Volume 25 — Idaho Reports

Hon. Ed. L. Bryan, Judge. Suit to quiet title. Judgment for plaintiffs. Defendant appealed. Whether Snake river is navigable or non-navigable, plaintiffs cannot prevail, for in any event the west line of the respondent’s premises does not, under the United States patents thereto, extend west of the east channel of Snake river. (Horne v. Smith, 159 U. S. 40, 15 Sup.

Hon. Edward A. Walters, Judge. Appeal from an order appointing an administrator of the estate of a deceased person. No person is competent to serve as administrator who is not a bona fide resident of Idaho. (Sec. 5355, Rev. Codes.) And a nonresident is incompetent to nominate.

The secretary of the state board of health and registrar of vital statistics are state officers whose offices are created by statute. The act providing for their appointment also provided for the payment of their salaries, and is continuing an appropriation within the meaning of Gilbert v. Moody, 3 Ida. 3, 25 Pac. 1092; Reed v. Huston, 24 Ida. 26, 132 Pac.' 108. Repeals by implication are not favored. (Endlieh, Interpretation of Statutes, sec. 210; Lewis’ Sutherland’s Stat.

<p>APPEAL from the District Court of the Second Judicial District for Idaho County. Hon. Edgar C. Steele, Judge.</p> <p>Action for breach of contract. Judgment for defendant. Plaintiff appeals.</p> <p>I am aware that in Houser v. Hobart, 22 Ida. 735, 127 Pac. 997, 43 L. R. A., N. S., 410, this court has decided that contracts of this kind must be signed by both parties. Other questions decided in Houser v. Hobart are not involved here, because this contract' is definite and specific.</p> <p>It seems that with the exception of the Michigan eases and Houser v. Hobart, the authorities in England and the United States are practically all contrary to the rule announced by this court. See Murray v. Crawford, 28 L. R. A., N. S., 680, and the very exhaustive note thereunder, in which the rule contended for by appellant is sustained, as tbe editor of tbe note remarks, with the almost unbroken current of authority.</p> <p>In 43 L. R. A., N. S., 410 (Houser v. Hobart), there is another exhaustive note supplementing the one last referred to.</p>

<p>APPEAL from the District Court of the Second Judicial District for Idaho County. Hon. Edgar C. Steele, Judge.</p> <p>Action for breach of. contract. Judgment for defendant. Plaintiff appeals.</p>

Original application to this court for a writ of prohibition directed to the probate judge of Kootenai county to restrain and prevent Mm from considering the petition of the state of Idaho filed in the matter of the estate of John Corbett, deceased. Alternative writ issued, and after hearing the peremptory writ was granted and the court or judge prohibited from proceeding further in said matter.

<p>School District — Creation op — Board op County Commissioners— Writ op Review.</p> <p>1. Under the provisions of the school laws of the state (11th Sess. Laws, p. 500), the board of county commissioners has the authority and power to create new districts out of any territory within the county or change the boundaries of existing districts, as provided by said act.</p> <p>2. Under the provisions of sec. 19£>0, Jtev. Codes, every act, order or proceeding of the board of county commissioners is appealable, except an order made by sueh board while sitting as a board of equalization.</p> <p>3. Under the provisions' of sec. 4962, Eev. Codes, the writ of review cannot be granted where there is an appeal or, in the judgment of the court, a plain, speedy and adequate remedy.</p> <p>4. A writ of review does not lie to review the action of a board of county commissioners in the creation of a school district, as every action of the board of county commissioners may be reviewed on appeal.</p>

Hon. Edgar C. Steele, Judge. An action to recover upon a bill of lading for breach of the provisions of the bill of lading.

Hon. Carl A. Davis, Judge. Suit for divorce. Judgment for defendant and plaintiff appealed. The judgment is against the law, first because the court did not find on all the material issues raised by the pleadings and upon which evidence was introduced; second, because the plaintiff proved her ease by unimpeached and uncontradicted testimony and by a preponderance of the evidence, and had a legal right to a decree of divorce.

Hon. Carl A. Davis, Judge. Judgment for plaintiff, and one of the defendants appeals. Where the complaint starts to set up title and fails in any part of the chain of title, the complainant will be bound by what is plead. The allegation that the plaintiff is the owner in fee simple and entitled to the possession of the land as described in the complaint is treated as a conclusion of law.

<p>APPEAL from the District Court of the Second Judicial District for Idaho County. Hon. Edgar C. Steele, Judge.</p> <p>Action to recover on promissory notes and foreclosure of mortgage. Personal judgment rendered against the appellants.</p> <p>To enlarge the liability of an indorser from that implied by law from the position of his signature on a note to that of cosurety would require an express contract. (Sec. 3474, subd. 6, Rev. Codes; Chapman v. Pendleton, 26 R. I. 573, 59 .Atl. 928.)</p> <p>This court would be unwarranted in finding that any time in excess of the year after its issue provided by our former statute, which established the usage of this state and former territory for over a quarter of a century, was a reasonable time. (Meritt v. Jackson, 181 Mass. 69, 62 N. E. 987.)</p> <p>An analysis of American cases will show that practically none of the older cases hold that a delay of one year without extraordinary circumstances to excuse was reasonable. (Keyes v. Fenstermaker, 24 Cal. 329; Sice v. Cunningham, 1 Cow. 397; Camp v. Scott, 14 Yt. 387; Field v. Nickerson, 13 Mass. 131; Turner v. Benjamin, 74 Wis. 355, 17 Am. St. 168, 43 N. W. 149, 5 L, R. A. 533; Merritt v. Todd, 23 N. Y. 28, 80 Am. Dee. 243; Parker v. Stroud, 98 N. Y. 379, 50 Am. Rep. 685.)</p> <p>The doctrine of continuing security logically should be applied while such demand note remains in the hands of the original payee, but has no application after such note has been transferred. (1 Daniel, Neg. Instruments, 5th ed;, see. 610; Bassenhorst v. Witty, 45 Ohio St. 339, 13 N. E. 78.)</p> <p>The later decisions, and particularly those applicable under our negotiable instruments law, support the contention that under the facts shown in this record it follows as a matter of law that an unreasonable length of time had elapsed after the issue of the note sued upon before its presentation and notice of dishonor, and that a like unreasonable time had elapsed after its original issuance and indorsement by appellants and before its reissue or sale to Smith, the immediate assignor of the plaintiff. (Kerby v. Wade, 101 Ark. 543, 142 S. "W. 1121; Becker v. Horowitz, 114 N. T. Supp. 161.) McRae indorsed for the purpose of transfer of title without consideration and was one of the payees named in the note. Such indorsement was regular and carries with it only the contract and warranty of indorsement expressed by the statute. (Bank of Jamaica v. Jefferson, 92 Tenn. 537, 36 Am. St. 100, 22 S. W. 211; Sibley v. American Nat. Bank, 97 Ga. 126, 25 S. E. 470.)</p> <p>Payment was demanded within a reasonable time, considering the nature of the instrument and the facts of the particular case. (See. 3650, Rev. Codes; 7 Cyc. 975; Durnell v. Sowden, 5 Utah, 216, 14 Pac. 334; 1 Daniel on Neg. Instruments, secs. 606-608; Mochado v. Fernandez, 74 Cal. 362, 16 Pac. 19; 1 Parsons on Notes and Bills, 375.)</p> <p>Under the facts of the case, the Bank of Nez Perce and appellants McRae and Schultz may properly be considered to have waived their right to presentment of the notes. (Bessenger v. Wenzel, 161 Mich. 61, 125 N. W. 750; Garthwaite v. Bank of Tulare, 134 Cal. 237, 66 Pac. 326.)</p> <p>It may further very properly be held that the Bank of Nez Perce waived demand and presentment for payment by taking security. (Barrett v. Charleston Bank, 2 McMull. L. (S. C.) 191; Watts v. Mitchell, 6 How. (Miss.) 131; Posey v. Decatur Bank, 12 Ala. 802; Mead v. Small, 2 Me. 207, 11 Am. Dee. 62 ; Worley v. Johnson, 60 Fla. 294, 53 So. 543, 33 L. R. A., N. S., 639.)</p> <p>As to the $812 note, McRae and Schultz were not entitled to demand, protest or notice of nonpayment, being themselves accommodated parties. (Bank of Jamaica v. Jefferson, 92 Tenn. 537, 36 Am. St. 100, 22 S. W. 211; 2 Daniel on Neg. Instruments, 5th ed., secs. 995b, 1085.)</p> <p>“Where one who indorses a note is in fact a principal in the transaction, he is not entitled to notice of nonpayment.” {Furth v. Baxter, 24 Wash. 608, 64 Pae. 798.)</p> <p>The paper was reissued, sold and delivered without any limitation or restriction on the bank’s indorsement, and full faith and credit was entitled to be given to it, as it appeared upon the instrument, and Smith so relied upon it. The bank now seeks to escape liability for its own neglect. {Moore v. First Nat. Bank, 38 Colo. 336, 120 Am. St. 120, 88 Pac. 385, 10 L. R. A., N. S., 260, 12 Ann. Cas. 268; St. John v. Roberts, 31 N. Y. 441, 88 Am. Dec. 287; Scott v. First National Bank, 71 Ind. 445; Selover, Neg. Instruments, pp. 66, 67; French v. Jarvis, 29 Conn. 347.)</p> <p>Accommodation indorsers, who have under their own control and management all the assets and business of their principal, and whose duty it is to see that funds are provided and the debt paid, are not entitled to notice of the dishonor of his promissory note which they have indorsed. {Hull v. Myers, 90 Ga. 674, 16 S. E. 653.)</p> <p>The notes were paid and thereby disposed of for all purposes prior to their reissue by J. A. Schultz in delivering the same to T. W. Smith, or,there was a sale of the notes, and .payment means discharge. {Porter v. Title Guaranty <& Surety Co., 17 Ida. 364, 106 Pac. 299, 27 L. R. A., N. S., Ill; Citizens’ Bank v. Lay, 80 Ya. 436; Ballard v. Greenbush, 24 Me. 336; Havens v. Huntington, 1 Cow. (N. Y.) 387; St. John v. Roberts, 31 N. Y. 441, 88 Am. Dec. 287.)</p> <p>Schultz, as an indorsee of the note of $812 dated July 1, 1907, had the right to protect his own indorsement by payment of the note. Such payment extinguishes the note as to the payee and indorsers upon the note; a right to contribution between indorsers only would remain. {Gordon v. Wansey, 21 Cal. 77; Yule v. Bishop, 133 Cal. 579, 65 Pac. 1094; James v. Yaeger, 86 Cal.-187, 24 Pac. 1005; Wright v. Mix, 76 Cal. 465, 468, 18 'Pae. 645; Stevens v. Hannan, 88 Mich. 14, 49 N. W. 874; Fitch v. Hammer, 17 Colo. 595, 31 Pac. 336; Moran v. Abbey, 63 Cal. 56; Binford v. Adams, 104 Ind. 41, 3 N. E. 753.)</p> <p>If the notes were afterward assigned by the instrument designated as an assignment, it would be subject to the previous payment of the notes. The written assignment is of no validity, because an instrument of conveyance without a grantee named in it is a nullity. (1 Devlin on Deeds, 1st ed., see. 189.)</p> <p>This instrument could not be given by insertion of a grantee’s name (Smith) by Miller, long after Miller ceased to be an official of the Bank of Nez Perce. (Ellis v. Bashor, 17 Ida. 259, 105 Pac. 214.)</p>

<p>Action for Divorce — Conflict in Evidence.</p> <p>1. Where there is a substantial conflict in evidence, the findings of faet and judgment based thereon -will not be set aside on appeal.</p>

Hon. Ed. L. Bryan, Judge. Action for debt. Judgment for plaintiff. Defendant appealed. A contract of this character is binding on the parties; and if it is binding on one party, it must certainly be binding on both parties.

<p>Promissory Note — Mortgage—Assignment oe — Collateral Security —Title to Note.</p> <p>1. Where G. held the promissory note of T. and wife for $3,000 and a mortgage to secure the payment of the same, and thereafter hypothecated them for the payment of a debt of $602.44, and delivered such note and mortgage to the bank as collateral security, and thereafter made an assignment of such note and mortgage to M. to secure the payment of borrowed money from him, and thereafter, while such note and mortgage were in the hands of the bank G. made an assignment of whatever interest he had in said note and mortgage to M. and S. on an agreement that they pay G.’s indebtedness to the bank, and M. thereafter brought an action to foreclose said mortgage, in which aetion M. and S. intervene and claim to be the owners of said note and mortgage and ask in their complaint in intervention to have said mortgage foreclosed on their behalf, held, that the court erred in holding that M. and S. were the absolute owners of said note and mortgage and in giving them a judgment and decree foreclosing the mortgage.</p> <p>2. Held, that M. and S. were not the owners of said note and mortgage, -but held the same as collateral security for the balance due on the debt for which they were hypothecated.</p> <p>3. Held, that G.’s equity in said note and mortgage was assigned to M., and that M. was entitled to recover on said note and mortgage the balance remaining after paying the debt for which said note and mortgage were hypothecated to the bank.</p>

Hon. Alfred Budge, Judge. An action upon an information of the prosecuting attorney for the crime of murder. Judgment of conviction. A person on trial for homicide is entitled to demand a positive instruction to the jury on the character or nature of the danger feared, that entitles a person to offer lawful resistance. (State v. McGreevey, 17 Ida. 453, 105 Pac. 1047; People v. Angeles, 61 Cal. 188; Drysdale v. State, 83 Ga. 744, 20 Am.

Hon. Chas. P. McCarthy, Judge. Action for approval and confirmation by the district court of the proceedings of the board of county commissioners declaring the legality of the organization of the Indian Cove Irrigation District and of the issuance and sale of certain bonds. Judgment affirming such proceedings but excluding certain lands from said district. The decision of the trial court is directly contrary to the decision of this court in Gem Irr.

Hon. Alfred Budge, Judge. Action to recover for damages alleged to have occurred by the unlawful herding of the defendant’s sheep on plaintiff’s land. Judgment for plaintiff. The undertaking on appeal is statutory in form and sufficient as to the amount, being for the sum of $100 for costs on appeal and the sum of $160, double the amount of the judgment and costs in the justice court, for stay of proceedings.

Judicial District for Washington County. Hon. Ed. L. Bryan, Judge. Action to recover possession of personal property. Judgment for defendant. Plaintiff appealed. No particular act or formal ceremony is necessary to make a delivery; any act with the intention to transfer possession and dominion is sufficient. (35 Cyc. 187.) There may be a complete delivery although the goods remain in the possession of the seller, if they are marked and set aside for the buyer.

Hon. Carl A. Davis, Judge. Action to quiet title to certain real estate. Judgment for defendant. “Substantial compliance with requirements of the law in making assessments is all that is necessary. If property is a subject of taxation it cannot escape, through some technical failure of the officer to perform his duty, unless it has actually misled the party to his injury.” (Co-operatwe L. & 8.

Hon. Edgar C. Steele, Judge. An action to recover the sum of $625 alleged to have been placed under the control of J. W. Hockersmith as trustee of appellant, claiming that Hockersmith and one Frank L. Leonard, cashier of the Grangeville Savings & Trust Company, combined, connived and conspired to appropriate and apply said sum to their own use.

Original application in this court for a writ of mandate to the state auditor to compel him to draw his state warrant for a certain sum over and above the salary fixed by sec. 851, as amended, as salary for the librarian of the State Historical Society.' Where it is uncertain whether the legislature intended to devote a larger or a smaller sum to the payment of a salary,1 it has been held that the doubt should be resolved by adopting the smaller amount, since the interest of…

Hon. C. O. Stockslager, Judge. Action to recover for work performed and material furnished at the instance and request of the county. Demurrer to the complaint sustained and judgment of dismissal entered. The power to maintain public roads and highways necessarily includes the authority to enter into a contract for that purpose, and it would be absurd to say that a county could not bind itself by a contract, which it was legally authorized to make.

<p>APPEAL from the District Court of the Fourth Judicial District for Twin Falls County. Hon. C. O. Stockslager, Judge.</p> <p>Action against a constable and his bondsmen for damages. Judgment, for- defendants. Plaintiff appealed.</p> <p>“If any constable to whom any writ of execution is delivered neglects or refuses, after being required by the creditor, his agent or attorney, to levy upon or sell any property of the defendant, which is subject to execution, he and the sureties on his bond shall be liable to the creditor for the value of such property.” (Work Brothers v. Kinney, 7 Ida. 460, 63 Pac. 596.)</p> <p>The trial court erred in using prejudicial language before the jury. (McKissick v. Oregon Short Line B. Co., 13 Ida. 195, 201, 89 Pae. 629; Goldstein v. Bustemeyer, 21 Ida. 703, 707,123 Pac. 635; Wheeler v. Wallace, 53 Mich. 355, 19 N. W. 33; McDuff v. Detroit Evening Journal, 84 Mich. 1, 22 Am. St. 673, 47 N. W. 671; Shahman v. Potter, 98 Iowa, 61, 66 N. W. 1045; Williams v. West Bay City, 119 Mich. 395, 78 N. W. 328; State v. Allen, 100 Iowa, 7, 69 N. W. 274; People v. AUott, 101 Cal. 645, 36 Pac. 129.)</p> <p>The determination of the jury when made is not conclusive evidence in any proceedings involving the title to the property. It has not the effect of a judicial proceeding. Its only consequence is, that if in favor of the claimant, the officer may demand indemnity from the plaintiff and may surrender the property if indemnity is refused. Until the verdict of the jury, the officer cannot compel the execution of a bond of indemnity. (2 Freeman on Executions, 2d ed., sec. 277, p. 898; Strong v. Patterson, 6 Cal. 156; Davidson v. Dallas, 8 Cal. 227.)</p> <p>Sec. 218 of the Code of Civil Procedure of California is in exact language of sec. 4478 of our Revised Codes, and the court in construing this section of the statute said: “It will be seen that the code thus states the effect of the verdict if in favor of the claimant. It also states the effect of the verdict if against the claimant as to costs. When a statute assumes to state the effect of a certain provision, we must presume that all the effects intended by the lawmaker are stated.” (Perkins v. Thornburgh,, 10 Cal. 189; Indiana & Chicago Coal Co. v. Neal, 166 Ind. 458, 77 N. E. 851, 9 Ann. Cas. 424; Sheldon v. Loomis, 28 Cal. 122.)</p> <p>It is improper for a trial court to comment on the evidence produced before the jury or to suggest to the jury what fact is proven or disproven by the evidence. (State v. Fowler, 13 Ida. 317, 89 Pae. 757; Goldstein v. Rusiemeyer, supra.)</p> <p>It has been held that sec. 689, Code Civ. Proe., is .intended for the protection of the sheriff. (Paden v. Goldbaum, 4 Cal. Unrep. 767, 37 Pac. 759; Brenot v. Robinson, 108 Cal. 143, 41 Pac. 37; Dubois v. Spinks, 114 Cal. 289, 46 Pac. 95.)</p> <p>Appellant would have the officer do something which the court itself would not have the authority to do. (Lewis v. Chamberlain, 108 Cal. 525, 41 Pae. 414, 415; McDowell v. Bell, 86 Cal. 615, 25 Pac. 128.)</p> <p>A levy by such officers upon property of a third person is a breach of their bond for which the sureties aré liable, and it makes no difference whether the officer makes the levy or attachment knowingly or by mistake. (Van Pelt v. Littler, 14 Cal. 194.)</p> <p>Under such proceedings, when a third person claims an interest in the property alleged to belong to the judgment debtor, such proceedings end, and an action is necessary to determine the ownership of such property. (Gordon v. Lemp, 7 Ida. 677, 65 Pac. 444.)</p>

Hon. Edward A. Walters, Judge. From an order refusing to strike a cost bill from the files and to disallow costs plaintiff.appeals. The provision of sec. 4912, Rev. Codes, relating to the service of the copy of the memorandum of eosts on the adverse party is mandatory.

An application for a writ of prohibition to Hon. James G. Gwinn, Judge of the Ninth Judicial District for the County of Bonneville. The ten-day limit fixed by sec. 4430 within which to prepare and serve a bill of exceptions is jurisdictional. (Lydon v. Piper, 5 Ida. 541, 51 Pac. 101.) Under see. 4441 the defendant should either have given his notice of intention within the ten days or should, within the same ten days, have had the time extended.

<p>APPEAL from the District Court of the Second Judicial District for Nez Perce County. Hon. E. C. Steele, Judge.</p> <p>Action by plaintiff to recover from Wilfred L. Gifford, Secretary of State, a license tax paid under protest. Judgment for plaintiff. Defendant appealed.</p> <p>The state may impose such conditions as it deems proper upon permitting a foreign corporation to do business within its borders. (Horn Silver Min. Co. v. New York, 143 U. S. 305,12 Sup. Ct. 403, 36 L. ed. 164.)</p> <p>It is not every burden affecting interstate commerce which is unconstitutional. (Galveston, H. & S. A. Ry. Co. v. Texas, 210 U. S. 217, 28 Sup. Ct. 638, 52 L. ed. 1031.)</p> <p>The controlling question in determining the validity of state statutes imposing taxes upon foreign corporations doing business within the state is whether the exactions are an excise or a property tax. (Society for Savings v. Coite, 73 U. S. (6 Wall.) 594, 18 L. ed. 897; Hamilton Mfg. Co. v. Massachusetts, 73 U. S. (6 Wall.) 632, 18 L. ed. 904; Provident Institute for Savings v. Massachusetts, 73 U. S. (6 Wall.) 611, 18 L. ed. 907; Home Ins. Co. v. New York, 134 U. S. 594, 10 Sup. Ct. 593, 33 L. ed. 1025; Maine v. Grand Trunk Ry., 142 U. S. 217, 12 Sup. Ct. 121, 35 L. ed. 994; White Dental Mfg. Co. v. Commonwealth, 212 Mass. 35, Ann. Cas. 1913C, 805, 98 N. E. 1056.)</p> <p>“Franchise” as used in the term “franchise tax” has a different meaning and refers to a different element than when used to describe property under the revenue ad valorem laws. (Louisville etc. Tel. Co. v. Hopkins, 121 Ky. 850, 90 S. W. 594; Home Ins, Co. v. New York, supra; Paul v. Virginia, 75 U. S. (8 Wall.) 168, 19 L. ed. 357.)</p> <p>The legislature has authority to impose license taxes. (Const., sec. 2, art. 7; State v. Doherty, 3 Ida. 384, 29 Pac. 855; State v. Union Central Life Ins. Co., 8 Ida. 240, 67 Pae. 647; In re Gale, 14 Ida. 761, 95 Pac. 679.)</p> <p>It is essential to a decision in this case that the principles of the following two eases be reconciled: Maine v. Grand Trunk By., 142 U. S. 217, 12 Sup. Ct. 121, 35 L. ed. 994; Western Union Tel. Co. v. Kansas, 216 U. S. 1, 30 Sup. Ct. 190, 54 L. ed. 355.</p> <p>As to foreign corporations seeking to do business within the state, the state is the master and may prohibit or tax such business at will. (Bank of Augusta v. Earle, 13 Pet. 539, 10 L. ed. 284; Security Mutual Life Ins. Co. v. Prewitt, 202 U. S. 246, 26 Sup. Ct. 619, '50 L. ed. 1013, 6 Ann. Cas. 317.)</p> <p>A property tax must be proportional and reasonable. An excise tax need not be proportional but must be reasonable. {White Dental Go. v. Commomvealth, supra; Western Union Tel. Co. v. Kansas, 216 U. S. 1, 30 Sup. Ct. 190, 54 L. ed. 355; Pullman Co. v. Kansas, 216 U. S. 56, 30 Sup. Ct. 232, 54 L. ed. 878.)</p> <p>Respondent relies for affirmance upon the following authorities: Western Union Tel. Co. v. Kansas, 216 U. S. 1, 30 Sup. Ct. 190, 54 L. ed. 355; Pullman Co. v. Kansas, 216 U. S. 56, 30 Sup. Ct. 232, 54 L. ed. 378; Ludwig v. Western Union Tel. Co., 216 U. S. 146, 30 Sup. Ct. 280, 54 L. ed. 423; Atchison, Topeka & Santa Fe B. Co. v. O’Cornier, 223 U. S. 280, Ann. Cas. 1913C, 1050, 32 Sup. Ct. 216,. 56 L. ed. 436; H. K. Mulford Co. v. Curry, 163 Cal. 236, 125 Pae. 236; Chicago M. & S. P. By. Co. v. Swindlehurst (Mont.), 130 Pac. 966; Hirschfeld v. McCullagh, 64 Or. 502, 127 Pac. 541, 130 Pac. 1131; White Dental Mfg. Co. v. Commonwealth, 212 Mass. 35, Ann. Cas. 1913C, 805, 98 N. E. 1056; King County v. Northern Pac. By. Co., 196 Fed. 323, 116 C. C. A. 143.</p> <p>Where a foreign corporation is engaged in transacting both interstate and domestic commerce, an excise tax measured by its gross receipts is clearly unconstitutional unless a tona fide attempt is made either to apportion the tax between the domestic and interstate receipts or to confine the tax to local property and the receipts therefrom. (Batterman v. Western Union Tel. Co., 127 TJ. S. 411, 8 Sup. Ct. 1127, 32 L. ed. 229; Leloup v. Port of Motile, 127 TJ. S. 640, 647, 8 Sup. Ct. 1380, 32 L. ed. 311; Crutcher v. Kentucky, 141 U. S. 47, 11 Sup. Ct. 851, 35 L. ed. 649; Gloucester Ferry Co. v. Pennsylvama, 114 TJ. S. 196, 5 Sup. Ct. 826, 29 L. ed. 158; Galveston etc. By. Co. v. Texas, 210 TJ. S. 217, 28 Sup. Ct. 638, 52 L. ed. 1031; Fargo v. Hart, 193 U. S. 490, 24 Sup. Ct. 498, 48 L.- ed. 761; Meyer v. Wells, Fargo & Co., 223 TJ. S. 298, 32 Sup. Ct. 218, ■'56 L. ed. 445.)</p> <p>The Kansas and Pullman cases very clearly held that the tax of the corporation on its corporate stock was a tax upon its property and all of it wheresoever situate, and its business and all of it, whether local or interstate. Mr. Justice Holmes, though dissenting in the first case, has clearly announced the same doctrine in subsequent cases where he has written the opinion of the court recognizing that there is no longer any controversy about this. The tax in question, therefore, being upon property in other states, violates the due process clause, and being upon interstate commerce, violates the interstate commerce clause of the constitution.</p>

<p>Motion to Dismiss — Transcript—Certificate—Corporations—Domestic — Foreign—Venue—Residence.</p> <p>1. Where the transcript on appeal does not contain the proper certificate showing what papers the trial court or judge used on the hearing of the matter presented to him, and a motion is made to dismiss the appeal on that ground, and counsel for appellant asks for permission to procure the proper certificate and he is given permission to do so, and thereafter furnished the proper certificate, the appeal will not be dismissed on that ground.</p> <p>2. Foreign corporations that have complied with the constitution and laws of this state in regard to doing business in this state have all the rights and privileges of domestic corporations, under the provisions of see. 2792, Rev. Codes.</p> <p>3. Boyer v. Northern Pae. By. Co., 8 Ida. 74, 66 Pae. 826, 70 L. R. A. 691, cited and approved.</p> <p>4. A domestic corporation under our statutes has not the absolute right to have all actions brought against it tried in the county ■where its principal place of business is located.</p> <p>5. Where an action is brought against a domestic corporation in the county where the contract on which the action is based was made, the corporation has no absolute right under our statutes to have the venue of such action changed -to the eounty wherein is located the principal place of business of such corporation.</p>

Hon. Edward A. Walters, Judge. An action for the purpose of canceling and annulling a certain contract entered into between the appellants and respondent for selling and purchasing real property. Respondent cannot have a rescission for a mistake where no fraud has been practiced, except that she offer to pay the defendant for the reasonable use and rental of the premises and restore the possession thereof.

<p>APPEAL from the District Court of the Fourth Judicial District for Blaine County. Hon. Edward A. Walters, Judge.</p> <p>An action to quiet title.</p> <p>“Occupation of another’s land, in the belief that it is unclaimed land belonging to the state, is not adverse possession.” (Schleicher v. Gatlin, 85 Tex. 270, 20 S. W. 120.)</p> <p>Where the occupation of land is by a mere mistake, and with no intention on the part of the occupant to claim as his own land which does not belong to him, but intends to claim only to the true line, wherever it may be, the holding is not adverse. (1 Cyc. 1037, 1038, and cases cited.)</p> <p>This court in construing sec. 4043 has repeatedly held that in order .to acquire title by adverse possession, whether claimed under color of title or not, it is necessary that the adverse claimant shall have paid all taxes assessed against the land according to law. (Swamh v. Sweetwater Irr. etc. Go., 15 Ida. 353, 98 Pae. 297; Green v. Christie, 4 Ida. 438, 40 Pac. 54; Brose v. Boise City B. etc. Co., 5 Ida. 694, 51 Pac. 753; Little v. Crawford, 13 Ida. 146, 88 Pac. 974; Brown v. Brown, 18 Ida. 345, 110 Pac. 269.)</p> <p>We find no provision of the statute authorizing the acquisition of title by adverse possession without color of title, where the land has not been usually cultivated or improved or substantially inclosed, and where taxes have not been paid by the adverse claimant or those under whom he claims. In the ease at bar Johnson had inclosed only about five or six acres and had cultivated but a small portion of the same. Without color of title there can be no constructive possession. (1 Cyc. 1122, 1123; Brumagim v. Bradshaw, 39 Cal. 24; Madden v. Hall, 21 Cal. App. '541, 132 Pac. 291; Saxton v. Hunt, 20 N. J. L. 487; Miller v. Shaw, 7 Serg. & E. (Pa.) 129; Hamilton v. Flournoy, 44 Or. 97, 74 Pae. 483; Grant v. Oregon Nm. Co., 49 Or. 324, 90 Pac. 178, 1099; Polack v. ‘McGrath, 32 Cal. 15; Sunol v. Hepburn, 1 Cal. 254; 1 Am. & Eng. Ency. of Law, 861, and cases cited.)</p> <p>At the time of the redemption by Johnson, he had no right or title to or interest in the land such as would aixthorize him to redeem or would authorize the officials of Blaine county to permit him to redeem. (Jaggard on Taxation, p. 622; Da, Silva v. Turner, 166 Mass. 407, 44 N. E. 532; Rutledge v. Price County, 66 Wis. 35, 27 N. W. 819.)</p> <p>A mere occupant of premises is not entitled to redeem. (Frazier v. Johnson, -65 N. J. L. 673, 48 Atl. 573.)</p> <p>The pretended redemption of appellant Johnson could in no way prejudice the right of appellant Sowden. (37 Cye. 1387; White Pine Mfg. Co. v. Morey, 19 Ida. 49,112 Pac. 674.)</p> <p>As the plaintiff showed thát he had been in open, notorious and adverse possession of this land for more than five years continuously, before the date of the trial, and had paid the taxes thereon, under our statutes he held the land by adverse possession. (Sees. 4041, 4043, Rev.. Codes; Cramer v. Walker, 23 Ida. 495, 130 Pae. 1002; Craven v. Lesh, 22 Ida. 463, 126 Pac. 774.) '</p> <p>The plaintiff: having established a pnma facie case, the burden was then upon the defendant, under his cross-complaint, to show title in himself, and he must stand or fall by his own title. (Lougee v. Wilson (Colo. App.), 131 Pac. 777.)</p> <p>A tax certificate is not evidence of title and does not pass title, and cannot be admitted for the purpose of establishing title to land. It vests in the purchaser only a lien for the sum paid. (Bacon v-. Rice, 14 Ida. 107, 93 Pae. 511.)</p>

<p>Writ of Review — Foreign Corporation — Power to Do Business in State — Power of Directors Who Live in Another State Where the Corporation is Organized to Sue and Defend Suits in the State Where the Foreign Corporation is Prohibited Under the Laws of the State — Appearance of Corporation not Qualified Under the Laws of the State.</p> <p>(Syllabus to Opinion of Justice Stewart.)</p> <p>1. The constitution, art. 5, sec. 2, provides: “The judicial power of the state shall be vested in a court for the trial of impeachments, a supreme court, district courts, probate courts, courts of justices of the peace, and such other courts inferior to the supreme court as may be established by law for any incorporated city or town.”</p> <p>2. Sec. 3830, Rev. Codes, prescribes the powers of the district courts: “The district court has original jurisdiction: 1. In all cases both at law and in equity; 2. In all special proceedings; 3. In the issuance of writs of mandamus, certiorari, prohibition, habeas corpus and all writs necessary to the exercise of its powers.....”</p> <p>3. Sec. 2787, Rev. Codes, has not been repealed or changed by the act of January 30, 1912. This section provides: “Unless other persons are appointed by the court, the directors or managers of the affairs of such corporation at the time of its dissolution are trustees of the creditors and stockholders, or members, of the corporation dissolved, and have full power to settle the affairs of the corporation.” This section does not apply in this case, but only applies as to the right to do business in the state.</p> <p>4. Held, that there are no provisions in the statutes which limit the jurisdiction of the court in appointing trustees and receivers of a foreign corporation, which owns valuable property in the state and is making contracts and carrying on business, where such corporation becomes insolvent and has creditors and is unable to pay the debts of the corporation; and such corporation can be sued in the courts of the state, and the courts acquire jurisdiction of such corporation by reason of the fact that such corporation has appointed an agent and a principal place of business in the state, and the district court and the judge thereof has power to make such appointment. (See. 4329, Rev. Codes.)</p> <p>5. Except so- far as the control of the affairs of a domestic or foreign corporation is placed in the hands of the receiver, its officers and directors, except when enjoined by the court appointing the receiver, continue to exercise their functions as if no receiver had been appointed.</p> <p>6. Held, in this case, that the application and showing filed show no beneficial interest of the petitioners which would justify this eourt in issuing a writ of review to annul the order made by Judge Stevens at chambers, appointing a trustee or receiver for the ranch company.</p> <p>7. Held, that the present action, if brought by parties interested, might have been sufficient, because of the necessities and interests of the different parties, and that it would be more speedy and remedial than an appeal.</p> <p>(Syllabus to Opinion of Chief Justice Ailshie.)</p> <p>1. Where a foreign corporation has complied with the laws of this state and engaged in business and acquired property in the state, and thereafter failed to pay the corporation license tax and forfeited the right to continue to do business in the state, and thereafter a mortgagee commenced an aetion against the corporation to foreclose the mortgage without knowing that such corporation had forfeited its right to do business in the state, and the directors of the corporation resident of the state where the corporation was organized, not knowing of the state law requiring the corporation tax, employed an attorney and directed him to defend in the action, and an answer was filed and the trial of the case was actually entered upon, and thereafter the attorney for the corporation withdrew on the ground that under the statute the corporation was not entitled to defend in the action, held, that it was not in excess of the jurisdiction of the trial court to thereafter appoint a trustee of .the corporation to defend the action, and that the power to do so is conferred upon the court both by the provisions of see. 11, chap. 6 of the Daws of the Extraordinary Session of 1912 and by the pro»visions of subdivisions 5 and 6 of sec. 4329 of the Rev. Codes.</p> <p>2. A foreign corporation duly organized and existing under the laws of a foreign state, which has complied with the foreign corporation laws of this state so as to entitle it to do business, and thereafter forfeited such right by reason of its failure to pay the corporation tax, is no longer entitled to prosecute or defend actions in the state, but it is not in all respects in the same condition as a domestic corporation which has been dissolved or has expired by reason of the expiration of its charter.</p> <p>3. Where the directors of a foreign corporation have entered an appearance on behalf of the corporation and filed an answer and entered upon the trial of the case and thereupon discovered that the corporation had forfeited its right to do business in the state, and is no longer entitled to defend in an action, it is the duty of sueh directors to intervene in such action and defend the same if they do not want a trustee appointed by the court for the purpose of defending such action.</p> <p>4. In a suit in equity and in rem to foreclose a mortgage, an abatement of the action does not necessarily work a dismissal of the action or destroy the cause of action, but merely operates to suspend the further prosecution thereof until the cause which resulted in the abatement is removed, when a revival may be had and the action may be prosecuted to final judgment.</p> <p>5. Where a foreign corporation is shown to have complied with the laws of this state and to have lawfully entered upon business in this state, one dealing with such corporation or desiring to prosecute an action against it may presume that it has paid the corporation tax and is still entitled to do business in this state, and he is not chargeable with the duty of making inquiry and examination to ascertain if it has kept in good standing so long as it has continued to do business.</p>

Hon. C. O. Stockslager, Judge. Action by the county on the official bond of the ex-recorder of the county. Judgment for the plaintiff and defendants appealed. The county is estopped from maintaining this action. (11 Am. & Eng.

<p>Action on Account — Admission op Testimony — Conplict op Evidence.</p> <p>1. Where appellant cross-examined respondent at length upon items of aeeount in both the bill of particulars and account-books, this court will not disturb the finding as to the balance due.</p> <p>2. Where there is substantial evidence to support the findings of the court or verdict of the jury, they will not be set aside on the ground of insufficiency of the evidence.</p>

Original proceedings in this court for a writ of mandate to compel the county board of equalization of Bannock county to change its equalization of the valuation of certain property in said county to conform to the views of the tax commission in regard thereto.

Hon. Carl A. Davis, Judge. An action to determine the authority of the trial court to make an order in the matter of the receivership of the Boise State Bank, Limited. The assets of an insolvent bank are distributed in the same order as assets of other insolvent estates, except such preferences as may be prescribed. (5 Cyc. 571.) The laws of Idaho prefer depositors over all other creditors, but provide for no preference among depositors of insolvent banks.

Hon. Robert N. Dunn, Judge. Action for damages for false imprisonment. Judgment for defendant. Plaintiff appeals.

<p>Corporation — Organization of — Questioning Regularity of — Right of Corporation to Ratify and Adopt the Acts of the Promoters Made in Its Behalf Prior to Its Formation- — Right to Sue for Specific Performance Against a Promoter Who Refuses to Comply With Contract — Evidence—Preponderance Supporting Findings — No Error Justifying Reversal.</p> <p>1. Individuals cannot in'collateral suits avail themselves of any defects in the organization of a corporation. This may be done only by the power creating them in a direct proceeding instituted for that purpose.</p> <p>2. A person who has been instrumental in the formation of a corporation and who has contracted with the corporation with full knowledge of its transactions is not in a position to contest the legality of its formation.</p> <p>3. Where four promoters made an agreement to form a corporation, and after the corporation was formed became its -sole stockholders, officers and directors, and made contracts and transacted business on behalf of the corporation relating to a contract previously entered into between the promoters, and had knowledge of the transactions whieh preceded the formation of the corporation and the contract that the promoters made prior to the organization of the corporation, and this knowledge was imputable to the corporation when they became stockholders, officers and directors, and the evidence shows that the corporation by its acts and conduct has adopted' and ratified the agreement made by the' promoters before the corporation was organized, and the corporation brings suit against one of the promoters who has not fully complied with .his contract entered into as a part of the promoters’ arrangement, the plaintiff, the corporation, has a legal cause of action and may sue for specific performance of the contract.</p> <p>4. Where it is shown by the record that the evidence in the case is conflicting, and the opinion, of this court is that there is substantial evidence supporting the findings of the-trial court, this court will not .reverse the judgment on the ground that the evidence does not support the findings.</p>

<p>Contract — Construction on — Failure to Bead — Evidence — Sufficiency of — Verdict.</p> <p>1. Where a party enters into a written contract in a language that he eannot read, it is as much his duty to procure some person to read and explain it to him before he signs it as it would be for him to read it before he signed it if he were able to read it, and his failure to obtain a reading and explanation of it before signing is such gross negligence as will estop him from avoiding it on the ground that he was ignorant of its contents.</p> <p>2. Held, that .the evidence does not show that there was any fraud practiced upon plaintiffs in the making of said contract.</p> <p>3. Held, that the evidence is not sufficient to sustain the verdict of the jury.</p>

<p>APPEAL from the District Court of the Eighth Judicial District for Bonner County. Hon. J. M. Flynn, Judge.</p> <p>Action for damages. Judgment for plaintiff. Defendant appeals.</p> <p>Plaintiff was, as a matter of law, guilty of contributory negligence; he did not, before attempting to cross the traek, take any of the usual precautions for his own safety; he neither looked nor listened. (McCormick v. Ottumwa Ry. & Light Co., 146 Iowa, 119, 124 N. W. 889.)</p> <p>It is certain that the railway company has some rights between crossings superior to its rights and those of pedestrians at crossings. (Ashley v. Kanawha Valley Traction Co., 60 W. Ya. 306, 55 S. E. 1016, 9 Ann. Cas. 836; Wolfe v. City Suburban Ry. Co., 45 Or. 446, 72 Pac. 329; Marden v. Portsmouth Ry. Co., 100 Me. 41, 109 Am. St. 476, 60 Atl. 530, 69 L. R. A. 300; Davidson v. Denver Tramway Co., 4 Colo. App. 283, 35 Pac. 920.)</p> <p>“A failure to listen or look, when by taking this precaution the injury might have been avoided, is negligence that will bar a recovery, notwithstanding the negligence of the railroad company in failing to give signals contributed to the injury.” (Union Pacific Ry. Co. v. Adams, 33 Kan. 427, 6 Pac. 529; Booth on Street' Railways, sec. 312; Birmingham Ry. L. & P. Co. v. Oldham, 141 Ala. 195, 37 So. 452, 3 Ann. Cas. 333; Nellis on Surface Railroads, 365; Harris v. Lincoln Traction Go., 78 Neb. 681, 111 N. W. 580; Wood v. Omaha etc. St. Go., 84 Neb. 282, 120 N. W. 1121, 22 L. R. A., N. S., 228; Hellieson v. Seattle Elec. Go., 56 Wash. 278, 105 Pac. 458; Keefe v. Seattle Elec. Co., 55 Wash. 448, 104 Pac. 774.)</p> <p>“If the plaintiff voluntarily goes into a place of danger without exercising the care required by law, he is guilty of negligence.” (Wheeler v. Oregon B. &' Nav. Go., 16 Ida. 375, 102 Pae. 347; Burrow v. Idaho d& W. N. B., 24 Ida; 652, 135 Pae. 838.)</p> <p>The court erred in giving the instruction: “The burden of proof is upon the defendant to establish that the driver of the automobile, Charles Palmer, was guilty of contributory negligence, and that such contributory negligence was the proximate cause of the collision between the street-ear and the automobile.” (Burns v. Metropolitan St. By. Co., 66 Kan. 188, 71 Pac. 244.)</p> <p>Under the facts, the negligence of Palmer and even of the plaintiff concurred with any negligence that might have been found on behalf of the defendant up to and including the very moment of the accident, and the rule of the last clear chance is not applicable to such a ease. (McCormick v. Ottumwa By. &' Light Go., supra.)</p> <p>There must have been such a lack of care on behalf of the defendant as to amount to gross negligence, and thus a proof of wilful and wanton injury. (Umon Pacific By. Go. v. Adams, 33 Kan. 427, 6 Pac. 529; Helber v. Spokane St. By. Go., 22 Wash. 319, 61 Pac. 40.)'</p> <p>This was not a street-crossing case, and there was no duty on the motorman to stop his car on the view of an approaching vehicle until it was known to him, or should have been known to him, that the automobile was actually going upon the track or that the driver did not know of the approach of the street-car. (Helber v. Spokane St. By. Co., supra; Greene v. Louisville B. Go., 119 Ky. 862, 84 S. W. 1154, 7 Ann Cas. 1126, and notes; 27 Am. & Eng. Ency. of Law, 70.)</p> <p>The instruction of the trial court required the motorman to stop the car the minute the automobile appeared in the door of the building. The motorman did not owe any such duty. (Sonnenfeld Millinery Go. v. People’s By. Co., 59 Mo. App. 668.)</p> <p>The court should have instructed the jury that, generally speaking, the one approaching the track “should both look and listen.” {Pilmer v. Boise Traction, 14 Ida. 327, 125 Am. St. 161, 94 Pac. 432, 15 L. R. A., N. S., 254.)</p> <p>Instruction No. 15 was contrary to the law, as both the negligence of the plaintiff and that of the defendant might be a proximate cause; there might have been a joinder of proximate causes and there could have been more than one proximate cause. (Johnson v. North Western Tel. Kxch. Co., 48 Minn. 433, 51 N. W. 225, at 226; Gunter v. Granite-ville Mfg. Co., 15 S. C. 443; Bigelow v. Danielson, 102 Wis. 470, 78 N. W. 599.)</p> <p>The refusal of instruction “C” was error. The rights of the parties are equal at the crossings {Jones v. Toronto etc. By. Co., 25 Ont. L. Rep. 158, Ann. Cas. 1912C, 1070; Knox v. North Jersey St. By. Co., 70 N. J. L. 347, 1 Ann. Cas. 164, 57 Atl. 423; Blahe v. Bhode Island Co., 32 R. I. 213, Ann. Cas. 1912D, 854, 78 Atl. 834), and the rights of the streetcar are equal or superior between crossings. The refusal of instruction “D” was error. This instruction is approved in form by Saekett, No. 2107, 1389, and was approved in South Chicago C. By. Co. v. Kinnare, 216 111. 451, 75 N. E. 179.</p> <p>It is not negligence as a matter of law for a person to undertake to cross a street railway without looking and listening. Whether a person is guilty of contributory negligence by .going upon a street railway track without looking and listening, and whether that is the proximate cause of the injury, is a question for the jury to determine under all the facts and circumstances proved in the case.</p> <p>Though a person be contributorily negligent in going upon a street railway track, yet if the motorman in charge of said railway car discovered that person upon the track or about to go thereon in time to stop the car and avoid injury, it is the duty of the motorman to use every effort possible to stop the ear and prevent the injury, and if he fails to do so and the evidence shows that he might have done so, the railway company will be responsible for the injury. (Pilmer v. Boise Traction Go., 14 Ida. 327, 125 Am. St. 161, 94 Pac. 432, 15 L. R. A., N. S., 254; Shearman & Redfield on Negligence, 6th ed., secs. 485aa, 485ab, 485ba, 485c and 99; Elliott on Railroads, 2d ed., secs. 1096cb, 1096cd, 1096cs, 1096ci, 1096ej, 1096eo, and 1096cq, and the cases cited in the Pilmer case; Kramm v. Stockton etc. B. Co., 3 Cal. App. 606, 86 Pac. 738, 903; Anderson v. Great Northern By. Go., 15 Ida. 513, 99 Pac. 91; Bippetoe v. Feely, 20 Ida. 619, 119 Pac. 465.)</p> <p>Instruction No. 15 is identical with one that was given and approved in the case of Boanoke etc. Co. v. Young, 108 Ya. 783, 15 Ann. Cas. 946, 62 S. E. 961, 946, and the giving thereof in connection with the other instructions in this case was clearly not error.</p>

<p>Foreclosure op Mechanic’s Lien — Neglect to Make Findings op Fact and Conclusions op Law — Reversible Error — Special Findings op Fact by Jury.</p> <p>1. An action to foreclose a mechanic’s lien is an aetion in equity.</p> <p>2. A judgment will be reversed and the cause remanded when the trial court fails to make findings of faet and conclusions of law in an action to foreclose a mechanic’s lien.</p> <p>3. There must be a finding of fact- upon each and every material issue made by the pleadings, and the failure to so find upon each and every material issue is ground for reversal.</p> <p>4. Special findings of fact upon proper interrogatories may be found by a jury in an aetion to foreclose a mechanic’s lien. Such findings, however, are merely advisory to the court, and may be adopted, either in whole or in part, or rejected, and the court may make its own findings of faet and conclusions of law.</p> <p>5. When a jury is instructed by the court to return a general verdict of indebtedness only in an action to foreclose 'a mechanic’s lien, and there are no proper interrogatories submitted to the jury from which special findings of fact are found by the jury and adopted by the court, and where the court makes no findings of fact based upon the issues made by the pleadings, and there are no conclusions of law made by the court, the judgment is void as well as erroneous, and the failure of the court to make findings of fact and conclusions of law is reversible error.</p>

Hon. Edward A. Walters, Judge. Action to quiet title to mining property. Held: “Indeed, the general rule prevails that courses and distances give way to the actual monuments and markings on the ground.” Flynn Group Min. Go. v. Murphy, 18 Ida. 276, 138 Am. St. 201, 109 Pae. 851, relied upon by appellant, is not in point.

Hon. Robert N. Dunn, Judge. Action for damages. Judgment for plaintiff. Defendants appeal. If, as the plaintiff maintains, the contracts are void, then no recovery can be had by him in this action, for no rights can be founded upon a void contract, and such contract can give rise to no iegal rights.

<p>Complaint — Demurrer — Insolvent Corporation — Preferences — Legal and Illegal — Statutory Prohibition.</p> <p>1. Held, that the court did not err in sustaining the demurrer to the complaint and entering a judgment of dismissal.</p> <p>2. A depositor who actually knows that a bank is insolvent and does nothing but draw his cheek and present it for payment, and it is paid in the usual course of business, cannot be required to refund the amount so withdrawn.</p> <p>3. A corporation, although insolvent, holds its assets just as a natural person holds his property, with the same power to dispose of it to secure or pay its debts, and neither a private person nor a corporation can fraudulently dispose of his or its property to the injury or damage of his or its creditors.</p> <p>4. The property of a corporation, in one sense, is a trust fund for the payment of its debts, but this only means that such property cannot be distributed among its stockholders or applied to any purpose foreign to the legitimate business of the corporation until its debts are paid.</p> <p>5. An insolvent corporation is not prohibited by the statutes of this state from preferring certain creditors over others in the due eourse of business where such preference is not eollusively or fraudulently made.</p> <p>6. Merely alleging that an aet was collusive and fraudulent is not sufficient. The facts constituting the collusion or fraud must be alleged.</p> <p>7. Preferences that are made by a bank through conspiracy or fraud with the creditor may be set aside on proper application.</p>

<p>APPEAL from the District Court of the Eighth Judicial District for Bonner County. Hon. John M. Flynn, Judge.</p> <p>Action to recover damages for a railway right of way. Judgment for plaintiff.</p> <p>Where a railroad company has complied with the right of way act by filing with the Secretary of the Interior a copy of its articles of incorporation and proofs of its organization under the samé, and constructed a railroad over the land, it obtains a full and complete right of way under that act without the necessity of filing a profile or map as provided in sec. 4 of the act. (Jamestown <& Northern R. Go. v. Jones, 177 U. S. 125, 20 Sup. Ct. 568, 44 L. ed. 698; Dakota Central R. R. Go. v. Downey, 8 Land Dec. 115.)</p> <p>At the time the plaintiff filed upon the land the appellant with its employees was in full and complete possession of the right of way for 100 feet in width, and this actual possession was notice to all the world that the same was taken for railroad purposes and definitely fixed the line of the road over the land. (Lynch, v. Lower Yakima Irr. Go., 73 "Wash. 173, 131 Pac. 829.)</p> <p>Any person settling upon the land between the termini of the road took it subject to any right of way which the company might thereafter construct the road upon, notwithstanding the fact that no definite'line or map was filed showing the right of way. (St. Joseph & D. G. B. B. Go. v. Baldwin, 103 U. S. 426, 26 L. ed. 578; Stuart v. Union Pac. B. Co., 227 U. S. 342, 33 Sup. Ct. 338, 57 L. ed. 535.)</p> <p>There are just two methods by which a railway company may acquire its right of way across the public domain: one by filing the map provided for in section 4; the other by actual construction of the road. (Dakota Gent. B. B. Go. v. Downey, 8 Land Dee. 115; Jamestown etc. B. Co. v. Jones, 177 U. S. 125, 20 Sup. Ct. 568, 44 L. ed. 698.)</p> <p>Until the line of road is definitely fixed, either by the filing of the map or the actual construction of the road, it may be changed at the will of the railroad company. (Van Wyck v. Knevdls, 106 U. S. 360, 1 Sup. Ct. 336, 27 L. ed. 201.)</p> <p>In this case it is held that “the route must be considered as definitely fixed when it has ceased to be the subject of change at the volition of the company.”</p> <p>It is held in Sioux City etc. Land Go. v. Griffey, 143 U. S. 32, 12 Sup. Ct. 362, 36 L. ed. 64, that the surveying and staking of the line does not definitely fix its location.</p> <p>Under the act it requires either actual construction or the filing of the map provided for in sec. 4 of the act to vest the company with title to the right of way. (Denver etc. B. Co. v. Uanoum, 19 Colo. 162, 34 Pae. 838.)</p> <p>A road is complete or constructed when that is done which is necessary to make it a railroad; that is to say, when it is made ready and put in proper condition for the placing and running of regular trains upon it, for its “operation” as it is usually termed. {Be Graff v. St. Paul etc. B. Co., 23 Minn. 144.)</p>

Hon. Wm. W. Woods, Judge. Action to recover on an accident policy. Judgment for the plaintiff. The requirement in policies, such as the one in this ease, that notice and proof of loss must be given within a fixed time, is a condition precedent to the right of the insured to recover, and must be strictly complied with to enable the insured to recover. (Biddlesbarger v. Hartford Ins. Co., 7 Wall.

Hon. John M. Flynn, Judge. Conviction of the crime of assault with intent to commit murder. Sentence of not less than three years and not more than fourteen years in the state penitentiary at hard labor imposed.

<p>Original application for a peremptory writ of mandate.</p> <p>■Sec. 1953, Bev. Codes, makes it a duty of the district court to try anew an appeal from a board of county commissioners, and as the defendant, district judge, refused to proceed to a trial of'said cause, he may be compelled to do so by mandamus, and an application to this court for such a writ is plaintiffs’ only remedy under the laws of this state. (State v. Third Judicial Dist. Court, 36 Utah, 223, 102 Pac. 868; Moore v. Superior Court, 20 Cal. App. 299, 128 Pac. 946; State v. Second Dist. Court, 36 Utah, 396, 104 Pac. 282; Fenton v. Board of Commrs., 20 Ida. 392, 119 Pac. 41; State v. McMillan, Judge, 21 Okl. 384, 96 Pac. 618; People v. Jefferson Dist. Court, 46 Colo. 386, 133 Am. St. 84, 104 Pac. 484, 24 L. B. A., N. S., 886; Fox v. Workman, 6 Cal. App. 633, 92 Pac. 742; Eberle v. King, Judge, 20 Okl. 49, 93 Pac. 748; Connolly v. Woods, Judge, 13 Ida. 591, 92 Pac. 573; Hill v. Morgan, 9 Ida. 718, 76 Pae. 323; Hoffman v. Lewis, Judge, 31 Utah, 179, 87 Pac. 167; Widrin v. Superior Court, 17 Cal. App. 93, 118 Pac. 550.)</p> <p>See. 1953, Bev. Codes, provides that matters appealed from the board of county commissioners to the district court must be tried anew. The word “anew” is defined by Webster as meaning “over again, another time.” “De novo” is defined by Black’s dictionary as “anew, afresh, a second time.” A question cannot be heard anew until it has been once heard. The merits of this case have never been heard or passed upon by the board, and there can be no appeal on qnestions of fact or any hearing “anew” until the board has exercised the discretion specially enjoined on it by see. 141, chapter 159, Sess. Laws of 1913.</p> <p>“Only such questions as have been put in issue before the county board can be tried on appeal.” (Irwin v. Lowe, 89 Ind. 540.)</p>

<p>Corporation — Superintendent—Compensation—Evidence—Verdict of Jury — Sufficiency of Evidence.</p> <p>1. Where the by-laws of a corporation provide that the compensation of the officers of a corporation, including its superintendent, shall 'be fixed by the trustees or board of directors, and the trustees or board of directors fail to fix such salary, and the superintendent is an officer of the corporation and a member of the board of directors, and he fails or neglects to have the board fix his compensation as superintendent, and presents no claim therefor for eight years, and where he is paid at the rate of four dollars per day for all work that he does for the corporation, held that he is not entitled under the evidence in this case to any further compensation.</p> <p>2. Held, that the evidence is not sufficient to support the verdict.</p>

Hon. John M. Flynn, Judge. Action to establish certain liens against railroad ties and to assess the amount of damages sustained by the plaintiff by reason of the eloignment of the ties by the defendant and to have the amount of damages trebled. Judgment for the defendant. Plaintiff appealed. The lien in favor of these six men was created and came into existence when the work was done.

Original application for writ of review. Writ granted and the action of the board of appraisers appointed to adjust the claims and demands between Power and Oneida counties under the provisions of chap. 6 of the 1913 Session Laws reviewed.

<p>Constitutionality of Lien Law.</p> <p>1. Chapter 226 of the 1911 Session Laws held invalid and void as not affording property owners due process of law or the equal protection of the law.</p> <p>2. Anderson v. Great Northern By. Go., ante, p. 433, 138 Pae. 127, approved and followed.</p>

Original application to this court for a writ of habeas corpus. Writ granted and the prisoner remanded to the district court for further proceedings in the matter of admitting him to bail. The conditions of subd. 1, sec. 8105, Rev. Codes, apply only to a case where the judgment is one of fine only. It seems to be the view of the trial court, where a judgment of imprisonment and fine is given, that the bail bond must contain the conditions of both subdivisions 1 and 2.

Hon. Chas. P. McCarthy, Judge. Action for debt. Judgment for defendants.

Hon. Ed. L. Bryan, Judge. Action against a warehouse corporation to recover damages for nondelivery of property on presentation of warehouse receipts. Judgment for defendants. Statutes will be construed within the view of ascertaining the intent of the law-making power and to give force and meaning to the language used. (Idaho Mut. Co-operative Ins.

Hon. James G. Gwinn, Judge. An action of claim and delivery and for wrongful detention, and in a second cause of action praying that the second note be declared void and. that any lien or claim thereunder be annulled and that respondent produce the note and deliver it up to be canceled.

Original proceeding in tbis court for a writ of probibition prohibiting tbe board of county commissioners of Gooding county from proceeding to sell road bonds and to distribute tbe proceeds thereof proportionately among tbe several highway districts of said county. Tbe county cannot dispose of its funds except in certain authorized ways.

<p>Partnership — Partnership Agreement — Services op Partner — Pleading.</p> <p>1. In the absence of a contrary contract, or understanding, eaeh party to a partnership agreement is expected to devote his time and ability to the business of the partnership, and neither one can recover from the other, or the partnership, for services thus performed, unless there be a special contract to that effect.</p> <p>2. Where one partner applies for the appointment of a receiver, on accounting and dissolution of partnership, and alleges that it was the partnership agreement that eaeh party should put in his entire time and energy in running and handling the business, and the defendant fails to appear and demur or answer, held, that such allegation is sufficient to authorize the introduction of evidence to show such an agreement and to charge the defendant with the services of the plaintiff or with the amount expended in employing a servant to do the labor which the defendant should have done.</p> <p>3. Complaint examined and held, that the allegations are sufficient to authorize the one partner to eharge the other with the value of his services for the time he failed to comply with his contract and give his services and time to the interests of the partnership.</p>

<p>Eminent Domain — Municipality—Power in Proceedings to Condemn Real Property op a Person or Any Corporation or Any Title to Real Property — Due Process op Law — Constitutionality op Statutes and Municipal Ordinances Enacted by the City— Power op Mayor to Administer Oaths to Oppicers or Appraisers or Commissioners Appointed by the Mayor or the City Council.</p> <p>1. Sec. 14, art. 1 of the constitution of Idaho provides: “Private property may be taken for public use, but not until a just compensation, to be ascertained in a manner prescribed by law, shall be paid therefor.”</p> <p>2. Sec. 14, art. 1, above, applies to the ease that is decided in this opinion, and there can be no question of its application.</p> <p>3. It is contended in this case that the only oath administered to the appraisers was by the mayor, and that he had no authority to administer oaths in sueh eases. The appellant was unable to find any provisions in the constitution or the statute which show that the mayor has power or authority to administer oath3 sueh as was done in this case. We hold, therefore, that the mayor of Boise City was not authorized to qualify the appraisers elected by the mayor and council by administering an oath or affirmation to them, as he did in this case, and that he has authority to administer oaths and affirmations only when authorized by the constitution or by statute;</p> <p>4. In a case relating to eminent domain proceedings a right of appeal may be taken, while in the case at bar it is confessed by the appellant there is no right of appeal; hence there is a distinction between the two eases, in that the proceedings in the former ease are voidable by an appeal, in this case void, there being no appeal.</p> <p>5. Ordinance No. 1076 fixes the qualification of appraisers as “freeholders,” while in subd. 27, sec. 2238, Rev. Codes, “holder” was provided as a qualification; hence the proceedings of the city were ineffectual to appropriate the real 'estate in controversy in this case; therefore the city in its ordinance did not comply with the statute, even if it was unconstitutional,- and the city has not shown in this case either legal or equitable right to have the judgment reversed, or that it should have been entered in favor of the appellant.</p> <p>6. In this ease the record shows clearly that no notice was issued by the appraisers, the mayor or the council to the respondent, that the city would proceed to secure respondent’s real estate for the use of the public, and that the swearing of the appraisers by the mayor when he had no authority and the passage of Ordinance No. 1076 were not due process of law, and that the respondent was denied due process of law where a city is proceeding to acquire private rights for public use, and that such proceedings cannot be approved under the constitution and statutes of this state.</p> <p>7. See. 2238, Rev. Codes, subds. 26 and 27, provides no method for condemning real property to public use under art. 1, see. 14 of the constitution of this state, and therefore has no force in the proceedings in this case, because there is no provision in either subdivision of the section, or any other provision, that provides for the condemnation proceedings attempted to be enforced as shown by the record in this ease.</p>

Hon. Edw. Walters, Judge. Prosecution for manslaughter. Judgment of conviction. Defendant appeals.

<p>Personal Property — Husband and Wipe — Wife’s Separate Property —Insufficiency of Evidence.</p> <p>1. Under tbe faets of tbis ease, held, that tbe evidence is not sufficient to sustain tbe judgment.</p>

<p>Reorganization of School Districts Disorganized by County Division — Powers of County Commissioners Under County Division Acts — Contiguous Territory — Apportionment of Bonded Indebtedness.</p> <p>1. Seo. 16 of chap. 3 and sec. 16 of chap. 4 of the 1913 Sess. Laws, being the acts creating the counties of Minidoka and Gooding from territory formerly comprising the eounty of Lincoln, authorized county commissioners of the eounty of Lincoln to attach those ■portions of sehool district territory disorganized by the new eounty lines, but remaining in their eounty, to “such adjoining school distriets .... in their county as they might determine best,” and gave them discretion in the adjustment of such matters.</p> <p>2. The fact that there is an area of unsurveyed, unoccupied and unorganized territory lying between an existing district and the particular unorganized sehool territory which the county commissioners desire to attach to the old district does not deprive the commissioners of the power to attach all of such territory to the old district under the provisions of said acts.</p> <p>3. The power vested in the county commissioners by the county division acts creating Gooding and Minidoka counties, with reference to attaching unorganized territory to organized sehool districts, is accumulative and not exclusive, and does not divest them of the power theretofore possessed by them under the general sehool law to create and organize school districts.</p> <p>4. Held, that no abuse of discretion is shown on the part of the county commissioners of Lincoln county in the adjustment of the bonded indebtedness among the respective sehool districts involved in this controversy.</p>

<p>Application in this court for a writ of prohibition restraining and prohibiting Hon. Charles P. McCarthy, one of the judges of the District Court of the Third Judicial District, from exercising jurisdiction in an action brought in said court by John Tucker to remove Arthur Hodges as mayor of Boise City.</p> <p>See. 7459 was a territorial statute at the time the organic act of the territory was adopted; in said act no reference was made to the officers of municipalities. (Rankin v. Jauman, 4 Ida. 53, 36 Pac. 502; Gonwell v. Village of Guldesac, 13 Ida. 575, 92 Pac. 535.)</p> <p>Secs. 34, 35 and 36 of the Black law provide for the removal of elective officers by the recall. Sec. 47 prescribed a penalty in addition to ouster, to the effect that any officer removed by recall shall not be appointed to any city office or employment within two years after his removal. This constitutes a penalty. Sec. 7459 is inconsistent with the provision for the recall provided in the Black law, in that it provides a different punishment, sec. 7459 providing for the assessment of a fine of $500 in favor of the informant against the ousted officer; the recall provision providing for ouster by recall and disbarment to hold office for two years. (Binan v. Superior Court, 6 Cal. App. 217, 91 Pac. 806.)</p> <p>There is a vast difference between the functions of an exception and that of a proviso. An exception excepts out absolutely; a proviso defeats conditionally. (Acker v. Richards, 63 App. Div. 305, 71 N. Y. Supp. 929; Waffle v. Goble, 53 Barb. (N. Y.) 517; Rowell v. Janvrin, 151 N. Y. 60, 45 N. E. 398; Western Assur. Go. v. Mohlman, 83 Fed. 811, 28 C. C. A. 157, 40 L. R. A. 561; Black, Inter, of Laws, 2d ed., p. 428; 2 Sutherland, Stat. Const., sees. 345, 351, 352.)</p> <p>The various states which have passed acts similar to the Black law, with the provision for the removal of officers by the recall, have declared or omitted to so declare as to whether or not the remedy is cumulative. Had the legislature intended that the provisions of the Blaók law, should not be the exclusive remedy for the removal of the mayor, it would not have put in the specific exception provided in sec. 2, and it would have declared the remedy to be cumulative. (Gillesby v. Board of Commrs., 17 Ida. 586, 107 Pac. 71.)</p> <p>There is a growing tendency to permit cities and towns to regulate their local affairs. Why should we invoke one of the strong arms of the law of the state for the purpose of interfering in a purely local matter which concerns Boise City only and which in no wise relates to the enforcement of a state law? (Conn v. City Council, 17 Cal. App. 705, 121 Pac. 714, 719; Good v. Common Council, 5 Cal. App. 265, 90 Pae. 44; Hilzinger v. Gillman, 56 Wash. 228, 21 Ann. Cas. 305, 105 Pac. 471; State v. Houston (Neb.), 143 N. W. 796; Barnes v. Mayor of Chicopee, 213 Mass. 1, 99 N. E. 464; Boone v. State, 170 Ala. 57, Ann. Cas. 1912C, 1065, 54 So. 109; Mayor etc. v. State (Miss.), 59 So. 873; Salter v. Burk, 83 N. J. L. 152, 83 Atl. 973; Bonner v. Belsterling (Tex. Civ. App.), 137 S. W. 1154; Graham v. Roberts, 200 Mass. 152, 85 N. E. 1009; Cole v. Tucker, 164 Mass. 486, 41 N. E. 681, 29 L. R; A. 668.)</p> <p>From the foregoing authorities it appears that even in the face of the general declaration in the various commission form government acts that the remedy shall be cumulative, the courts lean strongly toward the doctrine of permitting municipalities to control their own local affairs, and that the remedy of ouster by summary proceedings relates only to state and constitutional officers, or at least to officials violating some duty imposed upon them by a state law instead of a city ordinance. (Kessler v. Fritchman, 21 Ida. 30, 119 Pac. 692.)</p> <p>There is no provision in the Black law or under the general law governing cities and villages imposing any duty whatever upon the mayor or city council to enforce the provisions of any state law relative to bawdy-houses or the sale of intoxicating liquors. The court must not only have jurisdiction of the person, but of the subject matter. (Wayne v. Alspach, 20 Ida. 144, 116 Pac. 1033.)</p> <p>The Black law or some other statutory provision must prohibit within its own terms the existence of bawdy-houses and the illegal sale of liquor in Boise City, and then impose upon the mayor and the city council the duty to enforce the state enactment before the mayor could be chargeable with neglect of duty arising under a state law. (Corker v. Pence, 12 Ida. 152, 85 Pac. 388.)</p> <p>Courts will never construe a statute beyond its plain terms so as to bring one within the statute and subject him to a penalty if the law is not such that he is clearly brought within the letter as well as the spirit of the law. (Sutherland, Stat. Const., sec. 356; Independent School Dist. v. Collins, 15 Ida. 535, 128 Am. St. 76, 98 Pac. 857.)</p> <p>The subject of removal of all officers is within legislative control, and where that body prescribes a manner and method of removal, it is exclusive. (State ex rel. Brandt, Mayor, v. Thompson, 91 Minn. 279, 97 N. W. 887.)</p> <p>The recall under the Black law and the removal of an officer under sec. 7459 are cumulative remedies. (Chicago, N. W. By. Co. v. City of Chicago, 148 111. 141, 35 N. E. 881; Con-well v. Village of Culdesac, 13 Ida. 575, 92 Pac. 535; Dawson v. Superior Court, 158 Cal. 73, 110 Pac. 479; State ex rel. Young v. Bohinson, 101 Minn. 277, 112- N. W. 269, 20 L. R. A., N. S., 1127.)</p> <p>The state law applies to all cities as well as cities operating under special charters. (In re Bidenbcmgh, 5 Ida. 371, 49 Pac. 12; Coffey v. Superior Court, 147 Cal. 525, 82 Pac. 75; State v. City of Noblesville, 157 Ind. 31, 60 N. E. 704; Dawson v. Superior Court, supra; State v. District Court, 44 Mont. 318, Ann. Cas. 1913B, 396, 119 Pac. 1103; Hilzinger v. Gillman, 56 Wash. 228,105 Pae¡ 471, 21 Ann. Cas. 305.)</p> <p>“Where a new act is couched in general affirmative language and the previous law can well stand without it, and if the language used in the latter act is all in the affirmative language, there is nothing to say that the previous law shall be repealed, and therefore the old and the new law shall stand together.” (Black, Interpretation of Laws,-2d ed., 352.)</p> <p>“Where the design is to give additional protection to a subsisting right and a remedy is provided for its invasion which is not necessarily exclusive of all others, it is considered merely cumulative and the party injured may resort to it or to the means previously allowed for redress.” (Black, Interpretation of Laws, p. 86; Darrow v. People, 8 Colo. 417, 8 Pac. 661.)</p> <p>Nowhere in the Black law is it prescribed that the method of recalling officers shall be the sole, exclusive or final method of removal.</p> <p>The legislature could not make the recall the exclusive remedy if it had expressly stated the same in the act. To do so would violate sees. 13 and 20, art. 5, of the constitution.</p> <p>The removal of an officer for cause is a judicial power. (Haggerty v. Shedd, 75 N. H. 393, 139 Am. St. 725, 74 Atl. 1055; Dullam v. Willson, 53 Mich. 392, 51 Am. Rep. 143, 19 N. W. 112; Coffey v. Superior Court, supra; State v. Chaney, 23 Okl. 788, 102 Pac. 133; State v. Harrison, 113 Ind. 434, 3 Am. St. 663, 16 N. E. 384.)</p> <p>There is no repugnance between the remedy by recall and sec. 7459, as they are entirely different in their character, the one being exclusively a political remedy and the other a judicial remedy, and neither can interfere with the other in their operations. (State v. Wells, 210 Mo. 601, 109 S. W. 758, 763.)</p> <p>Sec. 7459 is a law in the nature of a police regulation. Its enactment was an exercise of the police power of tbe state, and to hold -that it is repealed, suspended or surrendered to cities operating under the Black law would be surrendering the police power of the state to the cities, which cannot be done. (Cooley, Const. Lim., 6th ed., p. 706.)</p> <p>There is a presumption against ousting courts of their jurisdiction. (Endlich, Interpretation of Statutes, sec. 151.)</p> <p>A municipal corporation can exercise no powers but those expressly granted, and Boise City, under the recall provision of the Black law, is assuming by exclusion all the police powers of the state over the municipality with regard to the removal of officer^. (Mantel v. State, 55 Tex. Cr. 456, 131 Am. St. 818, 117 S'. W. 855; In re Unger, 22 Okl. 755, 132 Am. St. 670, 98 Pae. 999; St. Lends v. King, 226 Mo. 334, 136 Am. St. 643, 126 S. W. 495, 27 L. R. A-., N. S., 608.)</p> <p>The action for the removal of an officer under sec. 7459 is not a penal action.- (Rankin v. Jcmnan, 4 Ida. 53, 36 Pac. 502.)</p> <p>The object is not to punish the officer but to improve the public service. (Rankin v. Jauman, supra; Territory v. Sanches, 14 N. M. 493, 94 Pae. 954, 20 Ann. Cas. 109.)</p> <p>The court has jurisdiction of the person and the subject matter of the action, (Smith v. Ellis, 7 Ida. 196, 61 Pae. 695; Craig v. Superior Court, 157 Cal. 481, 108 Pac. 310; In re Shepard, 161 Cal. 171, 118 Pac. 513.)</p> <p>The phrase “except as hereinafter provided” is not an exception and has none of the elements of an exception. (Arnold v. United States, 147 U. S. 494, 13 Sup. Ct. 406, 37 L. ed. 253; Sutherland, Stat. Con., sec. 351.)</p>

Hon. Chas. O. Stoekslager, Judge. Action for the recovery of payments made on the purchase price of land and taxes' paid, on contract for sale. Judgment for plaintiff and defendant appeals. The contract between Boyd and Boley was in writing; no fraud or mistake in the transaction, so that this contract and it alone should have guided the lower court. (Jacobs v. Shewn, 3 Ida. 274, 29 Pac. 44; 21 Am. & Eng.

J. M. Stevens, Judge. The appellant was prosecuted on a charge of embezzlement and convicted and sentenced for a term of from one to fourteen years in the penitentiary. “Unless the owner is deprived of the thing (the money or property) involved in the transaction, there can, of course, be no embezzlement.

Hon. Edward A. Walters of the Fourth Judicial District, presiding. Prosecution for the crime of forgery. Demurrer to the information sustained by the trial court and the state appeals. Forgery can be committed with respect to any instrument, which, if genuine, might operate to prejudice or injure another. (Sec. 7028, Rev. Codes; see. 470, Penal Code of California; People v. Bendit, 111 Cal. 274, 280, 52 Am.

<p>APPEAL from the District Court of tbe Sixth Judicial District for Lembi County. Hon. J. M. Stevens, Judge.</p> <p>Action to recover a part of the purchase price for certain real property purchased under an oral contract.</p> <p>It may be admitted that, since the case is within the statute of frauds, neither party could enforce the contract, because the written and signed memorandum does not sufficiently identify the property. But it does not follow that the plaintiff, repudiating the contract, can recover back the money paid. The contract, though not enforceable, is yet not unlawful. The rule is well settled: The purchaser can thus recover only upon tender of performance; if he repudiates, he cannot recover; a fortiori, when the vendor tenders performance, the purchaser cannot recover, but his loss is the price of his repudiation. (Collier v. Coates, 17 Barb. (N. Y.) 471; Shaw v. Sham, 6 Yt. 69; Hawley v. Moody, 24 Yt. 603; Laffey v. Kaufman, 134 Cal. 391, 86 Am. St. 283, 66 Pac. 471; Ketchum v. Everston, 13 Johns. (N. Y.) 359, 7 Am. Dec. 384; Coughlin v. Knowles, 7 Met. (Mass.) 57, 39 Am. Dec. 759; Lame v. Shackford, 5 N. H. 130; Dudley v. Hayward, 11 Fed. 543; Crabtree v. Welles, 19 111. 55; Sims v. Hutchins, 8 Smedes & M. (Miss.) 328, 47 Am. Dec. 90; Plummer v. Bucknam, 55 Me. 105; Durham Consolidated Land etc. Co. v. Guthrie, 116 N. C. 381, 21 S. E. 952; Rhodes’ Admrs. v. Storr, 7 Ala. 346; Gammon v. Butler, 48 Me. 344; McDonald v. Lynch, 59 Mo. 350; Hilton v. Duncan, 41 Tenn. 314; De Montague v. Bacharach, 181 Mass. 256,'63 N. E. 435; Kneeland v. Fuller, 51 Me. 518; Johnson v. Puget Mill Co., 28 Wash. 515, 68 Pae. 867; Day v. Wilson, 83 Ind. 463, 43 Am. Rep. 76; Morris v. Gooch win, 1 Ind. App. 481, 27 N. E. 985; McKinney v. Harvie, 38 Minn. 18, 8 Am. St. 640, 35 N. W. 668.)</p> <p>Appellant, in all ways and at all times, by positive and affirmative acts, refused to comply with the terms of the oral contract, and under such conditions respondent was not required to tender performance.</p> <p>This is a case where appellant has repudiated the original contract and forced the respondent to bring action to recover his original payment. (Durham v. Wick, 210 Pa. 128, 105 Am. St. 789, and note, 59 Atl. 824, 2 Ann. Cas. 929; Welch v. Darling, 59 Yt. 136, 7 Atl. 547; 29 Am. & Eng. Ency. of Law, 2d ed., 838, note 1; Cabrera v. Payne, 10 Cal. App. 675, 103 Pac. 176; Wood v. McDonald, 66 Cal. 546, 6 Pac. 452; Monger v. Effland, 87 Kan. 710, 125 Pac. 46; Dudley v. Haywood, 11 Fed. 543.)</p> <p>There are many cases which enunciate a rule far more favorable to the respondent than the cases above cited. (Scott v. Bush, 26 Mich. 418, 12 Am. Rep. 311; Flinn v. Barber, 64 Ala. 193; Nelson v. Shelby Mfg. etc. Go., 96 Ala. 515, 38 Am. St. 116, note, 11 So. 695; Reynolds v. Harris, 9 Cal. 338; Thomas v. Sowards, 25 Wis. 631; Tucker v. Grover, 60 Wis. 233, 19 N. W. 92; Collins v. Thayer, 74 111. 138; Allen v. Booker, 2 Stew. (Ala.) 21, 19 Am. Dec. 33; Johnson v. Hanson, 6 Ala. 351, 41 Am. Dee. 54.)</p> <p>Clark, as appellant’s agent, offered a sale of the lots without any conditions, restrictions or limitations in the title, while the appellant offered a conditional title. These circumstances alone would entitle respondent to recover the part of the purchase price paid by him. (Pipkin v. James, 1 Humph. (Tenn.) 325, 34 Am. Dec. 652.)</p> <p>When there exists any testimony on which to base a finding of the court below, it will generally not be disturbed on appeal. (Brown v. Grubb, 23 Ida. 537-539, 130 Pae. 1073; Wheeler v. Gilmore etc. Ry. Go., 23 Ida. 479,130 Pac. 801.)</p>

<p>Bape — Uncorroborated Testimony op Prosecutrix — Evidence—Sufficiency op — Bejection op — Admission op — Instructions.</p> <p>1. Held, that the evidence is not sufficient to support the verdict.</p> <p>2. Under the laws of this state, conviction for rape may be had upon the uncorroborated evidence of the proseeutrix; but when the evidence of such prosecutrix is of a contradictory nature or her reputation for truthfulness and veraeity is impeached, her testimony ■must be corroborated or the judgment will be set aside.</p> <p>3. Where the testimony of a prosecutrix is contradictory or her reputation for truthfulness and veracity is impeached, and the defendant testifies and denies specifically the testimony of the prosecutrix, and his testimony is corroborated, the testimony of the prosecutrix, standing alone, is not sufficient to warrant a conviction.</p> <p>4. Under the provisions of sec. 6082, Bev. Codes, a witness may be impeached by a party against whom he is ealled by contradictory evidence or by evidence that his general reputation for truthfulness, honesty and integrity is bad.</p> <p>5. Held, that the court erred in the rejection of certain evidence.</p> <p>6. Held, that the court erred in the admission of certain evidence.</p> <p>7. Held, that it is not error for the court to refuse to give an instruction requested by the defendant where the principles of law therein laid down are substantially covered by other instructions given.</p>

<p>APPEAL from the District Court of the Seventh Judicial District for the County of Canyon. Hon. Ed. L. Bryan, Judge.</p> <p>Action to recover money claimed to be due as balance of a bank deposit. Judgment for plaintiff and defendant appealed.</p> <p>The defendant bank, under the law, was obliged to accept and act upon the oral orders of Van R. Squire, in the handling of the Squire & Baker account. (Hamm v. Smford (Or.), 137 Pac. 772.)</p> <p>The bank had a lien on all the funds in the Squire & Baker account up to March 17, 1909, when the indebtedness of that account was finally paid. And- after that time the bank had a lien on the portion of the proceeds belonging to each of the individuals owning that account to the extent of their indebtedness to the bank. (Willey v. Crocker-Woolworth Nat. Bank, 141 Cal. 508, 75 Pac. 106; Beynes v. Dumont, 130 U. S. 354, 9 Sup. Ct. 486, 32 L. ed. 934; Clark v. Northampton Nat. Bank, 160 Mass. 26, 35 N. E. 108; Buffalo Co. Nat. Bank v. Hanson, 34 Neb. 455, 51 N. W. 1035; Straus v. Tradesmen’s Nat. Bank, 122 N. Y. 379, 25 N. E. 372; Backhouse v. Charlton, L. R. 8 Ch. Div. 444.)</p>

<p>Original application in this court for a peremptory writ of mandate to the Secretary of State to compel Mm to countersign and affix the great seal of the state to a certain deed or contract for sale of certain timber standing on land owned by the state.</p> <p>A tender by Mr. Snow in payment of his bid was not a sufficient or legal tender. (Breed v. Hurd, 6 Pick. (Mass.) 356; Blair v. Hamilton, 48 Ind. 32; Stakke v. Chapman, 13 S. D. 269, 83 N. W. 261; Dungan v. Mutual Ben. L. Ins. Co., 46 Md. 469; Eddy v. Bams, 40 Hun (N. Y.), 637; affirmed in 116 N. Y. 247, 22 N. E. 362; Mills v. Huggins, 14 N. C. 58.)</p> <p>The highest bidder at public sales where the purchaser is required to enter into a contract for the performance of subsequent acts is not necessarily the party who bids the most in dollars and cents; the board making the sale have the right to • take into consideration the honesty, integrity, financial standing and ability of the different bidders. (Times Pub. Co. v. City of Everett, 9 Wash. 518, 43 Am. S't. 865, 37 Pac. 695; Irving Savings Institute v. Robinson, 35 Misc. 449, 71 N. Y. Supp. 193; Gray v. Veirs, 33 Md. 18, 22.)</p> <p>The great weight of authority is to the effect that the highest bidder at either a judicial or public sale is not, as a matter of law, entitled to the property. (Knox v. Spratt, 19 Fla. 817; Rogers etc. Hardware Co. v. Cleveland Bldg. Co., 132 Mo. 442, 53 Am. St. 494, 34 S. W. 57, 31 L. R. A. 335; Davis v. McCann, 143 Mo. 172, 44 S. W. 795; Blossom v. Milwaukee etc. Ry. Co., 3 Wall. (U. S.) 196, 18 L. ed. 43; Anderson v. Wisconsin Cent. Ry. Co., 107 Minn. 296, 131 Am. St. 462, 120 N. W. 39, 16 Ann. Cas. 379, 20 L. R. A., N. S., 1133.)</p> <p>Under the constitution and statutes, the state board of land commissioners constitutes the business agent of the state in disposing of the state lands and timber, and their judgment and discretion will not be interfered with in the absence of fraud. (Pike v. State Board of Land Commrs., 19 Ida. 268, Ann. Cas. 1912B, 1344, 113 Pac. 447; Douglass v. Commonwealth, 108 Pa. 559; Kelly v. Chicago, 62 111. 279; Hoole v. Kinkead, 16 Nev. 217; Interstate Vitrified Brick & Paving Co. v. Philadelphia, 164 Pa. 477, 3 Atl. 383; Commonwealth v. Mitchell, 82 Pa. 343; State v. McGrath, 91 Mo. 386, 3 S'. W. 846; People v. Dorsheimer, 55 How. Pr. (N. Y.) 118; Clapton v. Taylor, 49 Mo. App. 117.)</p> <p>The state board of land commissioners had no authority to dispose of the timber growing on the lands of the state of Idaho, for the reason that sec. 1594, Bev. Codes, under which it is assumed to sell the timber, is unconstitutional. Under this section timber growing upon the lands of Idaho may be sold at public sale to the highest bidder upon bids submitted in writing and by this means deprive the state of that competition which a public auction would secure.</p> <p>“An auction is a sale of consecutive bidding instituted to reach the highest price of the article by inciting competition for it.” (Hibler v. Hoag, 1 Watts & S. (Pa.) 552; Kine v. Turner, 27 Or. 356, 41 Pac. 664.)</p> <p>The board has no discretion in rejecting the highest bidder, as under see. 1594 “the timber is to be sold to the highest bidder.” (Gray v. Veirs, 33 Md. 18.)</p> <p>The word “highest” is used in order that there should be no sale unless there should he a real competitor. (Fairfax v. HopUns, 2 Cranch C. C. 134, 8 Fed. Cas. No. 4614, p. 955; Irving Savings Inst. v. Robinson, 35 Misc. 449, 71 N. Y. Supp. 193.)</p>

Hon. Charles P. McCarthy, Judge. An action to recover damages for default of written contract. When, after an enumeration of particulars, there is a sweeping clause, comprising all other things under a general description, the scope of such clause is restricted in such things within the description of the same kind with the particulars enumerated. (Booke v. Lord Kensington, 14 Eng. Rui. Gas. 717, 2 K. & J. 753, 25 L. J. Ch. 795, 2 Jur., N. S., 755, 69 Eng.

<p>■Commercial Agency Reports — Publication of Libelous Matter— Sufficiency of Complaint — Mercantile Agency Reports not Privileged.</p> <p>1. Language in the report of a -mercantile agency as follows, “The Pacific Packing Company has been sued in the superior court o-f Los Angeles county, California, by the Pacific Fruit Auction Company for the sum of $230,000.00 for money advanced,” if false and maliciously made, is libelous and therefore actionable, without alleging in the complaint any other than general damages.</p> <p>2. The publication of a false report by a mercantile agency to its patrons, to the effect that a company with but $50,000 capital had been sued for $230,000 on account of “money advanced,” can have no other result than that o-f easting doubt and suspicion on the financial standing of such company -and consequently injuring its business.</p> <p>3. The report of a mercantile agency to its patrons on the-credit and financial standing of a business concern is not a privileged enTn.-mnn.ica.tinn. One who conducts the business of selling information -concerning the affairs of others is responsible for the consequences of his -acts, and liable in damages for the publication of libelous matter.</p> <p>4. Held, that under the liberal rule of pleading adopted in this state, the demurrer to the complaint in this case should have been overruled, as the allegations of the complaint are sufficient to put the defendant corporation on its defense.</p>

<p>Injunction — Quashing Writ — Damages.</p> <p>1. One who is restrained by writ of injunction from doing something he had no legal right to do cannot recover damages though the injunction has been wrongfully issued.</p>

<p>APPEAL from the District Court of the Fourth Judicial District in and for Lincoln County. Hon. Carl A. Davis, Judge.</p> <p>Action to foreclose a Carey act lien. Demurrer to complaint sustained on the ground that the United States was a necessary party to said action. Judgment of dismissal entered.</p> <p>The United States is not a necessary party defendant to this action. “The term ‘parties to an action’ is used to designate the person or persons seeking to establish a right and the person or persons upon whom it is sought to impose a corresponding duty or liability.” (15 Ency. PL & Pr. 463, 584, 606; Story’s Equity Pleading, sec. 72; Calvert on Parties to Suits in Equity, 10.)</p> <p>“The propriety of a person being made a party depends upon his interest, not in the subject matter, but in the object of the suit.” (Van Keuren v. McLaughlin, 21 N. J. Eq. 163; Wilson v. Castro, 31 Cal. 420, 427.)</p> <p>‘ ‘ The prayer for improper relief will not vitiate a pleading otherwise sufficient.” (Mark v. Murphy, 76 Ind. 534.)</p> <p>“Prayer for relief does not constitute any part of the statement of the cause of action.” (Bancroft v. Atyeo, 22 Kan. 32.)</p> <p>“Prayer of a complaint cannot enlarge its allegations.” (Board of Commrs. v. Cutler, 7 Ind. 6; Smith v. Smith, 67 Kan. 841, 73 Pac. 56; Harvey v. Hand, 48 Ind. App. 392, 95 N. E. 1020; Wilks v. Kreis (Tex. Civ. App.), 134 S. W. 838; Erie City Iron Works v. Thomas, 139 Fed. 995; Rollins v. Forbes, 10 Cal. 299; Mora v. Le Roy, 58 Cal. 8.)</p> <p>“Where the complaint shows the plaintiff to be entitled to some relief, the fact that he claims more relief than he shows himself entitled to will not render the complaint demurrable.” (Sunnyside Land, & Improvement Co. v. Willamette Bridge Ry. Co., 20 Or. 544, 26 Pac. 835; 6 Ency. Pl. & Pr. 350; Acker v. McCullough, 50 Ind. 447; Colson v. Smith, 9 Ind. 8; New-comb v. Imperial Life Ins. Co., 51 Fed. 725.)</p> <p>The complaint shows upon its face that the United States owns and- maintains the legal title to this land. The statutes of Idaho relative to the joinder of parties defendant are identical with those of California. “ ‘May join’ as plaintiff will be construed ‘must join.’ ” (Whitney v. Stark, 8 Cal. 514, 515, 68 Am. Dec. 360, and eases cited.)</p> <p>“All parties in interest to real estate are proper parties defendant in foreclosure proceedings.” (Trimble v. Boothby, 14 Ohio, 109, 45' Am. Dec. 526; People’s Ditch Co. v. ’76 Land & Water Co., 5 Cal. Unrep. 292, 44 Pac. 176; 27 Cyc. 1669; Moulton v. Cornish, 138 N. T. 133, 33 N. E. 842, 20 L. R. A. 370.)</p> <p>“The owner of property mortgaged at the time suit is brought for foreclosure of the mortgage or the sale of the mortgaged premises, whether he be the original mortgagor or his successor in interest, is an indispensable party to the suit. A decree without his being made a party will not bind him or parties claiming under him, although the latter may have acquired their interest after the suit was commenced.” (Terrell v. Allison, 21 Wall. (U. S.) 289, 22 L. ed. 634.)</p>

Hon. Alfred Budge, Judge. An action to recover for the purchase price of personal property. The plaintiffs did not show facts that entitle them to maintain this action against the defendants. Their only remedy, if any, is against Hurd. This is an action for the purchase price. By bringing this action the plaintiffs make the sale to Hurd absolute and the title in the -defendants absolute. {Bailey v. Hervey, 135 Mass. 172; Butter v. Hildreth, 5 Met.

<p>APPEAL from the District Court of the Sixth Judicial District for Bingham County. Hon. J. M. Stevens, Judge.</p> <p>Prosecution for the crime of selling intoxicating liquors in a prohibition district. Judgment of guilty, from which defendant appeals.</p> <p>Sec. 7756, Rev. Codes, is identical with see. 1017 of Kerr’s California Penal Code, and has been frequently construed by the courts of that and other states having similar provisions. (People v. Kinsey, 51 Cal. 278; People v. Fuqua, 61 Cal. 377; People v. Helloing, 59 Cal. 567; People p. Ham-berg, 84 Cal. 468, 24 Pac. 298; People v. Eppinger, 109 Cal. 294, 41 Pac. 1037; People v. Tucker, 115 Cal. 337, 47 Pac. 111.)</p> <p>We do not believe that see. 7230 applies to a case such as the case at bar, but that it is rather intended to apply to that class of cases where the same offense is made punishable in different ways, as, for instance, by fine under one statute and by imprisonment under another. The infliction of one punishment would necessarily be a bar to the other. This section is evidently one of the numerous saving sections, which a wise legislature has put in our statute to guard against ill-considered legislation by subsequent legislatures whereby additional penalties are prescribed for offenses for which penalties already existed. (17 Am. & Eng. Ency. Law, 596-598; Wright v. State, 17 Tex. App. 152.)</p> <p>If the plea of the defendant of former acquittal is legally insufficient, the lower court did right in refusing to submit it to the jury. (Slmbert v. State, 21 Tex. App. 551, 2 S. W. 883; Johnson v. State, 34 Tex. Or. 115, 29 S. W. 473; Site v. State, 9 Terg. (Tenn.) 357, 366; Pickens v. State, 9 Tex. App. 270; State v. Lee, 46 La. Ann. 623, 626, 15 So. 159; State v. Shaw, 5 La. Ann. 342; State v. Meekins, 41 La. Ann. 543, 6 So. 822; State v. Paterno, 43 La. Ann. 514, 9 So. 442; Gormley v. State, 37 Ohio St. 120.)</p> <p>If the evidence required to convict under the first indictment would not be sufficient to convict under the second indictment, but proof of an additional fact would be necessary to constitute the offense charged in the second indictment, then the former conviction or acquittal could not be pleaded in bar to the second indictment. (Blair v. State, 81 Ga. 629, 7 S. E. 855; Arrington v. Commonwealth, 87 Va. 96, 12 S. E. 224,10 L. R. A. 242; Smith v. State, 105 Ga. 724, 32 S. E. 127; Ruble v. State, 51 Ark. 170, 10 S. W. 262; State v. Gapen, 17 Ind. App. 524, 45 N. E. 678, 47 N. E. 25; State v. Wheeler, 62 Vt. 439, 20 Atl. 601; State v. Miller, 63 Kan. 62, 64 Pac. 1033; State v. Magone, 33 Or. 570, 56 Pac. 648; Woolen & Thornton on Intoxicating Liquors, sec. 966; 12 Cyc. 280.)</p>

<p>Corporation — Contract—When Ratified — Findings of Trial Court— Receiver — Power to Appoint — Bill of Sale not a Mortgage.</p> <p>1. Where H. owns practically all but a few shares of stock in a corporation and conducted the company’s business and made contracts for the company and borrowed money for the benefit of the company which was used and appropriated by the company, and the obligations of H. were ratified and appropriated by the company for a period of five years, and no stock was issued until after the execution of the obligations and contracts made by H., the company is liable for such debts and contracts made on behalf of and for the benefit of the company.</p> <p>2. Where the trial court made findings of fact, 'and it is conceded, that the evidence upon which the court finds is in conflict, this court will not reverse the findings where the evidence shows preponderance in favor of the findings.</p> <p>3. Sec. 4329, Rev. Codes, subds. 2, 5 and 6, provides the grounds for appointment of receivers: “2. In an action by a mortgagee for the foreclosure of his mortgage and sale of .the mortgaged property, where it appears that the mortgaged property is in danger of being lost, removed or materially injured, or that the condition of the mortgage has not been performed, and that the property is probably insufficient to discharge the mortgage debt. 5. In the case when a corporation has been dissolved, or is insolvent, or in imminent danger of insolvency, or has forfeited its corporate rights. 6. In all other eases where receivers have heretofore been appointed by the usages of courts of equity.”</p> <p>4. A court of equity has the power and authority in a proper case to appoint a receiver to take charge of the property and to care for and protect the same, and to decree the charges therefor as a prior claim and lien against the property, paramount to all mortgages or other liens or encumbrances.</p> <p>5. Where an instrument is in controversy as to whether it is a mortgage or a bill of sale, and the record shows that the trial court found, and the testimony sustains the findings, that said instrument was an absolute bill of sale and was intended as such both by the trust company and the brick company, such finding will not be reversed upon appeal.</p> <p>6. Held, in this case that the evidence supports the findings and judgment.</p>

Hon. Carl A. Davis, Judge. Petition for writ of mandate to compel the board of county commissioners and county assessor of Ada county to assess all motor vehicles that escaped taxation for the year 1913, under the highway commission act. Demurrer to petition sustained by lower court. This purported amendment relating to property exempt from taxation does not comply with the constitution, see. 18, art. 3.

Original action for a writ of mandate; alternative writ issued and answer and return made, and upon the hearing a modified order of mandate directed. Counsel cite no authorities on points decided except Brinton v. Steele, 23 Ida. 615, 131 Pae. 662.

<p>APPEAL from the District Court of tbe Second Judicial District, in and for Latah County. Hon. Edgar C. Steele, Judge.</p> <p>The defendant was convicted of the crime of contributing to the delinquency of a juvenile person and on appeal to the district court he was denied a trial de novo and the judgment of the probate court was affirmed.</p> <p>If sec. 165 and sec. 173 of act of March 7,1911, entitled "An act providing a code of laws on education for the public school system of Idaho," relate to sec. 159 of said act, they are unconstitutional. (Secs. 21 and 26, srt. 5, Ida. Const.; People v. Maxon, 1 Ida. 330; Dewey v. Schreiber Implement Co., 12 Ida. 280, 85 Pac. 921.)</p> <p>Sec. 165 of said act relates only to orders or final judgments made by any probate court, sitting as a juvenile court, and which affect any delinquent child, any juvenile delinquent person, or a juvenile disorderly person, and does not apply to adults affected by any such order made in any such proceedings. (Ex parte Sharp, 15 Ida. 120, 96 Pac. 563, 18 L. R. A., N. S., 886; Mill v. Brown, 31 Utah, 473, 120 Am. St. 935, 88 Pac. 609.)</p> <p>The complaint filed in the probate court, attempting to charge the defendant with the crime of contributing to and encouraging the delinquency of one Delia Feeney, is insufficient. (Sec. 7679, Rev. Codes; People v. Pierro, 17 Cal. App. 741, 121 Pac. 689; Edington v. Court, 18 Cal. App. 739, 124 Pae. 450, 128 Pac. 338; Ex parte Goldsworthy, 22 Cal. App. 354, 134 Pac. 352.)</p> <p>The legislature has the authority to limit the right of appeal in criminal cases from probate courts. {In re Sharp, 15 Ida. 120, 96 Pac. 563, 18 L. R. A., N. S., 886.)</p> <p>The law is designed to guard against children becoming delinquents, rather than to punish those who contribute to their delinquency after that fact has been determined. {State v. Dunn, 53 Or. 304, 99 Pac. 278, 100 Pac. 258.)</p>