Volume 22 — Idaho Reports

<p>Action on Promissory Note — Purchaser—Consideration—Verdict— Sufficiency of Evidence to Sustain.</p> <p>(Syllabus by tbe court.)</p> <p>1. Held, that the evidence is amply sufficient to support the verdict.</p>

'APPEAL from the District Court of the First Judicial District for Shoshone County. Hon. W. W. Woods, Judge. Action of plaintiffs for damages caused by flooding and submerging their lands. Judgment for plaintiffs and defendant appealed. The laws of nature cannot be turned aside by the story of any witness or number of them.

<p>Original action for a writ of prohibition.</p> <p>A nonresident foreigner cannot take by succession under the provisions of sec. 5715, unless he appears and claims succession within five years after the death of a decedent. (State v. Stevenson, 6 Ida. 367, 55 Pac. 886. See, also, State v. Lyon, 67 Cal. 380, 7 Pac. 763, construing sec. 1404 of the Civil Code of California, which is just the same as our section 5715.)</p> <p>Appearance in the federal court without jurisdiction never stops the running of the statutes of limitation. (Finney v. American Bonding Go., 13 Ida. 534, 90 Pac. 859, 91 Pac. 318; Mills v. American Bonding Co., 13 Ida. 556, 91 Pae. 381; Morbech v. Bradforct-Kennedy Go., 19 Ida. 83, 113 Pac. 89.)</p> <p>Neither the petition nor amended petition, when tested by the rule of this court in the case of Abrams v. White, 11 Ida. .497 (83 Pae. 602), as announced at pages 502 and 503, contain any allegations or statements sufficient to constitute fraud.</p> <p>In the absence of any affidavit and showing of merits and mistake, inadvertence, surprise or excusable neglect, the judgment of dismissal should not and could not be set aside. (jEolzeman v. Henneberry, 11 Ida. 428, 83 Pac. 497.)</p> <p>“No statutory machinery is provided in accordance with which the alien must appear and give notice of his claim. The provisions of sec. 672 of the Civil Code, requiring the alien to ‘appear and claim the property,’ relates to an appearance and claim to be proved by acts within the state, indicating that the alien asserts a right to it, or the provisions mean nothing.” (State v. Smith, Jr., 70 Cal. 153, 12 Pae. 121; Billings v. Hauver, 65 Cal. 593, 4 Pac. 639.)</p> <p>As this construction had been placed upon this statute by the supreme court of California prior to the adoption of said statute by our legislature, under the rule adopted by this court in the case of Stein v. Morrison, 9 Ida. 426, 75 Pae. 246, to the effect that when a statutory provision is adopted from another state where the courts of that state have placed a construction upon the language of such statute, it is to be presumed that it was taken in view of such judicial interpretation and for the purpose of adopting the language as the same had been interpreted and construed by the courts of the state from which it was taken. The decision of the supreme court of California and its interpretation of the phrase “appear and claim” is binding upon this court.</p> <p>A motion to set aside a judgment on account of fraud need not set out an affidavit of merit. (Crescent Canal Co. v. Montgomery, 124 Cal. 134, 56 Pae. 797.)</p>

<p>.Validity op Bond Issue — Ordinary and Necessary Expense — Restoration and Repair of Municipal Waterworks — Bond Issue by Order of City Council.</p> <p>(Syllabus by tbe court.)</p> <p>1. Under tbe provisions of see. 2270 of the Rev. Codes, a city council is authorized by a two-thirds vote to incur an indebtedness which will exceed the annual appropriation made for current and necessary expenses, where such expenditure is rendered necessary by casualty or accident in order to repair any municipal improvement or property.</p> <p>2. Where a city owns a waterworks system or fire extinguishing appliances and apparatus and a fire occurs, and in attempting to control and extinguish the same the waterworks system and other property of the city is so damaged, impaired or destroyed as to render it of no further practical value for fire protection, the city council has authority under the provisions of sée. 2270, Rev. Codes, to issue warrants for the repair and improvement thereof, where tlie same is done in good faith for an actual necessity wMeh confronts the municipality.</p> <p>3. The proviso to sec. 3 of art. 8 of the constitution “That this section shall not he construed to apply to the ordinary and necessary expenses authorized by the general laws of the state” may properly be construed by the legislature to authorize' the law-making body to include within the term “ordinary and necessary expenses” any expenditure rendered necessary by casualty or accident which has impaired or injured municipal property that is necessary for the protection of the city against fires, or for the health and welfare of the city.</p> <p>4. Under the provisions of subdivisions 4 and 8 of see. 2315, Eev. Codes, a city council has the right and authority to authorize and issue municipal coupon bonds for the funding or refunding of outstanding warrants and indebtedness without submitting the question to a vote of the people, where the funding or refunding of such outstanding indebtedness will be to the profit and benefit of the city.</p>

<p>APPEAL from tbe District Court of tbe Fifth Judicial District for Bannock County. Hon. Alfred Budge, Judge.</p> <p>Action for specific performance. Judgment for plaintiff and defendant appealed.</p> <p>Tbis court bas already passed upon a contract, not only in substance, but word for word, as tbe contract in question, in Smith v. Krall, 9 Ida. 541, 75 Pac. 263, in which the court unequivocally holds that time is the essence of the contract; also Machold v. Farnan, 14 Ida. 258, 94 Pac. 170.</p> <p>The supreme court of Colorado has decided a case on all-fours with the case at bar, assuming all of the testimony of the plaintiff to be true. (McKenzie v. Murpjiy, 31 Colo. 274, 72 Pac. 1075.)</p> <p>Time may be of the essence of the contract in many cases, but the facts may be such that the courts will refuse to strictly construe the contracts. (Durant v. Comegys, 3 Ida. 204, 28 Pac. 425.)</p> <p>In order to take advantage of any laches on the part of the vendee, it was the duty of the vendor to declare a forfeiture, and this he never did. {Rourke v. McLaughlin, 38 Cal. 196; Sigler v. Wick, 45 Iowa, 690; Wesiervelt v. Jluis-kamp, 101 Iowa, 196, 70 N. W. 125; 29 Am. & Eng. Ency. of Haw, 683-685, and cases cited.)’</p> <p>Where time of performance is of the essence of the contract, a party who does any act inconsistent with the supposition that he continues to hold the other party to this part of the agreement will be taken to have waived it altogether. (29 Am. & Eng. Ency. of Law, 1104, and cases cited in note 1.)</p>

<p>APPEAL from tbe District Court of tbe Fourth Judicial District for Blaine County. Hon. Edward A. Walters, Judge.</p> <p>An action to foreclose a mortgage.</p> <p>A cause of action against an executor or administrator in bis official capacity cannot be joined witb a cause of action upon wbicb be is personally liable. (Christian v. Morris, 50 Ala. 585; McDaniel v. Parks, 19 Ark. 671; Schlicker v. Hemen-way, 110 Cal. 579, 52 Am. St. 116, 42 Pac. 1063; Flinn v. Gouley, 139 Cal. 623, 73 Pae. 542; Sterrett v. Barker, 119 Cal. 492, 51 Pac. 695.)</p> <p>There must be a finding upon every material issue whether raised by tbe complaint or upon an affirmative defense alleged in tbe answer. (Wood v. Broderson, 12 Ida. 190, 85 Pac. 490; 2 Spelling,'App. Practice, sec. 591; Vhrlaub v. McMahon, 15 Ida. 346, 97 Pac. 784.)</p> <p>This is not an action to quiet title, but to foreclose a mortgage. We must not be compelled to litigate tbe claims of the heirs of Eudora Sbaugbnessy in this action. (Wiltsie, Mortgage Foreclosure, p. 502.)</p> <p>Plaintiff alleged that certain persons, whose names appeared in a mortgage as mortgagors, executed that mortgage. Plaintiff did not allege that they executed the mortgage with a pen, or by making their mark, or by employing someone else to write their names, or by the agency of an attorney in fact. Any such allegation would have been Superfluous, and the manner of execution, in so far as it might be material at all, was a matter of evidence to be adduced in the proof of the ultimate fact of the execution of the mortgage by the mortgagors. (31 Cyc. 1625.)</p> <p>The court found that the defendants executed the mortgage at the time, for the purpose and in the manner alleged in the complaint. This was a finding of the ultimate fact in issue. {Later v. Haywood, 14 Ida. 45, 93 Pac. 374; Adams v. Crawford, 116 Cal. 495, 48 Pac. 488; 38 Cyc. 1966; Moneta Canning & Preserving Co. v. Martin (Cal.), 88 Pae. 369.)</p>

<p>Sewer District — Organization of — Ordinance of Intention — Description of Improvement — Reference to Plans and Specifications — Cost of Construction — Preliminary Estimate of — De Paoto Officer — Presumption — Sewer-pipes — Connection With by Lot Owner — Two Noncontiguous Tracts in One District — Equitable Assessments — Evidence — Sufficiency of — Contract — Confirmation of Assessment.</p> <p>(Syllabus by the court.)</p> <p>1. Where a city ordinance that declares the intention of the city council to organize a sewer district and to construct a sewer system provides as follows: “The character of the proposed lateral sewer system shall be that of gravity according to the plans and specifications now in the office of the city engineer of the city of Caldwell, Idaho,” held, a sufficient compliance with the provisions of subd. 3 of sec. 2353, Eev. Codes, which require that the ordinance of intention shall state “the general character of the proposed sewerage system and sewerage disposal works,” and that the reference in the ordinance to the plans and specifications is sufficient to give notice to all parties interested of the character of the proposed system.</p> <p>2. Under the evidence in this case, held, that the plans and specifications of said sewer system had been properly prepared and were op file in the office of the city engineer at the time fixed for the hearing of protests against the organization of such district, and that ■the engineer who prepared said plans and specifications and superintended the construction of said system was at least a de facto city ¡engineer and performed the duties of city engineer.</p> <p>3. The evidence held sufficient to sustain the findings of the court that proper estimates, plans and specifications were made.</p> <p>4. The presumption is that the officers of a city act according to law in matters pertaining to their office until the contrary is shown.</p> <p>5. A gross estimate of the cost of the construction of a sewer system inserted in the ordinance of intention is sufficient.</p> <p>6. The burden of proof is on the party who attacks an assessment, and it will be presumed, in the absence of evidence to the contrary, that the official acts connected therewith were performed regularly and in substantial compliance with the provisions of the statute.</p> <p>7. Where it is ascertained that under the provisions of an ordinance proper connection cannot be made by lot owners with the sewer system, such ordinance may be amended or changed so as to provide a reasonable method for such connection.</p> <p>8-. A single ordinance may provide for more than one improvement, and a single sewer district may consist of two noncontiguous tracts of land, and as it does not appear from the reeord that appellant was injured by having these tracts included in one sewer district, he has no cause of complaint.</p> <p>9. Sec. 2364, Eev. Codes, provides, among other things, that in event the assessment or assessment-rolls therein provided for shall not be confirmed, then the contract for the construction of sewers shall be of no force or effect. Under that provision the contractor took his chances on proceeding to construct sewers prior to the confirmation of such assessment; but when the council did confirm the assessment, such contract was in full force and effect.</p>

Hon. John M. Flynn, Judge. Action to recover from a railroad company for personal injuries. Judgment for plaintiff. The servants of the appellant in charge of switch engine 22, with that engine moving slowly as it was, were not bound to assume that an employee familiar as Neil was with the manner of doing business there, would be indifferent to the going and coming of cars.

<p>APPEAL from the District Court of the Fourth Judicial District for Lincoln County. Hon. Edward A. Walters, Judge.</p> <p>An application for a writ of mandate.</p> <p>“Two different bodies cannot exercise the same power in the same jurisdiction at the same time, and this right must be held exclusive.” (People v. Parks, 58 Cal. 624; Martin v. Aston, 60 Cal. 68.)</p> <p>Can anyone believe, by reading the title of the act, that it would provide for reorganization, or the manner in which the court should construe the act, or for a penal offense, or that it would define the legal entity of an organization organized thereunder ? (Northwestern Mfg. Go. v. Chambers, 58 Mich.</p> <p>881, 55 Am. Rep. 693, 25 N. W. 373; Turner v. Coffin, 9 Ida. 338, 74 Pac. 962; State v. Nomland, 3 N. D. 427, 44 Am. St. 572, 57 N. W. 85; Callaghan v. CMpman, 59 Mich. 610, 26 N. W. 808; People v. Commrs. of Highways, 53 Barb. 73; Astor v. Neto York Arcade Bys. Co., 113 N. Y. 93, 20 N. E. 594, 2 L. R. A. 789; Diana Shooting Club v. Lamoreux, 114 Wis. 44, 91 Am. St. 898, 89 N. W. 880 ; Spratley v. Commrs., 56 Kan. 272, 43 Pac. 232; Colquitt v. Simpson, 72 Ga. 501.)</p> <p>The legislature has no constitutional power to delegate its authority, except to municipal corporations as provided in sec. 6, art. 7, and to county commissioners, as provided in sec. 15 of said article of the constitution. (Vallelly v. Board of Park Commrs., 16 N. D. 25, 111 N. W. 615, 15 L. R. A., N. S., 61; Cooley, Taxation, 3d ed., p. 99; State ex rel. Howe v. Des Moines, 103 Iowa, 76, 64 Am. St. 157, 72 N. W. 639, 39 L. R. A. 285; Harward v. St. Clair etc. Co., 51 Ill. 130; Parks v. Wyandotte, 61 Fed. 437; People ex rel. Commrs. v. Detroit, 28 Mich. 228, 15 Am. Rep. 202; Cooley’s Const. Lim., p. 163; Dillon, Mun. Corp., sec. 746, and cases cited; Gray, Lim. of Taxing Power, sec. 552; Hinze. v. People, 92 Ill. 406; People v. Parks, supra; Bernard’s Twp. v. Allen, 61 N. J. L. 228, 39 Atl. 716.)</p> <p>“The courts must give a liberal construction to the language used by the legislature in framing the title to any given act which it may pass.” (Turner v. Coffin, 9 Ida. 338, 74 Pac. 962.)</p> <p>“The generality of a title to a bill is no objection to it so long as it is not made a cover to legislation incongruous in itself.” (Pioneer Irr. Dist. v. Bradley, 8 Ida. 310, 101 Am. St. 201, 68 Pac. 295; State v. Dolan, 13 Ida. 693, 92 Pae. 995, 14 L. R. A., N. S., 1259; State v. Doherty, 3 Ida. 384, 29 Pae. 855; Kessler v. Fritchman, 21 Ida. 30, 119 Pac. 692.)</p> <p>It is not essential that a method of dissolution be provided in the act under which the corporation is formed. (28 Cyc. 250.)</p> <p>• The legislature is not only permitted to delegate the power of local taxation, but is prohibited from imposing taxes for local purposes by see. 6, art. 7, of the constitution. (Fenton v. Board, 20 Ida. 392, 119 Pac. 41.)</p> <p>Irrespective of the validity of the appointment of Fred W. Gooding as highway district commissioner, he is nevertheless a de facto officer, and the validity of the bonds issued by the district does not depend upon the legality of his appointment. (29 Cyc. 1389; Reclamation Dist. v. Sherman, 11 Cal. App. 399, 105 Pae. 277.)</p> <p>The lack of eligibility in one member of a board does not affect the validity of any step taken by the board wherein a majority concurred. (People v. Hecht, 105 Cal. 621, 45 Am. St. 96, 38 Pae. 941, 27 L. R. A. 203.)</p> <p>A highway district may properly include within its borders a town or village. (Board of Directors v. Tregea, 88 Cal. 351, 26 Pac. 237; Nampa Irr. Dist. v. Brose, 11 Ida. 474, 83 Pae. 499.)</p>

<p>APPEAL from tbe District Court of the Fourth Judicial District for Liucolu County. Hon. Edward A. Walters, J udge.</p> <p>A proceeding brought in the name of the state to remove the defendant from the office of highway commissioner of Shoshone Highway District No. 2. The trial court sustained a general demurrer to the complaint.</p> <p>The function of creating an office is one purely for the legislature, and cannot be delegated, and any act of the legislature which would seek to delegate to any board or person the power to create an office would be unconstitutional.</p> <p>An office in legal contemplation is an entity, and may exist in fact although it be without an incumbent. (People v. Stratton, 28 Cal. 382; State v. Bose, 74 Kan. 262, 10 Ann. Cas. 927, 86 Pac. 296, 6 L. R. A., N. S., 843; Heard v. Elliott, 116 Tenn. 150, 92 S. W. 764.)</p> <p>It has been held by this court that a proceeding in quo warranto is a gwsi-criminal proceeding. {People v. Green, 1 Ida. 235.)</p> <p>“The disqualifications provided by the legislature are strictly construed, and will not be extended to cases not clearly within their scope.” (29 Cyc. 1380, 1381.)</p> <p>Many states have provisions similar to our sec. 251, but so far as we have noted, these provisions are always found in their constitutions — not in their statutes. The parent of all these statutory disqualifications is sec. 1, art. 6, clause 2, of the federal constitution. (Story, Const. U. S., sec. 867; Thorpe, History of Constitution, 508, 509.)</p> <p>The highway district law does not create nor purport to create any highway districts. The word ‘ ‘ create ’ ’ has a well-defined meaning. {Both v. State, 158 Ind. 242, 63 N. E. 460.)</p> <p>■ There can be no such office as highway commissioner until there is a highway district. If the people create the highway district, they thereby bring the office into existence, they create the office. Then, and not till then, does the governor have the power of appointment.</p> <p>The creation of a municipality ipso facto creates the offices of such municipality. (Brady v. West, 50 Miss. 68; State ex rel. Atty. Gen. v. Porter, 1 Ala. 688.)</p>

<p>APPEAL from the District Court of the Seventh Judicial District for Canyon County. Hon. Ed. L. Bryan, Judge.</p> <p>Action to cancel deed of conveyance. Judgment for defendant. Plaintiff appealed.</p> <p>Where a father conveys property to his son, or other relative, on condition of his support for life, and the support thereof is rendered impossible of realization, equity will restore the father to his position as owner of the property, and cancel all records that might otherwise be used to his prejudice, on the theory that they are void, and in order to clear away those things which, though void in fact, might, either presently or in the future, be used by the holders thereof wrongfully. (Glocke v. Glocke, 113 Wis. 303, 89 N. W. 118, 57 L. R. A. 458; Lewis v. Wilcox, 131 Iowa, 268, 108 N. W. 536; Larkin v. Mullen, 128 Cal. 449, 60 Pae. 1091; Richter v. Richter, 111 Ind. 456, 12 N. E. 698.)</p> <p>The limited estate which was intended to have been conveyed is now supported by no consideration. And the absolute estate which was mistakenly conveyed was at all times without any consideration whatever. Transactions between parent and child are always closely investigated in equity. (2 Pomeroy’s Eq. Juris., see. 928; Allore v. Jewell, 94 U. S. 506, 24 L. ed. 260: Spargur v. Hall 62 Iowa, 498, 17 N. W. 743; Bispham’s Prin. Eq., sec. 234; Thorn v. Thorn, 51 Mich. 167, 16 N. W. 324.)</p> <p>Under circumstances similar, but much less impelling, courts have invariably granted relief. (Griffith v. Godey, 113 U. S. 89, 5 Sup. Ct. 383, 28 L. ed. 934; Jacox v. Jacox, 40 Mich. 473, 29 Am. Rep. 547; Frazier v. Miller, 16 Ill. 48 ; Oard v. Oard, 59 Ill. 46; Sands v. Sands, 112 Ill. 225; Odell v. Moss, 130 Cal. 352, 62 Pae. 555; Stringfellow v. Hanson, 25 Utah, 480, 71 Pac. 1052.)</p> <p>The relief prayed for in the complaint is the cancellation of the deed, and from the facts herein stated there is absolutely nothing in this suit that would warrant a court of equity in granting such relief. (Turner v. Gumbert, 19 Ida. 339, 114 Pae. 33; Kelly v. Perrault, 5 Ida. 221, 48 Pac. 45; Curtis v. Kirkpatrick, 9 Ida. 629; 13 Cyc. 574; County of Ada v. Bullen Bridge Go., 5 Ida. 818, 75 Pac. 760; Miller v. Kettenbach, 18 Ida. 253, 138 Am. St. 192, 109 Pae. 505.)</p> <p>A court of equity will not interfere to decree the cancellation of a written instrument unless some special circumstance is shown to exist establishing the necessity of a resort to equity to prevent irreparable injury. (San Diego Flume Co. v. Souther, 90 Fed. 166, 32 C. C. A. 548, 104 Fed. 706, 44 C. C. A. 143; Insurance Co. v. Beals, 79 N. T. 202; Byerson v. Willis, 81 N. T. 277; Johnson v. Murphy, 60 Ala. 288; Kimball v. West, 15 Wall. 377, 21 L. ed. 95; Atlantic Delaine Co. v. James, 94 U. S. 207, 24 L. ed. 112.)</p> <p>The deed should be reformed so as to express the agreement and the intention of the parties, and a court of equity has jurisdiction to so decree in this suit, as it has jurisdiction of the subject matter and of the parties, and should finally determine the controversy in order to avoid the possibility of future litigation as well as the expense of the administration of Mrs. Mangin’s estate.' (Pence v. Sweeney, 3 Ida. 181, 28 Pae. 413; Burke v. Wells-Fargo Co., 7 Ida. 42, 60 Pac. 87; Flood v. Templeton, 152 Cal. 148, 92 Pac. 78, 13 L. R. A., N. S., 579; Smith Canal 'Go. v. Colorado etc. Co., 34 Colo. 485, 82 Pac. 943, 3 L. E. A., N. S., 1148.)</p> <p>'Although the pleadings make no reference to any mistake, a court of equity would be justified in decreeing a reformation of the deed to accord with the intentions of the parties, and thereby settle this controversy finally. (Christensen v. Hollingsworth, 6 Ida. 87, 96 Am. St. 256, 53 Pac. 211; Kemper etc. Dry Goods Co. v. Kermard Grocery Co., 68 Mo. 290; 13 Cyc. 572.)</p>

Hon. Edward A. Walters, Judge. Action to condemn a right of way for a ditch and powerhouse and other buildings to be used for power purposes. An appropriation of water upon private land cannot be initiated by trespass, and any such attempted appropriation is void as against the land owner whose land is trespassed upon. (Wiel on Water Rights, 3d ed., see. 221, and cases cited ,• Prentice v. McKay, 38 Mont. 114, 98 Pae. 1081; Smith v. Denniff, 24 Mont. 20, 81 Am.

Hon. Edward A. Walters, Judge. Proceeding for the allowance of a claim against the receiver of the estate of an insolvent corporation. From a judgment in favor of the claimant the creditors appeal. Subrogation is a creature of equity and will not be permitted where it will work injustice to the rights of those having equal or superior rights.

<p>Forgery — Uttering Instrument Bearing Forged Indorsement — Presumptions Arising prom Uttering Instrument.</p> <p>(Syllabus by the eourt.)</p> <p>1. Evidence examined in this ease and held that it contains no substantial conflict, and. that there is no direct or substantial evidence to support a judgment of conviction against the defendant.</p> <p>2. Proof that a defendant charged with forgery had in his possession and passed a check bearing the forged indorsement of the name of the payee of the check does not constitute prima facie proof or a prima facie presumption that the defendant made the forged indorsement.</p> <p>3. While the uttering of an instrument containing a forged in-dorsement does not raise a prima fade presumption that the person uttering the same forged the indorsement, that fact constitutes a circumstance against the defendant which the jury have a right to consider in connection with other facts and circumstances of the case in arriving at their verdict.</p> <p>4. Evidence in this case examined and held, that it is in no way inconsistent with the innocence of the defendant, and that it all may be true and still it does not establish the guilt of the defendant.</p>

Hon. Ed. L. Bryan, Judge. An action to recover a debt upon a written contract of employment to construct a building. If time is to be of the essence of the contract, it must appear that the parties made it essential to the contract or it will not be so regarded.

<p>APPEAL from the District Court of the Sixth Judicial District, for the County of Lemhi. Hon. James M. Stevens, Judge.</p> <p>Action by plaintiff to procure a writ of mandate. Writ granted. Defendants appeal.</p> <p>The courts are now generally recognizing the fact that no person has an inherent right to engage in the liquor traffic. (Darby v. Pence, Mayor, 17 Ida. 697, 107 Pac. 484, 27 L. R. A., N. S., 1194; Crowley v. Christensen, 137 U. S. 86, 11 Sup. Ct. 13, 34 L. ed. 620; Smyth v. Co. Commrs. (Utah), 112 Pac. 809, 32 L. R. A., N. S., 393; State ex rel. Noble v. Cheyenne, 7 Wyo. 417, 52 Pac. 975, 40 L. R. A. 710; Sherlock v. Stuart, 96 Mich. 193, 55 N. W. 845, 21 L. R. A. 580; Black Int. Liquors, sec. 48.)</p> <p>There is nothing contained in the statutes of Idaho making it obligatory on the part of the county commissioners to grant a license to anybody, under any condition. Sec. 1507, Rev. Codes, provides that an application for a license “may” be granted or rejected, and the very use of this word implies discretion. The word “may” is seldom or never used in a mandatory sense, except where the public is interested, and the public or third persons have a claim, de jure, to have the power exercised. (Malcolm v. Rodgers, 5 Cow. (N. T.) 188-193, 15 Am. Dec. 466, and note; People ex rel. Brokaw v. Commissioners, 130 Ill. 482, 22 N. E. 596, 6 L. R. A. 161; Banse-mer v. Mace, 18 Ind. 27, 81 Am. Dec. 344; Newburgh Turnpike Road v. Miller, 5 Johns. Ch. (N. Y.) 101, 9 Am. Dec. 274, 279; State ex rel. Eyger v. Holt County Justices, 39 Mo. 521; State ex rel. Gazzalo v. Hudson, 13 Mo. App. 61; Black, Int. Liquors, see. 170.</p> <p>The claim of a third person must be based upon an existing right, in order for the courts to construe the word “may” in a mandatory sense. The respondent, Anderson, had no existing right which the courts were bound to recognize. (Darby v. Pence, Mayor, supra.)</p> <p>The use of the word “may,” in our statute, necessarily implies discretion and is used in its ordinary signification in contradistinction to the words “must” and “shall.” {Ex parte Wittington, 34 Ark. 394; Perkins v. Loux, 14 Ida. 607,-95 Pac. 694.)</p> <p>The courts are unanimous in holding that before any power granted to a municipality- shall be exclusive, it must be conferred by positive and certain enactment, and not otherwise. (:Territory v. Webster, 5 Dak. 351, 40 N. W. 535; Licks v. State, 42 Miss. 316; Black, Intoxicating Liquors, sec. 226.)</p> <p>The purpose and effect of the proviso in sec. 1508, Rev. Codes, was not to limit the discretionary power of the commissioners as to granting licenses, but was in the nature of a qualification or limitation of their powers, with reference to certain localities, in the sense that it obliged the board to take certain action in relation thereto, which it was not obliged to take with reference to licenses granted in incorporated municipalities. (Propst v. So. By. Co., 139 N. C. 397, 51 S. E. 920; Wartensleben v. Haithcock, 80 Ala. 565, 1 So. 38; 36 Cyc. 1161-1163.)</p> <p>The legislature has set the limits of the discretion of the county board. It has said they may use this discretion outside of incorporated cities. This language implies the negative of the proposition, namely, that they shall not have discretion within incorporated cities. This language is exclusive. {Jack v. Village of Grangeville, 9 Ida. 291, 74 Pac. 969; People v. Goldman, 1 Ida. 714; Perkins v. Thornburgh, 10 Cal. 189; Smith v. Randall, 6 Cal. 47, 65 Am. Dec. 475; State v. Gilman, 33 W. Va. 146, 10 S. E. 283, 6 L. R. A. 847; 36 Cyc. 1122, and cases cited; 19 Cyc. 23, and cases cited.)</p> <p>If it be contended that the use of the word “may” in sec. 1507 is a grant of discretionary power, then the office of the proviso, as contained in sec. 1508, is to limit, restrict or restrain the operation of what precedes it. (36 Cyc. 1161, 1162.)</p> <p>And the word “may” should be construed to mean “must,” in its operation, with reference to places outside of incorporated cities. (McCleod v. Scott, 21 Or. 94, 29 Pac. 1, 26 Pac. 1061; Tradnor v. County of Multnomah, 2' Or. 214; Eohn v. Hinshaw, 17 Or. 308, 20 Pac. 629 ■ Smith v. King, 14 Or. 10, 12 Pac. 8; ease note State v. Henry, 87 Miss. 125, 40 So. 152, 5 L. B. A., N. S., 340.)</p> <p>It would be absurd for the legislature to give a certain discretion or jurisdiction to two separate boards acting independently of each other, where the will of one may defeat the will of the other and nullify the whole legislative plan, or even a part of the plan.</p> <p>The supreme court of West Virginia holds that the giving of discretion to the city board by the legislature is exclusive and divests the county board of discretion, although the latter board has jurisdiction of the subject under the constitution. (’Wilson v. Boss, 40 W. Va. 278, 2.1 S. E. 868; Ward v. County Courts, 51 W. Va. 102, 41 S. E. 154; State v. Harden, 62 W. Va. 319, 58 S. E. 715, 60 S. E. 394; Kelley v. Bowman, 68 W. Va. 49-54, 69 S. E. 456.)</p>

<p>APPEAL from the District Court of the Sixth Judicial District, for Lemhi County. Hon. James M. Stevens, Judge.</p> <p>Application to board of commissioners of Lemhi county for a liquor license. Application denied and appeal taken to the district court where license was ordered issued. Appeal from order and judgment to this court.</p> <p>See authorities cited by same counsel in Anderson and City of Salmon v. Commissioners, ante, p. 190, 125 Pac. 188.</p>

Hon. James M. Stevens, Judge. Appeal from the order of the board of county commissioners refusing to grant a liquor license. From the judgment of the district court reversing the action of the board of commissioners, an appeal is prosecuted to this court. The late case of Darby v. Pence, 17 Ida. 697, 107 Pac. 484, 27 L. E. A., N. S., 1194, is in point in this matter.

'APPEAL from tbe District Court of tbe Fourth Judicial District for tbe Couuty of Blaiue. Hon. Edward A. Walters, Judge. An action to recover upon a debt and have it declared a prior and preferred claim against the assets of an insolvent bank in the hands of a receiver. A constructive trust or trust ex maleficio arises by implication of law where one party, by fraud and misrepresentation, obtains something of value from another.

Hon. Carl A. Davis, Judge. Action for writ of mandate to compel tbe state engineer to give notice and issue a certificate of completion of diversion works. Writ granted. Appeal by defendant. Numerous eases bave been tried involving questions of jurisdiction relative to tbe distribution of tbe waters of interstate streams for irrigation purposes.

Hon. Edward A. Walters, Judge. Action to determine the amount and priorities of water rights for Canyon creek, Elmore county. A trespasser cannot by his wrongful act make a valid appropriation. (McGuire v. Brown, 106 Cal. 660, 39 Pac. 1060, 30 L. R. A. 384; Benton v. Johncox, 17 Wash. 277, 61 Am. St. 912, 49 Pac. 495, 39 L. R. A. 107; Wiel on Water Rights, 3d ed., sec. 221; Sturr v. Beck, 133 U. S. 541, 10 Sup.

Hon. Alfred Budge, Judge. Action to recover for assault and battery. Judgment for plaintiff. In a damage suit similar to the one at bar, the plaintiff cannot prejudice the minds of the jury by the introduction of evidence of other similar occurrences. (17 Cyc. 279; East Kingston v. Towle, 48 N. H. 57, 97 Am. Dec. 575, 2 Am.

Hon. John F. MacLane, Judge. Action to recover costs and expenses recovered under an insurance policy against injuries and death. The liability of the insurance company is fixed by its polir_; of insurance, and the terms of that contract, in the abs^ ambiguity, must control. (Rumford Falls Paper Go. v. Fidelity & Casualty Go., 92 Me. 574, 43 Atl. 503.) The company is liable for costs. - (New Amsterdam Casualty Co. v. Cumberland Tel.

Hon. C. 0. Stoekslager, Judge. Action to foreclose a mechanic’s lien for labor. Judgment for plaintiff. Defendant appeals. Under sec. 3446, Eev. Codes, the respondents engaged in the • carriage of this material had a lien thereon dependent on possession. This lien was given them for their protection in the doing of the work in which they were engaged, but by no stretch of imagination are they entitled to another and further lien upon work with which they had no connection.

<p>Personal Injuries — Negligence op City — Argument of Counsel— Sidewalk — Obstruction of — Notice of Obstruction — Constructive Notice — City—Powers of — Primary Liability — Instructions.</p> <p>(Syllabus by the court.)</p> <p>1. Held, that the city was not prejudiced by the remarks made by counsel for respondent in his argument to the jury.</p> <p>2. The doctrine or rule laid down by this court in Goldstone v. Bustemeyer, 21 Ida. 703, 123 Pae. 635, in regard to improper re* marks made by counsel during argument to the jury, approved.</p> <p>3. Boise City must exercise reasonable care to discover obstructions or defects in its streets and sidewalks, and if such obstructions or defects remain for any considerable length of time, it is at least constructive notice to the city of such obstructions or defects.</p> <p>4. As to whether the city has constructive knowledge of obstructions or defects in streets and sidewalks is a question for the jury.</p> <p>5. Under the charter of Boise City, the city had power to manage and regulate its streets and sidewalks, and the privilege or power so granted imposes a corresponding obligation on the part of the eity, and such power is coupled with the implied obligation that ordinary care at least will be exercised in keeping the streets and sidewalks clear of obstructions and defects, and if it fails to do so, it is liable for personal injuries occasioned thereby.</p> <p>6. The city being liable for such injuries should prove a spur to the officials to keep the streets and sidewalks in a safe condition.</p> <p>7. Where a street or sidewalk is obstructed by other persons and the eity has either actual or constructive notice thereof, it is primarily liable for injuries resulting therefrom, regardless of whether the abutting owner or a police officer or the person who placed the same there is liable to the eity.</p> <p>8. Held, that the court did not err in refusing to instruct the jury to return a verdiet for the defendant.</p>

Original application to this court for a writ of mandate commanding Wilfred L. Gifford, secretary of state of tbe state of Idaho, to receive and file a certificate of nomination. Thirty clear days are not required. This is assumed in cases cited by defendant’s brief (State ex rel.

Original proceeding for a writ of mandate. Alternative writ issued and upon a hearing thereon a demurrer to the petition and a motion to quash the writ interposed and sustained, and the writ quashed and proceeding dismissed. The appointee of the governor appointed to fill a vacancy in office occasioned by death or resignation only holds said office until the first general election after the vacancy occurs.

<p>APPEAL from the District Court of the Fourth Judicial District for Blaine County. Hon. Edward A. Walters, Judge.</p> <p>Action by the receiver of an insolvent bank against the maker of certain promissory notes. Judgment for the plaintiff. Defendant appealed.</p> <p>In a suit between the original parties to a promissory note, or in a suit between the assignee, or indorsee of a note, and the maker, the defense of fraud, or want of, or failure of, consideration can always be set up unless the plaintiff can show that he is an innocent bona fide indorsee for value, before maturity, and without any notice (not even notice sufficient to put him on inquiry) as to the existence of the alleged fraud or failure of consideration. (Winter v. Nobs, 19 Ida. 18, 112 Pac. 525, Ann. Cas. 1912C, 302; Union Stockyards v. Bolán, 14 Ida. 87, 125 Am. St. 146, 93 Pac. 508.)</p> <p>The payee of a promissory note is not a bona fide holder thereof, and in an action brought by the payee the note is subject to any defense which the maker may have against it, (Hagan v. Bigler, 5 Okl. 575, 49 Pac. 1011.)</p> <p>Where the proof shows that the note was procured by fraud, that constitutes a valid defense, as against the payee, if he seeks to recover upon it, and it is equally good against the in-dorsee, or assignee, unless be is an innocent bona fide bolder for value, and tbe burden of proof is upon bim to sbow tbat he is such. (Jordan v. Grover, 99 Cal. 194, 33 Pac. 889; Graham v. Larimer, 83 Cal. 173, 23 Pae. 286; Stewart v. Lansing, 104 U. S. 505, 26 L. ed. 866; Daniel on Neg. Inst., 4th ed., sec. 815; Vosburg v. Diefendorf, 119 N. Y. 357, 16 Am. St. 836, 23 N. E. 801; Smith v. Livingston, 111 Mass. 342; Kellogg v. Curtis, 69 Me. 212, 31 Am. Rep. 273; Nat. Bank v. Mackey, 5 Kan. App. 437, 49 Pac. 324; Morton v. Rogers, 14 Wend. (N. Y.) 575.)</p> <p>Even if Coffin had not been an innocent party to tbe contract, and bad been innocent of any fraud, and Cramer bad not been bis agent in tbe transaction, either actually or constructively, he would still be estopped from claiming exemption from the consequences of Cramer’s fraud by tbe fact that he accepted the benefits and held on to tbe proceeds. (Perry on Trusts, 3d ed., sec. 211; Graves v. Spier, 58 Barb. (N. Y.) 349; Bennett v. Judson, 21 N. Y. 238.)</p> <p>Where a relationship of trust and confidence exists between the parties, or that of trustee and cestui que trust, the law requires the utmost good faith on the part of the trustee in dealing with the property of the cestui que trust. (Morse on Banking, sec. 125; Trustees v. Bossieux, 3 Fed. 817, 4 Hughes, 387; Perry on Trusts, 3d ed., sec. 194; Wright v. Smith, 23 N. J. Eq. 106; Falk v. Turner, 101 Mass. 494.)</p> <p>Facts and circumstances to impart notice must have been such as would establish bad faith. (Winter v. Nobs, 19 Ida. 26, 112 Pac. 525, Ann. Cas. 1912C, 302. )</p> <p>The maker cannot successfully defend on the ground of no consideration by reason of fraud, or unlawful purpose for which the money was to be used, between himself and a third party, unless he can establish that the payee had knowledge of the fraud or unlawful purpose. (Camas Prairie State Bank v. Newman, 15 Ida. 719, 128 Am. St. 81, 99 Pac. 833, 21 L. R. A., N. S., 703; Lookout Bank v. Aull, 93 Tenn. 645, 42 Am. St. 934, 27 S. W. 1014.)</p> <p>Where A, at the instance of B, was induced to give his note to C, the latter surrendering security to B at the time of the transfer, A cannot plead want of consideration from B as a defense to an action on such paper by C, the latter being regarded in the light of bona fide holder for value. (7 Cyc. 925, notes; Cagle v. Lane, 49 Ark. 465, 5 S. W. 790; South Boston Iron Co. v. Brown, 63 Me. 139; Monroe v. Bordier, 8 C. B. 862; Poirer v. Morris, 22 L. J. Q. B. 313.)</p> <p>It is no defense to an action by the payee against the maker of a note that fraud was practiced upon the latter by his comaker, where the payee was innocent of fraud. (Joyce on Defenses to Com. Paper, sec. 133; Anderson v. Warne, 71 Ill. 20, 22 Am. Rep. 83; Fulford v. Bloch, 8 Ill. App. 284; Fuss v. Riddick, 89 N. C. 6.)</p>

Hon. C. 0. Stockslager, Judge. Action to quiet title.. Judgment for the defendant. Plaintiff appeals. Public policy forbids the application to the state of the doctrine of estoppel growing out of the conduct and representations of its officers.

Hon. Edward A. Walters, Judge. Action for confirmation of receiver’s sale. Lienholder appeals from order of the trial court affirming such sale. The order of the court required a public sale, and no deviation from the terms of a decree is more obnoxious to objection than selling at private sale when the order directs a public sale.

<p>Separate Property op Husband Under Laws op Poreign State— Community Property Under Laws op Idaho — Investment op Separate Property — Administration op Estate — Probate Proceedings as Estoppel.</p> <p>(Syllabus by the court.)</p> <p>1. Under the statute of this state, sec. 2679, Rev. Codes, “all property owned by the husband before marriage, and that acquired by gift, bequest, devise or descent is his separate property,” and under see. 3060, Rev. Codes, “Community property is property acquired by husband and wife, or either, during marriage, when not acquired as the separate property of either.”</p> <p>2. Under the community property laws of this state, whenever, after marriage, the husband purchases real estate within this state, a priTJia facie presumption arises that such property is community property, and such presumption may be overcome by the husband assuming the affirmative and burden of proof and showing as a matter of fact that such property was purchased with his separate property or estate.</p> <p>3. Personal property acquired during coverture is governed and controlled by the law of the matrimonial domicile, and if the title thereto and property therein was vested in the husband under the law of the domicile, it will be presumed everywhere to be his property, and the same is true of any property that was the separate and individual property of the wife under the law of the matrimonial domicile.</p> <p>4. Where husband and wife during coverture accumulated property in a state where the community law did not exist and where property accumulated and acquired during coverture vests absolutely in the husband, and such property or the proceeds thereof is brought into the state of Idaho and here invested in real property, the property so acquired will be the separate property of the husband.</p> <p>5. Where no proof is shown to the contrary, the presumption arises in the courts of this state that the community property law prevails in a sister state, the same as it prevails in this state.</p> <p>6. In inquiring into and ascertaining the law of a sister state with reference to the title and ownership of property acquired by husband and wife in that state during coverture, the courts of this state do not make such inquiry and investigation for the purpose of executing a foreign law within this state, but rather to ascertain the status of the foreign law as a probative fact in ascertaining and establishing the title and ownership of such property at the time it is brought into this state.</p> <p>7. A probate court has no jurisdiction or authority in the administration of an estate of a decedent to order or confirm the sale of real estate which belongs to someone else, and the title to which is vested in another and which property did not in fact or law belong to the estate being administered.</p>

Hon. Carl A. Davis, Judge. Action to restrain the county commissioners of Canyon county from issuing and negotiating certain bridge bonds in Canyon county. Judgment for plaintiffs. A highway district is a public corporation, and municipal agency within the county, and has only such powers as are conferred upon it by law. (State ex rel.

Hon. John F. MacLane, Judge. Prosecution for assault upon information. “The district court has no jurisdiction to try any person for an offense by information until the statute in regard to preliminary examinations has been complied with.” (State v. Braithwaite, 3 Ida. 119, 27 Pac. 731.) In construing statutes similar to ours, the courts have quite uniformly held that pointing’ an unloaded gun at another is not an assault.

<p>APPEAL from the District Court of the Ninth Judicial District, in and for Fremont County. Hon. James GL Gwinn, Judge.</p> <p>Defendant was convicted of maintaining a common nuisance in keeping for sale, delivery or distribution, in violation of law, intoxicating liquors, and was sentenced to pay a tine of $500.</p> <p>The depositions taken at the preliminary examination do not disclose that any public offense was committed by the defendant or that there was probable canse to believe the defendant guilty of the offense charged in the information or any offense, and that the defendant had been committed and held to answer without any reasonable or probable cause for believing the defendant guilty of the offense charged, or any offense at all. {In re Enudtson, 10 Ida. 676, 76 Pac. 641.)</p> <p>The mere finding of intoxicating liquors in a dwelling-house is no evidence at all that the person is maintaining a common nuisance and these depositions contain no other evidence whatever. {State v. White, 71 Kan. 356, 80 Pac. 589, 6 Ann. Cas. 132; Bice v. State, 5 Old. Cr. 68, 113 Pac. 203: State v. Clark, 4 Ida. 7, 35 Pae. 710; State v. Farris, 5 Ida. 666, 51 Pac. 772; State v. McCann, 8 Ida. 40, 66 Pae. 823; Ex parte McConnell, 83 Cal. 558, 23 Pac. 1119; State v. McGreevey, 17 Ida. 453, 105 Pac. 1047; In re Sly, 9 Ida. 779, 76 Pac. 766; In re Squires, 13 Ida. 624, 92 Pac. 754.)</p> <p>In the following cases the evidence has been held insufficient to support the verdict upon similar charges: McLin v. City of Griffin, 7 Ga. App. 607, 67 S. E. 686; Loeb v. City of Atlanta, 8 Ga. App. 97, 68 S. E. 624; Johnson v. State, 6 Okl. Cr. 490, 119 Pae. 1019; Byler v. State, 6 Old. Cr. 698, 119 Pac. 1022; McComb City v. Hill (Miss.), 46 So. 346.</p> <p>In a preliminary examination, the state is not bound to produce all of its evidence, and if it produces sufficient to satisfy the committing magistrate that a crime has been committed and that there is reasonable and probable cause to believe that the petitioner committed it, it is the duty of the magistrate to hold the petitioner for trial. {In re Squires, 13 Ida. 624, 92 Pac. 754.)</p>

<p>APPEAL from the District Court of the Third Judicial District for Ada County. Hon. John F. MacLane, Judge.</p> <p>Action to recover balance due on a written contract. Judgment for the plaintiff.</p> <p>Conceding that the husband could make a gift of the contract here sued upon, the law requires that the transfer, whether gift or donation or exchange, shall be such as to clearly deprive the husband of his interest. (Ballinger, Community Property, sees. 55, 154.)</p> <p>If the thing given be a chose in action, the law requires an assignment or equivalent instrument and the transfer must be actually executed. (Dilts v. Stevenson, 17 N. J. Eq. 407'; George v. Spencer, 2 Md. Ch. 353; Lane v. Lame, 76 Me. 521.)</p> <p>The word “marketing” as used in the contract certainly meant selling, and it was incumbent upon the plaintiff to prove that the oat crop was marketed and that the proceeds of the sale amounted to at least $50 before she could recover. ('Wheeler & Wilson Mfg. Co. v. Winnett, 3 Neb. (Unof.) 293, 91 N. W. 514.)</p>

<p>APPEAL from the District Court of the Third Judicial District for Ada County. Hon. Carl A. Davis, Judge.</p> <p>Action at law to recover damag'es where an equitable defense is presented by cross-complaint. Judgment for respondent.</p> <p>No action purely equitable in character can proceed to a decree upon the verdict of a jury as the foundation thereof, but if the jury is called in such case, it must be to aid the court in determining the questions of fact, which, when found, are the findings of the court. (Ramsey v. Hart, 1 Ida. 423.)</p> <p>In such a ease the court may adopt the findings of the jury as its findings; but if the jury fails to find upon any of the material issues made by the pleadings, the court should find upon those issues before entering judgment. (Sandstrom v. Smith, 12 Ida. 446, 86 Pae. 416.)</p> <p>Where a defendant files a separate answer setting up affirmative matter, constituting, a defense, it is error for the trial court to fail to make findings on the issues thus raised. (Lorenzi v. Star Market Co., 19 Ida. 674, 115 Pae. 490.)</p>

Hon. Edward A. Walters, Judge. . Action for debt. Judgment for defendant; plaintiff appealed. The relation between a bank and a depositor is purely one of debtor and creditor. (State v. Thum, 6 Ida. 323, 55 Pac. 858.) A bank is presumed to know the signature of its customers, and if it passes a forged check, it cannot, in the absence of negligence on the part of the depositor whose check it purports to be, charge the amount to his account.

Original action for a writ' of review to review the action of a district judge in making an order for a writ of injunction. Writ issued and the action of the district court The fact that the bill was not filed until after the injunction was ordered is not sufficient ground for a reversal of the order, such omission being at the most but a mere irregularity which does not affect the merits of the cause.

<p>APPEAL from the District Court of the Seventh Judicial District for Canyon County. Hon. Ed. L. Bryan, Judge.</p> <p>Action for damage. Judgment for plaintiff. Defendant appeals.</p> <p>Where there are no covenants to repair in a lease, the landlord is not liable upon contract or quasi contract for damages to the tenant’s goods or person resulting from a defective condition of the demised premises; but such liability, where it exists, arises solely from negligence, and such negligence must be affirmative and positive — not merely the negative negligence or failure to repair, but positive misfeasance. (Jones v. Millsaps, 71 Miss. 10, 14 So. 440, 23 L. R. A. 155; Franklin v. Tracey, 117 Ky. 267, 77 S. W. 1113, 78 S. W. 1112, 63 L. R. A. 649; Gately v. Campbell, 124 Cal. 520, 57 Pac. 567; Ange-vine v. Knox-Goodrich (Cal.), 31 Pac. 529; Ward v. Fagin, 101 Mo. 669, 20 Am. St. 650, 14 S. W. 738, 10 L. R. A. 147; Brewster v. DeFremery, 33 Cal. 341; Krueger v. Ferrent, 29 Minn. 385, 43 Am. Rep. 223, 13 N. W. 158; Kuhn v. Heaven-rich Co., 115 Wis. 447, 91 N. W. 994, 60 L. R. A. 585; Railton v. Tailor, 20 R. I. 279, 38 Ati. 980, 39 L. R. A. 246; Doyle v. U. P. Ry. Co., 147 U. S. 413, 13 Sup. Ct. 333, 37 L. ed. 223; Bowe v. Hunking, 135 Mass. 380, 46 Am. Rep. 471; Keates v. Cadogan, 10 Com. B. 591.)</p> <p>The measure of damages in such a case as this is simply the value of the goods destroyed, and plaintiff having testified as to the value of the stock of goods, any evidence as to her profits or as to the value of her business was not relevant in any way to show what the goods were worth, and was not appropriate to any issue in the case, but the admission of such testimony permitted the jury to add damages for purely speculative matters not recoverable under the law. (Weick v. Dougherty (Ky.), 90 S. W. 966; Casper v. Klippen, 61 Minn. 353, 52 Am. St. 604, 63 N. W. 737; City of Cincinnati v. Kvans, 5 Ohio St. 594.)</p> <p>It would only be simple justice to the defendant to require more definite testimony as a basis for a claim for damages from simple negligence, without any affirmative wrongdoing upon the defendant’s part. {Schwartz v. Schembel, 53 N. T. Snpp. 829, 24 Mise. Rep. 733; Brooke v. Cunará S. S. Co.. 93 N. Y. Supp. 369; Central Coal Co. v. Hartman, 111 Fed. 96, 49 C. C. A. 244.)</p> <p>Defendant not only erected and maintained a defective flue and furnace, but maintained and operated a heating plant and 'fire therein in a grossly careless manner, and it was through his carelessness and negligence in maintaining and operating this heating plant and fire that plaintiff’s loss occurred. (Butler v. Cushing, 46 Hun (N. Y.), 521; Boussinet v. Bebout, 76 Cal. 454, 18 Pae. 423; Pike v. Brittan, 71 Cal. 159, 60 Am. Rep. 527,11 Pac. 890; Hysore v. Quigley, 9 Houst. (Del.) 348, 32 Atl. 960.)</p> <p>The evidence showed that respondent had an established business, which was destroyed by this fire; that this business was a well-established business, with well-known and uniform profits, and that it had a value of a specific sum. There is nothing submitted to contradict this evidence in any particular. It is not shown that there was any other place for this business to have been continued, and thereby kept together and saved to respondent. {Levison v. Myers, 24 Pa. Sup. Ct. (Pa.) 481; Talcott v. Crippen, 52 Mich. 633, 18 N. W. 392; Pereira v. Smith, 79 Cal. 232, 21 Pae. 739; Parke County Commrs. v. Sappenjield, 10 Ind. App. 609, 38 N. E. 358.)</p> <p>The evidence as to the damage sustained by respondent is not speculation, guesses or estimates. The witness showed herself competent to testify as to these values. The evidence on this point was not objected to by defendant or disputed in any particular. The jury concluded that the plaintiff was entitled to recover the sum of $800 — a sum much too small to compensate plaintiff for her loss, but fairly determined by the jury from the evidence submitted and of which determination neither plaintiff nor defendant now have the right to complain. (Shafer v. Wilson, 44 Md. 268; Allison v. Chandler, 11 Mich. 542; Oliver v. Perkins, 92 Mich. 304, 52 N. W. 609; Goebel v. Hough, 26 Minn. 252, 2 N. W. 847: Water v. Post, 13 N. T. Sup. Ct. 363; Menai'd v. Stevens, 44 N. Y. Sup. Ct. (12 Jone. & S.) 515; Mine v. Cushing, 53 Hun, 539, 6 N. Y. Supp. 850; City of San Antonio v. Royal (Tex.), 16 S. W. 1101.)</p>

<p>APPEAL from the District Court of the Third Judicial District for Ada County. Hon. John F. MacLane, Judge.</p> <p>Action for damages. Appeal from an order granting a new trial.</p> <p>Evidently it was the intention of the legislature to provide that counsel should select and designate in the notice whether he intended to make his motion upon the records and files in the action, or the minutes of the court, or upon all of them, or upon some designated portion of them. In this case the notice specifies nothing at all. (Thompson v. Chicago M. & St. P. By. Co., 26 S. D. 296, 128 N. W. 809; 1 Spelling, New Trial and Appellate Practice, see. 369; Gamer v. Glenn, 8 Mont. 371, 20 Pac. 654.)</p> <p>The objections made by the respondent to the form and contents of the notice of intention to move for a new trial, on the motion for a new trial, are highly technical and not well taken. (Morris v. Lemp, 13 Ida. 116, 88 Pae. 761.)</p> <p>While the appellant may select any one ground given by the statute, and rely upon it alone, he certainly is not precluded from relying upon two or more, or all of them, if in his judgment the necessity of his case require it. And if he sees fit to rely upon one ground and abandon the others, when he comes to file his motion for a new trial he can then elect to do so. To notify the respondent that he intends to rely upon all of them cannot prejudice his rights in any manner that we can see. (Spelling on New Trial and Appellate Prae-tice, sec. 369; Hayne on New Trial and Appeal, rev. ed., see. 23; Hart v. Kimball, 72 Cal. 283, 13 Pac. 852; Gamer v. Glenn, 8 Mont. 371, 20 Pac. 654; Duncan v. Times-Mirror Go., 120 Cal. 402, 52 Pac. 652; Hall v. Hams, 1 S. D. 279, 36 Am. St. 730, 46 N. W. 931; Cummings v. Reins Copper Co., 40 Mont. 599, 107 Pac. 904; 29 Cye. 938.)</p>

Hon. Carl A. Davis, Judge. Action for damages on account of mistake and misrepresentation. Judgment for the defendant and plaintiffs appeal. In actions for relief on the ground of fraud or mistake, the action in such ease is not to be deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.

Hon. John F. MacLane, Judge. Action to quiet title to certain real estate. Judgment quieting title to a part of such real estate in plaintiff and part in defendant. “A deed in which the description does not apply to the property sold is not a deed to the property, whatever may have been the intent of the parties in making it.” (Ozee v. City of Henrietta, 90 Tex. 334, 38 S. W. 768.) In such proceedings the provisions of the statute should be strictly followed.

<p>Reap Estate — Quieting Title — United States Government Survey— Obliterated Corner — Lost Corner — Establishment op Corner— Evidence — Sufficiency op — Adverse Possession.</p> <p>(Syllabus by the court.)</p> <p>1. Sec. 2095, Rev. Codes, prescribes the method of restoration of lost or obliterated corners and subdivisions of sections of land.</p> <p>2. Sec. 2 of a circular of the United States general land office, relative to the restoration of lost or obliterated corners, defines an obliterated Corner as one where no visible evidence remains of the work of the original surveyor in establishing it; and defines a lost corner as one, the position of whieh cannot be determined beyond reasonable doubt, either from original or reliable marks or reliable external evidence.</p> <p>3. Seld, under the evidence that,the corner in question was an obliterated corner and not a lost corner.</p> <p>4. Seld, under the evidence that the defendant had been in adverse possession of the land in dispute for more than five years immediately preceding the trial of the action and had paid all taxes legally assessed against the same.</p> <p>5. Seld, that the court did not err in quieting the title to said land in the defendant.</p>

<p>Chattel Mortgage — Foreclosure and Sale oe Chattel Mortgage— Bestraining Sale oe Mortgaged Property — Mortgage oe Community and Separate Property — Estoppel.</p> <p>(Syllabus by the court.)</p> <p>1. Facts of this case examined, and held sufficient to support a finding by the trial court that certain bakery supplies, purchased by a married woman and by her mortgaged, were at the time of the execution of the mortgage the separate property of the wife and not the community property of husband and wife.</p> <p>2. Where a junior mortgagee has notice at the time of taking a mortgage that a senior mortgage exists on the same property which was executed by the wife alone, and that the wife claimed the property as her separate property, and that the husband admitted and declared that the property was the separate property of the wife, and at the time of the execution of the junior mortgage the junior mortgagee understood that he was taking a second mortgage on the property; held, that the junior mortgagee is estopped from questioning the validity of the senior mortgage or contending that the property mortgaged was community property instead of the separate property of the wife.</p> <p>3. Where property was purchased by a married woman in a foreign state, and under the laws of that state such property became her separate property, and the property is thereafter brought into the state of Idaho, it will continue to be the separate property of the wife.</p>

Hon. Alfred Budge, Judge. An action for the''recovery of damages for false imprisonment. Judgment of nonsuit. If a complaint fails to set-forth material facts so that no cause of action is stated, but the Answer avers such facts, the omission in the complaint becomes immaterial, and the defect therein is cured by answer.

<p>Local Option Law — Unlawful Possession of Intoxicating Liquor— Possession Peima Facie Evidence of Unlawful Purpose.</p> <p>(Syllabus by the court.)</p> <p>1. In a prosecution for maintaining a common nuisance by keeping intoxicating liquors in a prohibition district at any place other than a private dwelling-house, the possession of such liquors by one not having a lawful authority to sell or dispose of the same is prima facie evidence that sueh liquors are kept for sale or disposition in violation of law, and the proof of such possession at any place other than in a private dwelling-house shifts the burden of proof to the defendant to show that his possession was lawful.</p> <p>2. An instruction which tells the jury that, “If, therefore, you should find from the evidence in this case, beyond a reasonable doubt, that intoxicating liquors were found at the place of business of the above-named defendant as alleged in the complaint, the burden of proof is on the defendant to prove that such intoxicating liquors were kept and used for a lawful purpose, and in the absence of any such proof on the part of the defendant showing that such intoxicating liquors, if any liquor was found at his place of business, was kept and used for a lawful purpose, then, in that event, you should find the defendant guilty,” is erroneous, and prejudicial to a defendant, in that it takes from the jury the right to consider and weigh the evidence for themselves and determine its credibility and the circumstances involved in the case and accompanying the possession of such intoxicating liquor.</p> <p>3. Where a statute, such as sec. 3, chap. 15, of the 1911 Session Laws (1911 Sess. Laws, p. 32), provides that when the possession of intoxicating liquors is shown, such fact is “prima facie evidence that such intoxicating liquors are kept for sale,” the statute means that sueh prima facie presumption or prima facie evidence is sufficient to go to the jury to prove such facts, and that such possession will be sufficient to support a verdict on that particular fact; but it does not mean that such evidence is conclusive and binding upon the jury, and that it is their duty to bring in a verdict against the defendant where such a prima facie ease only is made, and it is error to instruct a jury that under such circumstances they should bring in a verdict of guilty.</p> <p>4. A statute providing that the proof of a certain fact shall constitute prima facie evidence of the existence of a certain other fact, merely shifts the burden of proof onto the adverse party, and, in the absence of proof to the contrary, leaves the presumption both of fact and law against such party.</p>

Hon. James M. Stevens, Judge. The defendant was prosecuted on a charge of embezzlement and convicted and sentenced for a term of from one to fourteen years in the state penitentiary. A secreting with intent to convert to one’s own use does not prove the offense under an information charging an actual embezzlement.

Hon. Carl A. Davis, Judge. Action- to quiet title to water right. Judgment for defendant. The fact being established that the water right was appurtenant to the land at the time of the conveyance, plaintiff was entitled to judgment, since a water right appurtenant to the land will pass by conveyance of the land, unless expressly reserved or excepted.

Hon. Edward A. Walters, Judge. Action to recover on a promissory note.- . Judgment for defendant. It is incumbent upon the defendant to establish the fact that the note was taken without consideration or after maturity with notice of infirmities, and not upon the plaintiff to prove the negative. (Winter v. Nobs, 19 Ida. 18, Ann.

<p>APPEAL from the District Court of the Fourth Judicial District for Elmore County. Hon. Edward A. Walters, 'Judge.</p> <p>Action by plaintiff to recover judgment for a sum paid under duress. Judgment for plaintiff and defendant appealed.</p> <p>In order for the party to recover money, the threat must have been made of unlawful prosecution or unlawful exposure; the party threatened must have been innocent of the offense charged, and in addition thereto the threat must have been made wrongfully and without reason to believe the party threatened was guilty, or it must have been by abuse of process actually issued. (Shattuck v. Watson, 53 Ark. 147, 13 S. W. 516, 7 L. R. A. 551; Sheldon v. School District, 24 Conn. 88; Smith v. Attioood, 14 Ga. 402; Jones v. Peterson, 117 Ga. 58, 43 S. E. 417; Heaps v. Dunham, 95 Ill. 583; Darling v. Hines, 5 Ind. App. 319, 32 N. E. 109; Giddings v. Iowa Savings Bank, 104 Iowa, 676, 74 N. W. 21; James v. Dalbey, 107 Iowa, 463, 78 N. W. 51; Taylor v. Blake, 11 Minn. (Gil. 170) 255; Eddy v. Herrin, 17 Me. 338, 35 Am. Dec. 261; Hilborn v. Buckman, 78 Me. 482, 57 Am. Rep. 816, 7 Atl. 272; Beath v. Ghapoton, 115 Mich. 506, 69 Am. St. 589, 73 N. W. 806; McCormick Harvester Go. v. Miller, 54 Neb. 644, 74 N. W. 1061; Compton v. Bunker Hill Bank, 96 Ill. 301, 36 Am. Rep. 147; Clark v. Turnbull, 47 N. J. L. 265, 54 Am. Rep. 157; Banda v. Obert, 45 Tex. 539; Comstock v. Tupper, 50 Yt. 597.)</p> <p>If payments are made under what the law regards as duress, they are not within the doctrine of voluntary payment, and may be recovered in the absence of special circumstances. {2 Page on Contracts, sec. 799.)</p> <p>By the weight of modern authority, threats of criminal prosecution which will eventually result in imprisonment may constitute duress. (1 Page on Contracts, see. 251, and eases cited.)</p> <p>If the threatened imprisonment is unlawful, duress exists. If the threat is of lawful imprisonment, but it is unlawfully used to obtain the contract, duress exists. (1 Page on Contracts, see. 252, and cases cited.)</p> <p>Under the modern doctrine of duress the sole question is: Was the party so affected by the threats as to prevent a meeting of minds? (9 Cyc. 450, 451, and cases cited.)</p> <p>Where extortion exists, it is immaterial whether the threatened arrest was lawful. (2 Page on Contracts, sec. 800, and cases cited.)</p> <p>The question as to the existence of duress is a question of fact, and each case must be determined upon its peculiar circumstances. (Galusha v. Sherman, 105 Wis. 263, 81 N. W. 495, 47 L. R. A. 417; Morse v. Woodworth, 155 Mass. 233, 27 N. E. 1010, 29 N. E. 525; Hartford etc. Ins. Co. v. Kirkpatrick, 111 Ala. 456, 20 So. 651; Heckman v. Swartz, 64 Wis. 48, 24 N. W. 473; Richardson v. Duncan, 3 N. H. 508; Heaton v. Norton State Bank, 59 Kan. 281, 52 Pac. 876; Hunter v. Neiv York & O. W. By. Go., 116 N. Y. 615, 23 N. E. 9, 6; L. R. A. 246; Miller v. Bryden, 34 Mo. App. 602; Haydoch v. Hay dock, 33 N. J. Eq. 494.)</p>

Hon. Ed. L. Bryan, Judge. Action upon agreed case for the purpose of determining the title to certain real estate acquired under the United States desert land laws. Judgment and decree entered, holding that the land was subject to administration by the probate court. The patent having been issued to the heirs of Perry N. Powell, deceased, his heirs must take equally, and not according to the laws of descent of the state wherein the lands are situated.

<p>Verdict — Sufficiency op Evidence — Errors in Law — Instructions.</p> <p>(Syllabus by the court.)</p> <p>1. Under the provisions of see. 4824, Rev. Codes, when there is substantial evidence to support the verdict, it must not be set aside.</p> <p>2. Held, that the court did not err in rejecting certain evidence offered by the defendant.</p> <p>3. Held, that the court did not err in refusing to give certain instructions requested by the defendant.</p>

Hon. Edward A. Walters, Judge. Action to enjoin an appropriator of water from diverting it from a particular point in the stream. Injunction denied and judgment in favor of the defendant. Counsel cite no authorities on points decided.

<p>APPEAL from the District Court of the Fourth Judicial District for Elmore County. Hon. C. 0. Stockslager, Judge.</p> <p>An action to quiet title. Judgment for defendant.</p> <p>In the absence of anything to show fraud or corrupt motive, errors on the part of an assessor resulting in the unequal valuation of land will not vitiate the tax levied thereon. (West Portland Park Assn. v. Kelly, 29 Or. 412, 45 Pae. 901; People v. Barker, 144 N. Y. 94, 39 N; E. 13.)</p> <p>Tbe taxpayer who discovers errors, irregularities or injustice in his assessment must take steps to have it corrected according to the remedies which the law gives him, and if he neglects to do this when he has an opportunity, he will not be allowed afterward to raise objections to the assessment. (State v. Sadler, 21 Nev. 13, 23 Pac. 799; Cal. Domestic Water Co. v. Los Angeles Co., 10 Cal. App. 185, 101 Pac. 547; Eureka Dist. Gold Mining Co. v. Ferry Co., 28 Wash. 250, 68 Pac. 727; City of Los Angeles v. Glassell, 4 Cal. App. 43, 87 Pac. 241; Cooley on Taxation, p. 1049.)</p> <p>Defendant was not prevented from paying the taxes involved in this action by either fraud or mistake of the officer charged with the collection of the taxes, or even by a mistake on his (defendant’s) part. (Bacon v. Bice, 14 Ida. 107, 93 Pae. 511.)</p> <p>One who takes a conveyance of a tax title can claim no benefit from it if he had actual knowledge of facts which rendered it invalid, or if the records show on their face fatal defects or irregularities. (Sorensen v. Davis, 83 Iowa, 405, 49 N. W. 1004; 37 Cyc. 1485.)</p> <p>The sale of land for taxes is not void where the legal portion of the tax can be clearly and definitely separated from the rest. (Holcomb v. Johnson, 43 Wash. 362, 86 Pac. 409.)</p> <p>Where land is sold for the taxes of several years, and a deed made pursuant to such sale, the deed is valid, if the sale is legal for the taxes of one of the years, though it is illegal as to the taxes of the other years. (Parker v. Cochran, 64 Iowa, 757, 21 N. W. 13; Rhodes v. Sexton & Son, 33 Iowa, 540; Hurley v. Powell, Levy & Co., 31 Iowa, 64; Eldridge v. PLuelil, 27 Iowa, 160.)</p> <p>If property is a subject of taxation, it cannot escape through some technical failure of the officer to perform his duty unless it has actually misled the party to his injury. (Co-operative etc. Assn. v. Green, 5 Ida. 660, 51 Pac. 770; White Pine Mfg. Co. v. Morey, 19 Ida. 49, 112 Pac. 674; Stewart v. White, 19 Ida. 61, 112 Pac. 677; McGowan v. Elder, 19 Ida. 153, 113 Pac. 102.)</p> <p>The whole tax is illegal, for the reason that it is, in effect, an increase in valuation of the property after its assessment without notice to the taxpayer. (Mercantile Bank v. Hubbard, 105 Fed. 809, 45 C. C. A. 66; Western Ranches v. Custer County, 28 Mont. 278, 72 Pae. 659; Adams v. Luce, 87 Miss. 220, 39 So. 418; Topeka Water Supply Co. v. Roberts, 45 Kan. 363, 25 Pac. 855; Montana Ore Purchasing Co. v. Maher, 32 Mont. 480, 81 Pae. 13; Larimer v. McCall, 4 Watts & S. (Pa.) 133; Patten v. Green, 13 Cal. 325; Dykes v. Lockwood Mortgage Co., 2 Kan. App. 217, 43 Pae. 268.)</p> <p>Assessment for back years for which taxes had actually been paid would be void. (Western Assurance Co. v. Halli-day, 127 Fed. 830; Adams v. Luce, 87 Miss. 220, 39 So. 418; Douglas v. Short, 14 N. C. 432; Iowa R. Land Co. v. Guthrie, 53 Iowa, 383, 5 N. W. 519.)</p> <p>A purchase at a tax sale by one upon whom rests the duty of paying the taxes operates merely as a payment of such taxes, leaving the title to stand as if the payment had been made before the sale. (27 Am. & Eng. Eney. of Law, 954; Moss v. Shear, 25 Cal. 38, 85 Am. Dec. 94.)</p> <p>As this 120 acres was sold as Mr. Whitney’s land and the county got the money and Mr. Whitney did pay it himself by buying from the party who bought from the county, in good faith, as his land, the land as assessed being treated as being the right assessment and believed at the time by all parties to be the right description, it was certainly improperly back assessed as having escaped taxation. {Hurd v. City of Melrose, 191 Mass. 576, 78 N. E. 302; Graham v. Florida Land & Mortgage Co., 33 Fla. 356, 14 So. 796; Bos-worth v. Danzien, 25 Cal. 297; Gunn v. Thompson, 70 Ark. 500, 69 S. W. 261; Lewis v. Monson, 151 U. S. 545, 14 Sup. Ct. 424, 38 L. ed. 265; Richter v. Beaumont, 67 Miss. 285, 7 So. 357; Meller v. Hodsdon, 33 Minn. 336, 23 N. W. 543; Pfeiffer v. Milest 48 N. J. L. 450, 4 Atl. 429; San Gabriel Land tf; Water Co. v. Whitneer Bros. & Co., 96 Cal. 623, 29 Pae. 500, 31 Pae. 588, 18 L. R. A. 465; Kellogg v. McFatter, 111 La. 1037, 36 So. 112; Wabash R. R. Co. v. People, 196 Ill. 606, 63 N. E. 1084.)</p> <p>Wherever property is sold for taxes any part of which is not a proper charge on the property sold, the sale is absolutely void. (Hardenburgh v. Eeod, 10 Cal. 402; Muskegon Lumber Co. v. Brown, 66 Ark. 539, 51 S. W. 1056; Buckndll v. Story, 36 Cal. 67; Medium v. Town of New Port, 70 Yt. 264, 40 Atl. 729; City of New Whatcom v. Bellingham Bay Imp. Co., 9 Wash. 639, 38 Pac. 163; Cage v. Pumpelly, 115 U. S. 454, 6 Sup. Ct. 136, 29 L. ed. 449; Baker v. Kaiser, 126 Fed. 317, 61 C. C. A. 303; Harvey v. Douglas, 73 Ark. 221, 83 S. W. 946; Creen v. McGreiv, 35 Ind. App. 104, 311 Am. St. 149, 72 N. E. 1049, 73 N. E. 832; Landis v. Borough of Vmeland (N. J.), 43 Atl. 569.)</p>

Hon. Edward A. Walters, Judge. Action to enjoin the defendant from applying a part of his water appropriation to land other than that to which it had formerly been applied. Judgment for the plaintiff and defendant appealed. Counsel cite no authorities on points decided.

Hon. Ed. L. Bryan, Judge of the Seventh District, presiding. Action in assumpsit. Judgment for plaintiff and defendant appealed. The statute of this state provides that when the rates are once fixed they shall not be changed within one year from the time when such rate was so fixed. The only method by which this rate can be questioned after the lapse of one year is by a new application.

Hon. Edward A. • Walters, Judge. Action to determine the rights of two different persons to the right to enter upon state land and for an injunction.

<p>Appeal — Service op Transcript.</p> <p>(Syllabus by the court.)</p> <p>1. Under the statutes of the state, the attorney general of the state is the attorney for the state on an appeal in a criminal case, and the state is the adverse party, and the brief and transcript on such appeal must be served upon the attorney general as required by the statutes and the rules of this court, and upon failure to make such service the appeal will be dismissed.</p>

<p>Appeal — Service op Transcript.</p> <p>(Syllabus by the court.)</p> <p>1. TJnder the statutes of the state, the attorney general of the state is the attorney for the state on an appeal in a criminal ease, and the state is the adverse party, and the brief and transcript on sueh appeal must be served upon the attorney general as required by the statutes and the rules of this court, and upon failure to make sueh service the appeal will be dismissed.</p>

Hon. John F. MacLane, Judge. Action to quiet title. Judgment for defendant. There is no question as to our good faith, lack of actual knowledge, and that we purchased for a valuable consideration ; also our deed is first of record. The defendant has at no time shown a title of record, and there is no question that the judgment pleaded is not of record.

Hon. C. 0. Stockslager, Judge. Appeal from an order of the board of county commissioners allowing the claim of an expert for auditing the accounts and books of the county officers. Judgment for the board. When the case reached the district court upon the appeal from the order of the board, it was necessary for the petition- _ ers to make their ease there and prove the same facts they were required to prove before the board of commissioners.

-Judicial District for Custer County. Hon. J. M. Stevens, Judge. An action to determine the relative rights of appropriators of water.

Original action for restraining order enjoining and restraining the secretary of state from certifying nominations. Under sec. 382, the Progressive party was entitled to hold a convention for the nomination of state officers.

Hon. Edward A. Walters, Judge. Action for debt. Judgment for defendant and plaintiff appealed. “In the United States the doctrines of maintenance and champerty have not generally found favor.” (Roberts v. Cooper, 20 How. (U. S.) 467, 15 L. ed. 969; Boon v. Chiles, 10 Pet. (U. S.) 177, 9 L. ed. 388; Barrell v. Mohawk, 8 Wall. (U. S.) 153, 19 L. ed. 406; Armstrong v. Toler, 11 Wheat. (U. S.) 258, 6 L. ed. 468; 3 Am. & Eng.

<p>Employment oe Attorney — Contract • — • Delation — Duty — Taking Title to Land.</p> <p>(Syllabus by the court.)</p> <p>1. Where a power of attorney is executed by A. and others to H., appointing H. attorney in fact “in all matters pertaining to or relating to the settlement of my interest, share or portion of the estate of S.that lawfully comes to me as daughter and heir at law. I hereby authorize, empower and delegate to my said attorney full authority to act for me,” it creates a fiduciary relation between the attorney and client.</p> <p>2. Where an attorney is employed to secure and protect the interests of his client in real property, it imposes upon such attorney good faith, and requires that such duty be not violated, and such duty continues as long as the employment continues, and the obligation of good faith does not end even upon the termination of the contract of employment, but continues thereafter to the extent that if an attorney be retained to defend a particular title to real property he cannot thereafter, unless his client consent, buy the opposing title without holding it in trust for those'then having the title he was employed to sustain.</p> <p>3. In a case where an attorney is employed by a person to secure real property belonging to the client, and in the course of such employment, and before the employment terminates, such attorney secures a supposed interest in such property, and repudiates his fiduciary obligation, and receives in his own name the title to such property he has been employed to secure for his client, such title will be declared to be held in trust for the use and benefit of the client.</p>

Hon. C. P. McCarthy, Judge. Action for damages. Judgment for plaintiff and defendants appeal. “The statutory lien exists, generally, only in favor of one who has actually kept the animal, and whose business it is to feed cattle, and does not attach in favor of a mere servant employed in the eare of animals.” (2 Cyc.

Original application for a writ of prohibition to restrain the district court of the sixth judicial district, or the judge thereof, from further proceedings under an order and citation for contempt. On the application of the plaintiffs the alternative writ was issued, which writ, after the hearing, is quashed and the peremptory writ denied.

Hon. C. P. McCarthy, Judge. Appeal from an order of the district court ordering an election for the removal of the county seat of Boise county from Idaho City to Weaverly. Held: Peck v. Board of Supervisors, 102 Mich. 346, 60 N. W. 985 ¡ Hawes v. Miller, 56 Iowa, 395, 9 N. W. 307. Withdrawals from the petition after the same has been filed are not authorized. (State ex rel. Andrews v. Boy den, 15 Ann.

<p>Appeal — Motion to Dismiss — Name op Court to Which Appeal is Taken — Judgment—Interest—New Trial — Affidavits—Counter-affidavits — Time tó Pile — Order Refusing New Trial.</p> <p>(Syllabus by the court.)</p> <p>1. Where an appeal is taken from a judgment rendered in a justice’s court to the district court, and the notice of appeal states “an appeal to the district court of Cassia county,” and the cause is appealed to the district court of the fourth judicial district in and for Cassia county, such appeal will not be dismissed, where it appears that the respondent upon said appeal is in no way misled or deceived.</p> <p>2. Where a judgment is rendered in a district court in an action to recover a money judgment, and the judgment provides “that plaintiff have and recover .... interest thereon at the rate of one per cent per month from the date hereof until paid,” such judgment will not be reversed on account of excessive interest, but will be modified, and the court will be directed to modify said judgment and decree that said judgment draw interest at the rate of seven per cent.</p> <p>3. Where it appears that a motion is made for a new trial, and affidavits are made and filed in support of such motion, and opposing counsel serves counter-affidavits, in opposition to the affidavits filed by the moving party, and it appears that such affidavits inadvertently were not filed within the prescribed time, and the trial judge, upon the affidavit of counsel for the party opposing said motion, makes an order directing that said counter-affidavits shall be filed nunc pro tunc as of the date such affidavits were served upon the moving party, the order of the trial court denying a new trial will not be reversed, as such action of the trial court does not affect any substantial right of the appellant.</p> <p>4. Where on a motion for a new trial affidavits are filed by the moving party in support of such motion, and counter-affidavits are filed by the party opposing such motion, and it appears from such affidavits that the facts stated are in the main cumulative, and that none of them were beyond the reach of the appellants, who by proper diligence could have produced them at the trial, and it appears from such affidavits that they do not show such surprise as would warrant the granting of the new trial, and that the new evidence stated in the affidavits discovered since the trial of the cause does not show that at the trial there had been a miscarriage of justice, or the denial of any legal right of the appellants by the verdict of the jury, the order of the trial court in denying the motion will not be reversed.</p>

Hon. John M. Flynn, Judge. Action to recover one-half of a partnership account. Verdict and judgment for plaintiff and a new trial granted. Action of the trial court in granting a new trial affirmed. In an order granting a new trial, the trial court should specify the grounds upon which it is granted. (Wolfe v. Ridley, 17 Ida. 173, 104 Pae. 114, 20 Ann.

Hon. R. M. Dunn, Judge. Action upon a promissory note. Judgment for defendant. From the fact that the note was given by the wife to the husband, under the presumption of the law, it is presumed to be originally the wife’s debt and a contract with reference to her separate property and estate, and comes exactly within the rule explicitly announced in the case of Bank of Oonw merce v. Baldwin, 12 Ida. 202, 210, 85 Pae. 497.

Hon. W. W. Woods. Judge. Action to recover damages for personal injuries. Judgment for plaintiff. New trial granted, from which order plaintiff appeals. The court in granting a new trial certainly infringed upon the province of the jury, disregarded the findings of the jury, and constituted himself a trier of facts, for it was for the jury to say what was the proximate cause of the injury to the appellant. (Pilmer v. Boise Traction Co., 14 Ida. 327, 125 Am.

<p>APPEAL from tbe District Court of the Eighth Judicial District, in and for Kootenai County. Hon. Robert N. Dunn, Judge.</p> <p>Action to recover for certain stull timber alleged to have been appropriated to the use of defendants. Judgment for the plaintiff.</p> <p>In an action for conversion, it is necessary “that the goods claimed to have been converted should be described with convenient certainty in order that the jury know what is meant and in order that the defendant may be protected from another action based upon the same cause of action. ” (21 Ency. PI. & Pr. 1068; 38 Cye. 2067; Edgerly v. Emerson, 23 N. H. 555, 55 Am. Dee. 207.)</p> <p>Neither one can claim from the other the total amount of his goods, if any of the goods so intermingled are lost while intermingled. Both parties must bear their proportionate loss. (Martin v. Mason, 78 Me. 452, 7 Atl. 11.)</p> <p>Respondent sufficiently described bis property, so as to put appellants upon tbeir notice as to just what property had been converted by them, and an examination of appellants’ pleadings and their evidence conclusively shows that they had sufficient notice of the character of the property alleged by respondent to have been wrongfully converted by them. (33 Cyc. 2067; 47 Am. Dig., “Trover and Conversion,” sec. 194; Greenehaum v. Taylor, 102 Cal. 624, 36 Pac. 957; Crocker v. Hopps, 78 Md. 260, 28 Atl. 99.)</p> <p>It is the province of the court to determine what particular facts the jury shall find specially, and neither party has a right to dictate the terms of such question, nor does error lie on the refusal of the court to comply with such dictation. {Lufkins v. Collins, 2 Ida. 256, 10 Pac. 300.)</p>

<p>APPEAL from the District Court of the Second Judicial District, in and for Latah County. Hon. Edgar C. Steele, Judge.</p> <p>Action to recover balance for the sale of personal property. Judgment for plaintiff. Defendants appeal.</p> <p>One who sells or agrees to sell goods by sample thereby warrants the bulk to be equal to the sample. (Sec. 3325, Rev. Codes.)</p> <p>This principle is true independent of statute. (25 Cyc. 223.)</p>

<p>APPEAL from tbe District Court of the First Judicial District for Shoshone County. Hon. W. W. Woods, Judge.</p> <p>Action to recover for damages alleged to have been sustained by reason of the failure of covenants of warranty in a deed of conveyance. Judgment for defendant.</p> <p>The covenant there expressed is not one of warranty of title, or of quiet enjoyment against encumbrances. It is that the property so conveyed is free from encumbrances — that there are no encumbrances on it. In ease of breach of covenant against encumbrances, the breach occurs when the deed is given, and no eviction is necessary. (Warren v. Stodchart, 6 Ida. 692, 59 Pac. 540.)</p> <p>In an action on a covenant against encumbrances, if the plaintiff has purchased or extinguished the outstanding encumbrance, he is entitled to recover the reasonable price which he has fairly and necessarily paid. (Anderson v. Knox, 20 Ala. 156; Morehouse v. Heath, 99 Ind. 509; Henderson v. Henderson, 13 Mo. 151; Kellogg v. Malin, 62 Mo. 429; 14 Am. Dig. 346; Utica C. & 8. V. B. Co. v. Gates, 8 App. Div. 181, 40 N. Y. Supp. 316; Hartshorn v. Cleveland, 52 N. J. L. 473, 19 Atl. 974.)</p> <p>The general rule for the measure of damages in an action for its breach by reason of encumbrance existing upon the property sold, at the time of sale, is the loss actually sustained by the covenantee with interest. (Christy v. Ogle, 33 Ill. 295; Harrington v. Bean, 89 Me. 470, 36 Atl. 986; Wet-more v. Green, 11 Pick. (Mass.) 462; Lockwood v. Nichols, 14 Daly, 182, 6 N. Y. St. 220; 11 Cyc. 1165.)</p> <p>A special warranty following a general conveyance against encumbrances will not limit the latter. (2 Sutherland on Damages, see. 5, p. 1779; Duroe v. Stephens, 101 Iowa, 358, 70 N. W. 610.)</p> <p>Before there can be a recovery or a cause of action stated there must be an allegation of a breach of the covenant on which plaintiff seeks to recover. (5 Ency. PI. & Pr. 369.)</p> <p>Where a deed contains express covenants of general warranty, the statutory covenants are not implied, and a grantee whose possession has never been disturbed cannot recover on the statutory covenant. (Douglass v. Lewis, 3 N. M. 345, 9 Pac. 377; S. C., 131 U. S. 75, 9 Sup. Ct. 634, 33 L. ed. 53 ; Leddy v. Enos, 6 Wash. 247, 33 Pae. 508; Dun v. Dietrich, 3 N. D. 3, 53 N. W. 81; Weems v. McCaughan, 7 Smedes & M. (Miss.) 422, 45 Am. Dec. 314, and note citing many cases; Crouch v. Fowle, 9 N. H. 219, 32 Am. Dec. 350, and cases cited.)</p> <p>No covenants are implied from the use of the word “grant” in a conveyance where they are “restrained by express terms contained in such covenant.” (Rev. Codes, see. 3120.)</p> <p>Under a covenant for quiet and peaceable possession there must be an eviction before the covenant is broken. (8 Am. & Eng. Ency. Law, 98, and eases cited.)</p>

<p>Frauds — Statute: of — Contract—Memorandum of — Concurrent Promises — Obligations—Mutuality—Void for Want of — Parties to be Charged — Signed by — Sufficiency of Memorandum.</p> <p>(Syllabus by tbe court.)</p> <p>1. See. 6009, Eev. Codes, provides that certain agreements are invalid unless the same, or some note or memorandum thereof, be in writing and subscribed by the party charged, or his agent, and the evidence of such agreement cannot be received without the writing or secondary evidence of its contents.</p> <p>2. Where H. & H., as parties of the first part, agree with H., as party of the second part, that the first party “hereby sells and agrees to deliver to the seeond party .... all our Barley raised this season except 400 sacks on or before October 1st, 1911 Sacked and in good condition .... party of the seeond party agrees to pay $117% for wliite winter Barley and 112 for blue Barley .... (Signed) Ed Hobart and James Hobart,” and not signed by the second party, and no part of the consideration is paid, held, not sufficient to take the contract out of the provisions of see. 6009, Eev. Codes.</p> <p>3. An agreement entered into between competent parties, in order to be binding, must be mutual, and this is especially true when the consideration consists of mutual promises, and if it appears that one party never was bound on his part to do the acts which form the consideration for the promise of the other, the agreement is void for want of mutuality.</p> <p>4. The rule of law that a promise is a good consideration for a promise requires that there should be an absolute mutuality of engagements so that each party may have an aetion upon it or neither will be bound.</p> <p>5. Under the provisions of see. 6008, Eev. Codes, a court may compel the specific performance of an agreement in case of part performance thereof.</p> <p>6. Under the provisions of sec. 16, Eev. Codes, the singular number includes the plural and the plural the singular.</p> <p>7. The provisions of see. 6009, Eey. Codes, where the note or memorandum therein referred to.is required to be subscribed by the party charged, were intended to and do require such memorandum to he signed hy both parties, where the consideration of such contract consists of the mutual promises of each.</p> <p>8. Under the provisions of see. 6009, Eev. Codes, some of the contracts referred to therein require the signature of only one party, the party charged, and in other contracts the consideration for which is the mutual promises of the parties to the contract, and where no part of the contract has been performed, the memorandum referred to in said section must be signed by the parties to such agreement or contract in order to take the same out of the provisions of said section and bind both parties.</p> <p>9. In such contract the promises must be mutual and reciprocal to constitute a consideration obligatory and binding upon each party, so that each may have an action against the other upon it.</p> <p>10. Said memorandum, to be sufficient under the statute, must be complete in itself as to all the essentials of the contract, and leave no essential to be established by parol.</p>

<p>Misconduct of Jury — Satisfaction of Chatted Mortgage — Instructions.</p> <p>(Syllabus by the court.)</p> <p>1. Affidavits charging misconduct of jury examined and held insufficient to show any injustice sustained by the moving party or substantial reason for granting a new trial.</p> <p>2. In an action by mortgagor against a mortgagee for damages and penalty under sec. 3402, Eev. Codes, on appeal from the judgment where the evidence is not brought up in the record, instructions will not be considered, although excepted to in the lower court, where the appellate court cannot say as a matter of law that such instructions would have been erroneous under any state of facts which might have been presented in the case; but, on the contrary, the appellate court will assume that the instructions were given in the light of the evidence adduced on the trial.</p>

.Hon. John M. Flynn, Judge. Action by plaintiff for a perpetual injunction against defendants. Judgment for plaintiff and defendants appealed. The lease intends to create a monopoly in so far as it can lawfully be^done in favor of the transportation company in a public terminal facility. So long as the plaintiff enjoys the facility, this wharf, in relation to freight not billed through, the railroad company is bound to grant defendants the same privilege.

Hon. John M. Flynn, Judge. Action to probate a will, and a contest of such will. Judgment for the plaintiff. One relying upon the law to do a particular thing must show that he comes within the law and the prescribed regulations thereof. (Goodwin v. Smith, 72 Ind. 113-116, 37 Am.

<p>Negligence — Nonsuit—Sufficiency of Evidence.</p> <p>(Syllabus by the court.)</p> <p>1. Where a motion is made for a nonsuit at the close of the evidence on the part of the plaintiff, upon the ground that the evidence is insufficient to warrant the submission of the case to a jury, and the motion is denied, and evidence is thereafter offered by the defendant, the ruling of the trial court is not reviewable upon appeal from the judgment or from the order overruling the motion for a new trial.</p> <p>2. It is the duty of the master to furnish the servant with a reasonably safe place at which to work, and with reasonably safe machinery, tools and implements with which to work, and if the employer discharges such duties and the employment is accepted by the employee, then the employee assumes all the risk and hazard incident to or attendant upon the particular employment or the performance of the particular work.</p> <p>3. Where no evidence is offered which shows that an animal blind in one eye is more likely to kick than if such animal had two good eyes, the jury or court cannot presume that such horse, blind in one eye, will be more liable to kick than he would if he had two good eyes.</p> <p>4. Where an employer employs an employee to work a horse in a particular way, and at a certain place, and such horse is unbroken to such work, and such fact is known by the employer and also the employee, and tine employee-knows as much about the horse and its character and its likelihood to work and what it will do and how it may act as the employer, and said employee commenees using the horse and uses it for two hours, and by such use learns that the horse has not been broken to such work, such employee assumes the risk incident to the breaking of the horse and its use in being broken, which was unknown to the employer, and could not have been known to the employer, and the employee is fully advised of the character of the horse, then the employee assumes the risk incident to the breaking of the horse to do such work.</p> <p>5. The evidence in this case examined, and held that there is no substantial evidence to sustain the verdict and judgment from which the appeal is taken.</p>

Hon. Edgar C. Steele, Judge. Action to recover under a contract for shortage in wood sold at execution sale. Demurrer to complaint sustained and judgment of dismissal entered. The sheriff and his sureties are liable for the misappropriation of funds, in an execution sale, by the sheriff and his deputy.

Hon. Edgar C. Steele, Judge. Action to recover damages for the killing and wounding of certain horses. Judgment for plaintiff. It is not contended, nor is there any proof, that the defendant failed in any statutory duty which it owed to the plaintiff or the public generally, and negligence cannot be presumed, in the absence of proof, except where some law has been violated. (Cottrell v. Union Pac.

<p>APPEAL from the District Court of the Second Judicial District for Nez Perce County. Hon. Edgar C. Steele, Judge.</p> <p>Action in replevin to recover the possession of personal property. Judgment for defendant.</p> <p>Under conditional sale agreements that title shall not pass until full payment provided by the contract, title does not pass until such payment. (Barton v. Groseclose, 11 Ida. 227, 81 Pac. 623; Kester v. Schuldt, 11 Ida. 663, 85 Pac. 974; Mark Means Tsf. Co. v. McKinzie, 9 Ida. 165, 73 Pac. 135; Parke etc. Co. v. White River Lumber Co., 101 Cal. 37, 35 Pac. 442; Studebaker Bros, v.' Mau, 13 Wyo. 358, 110 Am. St. 1001, 80 Pae. 151; Harkness v. Russell, 118 U. S. 663, 7 Sup. Ct. 51, 30 L. ed. 287.)</p> <p>“Courts of equity have not the power to make contracts for parties, nor to alter those which the parties have deliberately made .... and when it also appears that the purchaser is without excuse for his delay, the courts will not relieve him from the consequences of his default.” (Grey v. Tubbs, 43 Cal. 359; Martin v. Morgan, 87 Cal. 203, 22 Am. St. 240, 25 Pac. 350; Grigg v. Landis, 4 C. E. Green (19 N. J. Eq.), 350.)</p> <p>Plaintiff had but one remedy under the terms of this conditional sale contract. He has sued upon the contract in claim and delivery, and having elected, if election he had, has excluded all rights to sue upon the noté. (Parke etc. Co. v. White River Lbr. Co., 101 Cal. 41, 35 Pac. 442; Bailey v. Bervey, 135 Mass. 174.)</p> <p>The action in claim and delivery showed the court the nature of the action, and if there was an election, plaintiff had elected, and it was not the province of the court to prevent such election, and if made, could not take away the right by finding contrary thereto. (Matteson v. Equitable Min. & Mill Co., 143 Cal. 436, 77 Pac. 144; Bolt Mfg. Co. v. Ewing, 109 Cal. 353, 42 Pac. 435.)</p> <p>An instrument in form a lease, where the amount to be paid as rent is the purchase price of the article, is a conditional sale. (35 Cyc. 656, and cases cited, and 34 Cyc. 1342.)</p> <p>"Where goods have been sold reserving the title as security for the purchase money, a large portion of which has been paid, without demand, a tender on demand of the amount remaining due is sufficient to retain in vendee the right of possession. (O’Rourke v. Iladcock, 114 N. Y. 541, 22 N. E. 33; Taylor v. Finley, 48 Vt. 78; New Home Sewing Machine Co. v. Bothane, 70 Mich. 443, 38 N. W. 326; People’s Furniture Co. v. Crosby, 57 Neb. 282, 73 Am. St. 504, 77 N. W. 658.)</p>