Volume 26 — Idaho Reports

Hon. Alfred Budge, Judge. Action for damages. Judgment for defendant. Plaintiff appeals.

Hon. Alfred Budge, Judge. Appeal from a judgment appointing an administrator of the estate of Body Thornton, deceased. The sole question to be determined in the case at bar is whether or not a nonresident brother of the deceased, who is himself incompetent to administer by reason of his non-residence, can by request advance a person from the eleventh class to a priority over a person of the tenth class.

Hon. Edgar C. Steele, Judge. Action against the Board of Regents of the University of Idaho to recover for money advanced and material furnished in the construction of a university building. Judgment against the board in the sum of $6,506.35, and the State Board of Education, as successor to the former Board of Regents,- appeals.

Hon. Edgar C. Steele, Judge. Action to cancel tax deed and to quiet title. Judgment for plaintiff. Defendant appealed.

Hon. James G. Gwinn, Judge. Action to quiet title to ditch and right of way for same across lands and to obtain an injunction restraining defendants from interfering with plaintiffs’ use of same.

Hon. James G. Gwinn, Judge. Action to ascertain and determine the true boundary line between the homestead entries of plaintiff and defendant. Judgment for plaintiff. Defendant appeals. “The only question presented on this appeal is the sufficiency of the evidence, and there is evidence which supports the verdict. For these reasons the judgment must be affirmed.” (Meeker v. Trappett, 24 Ida. 198, 133 Pac. 117.)

Hon. Edgar C. Steele, Judge. Action under the eminent domain statutes of the state for the condemnation of certain lands for public use. Judgment for the defendants.

Hon. R. N. Dunn, Judge. Action for foreclosure of mortgage and counterclaim on part of defendant. Judgment for plaintiff. The court was not warranted in allowing an attorneys’ fee of $1,000, for the reason that no contract was shown to have been entered into between the respondent and his attorneys.

<p>Specific Performance — Part Consideration for Railroad Right of Way — Construction of Crossing.</p> <p>1. Where a railroad company purchased a right of way across the lands of F. and paid certain cash consideration and entered into an agreement to construct a crossing over its right of way and track for the convenience, use and benefit of F., and for such consideration and upon the execution of such a contract F. conveyed to the railroad company such right of way, and the company constructed its road thereon, it will not be sufficient excuse to constitute a defense to an action for specific performance of the contract that the roads by and over F.’s land have been changed and that the railroad track at the plaee where the crossing was to be constructed runs through a deep cut instead of on the surface, and that it will be necessary to build an overhead crossing instead of a grade crossing, and that the expense of constructing and maintaining the same will be heavier than was anticipated by the company at the time the contract was made.</p> <p>2. Where the. knowledge or means of knowledge of the future condition or changes that may take place are peculiarly within the possession of the railroad company which is about to construct a railroad and has agreed to maintain a crossing over its right of way and track, and it enters into a contract to maintain a crossing, it will not thereafter be heard to complain on the ground that the contract was unfair and became more onerous than was anticipated at the time the contract was entered into by reason of the track having to be laid through a cut instead of on the surface of the ground, and that other conditions have changed since the contract was entered into.</p> <p>3. Facts of this case examined and considered and held that it is a proper case for the specific performance of the contract and that no just defense is presented which would excuse or relieve the company from specific performance.</p>

Hon. James G. Gwinn, Judge. Action to recover the value of notes and money, and to set aside the transfer of the same as a preference prohibited by the bankruptcy act. Judgment for plaintiff. Defendant appealed. The right of the trustee in bankruptcy to avoid a preference is made to depend not upon the fact that the preference was given, but upon the knowledge of the person receiving. (Coder v. Arts, 213 U. S. 223, 29 Sup. Ct. 437, 53 L. ed. 772, 16 Ann.

Hon. W. W. Woods, Judge. Application for a writ of mandate to compel the board of county commissioners to construct a bridge over the south fork of the Coeur d’Alene river where it runs through the corporate limits of the town of Kellogg. Writ denied.

Hon. John M. Flynn, Judge. Action for damages. Judgment for plaintiff. Defendant appeals. Negligence cannot be based on problematical causes. The plaintiff must show that his injuries resulted from some cause, which was not one of the hazards incident to the business. (Minty v. Umon Pao. By.

Hon. R. N. Dunn, Judge. Action to restrain and enjoin the sale of certain real estate on execution issued against the plaintiff’s husband. Judgment for the plaintiff.

Hon. R. N. Dunn, Judge. Action for damages for personal injury received by plaintiff while in the employ of an independent contractor. Demurrer to complaint sustained. The authorities cited by counsel are mentioned in the opinion infra.

<p>APPEAL from the District Court of the Eighth Judicial District, in and for Kootenai County. Hon. John M. Flynn, Judge.</p> <p>Action to recover damages on account of misrepresentation and fraud as to the boundary of certain land on which the plaintiff purchased the timber. A demurrer to the complaint was sustained on the ground that therp was a defect of parties plaintiff, and the plaintiff having refused to amend, judgment of dismissal was entered.</p> <p>Where oné sells property and makes representations as to the quantity of land sold, he is liable in an action for damages in ease his representations — whether believed by him to be true or not — are in fact false, and the boundary pointed out by him is not the true boundary and the vendee suffers any loss by reason thereof. (Miller v. Wissert, 38 Old. 808, 134 Pae. 62; McGhee v. Bell, 170 Mo. 121, 70 S. W. 493, 59 L. R, A. 761; Hooch v. Bowman, 42 Neb. 80, 47 Am. St. 691, 60 N. W. 389; Castenholz v. Heller, 82 Wis. 30, 51 N. W. 432; Porter v. Beattie, 88 Wis. 22, 59 N. W. 499; Davis v. Nuzum, 72 Wis. 439, 40 N. W.. 497, 1 L. R. A. 774; Pringle v. Samuel, 1 Litt. (Ky.) 43, 13 Am. Dee. 214; Trenchard v. Kell, 127 Fed. 596.)</p> <p>Even honesty in making a mistake is no defense, as it is incumbent upon the vendor to know the facts. (Culbertson v. Blanchard, 79 Tex. 486, 15 S. W. 700.)</p> <p>Nonjoinder of a proper, as distinguished from a necessary, party is not ground for demurrer. (31 Cyc. 293.)</p> <p>“In general, in an action founded upon tort the person who suffers the injury must bring the action, for he is the party in interest.” (Bliss on Code Pleading, 521.)</p> <p>“It is not necessary to join as plaintiff persons who do not appear by the complaint to be united in interest with the plaintiff in all the relief sought thereby.” (Gamer v. Wright, 28 How. Pr. 92.; Washburn v. Case, 1 Wash. Ter. 253; Sheridan Gas, Oil & Coal Co. v. Pearson, 19 Ind App. 252, 65 Am. St. 402, 49 N. E. 357; Moore v. Harmon, 142 Ind. 555, 41 N. E. 599.)</p> <p>“Where a suit is brought on a contract, a person who is not a party to the contract and has no interest therein is not a necessary or proper party to the suit.” (Hurlbutt v. N. W. Spaulding Soaa> Co., 93 Cal. 55, 28 Pac. 795.),</p> <p>The cause of action in this case is based on alleged fraudulent representations which resulted in the conveyance to the Springston Lumber Company of the standing timber described in the complaint. The lumber company is the grantee in the conveyance of the timber; the legal title was taken by it; it paid the cash consideration therefor, and executed the promissory note sought to be, canceled by this action. It is therefore the real party in interest. Any private arrangement between the plaintiff and the lumber company as to how the title shall be held, or otherwise, could not affect the defendant. It is not alleged in the complaint that the defendant had knowledge of any arrangement between the plaintiff and the lumber company.</p> <p>‘ ‘ The person having the legal interest in a contract can alone maintain an action thereon.” {Wolverton v. Geo. II. Taylor & Go., 157 111. 485, 42 N. E. 49; Gardner v. Armstrong, 31 Mo. 535; Fra/nkem v. Trimble’s Heirs, 5 Pa. 520; Forrest v. O’Donnell, 42 Mich. 556, 4 N. W. 259.)</p> <p>The allegation in the complaint that the Springston Lumber Company was an accommodation maker of the note in question does not change the situation in any particular. Under the provisions of the negotiable instruments law an accommodation maker of a promissory note is the real party in interest in any action based on such note and is primarily liable thereon. {Union Trust Co. v. McGinty, 212 Mass. 205, Ann. Cas. 1913C, 525, 98 N. E. 679; Vanderford v. Farmers’ etc. Nat. Banh, 105 Md. 164, 66 Atl. 47, 10 L. R. A., N. S., 129; Cellers v. Meachem, 49 Or. 186, 89 Pac. 426, 10 L. R. A., N. S., 133, 13 Ann. Cas. 997; Wolstenholme v. Smith, 34 Utah, 300, 97 Pae. 329; Bradley etc. Mfg. Go. v. Heyburn, 56 Wash. 628, 134 Am. St. 1127, 106 Pac. 170; National Citizens’ Banh v. Toplitz, 81 App. Div. 593, 81 N. Y. Supp. 422; Bicharás v. Marhet Exchange Banh Go., 81 Ohio St. 348, 90 N. E. 1000, 26 L. R. A., N. S., 99; Lane v. Hyder, 163 Mo. App. 688, 147 S. W. 514; Lumbermen’s National Banh v. Campbell, 61 Or. 123, 121 Pac. 427.)</p> <p>“In all actions those between whom there is a unity of legal interest must be joined as plaintiffs.” {Burhett v. Lehmen-Higginson Grocery Go., 8 Okl. 84, 56 Pac. 856; Culver v. Smith, 82 Mo. App. 390.)</p>

Hon. Alfred Budge, Judge. Action to have declared void certain liens and encumbrances created by assessments levied by an irrigation district, and to have determined the nature and amount of such liens as were legally created, and for the purpose of enjoining respondent from creating or attempting to create other or additional liens or encumbrances by levying future assessments.

Hon. Carl A. Davis, Judge. Action to determine the rights of the several parties under certain water right contracts. Judgment for the intervenors.

Hon. John M. Flynn, Judge. Action to enjoin the defendants from issuing, signing and delivering certain eounty bonds of' Bonner county to pay and redeem certain outstanding warrant indebtedness. With the exception of the case of Bannock County v. C. Bunting & Co., 4 Ida. 156, 37 Pae. 277, the points here raised have not been directly passed upon by this court.

Hon. W. W. Woods,Judge. Action to quiet title to a mining claim. Judgment for plaintiff. Held: however, so far as we know, that the single act of taking title to a tract of real estate, as appears in this ease, constituted ‘doing business’ within the meaning of such a constitutional or statutory provision.” (War Eagle Consol. Min.

<p>Joint Toet-feasors — Instructions—Verdict—Motion for Judgment —Evidence—Sufficiency of — Taxing 'Costs.</p> <p>1. Where two persons are sued as joint tort-feasors and the evidence cleaily shows that only one of them is liable for the tort, judgment may be rendered against the one who is liable for the trespass.</p> <p>2. Held, that the court did not err in overruling the demurrer to the amended complaint.</p> <p>3. Held, that the court did not err in the admission of certain evidence.</p> <p>4. Held, that the court did not err in giving a certain instruction to the jury.</p> <p>5. A motion to set aside a verdict and judgment and for a judgment non ohstante veredicto comes too late if made after judgment has been entered. Such motion must be made after the verdict and before the judgment is rendered.</p> <p>6. Under the provisions of sec. 3092, Rev. Codes, it is made the duty of a coterminous owner of real estate to give previous reasonable notice to another coterminous owner of his intention to make excavations on his adjoining land.</p> <p>7. Excavation by an owner on his own 'land, causing damage to a building .on an adjoining owner’s land, without the knowledge of, or previous notice to, such adjoining owner, is evidence of want of/ care in doing the work.</p> <p>8. Held, that there is substantial evidence to sustain the verdict of the jury.</p> <p>9. Held, that the court did not err in taxing the costs.</p>

Probate courts have equity powers to set aside final settlements on the ground of fraud, mistake or accident. (Sellew’s Appeal, 36 Conn. 186; Ayer v. Messer, 59 N. H. 279; Pew v. Hastings, 1 Barb.

Hon. Edward A. Walters, Judge. Defendants were convicted of selling intoxicating liquor in violation of the local option law, and sentenced to terms of imprisonment and to pay a fine of $500 each. “A defendant in a criminal action is undoubtedly entitled to the personal attendance of his witnesses at the trial, if the same can be obtained without unreasonable delay.” (Cremeans v. Commonwealth, 104 Va. 860, 52 S. E. 362, 2 L. R. A., N. S., 721; People v. Dodge, 28 Cal. 445,…

<p>Arson — Corroboration of Evidence of Accomplice — Sec. 7871 Construed — Instructions—Question of Accomplice for Jury— What Necessary to Constitute Accomplice — Indeterminate Sentence Act — Discretion of Trial Court in Denying Motion for New Trial.</p> <p>1. Under the provisions of see. 7871, Bev. Codes, the corroborating evidence required to substantiate the testimony of an accomplice must be upon some material fact or circumstance which, standing alone and independent of the testimony of the accomplice, tends to connect the defendant with the commission of the offense. (State v. Knudston, 11 Ida. 524, 83 Pac. 226, approved.)</p> <p>2. When the question, as to whether a witness is an accomplice, arises in a criminal case under sec. 7871, Bev. Codes, it is the duty of the trial court to instruct the jury on the law of accomplices, and leave the question as to whether or not any witness is an accomplice in the commission of the offense charged, for the decision of the jury as a matter of faet, unless it appear without substantial conflict in the testimony that such witness was an accomplice.</p> <p>3. In order to make a person an accomplice in the commission of a erime, some aiding, abetting or actual encouragement, by such person must be shown. Mere presence at the plotting of a crime or silent acquiescence in its commission is not, in the absence of a legal duty to act, sufficient to constitute one an accomplice.</p> <p>4. The failure to disclose known facts regarding the commission of a erime does not render one having sueh knowledge an accomplice of the person who committed the crime.</p> <p>5. Held, that under the provisions of see. 1, chap. 200, of the laws of 1911 (Sess. Laws. 1911, p. 664), amending sec. 1 of the indeterminate sentence act of 1909, taken together with sec. 7008, Eev. Codes, fixing the penalty for the crime of arson in the first degree at a minimum sentence of two years and maximum for life, the defendant was legally sentenced to serve a maximum term of fifty years in the state penitentiary, with a minimum of twenty-five years.</p> <p>6. A wide discretion is vested in the trial court in determining the weight to be given to the statements contained in affidavits on motion for a new trial on the ground of newly discovered evidence, and the action of the trial court in denying such motion will not be disturbed where the discretion reposed is not shown to have been abused.</p> <p>7. The action of the trial court refusing to strike from the files counter-affidavits submitted by the. state on defendant’s showing on motion for a new trial, on the ground that such counter-affidavits are immaterial and irrelevant, is not a ground for reversal of a judgment of conviction,' where it does not appear that the defendant has been prejudiced by allowing such counter-affidavits to remain in the record.</p>

Hon. E. C. Steele, Judge. Action to have certain conveyances of real estate and certain transfers of personal property canceled and held for naught. Judgment for defendants.

Hon. Carl A. Davis, Judge. Defendants were prosecuted on information for conspiracy in attempting to collect predatory animal bounty on spurious and fraudulent claims. Defendants acquitted. State appeals. “Conflict and repugnance in statutes should always be avoided by construction, if possible.

<p>Amendment — Refusal of — Nonsuit—Judgment of.</p> <p>1. It is not an abuse of discretion upon tbe part of tbe trial court to refuse permission to amend a pleading where upon appeal a ease has been remanded for a new trial, and where the amendments sought were direetly contradictory to the original allegations, and where the amendments were sought for the apparent purpose of avoiding matters formerly alleged and proven in the case, and upon which issue had been joined, where no showing is made of excusable inadvertence or mistake, or of fraud upon the part of the other party contributing thereto.</p> <p>2. Evidence examined and held that upon close of plaintiff’s ease a nonsuit was properly granted.</p>

Original proceeding in this court for a writ of review to determine the validity of the order of the public utilities commission, requiring the plaintiffs to refrain from constructing their proposed plants in either the city of Twin Falls or Pocatello, on the ground that such companies have not obtained a certificate of public convenience and necessity requiring such service.

<p>Administration .op Estate — Exceptions to Pinal Account op Ex-Guardian.</p>

<p>APPEAL from the District Court of the Third Judicial District, in and for Ada County. Hon. Carl A. Davis, Judge.</p> <p>Action to foreclose a Carey Act lieu for default in payment by defendants of deferred payments upon a water right, purchased by defendant Pew under contract from the plaintiff corporation. Demurrer to complaint overruled, and from the order overruling the demurrer defendant Cornell appeals.</p> <p>The reclamation project need not be completed before the construction company is entitled to foreclose its lien on a particular tract. (Childs v. Neitzel, ante, p. 116, 141 Pac. 77.)</p> <p>Under the provisions of sec. 1629, Rev. Codes, upon the default of any deferred payments, the lienholders may foreclose' the same in accordance with the terms and conditions of the contract for the purchase of the water right. (Idaho Irr. Go. v. Dill, 25 Ida. 711, 139 Pae. 714.)</p>

<p>APPEAL from the District Court of the Seventh Judicial District for Canyon County. Hon. Ed. L. Bryan, Judge.</p> <p>Action to restrain the city of Payette from proceeding to create an improvement district and the construction of sidewalks and curbing therein, in which a temporary restraining order was granted, and upon motion of the city was thereafter dissolved.</p> <p>If there is any ambiguity in the terms of a notice, rendering its meaning doubtful, the construction must be most strongly against the party giving the notice. (Carpen-tier v. Thurston, 30 Cal. 123.)</p> <p>A requirement that an ordinance shall specify the nature, character, locality and description of an improvement is mandatory. Particularity in this regard may be furnished by reference to plans and specifications upon file, or reference may be made to some specific object or thing. (See 28 Cyc. 998 (11); McC'hesney v. City of Chicago, 171 111. 253, 49 N. E. 548; Hays v. City of Vincennes, 82 Ind. 178; Browne v. City of Boston, 166 Mass. 229, 44 N. E. 127.)</p> <p>Failure to give notice as provided by charter or statute will invalidate proceedings for improvements and assessments to pay for the same. (28 Cyc. 979, 980; Barber Asphalt Paving Co. v. Edgerton, 125 Ind. 455, 25 N. E. 436; Kiphart v. Pittsburgh etc. By. Co., 7 Ind. App. 122, 34 N. E. 375; Mills v. Detroit', 95 Mich. 422, 54 N. W. 897; Eddy v. Omaha, 72 Neb. 550,101 N. Y7. 25, 102 N. W. 70, 103 N. W. 692; Ackerman v. Nutley, 70 N. J. L. 438, 57 Atl. 150; In re Anderson, 60 N. Y. 457; Joyce v. Barron, 67 Ohio St. 264, 65 N. E. 1001; Bank of Columbia v. Portland, 41 Or. 1, 67 Pac. 1112.)</p> <p>The test as to whether the notice of intention complies with the law is whether it furnishes an effective opportunity to be heard and gives reasonable notice thereof. (Page & Jones, Taxation by Assessment, sec. 730; In re Common Council of City of Amsterdam, 126 N. Y. 158, 27 N. E. 272; Williams v. Eggleston, 170 U. S. 304, 18 Sup. Ct. 617, 42 L. ed. 1047.)</p>

Hon. C. O. Stoekslager, Judge. Proceedings to reverse the judgment of the district court affirming the order of the board of county commissioners creating School District No. 61. Sec. 51, chap. 159, 1911 Sess.

<p>Pleadings — Amendments to — Invited Error — Failure to Demur at Proper Time — Appointment of Guardian Ad Litem: After Trial — Informality of Verdict — Apportionment by Court of Amount of Judgment.</p> <p>1. Where an action for injuries to a minor child was commenced by the mother on the theory that the mother, as the natural guardian of such child, could recover for such injuries, both on her own behalf and on behalf of the minor, and the allegations of the complaint showed that to be plaintiff's theory of the case, and defendant answered on the same theory of the case, and evidence was introduced without objection sustaining the allegations of the complaint, and at the close of the introduction of evidence and by consent of counsel for defendant the complaint was amended by inserting in the title of the aetion the additional words, “For herself and on behalf of her minor son, W. E. Trask,” and other amendments were allowed at the same time, additional instructions covering the amendments being given by the court to the jury, and sueh amendments did not involve the introduction of any further evidence or any new state of facts, and it appeared that defendant was in no way misled or prejudiced by the making of such amendments, the allowance thereof did not constitute a new cause of action, and was properly granted by the court under sec. 4229, Eev. Codes.</p> <p>2. A judgment will not be reversed on account of alleged errors that have been consented to or invited, especially where it appears that appellant has not been prejudiced thereby.</p> <p>3. Un,der the provisions of sec. 4178, Eev. Codes, failure on the part of defendant to seasonably raise by demurrer questions involving lack of capacity on the part of the plaintiff to sue, or defect or misjoinder of parties, must be deemed to be a waiver of the right to thereafter raise such questions.</p> <p>4. The appointment of a guardian ad litem after the trial of a case and on the hearing of a motion for new trial, by an order of the trial court nuna pro timo, is not a jurisdictional defect, but at most an irregularity which does not of itself vitiate the proceedings.</p> <p>5. Where the title of the cause as inserted in the verdiet of the jury designates the plaintiff as “Mrs. Ina M. Trask,” whereas in accordance with an amendment to the complaint previously made by consent the words “for herself and on behalf of her minor son W. E. Trask” should have been added, but were omitted through inadvertence, such informality will not vitiate or render uncertain the verdict, which is to be read with the aid of the pleadings and in the light of the instructions of the court.</p> <p>6. Indefiniteness of a verdict is not a ground for granting a new trial under the provisions of see. 4439, Rev. Codes.</p> <p>7. Where, in an action to recover for injuries to a minor child, the jury rendered a verdict of $8,000 in favor of the mother and minor child, and on motion for new trial the court reduced the judgment to $5,000, and apportioned that sum, $1,000 to the mother and $4,000 to the minor child, on condition that the mother and the minor, through his guardian ad litem, should file disclaimers of any greater sums, and such disclaimers were filed with the court, both the mother and the minor are bound by the judgment, and the defendant cannot be heard to eomplain in the absence of any showing that it is prejudiced by the action of the court in so apportioning the judgment.</p> <p>8. A minor is bound by a judgment in a case wherein he is a party and represented by a guardian ad litem regularly appointed, when such guardian accepts the judgment of the court on behalf of his ward.</p> <p>9. Held, that it does not appear from the record in this ease that any substantial rights of appellant have been materially affected ■by any error or defect that may have occurred during the trial or proceedings.</p>

Hon. Alfred Budge, Judge. Action to abate a nuisance. Judgment for plaintiff. Defendant appeals. Within its territorial limits the right of a municipality to •maintain the action depends upon the same condition as the right of the individual or private corporation; it must have suffered some special injury.

Hon. Ed. L. Bryan, Judge. Action to determine the validity of what is known as the “Drainage Law.” The present members of this bench have not hesitated to express disapproval of the majority opinion in the Cohn-Kingsley case. (Swain v. Fritclvman, 21 Ida. 783, 125 Pac. 319.) The omissions in the journal that have been held fatal to any bill have been omissions of facts which the constitution expressly requires should be entered in the journal.

<p>APPEAL from the District Court of the Third Judicial District for Ada County. Hon. Chas. P. McCarthy, Judge.</p> <p>Action in claim and delivery to recover possession of a certain note and mortgage described in the complaint, of the alleged value of $1,800.</p> <p>Respondent cannot claim a statutory lien, because he does not come within that law, and does not allege that the property was delivered or consigned to him for sale; nor to perform labor or skill, or expend money upon the identical property detained. (Rev. Codes, see. 3446; Mendilie v. Snell, 22 Ida. 663, 127 Pae. 550, 43 L. R. A., N. S., 965.)</p> <p>Respondent cannot establish a common-law lien upon the property of the appellant detained by him.</p> <p>“A particular lien at common law is a right to retain the property of another on account of labor employed or money expended on that specific property.” (19 Am. & Eng. Eney. of Law, 2d ed., 8; 1 Jones on Liens, p. 26; 2 Bouvier’s Law Dictionary, 227; Scott v. Mercer, 98 Iowa, 258, 60 Am. St. 188, 67 N. W. 108; Mechem on Agency, sec. 685.)</p> <p>Respondent cannot claim a common-law lien as a factor nor as a broker, because he did not have delivered to him the possession of the goods and merchandise for sale, nor was the property consigned to him for sale. (Mechem on Agency, sec. 980; Clark & Skyles on Agency, secs. 745, 822; Story on Sales, 91; Slack v. Tucker, 23 Wall. 321, 23 L. ed. 143; Barry v. Bovinger, 46 Md. 59; Peterson v. Hall, 61 Minn. 268, 63 N. W. 733.)</p> <p>An agent has. a lien on the papers or property of his principal to secure payment of his compensation. (Gresham v. Galveston Go. (Tex. Civ. App.), 36 S. W. 796; Dowell v. Cardwell, 4 Saw. 217, 7 Fed. Cas. No. 4039; Vinton v. Baldwin, 95 Ind. 433; Jones on Liens, sec. 422; Byers v. Danley, 27 Ark. 77.)</p> <p>There exists a particular right of lien in the agent for all his commissions, expenditures, advances and services, (Mechem on Agency, sec. 684; Barry v. Boninger, 46 Md. 59, Richards v. Gashill, 39 Kan. 428, 18 Pac. 494; Carpenter v. Monsen, 92 Wis. 449, 65 N. W. 1027, 66 N. W. 692 • Peterson v. Hall, 61 Minn. 268, 63 N. W. 733.)</p> <p>“Where an agent has a lien on property for his security, the general owner cannot replevin against him for it until the lien be discharged.” (Newhall v. Dunlap, 14 Me. 180, 30 Am. Dec. 43; Matthias v. Betters, 86 Pa. 486, 27 Am. Rep. 723.)</p>

Hon. Charles P. McCarthy, Judge. Action to recover damages for falsely labeling fruit trees.. Demurrer to complaint sustained and judgment entered for the ■ defendant. Section 16, art. 3 of the constitution must be given a reasonable construction. It is sufficient if the act treats of but one general subject, and that subject is expressed in the title, directly or indirectly.

Hon. C. O. Stockslager, Judge. Action to enjoin the defendant from traveling upon a certain road that had been conditionally vacated. Judgment granting the defendant the right to travel upon the “diagonal road” until the newly established road is put in proper condition. The vacation of highways is not a taking of property for which compensation must be made. (Swift v. Scmta Barbara County, 16 Cal.

Hon. Ed. L. Bryan, Judge. Action to recover on a promissory note. Judgment for the' plaintiff. The owner of plaintiff’s exhibit “P” does not hold the same in due course of business and the dates of the indorsements thereon are immaterial, the indorsee, Bank of Montreal, not having indorsed the same. For these reasons instruction No. 3 has no application to the facts in this case, and would have the effect to mislead and confuse the jury.

<p>APPEAL from the District Court of the Third Judicial District for Ada County. Hon. Carl A. Davis, Judge.</p> <p>Action for damages for breach of contract. Judgment for defendant, dismissing said action.</p> <p>A claim for uncertain and unliquidated damages is not a debt. (Jackson v. Bell, 31 N. J. Eq. 554.)</p> <p>Our supreme court has had sec. 3, art. 8 of the constitution under consideration many times. On every occasion when the prohibition has been applied, there has been a true indebtedness involved. (Ada County v. Bullen Bridge Co., 5 Ida. 79, 47 Pae. 818, 36 L. R. A. 367; Ball v. Bannock County, 5 Ida. 602, 51 Pac. 454; Dunbar v. Board of Commrs., 5 Ida. 407, 49 Pac. 409; Bannock County v. Bunting & Co., 4 Ida. 156, 37 Pae. 277.)</p> <p>The case of Feil v. Coeur d’Alene City, 23 Ida. 32, 129 Pac. 643, 43 L. R. A., N. S., 1095, a case cited by the city, deals with a true indebtedness.</p> <p>The California court, in which state the section is identical with our own, and the construction of which court has been quoted with approval by our own, has construed the section exactly as we contend for. (McBean v. City of Fresno, 1.12 Cal. 159, 53 Am. St. 191, 44 Pac. 358, 31 L. R. A. 794; Smilie v. Fresno County, 112 Cal. 311, 44 Pac. 556; Johnson v. Bank of Lake, 125 Cal. 6, 73 Am. St. 17, 57 Pac. 664; Doland v. Clark, 143 Cal. 176, 76 Pae. 958.)</p> <p>Liability to pay money arising out of tort is not the creation of an indebtedness. {Ft. Dodge Electric Light & Power Co. v. Ft. Dodge, 115 Iowa, 568, 89 N. W. 7; Conover v. Nevada, 188 Mo. 148, 107 Am. St. 314, 86 S. W. 256; Loreovce v. Bean, 18 Wash. 36, 50 Pae. 582; Bloomiovgtoov v. Perdue, 99 111. 329; B,ice v. Des Moines, 40 Iowa, 638; Little v. Portlaoid, 26 Or. 235, 37 Pac. 911; Cook v. Aoisoovia, 66 Conn. 413, 34 Atl. 183; Smith v. St. Joseph, 122 Mo. 643, 27 S. W. 344.)</p> <p>The compromise of an action or claim is not the creation of a debt. {Chicago v. Pittsburg etc. Co., 244 111. 220, 135 Am. St. 316, 91 N. E. 422; Coovyers v. Kirk, 78 Ga. 480, 3 S. E. 442.)</p> <p>The contract does not create a new liability. Indebtedness already existing may be paid in a given year, though the sum so paid exceeds the income of that year. {Hickey v. Nampa, 22 Ida. 41, 124 Pac. 280.)</p> <p>If the right to a compromise is considered best to the city’s interest, the exercise of this discretion vested in the council will not be reviewed by the courts. {Pike v. State Land Board, 19 Ida. 268, Ann. Cas. 1912B, 1344, 113 Pae. 447; Murphy v. Chicago, B. I. etc. By. Co., 247 111. 614, 93 N. E. 381.)</p> <p>It is safe to presume that if the city had sufficient funds available with which to carry out the scheme of improvement contemplated, an appropriation would have been made for that purpose, and in that event the contract might in some of its phases be legal, but. the contrary conclusively appears. It provides for future improvements and future payments of at least $5,000 a year for at least five years, with no provision made at the time of the execution of the contract for defraying this expense, in direct violation of see. 3, art. 8 of the constitution. (Hickey v. City of Nampa, 22 Ida. 41, 124 Pac. 280; Veatch v. City of Moscow, 18 Ida. 313, 21 Ann. Cas. 1332, 109 Pac. 722; McNutt v. Lemhi County, 12 Ida. 63, 84 Pac. 1054; Ada County v. Bullen Bridge Co., 5 Ida. 79, 47 Pae. 818, 36 L. R. A. 367; Dunbar v. Board of Commrs., 5 Ida. 407, 49 Pac. 409; Bannock Co. v. Bunting & Co., 4 Ida. 156, 37 Pac. 277.)</p> <p>A city indebtedness incurred during one fiscal year cannot be paid from the income and revenue óf a future fiscal year, unless a fund is specially provided for the purpose, and collected therefor in such future year. (Theiss v. Hunter, 4 Ida. 788, 45 Pac. 2; San Francisco Gas Co. v. Brickwedel, 62 Cal. 641; Foil v. City of Coeur d’Alene, 23 Ida. 32, 129 Pac. 643, 43 L. R. A., N. S., 1095; Bamsey v. City of Shelbyville, 119 Ky. 180, 83 S. W. 116, 1136, 68 L. R. A. 300; Eaton v. Mimnaugh, 43 Or. 465, 73 Pac. 754; O’Neil Engineering Go. v. Town of Byan, 32 Old. 738, 124 Pac. 19; Campbell v. State, 23 Old. 109, 99 Pac. 778.)</p>

Hon. Edward A. Walters, Judge. Equitable action to set aside a judgment. Judgment for plaintiffs. As a matter of equity and good conscience, neither of the plaintiffs would be permitted to maintain this action seeking the equitable relief which they do, without first paying to the defendant the balance due to it for lumber and building materials, which it is conceded has not been paid.

Hon. Carl A. Davis, Judge. Proceeding to set aside sheriff’s sale. Motion to dismiss appeal. Held: that from an appeal from the judgment or decree of the court below the appellant must serve notice of appeal upon all adverse parties to the judgment or decree.

<p>Verdict — Insufficiency of Evidence.</p> <p>1. The evidence held not sufficient to sustain the verdict.</p>

<p>Criminal Law — Appeal on Behalf of State — Motion to Dismiss— Probate Court •— Complaint — Information — Statutory Construction.</p> <p>1. Where a defendant is tried in the probate court for selling intoxicating liquors without a license, under the provisions of see. 1518, chap. 33, title 8, of the Eev. Codes, and is convicted and appeals to the district eourt, held, that the district court erred in dismissing said action on the motion of the defendant, on the ground that the probate court had no jurisdiction to try such case but should have held a preliminary examination.</p> <p>2. jSeld, that the misdemeanor for which the defendant was tried and convieted in the probate court was not the crime of selling liquor in a prohibition district, since the defendant was not charged in the complaint filed in said action with selling intoxicating liquors in a prohibition district, but was charged with selling liquor without first procuring the license required by law.</p> <p>3. Under the provisions of the first subdivision of see. 81)43, Eev. Codes, the state is authorized to take an appeal from a judgment for the defendant on demurrer to the indictment or information.</p> <p>4. Under the provisions of sec. 8325, Eev. Codes, when an appeal is taken from a justice’s or probate court, the clerk of the district court must file the papers received and enter the action on the calendar in its order with other criminal cases, and such case must be tried anew in the district eourt at the next term thereof, unless for good cause the same is continued.</p> <p>5. When a criminal ease is appealed from a probate court, the case stands on appeal the same as though it had been begun in the district court. It is there for a new trial on every point in question that could legally be raised therein.</p> <p>6. Under the provisions of see. 7509, Eev. Codes, a complaint or information is defined as an allegation in writing made to a magistrate that a person has been guilty of some designated offense.</p> <p>7. The complaint or information is the name of the pleading by which a criminal action is instituted in a justice’s or probate court, and the names “complaint” and “information” are used interchahgeably and refer to the same kind of a pleading.</p> <p>8. On an appeal from the probate court to the district court in a criminal case, the proceedings in the trial de novo is substantially the same as in a ease before the district court on indictment or information.</p> <p>9. Held, under the provisions of the statute, the state has the authority to appeal in a case on appeal from the probate court in criminal cases, where the appeal is dismissed on the demurrer or motion of the defendant, on the ground that the probate court had no jurisdiction to try said case.</p> <p>10. Held, that the misdemeanor for whieh the defendant was convicted in the probate court was one whieh the probate court had jurisdiction to try, to wit, that of selling liquor without a license, and was not a misdemeanor whieh required the probate court to hold a preliminary examination, and the defendant could not have been convicted of the misdemeanor of selling liquor in a prohibition district under the complaint filed in this case.</p>

Original proceeding in this court for a writ of review to determine the validity of an order of the Public Utilities Commission refusing to require the Washington Water Power Company to permit the plaintiff to examine all of its.records, files and papers.

the District Court of the Third Judicial District for Ada County. Hon. Chas. P. McCarthy, Judge. This action was commenced and prosecuted by respondent as plaintiff in said district court to have certain instruments, in form warranty deeds, declared to be mortgages and foreclosed as such. Judgment for plaintiff. The deeds in this case from the insolvent Saunders to the Capital Lumber Company were not intended to be or to operate as mortgages.

Hon. Charles P. McCarthy, Judge. This action was commenced and prosecuted in said district court to have certain instruments, in form warranty deeds, declared mortgages and foreclosed as such. Judgment for the plaintiff.

<p>APPEAL from the District Court of the Second Judicial District for Clearwater County, from a judgment and decree in favor of respondent, Ora Wellman. Hon. Edgar C. Steele, Judge.</p> <p>Action to determine the title to a certain lot situate in the city of Lewiston, Idaho, and claimed to be owned as her separate property by the said Ora Wellman; and not to in any way or manner interfere with the validity of appellant’s judgment heretofore entered in said court.</p> <p>The separate character of the property must be established by something more than a mere preponderance of the evidence. It is hardly possible for a creditor to prove, or to offer any evidence tending to prove, that the sister of the debtor did not, at one time, make the debtor’s wife a present of several hundred dollars in cash.</p> <p>It is not only necessary for these respondents to satisfactorily show that the wife came into possession of separate funds through one of the recognized sources of separate acquisition, but those identical funds must be traced into the investment which she claims is a part of her separate estate. (Patterson v. Bowes, 78 Wash. 476, 139 Pac. 225; McKay, Community Property, sec. 265; BiebU v. Husler, 7 Cal. Unrep. 1, 69 Pac. 1061; Bamsdell v. Fuller, 28 Cal. 37, 87 Am. Dec.-103; Chapman v. Allen, 15 Tex. 278; Claiborne v. Tanner, 18 Tex. 69; Dominquez v. Lee, 17 La..295; Webb v. Feet, 7 La. Ann. 92; Smith v. Smith, 12 Cal. 216, 73 Am. Dec. 533; Meyer v. Kinzer, 12 Cal. 247, 73 Pac. 538; Smith v. Weed, 75 Wash. 452, 134 Pac. 1070; Ballinger, Community Property, sec. 40.)</p> <p>“A spouse who has by his or her acts or conduct induced third persons to deal with property as separate will be es-' topped afterward to deny that it is separate, where to permit him to do so would operate to the prejudice of such third persons. And the same principle is applicable to property represented or treated as community property.” (21 Cyc. 1654; Patton v. Gates, 67 111. 166; Coon v. Bigdon, 4 Colo. 275; Roberts v. Bodma/n etc. Lumber Co., 84 Ark. 227, 105 S. W. 258; Hobbs v. Frazier, 61 Fla. 611, 55 So. 848; Million v. Commercial Bank, 159 Mo. App. 601, 141 S. W. 453.)</p> <p>“In the states where the wife has the control of her separate property, there would seem to be no reason why creditors of the community might not at any time subject to the payment of their claims funds applied to the wife’s separate benefit, with her express or implied consent.” (McKay, Community Property, sec. 250; Maddox v. Summerlin, 92 Tex. 483, 49 S. W. 1033; Collins v. Bryan, 40 Tex. Civ. App. 88, 88 ,S. W. 432.)</p> <p>The improvements became a permanent part of the wife’s property and no creditor then existed to challenge the same. (Ware v. Seasongood, 92 Ala. 152, 9 So. 138; McKay on Community Property, sec. 250.) In the case at bar, the record is silent of any indication of fraud.</p> <p>“Where the husband erects a building on land of his wife, the law presumes that he intended it for her benefit. ’ ’ (Appeal of Connecticut Humane Society, 61 Conn. 465, 23 Atl. 826; 'Metropolitan Nat. Bank v. Rogers, Ml Fed. 148.)</p> <p>“The mere fact that a husband, by his labor, has improved the real estate of his wife, will not render it subject to his debts.” (Cox v. Bishop, 2 Ky. Law Rep. 310; McFerrin v. Carter, 62 Tenn. (3 Baxt.) 335; Webster v. Hildreth, 33 Yt. 457, 78 Am. Dec. 632.)</p> <p>“In order to estop a married woman from asserting her claim to real estate, it is essential that she be guilty of positive fraud, or some act of concealment or suppression equivalent to fraud.” (Williamson v. Gore (Tex. Civ. App.), 73 S. W. 563; McClain v. Abshire, 72 Mo. App. 390; Williamson v. Jones, 43 W. Ya. 562, 64 Am. St. 891, 27 S. E. 411, 38 L. R. A. 694; Kemp v. Folsom, 14 Wash. 16, 43 Pac. 1100; Karris v. Vcm De Vanter, 17 Wash. 489, 50 Pac. 50; Steed v. Petty, 65 Tex. 490; Johnson v. Bryan, 62 Tex. 623.)</p>

Hon. Ed. L. Bryan, Judge. In this action appeal’ was taken from the judgment of the lower court sustaining the demurrer to the complaint of appellant and denying the relief prayed for therein, and rendering judgment in favor of the defendant Thomas Buhl for costs of the action.

Original application in this court for a writ of mandate to compel the county commissioners as a board of canvassers of election returns to reassemble and announce the result of the election in a different manner and to a different effect from that which they had already announced and entered of record such announcement.

Plon. Edgar S. Steele, Judge. Action to restrain the collection of a tax alleged to have been illegally made. Demurrer to complaint sustained by trial court. The facts pleaded in the ease at bar, admitted as they are by the demurrer, establish fraud as a conclusion of law, and the allegation that these acts were fraudulent would not strengthen the complaint or be in any way essential.

<p>Public Lands — Reclamation Act — 'Constitutional and Statutory Law — Homestead Entryman — Interest of Entryman — Proof of Residence and Cultivation — Taxation.</p> <p>1. Where a homestead entryman of land included within a government reclamation project presents proof to the proper government officer that he has complied with the law in relation to residence and cultivation of said land and secures a certificate from the United States that his proof has been accepted, further residence on the land is not required in order to obtain final certificate and patent, and patent will issue upon proof that at least one-half of the irrigable area in the entry as finally adjusted has been reclaimed and that all the charges and fees and commissions due on account thereof have been paid to the proper receiving officer of the government.</p> <p>2. Where such entryman, in addition to establishing his residence on, and cultivation of, such land, has paid the United States five annual instalments on his water right amounting to $11 per acre, as provided by the reclamation act and the rulings of the Secretary of the Interior thereunder, and the entryman still owes the United States five annual instalments in payment of what is known as the construction charge for the irrigation canals and other works constructed by the United States for the purpose of furnishing water to the land entered, he has an equitable interest in such land, whieh is “property” nothin the meaning of that word as used in the constitution and laws of this state, and the matter then rests wholly with the entryman whether he will make the deferred payments and the additional proof required by said reclamation act.</p> <p>3. Under the provisions of secs. 2, 3 and 5, art. 7 of the state constitution, and see. 1, Sess. Laws 1913, p. 173, all “property” within the state is liable to taxation, unless expressly exempted.</p> <p>4. Under said reclamation aet, where a person has so far complied with the provisions of said law as to residence and cultivation of the land for more than five years, he can complete his title at any time by making final proof and paying the deferred payments on his water right and the fees provided by law to be paid. Under said act the government simply retains title as security for the payment of the money owing on the purchase priee of the water right for sueh land.</p> <p>5. Held, under the facts of this case, that plaintiff’s interest in said lands is “property,” and subject to taxation.</p> <p>6. The possessory right referred to in sees. 4554 et seq., Rev. Codes, is a squatter’s right on publie lands, and there is a dear distinction between such right and the right acquired by a formal homestead or other entry of publie land under the laws of the United States.</p> <p>7. When publie land is surveyed by the government and filed upon by a qualified entryman it eeases to be publie land, and if sueh entryman complies with the law and thereafter makes proper final proof and payments, he is entitled to a patent.</p> <p>8. When sueh entryman makes his proof of residence and cultivation and there only remains the Ren of the government for deferred payments on the water right for such land, the entryman’s interest in such land is taxable.</p> <p>9. The interest of the entryman in such land can be sold at deRnquent tax sale and the lien of such sale foreclosed and the title thereto obtained, under the provisions of the present revenue law, chap. 58, Laws of 1913, p. 173.</p> <p>10. Nothing that the taxing authorities have done or could do can or will affect the lien, rights or interests of the United States in sueh land for the deferred payments on the water right.</p>

Hon. Carl A. Davis, Judge. Action in the nature of a creditor’s bill brought by the respondent.to subject certain money alleged to be‘in the hands of the appellant to the payment of a judgment obtained against Alfred Anixdale, her husband, under the provisions of sec. 4510, Rev. Codes. Defendant appealed.

Hon. Carl A. Davis, Judge. Action to quiet title to certain islands in Boise river. Judgment quieting title to part of the land involved in favor of plaintiff and a part of the land in favor of some of the defendants.

Hon. Carl A. Davis, Judge. Action to foreclose a mortgage on real estate. Judgment for plaintiff. The actual possession of land with the exercise of the usual acts of ownership and dominion over it, operates in law as a constructive notice to all the world of the claim of title under which the purchaser holds.

Original application for a writ of mandate to compel the eity clerk of the city of Moscow to issue and countersign a certain warrant. Mandamus is the only remedy open to the plaintiff. The council has audited and allowed the claim of the plaintiff, and ordered a warrant drawn therefor, and the clerk, assuming that the claim is illegal, has refused to perform the ministerial duty, required of him by law, of issuing sueh warrant.

Hon. Edgar C. Steele, Judge. Action to quiet title to a .portion of a certain street in the city of Lewiston, Idaho. Both parties appeal. It is clear from Boise City v. Wilkinson, 16 Ida. 150, 102 Pae. 148, as well as Boise City v. Hon, 14 Ida. 272, 94 Pac. 167, and Hanson v. Proffer, 23 Ida. 705, 714, 132 Pae. 573, that this court is committed to tjie doctrine that a municipal corporation may.be estopped to assert a claim to streets.

Hon. Alfred Budge, Judge. Action to have defendant K. declared a trustee of the plaintiff and for judgment against defendant Moss for a certain sum of money. Demurrer on the part of M. sustained and judgment of dismissal entered as to him. It is not necessary to show any reason for commencing the second suit, other than that the first judgment has not been paid. (Ames v. Hoy, 12 Cal. 11; Stuart v. Lander, 16 Cal. 372, 76 Am. Dee. 538; Rowe v. Blake, 99 Cal. 167, 37 Am.

Original application for writ of mandate to compel tbe Secretary of State to issue a commission for tbe appointment of Honorable Alfred Budge to fill tbe full term of vacancy caused by tbe death of Justice Stewart. Where a term of office is fixed by tbe constitution, the legislature has no power to change tbe length of tbe term. (29 Cyc. 1397; State v. Thomari, 10 Kan. 191; Commonwealth v. Sheatz, 228 Pa. St. 301, 77 Atl. 547, 21 Ann.

Hon. Edward A. Walters, Judge. Action by a trustee in bankruptcy to have a certain chattel mortgage declared illegal and void, and to have the mortgaged property turned over to the bankrupt’s estate. Judgment for defendant. Plaintiff appeals. “It does not now depend upon the purpose of intention of the debtor or creditor.

Hon. Edward A. Walters, Judge. Action by a trustee in bankruptcy to have a certain chattel mortgage declared illegal and void, and to have the mortgage properly turned over to the bankrupt’s estate. Judgment for defendant. Plaintiff appeals.

<p>APPEAL from the District Court of the Fifth Judicial District for Power County. Hon. Alfred Budge, Judge.</p> <p>Action to determine the .right of a tax certificate holder to the deed without giving the notice required by sec. 1763, Rev. Codes, as amended. Judgment for plaintiff.</p> <p>Cases precisely similar to the case at bar have arisen in many jurisdictions in this country and without exception those jurisdictions now hold that it is incumbent upon the holder of a tax sale certificate, under such circumstances, to publish the notiee required by the statute. (Curtis v. Whitney, 80 U. S. (13 Wall.) 68, 20 L. ed. 513; Oullahan v. Sweeney, 79 Cal. 537, 12 Am. St. 172, 21 Pac. 960; Gage v. Stewart, 127 111. 207, 11 Am. St. 116, 19 N. E. 702; Herrick v. Niesz, 16 Wash. 74, 47 Pac. 414; State v. Krahmer, 105 Minn. 422, 117 N. W. 780, 21 L. R. A., N. S., 157; Coulter v. Stafford, 56 Fed. 564, 6 C. C. A. 18.)</p> <p>The plaintiff in this case, by virtue of the tax certificate, obtained a vested right in the property which could only be divested by the redemption from said sale by the owner of the lots within three years. (Lawrence v. Gefenbach, 23 Ida. 78, 128 Pac. 81.)</p> <p>The right of the owner and purchaser at a tax sale must both be governed by the law as it existed at the time of the sale. (Black on Tax Title, sec. 175; Merrill v. Gearing, 32 Minn. 479, 21 N. W. 721; Johnson v. Taylor, 150 Cal. 201, 119 Am. St. 181, 88 Pae. 903, 10 L. R. A., N. S., 818; Teralta Land etc. Co. v. Shaffer, 116 Cal. 518, 58 Am. St. 194, 48 Pae. 613; Allen v. Allen, 95 Cal. 184, 30 Pae. 213, 16 L. R. A. 646.)</p> <p>The enforced sale of property on execution or for the nonpayment of taxes, constitutes a contract with the purchaser which cannot be materially altered, without his consent. {Laivrence v. Defenbach, supra; Welsh v. Cross, 146 Cal. 621, 106 Am. St. 63, 81 Pac. 229, 2 Ann. Cas. 796.)</p> <p>If the remedy afforded be qualified and restrained by conditions of any kind the right of the owner may indeed subsist and be acknowledged, but it is impaired and rendered unsecure according to the method and extent of such restrictions. {Green v. Biddle, 8 Wheat. (U. S.) 1, 5 L. ed. 547; San Diego Inv. Co. v. Shaffer, 137 Cal. 323, 70 Pae. 179.)</p> <p>It is settled that all the laws of a state existing at the time a contract is made which affect the rights of the parties to the contract enter into and become a part of it, and are as obligatory upon all courts which assume to give a remedy on such contracts as if they were referred to or incorporated in the terms of the contract. {Ford v. Durie, 8 Wash. 87, 35 Pac. 595, 1082; Siein v. Hanson, 99 Minn. 387, 109 N. W. 821; 37 Cyc. 1452, and eases cited.)</p> <p>Kansas has repeatedly held that the amendment of a statute of tax sale certificates cannot affect certificates previously issued. {Richards v. Board of Commrs., 28 Kan. 326; Coonradt v. Myers, 31 Kan. 30, 2 Pae. 858; Pounds v. Rodgers, 52 Kan. 558, 39 Am. St. 360, 35 Pac. 223; Morgan v. Board of Commrs., 27 Kan. 89.)</p>

<p>APPEAL from the District Court of the Seventh Judicial District for Canyon County. Hon. J. M. Stevens, Presiding Judge.</p> <p>Action to quiet title in a trustee in bankruptcy to real estate standing in the wife’s name. Judgment for trustee.</p> <p>The fact that the husband managed the investment for appellant does not constitute a presumption of community property. The husband could only hold this property in trust for his wife. (Title Ins. & Trust Co. v. Ingersoll, 153 Cal. 1, 94 Pac. 94; Stickney v. Stickney, 131 U. S. 227, 9 Sup. Ct. 677, 33 L. ed. 136; Denny v. Denny, 123 Ind. 240, 23 N. E. 519; Chadbourn v. Williams, 45 Minn. 294, 47 N. W. 812; Carter v. Becker, 69 Kan. 524, 77 Pac. 264; Jones v. Davenport, 44 N. J. Eq. 33,13 Atl. 652.)</p> <p>Upon the question of a wife’s earnings constituting a part of her separate estate under an agreement with her husband, see Dobbins v. Dexter Morton & Co., 62 Wash. 423, 113 Pae. 1088; Wren v. Wren, 100 Cal. 276, 38 Am. St. 287, 34 Pac. 775; Gage v. Gage, 78 Wash. 262, 138 Pac. 886.</p> <p>The presumption that property acquired during marriage is community property may be rebutted. (Stewart v. Weiser Lumber Go., 21 Ida. 340, 121 Pac. 775; Heneij v. Pesoli, 109 Cal. 53, 41 Pac. 819.)</p> <p>It is only by giving effect to sec. 2677, Rev. Codes, that sec. 2680, which defines community property, and sec. 4479, which exempts the rents, issues and profits of the wife’s separate property and her personal earnings from execution against her husband, can be reconciled. (Thorn v. Anderson, 7 Ida. 421, 63 Pac. 592; Humbird Lumber Co. v. Dora/n, 24 Ida. 507, 135 Pac. 66.)</p> <p>Where separate property has by investment or otherwise, undergone changes or mutations, as in the case at bar, it is indispensable in order to maintain its separate character that the wife shall trace and identify it, and rebut the presumption that the property acquired during marriage belongs to the community. (Hamilton Brown Shoe Go. v. Lastinger (Tex. Civ. App.), 26 S. W. 924; Morris v. Hastings, 70 Tex. 26, 8 Am. St. 570, 7 S. W. 649; Brown v. Lockhart, 12 N. M. 10, 71 Pac. 1086; Yesler v. Hochstettler, 4 Wash. 349, 30 Pae. 398, and cases cited.)</p> <p>At the time of the purchase of the property involved in this action appellant was a married woman living with her husband, thus raising the presumption that the property so acquired was community property, and placing the burden on the appellant to establish the contrary. (Humbird Lumber Go. v. Dora/n, 24 Ida. 507, 135 Pac. 66; In re Niccolls Estate, 164 Cal. 368, 129 Pac. 278.)</p>

Griffiths & Griffiths and Thos. D. Griffin, for Appellant. Under any state of facts the bank would be estopped to deny that the person making a deposit is the owner of it. {Booth v. Oakland Bank of Savmgs, 122 Cal. 19, 54 Pae. 370; 5 Cyc.

<p>APPEAL from the District Court of the Fourth Judicial District for Twin Falls County. Hon. Chas. O. Stockslager, Judge.</p> <p>Prosecution for receiving stolen property. Verdict and judgment of conviction. Defendant William C. Janks appeals.</p> <p>“The inference arising from the possession of stolen property is said to be one of fact, and not of law. It never rises to the dignity of a conclusive presumption.” (State v. Pomeroy, 30 Or. 16, 46 Pae. 797; State v. Hodge, 50 N. H. 510.)</p> <p>“Even the recent, exclusive, unexplained possession of recently stolen property constitutes a mere circumstance, to be considered by the jury.” (Cooper v. State, 29 Tex. App. 8, 25 Am. St. 712, 13 S. W. 1011.)</p> <p>“Possession itself, without evidence tending to show guilty knowledge, could have no tendency to establish guilt.” (Durant v. People, 13 Mich. 351; Commonwealth v. Phelps, 192 Mass. 591, 78 N. E. 741.)</p> <p>“There is a distinction between possession as evidence of larceny and possession as evidence of unlawful receiving. In the latter offense the possession is held to be no evidence of the guilt of the person receiving them.” (10 Eney. of Evidence, 671.)</p> <p>“But in no case will possession sustain the conviction, on a charge of receiving stolen property.” (Wharton’s Criminal Law, par. 985; Wharton’s Criminal Evidence, 758; People v. Chambers, 18 Cal. 383.)</p> <p>The jury in this case arrived at their verdict by illogically drawing conclusions from assumed and unproven facts, and by reason of the misdirection by the court in giving the law in its instructions and by erroneous rulings upon the admission of evidence. Where error is shown injury is presumed unless the contrary appears affirmatively. (Hayne New Trial and Appeal, Rev. ed., par. 287, p. 1608.)</p> <p>A particular ground of error cannot be urged for the first time on appeal. (People v. Fitzpatrick, 80 Cal. 538, 22 Pac. 215.)</p> <p>Where the information charges three persons with receiving stolen goods without stating whether the receipt was joint or several, but one receipt can be proved, and if the- persons receiving were several, but one defendant can be convicted. The failure to allege whether the receipt was joint or several, however, is not a ground for demurrer. (See. 988, Bishop’s New Crim. Proc., 2d ed.; Commonwealth v. Slate, 11 Gray (Mass.), 60; State v. Smith, 37 Mo. 58.)</p> <p>The unexplained possession of recently stolen property is sufficient to warrant a conviction for receiving stolen goods. (State v. Weston, 9 Conn. 527, 25 Am. Dee. 46; State v. Raymond, 46 Conn. 345; Dmis v. State, 50 Mass. 86; Knickerbocker v. People, 43 N. T. 177; State v. Guild, 149 Mo. 370, 73 Am. St. 395, 50 S. ~W. 909; Goldstein v. People, 82 N. T. 231; Slater v. United States, 1 Okl. Cr. 275, 98 Pac. 110; Muggins v. People, 135 111. 243, 25 Am. St. 357, 25 N. E. 1002.)</p> <p>In Idaho, the possession of recently stolen property raises a presumption of guilt upon the part of the person in possession thereof, unless the circumstances are such as to show in themselves that such possession was innocent. (State v. Marquardsen, 7 Ida. 352, 62 Pac. 1034; State v. Sanford, 8 Ida. 187, 67 Pae. 492; State v. Seymour, 7 Ida. 257, 61 Pac. 1033.)</p>

Hon. John M.- Flynn, Judge. Action to recover the value of certain timber alleged to have been sold and delivered to the defendant. • Judgment for plaintiff.

Hon. W. W. Woods, Judge. Conyiction for the crime of grand larceny. Defendant appeals. Proof of handwriting by comparison with other handwriting not relevant to any issue, aside from similarity with that in question, is not permissible under the laws of Idaho. (Wharton’s Criminal Evidence, sec. 555; Castor v. Bernstein, 2 Cal.

Hon. Ed. L. Bryan, Judge. Application for a writ of mandate. Demurrer to defendant’s answer overruled. Plaintiff appeals. A board of 'county commissioners is a tribunal created by statute, with limited jurisdiction, and only gwasi-judicial powers, and cannot act except in strict accordance with the statute.

Hon. Robert N. Dunn, Judge. The defendant was charged with the crime of assault with intent to commit rape and convicted and sentenced to imprisonment for a term of not less than seven and not more than fourteen years. It was reversible error for the trial court to make the order for the exclusion of spectators during the trial. (People v. Yeager, 113 Mich. 228, 71 N. W. 491; People v. Murray, 89 Mich. 276, 28 Am.

<p>Action to Qüiet Tttle to Real Estate — Contract op Purchase— Payment in Instalments — Time of the Essence of the Contract — Forfeiture of Contract — Demurrer to Complaint — Answer and Cross-complaint — Motion to Strike — Judgment on Pleadings.</p> <p>1. Held, that tbe complaint states a cause of action, and that tbe allegations and denials contained in tbe amended answer and cross-complaint contain no defense to tbe action.</p> <p>2. Where S. and wife contract to purchase certain land from B. and to pay the purchase price in instalments at certain dates, and also agree to pay the taxes and assessments levied against said land and' time is expressly made of the essence of the contract, and S. and wife fail to make the payments as provided by the contract, and B. serves notice of forfeiture after a default in the payments, it is no defense to an action to quiet title and to .recover possession of the premises for the defendants to allege a defect in title and ask to have the money paid returned to them; and the vendor may rescind the contract for the failure to pay any of the instalments preceding the last without tender of the deed, since 'the payment of the last instalment and the delivery of the deed are mutual, concurrent and dependent obligations.</p> <p>3. Held, that the court did not err in entering judgment on the pleadings.</p>

Original application to this court for a writ of injunction to prohibit the board of county commissioners of Gooding county from issuing and selling certain county bonds for the funding or refunding of that portion of the indebtedness of Lincoln county which .was apportioned to Gooding county on the creation of the latter county.

Hon. Robert N. Dunn, Judge. Action in equity by the plaintiff corporation, the owner of certain booms and sorting works near the mouth of Coeur d’Alene river, to enjoin the defendant, also the owner of certain booms and sorting works at the mouth of said river, from maintaining and operating said booms and sorting works. Judgment was entered in favor of defendant, and from this judgment and an order overruling a motion for a new trial, plaintiff appealed.

Hon. Robert N. Dunn, Judge. Action in equity to enjoin the defendant company from in any manner interfering with the booms and sorting works of the plaintiff, at or near the mouth of the Coeur d’Alene river. Judgment for plaintiff. Defendant appeals.

<p>APPEAL from the District Court of the Fourth Judicial District for Blaine County. Hon. Edward A. Walters, Judge.</p> <p>Action by the state to recover on a surety company’s bond. Judgment for the plaintiff.</p> <p>When a citizen of another state files a petition and bond in due form and gives the required notice for the removal of a cause to the federal court on the ground of diversity of citizenship, the time within which defendant must plead further is governed by federal law. (Sec. 29, The Judicial Code.)</p> <p>The attempt of state courts to exercise jurisdiction over causes after the federal court assumed jurisdiction, or while the federal court has the question of its jurisdiction under consideration, has been condemned repeatedly by the higher courts. {Ches. & Ohio By. Co. v. McCabe, 213 U. S. 207, 29 Sup. Ct. 430, 53 L. ed. 766; Coeur d’Alene By. & Nav. Co. v. Spalding, 6 Ida. 97, 53 Pac. 107; Dillon, Removal of Causes, 5th ed., p. 158.)</p> <p>The petition for removal and the accompanying motion or application for an order of removal constitute appearance and pleading within the meaning and intent of the state law governing the authority of the clerk to enter default, and no default can be entered by the clerk until the petition has been finally denied or overruled. {Mattoon v. Rinkley, 33 111. 208; State v. Gittings, 35 Md. 169; Osprey v. Jenkins, 9 Mo. 643; Atchison T. & S. F. By. Co. v. Lambert, 31 Okl. 300, Ann. Cas.1913E, 329, 121 Pae. 654; 6 Ency. PI. & Pr. 93; 23 Cyc. 757.)</p> <p>The petition for removal is a plea to the jurisdiction of the court, and in overruling a petition or motion for the removal of a cause the rule of respondeat ouster obtains, and the order should be that defendant plead further within the time fixed by the court, and until the expiration of such time no default can be entered against defendant. {Kelly v. Van Austin, 17 •Cal. 564; Beinhart v. Lugo, 86 Cal. 395, 21 Am. St. 52, 24 Pac. 1089; 6 Ency. PI. & Pr. 80; 1 Black on Judgments, 2d ed., sec. 13; 1 Freeman on Judgments, 4th ed., sec. 7; Trow v. Messer, 32 N. H. 361; Cooke v. Crawford, 1 Tex. 9, 46 Am. Dec. 93; Bobb v. Parker, 4 Heisk. (Tenn.) 58; Kamp v. Bartlett, 164 111. App. 338.)</p> <p>A simple default should be vacated in furtherance of justice and on such terms as may be proper. {McFarlane v. Mc-Farlane, 45 Or. 360, 77 Pac. 837; Rail v. McCan, 62 Or. 556, 126 Pac. 5; Cutler v. Raycock, 32 Utah, 354, 90 Pac. 897; Melde v. Reynolds, 129 Cal. 308, 61 Pac. 932; Greene v. Montana Brewing Co., 32 Mont. 102, 79 Pac. 693; Staley v. O’Day, 22 Cal. App. 149,133 Pac. 620 ■ Douglas v. Badger State Mine, 41 Wash. 266, 83 Pac. 178, 4 L. R. A., N. S., 196.)</p> <p>The application for vacating the default entered against defendant shows both mistake, inadvertence, surprise and excusable neglect, and the trial court erroneously assumed it had no discretion in the matter. Statutes should be liberally construed with the view to determining causes on the merits. (Rev. Codes, secs. 4, 4225, 4226, 4228, 4229 and 4231; Shreve v. Cheesman, 69 Fed. 785, 16 C. C. A. 413; Flagg v. Puterbaugh, 98 Cal. 134, 32 Pac. 863; Smith v. Whittier, 95 Cal. 279, 30 Pac. 529; Wallace v. Okolona Savings’ Inst. Co., 49 Miss. 616, 620.)</p> <p>The cause was removable to the federal court, and an order should have been made transferring it. (Ex parte Nebraska, 209 U. S. 436, 28 Sup. Ct. 581, 52 L. ed. 876; Troy Bank v. Whitehead & Co., 222 U. S. 39, 32 Sup. Ct. 9, 56 L. ed. 81; Illinois Central B. Co. v. Adams, 180 U. S. 28, 21 Sup. Ct. 251, 45 L. ed. 410.)</p> <p>The liability of the surety on this bond does not extend to the general public depositing money in the banks of the state. (Ida. Rev. Codes, sees. 191, 194, 3000, 3001, 3003, 3005 and 3004.) Sec. 191, Rev. Codes, requires all damages against the bank commissioner to be adjudged against such bank commissioner before the surety of such commissioner can be held liable. (Umbreit v. American Bonding Co., 144 Wis. 611,129 N. W. 789; Western Assurance Co. v. Klein, 48 Neb. 904, 67 N. W. 873; Blaufus v. People, 69 N. Y. 107, 25 Am. Rep. 148; Webb v. Bidwell, 15 Minn. 484; United States v. Irwin, 127 U. S. 125, 8 Sup. Ct. 1033, 32 L. ed. 99; Sans v. City -of New York, 31 Misc. Rep. 559, 64 N. Y. Supp. 681; New Orleans Nat. Banking Assn. v. Adams, 3 Woods, 21, Fed. Cas. No. 10,184; Brownell v. Greenwich, 44 Hun (N. Y.), 611, 8 N. Y. St. Rep. 6; Wirt v. Peck, 184 Fed. 54, 107 C. C. A. 16; Tyler Min. Co. v. Last Chance Min. Co., 90 Fed. 15, 32 C. C. A. 498 ; Browning v. Porter, 12 Fed. 460, 2 McCrary, 581.) Sec. 3005 imposes unusually severe penalties on the commissioner if he proceeds against a bank without reasonable cause. In view of siich penalties a very strong showing should be required before any court would be justified in holding the commissioner liable for an abuse of discretion in failing to close a bank. (Peed v. Conway, 20 Mo. 22; Jenkins v. Waldron, 11 Johns. (N. Y.) 114, 6 Am. Dec. 359.)</p> <p>On official bonds there can be no liability and no recovery without malice alleged and proved. (Wheeler v. Patterson, 1 N. H. 88, 8 Am. Dec. 41; Weaver v. Devendorf, 3 Denio (N. Y.), 120; Wilson v. Mayor, 1 Denio (N. Y.), 599, 43 Am. Dec. 719; Venderheyden v. Young, 11 Johns. (N. Y.) 160; State v. Chadwicks, 10 Or. 465.)</p> <p>The duties of the bank commissioner under sec. 3005, Rev. Codes, are not ministerial. They are of a highly discretionary character. (State ex rel. Irvine v. Brooks, 14 Wyo. 393, 84 Pac. 488, 7 Ann. Cas. 1108, 6 L. R. A., N. S., 750.)</p> <p>The official is not liable in damages for either error of judgment, ineompetency or mistakes of law or fact. (Hoke v. Henderson, 15 N. C. 1, 25 Am. Dec. 677; Edwards v. United States, 103 U. S. 471, 26 L. ed. 314; United States v. McClane, 74 Fed. 153; Gould v. Hammond, 10 Fed. Cas. No. 5636; Pratt v. Gardner, 2 Cush. (Mass.) 63, 48 Am. Dee. 652; Stone v. Graves, 8 Mo. 148, 40 Am. Dec. 131; Rains v. Simpson, 50 Tex. 495, 32 Am. Rep. 609; Spalding v. Yilas, 161 U. S. 483, 16 Sup. Ct. 631, 40 L. ed. 780.)</p> <p>Default cannot be set aside by reason of mistake of law. (1 Black on Judgments, secs. 335, 340a; Freeman on Judgments, secs. 58; 508; 17 Am. & Eng. Ency. Law, 831, 833; 6 Ency. PI. & Pr. 167; 23 Cyc. 938, 939; Smith v. Pelton Water Wheel Co., 151 Cal. 394, 90 Pae. 934; Allen v. Continental Ins. Co., 97 111. App. 164; Keenan v. Daniells, 18 S. D. 102, 99 N. W. 853; Plano Mfg. Co. v. Murphy, 16 S. D. 380, 102 Am. St. 692, 92 N. W. 1072; McDaniels v. Bank of Rutland, 29 Yt. 230, 70 Am. Dec. 406, 412; Phifer v. Travelers’ Ins. Co., 123 N. C. 405, 31 S. E. 715.)</p> <p>There can be no relief against mistake of law. {Wilmer-ding v. Corbin Banking Co., 126 Ala. 268, 28 So. 640; Early v. Bard, 93 App. Div. 476, 87 N. Y. Supp. 650; City of Nobles-ville v. NoblesviUe Gas etc. Co., 157 Ind. 162, 60 N. E. 1032; Mouser v. Harmon,.96 Ky. 591, 29 S. W. 448; Cox v. Armstrong (Ky.), 43 S. W. 189; Mantle v. Casey, 31 Mont. 408, 78 Pae. 591; Donlan v. Thompson Falls Copper etc. Co., 42 Mont. 257, 112 Pac. 445; Willoburn Ranch Co. v. Yegen, 45 Mont. 254, 122 Pac. 915.) The early decisions of California, under a statute identical with ours, should be followed in construing the word “mistake” in see. 4229, Rev. Codes. (Chase v. Swain, 9 Cal. 130; People v. Rains, 23 Cal. 128.)</p> <p>This court in Morbeck v. Rradf ord-Kennedy Co., 19 Ida. 83, 113 Pac. 89, has passed upon this question of a “mistake of law” not being sufficient to set aside a default. (See, also, Donovan v. Miller, 12 Ida. 600, 88 Pac. 82, 10 Ann. Cas. 444, 9 L. R. A., N. S., 524.)</p> <p>Under sec. 4229, to set aside simple default, it is necessary to show mistake, inadvertence, surprise or excusable neglect.</p> <p>“If on the face of the record, including the petition for removal of a cause, the suit does not appear to be a removable one, the state court is not bound to surrender jurisdiction, but may proceed as if no application for removal had been made. ’ ’ {Missouri K. & T. Ry. Co. v. Chapp.ell, 206 Fed. 688; Phoenix Ins. Co. v. Pechner, 95 U. S. 183, 24 L. ed. 427; Yulee v. Vose, 99 U. S. 539, 25 L. ed. 355; Kern v. Huidekoper, 103 U. S. 485, 26 L. ed. 354; Gregory v. Hartley, 113 U. S. 742, 5 Sup. Ct. 743, 28 L. ed. 1150; Stone v. South Carolina, 117 U. S. 430, 6 Sup. Ct. 799, 29 L. ed. 962, 963; Crehore v. Ohio etc. Ry. Co., 131 U. S. 240, 9 Sup. Ct. 692, 33 L. ed. 144, 145; Chesapeake & O. Ry. Co. v. McCabe, 213 U. S. 207, 29 Sup. Ct. 430, 53 L. ed. 765; Springer v. Howes, 69 Fed. 849; Monroe v. Williamson, 81 Fed. 977, 984; Eisenmann v. Delemar’s Nevada Gold Min. Co., 87 Fed. 248; Fife v. Whittell, 102 Fed. 537; Dalton v. Milwaukee M. Ins. Co., 118 Fed. 881; McAlister v. Chesapeake & O. Ry. Co., 157 Fed. 740, 85 C. C. A. 316, 13 Ann. Cas. 1068; Phillips v. Western Terra Cotta Co., 174 Fed. 873; Mannington v. Hocking Val. Ry. Co., 183 Fed. 133; Stevenson v. Illinois Cent. R. Co., 192 Fed. 956; Hansford v. Stone-Ordeam-Wells Co., 201 Fed. 185; Texas & P. Ry. Co. v. McAllister, 59 Tex. 349; McWhinney v. Drinker, 64 Ind. 360; Illinois Cent. R. R. Co. v. Le Blanc, 74 Miss. 626, 21 So. 748; Hickman v. Missouri etc. Ry. Co., 151 Mo. 644, 52 S. W. 351; White v. Holt, 20 W. Ya. 792; Hayes v. Todd, 34 Fla. 233, 15 So. 752; Western Union Tel. Go. v. Griffith, 104 Ga. 56, 30 S. E. 420; Bixby v. Blair, 56 Iowa, 416, 9 N. W. 318; Stone v. Sargent, 129 Mass. 503, 510; Howard v. Southern By. Go., 122 N. C. 944, 29 S. E. 778; Hoiuard v. Stewart, 34 Neb. 765, 52 N. W. 714; Southern Pao. B. Co. v. Superior Court, 63 Cal. 607, 612; Knott v. McGilvray, 124 Cal. 128, 56 Pae. 789; Golden v. Northern Pac. By. Co., 39 Mont. 435, 104 Pae. 549, 18 Ann. Cas. 886, 34 L. R. A., N. S., 1154; Debnam v. Southern Bell Tel. etc. Co., 126 N. C. 831, 36 S. E. 269, 65 L. R. A. 915; Western Coal & Min. Co. v. Osborne, 30 Okl. 235, 119 Pae. 973; Chicago etc. By. Co. v. Brazzell, 33 Okl. 122, 124 Pae. 40; Black’s Dillon, Removal of Causes, secs. 190, 191; Faust on Federal Procedure, 579; Moon’s Removal of Causes, sec. 177; 2 Foster’s Fed. Prac., sec. 391; 2 Rose’s Code of Fed. Prac., sec. 1138 (e), (g); 10 Ency. of U. S. Sup. Ct. Reps. 704, 705; 18 Ency. PL & Pr. 338, 351; 34 Cyc. 1305, 1308; A Federal Equity Suit (Simkins), 806; Coeur d’Alene By. etc. Co. v. Spalding, 6 Ida. 97, 53 Pac. 107.)</p> <p>“If a litigant desires to have a cause removed from the state court to the United States court, he has the right to have it so removed if he has sufficient grounds therefor; but if he has not sufficient grounds, and undertakes to secure a removal and fails, he must take the consequences.” (Finney v. American Bonding Co., 13 Ida. 534, 90 Pac. 859, 91 Pac. 318; Mills v. American Bonding Co., 13 Ida. 556, 91 Pae. 381.)</p> <p>The rule under the cases cited by appellant, where individuals are sureties, does not apply to companies engaged in the surety business for hire. (23 Am. & Eng. Ann. Cas. 1087; Atlantic Trust etc. Co. v. Laurinburg, 163 Fed. 690, 90 C. C. A. 274; American Surely Co. v. Pauly, 170 U. S. 133, 18 Sup. Ct. 552, 42 L. ed. 977; Hull v. Massachusetts etc. Ins. Co., 86 Kan. 342, 120 Pae. 544; Btile v. Anderson, 160 Mo. App. 347, 142 S. W. 358.)</p> <p>“In an action on a joint and several bond, all or any of the sureties may be sued.” (State v. McDonald, 4 Ida. 468, 95 Am. St. 137, 40 Pac. 312.)</p> <p>The amendment to sec. 29 of the New Judicial Code does not contemplate that the state court must accept a petition for removal, sufficient or insufficient, but the procedure remains the same. (Goins v. Southern Pac. Co., 198 Fed. 432; Hans-ford v. Stone-Ordean-Wells Co., 201 Fed. 185; United States v. Sessions, 205 Fed. 502, 123 C. C. A. 570; Missouri K. & T. By. Co. v. Chappell, 206 Fed. 688; Poland v. Northwest S. Co., 209 Fed. 626; Wanner v. Bissinger & Co., 210 Fed. 96; Johnson v. Butte etc. Copper Co., 213 Fed. 910; 2 Foster’s Fed. Prac., p. 1829, note.)</p> <p>An individual has no right of action against a public officer for breach of duty owing to the public only, even though such individual is specially injured thereby. (Gorman v. Commissioners, 1 Ida.. 655; Worden v. Witt, 4 Ida. 404, 95 Am. St. 70, 39 Pac. 1114; People v. Hoag, 54 Colo. 542, 131 Pae. 400, 45 L. R. A., N. S., 824; Miller v. Ouray E. L. <& Power Co., 18 Colo. App. 131, 70 Pac. 447; Colorado Paving Co. v. Murphy, 78 Fed. 28, 23 C: C. A. 631, 37 L. R. A. 630; Byus v. Gruble, 31 Kan. 767, 3 Pac. 518; State v. Harris, 89 Ind. 363, 46 Am. Rep. 169; Moss v. Cummings, 44 Mich. 359, 6 N. W. 843; School District No. 80 v. Burress, 2 Neb. ÍJnof. 554, 89 N. W. 609; Board v. Bladen, 113 N. C. 379, 18 S. E. 661; Lowe v. Guthrie, 4 Okl. 287, 44 Pac. 198; Dysart v. Lurty, 3 Okl. 601, 41 Pac. 724; McPhee v. United States Fidelity etc. Co., 52 Wash. 154, 132 Am. St. 958, 100 Pac. 174, 21 L. R. A., N. S., 535; Foster v. Malberg, 119 Minn. 168, Ann. Cas. 1914A, 1116, 137 N. W. 816; Cottam v. Oregon City, 98 Fed. 570; South v. Maryland, 18 How. (H. S.) 396, 15 L. ed. 433.)</p>

<p>APPEAL from the District Court of the Sixth Judicial District, in and for the County of Bingham. Hon. J. M. Stevens, Judge.</p> <p>Suit to foreclose chattel mortgage. Judgment for plaintiffs.</p> <p>The registration act provides that the lease “must be filed of record in the same county recorder’s office or offices and within the same time and manner and for the same fee, as are chattel mortgages.”</p> <p>There is no statutory provision for filing foreign chattel mortgages when the chattels are subsequently brought into this state. The chattel mortgage registration acts apply only to property in Idaho when the mortgage is executed and have no extraterritorial effect. (Secs. 3406-3410, Rev. Codes.) By analogy, a foreign lease of animals, which are subsequently brought to this state, is not required to be placed of record in this state. (Shapard v. Hynes, 104 Fed. 449, 45 C. C. A. 271, 52 L. R. A. 675; Creelman Lumber Co. v. Lesh, 73 Ark. 16, 83 S. W. 320, 3 Ann. Cas. 108; Greenville Nat. Bank v. Evans-Snider-Buel Co., 9 Okl. 353, 60 Pac. 249.)</p> <p>“The statutes of one state requiring mortgages and other instruments dealing with personal property to be recorded in the town or county where the mortgagor resides do not apply to mortgages made in another state where the parties and the property are at the time. The lex loci contractus governs.” (24 Am. & Eng. Ency. Law, 2d ed., 94; Pyeatt v. Powell, 51 Fed. 551, 2 C. C. A. 367.)</p> <p>The person who has the possession and control of a chattel and the person in possession and control of an article of personal property and who holds himself out as the owner thereof, is presumed to be the owner. (29 Cye. 1550; Keith v. Maguire, 170 Mass. 210, 48 N. E. 1090; Hornbein v. Blanchard, 4 Colo. App. 92, 35 Pac. 187.)</p> <p>The leases in question should have been recorded within a reasonable time after the statute in question, to wit, sec. 1263, Rev. Codes, went into effect. (Moline Plow Co. v. Witham, 52 Kan. 185, 34 Pac. 751.) By comity between the states, mortgaged property being removed from one state to another and the mortgage not recorded in the latter state, the mortgagor is permitted to retain possession under the terms of the mortgage, but such comity should not be extended to cases wherein it appears that the mortgagee consented to such removal. (Newsum v. Hoffman, 124 Tenn. 369, 137 S. "W. 490; Snyder v. Yates, 112 Tenn. 309, 105 Am. St. 941, 79 S. W. 796, 64 L. R. A. 353; Greene v. Bentley, 114 Fed. 112, 52 C. C. A. 60; Dawes v. Rosenbaum, 179 111. 112, 53 N. E. 585.)</p> <p>Where a true owner of property holds out another, or allows him to appear as the owner of or as having full power of disposition over the property, and innocent third parties are thus led into dealing with such apparent owner, or person having such apparent power of disposition, they will be protected. (16 Cyc. 773, 774; Anderson v. Armstead, 69 111. 452; Wells v. Higgins, 1 Litt. (Ky.) 299, 13 Am. Dec. 235; Craig v. Turley, 86 Ky. 636, 6 S. W. 648; Wilson v. Scott, 13 Ky. Law Rep. 926; Hostler v. Hays, 3 Cal. 302; B. F. Avery & Sons v. Collins (Tex. Civ. App.), 131 S. W. 426.)</p>

<p>Chattel Mortgages — Description op Property — Appidavit op Good Paith — Possession op Property — Presumption op Ownership.</p> <p>1. Personal property described in a chattel mortgage as “1333 early spring lambs, branded 0 — ” is a sufficient description as between the mortgagor and the mortgagee.</p> <p>2. A chattel mortgage, although not accompanied by an affidavit that it is executed in good faith and without, any design to hinder, delay or defraud creditors, is valid as between the mortgagor and the mortgagee.</p> <p>3. Possession of personal property is prima facie evidence of ownership.</p> <p>4. .The evidence in this case examined and the conclusion reached that the trial court was justified in finding that the presumption of ownership created by the possession of the property, under the faets and circumstances in this case, is not overcome by the testimony introduced to rebut it.</p>

District Court of the Third Judicial District, in and for Ada County. Hon. Chas. P. McCarthy, Judge. Action to recover on a promissory note. Attachment issued and the court refused to discharge the attachment. No attachment can be issued against a domestic corporation in an action on a secured debt, and, therefore, if foreign ■corporations have the same rights and privileges, and are subject to like laws, no attachment can be issued against them in such cases.

<p>APPEAL from the District Court of the Third Judicial District for Ada County. Hon. Charles P. McCarthy, Judge.</p> <p>Action to recover on a policy of insurance. Judgment of nonsuit for the defendant.</p> <p>. The rule of law which governs on a motion for nonsuit is clearly laid down by this court in Later v. Maywood, 12 Ida. 78, 85 Pac. 494, and Bank of Commerce v. Baldwin, 12 Ida. 202, 85 Pac. 497, to the effect that such a motion admits the existence of every fact in favor of the plaintiff which the evidence tends to prove or which could be gathered from any reasonable view of the evidence. (See, also, Shank v. Great Shoshone & Twin Falls Water Power Co., 205 Fed. 836, 124 C. C. A. 35; Culver v. EeM, 21 Ida. 596, 123 Pac. 301; Allen v. Phoenix Assur. Co., 12 Ida. 653, 88 Pac. 245, 10 Ann. Cas. 328, 8 L. R. A., N. S., 903; Pratt v. Dwelling-Mouse Fire Ins. Co., 130 N. Y. 206, 29 N. E. 118.)</p> <p>An agreement to renew insurance in force is presumed to have reference to the terms and conditions of the existing policy. (19 Cyc. 630, and cases cited in note 33.)</p> <p>Where plaintiff’s last insurance was had with the defendant insurance company through the same agent, the word “renew” in an oral contract with such agent to renew the insurance sufficiently designates the company, as well as the property to be insured, and the terms of the policy. (Abel v. Phoenix Ins. Co., 62 N. Y. Supp. 218, 219, 47 App. Div. 81.)</p> <p>In the following cases there was less evidence than in the case at bar to show a contract of insurance, and in all of them the court held that the question was one for the jury to determine: Smith v. Provident Sav. Life Assur. Soc., 65 Fed. 765, 13 C. C. A. 284; Dove v. Boyal Ins. Co., 98 Mich. 122, 57 N. W. 30; Bowman v. Agricultural Ins. Co., 59 N. Y. 521; Church v. La Fayette Fire Ins. Co., 66 N. Y. 222; Welsh v. Continental Ins. Co., 47 Hun (N. Y.), 598; Mardwick v. State Ins. Co., 23 Or. 290, 21 Am. St. 879, 31 Pae. 656; Long v. North British & M. F. Ins. Go'., 137 Pa. 335, 21 Am. St. 879, 20 Atl. 1014; Latimore v. Dwelling-Mouse Ins. Co., 153 Pa. 324, 25 Atl. 757; Ñute v. Martford Fire Ins. Co., 109 Mo. App. 585, 83 S. W. 83; Gerib v. International Ins. Co:, 1 Dill. 443, Fed. Cas. No. 5298; Forehand v. Niagara Ins. Co., 58 111. App. 161; Phoenix Ins. Co. v. Coffman, 10 Tex. Civ. App. 631, 32 S. W. 810.</p> <p>In Marysville Merc. Co. v. Home Fire Ins. Co., 21 Ida. 383, 121 Pae. 1026, the facts are in many respects like the case at bar, and what was said with reference to the agent Kruger in that case applies with equal force to Gardner in this case.</p> <p>The insurance policy sued upon was properly excluded from evidence, for the reason that appellant'failed to show that there was a contract of insurance at the time oí the fire. (Joyce on Insurance, secs. 41, 1459; Kerr on Insurance, sec. 49, p. 107; 2 Clement on Fire Insurance, p. 522; Wood on Insurance, 2d ed., sees. 5, 6, 15.)</p> <p>“An oral agreement between plaintiff and defendant’s agent in regard to renewing a policy of fire insurance in which the amount of the policy to be taken is not fixed does not constitute a binding contract.” (Safer v. Henry County Farmers’ Mut. Fire Ins. Co., 92 Iowa, 579, 61 N. W. 209; Michigan Pipe Co. v. Michigan Fire <& Marine Ins. Co., 92 Mich. 482, 52 N. W. 1070, 20 L. R. A. 277.)</p> <p>A parol contract of renewal cannot be established by mere negotiation. The minds of the parties must have met upon terms well agreed upon without anything being left for future determination. (2 Clement on Fire Ins., p. 522; Zigler v. Phoenix Ins. Co., 82 Iowa, 569, 48 N. W. 987; O’Beilley v. Corporation of London Ins. Co., 101, N. T. 575, 5 N. E. 568; Healey v. Imperial Ins. Co., 5 Nev. 268.)</p> <p>Where at the time of the fire the policy has not been delivered, although written, the contract is prima facie incomplete, and the burden is upon the insured to show there was a valid, binding agreement of insurance prior to the fire. (Ogle Lake Shingle Co. v. National Lumber Ins. Co., 68 Wash. 185, 122 Pac. 990; Stephens v. Capital Ins. Co., 87 Iowa, 283, 54 N. W. 140; Davis Lumber Co. v. Scottish Union & Nat. Ins. Co., 94 Wis. 472, 69 N. W. 156; Ferguson v. Northern Ins. Co., 26 S. D. 346, 128 N. W. 125; New York Lumber etc. Co., v. People’s Fire Ins. Co., 96 Mich. 20, 55 N. W. 434; Hartford Fire Ins. Co. v. Whitman, 75 Ohio St. 312, 79 N. E. 459, 9 Ann. Cas. 218 ; Stebbins v. Lancashire, 60 N. H. 65.)</p>

<p>APPEAL from the District Court of the Seventh Judicial District for the County of Adams. Hon. Ed. L. Bryan, Judge.</p> <p>Suit to vacate and set aside judgment and to quiet title. Judgment for defendant.</p> <p>The stipulation filed by appellant and respondent was a voluntary appearance within the purview of sec. 4149, Rev. Codes, and had the jurisdictional effect of an answer or demurrer. (Cooper v. Gordon, 125 Cal. 296, 301, 57 Pae. 1006.)</p> <p>Powers conferred on a court cannot be exercised by a judge in vacation, even by consent of parties, unless a statute so provides. (23 Cye. 545; Bates v. Gage, 40 Cal. 183; Wicks v. Ludwig, 9 Cal. 173.)</p> <p>The omission of any prayer for relief is not a fatal defect. (Sannoner v. Jacobson, 47 Ark. 31, 14 S. W. 458; Parker v. Norfolk etc. B. Co., 119 N. C. 677, 25 S. E. 722; Iowa County v. Mineral Point By. Co., 24 Wis. 93.)</p> <p>The prayer for relief is no portion of the statement of facts constituting a cause of action. The entire omission of any demand for judgment does not subject the complaint to a general demurrer. (Pox v. Graves, 46 Neb. 812, 65 N. W. 887; Culver v. Bodgers, 33 Ohio St. 537, 546.)</p> <p>"If the facts stated in the complaint are established by the evidence and show that the plaintiff is entitled to any relief, the court may grant him such relief, although not prayed for.” (Anderson v. War Eagle Consol. Min. Co., 8 Ida. 789, 72 Pac. 671Presson v. Boone, 108 N. C. 78,12 S. E. 897.)</p> <p>The want of a special or general prayer is not a defect involving the power or jurisdiction of a court to render a decree. (Evans v. Schafer, 119 Ind. 49, 21 N. E. 448; Baxter v. Knoxville First Nat. Bank, 85 Tenn. 33,1 S. W. 501.)</p>

<p>Jury — Opening and Closing Argument to — -Promissory Notes — Alteration of — Collateral Security — Conversion op by Agent— Negligence op Pledgee — Instructions—Admission and Rejection op Evidence — Directed Verdict.</p> <p>1. The order of trial in a civil case is provided by see. 4383, Rev. Codes, and directs that the trial must proceed in the order - there indicated, unless the judge, for special reasons, otherwise directs, and where an action is brought on promissory notes and the respondent admits the execution of such notes but makes special defenses thereto, it rests in the sound discretion of the trial court to direct the order of addressing the jury, and unless there is a clear abuse of discretion, this court will not disturb the verdict.</p> <p>2. Where a note appears to have been altered in a material respect, the onus is on the party seeking to enforce the payment to show that it is not void, but where the respondent in his answer and counterclaim, in express terms, admits the execution and delivery of the notes, whieh are set out in full in the complaint, and when introduced in evidence, are in the same condition as they appeared in the complaint, the respondent should not be permitted to introduce evidence tending to establish any alteration, nor should the court instruct the jury upon the law governing the alteration of written instruments.</p> <p>3. Where the notes are set out in the complaint and when introduced in evidence, are in the same condition as they appear irf the complaint, and respondent admits in express terms the execution and delivery of the notes, it will be presumed that any alteration was made prior to the execution of the notes.</p> <p>4. Where a party by conduct has intimated that he consents to an act which has been done or will offer no opposition thereto, though it could not have been lawfully done without his consent, and he thereby induces others to do that from which they otherwise might have abstained, he cannot question the legality of the action to the prejudice of those who have acted on the fair inference to be drawn from his conduct.</p> <p>5. A pledgee must exercise ordinary and reasonable diligence to secure the fruits of the collateral, but he is held to no greater degree of diligence, and extraordinary care and efforts in the collection of the collaterals are not necessary.</p> <p>6. Where a person is jointly agreed upon by the pledgor and pledgee to make collection of collateral notes, he becomes the representative of both parties and neither can charge the other with negligence.</p> <p>7. Refusal to give certain instructions requested by appellant, held to be error.</p> <p>8. Held, that it was error to reject certain evidence offered by appellant.</p> <p>9. The admission of certain evidence over the objection of the appellant, held to be error.</p> <p>10. Where a party is entitled to have a verdict directed in his favor at the close of the evidence and the ease is reversed on his appeal, a new trial will not be ordered. The case will be remanded, with instructions that judgment be entered in his favor.</p>

Hon. Edgar C. Steele, Judge. Prosecution for statutory rape. Conviction and sentence of defendant.

<p>Assault With Intent to Commit Rape — Sufficiency of Evidence — • Alibi — Admissibility of Evidence — Withdrawal of Objection to Question.</p> <p>1. The evidence in this case examined and found to be sufficient to justify the conviction of the defendant of the crime charged.</p> <p>2. Where the evidence adduced by the state tends to show that a crime was committed during a two weeks’ vacation in sehool at the Christmas holiday season and does not fix the date more definitely than that, and where the defendant relies upon an alibi and produces evidence tending to show his whereabouts from Dec. 24th to Jan. 1st, inclusive, and that he was not at the place where the evidence produced by the state tends to show the crime was committed, but produces no evidence tending to show his whereabouts during the remainder of the two weeks in question, the jury is justified in reaching the conclusion that the alibi relied on was not established.</p> <p>3. Where there is a substantial conflict in the evidence ahd the evidence taken as a whole is sufficient to sustain the verdict, the verdiet will not be disturbed.</p> <p>4. Where a party to an action does not objeet to a question propounded to a witness, or having objected, expressly gives consent that the question may be answered, error cannot be predicated upon the action of the eourt in admitting the testimony nor upon the refusal of the court to strike out the answer if it is responsive to the question.</p>

<p>Patent from United States — Land Bordering Navigable Streams— Title Extending to Natural High-water Line Only — Ownership in and to Bed of Lakes and Navigable Rivers — Islands not Passing to State — Use of Navigable Streams for Benefit of Public as Highways — Judgment of Nonsuit, Affirmed.</p> <p>1. A patent from the United States for land bordering on a navigable lake or stream extends no farther than the natural high-water line.</p> <p>2. When lands border on a stream, the banks of which are both well-defined and where the stream separates at the head of an island into distinct channels constituting a well-defined stream on either side, the boundary line of the land granted extends only to the natural high-water mark.</p> <p>3. Where there is no evidence offered at the trial, as in this ease, which establishes or tends to establish the fact that the island in controversy was at any time attached to or a part of lots bounded by a stream, it was not error for the court'to grant a nonsuit.</p> <p>4. The United States, since the admission of Idaho to statehood, ihas the power to dispose of subdivisions or fractional subdivisions of public lands consisting of islands that existed in the territory of Idaho prior to its admission as a state.</p> <p>5. Islands in existence when Idaho was admitted to the Union did not pass to the state or come within the disposing influences of its laws, but remained the property of the United States subject •to disposal by it.</p> <p>6. It is the settled law of this state that no title to islands, lakes or the beds of streams passes to the patentees of the United •States by the sale of border lots; that the state holds the title to the beds of navigable lakes and streams below the natural high-water mark, for the use and benefit of the whole people, subject to the rights vested by the constitution in the United States.</p> <p>7. The Salmon river is a navigable stream, and' is therefore a public highway belonging to the state.</p> <p>8. Since statehood the state holds the title to the beds of all navigable lakes and streams, subject to the rights of the general government to regulate commerce, and the right by the public to the use of the same as public highways over which every citizen has a natural right to carry commerce, whether by ships, boats, the floating of logs or lumber, having due consideration and reasonable care for the rights of individuals as well as the public in the common use of such public highways.</p> <p>9. The cases of Johnson v. .Hurst, 10 Ida. 308, 77 Pae. 785, Lattig v. Scott, 17 Ida. 506, 107 Pae. 47, Johnson, v. Johnson, 14 Ida. 561, 95 Pac. 499, 24 L. E. A., N. S., 1240, and Ulbright v. Bas-Ungton, 20 Ida. 539, 119 Pac. 292, 294, are hereby overruled in so far as they conflict with this opinion.</p>

<p>APPEAL from the District Court of the Seventh Judicial District for Canyon County. Hon. Ed. L. Bryan, Judge.</p> <p>Action to recover on a bond given by a drug company for the observance of the laws of the state in the sale of intoxicating liquors. Judgment for the defendant.</p> <p>Statutes should be construed so as to render them valid and give them force and effect. (36 Cyc. 1111 (e), notes 74 and 75.)</p> <p>Particular expressions in one part of a statute, not so large and extensive in import as other expressions in the same statute will yield to the larger and more extensive expression when the latter embodies the real intent of the legislature. (36 Cyc., p. 1131, note 70.)</p> <p>The title of chapter 27 is an aid in determining the intent of the legislature. (36 Cyc., p. 1133 (f); State v. Paulsen, 21 Ida. 686, 694, 123 Pac. 588.)</p> <p>Construction leading to absurdity, injustice or contradiction is to be avoided in interpreting statutes. (Chandler v. Lee, 1 Ida. 349; Ex pcurte Ellis, 11 Cal. 223; Knowles v. Yeates, 31 Cal. 82; Greathouse v. Heed, 1 Ida. 494; Biggs v. Palmer, 115 N. T. 506,12 Am. St. 819, 22 N. E. 188, 5 L. R. A. 343.)</p> <p>Sections of statutes should be construed with reference to the purposes and policy of the act and the object intended to be accomplished. (36 Cyc. 1110 (d).)</p>

Hon. Edward A. Walters, Judge. Action in ejectment to recover possession of lot 9 and the west half of lot 10, block 21, Hammer’s addition to the village of Glenns Ferry. Judgment for the defendant.

Hon. Carl A. Davis, Judge. Petition for writ of habeas corpus. Petition granted. In the ease of Achenbach v. Kincaid, 25 Ida. 768, 140 Pac. 529, this court has held that every intendment shall be in favor of the constitutionality of the act in question.

<p>Political Corporation — State, County, Municipal Officers — Prosecution or Defense of Suits in Official Capacity — Undertakings on Appeal — Transcripts Served on Adverse Party — Proof of Service of Transcript — Clerk’s Certificate Insufficient— Motion to Dismiss Appeal Sustained.</p> <p>1. See. 4935, Rev. Codes, which provides that “In any civil action or proceeding wherein the state or the people of the state, is a party plaintiff, or any state officer, in his official capacity, or on behalf of the state, or any eounty, or city, is a party plaintiff or defendant, no bond, written undertaking, or security can be required of the state, or the people thereof, or any officer thereof, or of any county, or city; but on complying with the other provisions of this code, the state, or the people thereof, or any state officer acting in his official capacity, or any county or city, have the same rights, remedies and benefits as if the bond, undertaking or security were given and approved as required by this code,” applies to county treasurers and ex-officio tax collectors in prosecuting an action for and on behalf of a rural high school district; said rural high school district being a political corporation of the state.</p> <p>2. Whenever an action is brought by or against state, county or municipal officers, and such officers prosecute or defend in said action in their official capacity, acting for or defending the rights of the state, county or municipality, or any legal subdivision thereof, they are permitted to so act without furnishing costs or undertakings on appeal. (Sec. 4935, supra.)</p> <p>3. In all cases where an appeal is perfected, a transcript of the record must be served upon the adverse party and filed in this court within sixty days after the appeal is perfected, unless an extension of time be granted; otherwise the appeal will be dismissed.</p> <p>4. Where it appears from the record on appeal that the transcript was not served upon the adverse party and a motion is made in this court to dismiss the appeal for that reason, and where an affidavit by counsel for appellant, attempting to .show service, but uncertain and indefinite in its terms, is filed subsequent to the hearing of the motion to dismiss the appeal, it will not be considered by the court as sufficient proof of service of the transcript and the motion to dismiss will be allowed.</p> <p>5. Upon an appeal from a judgment, the clerk is required to furnish the court with a copy of the notice of appeal, the judgment-roll and any bill of exceptions or reporter’s transcript. Where the clerk certifies that the transcript of the proceedings in the trial court “contains all the papers specified in the praecipe filed with me,” said certificate is insufficient.</p>

<p>APPEAL from the District Court of the Fifth Judicial District for Bannock County. Hon. J. M. Stevens, Presiding Judge.</p> <p>Action for injury tó hay crop by flooding land with waste water. Verdict and judgment for plaintiff. Defendant appeals.</p> <p>In actions at law, as distinguished from equity, independent tort-feasors, the act of each of whom alone would have caused some damage, are not liable jointly, but each is liable severally only for the proportion of the damage caused by him. (Watson v. Colusa etc. Min. Co., 31 Mont. 513, 79 Pac. 14; Equitable Powder Mfg. Co. v. Cleveland etc. B. Co., 155 111. App. 265, and affirmed in 246 111. 582, 92 N. E. 979; 2 Farnham on Waters, p. 1716; Sun Company v. Wyatt, 48 Tex. Civ. App. 349, 107 S. W. 934; Willard v. Bedbank Oil Co., 151 111. App. 433; Pacific Livestock Co. v. Murray, 45 Or. 103, 76 Pac. 1079.)</p> <p>An irrigation company cannot collect natural drainage waters and pour them in one volume on lands of another so as to increase the damage above that which would have resulted from the usual and ordinary flow of such waters. (Teeter v. Nampa etc. Irr. Dist., 19 Ida. 355, 114 Pac. 8.)</p>

Hon. Ed. L. Bryan, Judge. Action to test the validity of a contract for the construction of sidewalks and curbs in an Improvement District of the City of Payette. Judgment for the defendant.