Volume 21 — Arizona Reports

John J. Sweeney, Judge. STATEMENT OF FACTS. The appellee, as plaintiff, commenced this action against the appellant and another party known as Horstmann & Plomert, to recover the value of certain machinery furnished said Horstmann & Plomert, to he used in and about a cold storage and ice manufacturing plant constructed for appellant, and to declare and fix a materialman’s lien on the said plant, and a foreclosure of the said lien.

P. H. Lyman, Judge. STATEMENT OE PACTS. On the eighteenth day of February, 1918, the appellee, John W. Crenshaw, as administrator' of the estate of Manuel Segura, sued, the appellant, the Arizona-Hercules Copper Company, a corporation, in the superior court of Maricopa county, in damages, for personal injuries resulting in the death of his intestate. The suit was brought under the Employers’ Liability Law of the state (Civ.

<p>1. Action — Joinder of Causes of Action fob Contract and Tort.— Under Civil Code of 1913, paragraph 427, providing that actions ex contractu shall not be joined with actions ex delicto, a cause of action against a stage company by a passenger for injuries through its negligence cannot be joined with' a cause of action on an indemnity policy.</p> <p>2. Action — Joinder of Parties Having Distinct Liabilities Improper. — In a. passenger’s action against a stage company for injuries from its negligence, it is improper to join a company which- issued an indemnity policy; their liabilities being separate and distinct.</p> <p>3. Insurance — In Action on Indemnity Contracts, Necessity of Judgment Against Principal. — That an indemnity poliey covering loss by reason of judgments against a stage company for injuries to passengers contains a clause inserted by order of the corporation commission providing that the policy was to inure to the benefit of any and all persons suffering loss or damage, and that suit might be brought thereon in any court having jurisdiction, does not make it unnecessary for the person injured to first obtain judgment against the stage company before he can recover against the indemnity company on the policy.</p> <p>2. Joinder of cause of action against party causing injury with cause of action against latter’s .insurer or indemnitor, note, 7 A. L. E. 1003.</p> <p>3. Necessity for actual damage before recovery on indemnity contract, notes, 3 Ann. Cas. 480; Ann. Cas. 1913D, 1152.</p> <p>4. Contracts — Such Construction Adopted as will Harmonize Entire Instrument. — In construing a contract the court must adopt such construction as will harmonize all its parts, conflicting provisions to be reconciled by a reasonable interpretation in view of the entire instrument and the surrounding cireumstanees, a clause contributing most essentially to the contract being entitled to more consideration than one contributing less thereto.</p>

P. H. Lyman, Judge. STATEMENT OF FACTS. Devello Tipple, the maternal grandfather of Mary Elizabeth Harper, a minor child, applied to the superior court of Maricopa county for appointment as guardian of the person and estate of the minor, alleging in his petition, among- other things, that the minor was the child of his daughter, Fannie Fern Harper, and her husband, Monte Harper, and that the child was about five and a half years of age; that about the 1st of May, 1915, the…

<p>Appeal and Error — Review of Finding on Conflicting Evidence.— Where appeal is taken from a refusal to set aside an order in supplemental proceedings requiring appellant to personally appear and answer concerning his property, and evidence as to whether or not he was a resident of the county, within Civil Code of 1913, paragraph 1385, is conflicting, the judgment of the trial court will not be disturbed.</p>

<p>1. Appeal and Error — Keview of Findings on Conflicting Evidence. — It is the province of the court, sitting without a jury, to settle disputes on conflicting evidence, and its finding, if sustained by some evidence, is -conclusive on appeal.</p> <p>2. Appeal and Error — Review of Finding Against Weight oí* Evidence. — Where question presented on appeal is one of fact, the judgment will be reversed only where it is so manifestly against the weight of the evidence as to show that it is the result of bias and prejudice.</p>

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

F. H. Lyman, Judge. STATEMENT OF FACTS. This action was instituted by the appellee, James King Green, in his individual capacity and as the administrator of the estate of Annie H. Green, deceased, against the appellants, G. H. Coffin and Olive A. Stark (formerly Olive A. Grimshaw), for the purpose of having two certain warranty deeds • declared to be mortgages, and for an accounting and redemption.

<p>1. Certiorari- — Order Granting New Trial not Reviewable. — Since an appeal can be taken from an order granting a new trial, under Civil Code of 1913, paragraph 1227, certiorari should not issue to review such an order under paragraph 1495, even where trial court was without jurisdiction to grant the new trial.</p> <p>2. Certiorari — Presumption That Motion for New Trial was Kept Alive. — Where motion for new trial was granted more than twenty days after entry of judgment, silent acquiescence 'of plaintiff in such an order and subsequent stipulations by plaintiff with adversary party that case be tried on a day certain would authorize the assumption in' the Supreme Court that the motion for a new trial was kept alive by stipulation or court order; motion for new trial having been made before the expiration of the twenty days.</p> <p>3. Certiorari — Presumption as to Waiver of Error. — Silent acquiescence of plaintiff in an order, made more than twenty days after entry of judgment, granting defendant’s motion for a new trial, and stipulation by plaintiff with adversary party setting a day certain for trial, would authorize the -Supreme Court on appeal to assume that plaintiff was willing to waive,' and did waive, error of court in granting sueh a motion after twenty days without time being extended.</p> <p>4. Prohibition — Not Applicable Where Appeal Will Lie. — Prohibition may not be resorted to where there is a plain, speedy, and adequate remedy by appeal.</p> <p>1. Questions reviewable upon certiorari, note, 40 Am. St. Rep. 30.</p> <p>3. What proceedings are inconsistent with motion for new trial so as to waive right to move, note, Ann, Cas, 1914B, 612.</p>

<p>Criminal Law — Notice oe Appeal erom Verdict Only.' — Under Penal Code of 1913, section 1153, where defendant, convicted of murder and sentenced to death, gave no notice of appeal from the judgment, or from the order denying his motion for new trial, but merely gave notice of appeal from the verdict, the -Supreme Court has no jurisdiction; the provisions of the statute as to appeal being mandatory and jurisdictional.</p>

<p>1. Appeal and Error — Time for Perfecting Appeal from Order Granting New Trial. — Under Civil Code of 1913, paragraph 1227, subdivision 2, authorizing an appeal from an order granting a new trial, paragraph 1228; defining final judgments and orders, as well as paragraph 1233, giving six months in which to appeal from a final judgment and sixty days from an order, an appeal . from an order granting new trial must be taken within sixty days.</p> <p>2. Appeal and Error — Jurisdiction of Appellate Court on Ineffectual Appeal. — Where an appeal from an order granting new trial was not perfected within the time prescribed, the appellate court has no jurisdiction except its inherent jurisdiction to dismiss the appeal.</p>

<p>1. Divorce — Time for Motion to Set Aside 'Decree. — Under Civil Code of 1913, paragraph 590, requiring motion to set aside within ten days after rendition of judgment, the trial couyt, had no authority on motion filed in February to vacate divorce decree rendered the preceding September.</p> <p>2. Judges — Time for Objecting to Judge. — Where, in divorce action, after hearing and denial of motion for alimony and suit money, and making of stipulation for taking testimony by depositions and for trial of case on September 14th, on September 13th, an affidavit was filed for change of judge, under Civil Code of 1913, paragraph 500, subdivision 4, alleging on information and belief the bias or prejudice of the trial judge, it was proper, on September 14th, when defendant did not appear for trial in person or by counsel, to disallow the application; it having been made too late.</p> <p>3. Judgment — Disqualification of Judge. — The common-law rule that aetion by a judge in a case where he is disqualified by interest or other cause is an error or irregularity not affecting his jurisdiction, and eorreetible only by a vacation or reversal of his judgment, is not changed by Civil Code of 1913, paragraph 500, but that statute is declaratory of the rule, so that the rule of decision in this respect is that of the common law, under paragraph 5555.</p> <p>4. Judges — Time for Objection to Judge.- — Since a judge’s disqualification is established as a fact by a conclusive presumption of bias and prejudice in ease of his relationship to the parties, or of his having been counsel in the case before he became judge, or of his being a witness in the' case, in such eases the time of filing ‘ application and supporting affidavit of judge’s disqualification is immaterial.</p> <p>5. Judges — Time for Objection to Judge. — Filing affidavit of prejudice on information and belief is not sufficient cause for a judge to refuse to continue in the trial of a case already begun when the affidavit is filed.</p> <p>1. Proceedings for vacating and annulling divorce decree, note, 61 Am. Dec. 459.</p> <p>2. Waiver of disqualification of judge, notes, 10 Ann. Cas. 969; Ann. Cas. 1912A, 1072; 5 A. L. R. 1588.</p>

APPEAL, from a judgment of the Superior Court of the County of Santa Cruz. S. L. Pattee, Judge. STATEMENT OE PACTS.

Frank H. Lyman, Judge. STATEMENT OP PACTS. Action to recover damages for personal injuries suffered by the appellee, resulting from the negligence of the appellant. The verdict was returned and judgment rendered thereon on the eighth day of October, 1918. A motion for a new trial was filed October 19, 1918.

<p>•1. Taxation — Right to Public Land Selected is a “Claim to Land” and Taxable. — Defendants, successors in interest of Baea heirs as to one of the tracts selected by said heirs by their attorney pursuant to Act Congress June 21, 1860, section 6, held to have “a claim to land” which was taxable under Civil Code of 1913, paragraph 4847, for the years 1913 and 1914, though notes and plats of survey made in 1905 of tracts selected were not filed until December 14, 1914, pursuant to decision of the United States Supreme Court because title had been the subject of constant litigation in the eourts or before the Land Department.</p> <p>1. Liability to state taxation of United States property granted or sold by government, but to which government still holds legal title, note, 11 Ann. Cas. 391.</p> <p>2. Taxation — Land Sufficiently Identified for Purposes of Taxation. — A tract of land selected for Baca heirs pursuant to Act of Congress June 21, 1860, section 6, held sufficiently identified for the purpose of taxing claim of defendants (successors of Baca heirs) thereto, though notes and plats of survey of the tracts selected for said heirs had not been filed.</p> <p>3. Taxation — Assessment Against Unknown Owners Compliance With Statute. — The addition, to assessment-roll assessing entire tract to “unknown owners,” of names of various claimants to tract with apparent attempt to describe the several portions claimed by the parties, held to amount to only an assessment against unknown owners, and to be a sufficient compliance with Civil Code of 1913, paragraph 4860.</p> <p>4. Taxation — Property in Litigation may be Assessed to Unknown Owners. — Where title to property is in litigation and assessor has no means of determining-what may be the ultimate result of the litigation, he may assess the property to unknown owners.</p>

<p>1. New Trial — Statute as to Time for Motion Mandatory. — Civil Code of 1913, paragraph 590, providing that motions for new trial must be made within ten days after judgment is mandatory.</p> <p>2. New Trial — Time for Moving Where Defendant was Represented by -Counsel. — Where summons was served personally on defendant without the state, and he retained local counsel, who moved to dismiss, held, that defendant appeared by attorney of his selection, and so was bound, under Civil Code of 19-13, paragraph 590, to move for new trial within ten days, not coming within the exception of paragraph 592, allowing motion to be made within one year, where defendant is served by publication and has not appeared, etc., and hence order granting new trial on motion made more than ten days after judgment is invalid for want of jurisdiction.</p> <p>3. Appeal and Error — Dismissal of Appeal from Order Made Without Jurisdiction. — Where the trial court in excess of its jurisdiction ordered a new trial on motion filed more than ten days after judgment, appeal from the order must be dismissed.</p>

<p>1. Appeal and Error — Admission op Evidence Harmless. — Admission of hearsay evidence of the state of an account was harmless; a book of account showing it being also in evidence.</p> <p>2. Building and Loan Associations — Contract Controlled by Law op State op Payment. — It not appearing that a studied effort to evade the local usury law was intended, a note to a building and loan association of another state, and payable in that state, is controlled by its law.</p> <p>3. Building and Loan Associations — Contract Negotiated Bepore Passage op Usury Law not Appected Thereby. — The building and loan contract as to terms and conditions of loan antedating the usury law, though formally executed after its passage, is not affected thereby.</p> <p>2. Usury laws governing building and loan contracts, notes, 46 Am. St. Eep. 200; 1 Ann. Cas. 241; 14 Ann. Cas. 736.</p> <p>2. Whether and when contracts of building and loan associations are usurious, note, 83 Am. Dec. 612.</p>

<p>1. Bills and Notes — Evidence That Note was Procured by Praud eor Jury. — In an action on a note given for the purchase price of corporate stock, where defendant .asserted that the note was procured through fraud, and that plaintiff was not the bona fide holder, evidence that the note was procured through fraud held, sufficient to go to the jury.</p> <p>2. Corporations — False Representations in Sale of Stock Constituting Fraud. — The general rule is that any false representations \of a material fact by either party to a contract for the sale of corporate stock constitutes fraud if it is made with knowledge that it is false, or recklessly made without any belief in its truth, with intent that it shall be acted upon by the other party, and if it is relied upon by the other party to his injury.</p> <p>3. Corporations — Representations of Material Fact as Distinguished from: Matter of Opinion on Sale of Stock. — False representation that a corporation held a patent ,to an article proposed to be manufactured, made in selling corporate stock, is a representation of a material existing fact, and not a mere statement of opinion.</p> <p>4. Corporations — Right of Party to Rely on False Representation as to ‘Stock Sold. — Where the seller of corporate stock falsely represented that the corporation held a patent, the fact that the buyer could have demanded the production of the patent, and in that way ascertained falsity of the representation, will not preclude him from setting up such fraud in an action on a note given for the stoek.</p> <p>5. Corporations — Fraud in Sale of Stock — Partial Investigation not Defeating Relief for. — Partial investigation and reliance in part on false representations made by seller does not preclude relief to a purchaser of corporate stock on the ground of fraud.</p> <p>6. Corporations — False Representations as to Value of Corporate Stock. — While ordinarily statements as to the present or future value of corporate stoek are merely matters of opinion, and though false do not constitute actionable fraud, yet where a party making representations as to the value of stoek has or assumes to have special knowledge, and knows that the other party is ignorant of the value, such false representations will be regarded as the statements of existing facts and not mere opinion, so false representations as to value by the president of a corporation, made in selling the stoek, will be deemed representations of material facts. ,</p> <p>7. Corporations — Unfulfilled Promise as Fraud in Selling Stock Authorizing Rescission. — While a mere unfulfilled promise will not furnish legal ground for avoiding a contract, nevertheless when a party leads another into a contract by making him a promise which -he has no intention at the time of performing, such promise constitutes a fraud for which the contract might be rescinded; consequently a promise by seller of corporate stock to buy it back within a year when made with no intention of fulfillment, constitutes fraud.</p> <p>6. For authorities discussing the question of liability of corporate office for misrepresentations whieh induced the sale or purchase of corporate stoek, see note in 1 L. R. A. (N. S.) 258.</p> <p>7. As t'o whether future promise is actionable fraud, see note in 10 L. R. A. (N. S.) 640.</p> <p>8. Bills and Notes — Burden on Holder of Note Procured by Fraud to Show Good Faith. — Under Civil Code of 1913, paragraph 4204, ■the holder of a note has the burden of showing that he acquired title in due course upon proof by the maker that it was procured through the payee’s fraud.</p> <p>9. Bills and Notes — Who are Holders in Due Course. — Under Civil Code of 1913, paragraph 4197, the holder of a note, in order to establish that he was a holder in due course, must show by competent evidence that he became the holder of the note before it was overdue and without notice that it had been previously dishonored; that he took it in good faith and for value, and without notice of any infirmity.</p> <p>10. Bills and Notes — Evidence That Plaintiff was not Holder in Due Course. — In an action on a note obtained through fraud, evidence held to warrant a finding that plaintiff, who paid only $2,500 for the note, which was for $3,500, was not a holder in due course.</p> <p>11. Evidence — Bight to Disregard Testimony of Interested Witness. Where plaintiff claimed to be a holder in due course of a note procured through fraud, held that, though he was not directly contradicted, the jury might, in view of the suspicious circumstances, discredit his testimony as that of an. interested witness.</p> <p>12. Corporations — Evidence of Fraud in Sale of Stock. — Where fraud in sale of corporate stock is charged, the law permits a very broad range to be given to the testimony.</p> <p>9. Bights of bona fide purchaser of negotiable note procured by fraud, note, 41 Am. Rep. 607.</p> <p>9. Bona fide holder as unaffected by fraud in inception of negotiable instrument, note, 11 Am. St. Rep. 309.</p>

<p>1. Trial — Argument of Counsel not Ground for Reversal Where Provoked by Adverse Counsel. — In action for injuries to employee, where counsel for employer in argument stated that defendant was practical!y broke, that a judgment against it would cause irreparable damage and practically put it out of business, statements by employee’s attorney that “it is a matter of common knowledge in this state that every corporation can protect itself by carrying liability insurance, and if this corporation was negligent in failing to take out insurance, it was its fault,” held not ground for reversal having been provoked by statements by counsel for employer.</p> <p>2. Trial — Argument of Counsel not Ground for Reversal Where Provoked by Adverse Counsel. — Improper language used in argu-</p> <p>1. Misconduct in argument of counsel which calls for a new trial, note, 9 Am. St. Rep. 559.</p> <p>ment is not ground for reversal, where provoked by counsel for adverse party, unless it appears quite plainly that the verdict was influenced thereby, though language used would clearly authorize a reversal in the absence-of such provocation.</p> <p>3. Trial-^Objection to Improper Remarks by Counsel Sufficient.— Objection to remarks of counsel in argument to jury, specifying the remarks objected to, was sufficient to call for/a ruling thereon by the court, though reason for objection was not pointed out, where remarks could not be justified on any ground, except as retaliatory to remarks of counsel for adverse party.</p> <p>4. Trial — Admonition to Disregard Improper Remarks by Counsel Insufficient. — In employee’s action for injuries, where employee’s counsel had made improper remarks in argument to jury as to protection afforded employers by liability insurance, a general instruction, charging jury to try the ease free from bias and prejudice and wholly on the evidence, was not tantamount to directing jury to disregard counsel’s improper remarks, since such remarks should be specifically withdrawn from jury, with proper admonitions, generally on objection, and always on motion, unless they were provoked by remarks of counsel for adverse party.</p> <p>3. Necessity and sufficiency of objection and exception to improper argument of counsel, notes, 7 Ann, Cas, 229; Ann. Cas. 1916A, 551.</p>

G. W. Shute, Judge. STATEMENT OP PACTS. The appellant bid for and was awarded the contract to construct a portion of the Globe and Winkelman highway, known as the Winkelman-Christmas road. The section of road covered by the contract, as described in the contract, begins “at the northerly limits of the city of Winkelman and running in a northeasterly direction toward and to the town of Christmas.” The road is eight miles of construction.

<p>APPEAL from a judgment of the Superior Court of the County of Greenlee. F. B. Laine, Judge.</p>

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

<p>1. Judgment — Payment of Witness Fees as Condition on Vacating Default. — On vacating a default judgment, the court may, in the exercise of a sound discretion, require defendant to pay witness fees whieh had accrued.</p> <p>2. Evidence — Insurance Policy Admissible to Show Value. — In action for the conversion of hay where defendant claimed that plaintiff should pay a sum incurred for insuring the hay, the insurance policy held admissible to show that defendant’s claim was unjust.</p> <p>3. Appeal and Error — Review of Verdict Based on Conflicting Evidence. — A verdiet - based upon conflicting evidence, but with competent evidence reasonably tending to support the verdict and approved by the trial court, will not be disturbed on appeal.</p>

<p>Judgment — Judgment Entered on Compromise by Attorney Instead of Supervisors Vacated. — Where the board of supervisors had expressly rejected a claim against the county on which suit was based, the aetion of the county attorney in stipulating against the wish and without the consent of the board, for judgment in favor of the claimant against the county was an unwarranted and unlawful usurpation of authority, and judgment entered thereon was properly vacated on motion; Civil Code of 1913, paragraph 2418, vesting the board of supervisors alone with power to compromise suits.</p> <p>Eight of attorney to compromise client’s eause of aetion, note, Ann. Oas. 1915B, 832.</p>

<p>1. Principal and Surety — -Subrogation—Surety may Sue to Enforce Bight of Subrogation and to Prevent Multiplicity of Suits. — Where street contractor, having performed work under eon-tracts pursuant to Improvement Act of 1912 (Civ. Code 1913, tit. 7, e. 13), was adjudged a bankrupt, the contractor’s surety, liable to creditors who had filed claims as provided by paragraph 1962, could begin action to subject proceeds of the contracts to payment of claims or to be subrogated to the rights of creditors, and, to prevent a multiplicity of suits, could join creditors as defendants to determine its liability, and the court, in order to afford complete relief, could. render judgment in favor of each of the several claimants against surety.</p> <p>- 2. Insurance — Bule as to Liberal Construction in Favor of Insured Inapplicable Where Language has Well-defined Meaning. — An insurance contract, like any other contract, must receive a reasonable construction, and while insurance contracts are construed most favorably to the insured where the meaning of the language is doubtful, such rule is inapplicable when the language has acquired, by judicial construction, a clear and definite meaning.</p> <p>1. Bight of one furnishing labor or material to sue on bond given by contractor to property owner, note, Ann. Cas. 1916A, 574.</p> <p>3. Municipal Corporations — Meaning op “Material Furnished por the Improvement” in Contractor’s Bond Stated. — Contractor’s bond conditioned upon payment for all “materials . . . furnished for the . . . improvement” under Civil Code of 1913, paragraph 1962, does not cover all material furnished, but only such as actually enters into the work, or is consumed or substantially cofisumed in doing it, as distinguished from its use as a mere appliance in aid of performance, and where so consumed is unnecessary that there be actual physical incorporation in the structure or improvement.</p> <p>4. Municipal Corporations — Statute Requiring Contractor’s Bond to be Liberally Construed.. — Statutes requiring the .execution of contractor’s bonds are to be more liberally construed than mechanic’s lien statutes.</p> <p>5. Municipal Corporations. — Lumber to be Reused by Contractor not Covered by Bond to Pay por “Material Furnished por the Improvement.” — Lumber used by street contractor to cover the dirt after it was rolled and ready for the pavement, and which was taken up and again put to similar use in similar work under, other contracts, though rendered unsalable as new or merchantable lumber, and though some of it may have been broken or destroyed, was not covered by contractor’s bond conditioned on payment for “materials . . . furnished for the . . . improvement” under Civil Code of 1913, paragraph 1962.</p> <p>6. P’atents — Owner op Patent has Right to Charge Reasonable Royalty. — Patentee or owner of patent has the right to charge a reasonable royalty or license fee for the use of a patented material or process.</p> <p>7. Patents — Use op Patented Material or Process Without Authority Unlawful. — Without procuring from patentee or owner of patent the right to use patented material or process there can be no lawful use thereof.</p> <p>8. Municipal Corporations — Contractor’s Bond por Improvement Covers Royalties on Patented Articles — “Material Furnished, por the Improvement.” — Royalties due from contractor for privilege of using a patented process for combining materials used in bitulithic paving, and machinery used in connection with laying such material authorized by Civil Code of 1913, paragraph 1974, held covered by contractor’s bond conditioned on contractor’s payment for “materials ... furnished for the . . . improvement,” under paragraph 196-2.</p> <p>3. Authorities discussing the question as to nature of labor or materials which will support an action upon a contractor’s bond are collated in notes in 43 L. R. A. (3ST. S.) 162; L. R. A. 1915F, 951.</p> <p>8. Right of municipality, when required by law • to let contracts at public bidding,, to contract for patented or monopolized article, notes, 3 Ann. Cas. 745; 10 Ann. Cas. 709; Ann. Cas. 1915B, 460.</p> <p>&. Municipal Corporations — Surety Liable for Royalties Due prom Contractor Though Patent Owner Failed to File Contract.— That owner of patent process did not file agreement to furnish all the material and give license to usé of patents at definite price as required by specifications did not preclude owner from recovering from contractor’s surety for royalties due where price was reasonable and neither city nor property owners objected.</p> <p>10. Interest Recoverable prom Date Debt Became Due Where Amount is Definite or Ascertainable.- — Generally where amount of recovery, if recovery be had, is definitely fixed by agreement of the parties or capable of ascertainment by mere computation, interest should be computed from the time the debt became due.</p> <p>11. -Interest — Recoverable prom Commencement of Action Where Claim is Disputed. — Where both amount and validity of claim is disputed, interest is to be computed from the time of the commencement of the action.</p> <p>12. Interest — “Commencement of Action” is Date When Prevailing Party was Made a Party.- — -Where surety brought action against contractor and later filed amended complaint making contractor’s creditors parties to the aetion, the commencement of the aetion, within rule giving creditor recovering judgment against surety interest from commencement of aetion, was the date when such creditor was made a party to the action.</p> <p>13. Municipal -Corporations — Stone Taken from Quarry Under a Contract op Sale Called a Lease Covered by Contractor’s Bond. Stone taken from stone quarry for use in pavement under contract called a lease requiring contractor to pay specified sum per ton of stone removed, held covered by contractor’s bond conditioned upon payment for materials furnished for improvement; the contract in reality being a contract of sale, and not a lease.</p> <p>14. Municipal Corporations — Surety Cannot Defeat Claim on Ground That Material Furnished Belonged to Other Party,. Who had Filed No -Claim. — Contractor's surety cannot avoid - liability for stone used in pavement upon ground that third party, . and not claimant, was o^vner of land from which the stone was quarried, where third party was not a party to the action and had not filed claim as required by Civil Code of 19Í3, paragraph 1962.</p> <p>15. Municipal Corporations — Contractor’s Surety Only Liable to Creditors Whose Claims have been Filed. — Surety of contractor doing work under Improvement Act of 1912 (Civ. Code 1913, tit. 7, e. 13) is liable to only those creditors whose claims have been properly filed under paragraph 1962.</p> <p>16. Municipal Corporations — “Improvement is Completed” upon Municipal Authorities so Declaring and Accepting "Work.— The term of the completion of an improvement under Improvement Act of 1912 (Civ. Code 1913, tit. 7, e. 13), within paragraph 1962, requiring claim against' contractor to be filed within thirty days from time improvement is completed, is not the time of the actual cessation of work, but the time when the municipal authority having jurisdiction to finally pass upon the question declares it to have been completed and accepts the work.</p> <p>17. Municipal Corporations — Claim Against Contractor on His Bond may be Filed Before Completion of Contract. — Material-man’s claim against paving contractor required to be filed “within thirty days from the time said improvement is completed” under Civil Code of 1913, paragraph 1962, to entitle claimant to recover on contractor’s bond, may be filed before contract is completed.</p> <p>18. Municipal Corporations — Protest by Owner Appealing from Acceptance of Work Held Sufficient. — A written instrument filed with city clerk by owner of property assessed for improvement under Improvement Act of 1912 (Civ. Code 1913, tit. 7, e. 13), stating that, “according to our judgment the work is not what it should be, and we ask that you give the above protest consideration,” even though confused with mueh irrelevant and improper matter, held a sufficient statement of grounds of objection within statute providing that parties desiring to appeal from acceptance of work by superintendent of streets should file notiee briefly specifying grounds of objection.</p> <p>19. Municipal Corporations — Action of City Commission in Finding Work not Completed not Subject to Collateral Attack.— Action of city commission, after having acquired jurisdiction, in finding that improvement had not been fully completed, cannot be questioned on collateral attaek, and its determination is not open to review by the courts.</p> <p>20. Municipal Corporations — City Commission has Jurisdiction to Pass on Completion of Improvement. — Under Civil Code of 1913, paragraph 1965, city commission has jurisdiction to pass upon question of whether an improvement, under Improvement Act of 1912, has been completed, even though no appeal from acceptance of work by superintendent of streets has been taken.</p>

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

<p>Criminal Raw — Record Searched eor Fundamental Error. — Where the Supreme Court has nothing before it but the record to consider, it will examine the -same for fundamental error.</p>

Alfred C. Lockwood, Judge. STATEMENT OF FACTS. Jesse Gardner was killed about 3 o’clock in the morning of July 11, 1917, by coming in contact with an electric current. At the time of the accident he was working for defendant in its smelter at Douglas, Arizona, in the capacity of converter skimmer. His duties were to raise and lower the converters, and skim off the slag, and pour the copper from the converter into the mould.

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

<p>1. Habeas Corpus — Writ not Available to Review Errors op Police Magistrate having Jurisdiction. — On habeas corpus, the superior court had no authority to review the action of the police magistrate of a town in determining the question of petitioners’ violation of an ordinance, the writ not being available to correct errors in procedure in a case where a magistrate’s court has jurisdiction of the person and subject matter.-</p> <p>2. Habeas Corpus — Presumption That Admission op Petitioners to Bail Pending Appeal prom Discharge was Proper. — On appeal from an order discharging petitioners from custody ' on habeas corpus, the Supreme Court must presume that the superior eour-t has done its duty in admitting petitioners to bail pending determination of the appeal, as provided by Civil Code of 1913, paragraph 1227; the reeord being silent on the subject.</p> <p>1. Upon the question of the review of proceedings of police courts or magistrates by habeas corpus, see note in 87 Am. St. Rep. 199.</p>

<p>APPEAL from a judgment of tbe Superior Court of tbe County of Yuma. Fred L. Ingrabam, Judge.</p>

<p>Costs — ¡Statutory Damages Allowed for Frivolous Appeal. — Where judgment was obtained April 18, 1919, and defendant on September 6, 1919, gave notice of appeal, and on September 16, 1919, filed a supersedeas bond, and from that time until January 2, 1920, took no other steps in the case, appellee, having paid the filing fees and caused the notice of appeal, bond on appeal, and judgment to be filed on the latter date, should be allowed statutory damages as for a frivolous appeal.</p>

<p>APPEAL from a judgment of the Superior Court of the County of Cochise. A. C. Lockwood, Judge.</p>

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

<p>1. Adoption — No Bight to Appoint Next Friend Where Aunt op Child Living in State. — Under ’Civil Code of 1913, paragraphs 1186-1198, where the ehild to be adopted had an aunt living in the state, who, at time of filing the adoption petition, had the child in her charge and care, the court was without jurisdiction to appoint another as next friend, and the so-called next friend could not appear and give consent to the child’s adoption.</p> <p>2. Adoption — By Voluntarily Appearing Next op Kin Waived Notice Consent op Next op Kin not Indispensable. — Where aunt of child, sought to be adopted voluntarily appeared and contested the adoption of the child, she waived notice of the hearing and submitted herself to the court’s jurisdiction; and her consent to the adoption was not indispensable, for the court, having obtained jurisdiction of her as next of kin in the state, could, under Civil Code of 1913, paragraph 1193, decree the adoption without her consent.</p> <p>3. Adoption — Order Void Where Parents not Served With Notice.— Adoption order was void where the record showed the mother of the ehild was dead, but did not show that the father was dead in . fact or in law, but merely that he was unknown, and he was not served by publication.</p> <p>2. The question of validity of adoption without consent of natural parents is discussed in notes in 30 L. R. A. (N. S.) 146, and Aun. Cas. 1914A, 221.</p> <p>4. Adoption — No Lapse op Time Defeats Court’s Eight to Set Aside Void Orders of Adoption. — The court always has power, irrespective of lapse of time, to vacate and set aside orders of adoption, void for want of notice.</p> <p>4. For authorities as to validity of adoption proceedings not made in conformity with statute, and as to grounds for vacation of decree, see notes in 12 Ann. Cas. 144, and 17 Ann. Cas. 548. »</p>

<p>APPEAL from an order of the Superior Court of the County of Coconino. F. W. Perkins, Judge.</p>

<p>ON MOTION FOR REHEARING on an appeal from a judgment of the Superior Court of the County of Maricopa. Frank H. Lyman, Judge.</p>

<p>APPEAL from a judgment of the Superior Court of the County of Cochise. Alfred C. Lockwood, Judge.</p>

<p>1. Work and Labor — Presumption is That Services are not Rendered Gratuitously. — Where one is employed in the service of another for any period of time, the law implies a promise to pay what such services are reasonably worth, unless it is understood that the services were rendered gratuitously, or unless they were rendered under circumstances repelling the presumption.</p> <p>2. Work and Labor — Defendant has Burden of Showing That Accepted Services were not Gratuitous. — A defendant who claimed that services rendered in his behalf by, plaintiff were gratuitous has the burden of proving such fact.</p> <p>3. Work and Labor — Finding That Services were not Rendered Gratuitously Warranted by Evidence. — In an action on the quantum meruit for services rendered, evidence heXct to warrant a finding that the services were not rendered gratuitously.</p>

<p>1. Forgery — Information .Sufficient. — In prosecution, under Penal Code of 1913, section 468, charging forgery of purported last will of named person, and setting out such will, and that defendant forged the name of certain person to the will, though appearing to make two charges against defendant, that of forging the will and that of signing another person’s name, held sufficient, in that, under section 934, it describes the acts constituting the offense in such a manner as to enable a person of common understanding to know that the act charged as criminal is the signing of the name, as the name appears signed to the purported will.</p> <p>2. Criminal Law — Evidence ofJJefendant Being Guilty of Bigamy Inadmissible in Prosecution for Forgery. — In prosecution for forgery of name to will, the admission of evidence as to defendant being guilty of bigamy held error; such evidence in no manner serving to illustrate or to establish defendant’s intent or motive- ' in the commission of the forgery, in absence of a showing that the forgery of a will was in some way the result of the bigamy, or in the remotest degree connected therewith.</p> <p>3. Criminal Law — Evidence of Admission of Being Guilty of Bigamy Held Prejudicial Error in Forgery Prosecution. — In prosecution for forgery, the erroneous admission of evidence as to declaration by defendant that he had committed bigamy held prejudicial error, notwithstanding defendant’s denial thereof under oath. '</p>

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

F. H. Lyman, Judge. STATEMENT OF FACTS. J. M. Mahoney, George Moore, Jake Weber, W. H. Spangle and Ealph Greenlaw, dissatisfied minority stockholders of the Jerome-Portland Copper Mining Company, a corporation, commenced this action in the superior court of Yavapai county in behalf of themselves and all other stockholders of the corporation similarly situated, against A. B. Frame and others.

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

<p>Death — Action for Death of Unmarried Childless Employee must be Brought by Parents. — Under employers’ liability law suit for an unmarried childless employee’s death cannot be maintained by his administrator, but only by his living parent, or by his parents jointly, if both are alive.</p>

<p>APPEAL from a judgment of the Superior Court of the County of Yuma. Fred L. Ingraham, Judge.</p>

<p>1. Mines and Minerals — Instrument Providing for Special' Lien Created Equitable Mortgage. — An instrument containing an agreement to pay money when certain mining claims and mill sites were sold out of the first money received from the sale, and providing that a special lien was thereby created on the property to seeure the payment of the obligation, created an equitable mortgage.</p> <p>2. Mortgages — Equity will Establish Mortgage or Lien Intended as Security foe Debt. — -When it is clearly shown that the intention of the parties to a transaction was to give security for a debt- or obligation upon some particular property, however informally such intention may be expressed, equity will, in an appropriate proceeding, declare an equitable mortgage or lien to exist, and enforce it against the property in satisfaction of the debt or obligation.</p> <p>3. Mortgages — Equitable Mortgage Constructive Notice Though Becorded in Miscellaneous Beoords. — Under Civil Code of 1913, paragraphs 2588 and 2589, specifying the instruments which the recorder must record and the indexes to be kept by him, an instrument for the payment of money, not in the form of a mortgage, but creating an equitable mortgage, because providing for the creation of a lien on described property, was constructive notice to subsequent purchasers, though recorded in the book for miscellaneous instruments and not in one of the books for mortgages.</p> <p>3. As to sufficiency of record of instrument where statute does not prescribe particular book for recordation, see note in 7 Ann. Cas. 356.</p>

<p>1. Judgment — Incompetency of Counsel Held Ground for Belief Against Default. — In an action on a note against a partnership and a member of the firm, where such member consulted a reputable attorney, explained the nature of the defense, and engaged him to prepare and file answer, which was verified by the partner and filed, who believed it sufficient, though it was not so in faet, the default of the partner will be opened on his motion; ignorance or incompetency of counsel being a ground for relief.</p> <p>2. Judgment — Payment and Credit Held Good Defense Supporting Motion to Yacate Default. — In an action on a note against a firm and its member, default judgment being entered against the member and set aside on his motion, a good defense on the merits was disclosed by his answer and petition to vacate the default showing that collateral security for the note had been pledged for which no accounting had been made, and no claim given, while it was claimed other credits which should have been given or allowed had not been made, and also that the combined credits with a payment would fully satisfy the note.</p> <p>3. Appeal and Error — Judgment—Motion to Set Aside Default Bests in Discretion of Trial Court. — A motion to set aside a default judgment rests largely in the discretion of the trial eourt, exercise of whiefi is never reversed on appeal except for manifest abuse.</p> <p>1. Yacating judgment on account of' negligence or mistake of an attorney, see note, 96 Am. St. Kep. 108.</p>

<p>1. Attorney and Client — Attorneys Performing Services for Another Attorney must Look to Him for Compensation. — Where judgment creditor agreed to pay M. twenty-five per eent of amount recovered on judgment, and M. -employed other attorneys to institute proceedings for collection, but made no assignment of any interest in his contract, the other attorneys must look to M. for compensation for services performed under and by virtue of their employment by M.</p> <p>2. Attorney and Client — Contract for Portion of Amount Recovered Creates Lien on Judgment. — The legal effect of a contract between a creditor and an attorney, whereby attorney for suing debtor was to have a portion of the amount recovered, was to create a lien on the judgment.</p> <p>3. Attorney and Client — Attorney Held not Entitled to have Satisfaction of Judgment Set Aside, — Where judgment debtor, when a compromise of the judgment was made, did not know of contract with attorney creating lien on judgment, plaintiff is not entitled to have satisfaction of judgment set aside, but must look to judgment creditor alone for compensation; there being no fraud in the compromise.</p> <p>4. Assignments — Liens—“Lien” Distinguished from “Assignment.”— A lien is a charge on property, while an assignment creates an interest in property.</p> <p>5. Attorney and Client — Good Faith Settlement Valid Without Consent of Counsel. — A client may, without the consent of his attorney, settle and compromise with his adversary all matters in litigation in such manner and upon such terms as he may deem necessary for the protection of his interests; settlement being made in good faith and without purpose to defeat lien of attorney.</p> <p>6. Attorney and Client — Attorney Protected Against Collusive Settlement. — The courts will protect an attorney against a collusive settlement of the litigation in fraud of his lien.</p>

<p>APPEAL from a judgment of the Superior Court of the County of Cochise. Alfred C. Lockwood, Judge.</p>

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

<p>1. Ejectment — Plaintiff has Burden of Proving His Bight to Possession. — Where defendants denied the right of plaintiff to possession of land under a lease from the eommon source of title, plaintiff has the burden of proving that he was entitled.to possession, and that the defendants were unlawfully keeping him out.</p> <p>2. Ejectment — Lessee for Term .of Years may Maintain Ejectment. — Ejectment lies to recover land held under a lease for a , term of years, the holder of the lease founding his right of possession upon an interest in the land arising from ownership of the lease.</p> <p>3. Principal and Agent — Power of Attorney is not to be Extended by Implication. — A power of attorney, like any other instrument, is to be construed according to the natural import of its language, and the authority which the principal has conferred is not to be extended by implication beyond the natural and ordinary significance of the terms in which that authority is given.</p> <p>4. Principal and Agent — Third Person must Ascertain Agent’s Authority. — One dealing with an agent must ascertain at his own risk whether the agent’s act will bind the principal.</p> <p>5. Principal and Agent — Power of Attorney to “Beclaim Legally” Land Does not Empower Attorney to Lease. — No authority to lease land is given by power of attorney authorizing the attorney to “reclaim legally” the land; the quoted phrase meaning that the agent should have power to institute legal proceedings to recover • the land as against anyone holding adversely.</p> <p>6. Appeal and BRror — Exclusion of Immaterial Evidence Harmless. Whore plaintiff in ejectment claimed to be entitled to possession by virtue of a lease executed by an agent, the exclusion of the agent’s power of attorney on the ground that it was not properly authenticated was not error; the power being wholly immaterial.</p> <p>7. Trial — Lease for Year Inadmissible in Absence of Evidence of Authority of Agent Signing Same. — Conceding that authority of an agent signing a lease for the term of one year can be established ■by parol, the exclusion of such a lease, offered by plaintiff in ejectment to show his right to possession, is proper, where there was no evidence, written or parol, of the agent’s authority.</p>

<p>1. Husband and Wipe — Surviving Spouse may Dispose op Interest in Community Without Administration. — The surviving spouse may dispose of Ms or her interest in the community real estate ■without the aid of administration.</p> <p>2. Husband and Wipe — Interest op Deceased Spouse in Community Passes to Issue Subject to Debts. — The interest í>f a deceased spouse in community real estate passes to the issue of her body, if any, or, if not, to the survivor, subject to payment of community debts.</p> <p>3. Husband and Wipe — Interest op Deceased in Community cannot be Sold Without Order op Court. — Neither the survivor nor anyone else can sell the interest of a deceased spouse in community property, except upon an order of the court in probate proceedings.</p> <p>4. Husband and Wipe — Community Property Liable for Community Debts. — After the death of wife, community property was liable for community debts, under Civil Code of 1913, paragraph 1101, and husband could not sell Ms half interest, except snbjeet to such actual or potential encumbrance.</p> <p>5. Homestead — Charged Against Community Property After Death op Spouse. — Where wife died leaving issue, no homestead having been selected, it was the duty of the court, under Civil Code of 1913, paragraph 8G6, to carve out of the community property a homestead, and such homestead was a Burden upon the community property, subject to which the surviving husband took his interest.</p> <p>6. Specific Performance — Conveyance of Mere Interest in Land not Enforced Under Contract for Conveyance of the Whole if Prejudicial to Bights of Third Persons. — Where widower in good faith contracted to seil community real estate, and he could not convey his interest without inflicting injury or harm to his minor children’s undivided one-half interest, and the purchaser knew before action commenced that the widower was legally incapacitated from performing his contract, a court of equity will not decree specific performance and require the widower to perform to the extent of his ability and to convey his half interest, notwithstanding the rule that a court of equity will require the vendor, ordinarily, to perform his contract of sale to the extent of his ability, allowing abatements to the vendee for any deficiency in title, quantity, or quality of estate.</p> <p>6. Intervening rights of third persons as affecting right to specific performance, note, 140 Am. St. Rep. 60.</p> <p>7. Appeal and Error — Decree not Beversed as to Question not Distinctly Propounded to Trial Court. — Where it was not distinctly and specifically propounded to the trial court for his judgment that plaintiff, in an action for specific performance of a contract to convey community property, made by a widower having only a half interest therein, was entitled to a conveyance of such half interest with abatement of the purchase price, a judgment denying specific performance of any part of the contract will not ■ be reversed on appeal.</p> <p>8. Specific Performance — Granting a Matter of Discretion. — -Courts may exercise discretion and either refuse or grant specific performance, according to the equities of the case, but such discretion ■must be based upon reason and sound judgment.</p> <p>8. Discretion of court as to granting or refusing specific performance; note, 128 Am. S"fc. Hep. 384*</p>

Samuel L. Pattee, Judge. STATEMENT OE FACTS. This is an action by the appellee against the appellant, by which the plaintiff-appellee is seeking to enjoin the defendant-appellant from building a fence on his possessory claim. The said possessory claim is on unsurveyed public domain, adjoining lands of the plaintiff.

Samuel L. Pattee, Judge. STATEMENT OF PACTS. Action hy the administrator of the estate of Charles H. Thomas, deceased, to enforce the liability of the carrier, given the estate of decedent nnder the federal employers’ liability law (U. S. Comp. Stats., §§ 8657— 8665; 8 Fed. Stats. Ann., 2d ed., pp. 1208-1378) for the nse and benefit of the father.

<p>1. Insurance — Corporation Commission Under Insurance Laws Or Its Rules, has No Power to Grant Rehearing oe Charges Against Insurance Agent. — Under Civil Code of 1913, paragraph 3414, providing for issuance of licenses to insurance agents, and Laws of 1915, chapter 58, making it unlawful for a foreign insurance company to write or accept any insurance policy except through its lawfully appointed and authorized agent, and providing that when a solicitor or agent accepts an application from any person not provided with a certificate the commission shall, upon due proof or notice, suspend or revoke the certificate of such agent or solicitor, the Corporation Commission, which is authorized to hear such charges, has no power to grant a rehearing after having once disposed of the charges in favoT of the. insurance agent, nor can it grant a rehearing under its rules promulgated pursuant to Constitution, article 15, section 6, declaring that all applications relating to matters over which the commission has jurisdiction and which are not covered by preceding rules shall be made by a petition; the procedure being such as the commission may prescribe.</p> <p>2. Insurance — Corporation Commission Cannot, in Proceeding Against Insurance Agent, Exercise Powers Under Public Service Corporation Act. — The Corporation Commission cannot, having disposed in favor of an insurance agent of a charge that he accepted an application for a life policy procured by one not a licensed agent, grant a rehearing by virtue of powers conferred on it by the Public Service Corporation Act; the provisions of such act ■ found in Civil Code of 1913, paragraph 2336 et seq., being restricted to proceedings before the commission affecting publie utilities.</p> <p>3. Insurance — Powers oe Corporation Commission Over Insurance Companies Being Statutory, Only Necessary Powers are Implied. — While the Corporation Commission is a creature of the Constitution, and by it vested with named powers over public service corporations, its supervisory powers over insurance companies are statutory, and it is governed by the rule that special tribunals exercising special summary powers must find their authority within ..the statute, having no common-law or implied powers, except such as are absolutely necessary to carry out powers expressly granted.</p> <p>4. Insurance — Corporation Commission in Hearing Charge Against Insurance Agent Held to Act in a Judicial or Quasi-judicial Capacity. — The Corporation Commission, in hearing evidence in proof of a charge that an insurance agent accepted an application for a policy procured by an unlicensed agent, is acting in a judicial or quasi-judicial capacity, and is also aeting in such capacity in granting a rehearing.</p> <p>5. Prohibition — Proper Remedy to Prevent Judicial or Quasi-judicial Action Where Tribunal Without Jurisdiction. — The writ of prohibition is the proper remedy to prevent aetion of a judicial or qwasi-judieial nature when the tribunal is without jurisdiction.</p> <p>6. Prohibition — Writ may be Granted to Prevent Corporation Commission erom Granting Rehearing on Charges Against Insurance Agent Despite Other Remedies. — Where the Corporation Commission had found in favor of an insurance agent who had been charged with accepting an application procured by an unlicensed agent, and the commission was without jurisdiction to grant a rehearing, the agent is entitled to prohibition to restrain the commission from granting rehearing, notwithstanding he had a remedy by appeal, given by Civil Code of 1913, paragraphs 2329, 2343, and he might have availed himself of certiorari; for neither of those remedies were adequate, as the remedy by appeal contemplates disposition of rehearing, while certiorari would not necessarily prevent the Corporation Commission from disposing of the rehearing.</p> <p>6. Por authorities upon the question of prohibition as proper remedy to control act of Public Service Commission, see note in Ann. Cas. 1914D, 795.</p>

Samuel L. Pattee, Judge. STATEMENT OP PACTS. The plaintiff leased to the defendant some farming lands situated near Tucson, Pima county, together with farming implements, some livestock and chickens, for the period beginning the eleventh day of September, 1916, and ending January 1, 1918, with the privilege to the defendant, at his option, to be signified by written notice thirty days before the expiration of his term, to have the lease renewed for one year.

<p>APPEAL from a judgment of the Superior Court of the County of Greenlee. Frank B. Laine, Judge.</p>

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

R. C. Stanford, Judge. STATEMENT OE EACTS. The appellee, Shirley Christy, became the statutory assignee of the Rich Hardware Company, a partnership, by deed of assignment duly made and recorded as of date of October 1, 1917, and entered upon the duties of the trust after qualifying, all as prescribed by part 12, title 6, “Assignments for the Benefit of Creditors.” Civ. Code Ariz. 1913.

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

<p>APPEAL from an order fixing date of execution of a judgment of the Superior Court of the County of Coconino. J. E. Jones, Judge.</p>

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

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

<p>1. False Pretenses — Name of Person Defrauded Should be Set Forth in Information for Obtaining Property by Bogus Check. — In prosecution, under Penal Code of 1913, section 532, for obtaining property and cash with intent to cheat and defraud by means of a false or bogus cheek, name of person or persons on whom fraud was perpetrated should be set forth in information to identify person.</p> <p>1. For authorities on question as to how false pretenses must be charged in indictment or information, see note in 30 Am. St. Rep. 134.</p> <p>2. False Pretenses — Variance Between Information and Evidence as to Identity of Employee Who Took Bogus Check not Material. — In prosecution for obtaining merchandise and cash from firm by means of bogus check passed to a named employee with intent to defraud firm, evidence showing transaction was through employee of firm other than one named in information was not a material variance.</p> <p>3. Indictment and Information — Defect in Information Waived by Failure to Demur and Cured by Verdict. — -In prosecution foi obtaining merchandise and cash by means of bogus- check passed to employee of firm, though names of members composing firm should have been set forth in information, defendant cannot raise point, having waived it by conduct in not demurring; defect having been cured by verdict.</p> <p>4. Criminal Law — Judicial Notice -City is Within County — Evidence Sufficient to Show Venue. — Venue as laid in information for obtaining merchandise and cash by means of bogus cheek held sufficiently established by evidence transaction took place in defrauded firm’s store in city of Phoenix, judicially known to be county seat of Maricopa county, and within its boundaries, where the information laid the offense.</p> <p>5. Criminal Law — Judicial Notice Taken of Statute Bounding County. — Courts alway take judicial notice of public laws of state, as Civil Code of 1913, paragraph 2373, defining boundaries of Maricopa county, and fixing Phoenix as county seat.</p> <p>4, 5. Upon the question of judicial notice by courts with respect to counties and county seats, see notes in 82 Am. St. Rep. 442; 124 Am. St. Rep. 34.</p>

<p>1. Militia — Governor Held tq Have Power to Appoint Adjutant-general. — The Governor has the power to appoint an adjutant-general for the state, under Civil Code of 1913, paragraph 50, providing that all officers not made elective by the Constitution of the state shall, unless otherwise provided by law, be appointed by the Governor, and in view of Constitution, article 5, section 8, authorizing the Governor "to appoint officers to fill vacancies in absence of provision therefor by Constitution or law.</p> <p>2. Militia — Term of Adjutant-general Held Limited by Appointive Power. — The office of adjutant-general of the state is within Civil Code of 1913, paragraph 159, providing that every officer whose term is not fixed by law shall hold at the pleasure of the appointing power and is thus within the Governor’s power of removal.</p> <p>3. Militia — Statute Continuing National Guard Officers Held not to Apply to Term of Adjutant-general. — Laws of 1917, chapter 74, giving the adjutant-general an indefinite tenure of office, and providing that commissioned officers of the National Guard and the adjutant-general now serving under commissions regularly issued shall continue in office without issuance of new commissions, not being intended as a tenure of office statute, has no application to state adjutant-general.</p> <p>4. Militia — National Defense Act and Kindred Statutes Held not to Apply to Adjutant-general. — National Defense Act (H. S. Comp. Stats., §§ 3044m, 3044n, and 3044o), and Laws of 1917, chapter 74, §§ 5 and 6, relating to commissions, appointment, qualification and vacation of the commissions of officers, being confined to officers of the National Guard, have no application to the state adjutant-general; he not being recognized as a commissioned officer of the National Guard; although Military Code of Arizona paragraph 3899, provides that he shall he a commissioned officer thereof.</p>

<p>1. Receiving Stolen Goods — Defendant Guilty, Though She Induced Commission of Larceny, and Might Have Been Convicted Therefor. — Defendant, who induced another to steal money and bring it to her, was guilty of receiving stolen property, though she might have been convicted of the larceny.</p> <p>2. Criminal Law — Thief not “Accomplice” of Person Receiving Stolen Goods. — A person whom defendant induced to steal money and bring it to defendant was not an “accomplice,” whose testimony required corroboration, under Penal Code of 1913, section 1051, on a trial for receiving stolen property, as the test is whether the witness could have been indicted for the offense as principal or accessory.</p> <p>2. For authorities on point as to receiver of stolen goods being accessory or accomplice of thief, see note in 20 Ann. Cas. 594.</p>

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

<p>1. Appeal and Error — Order Sustaining Demurrer to Complaint not Appealable — “Final Judgment or Order.” — An appeal will not die from an order sustaining a demurrer to the complaint which is not a “final judgment or order” made appealable by Civil Code of 1913, paragraph 1227. ,</p> <p>2. Appeal and Error — Nonassignment of Errors Bequires Dismissal. — An appeal will be dismissed for failure to assign errors as required by court rules.</p>

P. H. Lyman, Judge. STATEMENT OE EACTS. The appellant, as plaintiff, commenced this action to recover on a promissory note for $600.

R. C. Stanford, Judge. STATEMENT OF FACTS. The appellee, hereinafter referred to as plaintiff, sued the appellant, hereinafter referred to as defendant, to recover a balance of $606, alleged to be dne him under an oral contract of employment with the defendant as manager of the defendant’s store at Phoenix, Arizona.

<p>APPEAL from a judgment of the Superior Court of the County of Greenlee. Prank B. Laine, Judge.</p>

<p>1. Attorney and Client — Heirs Limited to Quantum Meruit for Services of Deceased Attorney. — Where an attorney died, his contract of employment died, and his heirs are limited to a quantum meruit for any services rendered by him to his clients in his lifetime.</p> <p>2. Attorney and Client — Contract Assigning Contingent Pee Agreement Held to Obligate Assignee to Pay Certain Amounts. — Contract, whereby associate of deceased lawyer took assignment from heirs of decedent of fifteen per cent contingent fee contract in litigation over an estate, held to have obligated assignee to pay decedent’s estate $2,000 cash, and $9,000 subsequently on condition that judgment already obtained by decedent or a larger judgment should be collected, but only to pay the $2,000 if a less amount was realized, whether by judgment, execution or compromise, etc.</p> <p>3. Contracts — Rules of Construction not Resorted to Except in Case of Ambiguity. — The intent of the parties to a contract is controlling, and, unless there is some ambiguity in the language used to express it, rules of construction will not be resorted to.</p> <p>2. Authorities upon question of right to recover for services of attorney who dies before completion of contract are collected in note m Ann. Cas, 1914D, 210.</p>

A. G. McAlister, Judge. STATEMENT OP PACTS. Thomas Allaire commenced this proceeding of garnishment on a judgment in his favor against the Laurel Canyon Mining Company, serving the First National Bank of Globe as garnishee.

<p>1. Pleading — Motion to Make More Definite and Certain Addressed to Discretion. — Motion to make a pleading more definite and certain is always . addressed to the sound discretion of the court, which should be exercised in the interest of justice, not arbitrarily or capriciously.</p> <p>2. Appeal and Error — Order on Motion to Make Pleading More Definite and Certain will not be Eevised. — When an order granting or denying motion to make a pleading more definite and certain is made, it will not be revised by the appellate court.</p> <p>3. Pleading — Motion to Make Complaint More Definite and Certain cannot Take Place of Demurrers. — A motion to make more definite and certain, made under Civil Code of 1913, paragraph 474, cannot take the place of general and special demurrers to the complaint, as it should be employed when the pleading is defective in some respeet, but not demurrable under paragraph 468.</p> <p>4. Pleading — Motion to Make Complaint More Definite and Certain Addressed to Indefinite Statement of Cause of Action.— Motion to make the complaint more definite - and certain is addressed to a statement of a cause of action so indefinite and uncertain that the precise nature of the charge is not apparent.</p> <p>5. Pleading — Complaint Being Indefinite as to Damages, Plaintiff Should Have Complied With Order to Make More Definite.— In action against irrigating canal association and its members for damage to plaintiff’s land by washing, where complaint was in-</p> <p>definite in allegations of elements of damage in that it failed to give area destroyed or its value, whether cultivated or not, or its real character as being tillable, plaintiff should have complied with trial court’s order on defendants’ motion to make complaint more definite and certain, and where he failed to do so, and stood on the complaint, judgment dismissing cause will be affirmed.</p>

<p>APPEAL from a judgment of the Superior Court of the County of Pinal. .0. J. Baughn, Judge.</p>

Gr. W. Shute, Judge. STATE MEET OF FACTS. This is au action for damages for the death of Lawrence Conwell, alleged to have been caused by the negligence of the defendant. The plaintiff is the administratrix of Conwell’s estate. Conwell was a motorman in the service of the defendant, and was killed by the .derailment of a train of ore-cars. The plaintiff claimed damages in the snm of $25,000.

<p>APPEAL from a judgment of the Superior Court of the County of Cochise. Alfred C. Lockwood, J udge.</p>

<p>Appeal and Error — Appeal prom Judgment por Dependant in Possessory Action Dismissed as Moot. — Appeal from judgment for defendant in possessory action, based on breaches of covenant in lease, will be dismissed on the ground that the ease has become moot, by reason of a subsequent action for the same purpose based on breaches of the covenant subsequent to those in the first action, the second action resulting in judgment, whieh has become final, because unappealed from, that the lease is valid and subsisting, and defendants entitled to possession.</p>

<p>1. Intoxicating Liquors — One Attempting to Manufacture Intoxicating Liquors Guilty of Crime. — One may fall short of actually manufacturing intoxicating liquors, and yet take steps or do things in that direction that will render him guilty under Constitution, article 23, Laws of 1917, chapter 63, and Penal Code of 1913, section 736, of attempting to make intoxicating liquor.</p> <p>2. Intoxicating Liquors — Allegation of Unlawful Manufacture Need not Set Out Instruments or Processes Used. — An information for unlawful manufacture of liquor under Constitution, article 23, and Laws of 1917, chapter 63, need not allege the instruments or the processes used to manufacture the intoxicant; allegation of the ultimate fact being sufficient.</p> <p>3. Intoxicating Liquors — Allegation of “Attempt” to Manufacture Need not Allege Process Used. — An information stating that defendant “did then and there unlawfully attempt to manufacture intoxicating liquor” sufficiently stated an offense under Constitution, article 23, Laws of 1917, chapter 63, and Penal Code of 1913, section 736, it not being necessary to allege the instruments or processes used, and the word “attempt” itself importing an intent to commit the crime and a direet ineffectual act done towards its commission.</p> <p>1. Por authorities respecting statutory prohibition of the manufacture of intoxicating liquors, see note in 3 A. L. E. 285.</p> <p>2. As to the necessity for averring overt act in indictment for attempt to commit crime, see note in 7 Ann. Cas. 140.</p>

W. A. O’Connor, Judge. STATEMENT oe facts. The appellee by his original complaint in this action sought to recover damages of the appellant, alleged to have accrued to appellee by reason of injury to sixty-nine head of mules, caused through the negligence of appellant in transporting same from Nogales, Arizona, to Buckeye, Arizona, under contract with the appellee.

<p>1. Appeal and Error — Including, Apter Remand on Appeal in Judgment in Possessory Action, Rents Accruing After Judgment not Reversible Error.- — Inclusion in a judgment rendered in an action for possession of real estate, on motion for judgment in accordance witli mandate of Supreme Court, of rents accruing after entry of original judgment, did not violate the mandate of the Supreme Court; failure to make an independent motion for judgment for the rent being of little moment so far as the merits were concerned.</p> <p>2. Ejectment — Statute Contemplates That Rental Value Determined in Possessory Action may be Basis of Motion for Rent After Judgment. — Civil Code of 1913, paragraph 1646, relating to motions for rental value of property after judgment, contemplates that rental value of the promises in a possessory action may beeome an issue determinable in a regular trial and before a jury, if requested, and the rental value thus found is to guide and control the judgment for rent that accrues after judgment and before delivery of possession, or that accrues pending appeal, when sought by the summary proceeding of a motion, in view of paragraphs 1627-1647.</p> <p>3. Motions — Must be Supported by Affidavit.- — A motion is not a pleading, although it is often directed at a pleading and usually grows out of a pending cause, and if it is based on some matter of fact, it must be supported by affidavit that the facts are true.</p> <p>4. Motions — May be Oral. — Unless required by statute to be in writing, a motion may be oral.</p> <p>5. Motions — “Motion” Defined. — A “motion” is an application made to a judge or to the court for the purpose of obtaining a rule or order directing some act to be done in favor of the applicant.</p> <p>6. Ejectment — Motion for Judgment for Bent Accruing After Judgment in Possessory Action may be Informal. — The legislature used the word “motion” in Civil Code of 1913, paragraph 1646, relating to motions for judgment for rents accruing after judgment and before delivery of possession in possessory actions, in its generally accepted meaning, and a successful contestant in an action to recover real property may make his application informally.</p> <p>7. Ejectment- — Bule for Estimating Damages for Withholding Farm Land Stated. — Farm lands are generally not let by the month but by the season, and consequently damages for land must be based upon the season, and hence Civil Code of 1913, paragraph 1644, is not to be applied in construing paragraph 1646, as to rental value accruing after judgment and before delivery of possession in a possessory action.</p> <p>8. Constitutional Law — Ejectment — Statute Permitting Judgment for Bent Accruing After Judgment and Before Surrendering Possession in a Possessory Action Does not Deny Due Process.- — Civil Code of 1913, paragraph 1646, providing for a motion for judgment for the rental value of premises between judgment and delivery of possession in a possessory action, does not violate the due process of law clauses in Constitution, article 2, section 4, and the fourteenth amendment to the United States Constitution.</p>

F. H. Lyman, Judge. STATEMENT OF FACTS. This was an action by the appellees to recover damages from the appellant for the negligent flooding of a cellar warehouse, whereby the goods and merchandise of the appellees, stored in the cellar, were damaged and destroyed. The principal undisputed facts of the case are correctly stated in the brief of counsel for appellees, as follows: “The city of Mesa in 1916 undertook to construct a city sewer system within the city.

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

<p>Criminal Law — Supreme Court Disapproves ok Failure of Counsel for Appellant to Point Out Error Kelied on. — The Supreme Court disapproves of the -practice, prevalent in Arizona, of appealing criminal eases and then neglecting to perform the important duty of pointing out to the court any error on which counsel for appellant relies for obtaining reversal.</p>

<p>1. Schools and School Districts — Complaint for Teacher’s Salary Against Trustees Instead of District Demurrable. — A complaint in an action to recover teacher’s salary brought against certain persons as “trustees of school district No. 12” is demurrable as not joining the proper parties defendant; Civil Code of 1913, paragraph 2719, providing that each regularly organized school district “shall be designated as school district No. - of - county, and in that name the trustees may sue and be sued.”</p> <p>2. Schools and School Districts — Judgment for Teacher’s Salaries Against Trustees Instead of District Erroneous. — It is im- ' proper to render judgment for teachers’ salaries against the trustees individually instead of against the district; Civil Code of 1913, paragraph 2753, mating it a duty of the trustees to pay any judgment against the district for teachers’ salaries out of moneys to the credit of the district; the trustees merely being the-agents of the district. ,</p>

<p>1. Criminal Law — Evidence Need not Show Which Defendant was Principal and Which Accomplice. — In view of Penal Code of 1913, section 27, it is not ground for reversal of a conviction of burglary that the Supreme Court is unable to ascertain from the evidence which of the two defendants actually committed the offense and which was an accomplice, since the law makes no distinction and both may be convicted as principals.</p> <p>2. Criminal Law — Jury’s Determination Whether Both Defendants Participated in Burglary not Beviewable. — The burden was on the jury as reasonable men to determine from all the evidence whether or not both defendants participated in the burglary, and where the evidence was wholly circumstantial the Supreme Court is not required to explain the process by which the jury arrived at their determination.</p> <p>3. Indictment and Information — On Charge of Burglary, Conviction may be Had in Either First or Second Degree. — Where the information simply charges burglary, the defendant may be convicted of burglary in either the first or second degree.</p> <p>4. Burglary — Proof from Possession of Property. — Where defendants had possession of a suit of clothes stolen at the time of and in connection with the burglary, such testimony, tending to prove the larceny, also tended to prove the burglary, and the objection that the prosecution failed to prove an entry and specific intent is without merit; the accomplishment of the larceny in connection with the burglary being proof of the specific intent to commit larceny in the entry of the premises burglarized.</p> <p>5. Witnesses — Cross-examination as to Possession of Skeleton Keys Held Proper. — In a prosecution for burglary, where keys were found in defendant’s suitcase, and he was asked by the county attorney what-he was doing with them, the court’s ruling that, where defendant denied a thing, he could be quizzed about anything that would help to determine it, held not subject to the objection that defendant was cross-examined to greater extent than direct examination and upon new matter; skeleton keys being useful to persons of a burglarious turn of mind.</p> <p>4. Possession of stolen property as evidence of burglary, see note in 19 Ann. Cas. 1281.</p> <p>6. Criminal Law — Question Asked Dependant Concerning Skeleton Keys, op Which He Denied Knowledge, Held not Injurious.— In a prosecution for burglary, if questions asked defendant on cross-examination as to keys found in his suitcase were improper, the defendant was not injured, where he denied all knowledge of the keys.</p> <p>7. Burglary — Seven to Ten Years’ Imprisonment Held not Excessive. — Penal Code of Arizona of 1913, section 461, fixes punishment for burglary in first degree at not less than one year nor more than fifteen years in the state prison, so that a judgment imposing not less than seven nor more than ten years’ imprisonment is not excessive.</p> <p>7. What constitutes cruel and unusual punishment for burglary is noted in 19 Ann. Cas. 728.</p>

<p>1. Fraudulent Conveyances — Burden of Proving Fraud is on Plaintiff. — In a suit to set aside a conveyance as in fraud of creditors, the burden of proving fraud is upon plaintiff, who must overcome the presumption of honesty and legality that prevails in favor of ordinary business transactions.</p> <p>2. Fraudulent Conveyances — Retransfer by Debtor Grantee of Property Transferred for Convenience not Fraudulent.— Where an attorney and banker has conveyed certain realty to his mother-in-law in order to facilitate his business transactions, with the understanding that the property should be retransferred at any time upon his request, a retransfer so made cannot be said to be fraudulent as against the mother-in-law’s creditors, she not being a fraudulent grantee.</p> <p>3. Trusts — Property Transferred for Convenience Without Consideration Held to Create a Trust. — Where an attorney and banker conveyed realty to his mother-in-law for convenience in transacting his business without consideration and under an understanding that the property should be retransferred on request, a trust was created, and the superior right to the property remained in the original transferrer.</p> <p>4. Fraudulent Conveyances — Moral Obligation to Retransfer Held Sufficient Consideration. — Where a son-in-law has transferred property to his mother-in-law for convenience in transacting his business without consideration and under an agreement to re-convey upon request, the moral obligation of the mother-in-law to retransfer the property is a sufficient consideration as against a contention that the conveyance was voluntary.</p> <p>5. Fraudulent Conveyances — Debt Held not Result of Extending Credit to Holder of Legal Title to Property Subsequently Conveyed. — Where a stockholder was called upon for an assessment by the referee in bankruptcy of the corporation, and the stockholder subsequently conveyed to her son-in-law realty which he had conveyed to her for convenience in the transaction of his business, the transaction whereby the stockholder became indebted</p> <p>1. Cases on the presumption that voluntary conveyance is in fraud of creditors are collected in note in 119 Am. St. Rep. 556,</p> <p>for the assessment held not an extension of credit to such stockholder on account of the legal title to the property standing in the stockholder’s name.</p> <p>6. Fraudulent Conveyances- — Finding of Facts Held not Sufficient to Support Judgment Setting Aside Fraudulent Conveyance. — In a suit to set aside a conveyance as in fraud of creditors based upon defendant grantor’s obligation as a stockholder in a bankrupt corporation, a finding that the alleged fraudulent grantee was in fact the person so indebted held insufficient to support a judgment that a transfer of realty by the stockholder to such grantee was fraudulent; the theory of the case being that the stockholder, and not such grantee, was the principal debtor.</p> <p>7. Judgment — Finding Contradictory of Theory of Case Insufficient to Support Judgment. — A party is not entitled to a judgment on a finding of facts different from or contradictory of the theory of the case or the facts set up in the answer or complaint.</p>

<p>1. Bigamy — Time and Place of First Marriage Need not be Stated in Information. — The time and place of tbe first marriage need not be stated in an information charging bigamy under Penal Code of 1913, paragraph 275.</p> <p>2. Bigamy — Information Need not Allege That Person Performing Marriage was Legally Authorized. — An information for bigamy under Penal Code of 1913, paragraph 275, need not allege that the person who performed the second marriage was legally authorized to perform the marriage.</p> <p>3. Indictment and Information — Information Following Statute Sufficient. — The prosecution sufficiently charges the offense whenever the information follows the statute defining the crime prosecuted.</p> <p>4. Bigamy — Prosecution must Prove Details of Marriage. — In a prosecution for bigamy the state must prove the details of the marriage, including prima facie the authority of the person officiating.</p> <p>5. Bigamy — Becord of First Marriage in Foreign Country Held Admissible. — The record of marriage in a foreign country, if authenticated to the satisfaction of the trial court, may be received in evidence in a prosecution for bigamy for whatever it may be worth as a circumstance, notwithstanding that it does not appear that the laws of such foreign country require that such a record be kept, nor that the officer certifying to the record is the officer legally charged with the custody of the record.</p> <p>6. Criminal Law — Certified Copy of Becord of Marriage in Foreign Country Properly Admitted in Bigamy Prosecution. — In a prosecution for bigamy, the court did not err in admitting in evidence a document purporting to be the record of the first marriage of the accused in Mexico, a copy of such record being certified by the chief judge of the department of deceased and archives, with seal attached, and the Governor of the federal district in Mexico certifying that the signature attached was that of the chief judge, and the Governor’s signature being certified as the signature of an officer of the foreign affairs department of Mexico, and the latter’s official signature being authenticated by a certificate of the vice-consul of the United States at Mexico City, with the seal.</p> <p>5. Authorities to the effect that cohabitation under foreign marriage is bigamy are noted in Ann. Cas. 19170, 1141.</p> <p>7. Bigamy — Evidence of Eye-witnesses at Marriage Ceremony and Facts Concerning Cohabitation Admissible. — Under Civil Code of 1913, paragraph 1762, and independently thereof, the court in a bigamy prosecution properly permitted the state to introduce evidence of eye-witnesses to the effect that the first marriage was celebrated in a foreign country by a person apparently an officer, and that the defendant introduced su'ch person as his wife a number of times, and that they lived together as husband and wife.</p> <p>8. Criminal Law — Instruction not Erroneous as Assuming That a First Marriage had Been Celebrated. — An instruction in a bigamy prosecution, "So in this case it is necessary for the state to prove that F. did intend to marry a seeond time when he had another wife living, but the state does not have to prove, and probably could not, that the defendant intended to commit bigamy,” was not erroneous as assuming that accused had a wife living at the time of the second marriage, and that he had committed bigamy, and that the jury were only to determine whether or not he intended to commit bigamy.</p> <p>9. Criminal Law — It may be Prejudicial to Admit Incompetent Testimony. — It may be prejudicial to admit incompetent testimony, although other evidence in the case establishes the guilt 'of the defendant.</p> <p>10. Criminal Law — Introduction of Record in Evidence not Prejudicial. — In a prosecution for bigamy, where defendant took the stand in his own behalf, but did not deny or question other evidence in the case establishing his guilt, it was not prejudicial error to admit in evidence a certificate of the alleged first marriage in a foreign country, conceding that the certificate was incompetent evidence.</p>

<p>1. Mandamus- — Right to Proceed in Case Held Adequate Remedy Precluding Relief by Mandamus. — In mandamus proceedings to compel an irrigation district to furnish a certain quantity of water, relief will be refused where it appears that a decree in a former case forming the basis of plaintiffs’ rights authorized plaintiffs to apply for an order in such ease to interpret, enlarge, or enforce the rights thereunder; such procedure providing a better, superior and more adequate remedy than would be furnished by mandamus.</p> <p>2. Mandamus — Petitioner must Show Clear Right to Performance and Clear Duty Resting on Defendant. — Petitioner for a writ of mandamus must show a clear legal right to have the thing done which is asked for, and it must be the clear legal duty of the party sought to be forced to do the thing he is called on to do.</p> <p>3. Mandamus — Decree Forming Basis of Proceeding Held not to Show Legal Right or Duty. — A decree in a suit involving water right's for irrigation purposes held not to give petitioner in a subsequent proceeding for mandamus to compel an irrigation company to furnish water based on such decree a clear legal right to</p> <p>require defendant therein to supply a certain amount of water for irrigation purposes nor to ghow that a duty to furnish such water rested upon defendant.</p> <p>4. Waters and Watercourses — On Application for Modification of Decree Apportioning Water Rights for Irrigation all Users Should be Notified.- — Where a decree in a proceeding to determine water rights for irrigation purposes stated that the court retained jurisdiction and that the amounts of water apportioned to each of the parties were experimental merely and subject to change as conditions might require, and that users of water might apply for a modification thereof upon such application for modification, notice should be served upon all the appropriators and users of water, giving them an. opportunity to be heard either in support of or in opposition to the application.</p>

<p>APPEAL from a judgment of the Superior Court of the County of Maricopa. O. J. Baughn, Judge.</p>

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

<p>APPEAL from a judgment of the Superior Court of the County of Cochise. Alfred C. Lockwood, Judg’e.</p>

<p>1. Explosives — Miner, Warned op Blast, Held Guilty op Contributory Negligence. — Where plaintiff, an experienced miner, injured while following a trail, by a blast on right of way being constructed by defendant, heard and understood the word “Fire,” and immediately got into a safe position behind a wagon, but then in two or three minutes proceeded on his way in the open until the explosion occurred, five or six minutes after the warning, he was, under the facts, as a matter of law guilty of contributory negligence.</p> <p>2. Negligence — Question op Contributory Negligence por Court.— Where the whole testimony and all legitimate inferences therefrom show injury to one by reason of his own want of ordinary care, his negligence is for the court.</p>

<p>1. Bills and Notes — Only Holders in Due Course Protected Against Original Fraud. — If a note is originally obtained by fraud, holders thereof are entitled to the benefit of the rule protecting a bona fide holder only when they have purchased in good faith, in the usual course of business, before maturity, for full value, and without notice of facts affecting the paper’s validity</p> <p>2. Bills and Notes — Proper Procedure in Action on Note Depended por Fraud in Procurement Stated. — In an action ón a note, defended on the ground of fraud in its original procurement, the proper method of procedure is for plaintiff to produce the note, prove the indorsements and the making, and rest, thus establishing a prima facie ease, and for the time being his own title and right to recover, whereupon defendant should be permitted to prove his defense of fraud, when it becomes necessary for plaintiff to prove he is a bona fide holder for value before maturity.</p> <p>3. Bills and Notes — Holder, on Question op Fraud, Required to Show it was Holder in Due Course. — Where the proof offered on behalf of makers and indorser of the note in suit was sufficient to go to the jury on the question that the note was fraudulently obtained, plaintiff holder was required to show, not only that it was a holder for value, but that it had no knowledge or notice of the fact the note had been wrongfully obtained, or facts from which the fact that it had no notice of the fraud was inferable.</p> <p>4. Principal and Agent — Knowledge and Notice op Agent in Regard to Note Imputed to Principal. — If the party who obtained a note from defendants was the agent of plaintiff bank in the transaction, his knowledge and notice of the infirmity of fraud in thé note would be imputed to plaintiff bank.</p> <p>5. Principal and Agent — Fact op Agency not Provable by Declarations op Alleged Agent.' — In a bank’s action on a note procured from defendant makers and indorsed by one who claimed to be acting as the bank’s agent, testimony for defendants that such party declared he was such agent held incompetent.</p> <p>3. Bona fide holders of a bill or note "as- affected by fraud in its procurement, see note in 11 Am, St. Rep. 309.</p>

<p>1. Homicide — Evidence of Good Character of Deceased Inadmissible Unless Attacked. — In a prosecution £or homicide, evidence to prove the good character of the deceased is not competent un- , less that character is attacked, but where the defense puts the character of deceased as a quarrelsome, violent or dangerous man in issue, the state may support such character by proof that he was a peaceable, quiet and law-abiding man.</p> <p>1. The question of character and reputation of deceased as affecting homicide is discussed in notes in 2 L. B. A. (N. S.) 102; 103 L. B. A, (N. S.) 351; 4 Ann. Cas. 338; 11 Ann. Cas. 229.</p> <p>1. On evidence of specific instance to prove character of victim of crime, see notes in 14 L. B. A. (N. S.) 708; 124 Am. St. Bep. 1031.</p> <p>1. On admissibility of evidence of turbulent and dangerous character of victim of assault or homicide on issue of self-defense, see note in L. B. A. 1916A, 1245.</p> <p>2. Homicide — Attack on Deceased’s Character Need not be Direct to Authorize Evidence in Support. — In a prosecution for homicide, it is not necessary that the character of deceased be direetly attacked by defendants by evidence as to his general reputation, to render admissible on behalf of the state evidence of his good character.</p> <p>3. Homicide — Dependant’s Version of Quarrels Held not to Permit Support of Deceased’s Character. — In a prosecution for homicide, where self-defense was urged, and the state 'had introduced evidence of previous quarrels, testimony by defendant giving his version of those quarrels, in which he stated that deceased was excited and unreasonable and kept getting madder, was not an attack on the character of deceased which will permit the state to introduce evidence that deceased was a peaceable and law-abiding citizen.</p> <p>4. Homicide — Claim op Self-defense Does not Alone Justify Support of Deceased’s Character. — The fact that defendant, accused of homicide, claims self-defense against an attack by deceased, is not in itself sufficient to authorize the state to introduce evidence of deceased’s reputation as a peaceable and law-abiding citizen.</p> <p>5. Homicide — Erroneous Admission op Evidence Supporting Deceased’s Character Reversible. — Where the court erroneously permitted the state to introduce in rebuttal evidence of the reputation of deceased as a peaceable and law-abiding citizen, the Supreme Court cannot presume that such evidence had no influence on the deliberations of the jury, but must hold the admission of such evidence to be reversible error.</p>

<p>1. Criminal Law — Evidence That Unmarried Dependants Charged With Transporting Intoxicating Liquors were Cohabiting as Husband and Wipe Inadmissible. — In a prosecution of a man and woman, unmarried partners in the ownership of an automobile and ranch, for unlawfully transporting intoxicating liquors, evidence that the man before the arrest of the parties had registered at a hotel by writing “Bud Norton and Wife,” when the woman was not present, was inadmissible as leading to the conclusion that the woman and man were traveling about the country notoriously cohabiting as husband and wife, in violation of Penal Code of 1913, section 241.</p> <p>2. Criminal Law — Evidence as to Other Crime op Dependant Who Did not Opper Herselp as Witness Could not be Introduced.— When a defendant did not offer herself as a witness to beeome liable to impeachment as such, it was improper to show that she was living with a man, her codefendant, in a state of open and notorious cohabitation, in violation of law.</p> <p>2. Authorities passing on the general rule as to evidence of other crimes in criminal ease are collated in notes in 62 L. R. A. 193, and 7 Ann. Cas. 66.</p>

<p>APPEAL from a judgment of the Superior Court of the County of Mohave. J. E. Jones, Judge.</p>

<p>Negligence — Instruction on Reduction op Recovery by Contributory Negligence Held Outside the Pleading. — In action under Employers’ Liability Act for injuries to servant, instruction as to reduction of recovery by contributory negligence held improper where answer did not rely on partial defense, but charged that plaintiff’s negligence was the proximate cause of the injury.</p>

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

<p>1. Principal and Agent — Agent Held, Under the Evidence, to have no Authority to Complete Contract to Purchase. — In ejectment to recover lands claimed by defendants as purchaser from plaintiff company under executory contract, evidence held to show that plaintiff’s agent, who carried on the preliminary negotiations, was not authorized to complete the contract without approval of the company.</p> <p>2. Vendor and Purchaser — Contract to Purchase Held Established by Batification and Going into Possession. — In ejectment to recover land claimed by defendants as purchaser from plaintiff company under executory contract, evidence held to show that draft of contract submitted by plaintiff’s agent was ratified by the company by acceptance of the contract with portion of land already sold eliminated and acceptance of first payment, and acceptance by purchaser by taking possession under the contract.</p> <p>3. Erauds, Statute of — Part Payment Held Shown, Taking Contract for Sale of Land Out of Statute. — Evidence held to show that a part payment by the purchaser of land was accepted by the vendor so as to take the transaction out of the statute of frauds.</p> <p>4. Frauds, Statute of — Evidence Held Insufficient to Show Possession Under Claimed Contract was Wrongful. — Belative to part performance under the statute, evidence held insufficient to show that purchasers taking possession under claimed contract to purchase was wrongful, where seller made no protest until after it attempted to repudiate the contract.</p> <p>5. Vendor and Purchaser — Rights of Purchasers Held Prior to Unrecorded Lease.' — Under Civil Code of 1913, sections 2066-2080, a purchaser of grazing lands, taking possession under executory contract, has prior rights to lessee under antedated lease, not recorded at time of purchase or of taking possession.</p>

<p>APPEAL from a judgment of the Superior Court of the County of Yuma. Fred L. Ingraham, judge.</p>

John J. Sweeney, Judge. STATEMENT BY THE COURT. This action was commenced by Delmer Biley, a minor, through his guardian, his father, against the appellant and Diamond Drilling Company, a corporation, as defendants. The minor suffered serious injury to his foot, ankle and leg while working for the defendant Diamond Drilling Company.

P. H. Lyman, Judge. STATEMENT OF CASE. Plaintiff-appellee sued the defendant-appellant- to recover damages claimed to have been sustained by reason of the defendant driving his automobile into and against the automobile of the plaintiff on the public highway about seventeen miles out of Parker, Arizona.