Volume 23 — Idaho Reports

Hon. John F. MacLane, Judge. . Action to quiet title to real estate. Judgment for plaintiff. In view of the serious consequences to an owner of a mortgage upon refusal of a tender, which may often amount to an absolute loss of the entire debt, and the strong temptation which must exist to contrive merely colorable and sham tenders not intended in good faith, the evidence should be so full, clear, and satisfactory as to leave no reasonable doubt that the tender was made.

Hon. Robert N. Dunn, Judge. Action to enjoin the issuance and sale of certain municipal ■coupon bonds and declare ordinance No. 380 of the city of Coeur d’Alene void. Judgment for defendant and the plaintiff appealed. Under the ordinance in question, the city is to issue its promise to pay. It necessarily follows that the city becomes indebted.

<p>APPEAL from the District Court of the Eighth Judicial District for Kootenai County. Hon. John M. Flynn, Judge.</p> <p>Action upon a debt and the appointment of a receiver.</p> <p>Counsel cite no authorities on point decided.</p>

<p>Original action for writ of mandamus to compel the assessor to execute a tax deed.</p> <p>Retroactive or retrospective statutes relate to past acts and transactions. They are not looked upon with favor. (2 Lewis’ Sutherland Stat. Const., sees. 641, 1160, 1161; Montpelier v. Senter, 72 Yt. 112, 47 Atl. 392; Brown v. Hughes, 89 Minn 150, 94 N. W. 438. See, also, Bauer Grocer Go. v. Zelle, 172 111. 407, 50 N. E. 238, and numerous eases cited in the note to p. 1158, 2 Sutherland, supra.)</p> <p>The rule is especially applicable where the statute, if given a retrospective operation, would be invalid, as impairing the obligation of a contract or interfering with vested rights. (2 Sutherland, pp. 1159, 1160, supra.)</p> <p>The right of property acquired by the purchaser at this sale, and the right of redemption remaining to the owner, must both be governed by the law in force at the time of sale. {Black on Tax Titles, sec. 175; Merrill v. Hearing, 32 Minn. 479, 21 N. W. 721.)</p> <p>The purchase at a tax sale is a contract, made under the iaw as it then exists, and upon the terms prescribed by law, and no subsequent statute can import new terms into it or add to those before expressed. (Cooley on Taxation, 2d ed., 545; Robinson v. Howe, 13 Wis. 341; Cargill v. Power, 1 Mich. 369.)</p> <p>A provision affecting the period of redemption can only apply to sales after the day on which the act took effect. (Blackwell on Tax Titles, 5th ed., sec. 729.)</p> <p>. The enforced sale of property on execution, or for the nonpayment of taxes, constitutes a contract with the purchaser which cannot be materially altered without his consent. {Peralta Land etc. Co. v. Shaffer, 116 Cal. 518, 48 Pac. 613, 58 Am. St. 194; Cooley, Const. Lim., 6th ed-., p. 353. Rollins v. Wright, 93 Cal. 395, 29 Pac. 58 ; Haaren v. High, 97 Cal. 445, 32 Pae. 518.)</p>

<p>Drainage District — Organization—Qualification of Voter — Constitution — Statutes.</p> <p>(Syllabus by the court.)</p> <p>1. Sec. 2448, Rev. Codes, which provides, among other things, that the qualification of voters voting at an election held for the purpose of establishing a drainage district shall be as follows: “Every natural person of legal age, who is the bona fide owner of forty acres or a smaller traet of real estate within the limits of such district as established by the board of county commissioners, shall be entitled to one vote, and such person shall be entitled to an additional vote for each forty acres of real estate owned as aforesaid in exeess of the first forty acres; but if it be found that the foregoing provisions in this section as to qualifications of voters are invalid, then such qualifications shall be as follows: Every natural person of legal age who is a bona fide owner of real estate within the limits of said district, as established by said board of county commissioners, shall be entitled to one vote,” is in contravention of the constitution of Idaho, and violates sec. 2, art. 6, and sec. 20, art. 1, and sec. 4, art. 6, of the constitution of Idaho.</p> <p>2. See. 2, art. 6, of the constitution provides: “Except as in this article otherwise provided, every male or female citizen of the United States, twenty-one years old, who has actually resided in this state or territory for six months, and in the county where he or she offers to vote, thirty days next preceding the day of election, if registered as provided by law, is a qualified elector; and until otherwise provided by the legislature.....”</p> <p>3. Sec. 20, art. 1, of the constitution provides: “No property qualification shall ever be required for any person to vote or hold office except in school elections or elections creating indebtedness.”</p> <p>4. Sec. 4, art. 6, of the constitution provides: “The legislature may prescribe qualifications, limitations, and conditions for the right of suffrage additional to those prescribed in this article, but shall never annul any of the provisions in this article contained.”</p> <p>5. By the provisions of Title 15, Rev. Codes, vol. 1, the legislature intended to provide for the organization and creation of .drainage districts, and such districts are to be created out of territory of the state, and are legal subdivisions of the entire state; and by the creation of such districts under the statute, certain steps are to be taken, including an election for the creation of said district and for commissioners of said district and the issuance of bonds, and a process of government and improvement is provided for. These various provisions clearly bring a drainage district within the elass recognized and approved by this court in a number of cases.</p> <p>6. If the different sections and provisions of a legislative act are connected in subject matter dependent upon each other and designated to operate for the same purpose, or are otherwise so dependent in meaning that it cannot be presumed that the legislature would have passed one without the other, then if one part fails the entire act must fall.</p>

Hon. W. W. Woods, Judge. Action to recover from the stockholders and directors of a state bank the balance of a deposit made by the plaintiff in said bank. Demurrer to the complaint sustained and judgment of dismissal entered.

<p>Corporation — Cause op Action — Dividends—Illegal Payment op— Dissolution op Corporation — Representative op Creditors — Receiver is — Statute op Limitations — Action not Barred by— Liability op Directors.</p> <p>(Syllabus by the court.)</p> <p>1. Under the provisions of sec. 2732, Rev. Codes, the directors of a corporation are prohibited from making dividends except from the surplus profits arising from the business of the corporation, and the directors are also prohibited from dividing, withdrawing or paying to the stockholders, or any of them, any part of the capital stock, and are prohibited from reducing or increasing the capital stock except as in the statute provided.</p> <p>2. Poí a violation of the provisions of said section of the statute, certain directors are in their individual and private capacity made jointly and severally liable to the corporation and to its creditors, in event of dissolution, to the full amount of the capital stock so divided, withdrawn, paid out or reduced.</p> <p>3. Sec. 5185, Rev. Codes, provides that a corporation may be dissolved by the district court upon its voluntary application for that purpose, and see. 5186 provides what the application for that purpose must contain. Those provisions of the statute apply to the voluntary dissolution brought about by the. stockholders themselves.</p> <p>4. Under the provisions of said see. 2732, Rev. Codes, certain liabilities are imposed on certain directors in event of dissolution of the corporation,- and under the provisions of that section it is not neeessary that the dissolution should have been a voluntary one, declared by a court of competent jurisdiction, but when a corporation ceases business because of its insolvency and is put in the hands of a receiver, it is dissolved within the meaning of sec. 2732, Rev. Codes, relating to the personal liability of stockholders.</p> <p>5. The foundation of an aetion brought under the provisions of said see. 2732 is based on the illegal payment of dividends in fraud of the creditors, and the receiver, as the representative of the creditors, may maintain an action to recover the amount of such dividends so illegally paid.</p> <p>6. Held, that the statute of limitations, under the allegations of the complaint, had not run prior to the commencement of this action.</p> <p>7. Held, that it was not neeessary to allege that at the time said illegal dividends were paid the creditors were then creditors of the corporation.</p> <p>8. Held, that it was not necessary to allege in the complaint that at the time said illegal dividends were paid the corporation was insolvent.</p> <p>9. Held, that where a statute prohibits the directors of the corporation from declaring a dividend from its capital stock, it is not neeessary for a recovery against them that the assets of the corporation be first exhausted or its liability be first adjudicated.</p> <p>10. The complaint held to state a cause of aetion.</p>

Hon. Edgar C. Steele, Judge. Action to recover a judgment for debt. Judgment for respondent. Under the peculiar conditions of the lease and of the obligation, it is not a current bill or an ordinary obligation of the firm. On this account the general authorities on the question of a partnership and the liability of a retiring partner will be of little assistance to the court.

<p>Negligence — Evidence—Circumstantial—When Sufficient — Just— Yerdict — General—Special.</p> <p>(Syllabus by the court.)</p> <p>1. Under the provisions of see. 4397, Bev. Codes, in an action for the recovery of money only, or specific real property, the jury in their discretion may render a general or special verdict, and where a special finding of fact is inconsistent with the general verdict, the special finding controls the general verdict, and judgment must be entered in accordance with the special finding.</p> <p>2. The evidence in this case examined, and held, that while there is a conflict in the evidence, we And that there is sufficient evidence in the record to support the findings of the jury and the judgment of the court.</p> <p>3. It is a recognized rule of law in this state that in a civil suit, where negligence is the issue for the jury to determine, it is sufficient if the evidence, whether direct or circumstantial, creates a preponderance of the proof.</p> <p>4. Circumstantial evidence is legal evidence, and if the facts are shown by circumstantial evidence, and are such that reasonable men may fairly differ upon the question whether there was negligence or not, and the jury concludes that there was negligence, the verdict of the jury should .not be set aside or reversed.</p> <p>5. In an action to recover damages resulting from alleged negligence, if the facts are such that more than one reasonable conclusion or inference can be drawn from the circumstantial facts in evidence — one that negligence has been shown and the other that negligence has not been shown — and if the jury decide and determine that negligence has been shown, the action of the jury should not be disturbed.</p> <p>6. Other questions immaterial and not prejudicial examined, and held not to be grounds for reversal.</p>

<p>Estoppel to Claim Deed a Mortgage — Vendor’s Lien — Wipe’s Signature not Security — Notice op Lien — Sufficiency op Evidence.</p> <p>(Syllabus by the court.)</p> <p>1. In an action to foreclose a vendor’s lien on real estate, a third party who has purchased the property from the original vendee and taken an absolute deed to the property and holds his title under such deed, cannot be heard to maintain that the original conveyance to such third party’s vendor was a iportgage and not a deed, and that it did not pass title to the property. In other words, he cannot both claim under the deed and against the same deed.</p> <p>2. Where a person sells real estate to a married man and conveys the same by good and sufficient deed, and takes as a part of the purchase price promissory notes executed by the vendee and the vendee’s wife, held, that the signature of the wife to such notes does not constitute such security as will amount to a waiver of the vendor’s lien within the provisions of sec. 4431 of the Rev. Codes of this state.</p> <p>3. Where the purchaser of real estate is notified at the time he purchases that the land has not been paid for in full and the original owner of the land is at that time residing on the land, and he also notifies the purchaser that the full purchase price has not yet been paid, held, that such purchaser is chargeable with notice that the original vendor has a lien on the property for the balance of his purchase price, and is chargeable with the duty of investigating and inquiring as to the amount due under sueh lien.</p> <p>4. Evidence in this case examined, and held sufficient to support the findings and judgment that the purchaser of real estate had notice of the existence of a vendor’s lien on the property.</p> <p>5. Evidence examined, and held not sufficient to support the judgment for attorneys’ fees.</p>

<p>Labor and Materialman’s Lien — Conflict of Laws — Description of Property — Destruction of Improvement or Repair — Principle of Lien Law — Improvement on Main Works — Use and Consumption of Material — Lien on Whole Property.</p> <p>(Syllabus by the court.)</p> <p>1. The act of March 13', 1909 (1909 Sess. Laws, 165), does not repeal see. 5111 of the Rev. Codes, but affords an additional and cumulative remedy, and specially provides protection for the state, city or other municipal corporation entering into such contract, and should be construed in harmony with the provisions of see. 5111, Eev. Codes.</p> <p>2. A description of the property as “the pumping plant and waterworks system of the city of Lewiston, said waterworks system being located on the south bank of the Clearwater river about one and one-half miles above the point where the Clearwater river flows into the Snake river,” is a sufficient description upon whieh to predicate a lien against the city’s waterworks system, and is sufficient for identification thereof.</p> <p>3. The fact that the labor performed and material furnished for the construction, alteration and repair of any building, structure or other works was carried away by floods and high water without any fault of the man who performed the labor and furnished the material, does not deprive the laboring man or material-man from preferring his liens under the statute and such lien attaching to the real estate on which the work was done or improvement made.</p> <p>4. Under the laws of this state, the test for a mechanic’s lien is: Was the labor performed or material furnished in the construction, alteration or repair of the building, structure or other works? And the right to a lien is not dependent upon the actual enhanced value of the property on whieh the labor was performed or for which the material was furnished.</p> <p>5. The purpose of the statute is to compensate the man who performs labor under or furnishes material to be used in the construction, alteration or repair of a building or structure, irrespective of the value which such labor or material may add to the real estate.</p> <p>6. Where labor was performed and material furnished in the construction of an intake pipe and the placing of a steel cage around the pipe as an extension and addition to a waterworks system, a lien filed for labor performed and material furnished in connection with such work will attach to the waterworks system, notwithstanding the fact that the intake pipe on whieh the work was done was never completed or actually attached to the system.</p> <p>7. Where a city entered into a contract to have an intake pipe added to the pipe of its waterworks system, extending the main out into the bed of the river, and the contractors found it necessary to build a coffer-dam in the stream in order to carry on the work or to employ some other means whieh would accomplish the same end, held, that laboring men and materialmen would be entitled to a lien for labor performed upon such coffer-dam and materials furnished in the construction thereof as a necessary incident to the performance of the contract, although such dam and material included therein would not be a part of the completed work and would not be of any use to the city when finally completed.</p> <p>8. In preferring a lien for labor and material under the mechanic’s lien laws of this state, a lien will be allowed for material furnished and actually used and consumed in the construction of the building or other structure, irrespective of the fact that such use and consumption may not be in the main building or structure itself, but in such work as was necessarily incident to the carrying on of the principal work and discharging the contract.</p>

<p>APPEAL from the District Court of the Second Judicial District for Nez Perce County. Hon. E. C. Steele, Judge.</p> <p>That the Idaho rule follows the Pennsylvania doctrine, and not that of New York, has been repeatedly held by this court, the effect of its decisions being to hold the property involved subject to the claims of laborers and materialmen, irrespective of moneys due the contractor, this court having held that full payment to the contractor by the owner constitutes no defense to the lienor’s claims. (Shaw v. Johnston, 17 Ida. 676, 107 Pac. 399.)</p> <p>For a similar liberal construction of the lien laws, see Nelson Bennett Co. v. Twin Falls Land & Water Co., 14 Ida. 5, 93 Pac. 789; Badger Lumber Co. v. Malone, 8 Kan. App. 121, 54 Pac. 692; Weeter Lumber Co. v. Fales, 20 Ida. 255, 118 Pac. 289.</p> <p>“The mechanic’s lien law is remedial, and should be liberally construed.” (Sarchet v. Legg, 60 Or. 213, 118 Pac. 203; Lyons v. Howard, 16 N. M. 327, 117 Pac. 842.)</p> <p>The true test of recoverability would seem not to be the arbitrary one of whether the materials furnished form a part of the completed structure, but, rather, were the labor or materials furnished so essential that the completed structure could never have been attained without them or by furnishing other equivalent material or labor. (Pratt v. Nakdimen, 99 Ark. 293, 138 S. W. 974, Ann. Cas. 1913A, 872; Giant Powder Co. v. Oregon Pac. R. Co., 42 Fed. 470, 8 L. R. A. 700; Hill v. Twin Falls Salmon River Land & Water Co., 22 Ida. 274, 125 Pac. 204.)</p> <p>As to the abandonment of the work, see 27 Cyc. lOOh.</p> <p>As to the destruction of the building or improvement, see 27 Cyc. 286; Viles v. Green, 91 Wis. 217, 64 N. W. 856.</p>

Hon. E. C. Steele, Judge. Action for foreclosure of mechanic’s lien. Judgment for the plaintiffs and defendant appealed.

<p>APPEAL from the District Court of the Second Judicial District for Nez Perce County. Hon. E. C. Steele, Judge.</p>

Hon. James G. Gwynn, Judge.» Action to remove a county commissioner for allowing illegal fees and charges against the county, and for failure to do his duty.

<p>APPEAL from the District Court of the Ninth Judicial District for Bonneville County. Hon. James G. Gwynn, Judge.</p> <p>A. S. Dickenson, Phil Averitt, R. S. Meyer and C. E. Crowley, for Appellant.</p>

Original contempt proceedings. Defendants found guilty of contempt. A publication pending a suit, reflecting on the court, the parties to the suit, the witnesses, the jurors or the counsel, is a contempt of the court. (Hollingsworth v. Duane, Wall. Sr. 77, 102, Fed. Cas. Nos. 1616-1618; In re Bronson, 12 Johns. (N. Y.) 460; Respublica v. Passmore, 3 Yeates (Pa.), 441, 2 Am.

<p>Application for writ of habeas corpus.</p> <p>The information is in tbe most contracted form, barely sufficient with the aid of the statute to make a charge of murder. Without the aid of the statute, it would not be good for that purpose. The language thus used in connection with see. 6732 does not constitute the crime of assault with a deadly weapon.</p> <p>The information does not charge that the murder was committed with an instrument either deadly or otherwise. Therefore it cannot charge an assault with a deadly weapon.</p> <p>Under these conditions, and under the scant pleadings the authorities hold that the lesser offense is not included in the greater, and the verdict is void, and defendant must be discharged. (People v. Murat, 45 Cal. 281; Mapula v. Territory, 9 Ariz. 199, 80 Pac. 389; Bryant v. State, 41 Ark. 359; Lindsey v. State, 53 Fla. 56, 43 So. 87; Goldin v. State, 104 Ga. 549, 30 S. E. 749; State v. Miller, 124 Iowa, 429,100 N. W. 334; State v. Desmond, 109 Iowa, 72, 80 N. W. 214; Beck-with v. People, 26 111. 500; Terhune v. Commonwealth, 144 Ky. 370, 138 S. W. 274; State v. Way, 76 Kan. 928, 93 Pac. 159, 14 L. R. A., N. S., 603; Scott v. State, 60 Miss. 268; People v. Adams, 52 Mich. 24, 17 N. W. 226; Territory v. Dooley, 4 Mont. 295, 1 Pac. 747; Alyea v. State, 62 Neb. 143, 86 N. W. 1066; State v. Thomas, 65 N. J. L. 598, 48 Atl. 1007; Gorman v. State, 52 Tex. Cr. 24, 105 S. W. 200; Cates v. Commonwealth, 111 Va. 837, 69 S. E. 520; State v. Porter, 48 La. Ann. 1539, 21 So. 125; State v. Shear, 51 Wis. 460, 8 N. W. 287; State v. Romano, 41 Wash. 241, 83 Pac. 1; State v. Ackles, 8 Wash. 462, 36 Pac. 597; McLain, Crim. Law, sec. 389; Clark, Crim. Procedure, sec. 356; Wharton, Crim. Pleadings & Pr., sec. 250; Bishop, New Crim. Law, secs. 794-798.)</p> <p>If in any conceivable case, under any possible state of facts, the verdict can be sustained upon a charge of murder in the form mentioned in the information, petitioner should be remanded to the custody of the sheriff and turned over to the proper officers of the state penitentiary. (Ex parte Cur-now, 21 Nev. 33, 24 Pac. 430; In re Marshall, 6 Ida. 516, 56 Pac. 470; Ex parte Knudtson, 10 Ida. 676, 79 Pac. 641; Rev. Codes, sec. 8354.)</p> <p>The charge ‘ ‘ did wilfully, unlawfully, feloniously and with malice aforethought kill and murder,” etc., includes the taking of life by any conceivable means. (State v. Ellington, 4 Ida. 529, 43 Pac. 60; State v. Sly, 11 Ida. 110, 80 Pac. 1125; People v. Nichol, 34 Cal. 211; Taylor v. People, 21 Colo. 426, 42 Pae. 652; People v. Steventon, 9 Cal. 273.)</p> <p>When a person is charged with a given offense, he is bound by law to take notice of whatever lesser offense he may be convicted of thereunder, as the law governing the subject matter and practice then stands. (Rev. Codes, sec. 7926; State v. Burk, 89 Mo. 635, 2 S. W. 10.)</p> <p>A fair interpretation of the words ‘‘necessarily included in the charge in the information,” as used in see. 7926 of the Rev. Codes, is, that if the evidence on the trial of the facts and circumstances of the offense charged necessarily prove the commission of the minor offense and each and every element thereof, such minor offense is necessarily included in such charge. (Ex parte Curnow, 21 Nev. 33, 24 Pac. 430; State v. Water, 39 Me. 65; Hopper v. State, 54 Ga. 389; State v. Lessing, 16 Minn. 75; James v. State, 36 Tex. 645; Bolding v. State, 23 Tex. App. 172, 4 S. W. 579; Maddox v. State, 41 Tex. 205; State v. Scott, 24 Vt. 127.)</p> <p>The test of whether an offense is necessarily included in a major offense is whether the lesser offense could be pleaded in a separate count in the same information under sec. 7681, Rev. Codes, and if it can, then it is included in a charge of the majoi offense. (Rev. Codes, sec. 7681; People v. Prague, 72 Mich. 178, 40 N. W. 243.)</p> <p>The rule of liberal construction in criminal pleadings prevails in this state; the substantial rights of the defendant were not prejudiced. (State v. Ellington, 4 Ida. '529, 43 Pac. 60; State v. Caldwell, 21 Ida. 663, 123 Pae. 299; State v. Shuff, 9 Ida. 115, 72 Pac. 664; State, v. Ireland, 9 Ida. 686, 75 Pac. 257; State v. Squires, 15 Ida. 515, 98 Pac. 113; State v. Sly, 11 Ida. 110, 80 Pac. 1125.)</p> <p>For complete brief, see State v. Young, 22 Wash. 273, 60 Pac. 650, 13 Am. Cr. Rep. 93, and notes; also Duffy v. State, 151 Ind. 250, 56 N. E. 209, 11 Am. Cr. Rep. 361, and notes.</p>

Original application for writ of habeas corpus to discharge the petitioner upon the ground that the judgment and sentence rendered upon conviction is void. “Jurisdiction to render the particular sentence imposed is as essential to its validity as jurisdiction of the person or subject matter.” (Church ou Habeas Corpus, sec. 362; Ex parte Cox, 3 Ida. 530, 32 Pac. 197, 95 Am. St. 29; Ex parte Justus, 3 Okl. Cr.

<p>Mining Claims — Extralateral Bights — Injunction Pendente Lite —Discretion or Court.</p> <p>(Syllabus by the court.)</p> <p>1. Where the Stewart Mining Company owns the Senator Stewart Fraction mining claim, and it is claimed that a vein which apexes in said mining claim extends on its dip outside of the exterior boundaries of said claim and underneath the surface boundaries of the Ontario mining claim, and the Ontario Mining Company is working said Ontario mining claim and extracting large amounts of ore therefrom, which is claimed by the Stewart Mining Company as a part of the Stewart Fraction vein on its dip, and an action is brought to determine the rights of the parties, and application is made for an injunction pendente lite, the action of the court in refusing to grant such injunction will not be disturbed unless it clearly appears that there has been an abuse of the discretion of the court in said matter.</p> <p>2. In this class of cases an injunction pendente lite, upon proper application, should be granted, unless it appears that there is no reasonable ground for the assertion of title in the plaintiff.</p> <p>3. In this class of cases it is within the discretion of the court to substitute an indemnifying bond in lieu of the injunction.</p>

<p>APPEAL from the District Court of the Third Judicial District for Ada County. Hon. Carl A. Davis, Judge.</p> <p>Action to recover a debt under contract.</p> <p>The authorities cited by counsel in their briefs do- not go to the grounds on which this case is decided. See former case, same title, 19 Ida. 304.</p>

<p>APPEAL from the District Court of the Third Judicial District for Owyhee County. Hon. Alfred Budge, Presiding Judge.</p> <p>Action to settle the priority and amount of water to which the parties are entitled from Sinker creek, for irrigation purposes.</p> <p>Some of the defendants allege in their cross-complaints that they are entitled to a certain quantity of water, per acre for irrigation of their land, while the decree gives them much more than is asked for in their cross-complaints. (Caldwell v. King, 76 Ala. 149; Enright v. Seymour, 8 N. T. 356; Ten Broeck v. Orchard, 79 N. C. 518.)</p> <p>The Bennetts acquired no rights whatever by reason of the appropriation of water nine years before they constructed a ditch for the use of the water and nine years before the water was actually diverted. (Ison v. Sturgill, 57 Or. 109, 109 Pac. 579, 110 Pac. 535; Ophir Silver Min. Co. v. Carpenter, 4 Nev. 534, 97 Am. Dee. 550; Cole v. Logan, 24 Or. 304, 33 Pac. 568; Hindman v. Bizor, 21 Or. 112, 27 Pac. 13; Seaweard v. Pac. Livestock Co., 49 Or. 157, 88 Pac. 963; Kendall v. Joyce, 48 Wash. 489, 93 Pac. 1091; Long on Irrigation, see. 41.)</p> <p>By a change of point of diversion after the rights of appellant had attached, the Bennetts lost their priority to the use of water for the lands covered by the old ditch which was then abandoned. (Walker v. McGinness, 8 Ida. 540, 69 Pae. 1003.)</p> <p>In the ease of Hall v. Blacknum, 8 Ida. 272, 68 Pac. 19, this court held that fourteen years was not an unreasonable time in which to put a tract of land under irrigation, but the decision will hardly suffice in this case, where plaintiffs ask an extension of time for forty-six years in which to reclaim the land. (Bennett v. Bourse, 22 Ida. 249, 125 Pac. 1038; Cole v. Logan, supra; Hindman v. Bizor, supra; Seaweard v. Pacific Livestock Co., supra; Kendall v. Joyce, supra; Weldon Valley Ditch Co. v. Farmers’ Pawnee Canal Co., 51 Colo. 545, 119 Pac. 1056.) Economical use of water must be enforced. (State v. Twin Falls Canal Co., 21 Ida. 410, 121 Pac. 1039; Farmers’ etc. Ditch Co. v. Biverside Irr. Dist., 16 Ida. 525, 102 Pac. 481.)</p> <p>The evidence shows that there would be ample water from the spring alone to irrigate all lands lying below such spring, so that instead of requiring the delivery at the head of the ranch of a sufficient amount of water to irrigate the entire ranch the amount of water available for all lands lying below the house should be deducted from the amount of water to be delivered at the head of the ranch. (Vogel v. Minnesota Canal &'Reservoir Co., 47 Colo. 534,107 Pac. 1108; Whited v. Cavin, 55 Or. 98,105 Pac. 396.)</p> <p>The trial court is not only warranted in directing an amendment to the pleadings to conform to the proofs, after submission, but it is the duty of the court to do so whenever necessary to‘prevent a mistrial. (Secs. 4225, 4226, Rev. Codes; Hedstrom v. Union Trust Co., 7 Cal. App. 278, 94 Pae. 386; Stiles v. Hermosa etc. Co., 8 Cal. App. 352, 97 Pac. 91; Myers v. Holton, 7 Cal. App. 114, 98 Pac. 197; Hancock v. Board of Education, 140 Cal. 554, 74 Pae. 44; Iverson v. McDonnell, 36 Wash. 73, 78 Pae. 202.)</p> <p>Where plaintiff goes to trial upon an answer without objecting to the form or sufficiency of the denial, and gives evidence in support of the allegation as though the denial were sufficient, and does not suggest upon the trial that the denial is defective, he will be deemed to have waived the objection. (3 Ency. L. & P. 1358, and cases there cited; Loftus v. Fischer, 106 Cal. 616, 39 Pae. 1064; Kansas & A. V. Ry. Co. v. Dye, 70 Fed. 24, 16 C. C. A. 604; Wire v. Foster, 62 Iowa, 114, 17 N. W. 174.)</p> <p>Under the laws in force June 1, 1898, relative to the appropriation of water by posting and recording notice, an appropriation was complete upon the completion of the ditch constructed in compliance with the statutory provisions governing such appropriations, and such appropriation was not dependent upon the application of the water to beneficial use. (Secs. 3160-3163, Rev. Stats. 1887; Sess. Laws 1895, p. 175; Baiiey v. Tintinger, 45 Mont. 154, 122 Pac. 575; Wiel on Water Rights, 3d ed., secs. 395, 396.)</p> <p>“An appropriator may add from year to year acreage to his cultivated land, and increase his application of water thereto for irrigation as his necessities may demand, as his • abilities permit, until he' has put to a beneficial use the entire amount of water at first diverted by him and conducted to the point of intended use.” (Conant v. Jones, 3 Ida. 606, 32 Pae. 250; Hall v. Blackman, 8 Ida. 272, 68 Pae. 19; Taughenbaugh v. Clark, 6 Colo. App. 235, 40 Pae. 153.)</p> <p>Appellant went to trial without asking for judgment on his cross-complaint, introduced evidence and thereby waived an answer. (Conant v. Jones, 3 Ida. 606, 32 Pac. 250.)</p> <p>“In determining the duty of water, reference should always be had to lands that have been prepared and reduced to a reasonably good condition for irrigation.” (Farmers’ etc. Ditch Co. v. Riverside Irr. Dist., 16 Ida. 525, 102 Pac. 481.)</p> <p>Allegations of matters of evidence are not issuable facts. They are not admitted by failure to deny. (Siter v. Jewett, 33 Cal. 92; Moore v. Murdock, 26 Cal. 514; Nudd v. Thompson, 34 Cal. 39; Edmunds v. St. Louis R. Co., 3 Mo. App. 603; 1 Eney. PI. & Pr. 792.)</p> <p>Immaterial averments of a pleading need not be denied. They are not admitted by a failure to deny. (1 Ency. PI. & Pr. 791; citing Canfield v. Tobias, 21 Cal. 349; Doyle v. Franklin, 48 Cal. 537; Pink, v. Catanich, 51 Cal. 420; Adams Express Co. v. Darnell, 31 Ind. 20, 99 Am. Dee. 582; Goldstein v. Krause, 2 Ida. 294, 13 Pac. 232.)</p> <p>This court in considering the right of a party to change his water to different land has clearly held that if other parties are not injured thereby, he has such a right, irrespective of the provisions of sec. 3264, Rev. Codes. (Hard v. Boise City Irr. & L. Co., 9 Ida. 589, 76 Pac. 331, 65 L. R. A. 407; Village of Hailey v. Riley, 14 Ida. 481, 95 Pac. 686, 17 L. R. A., N. S., 86; Mahoney v. Neiswanger, 6 Ida. 750, 59 Pae. 561.)</p> <p>“The amount necessary for beneficial use is a question-of fact in each case.” (1 Wiel, Water Rights, 3d ed., sec. 481, p. 507.)</p> <p>This court will not cut down the amount of water decreed upon testimony the sole gist and burden of which is that the entire system must be changed at great cost and the entire ranch be overhauled for the benefit of a subsequent appropriated (NepM In'. Go. v. Vickers, 29 Utah, 315, 81 Pae. 144; Rodgers, v. Pitt, 129 Fed. 932.)</p>

Hon. Chas. P. McCarthy, Judge. Action for damages. Judgment for the plaintiffs and defendant appealed. The plaintiff must show that the alleged negligence was the proximate cause of the injury, and this fact cannot be presumed through inference or conjecture. (Elliott v. Alleghany Light Co., 204 Pa. 568, 54 Atl. 278.) The verdict should have been directed for the defendant, as there was no evidence of the cause of death, and the cause could only be inferred by conjecture.

<p>APPEAL from the District Court of the Ninth Judicial District for Fremont County. Hon. James G. Gwinn, Judge.</p> <p>Action by the plaintiff for damages for the killing of livestock. Judgment for plaintiff and defendant appeals.</p> <p>Instructions Nos. 2, 3 and 5 are the law as laid down by this court. (Patrie v. Oregon Short Line By., 6' Ida. 448, 56 Pac. 82; Johnson v. Oregon Short Line By. Go., 7 Ida. 355, 63 Pac. 112, 53 L. R. A. 744.)</p> <p>The complaint is sufficient to bring the case within the provisions of the statute; the evidence justifies and supports the verdict. (Kirn v. Gape Girardeau <& G. By. Go., 149 Mo. App. 708, 129 S. W. 475.')</p>

Hon. John F. MaeLane Judge. Action to determine the title of the respective parties to certain lands bordering on Boise river. Counsel for the appellant McClain contends that reopening this case was abuse of discretion, and prejudicial to appellant. (State v. Main, 31 Conn. 572; Pearson v. South, 61 Iowa, 232, 16 N. W. 99; Lynd v. Picket, 7 Minn. 184, 82 Am. Dec. 79; Ency. of Ev. 234.) When findings are unsupported by the evidence, the judgment will be reversed.

<p>.Fraud — False Representations and Statements — Evidence—Effect of False and Fraudulent Representations — Check—Innocent Purchaser.</p> <p>1. Fraud is never presumed; it must be established by clear and convincing evidence, and this is especially true where a party assails the integrity of a written contract.</p> <p>2. Where parties entering into a contract are mutually cognizant of the facts which enter into said contract, and each stands on the same footing with reference to the contract and the facts and circumstances under which such contract was entered into, and there is no fiduciary relation between them, the law will not aid or help either one of the parties upon the ground that he has not himself used diligence and common sense, if the means of information is equally open to both, and there has been a mistake without fraud or falsehood.</p> <p>3. Where N. sues H. upon a cheek issued by H. upon a bank, payable to S., and it is shown that as a consideration for said cheek S. made certain statements and representations as to seeurities whieb would be deposited by S. with H. as security for the debt for which the check is given, and S. indorses and delivers said check to jST. for a valuable consideration, and both N. and H. heard the same statements and representations made by S., and neither of said parties knew that such representations were false and made for a fraudulent purpose, and a written contract was made between H. and S. as to the deposit of the securities, and it was upon that instrument that H. issued and delivered the check, N. became the owner and holder of said check free from defenses available to prior parties among themselves, and may enforce the payment of the instrument for the amount thereof.</p>

<p>APPEAL from the District Court of the Seventh Judicial District for Canyon County. Hon. Ed. L. Bryan, Judge.-</p> <p>Action to enjoin the directors of an irrigation district from attempting to carry out a certain alleged contract, on the' ground the same was ultra vires. The third party intervened. Judgment for the plaintiff and intervenor appealed.</p> <p>Irrigation districts are formed for the sole purpose of obtaining and distributing water for the irrigation of the lands within the district, and the irrigation district law will be given a liberal construction so as to sustain contracts having for their object the increasing of the water supply and reducing the maintenance charges to the land owners, and which do not incur obligations on the part of the district, or in any way hinder or prevent it from discharging its duty to the land owners and from carrying out the purposes for which it was created. (Jenison v. Bedfield, 149 Cal. 500, 87 Pac. 62; Settlers’ Irr. Dist. v. Settlers’ Cañal Co., 14 Ida. 504, 94 Pac. 829; South Pasadena v. Pasadena Co., 152 Cal. 579, 93 Pac. 490; 2 Wiel on Water Rights, 3d ed., p. 1255; 3 Kinney on Irrigation, 2d ed., sec. 1387.)</p> <p>The board of directors of irrigation districts are empowered by sec. 2386, Rev. Codes, as amended, to “do any and every lawful act necessary to be done that sufficient water may be furnished to each land owner in said district for irrigation purposes,” and a contract made by the board, which is not expressly prohibited by law, which will increase the amount of water which the district may distribute to the land owners for irrigation purposes, and reduce the maintenance charge, is not ultra vires or void. (1 McQuillin, Municipal Corporations, sees. 376, 377; Bridgeport v. Housatonic B. B. Co., 15 Conn. 475, 501; 28 Cye. 634, 635, and cases there cited.)</p> <p>The board of directors of an irrigation district has precisely the powers expressly given it by the statute and no others, and the power to make the present contract has not been given by statute, and it is in fact expressly prohibited. (Sec. 2392, Ida. Rev. Codes; Lincoln and Dawson County Irr. Dist. v. McNeal, 60 Neb. 613, 83 N. W. 847-849; Mitchell v. Patterson, 120 Cal. 286, 52 Pac. 589; Siimson v. Allessandro Irr. Dist., 135 Cal. 389, 67 Pac. 496, 1034.)</p> <p>An irrigation district is a public or gimsi-municipal corporation. (Pioneer Irr. Dist. v. Walker, 20 Ida. 605, 119 Pac. 304; City of Nampa v. Nampa etc. Dist., 19 Ida. 779-787, 115 Pac. 979; Boehmer v. Big Bock Creek Irr. Dist., 117 Cal. 19, 48 Pac. 908; Merchants’ Nat. Bank v. Escondido Irr. Dist., 144 Cal. 329, 77 Pac. 937.)</p> <p>Sec. 2387 of the codes provides that the legal title to all property of the district vests in the district, and is held in trust for and set apart to the uses and purposes set forth in the title to which the section is a part and the use of a private individual for power purposes does not there appear. The board of directors is authorized to hold, use, acquire, manage, occupy and possess the same, but nowhere are they given the power to dispossess themselves or the district of any part of the property, much less to dispose entirely of any property vested in the district. (Hart v. Burnett, 15 Cal. 531; Merchants’ Bank v. Escondido Irr. Dist., supra; Tulare Irr. Dist. v. Collins, 154 Cal. 440, 97 Pae. 1124; Jenison v. Bedfield, 149 Cal. 500, 87 Pac. 62; 3 Dillon on Mun. Corp., 5th ed., sec. 1102; 28 Cyc. 624 (d).)</p>

Original proceeding in this court for a recommendatory judgment. The power of removal in the discretion and at the will of the appointing power is implied, and always exists unless restrained by some provision of law. (People v. Rotti, 126 N. Y. 180, 27 N. E. 267; People v. New York, 5 Barb. (N. Y.) 43; Ex parte Hennen, 38 U. S. (13 Pet.) 230, 10 L. ed. 138; Patton v. Vaughan, 39 Ark. 211; People v. Higgins, 15 111. 110; Newsom v. Cocke, 44 Miss. 352, 7 Am.

<p>Original proceeding for a recommendatory judgment.</p> <p>Same counsel as in Hyslop v. Board of Regents, ante, p. 341,129 Pac. 1073.</p>

lion. Ed. L. Bryan, Judge. Action by the Pioneer Irrigation District for the confirmation of the proceedings of the district taken with reference to a certain proposed contract with the United States. Judgment confirming the proceedings.

<p>Fraud — Rescission- of Contract — Sufficiency of Complaint — Admission of Evidence — Instructions—Sufficiency of Evidence.</p> <p>1. It is a general rule of law that a party defrauded in a bargain may, on discovering the fraud, either rescind the contract and demand back what has been received under it, or he may affirm the bargain and sue and recover damages for the fraud. If he elects the former course, he must not sleep on his rights, but must move promptly.</p> <p>2. A party electing to rescind a contract on the ground of fraud and misrepresentation, must place the other party as nearly as pussible in statu quo. To do this, if be has received anything under the contract, whether it be property or securities, he must restore it. This rule, however, does not apply to all eases, especially where property is worthless, and where the defrauded party has so dealt with the subject matter of the contract that it has beeome impossible to put the other in statu quo.</p> <p>3. Where an action is brought to rescind a contract and recover what the party suing parted with or its value, and to restore what was received, and the complaint alleges that the rescission of the contract resulted from the faet that the defendant had made statements at the time the contract of exchange was made that were false and fraudulent and known to the defendant to be false and fraudulent, and that such statements were relied upon by the plaintiff, and by reason of fraud and deceit the plaintiff was induced to make the contract which resulted in the exchange of the property from one to the other, the complaint is sufficient to state a cause of action.</p> <p>4. Where a complaint states that a contract was entered into by reason of certain representations made of the existence of certain facts, and the plaintiff relies upon such representations, which are the inducement which led the plaintiff to enter into said contract, and such representations are made directly affecting the subject matter of the contract and without which the contract would not have been made, then in that case the representations are material.</p> <p>5. A party to a contract may testify as a witness to the fact that he would not have entered into the transaction had he known the truth or had not the representations been made, where such facts and statements are peculiarly within the knowledge of the witness.</p> <p>6. The general rule in this state is that a judgment will not be reversed for the reason that an instruction does not state within its provisions all the law applicable to the facts of the case, where it appears that other instructions given in connection with the •objectionable instruction state the law applicable to the facts of the ease when taken into consideration with the instruction to which the objection is made, and the jury has not been misled or misdirected, when all the instructions are considered.</p> <p>7. Where instructions are requested and refused, and such refusal is assigned as error upon appeal, this court will not reverse the judgment where it appears that the trial-court gave to the jury instructions which state the essence and substance of the instructions ■offered and refused.</p> <p>8. The evidence in this case examined, and held, that the plaintiffs were led to enter into and were induced to make said contract ¡by the examination of the plaintiffs made before the contract was entered into as to the conditions and validity of the property .exchanged by the terms of the contract, and that there is no evidence supporting the verdict and judgment that the plaintiffs relied wholly upon the representations alleged to have been made by defendant, and that the plaintiffs were in no way misled or deceived by any statements of the defendant.</p>

<p>Sufficiency of Evidence — Instructions—Special Compensation to Employee.</p> <p>1. Evidence examined, and held sufficient to support the verdict and judgment.</p> <p>2. The following two instructions, when taken and considered together, held to correctly state the law applicable in a case where a servant sues for a special and additional compensation over and above the regular wage or salary.</p> <p>(a) “If you find from the evidence that the plaintiff has performed services for the defendant with defendant’s knowledge and consent, and the defendant voluntarily took the benefit thereof, then the law will presume that the plaintiff should be paid by the defendant for those services, unless the contrary is shown by the evidence, and if no special contract is shown fixing the price, then plaintiff would be entitled to recover what the services are reasonably worth.”</p> <p>(b) “Where an employee who is working for stipulated wages performs extra work for the employer, there is a presumption, in the absence of an express or clearly implied agreement to the contrary, that no extra compensation is to be paid therefor and that payment for that extra work is included within the regular wages, but this presumption does not extend to extra work performed for persons other than the employer.”</p> <p>3. Where a servant or employee is in the regular employ of the master or employer at a stated wage or salary, in order to recover for special services or extra work performed during the same period of time, the burden is cast upon the employee to show by a preponderance of the evidence that the work was extra work outside of and beyond the scope of the employment, and that there was either an express or a clearly implied contract and agreement to pay extra for the special work so performed, and that it was not intended that such work should fall within the general employment of the servant or be compensated for by the regular wage or salary paid.</p>

An original action in this court for a writ of mandamus. The legislature has full and absolute power to make continuing appropriations, subject only to the restrictions contained in sec. 1, art. 8 of the state constitution.

Hon. R. N. Dunn, Judge. Action to cancel a contract and permit its forfeiture and the retention of payments made under said contract. Judgment for plaintiff. “In the absence of fraud or mistake, parol evidence as to what the parties said before making an unambiguous contract is inadmissible to affect it.” {Van Sant v. Runyon, 19 Ky. Law Rep. 1981, 44 S. W. 949; Sims v. Greenfield & N. R. Co., 102 Mo. App. 29, 74 S. W. 421; Cotton States Bldg. Co. v. Rawlins (Tex. Civ.

Hon. Edward A. Walters, Judge. Application to the board of commissioners to have certain tax money refunded to the property owner. Application granted by commissioners and appeal taken by the county- to the district court. Judgment entered in favor of the claimant in the district eourt and appeal prosecuted to this court. The action of the county board of equalization is final, and cannot be appealed from. (General Custer Min.

<p>Original application on behalf of Matt Miller for a writ of habeas corpus.</p> <p>A district judge has no jurisdiction to sentence for a longer ■period than five years one charged with and found guilty of •the crime against nature. (Black on Judgments, sec. 253, p. •316; Ex parte Cox, 3" Ida. 530, 95 Am. St. 29, 32 Pae. 197; In re Lucas, 17 Ida. 164, 104 Pac. 657; In re Walton, 17 Ida. .171, 104 Pac. 659, and In re Chase, 18 Ida. 561, 110 Pae. 1036.)</p> <p>The court had jurisdiction to sentence defendant for a longer period than five years. The punishment by imprisonmént for a number of years beyond five was left to the discretion of the court. If the court had sentenced the prisoner for a period of less than five years, then the application for a writ of habeas corpus would lie. (Ex parte Cox, 3 Ida. 530, 95 Am. St. 29, 32 Pac. 197.)</p> <p>The power of the court to pass a sentence in excess of the minimum, or less than the maximum, has been squarely passed upon in the case of People v. Nop, 124 Cal. 150, 56 Pac. 786. (People v. Haagen, 139 Cal. 115, 72 Pac. 836.)</p>

<p>Injun ction — Complaint — Evidence — Sufficiency of Evidence — Bevebsible Error.</p> <p>1. Where the eomplaint alleges, in an action to recover personal property, that the plaintiff is the owner and entitled to the possession of the property, and the defendant denies the allegations of the complaint, and the defendant claims the right to possession under a levy of execution in an action against a stranger to the present action, the complaint states a cause of action, and upon such eomplaint the plaintiff is entitled to a temporary injunction restraining the sale pending the trial of the case upon the merits.</p> <p>2. Where the right of ownership and the possession of personal property is in issue, it is proper to admit evidence tending to show that the plaintiff purchased the property in dispute, and the location of the property, and the possession of such property, and the continued possession, and the right to the possession of the same.</p> <p>3'. The action of the trial court in refusing to pass upon the demurrer before the time the injunction was issued became immaterial for the reason that the injunction was thereafter dissolved and no appeal was taken from the action of the trial court in dissolving said injunction^ and the eomplaint was sufficient to entitle the plaintiff to maintain the cause of action alleged in the complaint.</p> <p>4. Where there is substantial evidence supporting the verdict and judgment rendered thereon, the verdict and judgment will be affirmed.</p>

<p>APPEAL from the District Court of the Fourth Judicial District for Lincoln County. .Hon. Edward A. Walters, Judge.</p> <p>Action to recover for services performed. Judgment for plaintiff.</p> <p>We do not contend that under the law as interpreted by the weight of judicial authority, an accord becomes a bar prior to performance or “satisfaction,” but that under the facts of this case, the settlement became an “account stated,” or an “account rendered” or “settled,” and no fraud or mistake . being alleged in the complaint or shown by the evidence, that the plaintiff is bound thereby. (Hendy v. March, 75 Cal. 566, 17 Pac. 702; Coffee v. Williams, 103 Cal. 556, 37 Pac. 504; Mayberry v. Cook, 121 Cal. 588, 54 Pac. 95.)</p> <p>The mode of arriving at a settlement in this ease, which is probably the method of settling the vast majority of accounts, especially in this western country, made it no less an “account stated,” and the plaintiff should be estopped from denying the same. (Hale v. Hale, 14 S. D. 644, 86 N. W. 650.)</p> <p>Where there is sufficient evidence to form a legitimate basis for a finding by the jury of the existence or nonexistence of a stated account, the verdict will not be disturbed. (Warder etc. Co. v. Angelí, 99 Wis. 298, 74 N. W. 789.)</p> <p>Running through all the definitions of accounts and accounting (1 Cyc. 362-364) is the doctrine that there must be a list or catalogue, an actual exhibit of charges and credits, something for the inspection and examination of the parties, to facilitate the determination of the balance due by simple calculation.</p> <p>In the case at bar the defendant pleaded, an accord but failed to plead or prove satisfaction. (1 Cyc. 307; 1 Cent. Dig., tit. “Accord and Satisfaction,” par. 123.)</p> <p>An accord, to be good, must be in full satisfaction, and must be executed. A promise to execute or to perform at a future-time would not support the plea of accord and satisfaction. 0 (Bankers’ Union v. Favalora, 73 Neb. 427, 102 N. W. 1013; Arnett v. Smith (1912), 11 N. D. 55, 88 N. W. 1037; Carpenter v. Chicago By., 7 S. D. 584, 64 N. W. 1120; Howard v. Norton-Morgan Commercial Co., 11 Ariz. 158, 89 Pac. 541.)</p>

Hon. Ed. L. Bryan, Judge. Action for a writ of mandate. Judgment for plaintiffs. Defendant appealed. On the former appeal in this case paragraphs 4 and 5 of the complaint were held on general demurrer to sufficiently state a grant, ordinance or contract franchise between the city of Nampa and this appellant, which would bind the parties thereto.

<p>APPEAL from the District Court of the Ninth Judicial District for Fremont County. Hon. James G. Gwinn, Judge.</p> <p>Action to recover upon a promissory note.</p> <p>The lower court erred in refusing to give an instruction copied from the opinion of this court in the case of Vaughn v. Johnson, 20 Ida. 669, 119 Pac. 879, 37 L. R. A., N. S., 816. The jury should have been informed as to the duty of the makers of notes in regard to the degree of diligence they should exercise and to which they are held.</p> <p>“Whether plaintiff in such a ease has satisfactorily met the burden of proof to make good his claim to be an innocent purchaser is a question of fact for the jury, and is subject to the same rule as to its weight and sufficiency as any other fact in the case; and the jury had a right to determine it in the light of all the facts and circumstances presented in the case.” (Winter v. Nobs, 19 Ida. 18, Ann. Gas. 10120, 302, 112 Pac. 525; Park v. Johnson, 20 Ida. 548, 119 Pae. 52; Park v. Brandt, 20 Ida. 660, 119 Pac. 877; Vaughn v. Johnson, 20 Ida. 669, 119 Pae. 879, 37 L. R. A., N. S., 816; Winter v. Hutchins, 20 Ida. 749, 119 Pac. 883; Goodman v. Simonds, 61 U. S. 343, 15 L. ed. 934; Shellenberger v. Nourse, 20 Ida. 323, 118 Pac. 508; City National Bank v. Jordan, 139 Iowa, 499, 11-7 N. W. 758; Citizens Sav. Bank v. Hutchens, 64 Wash. 275, 116 Pac. 866; Hallowell v. McLaughlin Bros., 136 Iowa, 279, 111 N. W. 429; Union National Bank v. Windsor, 101 Minn. 470, 118 Am. St. 641, 11 Ann. Cas. 204, 112 N. W. 999; Hallowell v. McLaughlin Bros. (Iowa), 121 N. W. 1039; Park v. Windsor, 115 Minn. 256,132 N. W. 264; City National Bank v. Windsor, 116 Minn. 422, 133 N. W. 961; Union Nartional Bank v. Mailloux, 27 S. D. 543, 132 N. W. 168.)</p> <p>The notes of McLaughlin Bros, are so fraudulent, and such fact is so well known, that it becomes incumbent upon the one purchasing the same to show that he did not know of the conditions surrounding the execution of the note, as the notes have been so often declared fraudulent by the courts of last resort. (Union Inv. Co. v. Wells, 39 Can. Sup. Ct. 525; 11 Am. & Eng. Ann. Cas. 33.)</p>

<p>Recorder’s Fees — Power op Board to Change Fees — Duty op Recorder.</p> <p>1. Under tie provisions of see. 2124 of the Rev. Codes, the county recorder is allowed and it is his duty to charge and collect twenty cents per folio for every instrument, paper or notice recorded by him.</p> <p>2. Neither the board of commissioners nor the county recorder has any power or authority to enter into an agreement or contract with any person or corporation for recording any instrument, contract or other paper or document for a less price or at a less rate than that prescribed by statute, namely, twenty cents per folio.</p> <p>3. The fact that the county recorder has a blank book containing printed forms in which he records certain contracts, instruments or documents that conform to the printed forms in his record book, does not justify him in making any less or different rate than twenty cents per folio for the recording of the same, and it is his duty to make a folio charge fot every word contained in the instrument, whether the same be printed, written or typewritten in such record book.</p> <p>4. To record an instrument means to transcribe it, repeat it, or recite it in a book of reeord kept for the purpose of perpetuating the terms and recitals contained in the instrument or document so recorded.</p> <p>5. The fees prescribed by the statute to be charged by the county recorder are arbitrary charges fixed by act of the legislature, and no officer has any right to change the same or depart from the terms thereof as prescribed by the legislature.</p> <p>6. Where a eounty recorder has recorded papers and written instruments and has not collected the full amount of fees prescribed by the statute therefor, and has thereafter rendered his accounts and settled with the board of eounty commissioners without accounting for the uneolleeted portion of such fees, the county has such an interest in the unpaid fees as to enable it to prosecute an action directly against the party for whom the work was done and to recover the same.</p> <p>7. Where a county recorder has recorded instruments and has not collected the full amount of the fees prescribed by statute, and the eounty thereafter commences an action against the person for whom such recording is done, the question as to whether the action is barred by the statute of limitations is to be determined by the provisions of see. 4053 of the Eev. Codes, as the same is an action upon a contract, obligation or liability not founded upon an instrument in writing.</p>

An action to show cause why the defendant should not be punished for contempt. A taxpayer is one who owns property in the state and on which he regularly pays taxes. (Lasityr v. City of Olympia, 61 Wash. 651, 112 Pae. 752; State v. Fasse (Mo.

Hon. Ed. L. Bryan, Judge. Action for damages. Judgment for plaintiff. Defendant appealed. This court has laid down the rule in Gerber v. Nampa & Meridian Irr.

<p>Power of Court on Habeas Corpus — Complaint on Information ano Belief — Process Regular on Its Face.</p> <p>1. See. 8353 of the Revised Codes of this state, in prescribing the duties of a court or judge upon a hearing on return to a writ of habeas corpus, provides, among other things, as follows: “The court or judge, if the time during whieh such party may be legally-detained in custody has not expired, must remand such party, if it appears that he is detained in custody, .... by virtue of the final judgment or decree of any competent court of criminal jurisdiction, or of any process issued upon such judgment or decree.”</p> <p>2. Where a return to a writ of habeas corpus shows that the petitioner is detained by the chief of police of Boise City in the city jail thereof, under and by virtue of a commitment issued by the police magistrate of Boise City, which commitment is in due form, regular on its face, and recites that the prisoner has been convieted of the violation of a city ordinance and sentenced to imprisonment, held, that under the provisions of sec. 8353 of the Rev. Codes, it is the duty of the court to remand the prisoner, and that the court has no authority to go back of the commitment or process on which the prisoner is held and examine the sufficiency' of a complaint upon which the prisoner was tried, or the validity and regularity of a warrant that was issued thereon and upon which the prisoner was arrested in the first instance.</p> <p>3. Habeas corpus cannot be resorted to or employed as an appellate remedy, or for the purpose of reviewing or correcting errors.</p> <p>4. Errors committed in the ruling upon the sufficiency of a criminal complaint or upon the legality or regularity of a warrant of arrest and errors committed upon the trial in a criminal case must be reviewed and corrected on appeal, and cannot be availed of by the defendant on habeas corpus.</p>

<p>Pleading — Answer — New Matter — Instructions — Exceptions — • Contradictory.</p> <p>1. Under the provisions of sec. 4217, the plaintiff is deemed to have denied any and all allegations of new matter contained in the answer.</p> <p>2. Where new matter is contained in an answer in avoidance or constituting a defense or counterclaim, and no denial is plead, such defense is deemed denied, and it is not error to give an instruction upon the law with reference to such defense.</p> <p>3. Where an instruction is requested by counsel for defendant, such defendant on appeal to this court cannot urge error on the part of the trial court to the effect that the trial court had added certain words to the instruction requested, when the record fails to show that such change was made by the trial court.</p> <p>4. Where an instruction is given to a jury by the court and it is admitted that such instruction is correct and is not excepted to at the time of the giving of such instruction, and counsel for one of the parties requests an instruction which is contradictory to the instruction given by the court, such party cannot claim in this court for the first time that the giving of the two instructions was error.</p> <p>5. Where the insufficiency of the evidence is assigned as error and the specific reasons for such contention are assigned and the evidence is conflicting upon the specific issues assigned and the cause is submitted to the jury and they have found generally, this court will not reverse or disturb the verdict of thg jury.</p>

<p>APPEAL from the District Court of the Ninth Judicial District for Fremont County. Hon. James G. Gwinn, Judge.</p> <p>Action in replevin. Judgment for plaintiff, conditioned on the payment of a certain lien adjudged to exist against the property. Plaintiff appealed.</p> <p>The plaintiff, by reason of the defendant’s claim of ownership, was compelled to go into court to establish his title to the property and his right to its possession. This he did establish and procured the relief sought in his complaint, and as a matter of law was entitled to all of his costs. (Rev. Codes 4901, subd. 2 -f Lovel v. Joyce, 9 Ida. 386, 74 Pac. 1073; Campbell v. First National Bank of llexburg, 13 Ida. 95, 88 Pac. 639; Freed Furniture <& Carpet Co. v. Sorensen, 28 Utah, 419, 107 Am. St. 742, 3 Ann. Cas. 634, 79 Pac. 564.)</p>

'APPEAL from the District Court of the Sixth Judicial District for Lemhi County. Hon. J. M. Stevens, Judge. Action to recover assessments on the capital stock of a National Bank.

Hon. Edward A. Walters, Judge. Action'to quiet title. Judgment for plaintiff. Defendant appealed. The statutes of limitations began to run in favor of appellant when he entered the premises in 1881 under a tax deed, claiming adversely to all other persons, and openly manifested his intention so to claim. (2 Ency. of L. & P. 364; Ewing v. Burnet, 11 Pet.

<p>APPEAL from the District Court of the Seventh Judicial District for Washington County. Hon. Ed. L. Bryan, Judge.</p> <p>Action to establish a right and title to improvements in a lateral ditch. Judgment for defendants.</p> <p>The general rule in regard to the right of possession by co-owners of an undivided interest in real estate is that no-one of them has the right to keep the others out of any part of the estate. (Jones on Landlord and Tenant, sec. 28, p. 24.)</p> <p>Cotenant owners of an estate in lands stand in a relation to each other of mutual trust and confidence, and neither will be permitted to act in hostility to the other in reference to-the joint estate, and a distinct title acquired by one will ordinarily inure to the benefit of all. (Arthur v. Coyne, 32 Okl. 527, 122 Pac. 688.)</p> <p>Where several persons are tenants in common in an irrigation ditch and dam at its source, each is responsible in proportion to his interest for the maintenance and repair of the dam and ditch) and in ease of default of one or more, the other may make the repairs for which the defaulting party is liable-for his pro rata, but such a failure by one does not justify another in making up the loss occasioned by drawing off thewrnter from the former. (Carnes v. Dalton, 56 Or. 596, 110 Pac. 170.)</p> <p>Where there was no proof that repairs made by the tenant-in possession were necessary, or that improvements made added to the rental or permanent value'of the premises, no allowance could be made therefor. (Armijo v. Neher, 11 N. M. 645, 72 Pac. 12.)</p> <p>Being associated in interest as tenants in common, an' implied obligation exists to sustain the common interest. This-reciprocal obligation will be enforced in equity as a trust. (Freeman on Cotenancy and Partition, 2d ed., see. 151.)</p>

Hon. James M. Stevens, Judge. Action to recover balance alleged to be due on book account. Judgment for plaintiff. An account is not “mutual” unless the parties have dealt with each other in the same relation and unless items upon ■different sides of account are capable of being set off against ■each other. Demands must be “reciprocal” — that is, they must be of such character that each party has immediate right ■of action against the other.

Hon. J. M. Stevens, Judge. Action for damages for personal injuries. Judgment for plaintiff. Defendant appealed. The rule of the majority of cases is that where the plaintiff is a trespasser or a mere licensee, the company is liable only for wantonness or wilful negligence. This court does not approve that rule; but as some of those cases may be referred to in argument by way of comparison, we cite the following: Gillis v. Pennsylvania B. Co., 59 Pa. 129, 98 Am.

<p>Constitutional Daw — Drainage District Daw — Appointment op Officers — Assessment of Benefits — Issuance of Bonds.</p> <p>1. The provisions of House Bill No. 92, passed by the twelfth session of the legislature and approved February 21st, entitled “An act to provide for the establishment of drainage districts, and the construction and maintenance of a system of drainage, and to provide for the means of payment of the costs thereof, and declaring an emergency,” authorizing the district judge of the judicial district in which a drainage district is located to appoint the drainage commissioners for the district, is not in violation of the constitution, and is not an infringement by the judicial department of the state government upon the functions of the executive branch of the government.</p> <p>2. Sec. 6 of art. é of the state constitution provides that the governor “shall nominate and, by and with the consent of the senate, appoint all officers whose offices are established by this constitution, or which may be created by law and whose appointment or election is not otherwise provided for,” and this provision of the constitution leaves it to the discretion of the legislature when creating any office by legislative act to prescribe the method of filling the office and to designate the officer, board or body that shall make the appointment, and in case of failure on the part of the legislature to do so, the governor is vested by the constitution with the appointive power.</p> <p>3. Under the provisions of House Bill No. 92, approved February 21, 1913, the legislature has “otherwise provided” for the appointment of drainage commissioners, and has directed that such appointment shall be made by the district judge. This was a legitimate exercise of the constitutional authority conferred upon the legislature.</p> <p>4. The assessment of benefits provided for in House Bill No. 92, approved February 21, 1913, is not a tax within the purview and meaning of the constitution (see. 5, art. 7). The assessment made under this act is dependent wholly upon the benefits to accrue, and where no benefits will acerue no assessment can be made, and the charge is one in rem against the specific tracts of land assessed for benefits and to the extent of the assessment only.</p> <p>5. "The provisions of House Bill No. 92, approved February 21, 1913, for the bonding of a drainage district without a vote of the people within the district, is not in violation of see. 3, art. 8, of the state constitution. The indebtedness there provided for is not a municipal indebtedness contemplated by the constitution.</p>

<p>Pleading — Exhibit.</p> <p>1. Pleading an instrument by attaching a copy to the complaint as an exhibit thereto does not tender an issue or involve an assertion of the truth of the statements and recitals contained in the exhibit; and in order to tender an issue as to the truth or correctness of statements and recitals contained in such exhibit, it is necessary to plead them in appropriate terms, and a defendant is not called upon to deny or traverse the statement and recitals contained in an exhibit unless the pleading to which sueh exhibit is attached alleges in appropriate terms the truth and correctness of the statement or statements which it is intended to tender as an issue or issues.</p> <p>2. Where a trial court has admitted evidence on the part of plaintiff over the objection of the defendant, on the theory that statements and allegations contained in an exhibit were allegations of the complaint and should be taken as part of the pleading, and after the evidence is all in the plaintiff has moved the court for leave to amend the pleading by alleging the fact stated in the exhibit and on which evidence has been admitted in order to make the pleading conform to the facts proven, and the motion is denied on the objection of the defendant, held, that the rulings of the court have not prejudiced any substantial right of the defendant, and that the judgment should not be reversed on account of such erroneous rulings.</p>

Hon. J. M. Stevens, Judge. Prosecution on information for the crime of abortion. From a judgment of conviction defendant appealed. Evidence of illicit relations is admissible for the purpose of proving the necessary element of pregnancy, or perhaps to show motive, but it is not admissible to prove the main fact of abortion. (People v. Josselyn, 39 Cal. 393, 397.)

Hon. J. M. Stevens, Judge. An action to determine the priority and to quiet title to water. The ante-mortem statements of J. B. Morrow should have been admitted. There was no apparent interest to deceive. (2 Wigmore on Evidence, par. 1576.) The trial court took the view that the preponderance of the testimony was in favor of the respondent Horn, and the finding was made that his right should date from June 1, 1891. This finding should not be disturbed.

Hon. Ed. L. Bryan, Judge. The defendant found guilty of an attempt to commit a rape and sentenced to the penitentiary for from one to five years. “To warrant a conviction upon an extrajudicial confession of the accused, there must be independent evidence to establish the corpus delicti of the crime.” (2 Whar. Crim.

<p>APPEAL from the District Court of the Ninth Judicial District for Bonneville County. Hon. James G. Gwinn, Judge.</p> <p>A prosecution for maintaining a common nuisance. Judgment of conviction.</p> <p>The magistrate committed the defendant to the custody of the sheriff, without the existence of any deposition or depositions, either written or transcribed, which were or could have been signed or certified by the magistrate, at the time he committed the defendant, nor that could have filled the requirements of the provisions of secs. 7571 or 7576, Rev. Codes, nor of sec. 2 of the act creating county stenographers, Sess. Laws 1909, p. 146, amending subsee. 4 thereof, as to reading to and signing by the witness, but leaving the other four mandates of sec. 7576 still in force and mandatory. (State v. Braithwaite, 3 Ida. 119, 27 Pac. 731; Kalloch v. Superior Court, 56 Cal. 229; People v. Evans, 72 Mich. 367, 40 N. W. 473; People v. Carty, 77 Cal. 213, 19 Pac. 490; People v. Buckley, 143 Cal. 375, 77 Pac. 169.)</p> <p>The provisions of sec. 7576, Rev. Codes, as to the holding of examination, and the taking of testimony and certifying the same by the magistrate, should be substantially complied with, and after all the evidence has been taken, then the magistrate under the statute, is required to make a final certificate, certifying that the requirements of this section of the statute have been complied with. (State v'. Yturaspe, 22 Ida. 360, 125 Pae. 802.)</p> <p>Technical errors are insufficient unless actual prejudice to some substantial right of defendant exists. Defendant does not contend that he has been injured in any substantial right. (State v. Clark, 4 Ida. 7, 35 Pac. 710.)</p>

<p>APPEAL from the District Court of the Fourth Judicial District for Twin Falls County. Hon. C. O. Stockslager, Judge.</p> <p>Action for debt. Judgment for plaintiff. Defendant appeals.</p> <p>Even though the court should feel that the certificate of the clerk is so defective as to be of no service as a certificate, still that would not be a ground-for a dismissal of this appeal. Quartz Gold Mining Co. v. Patterson, 53 Or. 85, 96 Pac. 551, in which case the motion for the dismissal of the appeal was urged for the reason that the evidence and exhibits used upon the appeal were not certified to as having been used .in the trial in the court below. The certificate of the judge was filed August 27, 1912. This is sufficient. (Knutsen v. Phillips, 16 Ida. 267, 101 Pac. 596.)</p> <p>There is nothing provided by the statute under which this appeal is prosecuted, requiring that the judge’s certificate be certified to by the clerk. It only requires that the same be filed. (Trueman v. Village of St. Maries, 21 Ida. 632, 123 Pac. 508.)</p> <p>By the certificate of the clerk, this court is not justified in finding that the records certified to were papers or files used in the hearing below. (Village of Sand Point v. Doyle, 9 Ida. 236, 74 Pac. 861.)</p> <p>These certificates of the judge are void, so far as bringing this record to this court, for we presume they have been pasted into-the record after the certificate of the clerk was made; they are not engrossed, or made any part of this record by the certificate of the clerk, because his certificate surely cannot date forward and certify to something that may be done in the future. (Rev. Codes, 4821; Simmons Sd. Co. v. Alturas Commercial Co., 4 Ida. 386, 39 Pac. 553; Crowley v. Croesus G. M. Co., 12 Ida. 530, 86 Pae. 536; Grisinger v. Subbard, 21 Ida. 469, 122 Pac. 853.)</p>

Hon. Carl A. Davis, Judge. Action to quiet title to certain real estate based on a tax deed. Judgment for defendant. Respondent at all times was properly informed as to the facts: That the property was assessed; that the taxes were a certain amount; that they had not been paid; that she had not been credited with an exemption; and that if an exemption was granted, it would have to be by the board of county commissioners.

Hon. James G. Gwinn, Judge. Action to recover the value of certain personal property which had been levied upon and sold by the sheriff under execution. Judgment for defendants. The testimony shows that the property, when the levy was made, was in possession of the appellants.

<p>Delinquent Tax Sale — Description of Property Sold — Tax Deed— Description of Property Conveyed.</p> <p>1. A tax sale certificate describing lands sold as “S. % N. W. 4, sec. 1, twp. 4, range 2” is insufficient and invalid, for the purpose of furnishing a description on which a valid tax deed can be executed, and a tax deed executed on such certificate after the expiration of the time allowed for redemption which describes the property as “The South % of the Northwest % of see. one (1), twp. four (4) north, range two (2) West of Boise Meridian, Capyon county, State of Idaho,” is not a substantial eomplianee with the provisions of sees. 1763 and 1764 of the Rev. Codes, which require a tax deed to contain the same description and recitals contained in the tax sale certificate.</p> <p>2. In issuing a tax deed, the officer executing the same in describing the property may extend abbreviations contained in the certificate and make a fuller and more complete description of land which was sufficiently described in the tax sale certificate, but he has no right or authority to add to or complete an incomplete and insufficient description contained in the tax sale certificate, and he has no authority to go beyond the certificate for extraneous evidence describing the property intended to be described in the certificate.</p> <p>3. More strictness is required in the description in an assessment where the property is to be sold for delinquent taxes than is required in a deed of conveyance from the grantor to the grantee. In the former case, parol or extraneous evidence is not admissible, while in the latter case it may become admissible.</p>

Hon. Edward A. Walters, Judge. Action for damages. Judgment for plaintiff. Defendants appeal. If procedure not pointed out, suitable one may be adopted. (Crane v. Cummings, 137 Cal. 201, 69 Pac. 984; Scadden Flat Q. M. Co. v. Scadden, 121 Cal. 33, 53 Pac. 440.) It is not necessary in this state to fence against sheep.

<p>APPEAL from the District Court of the Second Judicial District for Idaho County. Hon. Edgar C. Steele, Judge.</p> <p>Counsel file no briefs.</p>

Hon. Charles P. McCarthy, Judge. Action for debt. Judgment for plaintiff. Defendant appealed. Any relation which gives rise to confidence, though not a badge of fraud, which may arise from other circumstances, holds the parties to a fuller and stricter proof of the fairness of the transaction, and may in some eases be deemed conclusive evidence of fraud. (Bump, Fraudulent Conveyances, 3d ed., 59; Eaton & Gilbert, Com.

Hon. Edgar C. Steele, Judge. Action to enjoin the city of Moscow from proceeding with certain municipal improvements. Judgment for the defendant. Plaintiff appealed.

<p>APPEAL from the District Court of the Second Judicial District for Nez Perce County. Hon. Edgar C. Steele, Judge.</p> <p>Action to recover for the wrongful taking of personal property, consisting of sheep and wool. Judgment for plaintiffs.</p> <p>“A mortgagee in possession of mortgaged property is entitled to be credited with all reasonable and actual expenses in caring for it.” (7 Cyc. 91, 92.)</p> <p>‘ ‘ If the respondents' are entitled to anything, they can recover in an accounting action the net proceeds only.” (Inland Trading Go. v. Edgecombe, 57 Wash. 257, 106 Pac. 768.)</p> <p>“It is well settled that the amount of the recovery cannot exceed that claimed in the complaint.” (13 Cyc. 181.)</p> <p>The law announced by this court on the former appeal is the law of the case. (Gerber v. Nampa <& M. Irr. Dist., 19 Ida. 765, 116 Pac. 104; Steve v. Bonners Ferry Lumber Co., 13 Ida. 384, 92 Pae. 363; Lindsey v. People, 1 Ida. 438; Palmer v. Utah Northern, 2 Ida. 382, (350), 16 Pac. 553.)</p> <p>An appellant cannot complain of erroneous instructions favorable to himself. (Knollin v. Jones, 7 Ida. 466, 63 Pae. 638.)</p> <p>Where a defendant pleads over, or defendant’s evidence supplies any omission or defect of plaintiff’s evidence, and all the evidence together is sufficient to sustain the verdict of the jury, such verdict will be sustained. (McClain v. Lewis-ton Interstate Fair & B. Assn., 17 Ida. 63, 104 Pac. 1015, 20 Ann. Cas. 60, 25 L. B. A., N. S., 691; Thickey v. Clark, 50 Or. 516, 93 Pac. 457; Vanyi v. Portland Flouring-Mills Co. (Or.), 128 Pae. 830.)</p> <p>The former decision of this court, as well as the supreme court of Washington, shows that Libert was wrongfully in possession of all property which the receiver took. He was therefore chargeable with the greatest amount of property taken, at the highest market price. (Unfried v. Libert, 20 Ida. 725, 119 Pac. 885; Livesly v. Krebs Hop. Co., 57 Or. 352, 97 Pac. 718, 107 Pac. 460, 112 Pac. 1; Hamer v. Hathaway, 33 Cal. 117; Learock v. Paxson, 208 Pa. 602, 57 Atl. 1097; Kid v. Mitchell, 1 Nott & McCord (S. C.), 334, 9 Am. Dec. 702; Stephenson v. Pnce, 30 Tex. 715; Webster v. Moe, 35 Wis. 75; Weymouth v. Chicago etc. By. Co., 17 Wis. 550, 84 Am. Dec. 763; Douglas v. Kraft, 9 Cal. 562.)</p> <p>This charge is made without deduction for expenses, which Libert claims to have made in caring for the sheep, because he was wrongfully in possession. (Unfried v. Libert, 20 Ida. 708 (727), 119 Pac. 885; Kellogg v. Malicie, 125 Wis. 239, 103 N. W. 1116 (1120-1142), 4 Ann. Cas. 893, collating ■cases.)</p>

Hon. W. W. Woods, Judge. Action for damages on account of injuries to and destruction of personal property. Judgment for plaintiff. Defendant appealed. Pritchard creek was, a navigable stream for the floating of logs. Defendant had a perfect right to drive said stream, exercising due care in the floating of logs in said stream. {Idaho Northern B. Go. v. Post Falls Lbr.

Hon. Edgar C. Steele, Judge. An action to quiet title to real property. Judgment for defendant. A judgment cannot stand when it is based on findings of fact which are antagonistic, inconsistent' or contradictory as to material matters.

<p>Personal Injuries — Master and Servant — Dangerous Premises — ■ Custom — Duty to Warn — Delegation op.</p> <p>1. Plaintiff was employed by the appellant lumber company and was engaged in constructing a bridge of poles for a turnout, and while so engaged was struek and injured by a tree felled by other employees. No warning was given by the choppers who felled the tree. Plaintiff was not a boss and had no control over the choppers. Held, that the negligence of the choppers to give the proper signal was not the neglect and carelessness of a fellow-servant, but was the neglect of a duty devolving upon the employer, for which it was liable.</p> <p>2. It is a general rule of law that when a master is engaged in a complex and hazardous business, he must promulgate and adopt sueh rules and regulations for the conduct of the business and the government of his servants as will afford reasonable protection to them, and such duty is a positive obligation imposed upon the master, and he is liable for the negligent performance thereof, whether he undertakes the performance personally or delegates it to another.</p> <p>3. Where the place in which the servant is required to work is inherently dangerous and signals are required by order of the master or by common custom for the protection of the employees, and are relied upon by the employees as a means of saving .themselves from harm, it becomes the absolute duty of the master to give them, and the"fadlure to do so, though the failure be -the neglect of an employee, renders the master liable to a servant who is injured in consequence of such negleet.</p>

<p>APPEAL from the District Court of the Eighth Judicial District for Kootenai County. Hon. R. N. Dunn, Judge.</p> <p>Action for damages for wrongful death. Judgment for plaintiff. Defendant appealed.</p> <p>A death claim statute such as that of Idaho gives but one cause of action and authorizes but one recovery. (Hartigan v. So. Pac. Co., 86 Cal. 142, 42 Pac. 851; Biggs v. N. P. N. Co., 60 Wash. 292, 111 Pac. 162; Fritz v. Western Union Tel. Co., 25 Utah, 263, 71 Pac. 209; Louisville etc. Co. v. Sanders, 86 Ky. 259, 5 S. W.' 563; Peers v. Nevada Power etc. Water Co., 119 Fed. 400; Beard v. Sheldon, 113 111. 584; Consolidated Coal Co. v. Dombrowshi, 106 111. App. 641; Almquist v. Wilcox, 115 Minn. 37, 131 N. W. 796; St. Louis etc.'Co. v. Needham, 52 Fed. 371, 3 C. C. A. 129; McBride v. Berman, 79 Ark. 62, 94 S. W. 913; Whelan v. Bio Grande etc. By. Co., Ill Fed. 326; Boberts v. Central of Georgia By. Co., 124 Fed. 471; Willis etc. Co. v. Grizzell, 198 111. 313, 65 N. E. 74; Munro v. Pacific etc. Co., 84 Cal. 515, 18 Am. St. 248, 24 Pae. 303; Putman v. So. Pac. Co., 21 Or. 230, 27 Pac. 1033; T)au~ bert v. Western Meat Co., 139 Cal. 480, 96 Am. St. 154, 69 Pac. 297, 73 Pac. 244.)</p> <p>Under the law as established in Pemwyer v. Nejf, 95 U. S. 714, 24 L. ed. 565, Josephine Whitley was not made a party to this action. She did not appear voluntarily, and service of process upon her in Washington could give no jurisdiction to the Idaho courts to adjudge anything with respect to her rights or bind her in any fashion by any judgment they might render.</p> <p>Plaintiff went into the courts of Tennessee, setting up and relying upon the Washington judgment, declaring the recovery by the administratrix to have been in part for her benefit, and praying that the portion to which she was entitled be set over to her. By such acts she ratified and affirmed that judgment, and will not now be heard to deny its validity. (23 Cye. 698; Davis v. Cornwall, 68 Fed. 522, 15 C. C. A. 559; Town of Weston v. Ralston, 48 W. Va. 170, 36 S. E. 453; Ryan v. Doyle, 31 Iowa, 53; Haynes v. Poivell, 1 Lea (69 Tenn.), 347; Arthur v. Israel, 15 Colo. 147, 22 Am. St. 381, 25 Pac. 81, 10 L. B. A. 693.)</p> <p>A person who, with full knowledge of the facts, decides to seek one remedy, cannot, merely because through misadventure he fails to be made whole through the remedy he seeks, thereafter pursue an inconsistent remedy. (Gaffney v. Megrath, 23 Wash. 476, 63 Pac. 520; Jones v. First Nat. Bank, 3 Neb. Unof. 73, 90 N. W. 912; Jones v. Stewart, 62 Neb. 207, 87 N. W. 12; Fowler v. Boivery Sav. Bank, 113 N. Y. 450, 10 Am. St. 479, 21 N. E. 172, 4 L. B. A. 145; Gentry v. Bearss, 88 Neb. 742, 130 N. W. 428; E. J. Codd Co. v. Parker, 97 Md. 319, 55 Atl. 623; White v. White, 68 Yt. 161, 34 Atl. 425; Farwell v. Myers, 59 Mich. 179, 26 N. W. 328; Dickson v. New York Biscuit Co., 211 111. 468, 71 N. E. 1059; In re Hildebrant, 120 Fed. 992; Barrell v. Newby, 127 Fed. 656, 62 C. C. A. 382; Crook v. First Nat. Bank, 83 Wis. 31, 35 Am. St. 17, 52 N. W. 1131; Paris v. Sheppard, 125 Iowa, 255, 101 N. W. 114; Welsh v. Carder, 95 Mo. App. 41, 68 S. W. 580.)</p> <p>There was a denial of full faith and credit to the Washington and Tennessee judgments. (Mills v. Duryee, 7 Cranch (U. S.), 481, 3 L. ed. 412; Hampton v. McConnel, 3 Wheat. (U. S.) 234, 4 L. ed. 378; Cheever v. Wilson, 9 Wall. (U. S.) 123, 19 L. ed. 604; Christmas v. Bussell, 5 Wall. (U. S.) 302, 18 L. ed. 475.)</p> <p>Defendant has discharged his full obligation when he has paid the judgment rendered against him. It is for the parties entitled to participate in the proceeds of the judgment to see that a proper distribution is made. (13 Cye. 380-382) 8 Am. & Eng. Ency. of Law, 2d ed., 955; Weidner v. Rankin, 26 Ohio St. 522; Baltimore etc. B. Co. v. Wightman, 29 Gratt. (Va.) 431, 26 Am. Eep. 384; Conant v. Griffin, 48 111. 410.)</p> <p>No statute of Washington forbids a foreign administrator to sue in its courts. A foreign representative may sue to collect a claim where the claim sued upon could not be made the subject of local administration, since in such cases the reasons for the rule prescribing suits by foreign representatives do not apply. (18 Cyc. 1239; Purple v. Whithed, 49 Vt. 187.)</p> <p>A foreign administrator may sue to recover damages for causing the death of his intestate. (Wabash etc. Co. v. Shacldet, 105 111. 364, 44 Am. Eep. 791; Jeffersonville etc. B. Co. v. Hendricks, 41 Ind. 48; Memphis etc. Co. v. Pikey, 142 Ind. 304, 40 N. E. 527; Kansas etc. Co. v. Cutter, 16 Kan. 568; Hodges v. Kimball, 91 Fed. 845, 34 C. C. A. 103; Chicago Transit Co. v. Campbell, 110 111. App. 366; Boulden v. Pennsylvania By. Co., 205 Pa. 264, 54 Atl. 906; Robertson v. Chicago etc. By. Co., 122 Wis. 66, 106 Am. St. 925, 99 N. W. 433, 66 L. E. A. 919; Utah Savings etc. Co. v. Diamond Coal etc. Co., 26 Utah, 299, 73 Pac. 524; Florida ete. B. Co. v. Sullivan, 120 Fed. 799; Boston etc. Co. v. Hurd, 108 Fed. 116, 47 C. C. A. 615, 56 L. E. A. 193; St. Louis By. Co. v. Graham, 83 Ark. 61, 119 Am. St. 112, 102 S. W. 700; McCarty v. New York etc. By. Co., 62 Fed. 437; Illinois Cent. B. Co. v. Crudup, 63 Miss. 291; Hodges v. Kimball, 91 Fed. 845, 34 C. C. A. 103.)</p> <p>In the absence of statutory authority or direct decision by the supreme court of Washington, this court must accept as controlling, and as settling the law of the state in that behalf, the decision of the superior court of Spokane county that the foreign administratrix of the estate of A. P. Whitley was entitled to sue in its courts for damages for causing his death.</p> <p>(Laing v. Bigney, 160 U. S. 531, 16 Sup. Ct. 366, 40 L. ed. 525; Fish v. Smith, 73 Conn. 377, 47 Atl. 711, 84 Am. St. 161.)</p> <p>“The objection that a foreign representative cannot sue is waived by failure to take it at the proper time and in the proper manner.” (18 Cyc. 1243; 8 Ency. PL & Pr. 713, 714; Anthes v. Anthes, 21 Ida. 305, 121 Pae. 553.)</p> <p>The incapacity of a party to sue or defend is a matter which does not affect the jurisdiction, but must be timely raised and in a proper manner, and if not so raised is waived and the judgment entered in the action is valid. (17 Am. & Eng. Ency. of Law, 1070, 1071; 1 Black, Judgments, 2d ed., secs. 190, 193, 196, 200, 205; Blumauer v. Clock, 24 Wash. 596, 85 Am. St. 966, 64 Pae. 844; Hale v. Paper Co., 56 Wash. 236,104 Pac. 480; State v. Superior Court, 21 Wash. 33, 56 Pac. 932; Bothchild Bros. v. Mahoney, 51 Wash. 633, 99 Pac. 1031; Bowman v. Harrison, 59 Wash. 56,109 Pae. 192; Pierson v. N. P. B. Co., 61 Wash. 450, 112 Pae. 509; Buckles v. Beynolds, 58 Wash. 485, 108 Pae. 1072.)</p> <p>In an action by heirs for the negligent death of their ancestors, all the heirs should join as plaintiffs, and where the consent of one heir cannot be obtained, he may be’ made a defendant as expressly authorized by sec. 4105, Rev. Codes. (Salmon v. Bathjens, 152 Cal. 290, 92 Pac. 733; Copeland v. City of Seattle, 33 Wash. 415, 74 Pae. 582, 65 L. R. A. 333.)</p> <p>Where an action is brought by one heir and defendant knew of other heirs, it was its duty to have them join or. be subject to suit by the courts. (Galveston, H. & S. A. B. Co. v. Kutac, 72 Tex. 643, 11 S. W. 127.)</p> <p>A foreign administrator has no right to maintain an action under the laws of the state of Washington. (Barlow & Shepherd v. Coggan, 1 Wash. Ter. 257.)</p> <p>He has no extraterritorial power, and cannot sue in that character in the courts of a state other than the one of his appointment without authority from the latter, in the absence of the statutes directly permitting suits by foreign administrators. (Dennick v. Central B. Co., 103 U. S. 11, 26 L. ed. 439; Hall v. Southern By. Co., 146 N. C. 345, 59 S. B. 879; J. B. & J. M. Cornell Co. v. Ward, 168 Fed. 51, 93 C. C. A. 473; Dodge v. Town of North Hudson, 177 Fed. 986, 188 Fed. 489; Watkins v. Eaton, 183 Fed. 384.)</p> <p>There is no such statute either in Idaho or Washington. {McClellan’s Admr. v. Troendle (Ey.), 99 S. W. 329; Brooks v. Southern Pac. Co., 148 Fed. 986; Beaumont v. Beaumont, 144 Fed. 288; Moore v. Petty, 135 Fed. 668, 68 C. C. A. 306; Lusk’s Admrs. v. Kimball, 87 Fed. 545; Noonan v. Bradley, 9 Wall. (U. S.) 394, 19 L. ed. 757; Wharton, Conflict of Laws, sec. 626.)</p> <p>The provisions of the statute relative to the distribution of the judgment cannot be separated from the provisions of our statutes conferring the right of action, and the right to recover and the distribution of the sum recovered must be according to the law of the place where the death occurred. {Dennick v. Central By. Co., 103 U. S. 11, 26 L. ed. 439; McDonald v. McDonald’s Admr., 96 Ky. 209, 49 Am. St. 289, 28 S. W. 482; McGinnis v. Missouri etc. Co., 174 Mo. 225, 97 Am. St. 553, 73 S. W. 586.)</p> <p>The appellant company has consented to a judgment being entered in behalf of a foreign administrator for the benefit of only one of the heirs of the deceased. It is in no better position to set up that judgment or the judgment in Tennessee as a bar than if the action had been maintained by Josephine Whitley on her own account, and a consent judgment had been rendered. The action can only be brought to recover damages suffered by the heirs and not for the benefit of the estate, or for the benefit of only one heir. {Webster v. Norwegian Min. Co., 137 Cal. 399, 92 Am. St. 181, 70 Pac. 276; Salmon v. Iiathjens, supra; Dennick v. Bailroad Co., supra.)</p> <p>The provisions of the federal constitution with reference to the full faith and credit to be given to the judgments of courts of sister states do not preclude the court from ascertaming whether the claim was really one of such a nature that the court which entered the judgment was authorized to enforce it. {St. Louis etc. Go. v. Beilharz (Tex. Civ. App.), 88 S. W. 512.)</p> <p>A foreign administrator could not settle the ease or so dispose of it as to be a bar to an action on behalf of the respondent. {Maysville Street B. B. etc. Co. v. Marvin, 59 Fed. 91, 8 C. C. A. 21.)</p> <p>In order to sustain a defense founded upon the doctrine of estoppel by election, it must appear that the plaintiff actually had two valid available and inconsistent remedies and that he undertook to pursue one. A party’s supposition that he had a particular remedy and his effort to enforce it is immaterial, and does not constitute an election unless the remedy in fact existed. {Bandy v. Cates, 44 Tex.-Civ. 38, 97 S. W. 710; Morris v. Bexford, 18 N. Y. 552; Kinney v. Kiernan, 49 N. Y. 164; McNutt v. Hillcins, 80 Hun, 235, 29 N. Y. Supp. 1047; Elliott v. Collins, 6 Ida. 266-268, 55 Pac. 301; In re Van Norman, 41 Minn. 494, 43 N. W. 334; Butler v. Hildreth, 5 Met. (Mass.) 49; Brackett v. Hoitt, 20 N. H. 257; Kelsey v. Murphy, ‘ 26 Pa. 78; Brooks v. Bomano, 149 Ala. 301, 42 So. 819; Glover v. Badford, 120 Mich. 542, 79 N. W. 803; Smith v. Bricker, 86 Iowa, 285, 53 N. W. 250.)</p> <p>The doctrine of the election of remedies does not apply in cases where the suitor has in the first action mistaken his remedy and adopted a mode of redress incompatible with the facts of his case, and notwithstanding the bringing of such action he is still free to elect and proceed anew. (7 Ency. PI. & Pr. 366; Craig v. Meriwether, 84 Ark. 298, 105 S. W. 585; Kaufman v. Cooper, 39 Mont. 146, 101 Pae. 969; Wilson v. Ewald, 61 Misc. 286, 113 N. Y. Supp. 687; Mutual Auto Accessories Co. v. Beard, 59 Misc. 174, 110 N. Y. Supp. 416.)</p> <p>In the case at bar, the question of estoppel by election of remedies cannot be maintained. First, there was never a remedy available to the respondent in the proceedings brought in Tennessee; second, it is shown by the issues as made up here that the only remedy ever available to her is the relief which this action can give her, and third, the appellant railroad company here was not a party to the proceedings in Tennessee, and the only time the respondent has sought to enforce her rights against the railroad company is in the case in this court. (Henry v. Herrington, 193 N. Y. 218, 86 N. E. 29, 20 L. R. A., N. S., 249.)</p>

W. W. Woods, Judge. Action to recover damages for personal injuries. In giving instruction No. 8 requested by plaintiff, the court gave an instruction applicable to a case involving the doctrine of the “Last Clear Chance.” In the case at bar this doctrine does not apply. (Neil v. Idaho & W. N. By. Co., 22 Ida. 74, 125 Pac. 331.) The law contained in Instruction No. 11 has been sustained by this court in the Neil ease supra, and in the case of Anderson v. Great Northern By.

<p>APPEAL from the District Court of the Fifth Judicial District for Bear Lake County. Hon. Alfred Budge, Judge.</p> <p>Action on promissory note. Judgment for plaintiff. Defendant appealed.</p> <p>“A foreign corporation failing to comply with the requirements of the constitution and statutes cannot maintain a suit or action in any of the courts of this state for breach or violation of any contract entered into during the time the corporation had failed and neglected to comply with the constitution and statute.” (Paul v. Virginia, 8 Wall. (U. S.) 181, 19 L. ed. 357; Katz v. Herrick, 12 Ida. 1, 86 Pae. 873.)</p> <p>The court erred in overruling the demurrer and holding that the notes sued upon were not usurious. (Vermont Loan Co. v. Hoffman, 5 Ida. 376, 95 Am. St. 186, 49 Pac. 314, 37 L. R. A. 509; Stevens v. Home Savings Co., 5 Ida. 741, 51 Pac. 779, 986.)</p>

<p>Appeal — From Probate Court to District Court — Trial De Novo.</p> <p>1. Where an appeal is taken from the probate court to the-district court in a probate matter on both questions of law and fact, the district court is required to try such matters anew, or de novot upon the issues presented to the probate court. If the district court reverses the probate court on questions of law, the issues of fact are not to be tried; if the district court sustains the probate court, upon questions of law whieh do not require a dismissal of the case, then the questions of fact should be tried by the district court de novo.</p> <p>2. Sec. 5600, Rev. Codes, provides that on the day appointed, or any subsequent day to whieh the hearing may be postponed by the court, any person interested in the estate may appear and fila his exceptions in writing to the account, and contest the same.</p> <p>3. Sec. 5598, Rev. Codes, provides that when an account is rendered for settlement, the court or judge must appoint a day for the settlement thereof, and notice must be given.</p> <p>4. Where issues of law and issues of fact are presented by proper motions and pleadings filed in a cause pending in the probate court, in probate matters, it is the duty of the probate judge to pass upon such issues in the order presented, and it is error for the court to-refuse to determine such issues, and when an appeal is taken to the district court upon issues of law and fact, it is the duty of the district judge to pass upon the same issues tried in the probate court, and the refusal to pass upon such questions is reversible error.</p>

<p>APPEAL from the District Court of the Third Judicial District for Ada County. Hon. John F. MaeLane, District Judge pro tem.</p> <p>Action to quiet title to Dora avenue in Boise City. Judgment for defendant.</p> <p>To constitute a statutory dedication the requirements of the statute are mandatory, and must be complied with to make the dedication effective. (City of Denver v. Clements, 3 Colo. 472; City of Leadville v. Coronado Min. Co., 37 Colo. 234, 86 Pac. 1034; 9 Am. & Eng. Ency. of Law, 2d ed., 35; Coe College v. Cedar Bapids, 120 Iowa, 541, 95 N. W. 267.)</p> <p>“The vital principle of dedication is the intention to dedicate.” (Smith v. Montgomery, 3 Ida. 472, 476, 31 Pac. -812; 9 Am. & Eng. Ency. of Law, 2d ed., 60.)</p> <p>“If possible, some meaning should be ascribed to all lines appearing on the plat, for it is not supposed that any lines are placed there without a purpose.” {City of Duluth v. St. Paul B. Co., 49 Minn. 201, 51 N. "W. 1163; City of Noblesville v. Lake Erie eta. B. Co., 130 Ind. 1, 29 N. E. 484; Smith v. Glenn, 6 Cal. Unrep. 519, 62 Pac. T80, 183; Mount Vernon v. Young, 124 Iowa, 517, 100 N. W. 694; Indianapolis v. Kings-bury, 101 Ind. 201, 213, 51 Am. Rep. 749.)</p> <p>Parol testimony is admissible to explain the meaning of such words and marks as may appear on the plat for the purpose of giving such words or marks effect and to show the extent of the dedication intended. {City of Los Angeles v. McClomum, 156 Cal. 148, 103 Pae. 914, 23 L. R. A., N. S., 378; Bidinger v. Bishop, 76 Ind. 244; Pittsburg etc. B. Co. v. Noftsger, 148 Ind. 101, 47 N. E. 332; Goodfellow v. Biggs, 88 Iowa, 540, 55 N. W. 319; City of Chicago v. Chicago B. I. etc. By. Co., 152 111. 561, 38 N. E. 768.)</p> <p>It cannot be maintained that the public ever acquired any rights to the alleged Dora avenue by user. {Smith v. Glenn, 6 Cal. Unrep. 519, 62 Pac. 180; Wilson v. Lakeview Land Co., 143 Ala. 291, 39 So. 303.)</p> <p>In the certificate of dedication there is no reservation or exception of this land marked Dora avenue. .There, is nothing on the plat which would give notice of any kind of any intention on the part of the dedicators to reserve this land. {Rhodes v. Town of Brightwood, 145 Ind. 21, 43 N. E. 942.)</p> <p>The mere failure to designate the width is not sufficient to overcome a valid dedication, provided the other elements of dedication are complete. {Coe College v. City of Cedar Rapids (Iowa), 87 N. W. 444.)</p> <p>When Mr. Proffer purchased lots in said addition, according to the description of said plat, there was a sufficient acceptance by the public to place the disposition of the entire addition, as far as streets and alleys are concerned, beyond the control of the grantors therein, except in the methods provided by law for the vacation of streets within the boundaries covered by said plat. {City of Denver v. Clements, 3 Colo. 484; Boise Cityv. Hon, 14 Ida. 278, 94Pae. 167; Elliott, Roads and Streets, 2d ed., sec. 117; 13 Cyc. 455 et seq.; Abbott’s Mun. Corp., secs. 729, 730; Cemetery Association v. Meninger, 14 Kan. 312; Price v. Stratton, 45 Fla. 535, 33 So. 644; Collins v. Asheville Land Co., 128 N. C. 563, 83 Am. St. 720, 39 S. E. 21; San Francisco v. Burr, 4 Cal. Unrep. 634, 36 Pac. 771; Highland Realty Co. v. Avondale Land Co (Ala.), 56 So. 716.)</p> <p>Appellant acquired no title by adverse possession by the payment of taxes upon this land designated as Dora avenue for five consecutive years subsequent to the dedication. {Boise City v. Hon, supra; Thorpe v. Clanton (Ariz.), 85 Pae. 1061.)</p> <p>“Where the land dedicated for street purposes has been little used by the public because it is rough and hilly, therefore incapable of use, dedication will be presumed by law to have contemplated this state of things and to have imposed no condition on the public to use the street until the public wants demand and secure its improvement.” {Shea v. City of Ottumwa, 67 Iowa, 39, 24 N, W. 582; Elliott, Roads and Streets, 2d ed., 119.)</p> <p>The presumption is that when the grantor records a plat and marks upon it spaces that appear to form no part of any platted lots, he dedicates the land represented by the spaces thus excluded to the public use. (Archer v. Salinas City, 93 Cal. 43, 28 Pac. 839, 16 L. R. A. 145.)</p> <p>“No one can acquire by adverse occupation, as against the public, the right to a street or square dedicated to public use. ’ ’ (Hoadley v. San Francisco, 50 Cal. 265; Yates v. Toiun of Warrenton, 84 Va. 337, 10 Am. St. 860, 4 S. E. 818; Board of Supervisors v. Seal, 66 Miss. 129,14 Am. St. 545, 5 So. 622, 3 L. R. A. 659.)</p>

Hon. Carl A. Davis, Judge. Action to recover the unearned portion of a liquor license tax. Judgment for plaintiffs. Defendant appealed. Reversed. The authority granting a liquor license may revoke it if, in the judgment of that body, the holder of the license is an unfit person to conduct a liquor business. (Wallace v. Mayor, 27 Nev. 71, 103 Am.

<p>APPEAL from tbe District Court of the First Judicial District for Shoshone County. Hon. W. W. Woods, Judge.</p> <p>Action for injunction and accounting. Cross-complaint to quiet title. Judgment for defendant. Plaintiff appealed.</p> <p>The lower court erred in deciding that because the vein crosses the southerly side line of the Stewart Fraction claim, that line is in fact an end line, in consequence of which the appellant is not entitled to any extralateral right to the vein southerly of the vertical plane of such line.</p> <p>The presumption obtains that a discovery was made in the Stewart Fraction claim, and that the claim was properly located with reference to the discovery vein. In other words, as there is neither allegation nor proof with reference to the discovery vein in the Stewart Fraction claim, it will be presumed that the side lines and end lines of the claim are as described in the patent. (Work Min. <& Milling Co. v. Dr. Jack Pot Mining Co., 194 Fed. 620; Del Monte M. & M. Co. v. Last Chance M. & M. Co., 171 U. S. 55, 18 Sup. Ct. 895, 43 L. ed. 72, 19 Morr. Min. Pep. 370; Calhoun Gold Min. Co. v. Ajax Min. Co., 182 U. S/499, 21 Sup. Ct. 885, 45 L. ed. 1200, 21 Morr. Min. Rep. 381.)</p> <p>The end lines of the claim which determine the extra-lateral right to the discovery vein are the end lines as to all other veins, the apices of which are within the claim. (Walrath v. Champion Min. Co., 170 U. S. 293, 18 Snp. Ct. 909, 43 L. ed. 170, 19 Morr. Min. Rep. 410; Del Monte Case, supra; Lindley on Mines, 2d ed., see. 591; Consolidated Wyo. G. M. Co. v. Champion Min. Go., 63 Fed. 540, 18 Morr. Min. Rep. 113.)</p> <p>The lower court erred in holding that the termination of the vein along the Osborne fault within the Stewart Fraction claim is not the top or apex thereof.</p> <p>If the course is downward along lines parallel with the vertical planes of the end lines, it is wholly immaterial that the course is more along the strike than on the dip of the vein. (Lindley on Mines, 2d ed., pp. 576, 577; Bunker Hill & Sullivan Mining Co. v. Empire State Mining Co., 134 Fed. 268; Last Chance Miming Co. v. Bunker Hill & Sullivan Min. Co., 131 Fed. 579, 66 C. C. A. 299.)</p> <p>The apex of the vein along the Osborne fault in a subsurface apex. Such an. apex will support a location, and the extra-lateral right attaches to a. vein having a subsurface apex the same as to a vein which outcrops at the surface. (Flagstaff Silver Min. Co. v. Tarbet, 98 U. S. 469, 25 L. ed. 253, 9 Morr. Min. Rep. 607 5 Calhoun Gold Min. Co. v. Ajax Gold Min. Co.,, supra.)</p> <p>The faét that the vein on its downward course from the-apex in the northerly portion of the Senator Stewart Fraction ¡claim extends into and through the Stewart and Lazy Jean claims does not affect the extralateral right attaching to-the vein beyond and southerly of the Senator Stewart and I/azy Jean claims. (Empire State etc. Co. v. Bunker Hill & 8. Min. Co., 114 Fed. 417, 52 C. C. A. 219, 22 Morr. Min. Rep. .104; Lindley on Mines, 2d ed., 532.)</p> <p>The law should be applied to the vein as it is situated in the ground and not to a theoretical vein, and it is the course of the apex which controls and not the general course or strike of the vein. (Mining Co. v. Tarbet, supra; Lindley on Mines, 2d ed., p. 1005; Carson City Gold Mining Co. v. North Star Mining Co., 73 Fed. 597.)</p> <p>The edge or end of the vein along the Osborne fault is the top or apex within the meaning of these words as used in sec. 2322, U. S. Rev. Stats., and there is a downward course along this apex to the ore bodies in controversy. Every requirement of the statute necessary to the exercise of the extra-lateral right by appellant is fulfilled. To hold otherwise would do violence to the statute by imposing conditions which are not contained in it. This is not permissible, as. held in Calhoun Min. Co. v. Ajax Gold Min. Co.,, supra.</p> <p>The appellant discovered and developed this vein. The respondent, the Ontario Mining Company, took advantage of the discovery and development of the vein by appellant, and the ore it has been and is extracting from the vein beneath the Ontario the law intended should belong to the appellant as a reivard for making a discovery of the vein. It is admitted that the apex to this vein is not within the Ontario claim) and it is conceded that the apex to at least a part of,the vein is within the fining claims of the appellant. {Lindley on Mines, 2d ed., sec. 335.)</p> <p>The court erred in deciding that the- respondent is entitled to have its leasehold interest in the Ontario claim quieted as against any claim which is or may be ass'ested by the appellant, and in rendering judgment enjoining the appellant from ever “asserting any right, title or interest oí, in or to the said Ontario mining claim or the ores or minerals therein adverse to the defendant.” (Keely v. Ophir Hill Corl^ Min. Co., 169 Fed. 601, 95 C. C. A. 99.)</p> <p>The trial judge made certain oral remarks to which counsel^ take exception. These oral remarks do not constitute a deei- \ sion within the meaning of the statute, and are not part of it. {Hamilton v. Spokane etc. By. Co., 3 Ida. 164, 28 Pac. 408.)</p> <p>If we assume that the patent conclusively establishes that there is a discovery vein running from one end line to the other, through the center of the claim, and that the end lines,, as described in the patent, are the end lines of all veins, and that a secondary vein on its course crosses the south side line of the Stewart Fraction Claim and runs substantially parallel with the end lines of the claim across the imaginary discovery vein to a point near the north side line of the claim,' still the law would not give the owners of the Stewart Fraction claim the right to.pursue that vein on its strike beyond the south side line of the claim. (Lind'ley on Mines, 2d ed., sec. 594, p. 1049, fig. 84; Cosmopolitan Min. Co. v. Foote, 101 Fed. 518, 20 Morr. Min. Eep. 497; Costigan on Mining Law, p. 448.)</p> <p>The lower court did not err in holding that the termination of the vein along the Osborn fault within the Stewart Fraction claim is not the top or apex thereof. (Lindley on Mines, 2d ed., sees. 305-312; Costigan on Mining Law, p. 105; Duggan v. Davey, 4 Dak. 110, 26 N. W. 887, 17 Morr. Min. Eep. 59; Flagstaff Min. Co. v. Tarbet, 98 U. S. 463, 25 L. ed. 253, 9 Morr. Min. Eep. 607; Del Monte Min. Co. v. Last Chance Min. Co., 171 U. S. 55, 65, 18 Sup. Ct. 895, 43 L. ed. 72, 19 Morr. Min. Eep. 370.)</p> <p>The right to follow the dip outside of the side line is based upon the hypothesis that the direction of these lines corresponds substantially with the course of the lode or vein at its apex, on or near the surface. It was not the intention of the law to allow a person to make his location crosswise of the vein, so that the side lines shall cross the vein, thereby giving him the right to follow the strike of the vein outside of his side lines. That would subvert the whole system sought to be established by law. (Flagstaff Min. Co. v. Tarbet, supra; Del Monte Min. v. Last Chance Min. Co., supra. See, also, Argentine Co. v. Terrible Min. Co., 122 U. S. 478, 7 Sup. Ct. 1356, 30 L. ed. 1140, 17,Morr. Min. Eep. 109.)</p> <p>In the case of Southern Nevada. Gold &’ Silver Min. Co. v. Holmes, 27 Nev. 107, 103 Am. St. 759, 73 Pac. 760, the defendant had a claim which was so located that it coúld sweep the country very much as the Stewart Fraction claim would be allowed to sweep southerly if the east and west portion of its so-called apex should be adjudicated to be a part of the apex and if -the court should further find that they could follow upon the strike.</p> <p>In the Horseshoe Case (Iron Silver M. Co. v. Elgin Min. etc. Co.), 118 U. S. 196, 6 Sup. Ct. 1177, 30 L. ed. 98, 15 Morr. Min. Rep. 641, the owner of a claim which contained no part of the apex of a vein was awarded the ore beneath his surface as against the owner of the claim which contained the apex of the vein, who had so located that apex that he could not follow the vein extralaterally in the direction of the ores in controversy or in any other direction. (Consolidated Wyo. G. M. Co. v. Champion Co., 63 Fed. 540, 18 Morr. Min. Rep. 113; St. Louis Co. v. Montana Co., 194 U. S. 235, 24 Sup. Ct. 654, 48 L. ed. 953.)</p> <p>The court did not err in entering a decree quieting the title of the Ontario company. (Lawson v. United States Mining Co., 207 U. S. 1, 28 Sup. Ct. 15, 52 L. ed. 65; Last Chance Co. v. Bunker Hill Co., 131 Fed. 579, 66 C. C. A. 299.)</p>

Hon. R. N. Dunn, Judge. An action instituted for the purpose of determining the validity of two ordinances enacted by the city of Coeur d’Alene for public improvements. The Idaho statute is materially dissimilar to statutes in other states, in that the legislature has delegated to the city council of this state the exclusive power to, first, pass upon the necessity of a municipal improvement; and, secondly, to determine the character of that improvement.

<p>APPEAL from the District Court of the Fourth Judicial District for Blaine County. Hon. Edward A. Walters, Judge.</p> <p>Prosecution on the charge of murder. Verdict and judgment of conviction. Defendants appeal.</p> <p>Appellants were witnesses for each other, and being at the same time a witness and a defendant, the force and effect of the testimony of each was greatly lessened, by reason of interest, under the instructions of the court that “the jury have the right to take into consideration the fact that they and each of them are interested in the result of the trial.....” (People v. New York City Super. Ct., 10 Wend. (N. Y.) 285; Detroit Tug Co. v. Wayne Cir. Judge, 75 Mich. 360, 42 N. W. 968.)</p> <p>The expression “and told me to be careful of him” was unresponsive, hearsay testimony, and prejudicial to appellants. {People v. McCrea,, 32 Cal. 98; Underhill on Criminal Evidence, 2d ed., par. 216.)</p> <p>The remarks of the court in the presence of the jury, during the cross-examination by appellants of state’s witness Dot Allen, were prejudicial to defendants. {State v. Philpot, 97 Iowa, 365, 66 N. W. 730; Underhill on Criminal Evidence, par. 215.)</p> <p>Accused had a right to show that the motive charged did not in fact exist. {People v. Mead, 1 Wheel. Cr. (N. Y.) 36; State v. Edwards, 34 La. Ann. 1012.)</p> <p>It is for the jury to determine the presence or 'lack of motive for the particular crime charged, as the absence of motive revealed is a circumstance to be duly considered in weighing the question of guilt. (21 Cyc. 919; 8 Am. & Eng. Ene. 291; Wharton on Crim. Ev., 10th ed., p. 1646; State v. Coleman, 20 S. C. 441; Preston v. State, 8 Tex. App. 30.)</p> <p>The rule as to a defendant’s right under the plea of alibi is that he may show any facts which tend to prove that he could not have been, or was not, present at the place and time of the offense. (12 Cyc. 404, 405; Wharton’s Criminal Evidence, 10th ed., p. 1835; State v. Hayward, 62 Minn. 474, 65 N. W. 66.) It was error to exclude testimony that would tend directly to weaken the case made by the state — testimony tending directly to establish an alibi and discredit the state’s case. {People v. Hare, 57 Mich. 505, 24 N. W. 843-848; Underhill Crim. Ev. 148; Greenleaf on Evidence, 14th ed., par. 100; Wharton’s Criminal Ev., 10th ed., par. 951, p. 1835; 14 Cent. Dig. 1289, 849; Shaw v. People, 3 Hun (N. Y.), 272; People v. McCrea, 32 Cal. 98; People v. Estrado, 49 Cal. 171; Smith v. Whittier, 95 Cal. 279, 30 Pae. 532; People v. Barker, 144 Cal. 705, 78 Pac. 266; State v. Delaney, 92 Iowa, 467, 61 N. W. 189; State v. Bedard,.65 Vt. 278, 26 Atl. 719; Jones on Evidence, par. 300, p. 378.)</p> <p>In not being permitted to prove their good character, particularly as to honesty and integrity, appellants were deprived of the benefit of evidence which was clearly admissible and of the greatest importance. (Cancemi v. People, 16 N. Y. 501; Saye v. State, 50 Tex. Cr. 569, 99 S. W. 551; State v. Cunningham, 111 Iowa, 233, 82 N. W. 755; State v. Parker, 7 La. Ann. 83; Commonwealth v. Winnemore, 1 Brewst. (Pa.) 356; 14 Cent. Dig. 841; People v. Ashe, 44 Cal. 288; Kee v. State, 28 Ark. 155; Klehn v. Territory, 1 Wash. 584, 21 Pac. 31, 32.)</p> <p>Evidence of good character is independent evidence, and of itself may raise a reasonable doubt and of itself require the jury to find the accused not guilty. (State v. Kinley, 43 Iowa, 294; United States v. Jackson, 29 Fed. 503; Bemsen v. People, 43 N. Y. 6; Kilpatrick v. Commonwealth, 31 Pa. 198; State v. Beebe, 17 Minn. 241; Underhill on Crim. Ev., sec. 79; Wharton’s Crim. Ev., see. 67; People v. Garbutt, 17 Mich. 9, 97 Am. Dec. 162; Commonwealth v. Leonard, 140 Mass. 473, 54 Am. Pep. 485, 4 N. E. 96; Edgington v. United States, 164 U. S. 361, 17 Sup. Ct. 72, 41 L. ed. 467.)</p> <p>Where two defendants are jointly indicted or informed against, a severance is not a matter of right. (Ball v. United States, 163 U. S. 662, 16 Sup. Ct. 1192, 41 L. ed. 300; 12 Cyc. 505, and cases cited; State v. Johnson, 116 La. 856, 41 So. 117; In re Wellington, 1-City H. Pec. (N. Y.) 144; Ball v. United States, 163 U. S. 662, 16 Sup. Ct. 1192, 41 L. ed. 300.)</p> <p>Evidence need not be positive to permit its reception, nor need identification of exhibits be positive to permit of their admission. (Underhill on Criminal Evidence, 2d ed., sec. 47; Mitchell v. State, 94 Ala. 68, 10 So. 518, 520; State v. Brabham, 108 N. C. 793, 13 S. E. 217.)</p> <p>When a motion to strike an answer on the ground that it is not responsive is directed at the whole answer, and any part thereof is responsive, the motion is properly denied. (Benja- . min v. New York El. B. Co., 63 Hun, 629, 17 N. Y. Supp. 90S; People v. Munroe, 4 Cal. Unrep. 66, 33 Pac. 776, 778; Delaney v. State, 51 N. J. L. 37, 16 Atl. 267; Tagert v. State, 143 Ala. 88, 111 Am. St. 17, 19, 39 So. 293.)</p> <p>It is the duty of the trial court to conduct a trial in an orderly manner, and any remarks of the court in the course of the trial aimed at that purpose are proper. (State v. Boland, 11 Ida. 490, 495, 83 Pac. 337; State v. Duestrow, 137 Mo. 44, 38 S. W. 554, 565, 39 S. W. 266; State v. Brown, 100 Iowa, 50, 69 N. W. 277, 278; 12 Cyc. 538.)</p> <p>Testimony as to the financial standing of the defendant is not admissible to show absence of motive. (Beynolds v. State, 147 Ind. 3, 46 N. E. 31, 32; Colter v. State, 37 Tex. Or. Rep. 284, 39 S. W. 576.)</p> <p>Conversations are not part of the res gestae for proving an alibi. (People v. Kalkman, 72 Cal. 212, 13 Pac. 500, 502.)</p> <p>If any portion of an offer of testimony is objectionable, the whole offer is properly refused. (Presser v. State, 77 Ind. 274; State v. Lawrence, 70 Yt. 524, 41 Atl. 1027.)</p> <p>Where character evidence is offered, it should be confined to the trait involved in the crime charged, and the trait involved in the case at bar is “peace and quietude.” (Basye v. State, 45 Neb. 261, 63 N. W. 811, 818; People v. Cowgill, 93 Cal. 596, 29 Pac. 228; State v. King, 78 Mo. 555; Morgan v. State, 88 Ala. 223, 6 So. 761; People v. Albers, 137 Mich. 678, 100 N. W. 908, 912; Hall v. State, 132 Ind. 317, 31 N. E. 536; Pettis v. State (Tex. Cr. App.), 150 S. W. 790, 792; Kahlenbeck v. State, 119 Ind. 118, 21 N. E. 460.)</p> <p>Where there is a substantial conflict in the evidence and there is any evidence to sustain the verdict, it will not be disturbed. (State v. Nesbit, 4 Ida. 548, 43 Pac. 66; State v. Silva, 21 Ida. 247, 120 Pac. 835.)</p>

Hon. James G. Gwinn, Judge. Prosecution for larceny. Judgment of conviction. Defendant appeals. When circumstantial evidence is relied upon to warrant a conviction, “the facts must not only be consistent with guilt, but must exclude every other reasonable hypothesis save that, of guilt.” (State v. Fisher, 1 Penne.

An original action for a writ of mandate, compelling the «ounty assessor of Ada county to turn over the boobs and property used and required by the tax collector of said county and permitting the plaintiff as county treasurer to perform the ■duties of tax collector. The contention of the plaintiff is that the amendment is self-operative, and that no action on the part of the legislature Was necessary to make it effective.