action on a promissory note. Judgment for plaintiff and defendants appeal.</p> <p>The note is not admissible in evidence without proof of the indorsement when objection is made to the introduction of the instrument by the defendant. (Grogan v. Buckle, 1 Cal. 158; Youngs v. Bell, 4 Cal. 201; Pinkham & McDonough v. McFarland & Elrod, 5 Cal. 137; Poorman v. Mills & Co., 35 Cal. 118, 95 Am. Dec. 90.)</p> <p>One taking a negotiable instrument by assignment takes it subject to all the equities existing between the payee and the maker. (Craig v. Palo Alto Stock Farm, 16 Ida. 701, 102 Pac. 393.)</p> <p>The negotiable instrument law changes the rule formerly applied to commercial paper, and when the defendant denies that the holder of the note is a holder in due course, the burden is upon the holder to establish by the testimony that he is a holder in due course. In this regard there is a fatal lack of testimony to establish “that he took it in good faith and for value.” (Hodge v. Smith, 130 Wis. 326, 110 N. W. 192; Aukland v. Arnold, 131 Wis. 64, 111 N. W. 212; Swanke v. Herdeman, 138 Wis. 654, 120 N. W. 414; McNight v. Par-, sons, 136 Iowa, 390, 125 Am. St. 265, 113 N. W. 858, 22 L. R. A., N. S., 718, 15 Ann. Cas. 665; Cox v. Cline, 139 Iowa, 128, 117 N. W. 48; City Nat. Bank v. Jordan, 139 Iowa, 499, 117 N. W. 758; Cedar Rapids Nat. Bank v. Myhre Bros., 57 Wash. 596, 107 Pac. 518; Union Nat. Bank v. Winsor, 101 Minn. 470, 118 Am. St. 641, 112 N. W. 999, 11 Ann. Cas. 204; Smith v. Lockwood, 80 Wis. 491, 50 N. W. 401.)^</p> <p>‘ ‘ The question of the good faith of the purchaser of the note was one of fact instead of law, and the jury had the right to determine it in the light of all the facts and circumstances presented in the case.” (Winter v. Nobs, 19 Ida. 18,112 Pac. 525.)</p> <p>“The burden was upon the plaintiff in this case to show that it was a holder in good faith, and the question of whether or not that burden was successfully met was one which was submitted to the jury, and, by its verdict, it has decided that question against the appellant.” (Cedar Rapids Nat. Bank v. Myhre Bros., 57 Wash. 596, 107 Pac. 518.)</p>

<p>Original proceedings in this court for a writ of mandate to compel the Honorable Edgar C. Steele, as Judge of the District Court of the Second Judicial District, to decide a certain ease tried and submitted to him for decision.</p>

<p>APPEAL from the District Court of the First Judicial District for the County of Shoshone. Hon. W. W. Woods, Judge.</p> <p>An adverse action to determine the right to certain mining claims. Judgment for defendant and plaintiff appeals.</p> <p>It is only when the applicant for patent has complied with all the terms and conditions which entitle him to a patent that such effect is to be given to the final receiver’s receipt. (Wirth v. Branson, 98 U. S. 118, 25 L. ed. 86.)</p> <p>This was a decision of the land department upon the facts in a matter which the department was authorized to hear and determine, and is final and absolutely conclusive upon the respondent upon the two questions, viz.: that the affidavit upon which the final receiver’s receipt was obtained was false, and that the applicant for patent (respondent) had not complied with the law to entitle it to the receipt. (Shepley v. Cowan, 91 U. S. 840, 23 L. ed. 428; Johnson v. Towsley, 13 Wall. (U. S.) 83, 20 L. ed. 485; Moss v. Bowman, 176 U. S. 415, 20 Sup. Ct. 429, 44 L. ed. 526.)</p> <p>“Fraud vitiates any transaction based thereon and will destroy any asserted title to property no matter in what form the evidence of such title may exist.” (United States v. Steenerson, 50 Fed. 504, 1 C. C. A. 552; Murray v. Polglase, 23 Mont. 401, 59 Pac. 439.)</p> <p>The decision of the acting commissioner to the effect that the affidavit upon which the entry was obtained was false, and that the respondent had not complied with the law in obtaining the entry, and the cancellation thereof upon those grounds, left the respondent as though the entry had never been made, and, therefore, the respondent’s location became forfeited for lack of work for the year 1907 and the relocations of the appellant were good. (Murray v. Polglase, 17 Mont. 455, 43 Pac. 505; Murray v. Polglase (2d Appeal), supraj United States v. Steenerson, 50 Fed. 504, 1 C. C. A. 552.)_</p> <p>“An entry and certificate of purchase, so long as they remain uneanceled, are equivalent to a patent, so far as the rights of third parties are concerned.” (Aurora Hill Min. Go. v. ’85 Min. Go., 34 Fed. 515, 12 Saw. 355, 15 Morr. Min. Rep. 581, and authorities cited; Last Chance Min. Go. v. Tyler Min. Go., 61 Fed. 61, 9 C. C. A. 613; Benson Min. Go. v. Alta Min. Go., 145 U. S. 428, 12 Sup. Ot. 877, 36 L. ed. 762, 17 Morr. Min. Rep. 488; Brown v. Gurney, 201 U. S. 184, 26 Sup. Ct. 509, 50 L. ed. 717.)</p> <p>The entry of public land under the laws of the United States, whether legal or illegal, segregates it from the public domain, appropriates it to private use, and withdraws it from subsequent entry or acquisition until the prior entry is officially canceled and removed. (James v. Germania Iron Go., 107 Fed. 597, 46 C. C. A. 476.)</p>

<p>APPEAL from the District Court of the First Judicial District for Shoshone County. Hon. W. W. Woods, Judge.</p> <p>Action for divorce and to quiet title to certain property. Judgment for the plaintiff.</p> <p>“No divorce can be granted upon the default of the defendant, or upon the uncorroborated statement, admission or testimony of the parties.” (Sec. 2661, Rev. Codes; Strode v. Strode, 6 Ida. 67, 96 Am. St. 249, 52 Pac. 161; Bell v. Bell, 15 Ida. 21, 96 Pae. 196.)</p> <p>While the corroborative evidence in some respects may be slight, taking it all in all and considering the testimony of the witnésses together with the admissions of the defendant himself, the court cannot but decide that the only reasonable conclusion to be drawn therefrom is that the defendant was guilty of the offense charged. (Krauss v. Erauss, 77 N. Y. Supp. 203, 73 App. Div. 509, 11 N. Y. Ann. Cas. 194; Griffin v. Griffin, 18 Utah, 98, 55 Pac. 84; Thayer v. Thayer, 101 Mass. Ill, 100 Am. Dec. 110; Taft v. Taft, 80 Yt. 256, 130 Am. St. 984, 67 Atl. 703,12 Ann. Cas. 959.),</p>

Hon. Robt. N. Dunn, Judge. Action to recover for goods, wares and merchandise alleged to have been sold and delivered to the defendant. Judgment for plaintiffs.

Hon. R. N. Dunn, Judge. An action to recover damages for personal injuries. Judgment for plaintiff. Defendant appeals. The risk in connection with an injury such as was received in this ease is one that is assumed by the employee, and the plaintiff cannot recover. (McGafferty v. Lewandos French D. & G. Go., 194 Mass. 412, 120 Am. St. 562, 80 N. E. 460; Hoard v. Blachstone Mfg.

Hon. Robt. N. Dunn, Judge. Action to recover for sawlogs sold and delivered. Judgment for plaintiff.