Volume 21 — Idaho Reports

Original action praying for a writ of prohibition. Alternative writ issued, and on the return day demurrer was filed to the complaint and answer and return was also filed at the same time. Under a statute identical with section 4491, the California court has held that the right of redemption from a judicial sale is a statutory right, and no decree of the court can take it away. (Phillips v. Hagart, 113 Cal. 552, 54 Am.

Hon. Carl A. Davis, Judge. Appeal from an order denying a motion to vacate and set aside a sale on execution. In order to have a right under a writ of attachment, the plaintiff must do everything required by the statute. (Murphy v. Montandon, 3 Ida. 325, 35 Am.

Hon. Edgar C. Steele, Judge. The defendant was convicted of selling pure alcohol upon the written application of the purchaser for medicinal purposes and sentenced to pay a fine of fifty dollars. The purpose of this act and of all similar legislation is to restrict the use of intoxicating liquors as beverages. The interpretation which the state seeks to place upon this law does not further that purpose; it rather hinders it.

An original application for writ of mandate. Writ ordered to issue. The word “election” has two distinct meanings. The Standard Dictionary states them as follows: “Election — 1. The act or proceeding of selecting a person or persons for office or employment, especially by voting by ballot or otherwise. “2. A popular vote on a question of public policy or interest, as a local option election.”” See, also, Webster’s Dictionary; Black’s Law Dictionary;. 10 Am. & Eng.

<p>APPEAL from the District Court of the Second Judicial District for Idaho County. Hon. Edgar C. Steele, Judge.</p> <p>An action to recover commission as agent in the sale of mining property. Judgment for plaintiff. Defendants appeal.</p> <p>Broker has no right to commissions, if his services fail to accomplish a sale, and after the proposed purchaser has decided not to buy, other persons induce him to do so. (Earp v. Cummins, 54 Pa. 394, 93 Am. Dec. 718.)</p> <p>Unless the owner has been responsible for the delay in making the sale to the purchaser, or such delay has been caused by some negligence or fraud of the land owner, then if the sale be not completed within the time limited the broker cannot recover commission, although the owner afterward in good faith succeeds in selling the property to the same party. {Fultz v. Wimer, 34 Kan. 576, 9 Pae. 316; La Force v. Washington University, 106 Mo. App. 517, 81 S. W. 209; Sihhald v. Iron Co., 83 N. T. 378, 38 Am. Rep. 441; Wylie v. Bank, 61 N. T. 415; Fairchild v. Cunningham, 84 Minn. 521, 88 N. W. 15; Beauchamp v. Higgins, 20 Mo. App. 514; Page v. Griffin, 71 Mo. App. 524.)</p> <p>In the absence of any bad faith by defendant in making the sale the plaintiff could not recover any commission. {Nadler v. Menschel, 110 N. T. Supp. 384.)</p> <p>Where the broker procures a party ready and willing to buy, but the principal takes the further proceedings out of his hands and concludes the sale himself or through another, the broker has earned his compensation. {Gottschalk v. Jennings, 1 La. Ann. 5, 45 Am. Dec. 70, and cases cited; Smith v. Anderson, 2 Ida. 537 (495), 21 Pac. 412; Wood v. Broderson, 12 Ida. 190, 85 Pae. 490.)</p> <p>It is sufficient to entitle a real estate agent to receive his commission for the sale of land if he, under a contract with the owner thereof, has been the procuring cause of such sale. He need not conduct it to a final and successful conclusion. {Mwrlatt v. Elliott, 69 Kan. 477, 77 Pac. 104; Norris v. Byrne, 38 Wash. 592, 80 Pac. 80S; Batts v. Shepherd, 37 Kan. 20, 14 Pac. 496; Wilson v. Sturgis, 71 Cal. 226,16 Pac. 772; Knox v. Parker, 2 Wash. 34, 25 Pac. 909; 19 Cyc. 261; Barton v. Rogers, 84 111. App. 49; Winans v. Jaques, 10 Daly (N. Y.), 487; Shipman v. Freeh, 1 N. Y. Supp. 67; Wood v. Wells, 103 Mich. 320, 61 N. W. 503.)</p>

Hon. Robt. N. Dunn, Judge. Action to have certain city ordinances declared null and void and for the removal of certain obstructions in streets, and to recover damages. Judgment in favor of the defendants. It is not competent for a city to authorize sueh use of a street, dedicated as a street, as will destroy it as a thoroughfare for the public use. {Dubach v. Hannibal, 89 Mo. 483, 1 S. W. 86; Belcher Sugar Bef. Co. v. St. Louis Grain El.

Hon. Ed. L. Bryan, Judge. Action for the confirmation of the organization of an irrigation district and voting bonds on said district. Judgment of confirmation. In drawing this contract and in the adoption of the various resolutions of the board of directors that were adopted counsel for the district had before him and relied upon the ease of Stowell v. Rialto Irr. Dist., 155 Cal. 215, 100 Pac. 248, and it is upon the strength of this case that our whole proceedings were had.

Hon. Ed. L. Bryan, Judge. Proceedings for the confirmation of the organization of an irrigation district and the voting of certain district bonds. Judgment of confirmation. In drawing this contract and in the adoption of the various resolutions of the board of directors that were adopted, counsel for the district had before him and relied upon the ease of Stowell v. Rialto Irr.

Hon. Ed. L. Bryan, Judge. Suit for an injunction to restrain an irrigation district and the directors thereof from holding an election to vote upon-the question of a bond issue. Judgment for the defendant and plaintiff appealed.

Hon. Robt. N. Dunn, Judge. Action for the specific performance of a contract for the sale of real property. Judgment for defendant. Plaintiff appeals. A written contract for the sale of real property may be modified by a subsequent oral agreement. (Prairie Dev. Co. v. Leiberg, 15 Ida. 379, 98 Pae. 379.) An action for specific performance can be predicated upon a verbal contract to convey real estate.

Hon, Carl A. Davis, Judge. Action to quiet title to mineral claims. Judgment by default in favor of plaintiff. Defendant moved to vacate and set aside the judgment and default. Motion granted and plaintiff appealed. Defendant must show that it is free from fault, heedlessness or lack of diligence in protecting its rights.

<p>APPEAL from the District Court of the Third Judicial District for Ada County. Hon. John F. MaeLane, Judge.</p> <p>Action to recover possession of certain mortgage bonds or their value. Judgment for defendants.</p> <p>An attempt to ratify a void contract is itself void. (Thompson v. Htidgins, 116 Ala. 93, 22 So. 632; Union Nat. Bank v. Hartwell, 84 Ala. 379, 40 So. 156; Page on Contracts, sec. 275.)</p> <p>The said agreement, Exhibit “ C, ” was without consideration. It lacked mutuality. {Maher v. Martin, 43 Ind. 314; Musick v. Dodson, 76 Mo. 624, 43 Am. Rep. 780; 1 Parsons on Contracts, 434; Wilcox v. Arnold, 116 N. C. 708, 21 S. E. 434; Christian v. Niagara Ins. Co., 101 Ala. 634, 14 So. 374; Doe v. Culverwheel, 35 Cal. 291; Vogel v. Pekoe, 157 111. 339, 42 N. E. 386, 30 L. R. A. 491.)</p> <p>T-here is no allegation in the pleadings, and no proof in the record, to show that the note signed by the appellant with her husband to the bank was for the benefit of her separate property, and the presumption is that it was her husband’s debt. At any rate, she was not liable thereon, and it was, as against her, void. {Bank of Commerce v. Baldwin, 12 Ida. 202, 85 Pac. 497; Holt v. Qridley, 7 Ida. 416, 63 Pac. 188; Jaeckel v. Pease, 6 Ida. 131, 53 Pac. 399; Strode v. Miller, 7 Ida. 16, 59 Pac. 893; McDonald v. Bozen, 8 Ida. 353, 69 Pae. 125; Dernham A Bowley, 4 Ida. 753, 44 Pac. 643.)</p> <p>Under our code, forms are of no importance, and have been abolished by our constitution. (Const., art. 5, sec. 1; Bank, v. Oliver, 10 Ida. 3, 77 Pac. 20; Bates v. Bank, 18 Ida. 429, 110 Pac. 277.)</p> <p>It is not necessary that the defendant be in possession when demand is made or suit brought. (Harkey v. Tillman, 40 Ark. 551; Caldwell v. Fenwick, 2 Dana (Ky.),’333; Sinnott v. Feiock, 165 N. Y. 444, 80 Am. St. 736, 59 N. E. 265, 53 L. R. A. 565; Tyler v. Young, 46 Misc. Rep. 575, 92 N. Y. Supp. 818; Jones v. Bichards, 50 Misc. Rep. 645, 98 N. Y. Supp. 698; Newberry v. Gibson, 125 Iowa, 575, 101 N. W. 428; Murdoch v. Tuten, 76 S. C. 502, 57 S. E. 547; Segars v. Segars, 82 S. C. 196, 63 S. E. 891; Andrews v. KoesUch, 47 Wash. 220, 125 Am. St. 896, 14 Ann. Cas. 1118, 91 Pac. 772, 18 L. R. A., N. S., 1265; Helman v. Withers, 3 Ind. App. 532, 50 Am. St. 295, 30 N. E. 5; Schmidt v. Bender, 39 Kan. 437, 18 Pac. 491; McBrian v. Morrison, 55 Mich. 351, 21 N. W. 368; Bates v. Bank, 18 Ida. 429, 110 Pac. 277.)</p> <p>As to an executed contract, the matter of consideration is immaterial and will not be inquired into. (Page 'on Contracts, sec. 19; Bishop on Contracts, sec. 81.)</p> <p>As to the contract of 1904, the surrender of these enforceable notes and the agreement to perform these services constituted a valuable consideration. (Page on Contracts, sec. 322.)</p> <p>A subsequent promise, after acquiring capacity to contract, to perform a contract made before such capacity is acquired is enforceable if based upon a new consideration. (Page on Contracts, sec. 931.)</p> <p>An action of replevin cannot be maintained against a defendant not shown to be in possession of the property sought to be replevied at the time of the commencement of the action, unless it can be shown that he has disposed "of the property for the purpose of avoiding the writ. (Shinn on Replevin, sec. 164; Bobb v. Dobrinski, 14 Okl. 563, 1 Ann. Cas. 981, 78 Pac. 101; Depriest v. McKinstry, 38 Neb. 194, 56 N. W. 806; Sullivan v. Girson, 39 Mont. 274, 102 Pac. 320; Timp v. Dockham, 32 Wis. 146.)</p> <p>It lies only on behalf of one entitled to the possession as against one having at the time the suit is begun actual or constructive possession and control of the property. (24 Am. & Eng. Ency. of Law, pp. 495, 496; Cobbey on Replevin, secs. 61, 63; Gildas v. Crosby, 61 Mich. 413, 28 N. W. 153; My rick v. National C. B. Co. (Miss.), 25 So. 155; McCormick v. McCormick, 40 Miss. 760; Biciotto v. Clement, 94 Cal. 105; Bamsdell v. Buswell, 54 Me. 546; Standard Oil Co. v. Bretz, 98 Ind. 231; Hall v. White, 106 Mass. 599; Henderson v. Hart, 122 Cal. 332, 54 Pac. 1110; Hall v. Kalamazoo, 131 Mich. 404, 91 N. W. 615; Gallick v. Bordeaux, 31 Mont. 328, 78 Pac. 583.)</p> <p>Our statute was borrowed from California, and the rule in that state has always been in accord with the overwhelming weight of authority. (Bichards v. Morey, 133 Cal. 437, 65 Pac. 886.)</p> <p>Where anything is done that imports a new consideration, it binds the parties. (Spitz v. Fourth Nat. Bank, 8 Lea (Tenn.), 641.)</p> <p>“A subsequent promise, after acquiring capacity to contract, to perform a contract made before the capacity is acquired is enforceable if based upon a new consideration.” (2 Page on Contracts, sec. 931; Lackey v. Boruff, 152 Ind. 371, 53 N.E. 412.) ‘</p> <p>It was sufficient consideration upon which to base an agreement whether the plaintiff gained anything in the transfer or not. (Cook v. Bradley, 7 Conn. 57, 18 Am. Dec. 79; 1 Page on Contracts, sec. 274; Visalia Gas etc. Co. v. Sims, 104 Cal. 326, 43 Am. St. 105, 37 Pac. 1042; 9 Cyc. 312; Bishop on Contracts, see. 61.)</p> <p>No recovery can be had in an executed contract even by restoring the other party to his former position. But this ease does not even have the equities surrounding it sufficient to do that, for at the time of demand the notes were outlawed. (Bishop on Contracts, 2d ed., secs. 509, 545, 627, 820; 1 Page on Contracts, sec. 281; Hill v. Freeman, 73 Ala. 200, 49 Am. Rep. 48; Chapman v. Searle, 3 Pick. (Mass.) 38, 44.)</p> <p>Want of mutuality is no defense in the case of an executed contract. (9 Cyc. 333; Varney v. Bradford, 86 Me. 510, 30 Atl. 115; Logging Co. v. Robson, 69 Fed. 773, 16 C. C. A. 400; Wheeler & Wilson Mfg. Co. v. Lion, 71 Fed. 374.)</p> <p>Performance by a married woman of her promise, void on account of coverture, constitutes a valuable consideration. (1 Page on Contracts, sec. 310; Hoffman v. Colgan (Ky.), 74 S. W. 724.)</p>

Hon. J. M. Stevens, Judge. Action to condemn property for public use. Judgment for defendants. Plaintiff appealed.

<p>Original action by the city of Pocatello, praying a writ of mandate. Demurrer and, answer by the defendant, and demurrer by the plaintiff to defendant’s answer.</p> <p>When property is devoted to a public use, it is subject to public regulation. (Munn v. Illinois, 94 U. S. 113, 24 L. ed. 77.)</p> <p>“This power of regulation is a power of government continuing in its nature, and if it can be bargained away at all, it can only be by words of positive grant or something which is in law equivalent.” (Railroad Commission Cases, 116 U. S. 325, 6 Sup. Ct. 334, 388, 1191, 20 L. ed. 636; Budd v. New York, 143 U. S. 517, 12 Sup. Ct. 468, 36 L. ed. 247; Rogers Park Water Co. v. Fergus, 180 U. S. 624, 2Í Sup. Ct. 490, 45 L. ed. 702.)</p> <p>Grants of immunity from legitimate governmental control are never to be presumed. (Ruggles v. Illinois, 108 U. S. 526, 2 Sup. Ct. 832, 27 L. ed. 812.)</p> <p>Specific authority for that purpose is required. (Some Tel. <& Tel. Co. v. City of Los Angeles, 211 U. S. 265, 29 Sup. Ct. 50, 53 L. ed. 176; Louisville & Nashville R. Co. v. Mottley, 219 U. S. 467, 31 Sup. Ct. 265, 55 L. ed. 297.)</p> <p>Contracts must be understood as made in reference to the possible exercise of the rightful authority of the government, and no obligation of a contract can extend to the defeat of legitimate government authority. (Addyston Pipe & Steel Co. v. United States, 175 ü. S. 211, 229, 20 Sup. Ct. 96, 44 L. ed. 136; Legal Tender Cases, 12 Wall. (U. S.) 550, 20 L. ed. 311; Fitzgerald v. Grand Trunk Co., 63 Yt. 169, 22 Atl. 76, 13 L. R. A. 70.)</p> <p>“Until the legislature provides the method for fixing rates, the contract between the parties will govern.” (Jack v. Village of Grangeville, 9 Ida. 291, 74 Pac. 969.)</p> <p>Rates may be established from time to time as the legislature may by law provide. (Zanesville v. Zanesville Gas Light Co., 47 Ohio, 1, 23 N. E. 55.)</p> <p>In the case at bar defendant took his franchise under a constitutional provision which commanded the legislature to provide by law the manner in which reasonable maximum rates may be established (sec. 6, art. 15), and the contract was made subject to the possibility of its exercise as it was expressed by the subsequent statute. (Tampa Waterworks Co. v. Tampa, 199 U. S. 241, 26 Sup. Ct. 23, 50 L. ed. 170, and cases cited.)</p> <p>Although a city is given power to contract for a water supply, the legislature may subsequently supply a manner of readjusting or fixing rates. (City of Dawuille v. Danville Water Co., 178 111. 299, 69 Am. St. 304, 53 N. E. 118, 180 111. 235, 54 N. E. 224, 186 111. 326, 57 N. E. 1129, 180 U. S. 619, 21 Sup. Ct. 505, 45 L. ed. 696; Freeport Water Co. v. Freeport, 180 U. S. 587, 21 Sup. Ct. 493, 45 L. ed. 679; Knoxville Water Co. v. City of Knoxville, 189 U. S. 433, 23 Sup. Ct. 531, 47 L. ed. 887.)</p> <p>The foregoing eases hold that a constitutional provision such as our own is self-executing to the extent that contracts made after it went into effect are subject to the possibilities of the exercise of the power conferred on the legislature by such provision.</p> <p>The manner of fixing rates prescribed by ordinance No. 86 is unreasonable, ultra vires and void. (Knoxville v. Knoxville Water Co., 212 U. S. 1, 29 Sup. Ct. 148, 53 L. ed. 371; Contra Costa Water Co. v. City of Oakland, 159 Cal. 323, 113 Pac. 668.)</p> <p>A former judgment between the same parties is a bar to the maintenance of the second action only when the causes of action in the two suits are identical. (23 Cyc. 1216.)</p> <p>“A finding or judgment upon a point or issue which was immaterial to the decision of the case does not make it res ad judicata.” (23 Cyc. 1309.)</p> <p>“A judgment is not conclusive upon any point which must necessarily have been excluded from consideration in the case as being beyond the jurisdiction of the particular court.” (23 Cyc. 1317; Hughes v. United States, 4 Wall. (U. S.) 237, 18 L. ed. 303; Walden v. Bodley, 14 Pet. (TJ. S.) 156, 10 L. ed. 398.)</p> <p>“The reasoning of the court forms no part of the judgment as regards its conclusive effect, nor are the parties bound by remarks made or opinions expressed by the court in deciding the cause which do not necessarily enter into the judgment.” (23 Cyc. 1218; Citizens’ Bank v. Brigham, 61 Kan. 727, 60 Pac. 754; Braun v. Wisconsin Rendering Co., 92 Wis. 245, 66 N. W. 196; Brown v. McEie, 185 N. Y. 303, 78 N. E. 64; Fulton v. Hanlow, 20 Cal. 450; People v. Johnson, 38 N. Y. 63, 97 Am. Dee. 770; Barnett v. Smart, 158 Mo. 167, 59 S. W. 235.)</p> <p>When the constitution provides for the fixing of rates or compensation, it means reasonable rates and just compensation. ’ (San Diego etc. Co. v. National City, 74 Fed. 79, 174 U. S. 739, 19 Sup. Ct. 804, 43 L. ed. 1154; Palatka Waterworks v. City of Palatka, 127' Fed. 161; Montezuma Town v. Montezuma Waterworks Co., 39 Colo. 166, 89 Pac. 794; Spring Valley Waterworks Co. v. San Francisco, 124 Fed. 574.)</p> <p>The contention that members of the city council are agents of the people and their action in fixing rates for a water company is violative of the principle that no man can judge his own case, is untenable. {Rogers Park Water Co. v. Fergus, 178 Iff. 571, 53 N. E. 363, 180 U. S. 624, 21 Sup. Ct. 490, 45 L. ed. 702.)</p> <p>The contract referred to was founded upon a consideration, is within the power of the city to make, is not contrary to public policy and is reasonable. {Los Angeles v. Los Angeles Water Co., 177 U. S. 558, 20 Sup. Ct. 736, 44 L. ed. 886.)</p> <p>The city of Pocatello, in the matter of a new adjustment of rates, is bound to pursue the course provided by the ordinance. {Walla Walla v. Walla Walla Water Co., 172 U. S. 1, 19 Sup. Ct. 77, 43 L. ed. 341.)</p> <p>“Sections 3 and 4 of that ordinance are a substantial part of that contract, and are for that reason not affected by the subsequent statute of March 16, 1907.” (Pocatello v. Murray, 173 Fed. 382; National Waterworks Go. v. Kansas City, 62 Fed. 853, 10 C. C. A. 653, 27 L. ft. A. 827; Santa Ana Water Go. v. San Buenaventura, 56 Fed. 339; Los Angeles City Water Go. v. Los Angeles, 88 Fed. 720.)</p> <p>The offer of the city, which had been accepted by the water company, was a contract which could not be impaired by the subsequent act of the city. • {New Orleans Gas Light Go. v. Louisiana Light etc. Go., 115 U. S. 650, 6 Sup. Ct. 252, 29 L. ed. 516; Omaha Water Go. v. Omaha, 147 Fed. 1, 8 Ann. Cas. 614, 77 C. C. A. 267,12 L. B. A., N. S., 736.)</p> <p>In agreeing to the mode provided in the ordinance in question for fixing rates, the city exercised, rather than renounced, its authority to fix rates. ("Vicksburg v. Vicksburg Waterworks Go., 206 U. S. 496, 27 'Sup. Ct. 762, 51 L. ed. 1155; McQuillan on Municipal Ordinances, sec. 584; State v. Cincinnati Gas Light &' Coke Go., 18 Ohio St. 262.)</p> <p>A state may, in matters of proprietary rights, exclude itself from the right to make regulations of this kind or authorize municipal corporations to do so, when the power is clearly conferred. {Vicksburg v. Vicksburg Waterworks Co., supra, and cases cited.)</p> <p>In contracting for the enlargement of its water system, a municipality is exercising its proprietary or business powers, and is subject to the same rules of law that govern the agreements of private corporations, and its contracts bind its successive sets of officers. {Pike’s Peak Power Go. v. City of Colorado Springs, 105 Fed. 1, 44 C. C. A. 333; Los Angeles v. Los Angeles Water Go., supra.)</p> <p>The validity of the contract cannot be impeached or impaired by the enactment of a law by the legislature which went into effect some three months after the contract was made. {Bellevite Water Go. v. City of Bellevue, 3 Ida. 739, 35 Pae. 693.)</p> <p>There was no law respecting rates in existence at the time the ordinance was passed which had any application to indivictuals supplying cities or villages with water. (Jack v. Tillage of Orangeville, 9 Ida. 291, 74 Pac. 969.)</p> <p>“The grant of a right to supply gas or water to a municipality is the grant of a franchise vested in the state, in consideration of the performance of "a public service, and after performance by the grantee is a contract protected by the constitution of the United States against state legislation to impair it.” (Walla Walla v. Walla Walla Water Co., supra; New Orleans Oas Co. v. Louisiana Light Co., supra; New Orleans Water Co. v. Rivers, 115 U. S. 674, 6 Sup. Ct. 273, 29 L. ed. 525; Tammany Waterworks v. New Orleans Waterworks, 120 U. S. 64, 7 Sup. Ct. 405, 30 L. ed. 563; Crescent City Gas Light Co. v. New Orleans Light Co., 27 La. Ann. 138; Little Falls E. & W. Co. v. City, 102 Fed. 663, citing many United States cases; Griffith v. Vicksburg Water Co., 88 Miss. 371, 8 Ann. Cas. 1130, 40 So. 1011; Fidelity T. & G. Co. v. Fowler Water Co., 113 Fed. 560.)</p> <p>A cause of action is res adjudícala as to adverse parties and their respective privies, if a judicial tribunal having jurisdiction has finally adjudicated upon the merits of the whole or any part of the cause. (Yan Fleet, Former Adjudication, sec. 1; 23 Cyc. 1215; New Orleans v. Citizens’ Bank, 167 U. S. 371, 17 Sup. Ct. 905, 42 L. ed. 202; Last Chance Min. Co. v. Tyler Min. Co., 157 U. S. 683, 15 Sup. Ct. 733, 39 L. ed. 859, 18 Morr. Min. Eep. 205; So. Pac. B. Co. v. United States, 168 U. S. 1, 18 Sup. Ct. 18, 42 L. ed. 355.)</p> <p>“If from the decree in a cause there be uncertainty as to what was really decided, resort may be had to the pleadings and to the opinion of the court, in order to throw light upon the subject.” (National Foundry etc. Co. v. Oconto Water Supply Co., 183 U. S. 216, 22 Sup. Ct. Ill, 46 L. ed. 157; Legrand v. Bixey’s Admrs., 83 Ya. 862, 877, 3 S. E. 864; Last Chance Min. Co. v. Tyler Min. Co., supra.)</p> <p>The application of the act of March 16, 1907, section 2839, in this case would operate to deprive defendant of his property without due process of law, contrary to both the state ■and federal constitutions. (C. M. & St, Paul B. v. Minnesota, 134 U. S. 418, 10 Sup. Ct. 462, 33 L. ed. 970; Agua Pura Go. v. City of Las Vegas, 10 N. M. 6, 60 Pac. 208, 50 L. R. A. 224.)</p> <p>“There is no distinction between a corporation and an individual in regard to liability under a contract. A corporation cannot avail itself of the benefits of a contract and, when called upon to meet its obligations thereunder, set up the plea of ultra vires.” (Bellevue Water Go. v. Bellevue, 3 Ida. 739, 35 Pac. 693; Los Angeles Water Co. v. Los Angeles, 103 Fed. 711; Meyer v. Brown, 67 Cal. 589, 26 Pac. 281.)</p> <p>The “value” of a water system in operation is not confined to the value of the things going to make up the system, but its owner is entitled to its value as a “going concern.” (Omaha v. Omaha Water Go., 218 U. S. 180, 30 .Sup. Ct. 615, 54 L. ed. 991.)</p>

Hon. John F. MacLane, Judge. Motion to set aside a default judgment and to permit defendant to answer. Motion denied. Whenever the statute provides for “personal service” of process, or that process shall be personally served, there is a general agreement of the courts that such service must be actual and personal upon the party served.

<p>APPEAL from the District Court of the Third Judicial District for Ada County. Hon. John F. MacLane, Judge.</p> <p>An action to quiet title. Motion to dismiss appeal.</p> <p>Under all of the prior decisions of this court the record shows due diligence in bringing motion for new trial to hearing. (Leggett v. Evans, 16 Ida. 760, 102 Pac. 486; Farmers’ Co-op. Ditch Co. v. Riverside etc. Co., 16 Ida. 525, 102 Pac. 481; Smith v. Am. Falls Co., 15 Ida. 89, 95 Pac. 1059; Mc-Crea v. McQrew, 9 Ida. 382, 75 Pac. 67.)</p> <p>Even though this court should find that appellant should have had his motion for new trial passed upon before the settlement of transcript, the failure so to do is waived by the acquiescence of respondent. (Stufflebeam v. Montgomery, 3 Ida. 20, 26 Pac. 125; Lockhart v. Rollins, 2 Ida. 540 (503), 21 Pac. 413, 16 Morr. Min. Rep. 16; Van Camp v. Emery, 13 Ida. 202, 89 Pac. 752; Richardson v. Bohney, 18 Ida. 328, 109 Pae. 727; Leggett v. Evans, 16 Ida. 760, 102 Pac. 486.)</p> <p>Laches in failing to bring motion for new trial to hearing promptly under a statute similar to subd. 2 of sec. 4441 as amended by act of 1911 is waived if not objected to in the lower court. (Cereghino v. Cereghino, 4 Utah, 100, 6 Pac. 523; Fletcher v. Nelson, 6 N. D. 94, 69 N. W. 53; Anderson v. Bank, 5 N. D. 80, 64 N. "W. 117; Plano Mfg. Co. v. Jones, 8 N. D. 315, 79 N. W. 338.)</p> <p>The subsequent certificate of the trial judge, showing what papers, records, files, etc., were before him and considered by him in passing on appellant’s motion for new trial, cures omission of certificate in statement. (Libby v. Spokane etc. Co., 15 Ida. 467, 98 Pac. 715; Sail v. Jensen, 14 Ida. 165, 93 Pac. 962.)</p> <p>If an application be made at the hearing to correct certificate, or to file a new certificate, to make same show the fact, it is in time. (Barrow v. Lewis L. Go., 14 Ida. 698, 95 Pae. 882; Enutsen v. Phillips, 16 Ida. 267, 101 Pae. 596.)</p> <p>Under the old law the motion for a new trial eonld be made upon the minutes of the court, the same as it can now, and without the preparation of any statement. The California code is the same as our original code. (Malcolmson v. Harris, 90 Cal. 262, 27 Pac. 206. See, aiso, State v. District Court, 38 Mont. 119, 99 Pac. 141.)</p> <p>The motion to strike from the transcript certain portions thereof should be granted, as the same forms no part of the record on appeal. (Naylor v. Leiuiston By. Co., 14 Ida. 780, 96 Pae. 573; Steve v. Bonners Ferry Lumber Co., 13 Ida. 384, 92 Pac. 363; Humphrey v. Whitney, 17 Ida. 14, 103 Pac. 389.)</p> <p>The record must contain the identical papers used on motion for a new trial or the appeal from the order will be dismissed. (Eootenai County v. Hope Lbr. Co., 13 Ida. 268, 89 Pae. 1054; Steve v. Bonners Ferry Lumber Co., 13 Ida. 384, 92 Pae. 363.) The statement in this case must be disregarded, as it does not contain any specification of the particulars in which the evidence is alleged to be insufficient to sustain the decision of the court. (Hole v. Van Duser, 11 Ida. 89, 81 Pac. 109; Later v. Haywood, 14 Ida. 45, 93 Pae. 374; Humphrey v. Whitney, supra.)</p>

Hon. Ed. L. Bryan, Judge. Action for debt. Judgment for plaintiff. Defendant appealed. If respondent was to construct the sidewalk and curb according to specifications and ordinances, then the production of a certificate of approval by the city was a condition precedent to a right of action on the contract or agreement. (Holmes v. Richet, 56 Cal. 307, 38 Am.

<p>APPEAL from the District Court of tbe Fourth Judicial District for Lincoln County. Hon. Edward A. Walters, Judge.</p> <p>The defendant was convicted of selling intoxicating liquors in a prohibition district contrary to law, and sentenced to imprisonment and also to pay a fine.</p> <p>The court erred in permitting M. T. Whitenaek, a witness for the state in rebuttal, to testify in the case, for the reason that his name did not appear at any time upon the information and was not placed thereon during the trial or thereafter. (State v. Crea, 10 Ida. 88, 76 Pae. 1013; State v. McGann, 8 Ida. 40, 66 Pac. 823; State v. Booke, 10 Ida. 388, 79 Pac. 82; State v. Wilmbusse, 8 Ida. 608, 70 Pac. 849; Ex parte Schmidt, 71 Cal. 212, 12 Pac. 55.)</p> <p>“A bill of lading must be proved to have been signed by the duly authorized agent of the carrier to be admissible.” (Pendery v. Crescent Mut. Ins. Co., 21 La. Ann. 410; 1 Ency. of Ev. 295; Wood v. Boach, 2 Dali. (Pa.) 180, 1 Am. Dec. 276, 1 L. ed. 340.)</p> <p>If defendant intended to prove that liquor was not found on his premises four days after the offense is alleged to have been committed, there is no legal theory upon which the relevancy of such evidence could have been established. (Abbott’s Trial Brief, sec. 11, and cases cited; Commomvealth v. Page, 72 Mass. (6 Gray) 361; 23 Cyc. 250, see. 3; Boulden v. State, 102 Ala. 78, 15 So. 341.)</p> <p>Witnesses who testify in rebuttal need not have their names indorsed on the information. (Eager v. State, 49 Neb. 439, 68 N. W. 611; Bauschkolb v. State, 46 Neb. 658, 65 N. W. 776; State v. Huckins, 23 Neb. 311, 36 N. W. 527; Kastner v. State, 58 Neb. 768, 79 N. W. 713; McVey v. State, 57 Neb. 477, 77 N. W. 1111; Kelly v. State, 51 Neb.'572, 71 N. W. 299.) The Idaho statute was adopted from Nebraska.</p> <p>The books of an express company are admissible to show shipments of intoxicating liquor, and we are equally positive that entries made by the agent on a loose sheet, which is one of the steps in his method in bookkeeping, are equally admissible. (State v. Eriechbaum, 81 Iowa, 633, 47 N. "W. 872; Commonwealth v. Blood, 11 Gray (Mass.), 74.)</p>

<p>APPEAL from the District Court of the Third Judicial District for Ada County. Hon. John F. MacLane, Judge.</p> <p>Appeal by the administratrix of the estate of Albert B. Kohny from an order of the probate court refusing to settle and allow the final account of the administratrix until such time as she paid an inheritance tax upon the one-half interest in the community property belonging to the wife of the deceased.</p> <p>Inasmuch as the California inheritance tax law was enacted after the time of the ruling of the courts of that state upon women’s rights in community property, therefore the legislature intended to subject all community property to said inheritance tax. We adopted the California statute, word for word, in 1907. Therefore, the same reasoning applies. (Estate of Moffitt, 153 Cal. 359, 95 Pae. 653, 1025, 20 L. E. A., N. S., 207; In re Burdick, 112 Cal. 387, 44 Pac. 734; Spreckels v. Spreckels, 116 Cal. 339, 58 Am. St. 170, 48 Pac. 228, 36 L. E. A. 497; Sharp v. Loupe, 120 Cal. 89, 52 Pac. 134, 586.)</p> <p>“The interest of the wife is a mere expectancy like the interest which any heir may possess in the property of his ancestor.” (Van Maren v. Johnson, 15 Cal. 308; Packard v. Arellanes, 17 Cal. 525.)</p> <p>The wife has no vested or tangible interest in community property, but the title is vested in the husband, who is “for all practical purposes the sole owner.” (Fallbrook Irr. Dist. v. Abila, 106 Cal. 362, 39 Pac. 794; People v. Lebus (Cal.), 96 Pac. 1118.)</p> <p>“The title to community property is in the husband, and during the existence of the community the wife’s interest in the community property is a mere expectancy.” (Hall v. Johns, 17 Ida. 224, 105 Pac. 71; Bay v. Bay, 1 Ida. 566; Wilson v. Wilson, 6 Ida. 597, 57 Pac. 708; Bedal v. Sake, 10 Ida. 270, 77 Pac. 638, 66 L. E. A. 60; Bank of Commerce v. Baldwin, 14 Ida. 75, 93 Pac. 504, 17 L. E. A., N. S., 676.)</p> <p>If the wife takes as survivor, she cannot take as heir, and hence her share would not be liable for the tax. (In re Moffitt’s Estate, 153 Cal. 359, 95 Pac. 654, 1025, 20 L. E. A., N. S., 207; McKay on Community Property, sec. 462.)</p> <p>In Texas and Washington it is settled that the wife does not take her moiety of the community property by inheritance from her husband; her title originates at the same time as his, runs concurrently with his, and: on his death it is merely stripped of his power to manage and control. (Wright v. Hays, 10 Tex. 130, 60 Am. Dee. 200; Edwards v. Brown, 68 Tex. 329, 4 S. W. 380, 5 S. W. 87; Kircher v. Murray, 54 Fed. 626; CvMers v. James, 66 Tex. 494; Arnold v. Hodge, 20 Tex. Civ. App. 211, 49 S. W. 715; Johnson v. Harrison, 48 Tex. 257; Holyoke v. Jackson, 3 Wash. Ter. 235, 3 Pac. 841; Saddler v. Niesz, 5 Wash. 182, 31 Pae. 630, 1030; Adams v. Black, 6 Wash. 528, 33 Pac. 1074; Tustin v. Adams, 87 Fed. 377.)</p> <p>The decisions cited from the courts of states having statutes identical, or practically identical, with ours are decisive of the matter at bar, and the California rule should not be recognized here, as the statutes of the two states are entirely dissimilar. (Warburton v. White, 176 U. S. 484, 20 Sup. Ct. 404, 44 L. ed. 555; Arnet v. Beade, 220 U. S. 311, 31 Sup. Ct. 425, 55 L. ed. 477.)</p> <p>In the light of sec. 5713, the wife has more than a mere expectancy in the community property. (Byan v. Eergusson, 3 Wash. 356, 28 Pac. 910; Lawrence v. Bellingham Bay etc. Co., 4 Wash. 664, 30 Pac. 1099; In re Hill’s Estate, 6 Wash. 285, 33 Pac. 585; In re Cannon, 18 Wash. 101, 50 Pac. 1021.)</p> <p>Estate by curtesy is not subject to inheritance tax. (Star-buck’s Estate, 137 App. Div. 866, 122 N. Y. Supp. 585.)</p> <p>The statute has refrained from any language which would impose a tax upon rights of property which ripen or come to pass as an incident or result of death.</p> <p>“The words ‘intestate laws’ refer to the statutes governing the descent and distribution of a decedent’s property.” (In re Green’s Estate, 68 Misc. Rep. 1, 124 N. T. Supp. 863; Commonwealth’s Appeal, 34 Pa. 204.)</p>

Hon. Fremont Wood, Judge. Defendant was convicted of the crime of robbery and sentenced to imprisonment in the state penitentiary for a term of not less than five nor more than eight years. An indictment or information for robbery must allege that the property taken was the property of some person other than the defendant. (People v. Vice, 21 Cal. 345; People v. Ammerman, 118 Cal. 25, 50 Pac. 15; People v. Sicks, 66 Cal. 103, 4 Pac. 1093; In re Myrtle, 2 Cal.

Hon. Ed. L. Bryan, Judge. Action on contract. Judgment for plaintiffs for a part only of the sum demanded, from which plaintiffs appeal. Heigho, in view of his official relation to the respondent corporation, the approaching settlement, and his increased responsibility to the respondent which such settlement imposed, was under the duty to inquire into the records of this shipment, in order that he might be prepared to safeguard the interests of his company in that settlement.

<p>An original application to this court for a writ of mandate.</p> <p>The statute necessarily interferes with the right of contract. {Lochner v. New York, 198 U. S. 45, 3 Ann. Cas. 1133, 25 Sup. Ct. 539, 49 L. ed. 937; Minnesota v. Barber, 136 U. S. 313, 10 Sup. Ct. 862, 34 L. ed. 455; Brimmer v. Bebman, 138 U. S. 78, 11 Sup. Ct. 213, 35 L. ed. 862; Yick Wo v. Hopkins, 118 U. S. 356, 6 Sup. Ct. 1064, 30 L. ed. 220; Ritchie v. People, 155 111. 98, 46 Am. St. 315, 40 N. E. 454, 29 L. R. A. 79, 82, and cases :’cited; Adair v. United States, 208 U. S. 161, 13 Ann. Cas. 764, 28 Sup. Ct. 277, 52 L. ed. 437, and cases cited; Chicago v. McGuire, 219 U. S. 549, 31 Sup. Ct. 259, 55 L. ed. 259.)</p> <p>Any action of the legislature which decreases the value of the property of its owner arbitrarily is taking his property “without due process of law.” {Smyth v. Ames, 169 U. S. 466, 18 Sup. Ct. 418, 42 L. ed. 819, 841.)</p> <p>A corporation is a person within the meaning of the fourteenth amendment. {Southern By. Co. v. Greene, 216 U. S. 400, 30 Sup. Ct. 287, 54 L. ed. 536, 540; Gulf C. & S. P. B. Co. v. Ellis, 165 U. S. 150, 17 Sup. Ct. 255, 41 L. ed. 666.)</p> <p>The legislature has power to classify subjects for legislation, but this classification for legislative purposes must have some reasonable basis upon which' to stand. {Vermont Loan &' Trust Co. v. Whithad, 2 N. D. 82, 49 N. W. 318, 320; Brown-Forman Co. v. Kentucky, 217 U. S. 563, 30 Sup. Ct. 578, 54 L. ed. 883.)</p> <p>Arbitrary selection cannot be justified by calling it classification. {Gulf, C. & S. F. B. Co. v. Ellis, supra; Cotting v. Kansas City Stockyards Co., 183 U. S. 79, 22 Sup. Ct. 30, 46 L. ed. 72; Connolly v. Union Sewer Pipe Co., 184 U. S. 540, 22 Sup. Ct. 431, 46 L. ed. 679; Pembina Consol. Silver Min. dt Mill. Co. v. Pennsylvania, 125 U. S. 181, 8 Sup. Ct. 737, 31 L. ed. 65Ó; Magoun v. III. Trust & Sav. Bank, 170 U. S. 283, 18 Sup. Ct. 594, 42 L. ed. 1037.)</p> <p>There being a constitutional provision forbidding special or local laws upon the subject of interest, the legislature was without power to pass a special law on the subject of interest. (Lewis’' Sutherland Stat. Const., 2d ed., sec. 191, pp. 340, 341; State v. Supervisors, 25 Wis. 339; State v. Biordan, 24 Wis. 484; State v. Dousman, 28 Wis. 541; Pasadena v. Stinvson, 91 Cal. 238, 27 Pac. 604; Craibb v. State, 88 Ga. 584, 15 S. E. 455; Henderson v. Koenig, 168 Mo. -356, 68 S. W. 72, 57 L. R. A. 659; State v. Anslinger, 171 Mo. 600, 71 S. W. 1041.)</p> <p>A special law is one which relates and applies to particular members of a class, either particularized by express terms of the act or separated by any method of selection from the whole of the class to which the law might, but for such limitations, be applicable. (Lewis’ Sutherland Stat. Const., 2d ed., pp. 351, 352; State v. Cooley, 56 Minn. 549, 58 N. W. 150.)</p> <p>If it is limited to particular parts or designated parts of a class, it is special. (Lewis’ Sutherland Stat. Const., 2d ed., 352; Lippman v. People, 175 111. 101, 51 N. E. 872; In re Solmcke, 148 Cal. 262, 113 Am. St. 236, 7 Ann. Cas. 475, 82 Pac. 956, 2 L. R. A., N. S., 813; Harper v. Galloway, 58 Fla. 255, 19 Ann. Cas. 235, 51 So. 226; Bodge v. Kelley, 88 Miss. 209, 117 Am. St. 733, 40 So. 552, 11 L. R. A., N. S., 635.)</p> <p>A corporation is not a citizen within the meaning of the provisions of the federal constitution, and hence has not privileges and immunities secured to citizens against state legislation. (Paul v. Virginia, 8 Wall. (U. S.) 168, 19 L. ed. 357; Orient Ins. Co. v. Daggs, 172 U. S.. 557, 19 Sup. Ct. 281, 43 L. ed. 552.)</p> <p>The state may distinguish, select and classify subjects of legislation, and necessarily the powers must have a wide range. Classification suffices if it is practical, and is not reversible unless palpably arbitrary. (Orient Ins. Co. v. Daggs, supra; Magoun v. III. Trust & Sav. Bank, 170 U. S. 283, 18 Sup. Ct. 594, 42 L. ed. 1037; Mo. Pac. B. B. Co. v. Mackay, 127 TJ. S. 205, 8 Sup. Ct. 1161, 32 L. ed. 107; Minn. & St. L. B. B. Co. v. Beckioith, 129 U. S. 26, 9 Sup. Ct. 207, 32 L. ed. 585.)</p> <p>The right of the state to prohibit corporations, either foreign or domestic, from doing business within the state, or as to regulating them to any degree which they see fit, has been settled. (Hooper v. California, 155 TJ. S. 648, 15 Sup. Ct. 207, 39 L. ed. 297; Waters-Pierce Oil Co. v. Texas, 177 TJ. S. 29, 20 Sup. Ct. 518, 44 L. ed. 657; Hancock Mutual Life Ins. Co. v. Warren, 181 TJ. S. 73, 21 Sup. Ct. 535, 45 L. ed. 955.)</p> <p>Equal protection of the law is not denied to a corporation because greater liabilities are imposed upon it than upon other corporations. (Fidelity Mutual Life Ins. Co. v. Mettler, 185 TJ. S. 308, 22 Sup. Ct. 662, 46 L. ed. 922; Fidelity & Casualty Co. v. Allibone, 15 Tex. Civ. App. 178, 39 S. W. 632.)</p> <p>There is such a difference between the insurance business and other kinds of business as to justify and not make repugnant to the equality clause the regulation of said company. (Continental Fire Ins. Co. v. Whittaker & Dillard, 112 Tenn. 151, 105 Am. St. 916, 79 S. W. 119, 64 L. R. A. 451.)</p> <p>Every reasonable construction must be resorted to in order to save a statute from unconstitutionality. (Hooper v. State, supra; Parsons v. Bedford, 3 Pet. (TJ. S.), 433, 7 L. ed. 732; United States v. Coombs, 12 Pet. (TJ. S.) 72,'9 L. ed. 1004; Grenada County Supervisors v. Brown, 112 TI. S. 261, 5 Sup. Ct. 125, 28 L. ed. 704; Presser v. Illinois, 116 TJ. S. 252, 6 Sup. Ct. 580, 29 L. ed. 615.)</p>

<p>APPEAL from the District Court of the Fifth Judicial District for Bannock County. Hon. John F. MacLane, Presiding Judge.</p> <p>Action upon a promissory note. Judgment for plaintiff; defendant appealed."</p> <p>The mere temporary absence of a debtor from the state, when such debtor has a usual place of residence therein where service of summons can be had upon him, does not suspend the statute of limitations. (Blodgett v. Utley, 4 Neb. 25.)</p> <p>The courts have held that if personal service of summons could be had on the debtor during his absence, it was the legislative intent that the statute would run during sueh an absence; and the legislative intent will prevail over a literal construction of the statute. (Penley v. Waterhouse, 1 Iowa, 498; Sage v. Hawley, 16 Conn. 106, 41 Am. Dec. 128; Campbell v. White, 22 Mich. 178; Ford v. Babcock, 2 Sand. (N. Y.) 527; Gilman v. Gutts, 23 N. H. 376; Gruikshanks v. Frean, 3 McCord (S. C.), 84.)</p> <p>Mere temporary absence of a resident debtor from the state is not such an obstruction as will suspend the statute of limitations. (Buckley v. Jenkins, 10 Bush (Ky.), 21; McDowell v. Underhill, 10 Bush (Ky.), 584.)</p> <p>The executor or administrator cannot, as such, maintain a suit in one state by virtue of letters granted in another. (22 Cent. Dig. 2330, and cases cited; Noonan v. Bradley, 76 U. S. 394, 19 L. ed. 757; Johnson v. Powers, 139 U. S. 156, 11 Sup. Ct. 525, 35 L. ed. 112; Fugate v. Moore, 86 Va. 1045, 19 Am. St. 926, 11 S. E. 1063; Louisville etc. B. Go. v. Brantley, 96 Ky. 297, 49 Am. St. 291, and note, 28 S. W. 477. See extended note to Shinn’s Estate,• 45 Am. St. 664.)</p> <p>The decided weight of authority in states having statutes similar to ours is to support the view that the question of residence, abode, or having attachable property does not avoid the tolling of the statute, even where constructive service or substituted service may be had. (Bauserman v. Blunt, 147 U. S. 647, 13 Sup. Ct. 466, 37 L. ed. 316; Chicago By. Co. v. Coolt, 43 Kan. 83, 22 Pac. 988; Lane v. Bank, 6 Kan. 74.)</p> <p>In Texas, it is held that the Texas statute applies to temporary absence, even for a day. (Fisher v. Phelps, 21 Tex. 551; Phillips v. Holman, 26 Tex. 276; Bemis v. Ward, 37 Tex. Civ. App. 481, 84 S. "W. 291. See, also, Bogers v. Hatch, 44 Cal. 280; Parker v. Kelly, 61 Wis. 552, 21 N. W. 539.)</p> <p>The objection that a foreign representative cannot sue is waived by the failure to take it at the proper time and in the proper manner. (18 Cyc. 1243.)</p> <p>If no objection be taken to the legal capacity of a plaintiff to sue either by demurrer or answer, under our code, a defendant waives the same. (Rev. Codes, sec. 4178; Palen v. Bushnell, 51 Hun, 423, 4 N. Y. Supp. 63; 34 Cyc. 439; Valley Lumber Co. v. Breissel, 13 Ida. 662, 13 Ann. Cas. 63, 93 Pac. 765, 15 L. R. A., N. S., 299; Town of Susanville v. Long, 144 Cal. 362, 77 Pac. 987; Burton v. Cochran, 5 Kan. App. 508, 47 Pac. 569; Meyer v. Barth, 97 Wis. 352, 65 Am. St. 124, 72 N. W. 748; Wedel v. Herman, 59 Cal. 507; Owings v. Turner, 48 Or. 462, 87 Pac. 160.)</p> <p>The exact point involved here was considered in Wilson v. Wilson, 26 Or. 251, 38 Pac. 185.</p>

Hou. Fremont Wood, Judge. An action for debt in which notice of garnishment is served.

Hon. Alfred Budge, Judge. An action to quiet title to water. Judgment for plaintiff. The transcript (bill of exceptions) does not contain any exception to the decision of the court upon the ground of the insufficiency of the evidence or upon any other ground. Chap. 119, Sess.

<p>Chattel Mortgage — Claim and Delivery — Authority to Sell Mortgaged Property — Waiver op Mortgage Lien — Contract—Executory.</p> <p>(Syllabus by the court.)</p> <p>1. Where N. and wife gave to F. two chattel mortgages on a growing crop of hay to seeure the payment of two promissory notes, and the mortgagee authorized the mortgagor to sell the mortgaged property and to apply the proceeds on said notes, and a few days after the mortgages became due, 1ST. entered into a contract with S. to sell him the mortgaged hay at eight dollars per ton, whereby the hay was to be baled and placed on board the cars, S. reserving the right to reject any and all of said hay, and payment therefor to be made when hay was accepted, and S. paid $100 on said contract, and thereafter a dispute arose between S. and 1ST. as to which one must pay the expense of baling the hay, and such dispute continued from December 24, 190S, to April 9, 1909, when a written contract was entered into for the sale of said hay, whereby the purchaser was to pay $5.25 per ton on board the cars at Nampa, the purchaser reserving the right to reject any and all of such hay that was not first class, and on the 17th of Mareh, 1909, the mortgagee commenced the foreclosure of said mortgages and the sheriff took possession of said hay, held, that an action in claim and delivery by said purchaser cannot be maintained for the possession of said hay, as under either of said contracts he was not entitled to the possession thereof until the same was delivered on board the ears.</p> <p>2. Under the provisions of sec. 4272, Rev. Codes, where a delivery of personal property is claimed in an action, it must appear that the plaintiff is the owner of the property claimed or is entitled to the possession thereof, and that the property is wrongfully detained by the defendant.</p> <p>3. Where the mortgagee authorizes the mortgagor to sell the mortgaged property, such authority is'not a waiver of the mortgage lien until the mortgagor has made a valid contract for the sale of such hay, and the mortgagee may revoke such authority at any time before a valid sale is made.</p> <p>4. Held, under the facts, that the minds of the purchaser and the mortgagor did not meet on the alleged contract of sale of December 24, 1908, and that the mortgagee revoked such authority to sell prior to the contract of April 9, 1909.</p>

<p>APPEAL from the District Court of the Seventh Judicial District for Washington County. Hon. Ed. L. Bryan, Judge.</p> <p>Action to quiet title to the separate property of the wife. Judgment for defendant.</p> <p>‘ ‘ The presumption arising from a deed to a married woman, strengthened by the fact that the first payment was made with her separate property, and at the time of purchase, when her husband was solvent, they both declared that she was buying it for herself, with her own money, and was going to pay for it, is not rebutted by the fact that the remaining payments thereon were made with money obtained by their joint note secured by their joint mortgage on said land and other separate property of hers, he never having paid anything on the note, but it having been reduced by payments from her separate property, and the balance having been assumed by a purchaser of the property.” (Heney v. Pesoli, 109 Cal. 53, 41 Pac. 819; Corbett v. Sloan, 52 Wash. 1, 99 Pac. 1025; Flournoy v. Flournoy, 86 Cal. 286, 21 Am. St. 39, 24 Pac. 1012; Woods v. Whitney, 42 Cal. 358; Higgins v. Higgins, 46 Cal. 259.)</p> <p>“As a rule, property purchased with borrowed money by either spouse during the existence of the community is community property.” (Northwestern & P. H. Bank v. Bauch, 7 Ida. 152, 61 Pac. 516; Schuyler v. Broughton, 70 Cal. 282, 11 Pac. 719; Yesler v. Hochstettler, 4 Wash. 349, 30 Pac. 398; Maine v. Scholl (Wash.), 57 Pac. 800; Heintz v. Brown, 46 Wash. 387, 123 Am. St. 937, 90 Pac. 211; U. S. Fidelity & Guaranty Co. v. Lee, 58 Wash. 16, 107 Pae. 870; Carlson v. Carlson, 10 Cal. App. 300, 101 Pac. 923.)</p>

Hon. Edward A. Walters, Judge. Action to have determined and decreed certain water rights and the priorities to the use of the waters from the Great Western Beet Sugar Company’s irrigation system. From a judgment and decree certain defendants .appeal. Persons entitled to the use of water may change the place of diversion or place where it was used.

Hon. James G. Gwinn, Judge. Action to quiet title. Judgment in favor of the plaintiffs. Defendants appeal. A purchaser is charged- with notice of every fact shown by the records, and is presumed to know every 'other fact which an examination suggested by the record would have disclosed. (Northwestern National Bank v. Freeman, 171 Ü. S. 620, 19 Sup.

Hon. J. M. Stevens, Judge. An action to recover upon an insurance policy. Judgment for plaintiff. Defendant appeals. There was never any consideration for the agreement, or the issuing of the policy, and the minds of the parties never met. Neither the insurance company nor its agent executed a contract of insurance, or was conscious of the fact that any agreement to that effect had ever been made.

<p>An original application for writ of prohibition.</p> <p>This court has heretofore placed a construction upon chap. 12 of the code and upon see. 3 of art. 8 of the constitution, and has decided that if the issuance of bonds creates an indebtedness or liability, then the city cannot issue them without a vote of the people. (Veatch v. City of Moscow, 18 Ida. 313, 21 Ann. Cas. 1332, 109 Pac. 722.)</p> <p>The law in the case we understand to be that “different acts of the legislature unless repugnant will be construed together in pari materia, as providing two methods of-improvements.” (28 Cyc. L. & Pr., p. 972, and cases cited.)</p> <p>The latter of two acts passed at the same session of the legislature controls when they are inconsistent. (Thomas v. Collins, 58 Mich. 64, 24 N. W. '553; Watson v. Kent, 78 Ala. 602; Hearn v. Brogan, 64 Miss. 334, 1 So. 246; Jeffersonville etc. B. B. Co. v. Dunlap, 112 Ind. 93, 13 N. E. 403.)</p>

<p>Original application for a writ of mandate to compel tbe defendants to issue shares of water stock, the water to be used for the irrigation of certain lands purchased by the plaintiff West from the state, and for other proper and equitable relief.</p> <p>Action in mandate will lie to compel the defendant corporation to issue shares of stock to the plaintiff in accordance with its dedication, its application filed with the state engineer, contract with the state and the right which under our statutes a land owner has to demand the irrigation of his land from the available water supply upon the payment of a reasonable compensation therefor. (Sec. 4977, Rev. Codes; 26 Cyc. 378; Haugen v. Albina Light & Water Co., 21 Or. 411, 28 Pac. 244, 14 L. R. A. 424; Merrill v. South Side Irr. Co., 112 Cal. 426, 44 Pac. 720; Cozzens v. North Fork Ditch Co., 2 Cal. App. 404, 84 Pac. 342; Standard, v. Farmers’ High Line etc. Co., 25 Colo. 202, 54 Pac. 626; Wheeler v. Northern Colo. Irr. Co., 10 Colo. 582, 3 Am. St. 603, 17 Pac. 487; Golden Canal v. Bright, 8 Colo. 144, 6 Pac. 142; McCrary v. Beaudry, 67 Cal. 120, 7 Pac. 264.)</p> <p>Where the right rests upon a public duty of the company, its enforcement may be compelled by mandamus. (Perrine v. San Jacinto etc. Co., 4 Cal. App. 376, 88 Pac. 293; Hunt v. Jones, 149 Cal. 300, 86 Pac. 686; Clyne v. Benicia Water Co., 100 Cal. 310, 34 Pae. 714.)</p> <p>The procedure by writ of mandate is proper, for the reason that the Twin Falls Canal Co. is not a corporation organized for profit, but simply for the purpose of administering the water supply and managing and maintaining the canal system constructed by the Twin Falls Land & Water Co. The officers and directors of this corporation occupy exactly the same relation to the public as the officers and directors of an irrigation district. While organized as a private corporation, the duties and functions are those of a public corporation exclusively. (19 Am. & Eng. Ency. of Law, 2d ed., 883; 5 Thompson, Corporations, sec. 5775.)</p> <p>By paragraph 9 of the contract, one-eightieth of a second-foot of water is allowed to each acre, but that allotment, as shown by the original appropriation, is measured at the point of diversion. Such water, however, as is to be delivered to the user is to be delivered at a point within one-half mile of the place of intended use, but only in such quantities as may be needed and under a rotation system. The rotation system is herein specifically provided for by contract, but if it were not and the water supply was short, it would be the duty of the company to provide such system as a necessary economy in distributing the water. This method has been recognized by the courts. (Wiggins v. Mtiscupiabe L. & W. Co., 113 Cal. 182 (190), 54 Am. St. 337, 45 Pac. 160, 32 L. R. A. 667; Gutierrez v. Wege, 145 Cal. 730, 79 Pac. 449.)</p> <p>The advantage of a rotation system was long ago recognized by this court. (Selphery v. Perrault, 12 Ida. 451, 86 Pac. 417.)</p> <p>'In order that there might be no doubt about the obligation, the system to be used under this project was in specific terms defined as a rotation system. Since the decision in the Helphery ease, the courts and law-writers have recognized the necessity of rotation. (Wiel, Water Rights in Western States, p. 268; Mills’ Irrigation Manual, sec. 87; Shafford v. White Bluffs L. & I. Co., 63 Wash. 10, 114 Pac. 883; Anderson v. Bassman, 140 Fed. 14 (29); Sough v. Porter, 51 Or. 318, 95 Pae. 732 (752), 98 Pac. 1083, 102 Pac. 728.)</p> <p>The rotation system is approved by the highest engineering authority. (Buckley, “The Irrigation Works of India,” p. 282; Brown on Irrigation, p. 214 et seq.; Wilson’s Irrigation Engineering, see. 67.)</p> <p>The company which was directly concerned in this contract had the opportunity for making it or assisting in its drafting, and we can safely presume that it had a part in writing it; it is certain that the settler had none. It seems that there is much reason for insisting that a contract be more strongly interpreted against the party who has written it than against one who has had no part in its formation. (Page on Contracts, p. 1122; 2 Parsons on Contracts, 9th ed., pp. 662, 663, and notes; 9 Cyc. 591.)</p> <p>“The law in force when a contract is made is a part of such contract as fully as if its provisions had been incorporated into such contract.” (2 Page on Contracts, par. 1117; 9 Cyc. 582.)</p> <p>At the time of the making of this agreement, the law of the state recognized that a cubic foot of water, continuous flow, was the standard of water measurement. (5th Sess. Laws 1899, p. 380, sec. 1; McGinness v. Stanfield, 6 Ida. 372, 55 Pac. 1020.)'</p> <p>It was also the law at the time of this contract’s execution, “That any person, association, or corporation which may contract to deliver a certain quantity of water to any party or parties, shall deliver the same to such party or parties, together with a reasonable and necessary allowance for loss by evaporation and seepage.” (Laws 1895, p. 180, sec. 17.)</p> <p>To make a valid, completed appropriation of water, there must not only be a diversion from the natural stream, but an actual application of it to the soil. (Fort M. L. & G. Go. v. South Platte D. Go., 18 Colo. 1, 36 Am. St. 259, 30 Pac. 1032; Farmers’ Ind. Ditch Go. v. Ditch Co., 22 Colo. 513, 55 Am. St. 149, 45 Pac. 444; Low v. Bizor, 25 Or. 551, 37 Pac. 82; Nevada Ditch Go. v. Bennett, 30 Or. 59, 60 Am. St. 777, 45 Pae. 472; Conant v. Jones, 3 Ida. 606, 32 Pac. 250.)</p> <p>Courts will not grant mandamus where rights have already ■been sold or acquired beyond the capacity of the canal or the appropriation. (Gerber v. Nampa Irr. Dist., 16 Ida. 1, 100 Pae. 80.)</p> <p>Where a person acquires a right to a water right by contract, and the obligation rests wholly on contract and involves no legal or official duty made such as a matter of law, and there are no special reasons why the plaintiff hg.s no plain, speedy or adequate remedy in the ordinary course of law, mandamus will not lie. (State v. Washintgon Irr. Go., 41 Wash. 283, 111 Am. St. 1019, 83 Pac. 308; Florida Central B. Co., 31 Fla. 482, 34 Am. St. 30, 13 So. 103, 20 L. R. A. 419; Perrine v. San Jacinto W. Co., 4 Cal. App. 376, 88 Pac. 293.)</p> <p>Before a person can acquire a right under constitution and statutes, it must appear that water is available to supply his demands. No such showing is made in this case. (Rev. Codes, sec. 3289; Bardsly v. Irr. Co., 8 Ida, 155, 67 Pac. 428 (1901); Cozzens v. Ditch Co., 2 Cal. App. 404, 84 Pac. 342; Gerber v. Nampa Irr. Dist., supra.)</p> <p>Mandamus will not lie to compel a corporation or its officers to issue stock or a certificate of stock, or to allow a subscription for shares of its stock, or to transfer on the books, as the remedy at law or in equity is plain, speedy and adequate. (26 Cyc. 347; State v. Carpenter, 51 Ohio St. 83, 46 Am. St. 556, 37 N. E. 261; Kimball v. Water Co., 44 Cal. 173, 13 Am. Rep. 157.)</p> <p>It will not lie to secure a perpetual water right. (Toivnsend Ditch Co. v. Ditch Co., 17 Colo. 143, 29 Pac. 453.)</p>

Hon. John F. MacLane, Judge. Action to recover damages for trespass and destruction of ■property. Judgment for the plaintiffs. As to the offer to show loss of money paid to labor hired to make the proposed improvements on the premises, the exact question is treated in Holden v. Lake Co., 53 N. H. 552. It is the policy of the law to allow damages to be estimated by a jury, even though the exact amount cannot be accurately ascertained.

Hon. Carl. A. Davis, Judge. An action to recover for the purchase price of fruit trees. Judgment for plaintiff. A verdict against the instructions of the court should be set aside. (Estee’s Pleading (4th ed., Boone), sec. 4919, note 427; Farley v. Budd, 14 Iowa, 289.), The jury cannot disregard the instructions of the court even though erroneous.

<p>APPEAL from the District Court of the Fourth Judicial District for Elmore County. Hon. C. O. Stockslager, Judge.</p> <p>Action to enforce a forfeiture and in ease a forfeiture could not be had, to recover damages. Judgment for plaintiff.</p> <p>An option is a unilateral agreement binding one party but not binding the other until its terms are accepted and the other party signifies his intention to be bound thereunder. (Sizer v. Clark, 116 Wis. 534, 93 N. W. 539; Hopwood v. McCausland, 120 Iowa, 218, 94 N. W. 469, 470; Hanly v. Watterson, 39 W. Va. 214, 19 S. E. 536; Litz v. Goosling, 93 Ky. 185, 19 S. W. 527, 21 L. R. A. 127; Ide v. Leiser, 10 Mont. 5, 24 Am. St. 17, 24 Pae. 695; Wescott v. Mitchell, 95 Me. 377, 50 Atl. 21.)</p> <p>There is at least as much to indicate that it is an option as to indicate that it is a contract of purchase and sale. ■ Such being the ease, the contract is so indefinite that its terms cannot be enforced. It contains a patent ambiguity and is void for intrinsic indefiniteness. (4 Wigmore on Evidence, pars. 2404, 1 b, 2407.)</p> <p>Under the decisions of this court a written conveyance would have been necessary to transfer the title of Gard’s water rights. (McGinness v. Stanfield, 6 Ida. 372, 55 Pac. 1020.)</p> <p>No man should be permitted to recover the purchase price for land unless he has either conveyed such land or offered to convey at the time of trial. (2 Sutherland on Damages, 3d ed., c. 13, secs. 567-577.)</p> <p>Gard was not required to tender appellants a deed when he demanded payment of the amount due him in money under Exhibit “A.”° The appellants could not have demanded a deed until they were ready, able and willing to perform by paying the whole of the purchase price. (Donovan v. Sanauer, 32 Utah, 317, 90 Pac. 569.)</p> <p>After the appellants had repudiated the agreement, it was useless to tender a deed, and the law did not require plaintiff to do a useless thing. (Palmer v. Clark, 52 Wash. 345, 100 Pac. 749; 9 Cye. 641, 724.)</p> <p>It was useless to demand a water right because the appellants had repudiated the agreement; also because that portion of the purchase price was not due. (Blair v. Wilkerson Coal & Coke Co., 54 Wash. 334, 103 Pac. 18.)</p> <p>Since it was impossible to say when a delivery of the water right for plaintiff’s land would be due, it was necessary to fix the damages as of the date of the breach of the contract; that is, as of the date of the renunciation and repudiation of the contract, which was in February, 1910. (Kadish v. Young, 108 111. 170, 43 Am. Rep. 584.)</p> <p>Under the agreement, the pleadings and the evidence, it was clearly the duty of Peterson to transfer to Gard all water rights acquired in • his name and the agreement could not have been terminated in any other way. (Caldwell v. Buddy, 2 Ida. 7 (1), 1 Pac. 339; Bowman v. Ayres, 2 Ida. 470 (431), 21 Pac. 405.)</p>

Hon. Edward A. Walters, Judge. Action to recover damages for failure to deliver water. 'Judgment for plaintiff. Corporations which supply water to their own members only are agents merely of the stockholders, and are not liable for damages for a failure to deliver the water to which a shareholder may be entitled.

Hon. E. L. Bryan, Judge. An action to confirm tbe procedure of an irrigation district in authorizing and issuing district bonds. In all cases tried by- the court without a jury, the court should file findings of fact and conclusions of law, upon which to base a judgment, except in cases where the statute otherwise expressly provides.

Hon. John F. MacLane, Judge. An action to foreclose a Mortgage. Judgment for plaintiff. Defendant appeals. No attorneys’ fees can be allowed unless the note or mortgage provides for the allowance of the same, and where the contract expressed in the instrument provides for a specific amount, an amount greater than that specified cannot be allowed, although the same may be inadequate for the services performed.

Hon. Edward A. Walters, Judge. Action to recover damages for failure to comply with a contract for the delivery of water for certain lands. Judgment for plaintiff. The company knew that the land was arid and desert, that it was in its natural state valueless, that water would reclaim it and give it a value. They knew and contemplated that if they complied with their contract, her land and rights would increase in market value.

Hon. Carl A. Davis, Judge. An action to enforce the specific performance of a contract for the sale of real estate. Judgment for the plaintiffs. Where trust duties were imposed upon testamentary trustees who were also devisees and legatees as well as executors under the will, such executors could not act as trustees until there had been a distribution to them of the trust estate as trustees, and they themselves discharged of their executorial duties.

<p>An original action for writ of mandate.</p> <p>“Statutes will be construed with a view to ascertain the intent of the law-making power and to give force and meaning to the language used.” (Idaho Mut. etc. Ins. Co. v. Myer, 10 Ida. 294, 77 Pac. 628; State v. Knowles, 90 Md. 646, 45 Atl. 877, 49 L. K. A. 697.)</p> <p>“If the board should fail to act when it is their duty to act, the courts are open to enforce action.” (Baaf v. State Board, 11 Ida. 718, 84 Pac. 33; Speer v. Stephenson, 16 Ida. 720, 102 Pae. 365; Vadney v. State Board, 19 Ida. 209, 112 Pac. 1046.).</p> <p>“The word ‘may,’ according to its ordinary construction, is permissive, and should receive that interpretation unless such construction would be obviously repugnant to the intention of the legislature, or would lead to some other inconvenience or absurdity.” (5 Words and Phrases, p. 4421.)</p>

Hon. John F. MacLane, Judge. Action to quiet title. Judgment for plaintiffs. Defendants appeal. Notice was served on plaintiffs as early, as 1902 of the adverse claim of defendants and cross-complainant, and this adverse claim and tenure supported by conduct giving it the color of integrity continued for more than five years prior to the initiation of this action and amounted to an ouster. (38 Cyc. 25, par.

<p>APPEAL from the District Court of the Eighth Judicial District for Kootenai county. Hon. John M. Flynn, Judge.</p> <p>Action to quiet title. Judgment for plaintiff. Defendants appeal.</p> <p>The evidence shows that the Apostolic Holiness Church has never been organized. It is not a plaintiff in this proceeding. Plaintiff alleges title in itself in fee simple, but its proof, if it tends to show anything, shows only an equitable title.</p> <p>“The rule is that plaintiff must succeed only on the strength of his own title, and not on the weakness of his adversary.” (32 Cyc. 1329, 1368.)</p> <p>The property in controversy was intended for the respondent, and the lower court committed no error in decreeing title to it. (Preachers’ Aid Soc. v. England, 106 111. 125; In re Gibson’s Estate, 75 Cal. 329, 17 Pac. 138; Devlin on Deeds, par. 183.)</p> <p>Where property is dedicated to a particular church, it becomes a trust for the support of the particular doctrines taught by that church at the time of the dedication of the property, and the members of the church, however small in minority, who adhere to such doctrine, are entitled to the property as against those who departed therefrom. (Isham v. Trustees Presb. Church, 63 How. Pr. (N. Y.) 465; Peace v. First Christian Church, 20 Tex. Civ. App. 85, 48 S. W. 534; First Presb. Church of Sand Cre'ek v. Church of Christ, 219 111. 503, 76 N. E. 703.)</p>

Hon. John M. Flynn, Judge. An action to recover a debt. Motion for nonsuit should be denied unless the evidence wholly fails to show a right of recovery. (Small v. Harrington, 10 Ida. 499, 79 Pac. 461; Idaho Comstock M. & M. Co. v. Lundstrom, 9 Ida. 257, 74 Pac. 975; York v. Pacific & N. Ry.

<p>APPEAL from the District Court of the Eighth Judicial District for Kootenai County. Hon) Robert N. Dunn, Judge.</p> <p>Action to have a judgment set aside on the ground that the trial court had no jurisdiction of the defendant. Judgment for respondent.</p> <p>It is conceded that where parties come into court asking for the vacation of a judgment upon grounds which rendered the said judgment voidable, and in fact upon any grounds except jurisdictional grounds, an allegation alleging meritorious defense must be set forth. This, however, is not the case where the defects in the judgment were jurisdictional. (23 Cyc. 1031; Crippen v. X. Y. Irrigating Go., 32 Colo. 447, 76 Pac. 794; Wilson v. Hawthorne, 14 Colo. 530, 20 Am. St. Rep. 290, 24 Pae. 548; Great Western Min. Go. v. Alston Min. Co., 12 Colo. 46, 13 Am. St. 204, 20 Pac. 771; Keely v. East Side Imp. Co., 16 Colo. App. 365, 65 Pac. 456; Mosher v. McDonald (Iowa), 102 N. W. 837; Arnold v. Haioley, 67 Iowa, 313, 25 N. W. 259; Magin v. Pitts, 43 Minn. 80, 19 Am. St. 216, 44 N. W. 675; Harrison v. Lokey, 26 Tex. Civ. App. 404, 63 S. "W. 1030; Goldie Const. Co. v. Rich Const. Co., 112 Mo. App. 147, 86 S. W. 588.)</p> <p>The appellant having been properly before the court upon a motion to vacate the judgment, the decision of the court upon this motion is final and binding as to' all things which were presented upon that motion, and his decision thereon rendered those matters res judicata. The order made by the court refusing to vacate that judgment was appealable, and until it is appealed from and reversed it stands as a conclusive bar between the parties to this .action adjudging absolutely the rights of the parties herein. (McCord v. McCord, 24 Wash. 529, 64 Pac. 748; Chezum v. Claypool, 22 Wash. 498, 79 Am. St. 955, 61 Pae. 157; Wilson v. Seattle Drydock etc. Co., 26 Wash. 297, 66 Pac. 384; Ward v. Herrick, 57 Ark. 500, 22 S. W. 93; Fuller v. Townsley-Myrick Dry Goods Co., 58 Ark. 314, 24 S. W. 635; Texas-Mexican R. Co. v. Wright, 88 Tex. 346, 31 S. W. 613, 31 L. R. A. 200; Holman v. Stowers Furniture Co. (Tex. Civ. App.), 30 S. W. 1120; Crandale v. Bacon, 20 Wis. 640, 91 Am. Dec. 451; School District v. Rice, 11 Ida. 99, 81 Pac. 155; Benson v. Simmers (Ky.), 53 S. W. 1035.)</p> <p>Want or insufficiency of process is not ground for equitable relief against a judgment at law, unless the party plead a good and valid and meritorious defense to the action. (Combs v. Hamlin Wizard Oil Co., 58 111. App. 123; Gould v. Lough-ran, 19 Neb. 392, 27 N. W. 397; Newman v. Taylor, 69 Miss. 670, 13 So. 831; White v. Crow, 110 U. S. 183, 4 Sup. Ct. 71, 28 L. ed. 113; Eldred v. White, 102 Cal. 600, 36 Pac. 944; Burbridge v. Rauer, 146 Cal. 21, 79 Pac. 526; Brandt v. Little, 47 Wash. 194, 91 Pac. 765, 14 L. R. A., N. S., 213; Gifford v. Morrison, 37 Ohio St. 502, 41 Am. Rep. 537; Far-well Company v. Hilbert, 91 Wis. 437, 65 N. W. 172, 30 L. R. A. 235; 6 Pomeroy’s Eq. Jur., see. 667; Gibbons v. Scott, 15 Cal. 285; Taggart u. Wood, 20 Iowa, 236; Knox County v. Harshman, 133 U. S. 152, 10 Sup. Ct. 257, 33 L. ed. 586; Petallta v. Fitle, 33 Neb. 756, 51 N. W. 131; Sharp v. Schmidt, 62 Tex. 263.)</p>

Hon. John M. Flynn, Judge. Action for libel. Judgment for defendant. Plaintiff, appeals. Since when has it become the law that persons may lawfully band together to injure another in his profession, hold him up to public contempt and ridicule and ruin him in his business? (8 Cye. 651; Wildee v. McKee, 111 Pa. 335, 56 Am.

'APPEAL from the District Court of the Eighth Judicial District for Kootenai County. Hon. R. N. Dunn, Judge. An action to declare a deed a mortgage. Judgment for plaintiff. In order to justify a finding that a deed absolute on its face was given to secure a debt, the proof must clearly show a mutual understanding on the part of the grantor and the grantee that the instrument was executed, delivered and accepted as a mortgage.

Hon. John M. Flynn, Judge. Action on a promissory note. Judgment for defendants. Plaintiff appeals. Those who execute negotiable paper and set it afloat are chargeable with a much higher degree of diligence and caution than is chargeable to those who purchase such paper in the due and regular course of commercial transactions.

<p>APPEAL from the District Court of the Eighth Judicial District for Kootenai County. Hon. Robert N. Dunn, Judge.</p> <p>An action to recover damages against the village of St. Maries. Judgment for plaintiff.</p> <p>The mere granting of the right to the railway company to construct its railway across or along the street did not, and could not, damage any property. Such damage, if it accrued at all, would accrue only when the railway company, acting under such consent, actually occupied the street. (Eachus v. Los Angeles etc. By. Co., 103 Cal. 614, 42 Am. St. 149, 37 Pac. 750; Jones v. Borough of Bangor, 144 Pa. 638, 23 Atl. 252.)</p> <p>Such an injury as alleged in the court’s finding gives no right of action or claim for compensation to a private individual. (Sec. 3665, Rev. Codes; Stufflebeam v. Montgomery, 3 Ida. 20, 26 Pac. 125; Ponischil v. Hoquiam Sash etc. Co., 41 Wash. 303, 83 Pac. 316, and case's cited; Shaubet v. .Si. P. & S. C. By. Co., 21 Minn. 502; Jacksonville etc. By. Co. v. Thompson, 34 Fla. 346,16 So. 282, 26 L. R. A. 410; Guttery v. Glenn, 201 111. 275, 66 N. E. 305; Zettel v. City of West Bend, 79 Wis. 316, 24 Am. St. 715, 48 N. W. 379; Bobinson v. Brown, 182 Mass. 266, 65 N. E. 377; Aldrich v. Wetmore, 52 Minn. 164, 53 N. W. 1072; Abram v. Shallenberger, 41 Cal. 449; Anthony Shoe Co. v. West Jersey By. Co., 57 N. J. Eq. 607, 42 Atl. 279; Innis v. C. B. etc. By. Co., 76 Iowa, 265, 40 N. W. 701, 22 L. R. A. 282; Jones v. St. P. M. & M. By. Co., 16 Wash. 25, 47 Pac. 226.)</p> <p>Damages to business cannot be considered as an element for which compensation is to be allowed for the taking of property under eminent domain proceedings. (Philadelphia Ball Co. v. Philadelphia, 192 Pa. 632, 73 Am. St. 835, 44 Atl. 265, 46 L. R. A. 724, and cases cited; Kansas City etc. B. Co. v. Anderson, 88 Ark. 129, 16 Ann. Cas. 784, 113 S. W. 1030; Cook B. Co. v. Sanitary District, 177 111. 599, 52 N. E. 870; Cobb v. Boston, 109 Mass. 438; Sawyer v. Commonwealth, 182 Mass. 245, 65 N. E. 52, 59 L. R. A. 726; Emery v. Boston Terminal Co., 178 Mass. 172, -86; Am. St. 473, 59 N. E. 763; Banlett v. Concord, 62 N. H. 561; Central Pac. B. B. Co. v. Pearson, 35 Cal. 247; 15 Cyc. 733; 2 Lewis on Eminent Domain, 3d ed., see. 727.)</p> <p>A final judgment cannot be rendered against the village until the cause of action has been established against the primary actors, notwithstanding the village may have defaulted. (Pratt v. So. Canon Supply Co., 47 Colo. 478, 107 Pac. 1105; Prow v. De La Vega, 15 Wall, (ü. S.) 552, 21 L. ed. 60; Anderson v. Gray, 134 111. 550, 23 Am. St. 696, 25 N. E. 843; Murtland v. Floyd, 153 Pa. 99, 25 Atl. 1039; Curtis v. Smith, 42 Iowa, 665; Long v. Serrano, 55 Cal. 20.)</p> <p>The complaint does not state facts sufficient to constitute a cause of action against the village of St. Maries.</p> <p>Upon a writ of error to reverse a judgment by default, such defects in the complaint as could have been taken advantage of before judgment by general demurrer may be brought under review. (McAllister v. Kuhn, 96 U. S. 87, 24 L. ed. 615; Sloan v. Faurot, 11 Ind. 689, 39 N. E. 539; Ryan v. Holliday, 110 Cal. 335, 42 Pae. 891; Leforce v. Haymes, 25 Okl. 190, 105 Pac. 644; Ishmel v. Potts (Tex. Civ. App.), 44 S. W. 615; Schneider v. Mahl, 84 App. Div. 1, 82 N. V. Supp. 27; 6 Ency. of PI. & Pr. 117.)</p> <p>The statutes of Idaho distinctly vest in municipalities power to grant permission for the construction of railroads across or along streets, and do not require as a condition precedent to the exercise of such power that there shall be any appraisal of damages to abutting owners. In granting such permission the municipality acts in a governmental capacity and incurs no liability by such action. (3 Abbott’s Mun. Corp., sees. 953-957; Soulard v. City of St. Louis, 36 Mo. 546; Simpson v. Whatcom, 33 Wash. 392, 99 Am. St. 951, 74 Pac. 577, 63 L. P. A. 815; Stevens v. Muskegon, 111 Mich. 72, 69 N. W. 227, 36 L. R. A. 377; Murtaugh v. City of St. Louis, 44 Mo. 479, and cases cited; Wagner v. City of Portland, 40 Or. 389, 60 Pac. 985, 67 Pac. 300.)</p> <p>The municipal corporation incurs no liability to a property owner, by giving such permission as alleged here. (Sorensen v. Town of Greeley, 10 Colo. 369, 15 Pac. 803; Jordan v. Benwood, 42 W. Va. 312, 57 Am. St. 859, 26 S. E. 266, 36 L. R. A. 519; Terry v. Richmond, 94 Va. 537, 27 S. E. 429, 38 L. R. A. 834; Dillebach v. Xenia, 41 Ohio St. 207; Laager v. City of San Antonio (Tex. Civ. App.), 57 S. W. 61; Frith v. Dubuque, 45 Iowa, 406; Elliott on Roads and Streets, 2d ed., sec. 702; 3 Abbott on Mun. Corp., sec. 841; 2 Dillon on Mun. Corp., secs. 767, 768.)</p> <p>A pleading that is obscure and indefinite is sufficient on demurrer if a cause of action may be inferred from its averments. (Delano v. Bice, 21 Misc. 714, 48 N. Y. Supp. 130.)</p> <p>If there is any special reason why the complaint is ambiguous or unintelligible or uncertain, it is waived by not filing a demurrer on this ground and is cured by a judgment. (AuVbach v. Daliler, 4 Ida. 654, 43 Pac. 322; Palmer v. TJlah é Northern By. Go., 2 Ida. 315 (290), 13 Pac. 425.)</p> <p>The complaint sufficiently alleges the acts of the village. (Collopy v. Oloherty, 95 Ky. 330, 25 S. W. 497; Decker v. McSorley, 111 Wis. 91, 86 N. W. 554.)</p> <p>The village cannot grant a franchise upon the street and then pretend to vacate it — which is shown in this case to have been done absolutely for the benefit of the railroad company— and then escape its liability for the payment of demages by reason thereof. (Ligare v. City of Chicago, 139 111. 46, 32 Am. St. 179, 28 N. E. 934; Schade Brewing Co. v. Superior Court, 62 Wash. 96, 113 Pac. 576.)</p> <p>They can grant them the right only when they use the street in conjunction with all other persons, but never when that use is to be exclusive. (Pennsylvania Co. v. Bond, 202 111. 95, 66 N. E. 941; Lakeshore B. Co. v. Elyria, 69 Ohio St. 414, 69 N. E. 73S; Corcoran v. Chicago etc. By. Co., 149 111. 291, 37 N. E. 68; Delaware etc. By. Co. v. Buffalo, Í58 N. Y. 266, 53 N. E. 44; Daly v. Bailway Co., 80 Ga. 793, 12 Am. St. 286, 7 S. E. 146; Chicago etc. Co. v. People, 222 111. 427, 78 N. E. 790; Locktuood v. Wabash By. Co., 122 Mo. 86, 43 Am. St. 547, 26 S. W. 698, 24 L. R. A. 516.)</p> <p>A railroad company cannot by a franchise secure exclusive use of the street. (Tennessee Brewing Co. v. Union B. Co., 113 Tenn. 53, 85 S. W. 864; City of St. Paul v. Chicago etc. B. Co., 63 Minn. 330, 65 N. W. 649, 34 L. R. A. 184; Village of Wayzata v. Great Northern By. Co., 50 Minn. 438, 52 N. W. 913.)</p> <p>Property owners injured by the vacation of a public street are usually regarded as having a remedy under the eonstitutional provisions relating to the exercise of the power of eminent domain. (28 Cyc. 1073.)</p> <p>A street cannot be vacated without paying the damages occasioned thereby to the abutting property owners. (Biglow v. Ballerino, 111 Cal. 559, 44 Pae. 307; Egerer v. N. Y. C. <& H. B. B. Go., 130 N. Y. 108, 29 N. E. 95, 14 L. R. A. 381; Pearshall v. Supervisors, 74 Mich. 558, 42 N. W. 77, 4 L. R. A. 193; Transylvania University v. Lexington, 3 B. Mon. (Ky.) 25, 38 Am. Dec. 173; Horton v. Williams, 99 Mich. 423, 58 N. W. 369; Johnson v. Lonstorf, 128 Wis. 17, 107 N. W. 459; Heinrich v. City of St. Louis, 125 Mo. 424, 46 Am. St. 490, 28 S. W. 626.)</p>

Hon. Edgar C. Steele, Judge. Prosecution upon a charge of larceny. From a judgment of conviction defendants appeal. The citizenship of the Indian on the reservations is in no wise inconsistent with continued federal jurisdiction over commission of offenses enumerated in the act of 1885. {United States v. Logan, 105 Fed. 240; United, States v. Mullin, 71 Fed. 682; United States v. Bickert, 188 U. S. 432, 23 Sup. Ct. 478, 47 L. ed. 532; McKay v. Kalyton, 204 U. S. 458, 27 Sup.

Hon. Edgar C. Steele, Judge. The defendant was convicted of the crime of selling intoxicating liquors in violation of the statutes of the state and judgment entered against him. Desire to sit as a trial juror may cause a venireman to strain his statements relative to his mental attitude to the defendant, but in the light of the facts in this matter it is very apparent that he must of necessity have had an opinion in the matter that disqualified him.

<p>APPEAL from the District Court of the Eighth Judicial District for Bonner County. Hon. Robert N. Dunn, Judge.</p> <p>Action in replevin. Judgment for defendant and intervenor. Plaintiff appeals.</p>

<p>APPEAL from the District Court of the Second Judicial District for Idaho County. Hon. Edgar C. Steele, Judge.</p> <p>An action to open a default and set aside a judgment.</p> <p>The discretion spoken of in the statute is a legal discretion and not a mere arbitrary one. (Bailey v. Taaffe, 29 Cal. 426.)</p> <p>Defaults are looked upon with disfavor by the courts, and if there is a reasonable doubt as to the sufficiency of the showing of a defendant on motion to open a default, that doubt should be resolved in favor of the application. (Lybecker' v. Murray, 58 Cal. 189; Holzeman v. Henneberry, 11 Ida. 428, 83 Pac. 497.)</p> <p>Where the circumstances lead the court to hesitate as to the merits of the application, an order denying such a motion will be reversed on appeal. (Vermont Marble Go. v. Black (Cal.), 38 Pac. 512; Pearson v. Drobaz Fishing Go., 99 Cal. 425, 34 Pae. 76; Utah Com. Sav. Bank v. Trwrnbo, 17 Utah, 198, 53 Pac. 1033-1036; Watson v. S. F. & H. B. B. Go., 41 Cal. 17.)</p> <p>The same rule applies to divorce eases as to other cases for opening defaults, and the fact that the plaintiff has remarried immediately after the judgment is no ground for refusing to set it aside. (Simpkins v. Simpkins, 14 Mont. 386, 43 Am. St. 641, 36 Pac. 759; Medina v. Medina, 22 Colo. 146, 43 Pac. 1001.)</p> <p>Where there was an agreement between the parties that the case should be continued .... or a promise of plaintiff that she would not press the ease to judgment, in violation of which plaintiff, without notice to defendant, enters a default, or secures a judgment against the latter in his absence, it is good grounds to vacate the judgment. (23 Cye. 920, and authorities cited.)</p> <p>Neglect occasioned by a reliance of defendant upon assurance given him by the plaintiff, or those upon whom he had a right to depend, that it would not be necessary for him to take an active part in the case, or that the suit would not be prosecuted, is sufficient to warrant the court in setting aside the default and judgment. (23 Cyo. 935; Craig v. San Bernardino Inv. Co., 101 Cal. 122, 35 Pac. 558; City Block Go. v. App, 4 Colo. App. 350, 35 Pac. 985; Gadwallader v. McClay, 37 Neb. 359, 40 Am. St. 496, 55 N. W. 1054; Henderson v. Lang, 71 Minn. 468, 74 N. W. 173; Thompson v. Connell, 31 Or. 231, 65 Am. St. 818, 48 Pac. 467.)</p> <p>The application to vacate and set aside the default entered by the clerk and also the judgment entered thereafter was within the sound legal discretion of the trial court, and unless it is shown that there has been an unwarranted exercise of that discretion; this court will not disturb the order and judgment. (Baker v. Knott, 3 Ida. 700, 702, 703, 35 Pac. 176; Western Loam & Trust Co. v. Smith, 12 Ida. 94, 85 Pac. 1084; Pease v. County of Kootenai, 7 Ida. 731, 65 Pae. 432; Holland Bank v. Lieuallen, 6 Ida. 127, 53 Pac. 398; Holzeman v. Henneberry, 11 Ida. 428, 83 Pac. 497; Culver v. Mountain Home Electric Co., 17 Ida. 669, 107 Pac. 65.)</p>

Hon. W. W. Woods, Judge. The respondent was indicted for making a false report in regard to a bank of which he was a director. A demurrer to the indictment was sustained. This appeal is by the state for the purpose of obtaining a construction of sec. 7128, Dev. Codes. The action of the trial court in sustaining the demurrer held error.

Hon. Edgar C. Steele, Judge. Action to quiet title. Judgment for defendant. Plaintiff appeals. The decree of the lower court is erroneous in so far as it is based on the failure of the assessor to prepare and file in his own and the treasurer’s office the records of tax sale certificates provided by secs. 1760 and 1761, Eev.

Hon. Edgar C. Steele, Judge. Action to recover on an open account. Judgment for defendant. Where counsel trespass on the domain of unproved facts instead of keeping within the bounds of legitimate argument, the verdict should be set aside.

<p>APPEAL from the District Court of the Second Judicial District for Nez Perce County. Hon. Edgar S. Steele, Judge.</p> <p>Action to quiet title. Judgment for defendant. Plaintiff appeals.</p>

Hon. Edgar C. Steele, Judge. Action to set aside a deed conveying real estate. Judgment for plaintiff. The facts all tend to show that grantor was in the possession of his faculties and acting as an ordinary rational being. (Delaplain v. Grubb, 44 W. Ya. 612, 67 Am.

Hon. E. N. Dunn, Judge. An action to recover damages for injuries sustained by fire escaping from engines operated by a railway company. Judgment for plaintiff.

Hon. E. C. Steele, Judge. Action to determine the legality of School District No. 33, created out of Independent School District No. 2. The board of county commissioners has no jurisdiction to change the boundaries of an independent school district. (Bowen v. King, 34 Vt. 156; Whitmire v. State ex rel. Vaughan (Tes. Civ.

<p>APPEAL from the District Court of the Second Judicial District, in and for Nez Perce County. Hon. Edgar C. Steele, Judge.</p> <p>Action by plaintiff to quiet his title to certain real estate. Judgment for plaintiff and defendants appeal.</p> <p>The probate courts of this state have exclusive jurisdiction of the settlement of estates of deceased persons (Abrams v. White, 11 Ida. 497, 83 Pac. 602; In re Doane’s Estate, 64 Wash. 303, 116 Pac. 847), and their orders and judgments in regard to those matters cannot be attacked collaterally. (Clark v. Bossier, 10 Ida. 348, 3 Ann. Cas. 231, 78 Pac. 358; O’Neil v. Potvin, 13 Ida. 721, 93 Pac. 20, 257.)</p>

Hon. E. C. Steele, Judge. Action to quiet title. Judgment for appellant. Respondent received the register’s final certificate and the receiver’s final receipt for said land on Oct. 25, 1905. Therefore, said land was subject to taxation for all purposes during 1906 and 1907. (See. 1643, Rev. Codes; Witherspoon v. Duncan, 71 U. S. (4 Wall.) 210, 18 L. ed. 339; People ex tel.

Hon. E. C. Steele, Judge. An application to open a default. Judgment for applicant. A default to be set aside must be entered without fault on the part of the defendant or his attorney. (23 Cyc. 939; Savage v. Dinkier, 12 Old. 463, 72 Pac. 366; United States v. Rio Grande etc. Go., 13 N. M. 386, 85 Pac. 393; Smith v. Trunstead, 56 Cal. 175; 6 Eney. of PI. & Pr. 166; Wagoner National Bank v. Welch, 7 Ind.

Hon. Carl A. Davis, Judge. Action by plaintiff to enjoin and restrain the defendants from holding a city election. Judgment for the defendants and plaintiff appealed. Sec. 13, art. 3 of the constitution means that each house must keep a full and complete, not a partial, journal of its proceedings.