Volume 28 — Idaho Reports

<p>APPEAL from the District Court of the Fourth Judicial District for Gooding County. Hon. Edward A. Walters, Judge.</p> <p>Action to recover damages for loss of certain crops. Judgment for plaintiff.</p> <p>The fact that the company put a check in later on as a part settlement of another claim could not be introduced in evidence in this case. (Holt v. Spokane etc. Ry. Co., 3 Ida. 703, 35 Pac. 39.)</p> <p>That plaintiff could have built a substantial check for a reasonable amount is clear, and in such case he cannot recover damages for consequences which were avoidable by him. (Sedgwick on Damages, secs. 201, 202; Warren v. Stoddart, 105 U. ' S. 224, 26 L. ed. 1117.)</p> <p>The court should have limited the damages to the value at the time of destruction. The instruction and ruling of the court upon the testimony was therefore erroneous. (Hanes v. Idaho Irr. Co., 21 Ida 512, 122 Pac. 859.)</p> <p>For injury during that portion of the season in which it is possible to reproduce the crop, the cost of replacement is the proper measure of damages. (Sutherland on Damages, p. 3001.)</p> <p>After there is a crop in existence, the measure of damages is the value of the crop at the time of the injury or destruction. (Iiisse v. Collins, 12 Ida. 089, 87 Pac. 1006; Lowe v. Yolo County Consol. Water Go., 157 Cal. 503, 108 Pac. 297.)</p> <p>If it was our duty to put in the ditch and we failed to do so, the settler could not sit by and suffer the loss of a $3,000 crop for the want of a $50 check, and if he was required to put in a check which it was our duty to put in, the measure of damages is the cost of the check. (Sedgwick on Damages, secs. 212-b and 21A-b.)</p> <p>The contract should be given a reasonable construction. The word “available” in the construction company’s contract means obtainable in a practical sense. (9 Cyc. 587.)</p> <p>The following authorities sustain the instructions regarding measure of damages: Montgomery v. Locke, 72 Cal. 75, 13 Pac. 401; Missouri K. & T. By. Co. v. Lycan, 57 Kan. 635, 47 Pac. 526; Kansas City etc. By. Co. v. Perry, 65 Kan. 792, 70 Pac. 876; Atchison etc. By. Co. v. Geiser, 68 Kan. 281, 75 Pac. 68, 1 Ann. Cas. 812; Mogallon G. & C. Co. v. Stout, 14 N. M. 245, 91 Pae. 724; Waldteufel v. Vineyard Co., 6 Cal. App. 624, 92 Pae. 747; Bowe v. Chicago & N. By. Co., 102 Iowa, 286, 71 N. W. 409; White v. Chicago etc. By. Co., 1 S. D. 326, 47 N. W. 146, 9 L. R. A. 824; Garner v. Chicago etc. By. Co., 43 Minn. 375, 45 N. W. 713.</p>

<p>Judgments and Decrees — Clerical Mistakes and Errors Therein— Amendments and Corrections.</p> <p>1. Where, through mistake, there has been a failure to enter the judgment pronounced, the court has power to correct the matter and to order the proper entry made. Clerical mistakes can be corrected in this manner, but judicial errors can only be remedied by motion for a new trial or'upon appeal.</p> <p>[As to amendment of judgment or record, see notes in 62 Am. St. 233; Ann. Cas. 1914A, 605. As to amendment by mmo pro tunc order, see note in Ann. Cas. 1915A, 522.]</p> <p>Generally on amendment of record to cure defeet for which'motion in arrest has been made, see note in 67 L. E. A. 179.</p>

Hon. Edward A. Walters, Judge. Action to recover the amount represented by an accident policy because of the death of the insured. Judgment for the plaintiff. The case having been submitted upon an agreed statement of facts, it was unnecessary for the court to make findings. (Gregory v. Gregory, 102 Cal. 50, 36 Pac. 364; McMenomy v. White, 115 Cal. 339, 47 Pac. 109.) There being no proof to support the findings made, the judgment should be reversed. (Idaho Placer Min.

<p>Application for a writ of mandate to compel the treasurer of Lincoln county to receive the proportionate part of the bonded indebtedness of Minidoka county that was apportioned to it under the provisions of the act creating Minidoka county, with interest accrued to September 1,1915, and before said bonds became due and payable.</p> <p>Sec. 6 of the act creating Minidoka county in effect provides that Minidoka county is liable in praesenti to the old (Lincoln) county for its share of the debt, though part of the debt is not due. (Board of Commrs. of Cheyenne County v. Board of Commrs. of Bent County, 15 Colo. 320, 25 Pac. 508.) See. 10 of said act is practically identical with part-of the act creating Gooding county (sec. 10, chap. 4, Laws 1913), and that section was construed by the supreme court of Idaho in the case of Frazier v. Hastings, 26 Ida. 623, 144 Pac. 1122, to mean that the new county had the right to issue funding bonds for the purpose of taking up and paying the bonded indebtedness apportioned to the new county and belonging to the county out of which the new county was created. The right of a new county to issue bonds to provide funds with which to discharge the bonded indebtedness assumed by it was specifically recognized by this court in the case recently decided of Jones v. Power County, 27 Ida. 656, 150 Pac. 35.</p> <p>A new county created from territory of another county is not liable for interest on its assumed bonded indebtedness to such county in the absence of express legislation to the contrary. (Beals v. Board of Supervisors of Amador County, 28 Cal. 449; Tulare County v. Kings County, 117 Cal. 195, 49 Pac. 8; Holliday v. Sweet Grass County, 19 Mont. 364, 48 Pac. 553.)</p> <p>A bond cannot be paid before maturity without the consent of the payee. (Davis v. County of Yuba, 75 Cal. 452, 13 Pac. 874, 17 Pac. 533.)</p> <p>The respondents have no authority to accept the amount tendered, for the reason that they would by accepting the same increase the amount of the indebtedness of Lincoln county in violation of House Bill No. 180, Sess. Laws of 1915, at p. 71.</p> <p>Lincoln county is not by law authorized to accept money from Minidoka county for payment of bonds before the maturity thereof. “Actions in contract may be maintained only in accordance with the rights of the parties as shown by the contract.” '(1 Corpus Juris, 951; 1 Cye. 739.)</p>

<p>Surveys — Boundary Lines — Acquiescence—Occupancy.</p> <p>1. When a surveyor is called upon to locate government corners and lines, he is not employed as an arbiter of disputes between adjoining land owners, neither is it his province to correct mistakes in the original survey. It is his duty to locate the corners and lines as formerly established.</p> <p>[As to evidence of lost corners, see note in 22 Am. St. 85.]</p> <p>2. Held, that acquiescence, for a period of about two years, in a boundary line established by an erroneous survey does not make the line so established binding or conclusive upon owners of lands abutting thereon.</p> <p>[As to adverse possession as arising from possession by mistake of one intending to claim only to true boundary, see note in Ann. Cas. 1912A, 450.]</p>

Honorable C. O. Stoekslager, Judge. Action to recover under see. 2819, Rev. Codes, double damages for animals killed by railroad company. Judgment for plaintiff. Sec. 2819, Rev. Codes, is unconstitutional in that it establishes a rule of absolute liability for twice the value of the animals regardless of any question as to negligence, contributory negligence or the circumstances of the killing. (Jollijfe v. Brou/n, 14 Wash. 155, 53 Am.

Hon. Charles P. McCarthy, Judge. Aetion to quiet title to certain mining ground. Judgment for defendants. This is an action to quiet title to mining ground, and should be treated as such, without regard to the patent regulations of the United States and without regard to the proceedings in the United States land office.

Hon. J. M. Stevens, Judge. Action to recover damages for libel. Judgment for defendants. Sec. 4439, Rev. Codes, provides, among other things, that when any one or more of the jurors rendering a verdict has been induced to consent to sueh verdict by a resort to the determination of chance, such consent vitiates the verdict, and that sueh fact may be proven by the affidavit of any one of the jurors. (King v. Elton, 2 Cal.

<p>APPEAL from the District Court of the Seventh Judicial District, in and for Canyon County. Hon. Ed. L. Bryan, Judge.</p> <p>Action to enjoin the defendants from having sold at sheriff’s sale certain lands claimed by the appellant. Judgment for plaintiff.</p> <p>The written documents or papers were the best evidence. (Keane v. Pittsburg L. Min. Co., 17 Ida. 179, 105 Pac. 60.)</p> <p>“All evidence which shows upon its face that better remains behind is secondary.” (17 Cyc. 465, and numerous citations.)</p> <p>The burden was upon the respondents (husband and wife) to, establish the good faith of the transaction between them. (Bates v. Drake, 28 Wash. 447, 68 Pac. 961.)</p> <p>The wife must show that the property was purchased by her out of her separate estate. (20 Cyc. 604; Robson v. Hamilton, 41 Or. 239, 69 Pac. 654.)</p> <p>And such proof must be “clear, convincing and satisfactory.” (Mendenhall v. Elwert, 36 Or. 375, 52 Pac. 22, 59 Pac. 805, and cases cited; Kalinowski v. McNeny, 68 Wash. 681, 123 Pac. 1074.)</p> <p>“If a wife allows her husband to retain the title of property to which she is entitled, and to use it to obtain credit, she is estopped to claim the property as against a creditor who extended credit to him under the belief that the property was his.” (David Actler & Sons Clothing Co. v. Heilman, 55 Neb. 266, 75 N. W. 877; Marysville Inv. Co. v. Hollé, 5 Kan. App. 408, 49 Pac. 332; Holland v. Jones, 48 S. C. 267, 26 S. E. 606; Iseminger v. Criswell, 98 Iowa, 382, 67 N. W. 289; Peabody v. Lloyds Bankers, 6 N. D. 27, 68 N. W. 92; Kalinowski v. McNeny, supra; Bigelow on Estoppel, 6th ed., 607, 608; First National Bank v. Kissare, 22-Okl. 545, 132 Am. St. 644, 98 Pac. 433; McNeil v. Tenth Nat. Bank, 46 N. T. 325, 7 Am. Bep. 341.)</p> <p>Whenever property is acquired by the husband under an express trust for the benefit of his wife, or upon his agree■ment to hold the same in trust for her, the property will generally become her separate estate. (21 Cyc. 1383; Goldsberry v. Gentry, 92 Ind. 193.)</p> <p>Where the title to land bought by the husband with his wife’s money is taken by the husband under an oral agreement to hold in trust for her, the trust is valid. (Garner v. Second National Bank, 151U. S. 420,14 Sup. Ct. 390, 38 L. ed. 218; Stickney v. Stickney, 131 U. S. 227, 238, 9 Sup. Ct. 677, 33 L. ed. 136.)</p> <p>Purchases made with the proceeds of the wife’s separate estate become her separate property, and it is immaterial that the conveyance is to the husband. (21 Cyc. 1389.)</p> <p>“An essential attribute of the wife’s separate estate is, that it is not liable for the husband’s debts, and she is entitled in equity, to relief by injunction against the levy of an execution thereon by his creditors.’’ (21 Cyc. 1439.)</p> <p>If a debtor holds the bare legal title to property for another and has no beneficial interest therein, it cannot, in the absence of elements of estoppel, be reached and subjected to the payment of his debts, and therefore a conveyance thereof by him to the equitable owner is not fraudulent as against his creditors. (20 Cyc. 370, and cases cited in note 20; Goldsmith v. Fuller, 30 Neb. 563, 46 N. W. 712.)</p>

<p>APPEAL from the District Court of the Fourth Judicial District for Elmore County. Hon. Edward A. Walters, Judge.</p> <p>Action for damages. Judgment for defendant.</p> <p>It is a general rule of evidence that medical boobs are not admissible in evidence, except after a medical expert has referred to a particular medical work to sustain his opinion, in which case only such work may be admitted to contradict him in that opinion. (Gallagher v. Market St. By. Go., 67 Cal. 13, 56 Am. Rep. 713, 6 Pac. 869.)</p> <p>It is not proper for counsel on cross-examination to call the attention of a medical witness, who has testified to his own opinions, to certain medical works and read from them, to contradict the witness’ testimony. (Hall v. Murdock, 114 Mich. 233, 72 N. W. 150; Knoll v. State, 55 Wis. 249, 42 Am. Rep. 704, 12 N. W. 369; Jones on Evidence, 2d ed., sec. 579; Marshall v. Brown, 50 Mich. 148, 15 N. W. 55; People v. Millard, 53 Mich. 63, 18 N. W. 562; Bloomington v. Schrock, 110 111. 219, 51 Am. Rep. 678; Lilley v. Parkinson, 91 Cal. .655, 27 Pac. 1091; Fisher v. Southern Pac. B. Go., 89 Cal. 399, 26 Pac. 894; Pahl v. Troy City B. Co., 81 App. Div. 308, 81 N. Y. Supp. 46; Matter v. Mason, 60 Him, 46, 14 N. Y. Supp. 434; State v. Coleman, 20 S. C. 441; Elliott v. Ferguson, 37 Tex. Civ. 40, 83 S. W. 56; St. Louis etc. B. Co. v. Jones (Tex.), 14 S. W. 309; Link v. Sheldon, 64 Hun, 632, 18 N. Y. Supp. 815.)</p> <p>It is difficult to estimate the injury which the appellant’s case suffered by reason of the respondent’s counsel being permitted to read a few disjointed sentences to the witness from a medical work. These excerpts were dependent for their full meaning on the whole context which was not read, and standing alone would mislead the jury to believe they stated facts contradictory of what the witness had testified to.</p> <p>Instruction No. 21 charged the jury that, “before the plaintiff in this ease can recover it will be necessary for him to prove to your satisfaction that he had osteomyelitis at the time that the defendant treated him.....” This instruction did not require the jury to “believe from the evidence” the facts assumed in it, and it is therefore objectionable. (Parker v. Fisher, 39 111. 164; Stratton v. Cent. City Horse By. Co., 95 111. 25; Sackett’s Instructions to Juries, 1st ed., sec. 26.)</p> <p>It is uniformly held that instructions should be predicated on belief from the evidence. (2 Current Law, 466; Yazoo & M. V. By. Co. v. Smith, 82 Miss. 656, 35 So. 168; Chicago City R. Co. v. Carroll, 206 111. 318, 68 N. E. 1087.) Plaintiff’s requested instruction No. 6, to the effect that the law presumed that the doctor’s .employment lasted during the sickness of the patient or until it was ended by the parties or revoked by the plaintiff, stated a sound rule of law of the case. (Lawson v. Conaway, 37 W. Va. 159, 38 Am. St. 17, 16 S. E. 564, 18 L. R. A. 627. See notes to Adams v. Henry, Ann. Cas. 1912C, at p. 831.)</p> <p>Excerpts from a medical book may be read to an expert witness on cross-examination. (Western Assur. Co. v. J. H. Mohlman Co., 51 U. S. App. 577, 83 Fed. 811, 28 C. C. A. 157.)</p> <p>The state of Iowa has a statute which is similar to sec. 5990, Rev. Codes, Under that statute it was held that medical works come within the purview of such statutes and can be introduced in evidence when otherwise competent and relevant to issues in the case at trial. (Donaldson v. Mississippi do M. R. Co., 18 Iowa, 280, 87 Am. Dee. 391; Brodhead v. Wittse, 35 Iowa, 429; Quaclcenbush v. Chicago & N. ~W. R. Co., 73 Iowa, 458, 35 N. W. 523; Peck v. Hutchinson, 88 Iowa, 320, 55 N. W. 511; Kuhns v. Chicago, M. & St. P. R. Co., 65 Iowa, 528, 22 N. W. 661.)</p>

Hon. Edward A. Walters, Judge. Action to recover taxes paid under protest. Judgment for plaintiff. The history, purpose and motive for the 1912 amendment to sec. 1644, Rev. Codes, may be found by reference to Spokane Ydlley Land & Water Co. v. Kootenai County, 199 Fed. 481, in which case exemption from taxes in Idaho was claimed for irrigation canals and water rights appurtenant thereto where the water was conveyed to and principally used within the state of Washington.

<p>APPEAL from the District Court of the Sixth Judicial District for Lemhi County. Hon. J. M. Stevens, Judge.</p> <p>Defendant was prosecuted on the charge of murder in the first degree, and convicted of murder in the second degree; sentenced to serve a term of imprisonment in the state penitentiary for not less than ten nor more than 'thirty years. From the judgment and the order denying motion for new trial, defendant appealed.</p> <p>The court erred in permitting testimony to be introduced in behalf of the state, in regard to the alleged difficulty between appellant and Simon Weese, which was not even remotely associated with any circumstance connected with the homicide. It was highly and seriously prejudicial and clearly inadmissible. (State v. Lancaster, 10 Ida. 410, 78 Pae. 1081.)</p> <p>If the danger of appellant was either apparent or real, he was justified, and the judgment of conviction and order denying appellant a new trial should be reversed. (State v. McGreevey, 17 Ida. 453, 105 Pae. 1047.)</p> <p>Where the issue of self-defense is raised, the prosecution has the right to show the relative physical strength of the deceased and the defendant. (People v. Smith, 151 Cal. 619, 91 Pae. 511; Wilkins v. State, 98 Ala. 1, 13 So. 312; Gunter v. State, 111 Ala. 23, 56 Am. St. 17, 20 So. 632; Hinch v. State, 25 Ga. 699; State v. Beckner, 194 Mo. 281, 91 S. W. 892, 3 L. R. A., N. S., 535; Mott v. State ■ (Tex. Cr.), 51 S. W. 368.)</p> <p>The deceased does not need to be named in the threat in order to make the threat admissible in evidence. (People v. Webster, 139 N. Y. 73, 34 N. E. 730; State v. Larkins, 5 Ida-200, 47 Pac. 945; Benedict v. State, 14 Wis. 423; Jones v. State, 76 Ala. 8; Jordan v. State, 79 Ala. 9; Ford v. State, 71 Ala. 385; State v. Guy, 69 Mo. 430.)</p> <p>Malice having been shown, its continuation down to the time of the killing is to be presumed, in the absence of evidenee to the contrary. (1 Wharton’s Crim. Law (11th ed.), sec. 605; State v. Johnson, 23 N. C. (1 Ired. L.) 354, 35 Am. Dec. 742; State v. Tilly, 25 N. C. (3 Ired. L.) 424.)</p> <p>The presumption of the intent to kill raised by the wilful and intentional use of a deadly weapon is properly stated in the state’s requested-instruction No. 10. (State v. Privitt, 175 Mo. 207, 75 S. W. 457, at 458; State v. Darling, 199 Mo. 168, 97 S. W. 592, at 596.)</p> <p>To say that the defendant was put in fear of his life by an assault with a light cane, or was put in fear of great bodily harm thereby, is not tenable nor believable. {Carleo v. Commonwealth, 7 Bush (70 Ky.), 124, 127.)</p>

<p>APPEAL from the District Court of the Second Judicial District for Lewis County. Hon. Edgar C. Steele, Judge.</p> <p>Suit to foreclose farm laborer’s lien. Judgment for plaintiff.</p> <p>The proceedings are controlled by sec. 5141, Rev. Codes. This statute was construed by the Washington court, in a case on all-fours with the ease at bar, in Mohr v. Clark, 3 Wash. Ter. 440,19 Pac. 28. This case was heard and decided before the statute in Idaho had been passed, and there is no doubt but what our legislature adopted this construction with the statute. (Essency v. Essency, 10 Wash. 375, 38 Pac. 1130.)</p> <p>This construction was adopted by the Idaho court in the case of Tuckey v. Lovell, 8 Ida. 731, 71 Pac. 122.</p> <p>In order to raise any question of error committed by the trial court, the transcript of the stenographer’s notes should be settled and certified by the trial court. (Edwards v. Anderson, 23 Ida. 508, 130 Pac. 1001; Strand v. Crooked Hirer Min. & Mill. Co., 23 Ida. 577, 131 Pac. 5.)</p> <p>The appellants’ mortgage should not be held to be a prior lien to the claim of the respondent for labor performed in harvesting, threshing and caring for the crop. (Sec. 5141, Bev. Codes; Beckstead v. Griffith, 11 Ida. 738, 745, 83 Pac. 764.)</p> <p>Washington has a statute very similar to the Idaho statute on this subject, viz., sec. 5957, Bal. Ann. Code. (Sitton v. DuBois, 14 Wash. 624, 45 Pac. 303. See, also, Bell v. Hiner, 16 Ind. App. 184, 44 N. E. 576; Goodenow v. Foster, 108 Iowa, 508, 79 N. W. 288; Heckman v. Tammen, 184 111. 144, 56 N. E. 361.)</p> <p>The latest expression of the supreme court of this state, and the most liberal of all in its construction of our lien laws, is found in Anderson v. Great Northern B. Co., 25 Ida. 433, 138 Pac. 127. See, also, Chamberlain v. City of Lewiston, 23 Ida. 154, 164, 129 Pac. 1069; Hill v. Twin Falls Salmon Biver Land & Water Co., 22 Ida. 274, 125 Pae. 204.</p>

<p>APPEAL from the District Court of the Second Judicial District for Latah County. Hon. Edgar C. Steele, Judge.</p> <p>Action to recover on a promissory note. Verdict and judgment for the defendants.</p> <p>At the time plaintiff bought the note he had no knowledge or notice of any infirmity in it, or defect in the title, or notice of any facts to put him on inquiry.</p> <p>The fact that there was due and unpaid interest on the note is not sufficient to amount to a dishonor of the instrument. (Winter v. Nobs, 19 Ida. 18, 29, Ann. Cas. 1912C, 302,. 112 Pac. 525; McLane v. Placerville etc. R. Co., 66 Cal. 606, 6 Pac. 748; Cooper v. Hocking Valley Nat. Bank, 21 Ind. App. 358, 69 Am. St. 365, 50 N. E. 775; Patterson v. Wright, 64 Wis. 289, 25 N. W. 10.)</p> <p>The fact that the note may have been obtained by fraud, misrepresentation, or that there was no consideration therefor, is not a defense, if the plaintiff obtained the note in the due course of business, within the provisions of sec. 3509, Rev. Codes. (Southwest Nat. Bank v. Baker, 23 Ida. 428, 130 Pac. 799.)</p> <p>There being nothing about the note, or conditions existing between the plaintiff and the McLaughlins at the time of the purchase of the note, to cause any suspicion of the plaintiff, he owed no duty to make any inquiry as to the manner of obtaining the note by the McLaughlins or in regard to the consideration therefor. (7 Cyc. 941; Matson v. Alley, 141 111. 284, 31 N. E. 419; Citizens’ Bank v. Leonhart, 126 Ind. 206, 25 N. E. 1099; Cheever v. Pittsburgh etc. R. Co., 150-N .Y. 59, 55 Am. St. 646, 44 N. E. 701, 34 L. R. A. 69.)</p> <p>There being no suspicious circumstances shown, of -which the plaintiff had any notice, he was under no necessity of making inquiry as to whether the McLaughlins had or would comply with any agreement they had made. (Kinkel v. Harper, 7 Colo. App. 45, 42 Pac. 173; Miller v. Ottaway, 81 Mich. 196, 21 Am. St. 513, 45 N. W. 665, 8 L. R. A. 428; Davis v. McCready, 17 N. Y. 230, 231, 72 Am. Dec. 461.)</p> <p>The rights of the plaintiff are to be determined by the question of good faith, not by a question of his being diligent in endeavoring to hunt up some defect, which diligence he does not owe to the parties who put the paper in circulation. (Gheever v. Pittsburgh R. Go., supra; Magee v. Badger, 34 N. Y. 247, 249, 90 Am. Dec. 691.)</p> <p>It is error for a court to give an instruction where there is no evidence to support it. (Menddelsohn v. Anaheim lighter Go., 40 Cal. 657; Perkins v. Eckert, 55 Cal. 400, 405; Ranks v. Naglee, 54 Cal. 51, 52, 35 Am. Rep. 67.)</p> <p>The note is not complete and regular on its face, for the reason that it had been materially changed. After it had been signed by defendants, payments on the back thereof had been indorsed by McLaughlin Brothers or someone, at the time of the making of the note, or shortly thereafter, and such indorsements make the note void. (Washington Finance Gorp. v. Glass, 74 Wash. 653, 134 Pac. 480, 46 L. R. A., N. S., 1043, and cases cited.)</p> <p>Knowledge on the part of the purchaser of negotiable paper of overdue instalments of interest constitutes a circumstance which may be considered by the jury along with other facts and circumstances in determining the good faith, of such purchaser. An instruction of the court upon this point is therefore proper. (TVinter v. Nobs, 19 Ida. 18, Ann. Cas. 1912C, 302, 112 Pac. 525.)</p> <p>The burden of proof shifts to the holder of the note to show that he was a bona fide holder thereof in due course, when the makers of such note make a showing of fraud and misrepresentation in procuring the same, and also make a showing of the failure of consideration. (Shellenbarger v. Nourse, 20 Ida. 323, 118 Pae. 508; Vaughn v. Johnson, 20 Ida. 669, 119 Pac. 879, 37 L. R. A., N. S., 816.)</p> <p>The evidence in this case is in all respects similar to the following cases, decided by this court: Winter v. Nobs, supra; Vaughn v. Johnson, supra; Park v. Brandt, 20 Ida. 660, 119 Pac. 877; Park v. Johnson, 20 Ida. 548, 119 Pac. 52; Vaughan v. Brandt, 21 Ida. 628, 123 Pac. 591; Soutlmest National Bank v. Baker, 23 Ida. 428, 130 Pae. 799.</p>

Hon. Edgar C. Steele, Judge. Action to recover on accident insurance policy. Judgment for plaintiff. Unless a payment of a defaulted premium is clearly shown to have been made and accepted, it would be insufficient to establish a waiver, as a waiver of a forfeiture including the payment of the past dne premium must be clearly shown; and it also must be shown that the agent, whom it is claimed made the waiver, had the authority from the company to do so.

<p>Cities and Villages — Statutory Construction — Local Improvement Districts — ‘Creation of — Petition for — Wnp may Sign — Resident Property Owners — Action of City Council — Right to Withdraw from Petition.</p> <p>1. Under the provisions of subd. 2 of see. 2238f, Laws of 1915, p. 221, the resident owners of property subject to assessment in an improvement district may petition the city council for the creation of such district and request that the cost of the improvements contemplated be assessed against all of the property in such improvement district in proportion to the benefits derived, and if such petition is signed by seventy per cent of the resident owners of property within such district, the council or board of trustees may, in its discretion, assess such expense against all of such property owners in proportion to the benefits derived from such improvement.</p> <p>[As to meaning generally of “local improvement” for whieh special assessment may be levied, see note in Ann. Cas. 1914B, 542.]</p> <p>2. Under the provisions of sec. 4 of the Revised Codes, the provisions of said codes and all proceedings under them must be liberally construed with a view to effect their objects and promote justice, and held that a substantial compliance with the law involved in this ease is all that is necessary.</p> <p>3. Seld, that the signers of such petition must reside within the proposed district and own property therein subject to assessment for the improvements contemplated.</p> <p>4. Under the provisions of subd. 4 of said section, if protests against the proposed improvement by the owners of more than two-thirds of the front feet of the lots and land abutting on such improvement and included in the assessment district therein provided be filed on or before the date fixed for such filing, the council or trustees shall not proceed further with the work unless three-fourths (or in case there are only five regular members of the council, then four-fifths) of the members of said council or board of trustees shall vote to proceed with such work.</p> <p>5. Seld, that there is no appeal from the action of the council or trustees in holding that such a petition is sufficient, and such action is final unless fraud or misconduct is shown on the part of the council in making such order.</p> <p>6. Seld, that the signature of both husband and wife is not required for the creation of an improvement district where they own and reside upon community property within the district, and that it is not necessary for both husband and wife to sign such petition where the real estate is owned by one of the parties as separate property where a homestead has been filed thereon; and held, that if the community property stands in the name of the wife, it is not necessary for the husband to join in such petition, and that where the husband and wife own community property in such district and both sign the petition for the creation of the improvement district, they should only be counted as one; and where one member of the community fails to sign such petition, the one signing should be counted.</p> <p>7. Where a corporation, incorporated under the laws of this state, owns property subject to assessment in such district and signs the petition, it should be counted in favor of the district.</p> <p>8. Foreign corporations owning property in such district, subject to assessment, ought not to be counted either for or against the improvement district.</p> <p>9. A person who signs such petition should be counted who holds real estate subject to assessment of benefits within such district under contract, the deed being in eserow, where his grantor has not signed the petition based on his ownership of such real estate.</p> <p>10. Where two persons are joint owners of real estate within such improvement district andi they also own real estate in said district individually, they should each be counted but once on such petition.</p> <p>11. Nonresidents of such district who sign such petition ought not to be counted.</p> <p>12. A name ought not to be counted on such petition when placed thereon sixty days after the petition was filed and aeted upon by the municipality.</p> <p>13. Where a husband and wife reside in such district, eaeh having separate property in such district, and sign the petition, they must eaeh be counted as a petitioner.</p> <p>14. Eesidents of such districts who are temporarily absent and have not established a residence in any other place, having real estate in such district subject to assessment, are competent to sign such petition.</p> <p>15. Anyone who has signed such petition has a right to withdraw his name therefrom at any time before the council passes the ordinance of intention, but not afterward.'</p>

Hon. Edgar C. Steele, Judge. Action to recover for the purchase price of an automobile and to recover damages by reason of the alleged violation of a contract. Judgment for defendant. Where an action is brought upon a contract, it is error for the trial court to admit in evidence a contract of a different date, for different terms and conditions, than that which is pleaded.

<p>APPEAL from the District Court of the Second Judicial District for Clearwater County. Hon. Edgar C. Steele, Judge.</p> <p>Proceeding to remove a county treasurer under see. 7459, Rev. Codes. Judgment for defendant.</p> <p>The contract entered into by the defendant was illegal and void .and against public policy, for the reason that the defendant was receiving a fixed salary in payment for services rendered by him to Clearwater county, and was not entitled to any additional compensation for any services rendered to said county. (Robinson v. Huffaker, 23 Ida. 173, 129 Pac. 334; Humboldt County v. Stern, 136 Cal. 63, 68 Pac. 324; 11 Cyc. 429; Irwin v. Yuba County, 119 Cal. 686, 52 Pac. 35; Power v. May, 114 Cal. 207, 46 Pac. 6; Mitchell v. Stoner, 9 Cal. 203; Raymond v. Madison County, 5 Mont. 103, 2 Pac. 306; Evans v. City of Trenton, 24 N. J. L. 764; Territory v. Carson, 7 Mont. 417, 16 Pac. 569 ; Peterson v. City of Butte, 44 Mont. 401, Ann. Cas. 1913B, 538, 120 Pac. 483.)</p> <p>In the case of State v. District Court, 44 Mont. 318, Ann. Cas. 1913B, 396, 119 Pac. 1103, the court had under consideration sec. 9006 of the Montana code, which conforms substantially to our sec. 7459. (People v. O’Brien, 96 Cal. 171, 31 Pac. 45; Miller v. Smith, 7 Ida. 204-, 61 Pac. 824; Rankin v. Jauman, 4 Ida. 394, 39 Pac. 1111.)</p> <p>The contention that this procedure is not applicable to defendant’s ease is fully answered in the case of Skeen v. Craig, 31 Utah, 20, 86 Pac. 487, which cites and follows Idaho cases. See, also, Law v. Smith, 34 Utah, 394, 98 Pac. 300; Skeen v. Paine, 32 Utah, 295, 90 Pac. 440; Skeen v. Chambers, 31 Utah, 36, 86 Pac. 492.</p> <p>'“When it is shown that such officer acted in perfect good faith, and under an honest conviction that he was entitled to the compensation claimed and collected, and was acting under the legal advice of the county attorney, it is error to remove him from his office. ’ ’ (Pouting v. Isaman, 7 Ida. 581, 65 Pac. 434.)</p> <p>Officers may recover for services not connected with their official duties, provided there shall have been a promise to pay them therefor upon the part of the municipal corporation employing them, or that the law implies a' promise to pay. (Converse v. United States, 62 U. S. 463, 16 L. ed. 192; United States v. Brindle, 110 U. S. 688, 4 Sup. Ct. 180, 28 L. ed. 286; Baker v. Board of Commissioners, 9 "Wyo. 51, 59 Pac. 797; State v. Flynn, 161 Ind. 554, 69 N. E. 159; Eollock v. Dodge, 105 Wis. 187, 80 N. W. 608; Board of Commrs. v. Mitchell, 131 Ind. 370, 30 N. E. 409, 15 L. E. A. 520; State ex rel. Board of Commrs. v. Shutts, 161 Ind. 590, 69 N. E. 397; 2 Abb. Mun. Corp., sec. 686a; United States v. Fill, 120 U. S. 169, 7 Sup. Ct. 510, 30 L. ed. 627; Slayton v. Rogers, 128 Ky. 106,107 S. W. 696.)</p> <p>There is no allegation in the information anywhere showing that Hoar collected, or attempted to collect, any of the “fees” provided by sec. 7459, Eev. Codes.</p> <p>The allegation is, that he collected a compensation, contracted for openly by him, with the county commissioners. The question of whether that act was lawful or unlawful should not be tried out in this sort of a proceeding. (Corker v. Pence, 12 Ida. 152, 85 Pae. 388; In re Stow, 98 Cal. 587, 33 Pac. 490; Triplett v. Munter, 50 Cal. 644; Crossman v. Lesher, 97 Cal. 382, 32 Pae. 449; Smith v. Ling, 68 Cal. 324, 9 Pac. 171; Skeen v. Craig, 31 Utah, 20, 86 Pac. 487.)</p> <p>It is not the intention of the act in question to punish officials for acts committed, be they right or wrong, perpetrated outside of, and not within the scope of, the duties imposed upon them by the precise office in question. (Thurston v. Clark, 107 Cal. 285, 40 Pac. 435.)</p>

Hon. Edgar C. Steele, Judge. Appellant was convicted of assault with a deadly weapon. For counsel for defendant to be reprimanded and humiliated without cause or excuse therefor is reversible error. {McDuff v. Detroit Evening Journal, 84 Mich. 1, 22 Am.

Hon. James R. Bothwell, Judge. Two suits to enjoin the holding of elections to vote upon proposals to organize highway districts. Orders were entered sustaining a demurrer to the complaint and a motion to quash the temporary restraining order in one case and overruling such demurrer and motion in the other.

Hon. Edgar C. Steele, Judge. Action for tbe cancellation of a deed and recovery of possession of real property. Judgment for defendants. Tbe burden is on the party who asserts abandonment or change of residence to prove tbe same. (Bradshaw v. Hurst, 57 Iowa, 745, 11 N. W. 672, and cases cited; 21 Cyc. 621; Balzer v. Pence (Iowa), 76 N. W. 731; Beecher v. Baldy, 7 Mich 488; Union Stock Yds. Bk. v. Smout, 62 Neb. 227, 87 N. W. 14; Edwards v. Reid, 39 Neb. 645, 42 Am.

Hon. Edgar C. Steele, Judge. Action to recover a claim against the estate of a deceased person for merchandise sold and delivered. Judgment for defendant. A claim may still be pending and unrejeeted before an administrator, even though the ten days have passed without indorsement.

Hon. Wm. A. Bab-, cock, Judge. Action to enjoin the collection of a fifteen mill levy of taxes made by School District No. 5 and to limit such levy to five mills. Judgment for the plaintiff. Inasmuch as the two sections of the law are in conflict, the later or subsequent is deemed to repeal the former, and such later and subsequent act is the act in effect at the time this action was instituted.

Hon. Edgar C. Steele, Judge. Action to quiet title to certain mining claims and water rights. Judgment for the plaintiff.

Hon. Ed. L. Bryan, Judge. Action for the examination, confirmation and approval of a contract between the Nampa & Meridian Irrigation District and the Secretary of the Interior. Judgment for plaintiff.

Hon. Ed. L. Bryan, Judge. Action upon a note. Defendants’ joint demurrer sustained in part and overruled in part. If the complaint states a cause of action against one of several defendants, a joint demurrer cannot be sustained. (Asevado v. Orr, 100 Cal. 293, 34 Pac.

Hon. Ed. L. Bryan, Judge. Action to enjoin the defendant from trespassing on the lands of plaintiff and to recover damages. Judgment for plaintiff for $50 as damages for defendant’s interfering with the lateral ditch of plaintiff.

Hon. Ed. L. Bryan, Judge. Prosecution for making false report of the financial condition of a state bank. Judgment of conviction. Where there is no material conflict and the proof offered is capable of two constructions, one of which is compatible with innocence, the defendant should be released.

Hon. Ed. L. Bryan, Judge. Action to establish a highway in Good Boad District No. 1 in Washington county, in sections 9 and 16, on petition.

Hon. Wm. W. Woods,. Judge. Costs and disbursements in an action in maintaining a proceeding on an adverse claim to mining ground. Motion to tax costs denied. *Tbe allowance of costs is a matter dependent wholly upon the statute, and where there is no statute authorizing it, no costs can be allowed. (Cronan v. District Court, 15 Ida. 462, 465, 98 Pac. 614; Schmelzel v. Board of County Commrs., 16 Ida. 32, 133 Am. St. 89, 100 Pac. 106, 21 L. R. A., N. S., 199, 17 Ann.

<p>APPEAL froni tbe District Court of thé Eighth Judicial District for Benewah County. Hon. R. N. Dunn, Judge.</p> <p>Action for mandamus, to reinstate school superintendent under subdiv. B, sec. 129, chap. 159, Sess. Laws 1911, as amended by Sess. Laws 1913, chap. 115, p. 450. Judgment for defendants.</p> <p>In. the case of Peavy v. McCombs, 26 Ida. 143, 140 Pae. 965, this court has held that in construing conflicting statutes passed in the same session of the legislature the court will take cognizance of the proceedings of the legislature as shown by the House and Senate journals in determining the intention of the legislature. (See, also, Achenbach v. Kincaid, 25 Ida. 768, 140 Pac. 529.)</p> <p>An examination of the journals of the legislature, of 1913, with reference to the two conflicting statutes under discussion, proves conclusively that the legislature in passing chapter 159 did not intend to repeal or supersede chapter 115.</p> <p>A section of the statute should be construed in the light of the purpose for which the legislature enacted the particular act of which such section is a part, and any inconsistent contemporaneous statutes must be construed together, and if possible effect given to both. (Colburn v. Wilson, 24 Ida. 94, 132 Pae. 579; Oneida County v. Evans, 25 Ida. 456, 138 Pac. 337; State ex rel. Washington W. Power Co. v. Savidge, 75 Wash. 116, 134 Pac. 680; Fremont Cotmty v. Brandon, 6 Ida. 482, 56 Pac. 264; White v. City of North Yakima, 87 Wash. 191, 151 Pae. 645, and authorities cited.)</p> <p>All the facts stated in the relator’s affidavit or petition must, for the purpose of the demurrer, be considered as true. (Blackwell v. Kercheval, 27 Ida. 537, 149 Pae. 1060; Frontier Milling etc. Co. y. Boy White etc. Mercantile Co., 25 Ida. 478, 138 Pac. 825.)</p> <p>The affidavit or petition alleges that the defendant school district is and was an independent school district of class A, which is an ultimate fact, and the evidence establishing that fact need not be plead. It is an established rule of pleading that probative facts and matters of evidence need not be set forth. ' (McLean v. Leiuiston, 8 Ida. 472, 69 Pae. 478.)</p> <p>In mandamus eases the petition for the writ must set forth with as much, or more, particularity the facts upon which the writ is claimed as is required in an ordinary action. {Watkins v. Huff (Tex. Civ?), 63 S. W. 922; Dane v. Derby, 54 Me. 95, 89 Am. Dec. 722 • Arberry v. Beavers, 6 Tex. 457, 55 Am. Dec. 791; Bank of Nocona v. March, (Tex. Civ.), 51 S. W. 266.)</p> <p>“In case of an irreconcilable conflict between two statutes passed at the same legislature, the statute which was last approved by the Governor shall prevail, the approval by the Governor being the last act in the process of legislation.” (Peavy v. McCombs, 26 Ida. 143, 140 Pac. 965.)</p> <p>It is necessary to allege the ultimate facts which make a distinct and independent district (Class A), and until this is done the petition is subject to general demurrer for want of sufficient facts. (Burkhart v. Reed, 2 Ida. 503, 508, 22 Pac. 1; Sutherland, Code PL and Pr., par. 240; Hester v. Thomson, 35 Wash. 119, 76 Pae. 734; First Nat. Bank v. Lewinson, 12 N. M. 147, 76 Pac. 288.)</p>

<p>APPEAL from the District Court of the Eighth Judicial District for Bonner County. Hon. R. N. Dunn, Judge.</p> <p>Action to remove county official under provisions of sec. 7459, Rev. Codes, Judgment for defendant.</p> <p>In the case of Rankin v. Jauman, 4 Ida. 53, 36 Pac. 502, which was an action similar to the one at bar, this court held that the proceeding was not a criminal proceeding and was-not intended for punishment, but was intended to protect the people from corrupt officials. That case was later approved and commented upon in the case of Pouting v. lsamanr 7 Ida. 283, 62 Pac. 680.</p> <p>Boards of county commissioners and boards of equalization, although composed of the same persons, are separate and distinct bodies with different duties and powers. (General Custer Min. Co. v. Van Camp, 2 Ida. 40, 3 Pae. 22; Peltham v.. Board of County C'ommrs., 10 Ida. 182, 77 Pac. 332.)</p> <p>When they failed to meet on July 14th as a board of equalization pursuant to their adjournment on the 12th, their session as a board of equalization was terminated for that year. (Gilbert v. Canyon County, 14 Ida. 437, 94 Pac. 1029;-Marsh v. People, 226 111. 464, 80 N. E. 1006; Peterson v. First Nat. Bank, 8 Kan. App. 508, 56 Pac. 146.)</p> <p>A prosecution for removal of a public officer is a crime, and in contemplation of sec. 6309, Rev. Codes, and the procedure provided, it cannot be that the provisions of Senate' Bill 28, 1909, Session Laws, were intended to permit the cross-examination of one who might be removed from office and assessed to pay $500 as a penalty. (Thurston v. Clark, 107.' Cal. 285, 40 Pac. 435; Boyd v. United States, 116 U. S. 616, 6 Sup. Ct. 524, 29 L. ed. 746; Lees v. United States, 150 U. S. 476, 14 Sup. Ct. 163, 37 L. ed. 1150.)</p> <p>The court did not err in granting defendant’s motion to strike out paragraph 8 of the information. That motion was made upon the ground that the court did not have jurisdiction to try and hear the same under an information filed by a private individual under sec. 7459, for the reason that the offense, if any, was a misdemeanor, malfeasance in office and could only be prosecuted under an indictment. (Corker v. Pence, 12 Ida. 152, 85 Pac. 388; Sieie v. Superior Court, 114 Cal. 551, 46 Pac. 456; Minlder v. State, 14 Neb. 181, 15 N. W. 330.)</p> <p>The law specifically requires the board to sit as a board of equalization, and they could not adjourn if they had so desired; they were physically present, and the writing of the minutes of the clerk erroneously speaking of a board of commissioners would have no effect upon the actual facts. (Fowler v. Bussell, 45 Kan. 425, 25 Pac. 871; Symns v. Graves, 65 Kan. 628, 70 Pac. 591.)</p> <p>“As long as the board had not terminated its session by an adjournment sine die, or the session had not terminated by operation of law, the mere fact that an adjournment was taken to some future date would not operate as a termination of the regular session.” (GiVbert v. Canyon County, 14 Ida. 429, 94 Pae. 1027.)</p> <p>The provisions of this section are for the general guidance of the county commissioners and for their orderly procedure and for the benefit of the public, and are not mandatory. (Buswell v. Board of Supervisors, 116 Cal. 351, 48 Pae. 226.)</p>

<p>APPEAL from the District Court of the Eighth Judicial District for Bonner County. Hon. John M. Flynn, Judge.</p> <p>Action to recover on certain promissory notes executed by a corporation. Judgment for defendants.</p> <p>Clark and Marshall on Private Corporations, vol. 3, p. 2672, lays down the rule that when a statute imposes a personal liability upon the officers of a corporation for its debts, which is penal in its nature, that the statute commences to run as soon as the act is committed, giving rise to the liability. Where the liability imposed, however, is contractual or quasi-eontractual, it will be governed by the laws and statutes of limitations relating to actions on contracts to enforce a liability created by statute. The statute begins to run against the creditors on such statute from the maturity of his debt and not from the time it is created, that is, from the maturity of the note and not from its date. (Woolverton v. Taylor, 132 111. 197, 22 Am. St. 521, 23 N. E. 1007; Morgan v. Hedstrom, 164 N. T. 224, 58 N. E. 26.)</p> <p>Where, either by statute or charter, the stockholders of a corporation assume a primary liability to creditors of the corporation, the action accrues at the maturity of the debt of the corporation. . (Schalucky v. Field, 124 111. 617, 7 Am. St. 399, 16 N. E. 904; Jones v. Harris, 90 Ark. 51, 117 S. W. 1077; Parker v. Carolina Saw. Bank, 53 S. C. 583, 69 Am. St. 888, 31 S. E. 673; Fuller v. Ledden, 87 111. 310.)</p> <p>Sec. 2792 is not a penal statute, and the liability imposed thereunder is strictly contractual.- (Miller & Lux v. Katz, 10 Cal. App. 576, 102 Pac. 946; Kirtley v. Holmes, 107 Fed. 1, 46 C. C. A. 102, 52 L. E. A. 738; Whitman v. National Bank, 176 U. S. 559, 20 Sup. Ct. 477, 44 L. ed. 587.)</p> <p>Our legislature has not left it to judicial construction to declare that defendants’ liability is contractual, but the statute specifically provides that it shall be contractual, and that instead of being sureties or guarantors they are principal contractors 'or makers. (Sturges v. Burton, 8 Ohio St. 215, 72 Am. Dec. 582.)</p> <p>While see. 2792 makes an officer of a noncomplying company assuming to act for it “personally liable upon and for all such contracts and agreements as principal-contractor,” this is, nevertheless, a liability created by statute. (Kennedy v. California Sav. Bank, 97 Cal. 93, 33 Am. St. 163, 31 Pae. 846.)</p> <p>“Individual liability is always a creature of statute. It did not exist at common law.” (Terry v. Little, 101 U. S. 216, 25 L. ed. 864; Green v. Beckman, 59 Cal. 545, 548.)</p> <p>This must be equally true of the present case — liability created by sec. 2792, which did not exist before or independent of the statute. (Hunt v. Ward, 99 Cal. 612, 37 Am. St. 87, 34 Pac. 335; Bank of San Luis Obispo v. Pacific Coast Steamship Co., 103 Cal. 594, 37 Pae. 499; Moore v. Boyd, 74 Cal. 167, 15 Pac. 670.)</p> <p>A very similar case and statute is construed in Dart v. Hughes, 49 Colo. 465, 109 Pae. 952, except that the recovery is there held to be a penalty. Hazelton v. Porter, 17 Colo. App. 1, 67 Pac. 170, cited in the above case, is also very instructive.</p> <p>“Whatever may be said of the penal nature of these statutes, the eases are coming more and more to the proposition that they are not penal in the strict and proper sense applied to statutes imposing punishment for offenses against the state.” (Thompson on Corporations, 2d ed., secs. 1326,1327.)</p> <p>Participation as a member or director, officer or agent in the proceedings of a corporation, and assisting in making contracts as such, estops such officer from attempting to recover against Ms codirectors or officers personally on notes and accounts of the company which he has bought up. (Coleman v. Coleman, 78 Ind. 344; Ward v. Brigham, 127 Mass. 24; Rogers v. Bonnett, 2 Okl. 553, 37 Pac. 1078, and cases therein cited.)</p>

Hon. William W. Woods, Judge. ■ Action upon a poliey of health and accident insurance. Judgment for plaintiff. Before the insured can recover in this case he must prove either a strict compliance with or a waiver of -the requirements by the company. (Ostrander on Insurance, sec. 221; O’Reilly v. Guardian Mutual Life Ins. Co., 60 N. Y. 169, 19 Am. Rep. 151; Johnson v. Maryland Casualty Co., 73 N.' H. 259, 111 Am.

<p>Findings of Fact, Conclusions of Law, Decree Filed — Change — Modification — Trial Court — New Trial.</p> <p>1. After findings of fact, conclusions of law and. deeree have been made and filed and judgment thereon entered, they can be changed or modified by the trial court, except in respect of mere clerical errors, only by the granting of a new trial.</p> <p>2. Where findings of fact, conclusions of law and decree have been made and entered by the trial court, and recorded, in favor of one of the parties to the action, it is reversible error for the court, upon motion for a new trial, and of its own motion, to set aáide the previous judgment entered and substitute new findings of fact, conclusions of law and a decree in favor of the other party, without granting a new trial.</p>

<p>APPEAL from the District Court of the Eighth Judicial District for Bouner County. Hon. John M. Flynn, Judge.</p> <p>Action to recover for personal injuries in a sawmill accident. Judgment for defendant.</p> <p>, The defendant became aware of the plaintiff’s danger and was aware of it at the time the plaintiff was employed. It had notice of the danger yet it did nothing to lessen the danger or to remove it. It was in duty bound to use ordinary care for the purpose of avoiding just such an injury as resulted to the plaintiff, and having failed to use such, ordinary care to prevent such injuries, it will not be heard to say that the plaintiff was contributorily negligent.: (Chiara v. Stewart Min. Co., 24 Ida. 473, 135 Pac. 245.)</p> <p>The evidence disclosed that the plaintiff slipped and that in undertaking to regain his balance and save himself from a fall his foot passed between the roll table and the drive shaft. Under such circumstances, even though the plaintiff assumed the risk and was guilty of contributory negligence, the accidental slipping will relieve him of the consequences. (Christianson v. Northwestern C. Board Co., 83 Minn. 25, 85 Am. St. 440, 85 N. W. 826; Snyder v. Waldorf Box Board Co., 110 Minn. 40, 124 N. W. 450; Herrick v. Quigley, 101 Fed. 187, 41 C. C. A. 294; Chicago, B. I. & P. B. Co. v. Browny 229 U. S. 317, 33 Sup. Ct. 840, 57 L. ed. 1204.)</p> <p>An examination of the testimony of the plaintiff himself discloses that he assumed the risk of injury in the manner in which he was injured by reason of such risk or danger-being open, visible and obvious. (Goure v. Storey, 17 Ida. 352, 105 Pac. 794; 1 Labatt on Master & Servant, sec. 263;. Brown v. Tabor Mül Co., 22 Wash. 317, 60 Pae. 1126; Bier vHosford, 35 Wash. -544, 77 Pac. 867; Lee v. Northern Pacific-B. Co., 39 Wash. 388, 81 Pac. 834; Baven v. Seattle Electric-Co., 47 Wash. 637, 92 Pac. 451; Lord v. Pueblo Smelting &■ Befining Co., 12' Colo. 390, 21 Pac. 148; Iowa Gold Min. Co.,, v. Diefenthdler, 32 Colo. 391, 76 Pae. 981; Bailey on Master’s-Liability for Injuries to Servant, pp. 153-155.)</p>

<p>Mandate — Practice —Constitutional Law — Appropriations—Statutory Construction.</p> <p>1. Pursuant to the provisions of see. 4955, Rev. Codes, a party ■prosecuting a special proceeding should be referred to as the plaintiff and the adverse party as the defendant.</p> <p>2. Secs. 12, 14 and 15, chap. 27, Sess. Laws 1915, whieh provide for diverting from the state treasury money due to the state from the counties, arising from taxation, and for paying it out, by the counties, to those engaged in emergency employment, violates see. 7, art. 7 of the constitution and cannot be sustained.</p> <p>3. See. 13, art. 7, of the Idaho constitution, providing that no money shall be drawn from the treasury but pursuant to an appropriation made by law, prohibits the payment, by the state, of any money except pursuant to and in accordance with an act of the legislature expressly appropriating it to the speeifie purpose for whieh it is paid, and, since no money has been appropriated for that purpose, the state is preeluded from paying its proportionate share of the expense of giving the emergency employment contemplated by chapter 27, supra.</p> <p>4. Sec. 18, art. 4, of the constitution grants to the state board of examiners power to examine all claims against the state, except salaries or compensation of officers fixed by law, and a legislative enactment attempting to provide for the disbursement of funds belonging to the state in payment of claims without such examination is in violation of that section and void.</p> <p>[Review of decisions of various states upon what constitutes a legislative appropriation, see note in 22 Am. St. 638,]</p> <p>5. The rule is well settled in this state that if the provisions of an act of the legislature are connected in subject matter, dependent upon each other, and designed to act for the same purpose, or are otherwise so dependent in meaning that it cannot be presumed that the legislature would have passed one without the other, if one part is unconstitutional the entire act is void.</p> <p>6. Since sees. 12, 14 and 15, chap. 27, supra, are clearly violative of the constitution, and sinee, by sustaining the remaining sections, a considerable burden of expense would be placed upon counties called upon to give emergency employment to a large number of persons, from which burden counties required to employ few or none would be exempted, and, since it is clear that it was not the intention of the legislature to do so, the entire chapter must bo held to be invalid.</p>

Hon. John M. Flynn, Judge. Proceeding by mandamus to reinstate petitioner as chairman of the board of county commissioners of Bonner county. Judgment for defendants. While legislative bodies may reconsider an appointment, their power to so reconsider has clearly ceased to exist when the man elected has taken office. It is then too late to rescind. When an appointment has been made, it is complete.

<p>APPEAL from the District Court of the Eighth Judicial District, for Bonner County. Hon. John M. Flynn, Judge.</p> <p>Action to recover on a life insurance policy. Judgment for the plaintiff.</p> <p>Any contract obtained by fraud, whether of life insurance or other kind, is voidable at the option of the defrauded party. (9 Cyc. 411.)</p> <p>And if, within a reasonable time, he desires to avoid the contract, there is no question of his right to do so. (Richardson v. Vick, 125 Tenn. 532, 145 S. W. 174, 176.)</p> <p>In the case of Reagan v. Union Mutual Life Ins. Go., 189 Mass. 555, 109 Am. St. 659, 76 N. E. 217, 2 L. R. A., N. S., 821, 4 Ann. Cas. 362, a clause identical with the clause before the court was considered; and the supreme court of Massachusetts held that this clause was against public policy and void, and that the plaintiff, the beneficiary of the insured, could not avail herself of its provisions as against the defense of fraud. (New York Life Ins. Go. v. Hardison, 199 Mass. 190, 127 Am. St. 478, 85 N. E. 410; Kansas Muhidl Life Ins. Co. v. Whitehead, 123 Ky. 21, 93 S. W. 609, 13 Ann. Cas. 301; Bliss on Life Ins., 2d ed., sec. 254; Welch v. Union Central Life Ins. Co., 108 Iowa, 224, 78 N. W. 853, 50 L. R. A. 774; New York Life Ins. Go. v. Weaver’s Admr., 114 Ky. 295, 70 S. W. 628.) There is an additional reason why this clause is avoided. It is against public policy and the express provisions of sec. 3321, Rev. Codes. (Huber v. St. Joseph’s Hospital, 11 Ida. 631, 83 Pac. 768; DouviTle v. Pacific Coast Casualty Co., 25 Ida. 396, 138 Pac. 506.)</p> <p>The issuance of a policy with knowledge of the falsity of statements warranted to be true or with knowledge of the breach of any condition precedent to the taking effect of the policy is a waiver. (25 Cyc. 865; Allen v. Phoenix Assur. Co., 14 Ida. 728, 95 Pac. 829; Security Trust Co. v. Tarpey, 182 111. 52, 54 N. B. 1041; Kelly v. Metropolitan Life Ins. Co., 15 App. Div. 220, 44 N. T. Supp. 179; Iverson v. Metropolitan Life Ins. Co., 151 Cal. 746, 91 Pae. 609, 13 L. R. A., N. S., 866; Pacific Mutual Life Ins. Co. v. Van Fleet, 47 Colo. 401, 107 Pac. 1087; Pome Ins. Co. v. Thomas, 11 Ga. App. 539, 75 S. B. 894.)</p> <p>The right of action for fraud in the procurement of a policy may be waived by inserting in the policy a provision that after a specified time the policy shall become incontestable, and this incontestable clause is valid after the stipulated period as against any defense based on false statements or untrue warranties, even though they were made fraudulently. (25 Cyc. 873; Elliott on Contracts, see. 89.)</p> <p>Where a company with knowledge of the facts, or with such knowledge as will put it upon inquiry to determine the facts, enters into such a contract as the defendant in this case did, agreeing not to contest the contract upon such a state of facts, the defendant becomes estopped by contract from relying upon such defenses as are set up in this case. (Patterson v. Natural Premium Mut. Life Ins. Co., 100 Wis. 118, 69 Am. St. 899, 75 N. W. 980, 42 L. R. A. 253; Insurance Co. v. Fox, 106 Tenn. 347, 82 Am. St. 885, 61 S. W. 62.)</p>

<p>Appeal and Error. — Instructions — Amendments to Pleadings — Replevin — Judgment.</p> <p>1. In the Idaho practice no provision is made for an appeal' from an order denying a motion for judgment notwithstanding the-verdict, and it is not, therefore, an appealable order.</p> <p>2. The instructions given to the jury in a ease must be read' and considered together, and if they are not in con diet with-each other and, taken as a whole, correctly state the law applicable-to the facts of the case, the circumstance that an isolated paragraph is obscure, incomplete or indefinite will not, of itself, constitute ground for reversal.</p> <p>3. Granting or refusing to grant permission to amend a pleading is largely a matter of discretion of the trial court, and unless the exercise of such discretion deprives a party to the action of' some substantial right, it is not error.</p> <p>[As to pleading, proof and practice in replevin, see note in-80 Am. St. 741.]</p> <p>4. Although, as a general rule, the judgment in an action of replevin, if for the plaintiff and the property has not been delivered to him, should be in the alternative, for the return of the-property or its value in case return cannot be had, and although the verdict is in the alternative and the judgment makes no provision for the return of the property, if it clearly 'appears from the reeord that return cannot be had, the case will not be remanded to the trial court with instruction to enter judgment in the alternative, since no useful result would follow such action, and since no substantial right of either of the parties has been invaded by the form of the judgment entered by the trial court.</p>

<p>APPEAL from the District Court of the First Judicial District for Shoshone County. Hon. William W. Woods, Judge.</p> <p>Action to perpetually enjoin the sale of land to satisfy judgment liens upon execution. Judgment for plaintiff.</p> <p>The right to a patent once vested is treated by the government, when dealing with the public domain, as equivalent to a patent issued. (Budd v. Gallier, 50 Or. 42, 89 Pac. 638; Starks v. Starrs, 6 Wall. (73 U. S.) 402, 18 L. ed. 925; Flanagcm v. Forsythe, 6 Okl. 225, 50 Pac. 152, 155.)</p> <p>And when the receiver’s final receipt or certificate is issued to the entryman under the homestead statutes, such lands immediately become liable for the debts of the entryman contracted after the date of such final receipt. (Leonard v. Ross, 23 Kan. 292, Kansas Lumber Go. v. Jones, 32 Kan. 195, 4 Pac. 74; Struby-Estabrook Mercantile Co. v. Davis, 18 Colo. 93, 36 Am. St. 266, 31 Pac. 495; Weare v. Johnson, 20 Colo. 363, 38 Pac. 374; Johnson v. Borin, 7 Kan. App. 369, 54 Pac. 804; Shelby v. Ziegler, 22 Okl. 799, 98 Pae. 989; Eobb v. J. I. Case Threshing Machine Co., 39 Okl. 383, 135 Pac. 395.)</p> <p>The doctrine of “relation” as applied to government patents for land is never invoked except where necessary to give effect to the intent of the statute or to cut off intervening claimants. (24 Am. & Eng. Ency. of Law, 128, 275, 277; Demurest v. Wynkoop, 3 Johns. Ch. (N. Y.) 139, 146, 8 Am. Dec. 467; Barncord v. Kuhn, 36 Pa. 383; Stahl v. Lynn, 86 Wis. 75, 56 N. W. 188; K. C. Lumber Co. v. Moores, 212 Fed. 153, 129 C. C. A. 1; Johnston v. Jones, 1 Black (66 U. S.), 210, 221, 17 L. ed. 117, 120; Jackson v. Davenport, 20 Johns. (N. Y.),'537; Wood v. Ferguson’s Lessee, 7 Ohio St. 288, 291; Gibson v. Chouteau13 Wall. (80 U. S.) 92, 20 L. ed. 534; Lessieur v. Price, 12 How. (53 U. S.) 59, 74, 13 L. ed. 893, 899; Wallowa Nat. Bank v. Riley, 29 Or. 289, 54 Am. St. 794, 45 Pac. 766.)</p> <p>Lands acquired under the federal homestead laws cannot in any event be subjected to the satisfaction of any debt contracted prior to the issuing of the patent therefor. (Seymour v. Sanders, 3 Dill. 437, Fed. Cas. No. 12,690; Brun v. Mann, 151 Fed. 145, 80 C. C. A. 513, 12 L. R. A., N. S., 154; In re Cohn, 171 Fed. 568, 570; In re Parmeter’s Estate, 211 Fed. 757; Grames v. Consolidated Timber Co., 215 Fed. 785.)</p> <p>This statute has been construed by the supreme courts of all of the public land states of the west, and with the exception of three, one of which is doubtful, they have unequivocally held that the statute means exactly what it says and that the date of limitation is the date of the patent. (In re Harris, 16 Ariz. 1, 140 Pae. 825; Gilkerson-Sloss Co. v. Forbes, 54 Ark. 148, 26 Am. St. 29, 15 S. W. 191; Barnard v. Boiler, 105 Cal. 214, 38 Pae. 728; Klempp v. Northrop, 137 Cal. 414, 70 Pae. 284; Miller v. Little, 47 Cal. 348; Russell v. Lowth, 21 Minn. 167, 18 Am. Rep. 389; Dickerson v. Bridges, 147 Mo. 235, 48 S. W. 825; Brandhoefer v. Bain, 45 Neb. 781, 64 N. W. 213; Smith v. Schmitz, 10 Neb. 600, 7 N. W. 329 (Leman v. Chipman, 82 Neb. 392, 117 N. W. 885; Faull v. Cooke, 19 Or. 455, 20 Am. St. 836, 26 Pae. 662; Schultz v. Levy, 33 Or. 373, 54 Pae. 184; Gould v. Tucker, 20 S. D. 226, 105 N. W. 624; Blair v. Mayer, 24 S. D. 563, 140 Am. St. 797, 124 N. W. 721; Van Doren v. Miller, 14 S. D. 264, 85 N. W. 187; Sprinkle v. West, 62 Wash. 587, Ann. Cas. 1912D, 281, 114 Pae. 430, 34 L. R. A., N. S., 404; Jean v. Dee, 5 Wash. 580, 32 Pac. 460; Gile v. Hallock, 33 Wis. 523.)</p>

Hon. Robert N. Dunn, Judge. Action to recover damages for personal injuries. Judgment for plaintiff. There is no evidence showing that respondent continued at his work in reliance upon the alleged promises to repair; that must have been alleged and proved in order to have brought him within the terms of the exception.

<p>'APPEAL from the District Court of the First Judicial District for Shoshone County. Hon. William W. Woods, Judge.</p> <p>Action to quiet title. Judgment for plaintiff.</p> <p>In an action to quiet title plaintiff must succeed only on the strength of his own title, and not on the weakness of his adversary. (32 Cye. 1329; Mason v. Gates, 82 Ark. 294, 102 S. W. 190; Di Ñola v. Allison, 143 Gal. 106, 101 Am. St. 84, 76 Pae. 976, 65 L. R. A. 419; Graham v. Lunsford, 149 Ind. 83, 48 N. E. 627; Hurley v. Osier, 44 Iowa, 642; Townsend v. Trustees of Broohhaven, 97 App. Div. 316, 89 N. Y. Supp. 982; Chinn v. Taylor, 64 Tex. 385.)</p> <p>If possession is necessary to the maintenance of the action, plaintiff cannot prevail without proof of such possession, where the allegation of possession is denied in the answer. (Brooks v. Calderwood, 34 Cal. 563; Buts v. Eehn, 143 lb. 558, 29 N. E. 553.)</p> <p>The weakness of plaintiff’s title is a good defense in an action to quiet title, whether defendant is in or out of possession. (32 Cyc. 1343; 'Wüliams v. City of San Pedro, 153 Cal. 44, 94 Pac. 234.)</p> <p>A plaintiff in a suit to quiet title cannot recover unless he shows title in himself, even though the defendant is also without title. (Sears v. Willard, 165 Cal. 12, 130 Pae. 869.)</p> <p>In a suit to quiet title, where plaintiff had no title as against defendants, it is not necessary to determine defendant’s rights to the property. (Elwert v. Beid, 70 Or. 318, 139 Pac. 918, 141 Pac. 540; San Francisco v. Ellis, 54 Cal. 72; Shelton Logging Go. v. Qosser, 26 Wash. 126, 66 Pac. 151.)</p> <p>Under the possessory act of California providing that no person shall be entitled to maintain an action for the possession of any claim, unless he “occupy” the same, no one can maintain such action unless they actually reside on the land. {Wolfskill v. Malajowich, 39 Cal. 276; Coryell v. Cain, 16 Cal. 567; Einchman v. Bipinsky, 3 Alaska, 543.)</p> <p>The possessory act of this state itself plainly says that the claimant must continue to occupy and cultivate the land either in person or by his agent or employee, and “no person is entitled to maintain any such action unless he has complied with all the provisions of this chapter.” {Sweetland v. Froe, 6 Cal. 144; Murphy v. Wallingford, 6 Cal. 648; Wright v. Whitesides, 15 Cal. 46; Feirbaugh v. Masterson, 1 Ida. 135; Gird v. Bay, 17 Cal. 352; Crowell v. Lanfraneo, 42 Cal. 654.)</p> <p>An abandonment of a possessory right to land may be inferred from disuse and cessation of occupancy. {Gluckmf v. Beed, 22 Cal. 468; Carroll v. Price, 81 Fed. 137; Small v. Bakestraw, 196 U. S. 403, 25 Sup. Ct. 285, 49 L. ed. 527.)</p> <p>A homestead settler on unsurveyed public land not yet open to entry must make entry within three months after the filing of the township plat of survey in the district land office. (Buxton v. Traver, 130 U. S. 232, 9 Sup. Ct. 509, 32 L. ed. 920.)</p>

<p>APPEAL from tbe District Court of the First Judicial District, in and for Shoshone County. Hon. William W. Woods, Judge.</p> <p>Action on account. 'Judgment for plaintiff.</p> <p>The statute of limitations begins to run from the time when the action might properly be commenced. (Pridgeon v. Greathouse, 1 Ida. 359.)</p> <p>The statute of limitations was pleaded by special demurrer in the manner prescribed by our law. (Sec. 4213, Rev. Codes ; Chemung Moving Go. v. Hanley, 9 Ida. 786, 77 Pac. 226; Frants v. Idaho Artesian Well & Drilling Go., 5 Ida. 71, 46 Pac. 1026.)</p> <p>The fact that defendant answered after his demurrer was overruled does not amount to a waiver of the error committed against him. (Miller v. Hunt, 6 Ida. 523, 57 Pac. 315; Corcoran v. Sonora Min. etc. Co., 8 Ida. 651, 71 Pac. 127.)</p> <p>The statute of limitations acts upon the remedy and not upon the debt, and the running of the statute does not extinguish the debt. (Kelly v. Leachman, 3 Ida. 629, 33 Pac. 44.)</p> <p>To be available, the statute must be pleaded directly. (Bixby v. Crafts, 6 Cal. Unrep. 12, 53 Pac. 404.)</p> <p>It cannot be interposed by argument or inference. (Frants v. Idaho Artesian Well & Drilling Co., 5 Ida. 71, 76, 46 Pae. 1026; sec. 4213, Rev. Codes.)</p> <p>If it clearly appears from the face of the complaint that the cause of action did not accrue within the statutory time, the plea of the statute should be taken by demurrer. But if it does not clearly appear from the face of the complaint that the cause of action is barred by the statute of limitations, then the plea of the statute should be taken by answer. (Chemung Mining Co. v. Hanley, 9 Ida. 786, 794, 77 Pac. 226.)</p> <p>It cannot be raised by an objection to the testimony, nor by a motion for nonsuit or directed verdict. (Castagnino v. Balletta, 82 Cal. 250, 23 Pae. 127.)</p>

<p>APPEAL from the District Court of the Eighth Judicial District for Kootenai County. Hon. John M. Flynn, Judge.</p> <p>Action to recover from the directors of a corporation the amount of a dividend declared and paid from the capital stock of a corporation and not from the surplus profits of its business. 'Judgment for defendants.</p> <p>The identification of the journal of the Winn-Barr-Chainey Co., Ltd., was much more complete and positive than was required according to the rules of evidence. (Jones on Evidence, sec. 573; Elliott on Evidence, sec. 465; Lowry National Bank v. Fickett, 122 Ga. 489, 50 S. E. 396.)</p> <p>“Where the originals consist of numerous documents which cannot be conveniently examined in court, and the fact to be proved is the general result of an examination of the whole collection, evidence may be given as to such result by any person who has examined the documents and who is skilled in such matters, provided the result is capable of being ascertained by calculation.” (Jones on Evidence, sec. 206; Wolford v. Farnham, 47 Minn. 95, 49 N. W. 528.)</p> <p>Clearly this is the rule in respect to experts. (Culver v. Marks, 122 Ind. 554,17 Am. St. 377, 23 N. E. 1086, 7 L. R. A. 489.)</p> <p>Competent witnesses have been allowed to summarize the accounts and to state conclusions as to balances, solvency and insolvency and the like. (San Pedro Lumber Go. v. Reynolds, 121 Cal. 74, 53 Pac. 410; Elmira Roofing Co. v. Could, 71 Conn. 629, 42 Atl. 1002; Louisiana Purchase Exposition Go, v, Kuenzel, 108 Mo. App. 105, 82 S. W. 1099; Drummond v. Stewart, 8 Iowa, 341; Burton v. Briggs, 20 Wall. (87 U. S.) 125; 22 L. ed. 299; Wigmore on Evidence, secs. 1230, 1244 (4); Wilson v. Alcatraz Asphalt Co., 142 Cal. 182, 75 Pac. 787; Elliott on Evidence, sec. 1053.)</p> <p>If the books could have been produced, they, should have been, and without them secondary evidence of their contents ought not to be admitted, but they were clearly shown to be lost or destroyed. {Mills v. Glennon, 2 Ida. 105, 6 Pac. 116; Marchand v. Bonaghan, 9 Ida. 95, 72 Pac. 731.)</p> <p>The affidavit of Bigelow clearly identified the journal of the Winn-Barr-Chainey Co., Ltd., according to the requirements of the trial judge, and if a new trial had been granted, the. fact that the journal of itself showed that the corporation was insolvent at the time the dividend was declared would result in a verdict for the plaintiff, so that from such affidavit the court could see that a different result would be obtained on a new trial, and the motion for a new trial should have been granted. {Oherlander v. Fiasen & Co., 129 Cal. 690, 62 Pac. 254; Twin Springs Placer Co. v. Upper Boise Hydraulic Min. Co., 6 Ida. 687, 59 Pac. 535.)</p> <p>By the offer of unidentified books of account and the deductions therefrom and written summary, report or statement of witness Le Master, appellant was endeavoring to prove the insolvency of the Winn-Barr-Chainey Company, and that respondents Scott, Barton and Chainey had fraudulently declared and received dividends from the capital of that concern, knowing it to be insolvent. The proof of such facts should be strict, certain and unequivocal. (3 Thompson on Corporations, 4293-4295; 10 Cye. 884.)</p> <p>Solvency is always presumed, and mere opinion evidence is not admissible to establish insolvency. (7 Ency. of Evidence, 482-487; Grosse v. Cooley, 43 Minn. 188, 45 N. W. 15.)</p> <p>The showing made by appellant for a new trial on the ground of newly discovered evidence is wholly inadequate and insufficient. {Scanlon v. San Francisco etc. By. Co., 128 Cal. 586, 61 Pac. 271; Broads v. Mead,. 159 Cal. 765, Ann. Cas. 1912C, 1125, 116 Pac. 46.)</p>

Hon. R. N. Dunn, Judge. Prosecution, for murder in the second degree. Judgment for plaintiff. It is the practice for the judge at nisi prius not only to state to the jury all of the evidence that has been given, but to comment upon its bearing and weight and to state the legal rules upon the subject and their application to the particular case, and to advise them as regards the verdict they should give.

<p>APPEAL from tbe District Court of tbe Fourth Judicial District for Blaine County. Hon. Edward A. Walters, Judge.</p> <p>Appeal from an order dismissing a motion for a new trial. Defendant appeals.</p>

<p>Original proceeding in this court for a writ of prohibition prohibiting the county commissioners of Ada county from requiring a drug company employing licensed pharmacists to pay to the county a license tax of $200, as provided in sec. 1510, Rev. Codes.</p> <p>The license required under sec. 1510 was for the sale of intoxicating liquors, which were defined in sec. 1527 in the exact language that was later used in another act and construed by our supreme court in State v. Osmers, 21 Ida. 18, 120 Pac. 165, not to include alcohol.</p> <p>Counsel in his brief relies upon the fact that this statute is in a chapter that is for the purpose of regulating the sale of intoxicating liquor. This license is not a regulatory one, but is for the purpose of raising revenue, and even though it is in this chapter, if it is not in direct conflict with the later prohibition acts and can be reconciled with them, it must be continued' in force. (State v. Forth, 26 Ida. 755, 146 Pac. 110.)</p>

Under our constitution and statutes a defendant who has been held to answer by a committing magistrate cannot be tried upon the information of the public prosecutor when the trial court, or the judge thereof, has determined that conditions existing necessitate the convening of a grand jury and does convene such grand jury between the time the defendant was held to answer and the time of his trial in the district court, provided the defendant had not, prior to the issuing of…

'APPEAL from the District Court of the Eighth Judicial District for Kootenai County. Hon. E. N. Dunn, Judge. Action to recover on a fire insurance policy. Judgment for the plaintiffs. Since the poliey of insurance is a written contract, the parties having made and reduced their agreement to writing, to follow the rule permitting parol evidence to show waiver of terms would be no more or less than to permit parol evidence to vary the terms of a written instrument.

<p>APPEAL from the District Court of the First Judicial District for Shoshone County. Hon. Wm. W. Woods, Judge.</p> <p>Action in ejectment to recover a portion of a mill site situated in Placer Center Mining District, Shoshone county, and to recover for withholding the same and for the rental thereof. Judgment for plaintiffs.</p> <p>The plain and palpable meaning of instruction No. 3 is that (1) defendant’s possession and claim must not only have been such as to impute notice to plaintiff of defendant’s claim of title, but (2) that defendant must have given actual notice of its claim of title. All that the law requires is notice, and in no case does the law require both kinds. Either is sufficient in the case of the grantor claiming adversely to the grantee. (Lord v. Sawyer, 57 Cal. 65; 3 Washburn on Real Property, 88; Dorland v. Magilton, Ml Cal. 485; Franklin v. Borland, 28 Cal. 175, 87 Am. Dec. Ill; Hartman v. Reed, 50 Cal. 485; Mannix v. Riordan, 75 App. Div. 135, 77 N. Y. Supp. 357; Sherman v. Kane, 86 N. Y. 57; Dickey v. Forrester (Tex. Civ.), 148 S. W. 1181.)</p> <p>The relation of grantor may be denied by retaining actual possession and exercising acts of control and dominion over the property, consistent only with a claim of exclusive ownership and of adverse right, and hostile to the title of the grantee. (Kwight v. Knight, 178 111. 553, 53 N. E. 306; Folley v. Thomas, 46 Ind. App. 559, 93 N. E. 181; Batz v. Woerpel, 113 Wis. 442, 89 N. W. 516.)</p> <p>As to what “improvement” means under sec. 4043, Rev. Codes, see Gray v. Walker, 157 Cal. 381,108 Pac. 278; Daniels v. Gualala Mill Go., 77 Cal. 300, 19 Pac. 519.</p> <p>The word “improve” means “to make better,” “to increase the value or good qualities of.” {Dougherty v. Taylor etc. Go., 5 Ga. App. 773, 63 S. E. 928; Brown v. Brown, 18 Ida. 345, 110 Pac. 269; Meyer v. City Street Imp. Co., 164 Cal. 645, 130 Pac. 215; A. Leschen & Sons Rope Co. v. Moser (Tex. Civ.), 159 S. W. 1018.)</p> <p>The jury was told by instruction No. 7 that notice need not be actual, and appellant’s argument, based on the assumption that instruction No. 3 called for actual notice, falls to the ground. The instruction criticised states the law correctly. (1 Cyc. 1039; Cye. Ann. for 1913, p. 70.)</p> <p>A clear, positive and continued disclaimer and disavowal of the title, and assertion of an adverse right, to be brought home to the party, are indispensable before any foundation can be laid for the operation of the statute. {Zeller v. Eckert, 4 How. (45 U. S.) 289, 11 L. ed. 979; Fountain v. Lewiston Nat. Bank, 11 Ida. 451, 469, 83 Pac. 505; Brown v. Brown, 18 Ida. 345,110 Pac. 269.)</p>

<p>Fraud in Procuring Judgment — Defense to Original Action — Attorney’s Fee.</p> <p>1. It having been determined in a former decision by this court that the facts relied upon by appellant do not constitute a defense to the note and mortgage, involved heroin, either in (he hands of the original owners or of their assignee, the judgment heretofore entered decreeing the foreclosure of the mortgage, in an action wherein the assignee was plaintiff and appellant was defendant, will not be vacated by reason of fraud, consisting of misrepresentations and concealments, whereby the court was procured to adjudge and decree that the assignee was the holder and owner of the note and mortgage by purchase and assignment in the regular course of business, when in truth and in fact he held them for the purpose of collection only, since appellant’s proposed defense, should he be permitted to make it in another action involving the same matter, must fail.</p> <p>2. Where a note and mortgage provide that the maker will, in case suit or action is instituted to collect the debt thereby evidenced and secured, pay a reasonable attorney’s fee in addition to the costs and disbursements necessarily expended by plaintiff, he is equally liable if the plaintiff holds the note and mortgage for the purpose of collection only, and the assignors have paid an attorney’s fee, or are chargeable with it, as he would be if the plaintiff had become the owner of the note and mortgage in the regular course of business and for value, and had paid or had become liable for the fee himself.</p> <p>[As to validity of stipulation for attorney’s fees in notes, see note in 55 Am. St. 438.]</p>

Hon. William W. Woods, Judge. Action to enforce laborers’ liens under the provisions of chapter 170, Sess. Laws 1911. Judgment for plaintiffs'. Chapter 170, Session Laws of 1911, of the acts of the legislature of Idaho, is not within the police power of a state, and is unconstitutional and void. (Frorer v. People, 141 111. 171, 31 N. E. 395, 16 L. R. A. 492; Jordon v. State, 51 Tex. Cr. 531, 103 S. W. 633, 11 L. R. A., N. S., 603, 14 Ann.

<p>. Constitutional Law — Title to Legislative Act — Adverse Party as Witness — Exhibits Admitted Conditionally — Conflict in Evidence.</p> <p>1. Tbe act of tbe legislature approved March 13, 1909 (Sess. Laws, 1909, p. 334), permits a party to a civil action, or proceeding, to call as a witness tbe adverse party, or other person for whose immediate benefit such aetion or proceeding is prosecuted or defended, or tbe directors, officers, superintendent or managing agents of any corporation whieh is a party of record in tbe case, and to examine such witness as if under cross-examination. Tbe purpose of this act is sufficiently expressed in tbe title, and meets tbe requirements of sec. 16, art. 3 of tbe constitution.</p> <p>[As to constitutional provisions relating to sufficiency of title of statutes, see note in 79 Am. St. 456.]</p> <p>2. Where it appears from tbe record that tbe trial court, sitting without a jury, admitted certain exhibits in evidence conditionally, the condition being that respondent would make a showing which would give tbe court some ground to act upon them, and where no showing was made in that behalf, there is nothing in the record to indicate that the court acted upon them, or considered their contents in reaching its conclusion, it will be inferred that it disregarded the exhibits, and their admission, under these circumstances, was not prejudicial error.</p> <p>3. Where a debtor seeks to show payment by receipts, canceled cheeks or other vouchers, which appertain to another transaction than that embraced within the issues framed by the pleadings, it is clearly proper to admit evidence tending to show that fact to the end that he does not receive credit to which he is not entitled.</p> <p>4. The rule that an appellate court will not disturb the judgment of a trial court, because of conflict in the evidence, where there is sufficient proof, if uncontradieted, to sustain it, applies with equal force in actions at law and suits in equity where the decision is based upon oral evidence.</p>

Hon. Wm. W. Woods, Judge. Action by minority stockholders in an Idaho corporation, asking for the appointment of a receiver, the dissolution of the corporation, and a division of the assets of the corporation. Judgment for defendants.

Hon. Ed. L. Bryan, Judge. Appeal from an order denying a motion to bring in additional parties. Motion to dismiss appeal upon the ground that the order made was not appealable. ‘ ‘ The right to appeal is statutory, unknown to the common law, and it cannot be extended by courts to eases not within the statute.” (General Custer Min.

<p>Eminent Domain — Complaint — Demurrer — Private Property — Public Use — Material Resources — Timber Resource — Complete Development of — 'Constitutional Construction — Self-executing Provisions — Judicial Question — Procedure.</p> <p>1. Held, that the complaint' states a cause of aetion and the court did not err in overruling the demurrer.</p> <p>2. Sec. 14 of art. 1 of the state constitution declares for what purposes the power of eminent domain may be exercised, and the legislature cannot mahe the provisions of that section any more effective by enacting them into statute law.</p> <p>3. To the extent of establishing the nature of the use for which privately owned property is necessary to the complete development of the material resources of the state, the provisions of said see. 14 of the' constitution are self-executing, and the courts of general jurisdiction are vested with the power to determine, upon judicial inquiry, whether or not any particular use for which land is sought to be appropriated is “necessary to- the complete development of the material resources of the state.”</p> <p>[As to what constitutes publie use, see note in 102 Am. St. 813.]</p> <p>4. In said see. 14 of the constitution, the people have declared the necessary use of lands to the complete development of the material resources of t'he state .to be a public use, and the legislature has provided a procedure to subject such lands to such use.</p> <p>5. After the adoption of sec. 14, art. 1, of the constitution, it only remained for the legislature to provide the procedure to carry into effect the provisions of said section. The legislature, however, might add to the publie uses enumerated in said section, but it could not annul or repeal any of the uses therein specified.</p> <p>6. That clause of said section, to wit, “subject to the regulation and control of the state,” refers to the machinery or procedure necessary to subject private lands to a public use.</p> <p>7. By that provision of said sec. 14, to wit, “or any other use necessary to- the complete development of the material resources of the state is hereby declared to be a publie use,” it was intended to and does include and cover every material resource of the state, and it is for the court to determine upon the facts of each case whether or not the case comes within the provisions of said section of the constitution.</p> <p>8. Where it is provided in the constitution in express terms for what purposes the right of eminent domain may be exercised, and publie uses are defined therein, such provision is the expression of the sovereign will, and grants the right as effectually as if expressed in a legislative act, and can be enforced when such grant is supplemented by an act of the legislature providing the procedure for the exercise of sueh right.</p> <p>9. Under the provisions of said sec. 14, the right of eminent domain is permitted on the theory of a publie use for the “complete development of the material resources of the state,” even where the public may have no direct interest in the exereise of the right of eminent domain and the main end of which is private gain, and where the benefit to- the people at large could result indirectly and incidentally only from the increase of wealth and the development of those material resources.</p> <p>10. The constitution and statute provide that full compensation shall be paid for all lands taken for a publie use.</p> <p>11. E'eld, that where a temporary logging road is neeessary to the complete development of the material resources of the state, the necessary use of land for a right of way is a “public use,” and may be acquired as provided by -the statute.</p>

IJon. Edward A. Walters, Judge. Action to recover the price of an automobile. Judgment for defendants. If there is no connection in the matter of the promise, and the performance on the one side is quite independent of the performance on the other, the promises are in general independent and not conditional. (9 Cye. 642; Poliak v. Brush Electric Assn, of St. Louis, 128 U. S. 446, 9 .Sup.

Hon. Chas. P. McCarthy, Judge. Respondent was convicted in the justice’s court of keeping open and operating a moving picture show on Sunday. He appealed to the district court and was acquitted. The state appeals. The overt violation of a Sunday rest law or the act itself being once established, the intent is immaterial.

Hon. Wm. W. Woods, Judge. Action for damages. Judgment for plaintiff. . “Whenever a nuisance is of such a character that its continuance is necessarily an injury and when it is of a permanent character, that will continue without change from any cause but human labor, then the damage is an original damage, and may be at once fully compensated.” (Troy v. Cheshire B. Co., 23 N. H. 83, 55 Am. Dec. 177; Powers v. Council Bluffs, 45 Iowa, 652, 24 Am.

<p>APPEAL from tlie District Court of the First Judicial District for Sbosbone County. Hon. Wm. W. Woods, Judge.</p> <p>Action to enforce tbe delivery to the purchasers of certain mining stock for which they had paid. Judgment for the interpleaders Riley and Robbers, who are respondents.</p> <p>By their motion for judgment upon the pleadings, respondents Robbers and Riley admit the truth of all of the allegations of the complaint of the bank and the allegations of the answer of the defendants Callahan Mining Company and Francis C. Boutin. (Walling v. Bown, 9 Ida. 184, 72 Pac. 960; Mills Novelty Go. v. Dunbar, 11 Ida. 671, 83 Pac. 932; Idaho Placer Min. Co. v. Green, 14 Ida. 294, 94 Pac. 161; Davenport v. Burke, 27 Ida. 464, 149 Pac. 511.)</p> <p>The entire agreement between the mining company and Robbers and Riley is invalid and unlawful.</p> <p>“When powers involving the exercise of judgment and discretion are vested in the directors or ¿trustees, they cannot delegate the same unless expressly or impliedly authorized to do so.” (Clark & Marshall on Corporations, sec. 731; Flagstaff Silver Min. Co. v. Patrick, 2 IJtah, 304; Glass v. Basin & Bay State Min. Co., 31 Mont. 21, 77 Pac. 302; Trustees of Auburn Academy v-. Strong, 1 Hopk. Ch. (N. Y.) 278; West v. Camden, 135 U. S. 507, 10 Sup. Ct. 838, 34 L. ed. 254; Jackson v. Hooper, 76 N. J. Eq. 592, 75 Atl. 568, 27 L. R. A., N. S., 658; Gage v. Fisher, 5 N. D. 297, 65 N. W. 809, 31 L. R. A. 557; Elliott on Contracts, sec. 749, and cases cited in note.)</p> <p>The contract provides for a distribution of the profits as they accrue, without action by the board of directors. Such provision of the contract is clearly illegal as against public policy. (Beveridge v. New York M. B. Co., 112 N. Y. 1, 19 N. E. 489, 2 L. R. A. 648.)</p> <p>The obligations undertaken by the mining company are all for one consideration, namely, the payment of the purchase price of the stock by Robbers and Riley. These conditions are interdependent.</p> <p>“Where the consideration of a contract consists of several different elements and no apportionment or separate valuation or means of apportionment or valuation of the different elements of the consideration is made by the parties, the entire contract will be held illegal, if one of the elements of the consideration is immoral or against public policy.” (15 Am. & Eng. Ency. 989; More v. Bonnet, 40 Cal. 251, 6 Am. Rep. 621; Elliott on Contracts, new ed., sec. 1077; Bettini v. Gye, 1 Q. B. Div. 187; Straus v. Yeager, 48 Ind. App. 448, 93 N. E. 877; Sterling v. Gregory, 149 Cal. 117, 85 Pac. 305; Cooperative Tel. Co. v. Katus, 140 Mich, 367, 112 Am, St. 414, 103 N. W. 814.)</p> <p>“Upon performance of the condition the grantee or obligee is entitled to delivery, which will be enforced by a decree of court. Where a condition which was in favor of the grantee was not performed, he may waive it and enforce delivery. If the depositary refuses,to deliver, the remedy is not against the other party to compel specific performance of the escrow contract, but against the depositary to obtain possession of the instrument.” (16 Cyc. 585.)</p> <p>£ £ Where an instrument has been placed in escrow, the transaction constitutes a contract between the parties, and such contract cannot be rescinded by the depositor alone. Hie cannot withdraw the escrow from the hands of the depositary at his will and without the consent of the other party, or without default in the performance of the conditions.” (2 Am. 6 Eng. Ency. Law, 2d ed., 344; Gannon v. Handley, 72 Cal. 133, 13 Pae. 315, 318; McDonald, v. Huff, 77 Cal. 279,19 Pac. 499.)</p> <p>“Where the acts are stipulated to be done at different times the covenants are to be construed as independent of each other.” ■ (Goldsborough v. Orr, 21 U. S. (8 Wheat.) 217, 5 L. ed. 600; Straus v. Yeager, 48 Ind. App. 448, 93 N. E. 877; Hdgerton v. Power, 18 Mont. 350, 45 Pac. 204; 9 Cyc. 642.) Bobbers and Biley having fully complied with the terms and covenants of their agreement, and the appellant company having received the benefits thereof, it is estopped from denying its right to contract and from invoking the doctrine and plea of ultra vires.</p> <p>“Corporations are presumed to contract within their powers. The doctrine of ultra vires, when invoked for or against a corporation, should not be allowed to prevail where it would defeat the ends of justice or work a legal wrong.” (Ohio & Miss. By. Co. v. McCarthy, 96 U. S. 258, 267, 24 L. ed. 693, 696; Whitney Arms Co. v. Barlow, 63 N. T. 62, 20 Am. Bep. 504; Burke Land etc. Co. v. Wells, Fargo & Co., 7 Ida. 42, 61, 60 Pac. 87; Fremont County v. Warner, 7 Ida. 367, 63 Pac. 106.)</p>

Hon. William W. Woods, Judge. Action to have title to certain real estate standing of record in the name of Estelle Trask decreed' to be held by her in trust for the use and benefit of the American Mining Company, Limited. Judgment for plaintiff. No trust arises upon such a state of facts as is involved in this case. (Dude v. Ford, 138 U. S. 587, 11 Sup.

<p>APPEAL from the District Court of the Fifth Judicial District for Bannock County. Hon. J. M. Stevens, Judge.</p> <p>Action to declare boundaries between portions of two counties. Judgment for the plaintiff. Motion to set aside judgment.</p> <p>The question is, has the district court the authority on its own motion to grant a new trial upon grounds other than those named in sec. 4444, Sess. Laws 1911, chap. 118, amending sec. 3529, Laws of Idaho, 1901. (Stevens v. Northwestern Stage Co., 1 Ida. 604; Simpson v. Pioneer Irr. Dist., 17 Ida. 435, 106 Pac. 1; State v. Davis, 8 Ida. 115, 66 Pac. 932; State v. Bice, 7 Ida. 762, 66 Pac. 87.)</p> <p>Where the application for new trial is made under the provisions of sec. 4439, it must appear from the evidence that the party could not, with reasonable diligence, have discovered the evidence and produced it at the trial. (Hall v. Jensen, 14 Ida. 165, 93 Pac. 962.) Due diligence must be shown. {State v. Williams, 12 Ida. 483, 86 Pac. 53; State v. Davis, 6 Ida. 159, 53 Pac. 678.) Due diligence has not been shown in the case at bar.</p> <p>Defendant’s counsel cannot be relieved from the consequence of his inattention and neglect by the court, of its own motion, going outside the terms of the statutes and granting a new trial, not upon the grounds specified in the statutes, but upon the grounds included in defendant’s motion for a new trial. {Gould v. Duluth- & Dakota Elevator Go., 2 N. D. 216, 50 N. W. 969; Flugel v. Henschel, 6 N. D. 205, 69 N. W. 195; Clement v. Barnes, 6 S. D. 483, 61 N. W. 1126; Townley v. Adams, 118 Cal. 382, 50 Pac. 550; Mizener v. Bradbury, 128 Cal. 340, 60 Pae. 928; Eades v. Trowbridge, 143 Cal. 25, 76 Pac. 714; Baillie v. City of Wallace, 22 Ida. 702, 127 Pae. 908.)</p> <p>It is clearly within the discretion of the trial judge to vacate a judgment entered by mistake, etc. (Sec. 4229, Bev. Codes.)</p> <p>Application for relief under this section is addressed to the sound legal discretion of the trial judge. {Pittock v. Buck, 15 Ida. 47, 96 Pac. 212; Kraft v. Greathouse, 1 Ida. 254.)</p> <p>The granting or refusing of an order made upon application under this section rests on sound legal discretion of the court, and unless the appeal to such discretion has been abused, the order will not be disturbed on appeal. {Pease v. Kootenai County, 7 Ida. 731, 65 Pae. 432; Holzeman & Co. v. Henneberry, 11 Ida. 428, 431, 83 Pac. 497; Western Loan etc. Co. v. Smith, 12 Ida. 94, 103, 85 Pac. 1084; Watson v. San Francisco etc. li. Go., 41 Cal. 17.)</p>

Hon. John M. Flynn, Judge. Action to recover damages for malpractice. Judgment for plaintiff. The case should not be submitted to the jury where the evidence shows two or more causes, for one of which the defendant would not be liable. (Miller v. Northern Pac. B. Co., 24 Ida. 567, Ann. Cas. 1915C, 1214, 135 Pac. 845, 48 L. R. A., N. S., 700; Cook v. Minneapolis etc. By. Co., 98 Wis. 624, 67 Am. St. 830, 74 N. W. 561, 40 L. R. A. 457; Adams v. Bunker Hill etc. Min.

Hon. Edward A. Walters, Judge. Action for writ of mandate to compel the delivery of water for irrigation. Judgment of nonsuit.' Motion for nonsuit should be denied unless the evidence wholly fails to show a right of recovery.

<p>Personal Injuries — Negligence of Master — Safety of Appliances— Sufficiency of Evidence — Motion for Nonsuit — Contributory Negligence — Instructions.</p> <p>1. Seld, that there was sufficient evidence to be considered by the jury upon the question of negligence of the defendants in failing to furnish reasonably safe appliances for the prosecution of the work in which the plaintiff was engaged at the time of receiving the injury, and it was not error for the court to deny the motion for a nonsuit.</p> <p>2. It is the duty of the master to furnish the servant with reasonably safe appliances with which to perform the work required to be performed, and the servant is chargeable only with the duty of taking notiee of conditions in regard to the appliances which were patent, obvious or known to him.</p> <p>3. The duty of providing a reasonably safe place and reasonably safe machinery rests on the master, and a reasonably prudent master would ordinarily use a higher degree-of care to keep the place of work reasonably safe than would the servant who occupied it.</p> <p>4. Where the facts are disputed and from them reasonable and prudent men might disagree as to the question of negligence, that question then becomes a question of fact, and under proper instructions must be submitted to the jury.</p> <p>5. Under the provisions of the employers’ liability law (Sess. L. 1909, p. 34), in an action by a servant for personal injuries, the question whether plaintiff assumed the risk or was negligent is, under the evidence, for the jury.</p> <p>6. To entitle a plaintiff in a personal injury case to recover special damages, they must be specially pleaded, and where the court instructs the jury that “if you find for the plaintiff, you will allow him a fair compensation for the loss of time from his business or occupation, his loss of capacity, if any, for the performance of the kind of labor for which he is fitted,” and there is no claim made in the eomplaint for any special damages by reason of such conditions, the giving of such instruction is improper, but the giving of it does not constitute prejudicial or reversible error where the evidence shows that the amount of damages awarded by the verdict of the jury was not excessive when confined only to those elements of damage which were properly pleaded and proved.</p> <p>On different forms of statement of the general rule with respect to the master’s duty as to places and appliances furnished to servant, see note in 6 L. R. A., N. S., 602.</p> <p>7. Seld, that the instructions given by the court, taken as a whole, fairly cover the law of the case, and that it was not reversible error for the court to refuse to give certain instructions requested by the defendants.</p> <p>[As to right to recover in action for tort, special damages properly pleaded consisting of liability incurred but not paid, see note in Ann. Cas. 1913D, 761.]</p>

<p>APPEAL, from the District Court of the Seventh Judicial District, for Canyon County. Hon. Ed. L. Bryan, Judge.</p> <p>Action to foreclose a mechanic's lien.</p>

<p>Constitutional Law ■— Statutory Construction — Municipal Ordinances — Jurisdiction op Police Judge — As Committing Magistrate.</p> <p>1. See. 2238k, amending sec. 2238, Rev. Codes (Sess. L. 1915, p. 232), which provides that any city or village may “Make all such ordinances, by-laws, rules, regulations, resolutions not inconsistent with the laws of the state, as may be expedient, in addition to the special powers in this title granted, maintain the peace, good government and welfare of the corporation and its trade, commerce, manufacture, and to enforce all ordinances by inflicting fines or penalties for the breach thereof, . . . . ” does not delegate to municipalities authority to prohibit by ordinance the possession of intoxicating liquors and to inflict a punishment for the possession thereof.</p> <p>2. Under grants of power by the legislature to municipal corporations, only such powers and rights can be exercised as are clearly comprehended within the words of the granting aet or derived therefrom by necessary implication, regard being had to the object of the grant. Any ambiguity or doubt arising out of the terms used by the legislature must be resolved in favor of the granting power. Regard must also be had to constitutional provisions intended to secure the liberty and to protect the rights of citizens, to the end that no citizen shall be deprived of life, liberty or property without due process of law.</p> <p>3. A municipality has no power to confer upon police judges jurisdiction to summarily hear and determine acts denominated by the general law of the state as indictable misdemeanors by the enactment of an ordinance prohibiting such acts and prescribing a punishment therefor.</p> <p>4. Under sec.'8, art. 1, of the constitution, which provides that “No person shall be held to answer for any felony or criminal offense of any grade, unless on presentment or indictment of a grand jury or on information of the public prosecutor, after a commitment by a magistrate, except in cases of impeachment, in cases cognizable by probate courts or by justices of the peace, . . . . ” the jurisdiction of justices of the peace and probate courts is limited to such cases as are by statute made cognizable by such courts.</p> <p>On the power to prohibit the keeping of intoxicating liquor irrespective of any intention to sell it in violation of law, see notes in 26 L. R. A., N. S., 394; L. R. A. 1915D, 172.</p> <p>On the power to prohibit or restrict one’s using intoxicating liquor or having the same in his possession for his own use, see note in 24 L. R. A., N. S., 173. '</p> <p>5. Secs. 2202, 3854 and 7511, Rev. iCodes, make the jurisdiction of a police judge concurrent with that of justices of the peace and probate judges to try persons charged with having committed a non-indictable misdemeanor committed within the city limits, and to hold preliminary examinations of persons charged with indictable misdemeanors or felonies committed within the city limits under the genera] laws of the state.</p> <p>6. Under sec. 8, art. 1, of the constitution, the legislature eannot confer upon municipalities authority to prohibit or punish indictable misdemeanors.</p> <p>7. Eeld, that in the case at bar the city poliee magistrate was without jurisdiction except as a committing magistrate, and that the ordinance of the city of Ooeur d’Alene purporting to confer jurisdiction upon the police magistrate to summarily try the defendant and inflict punishment for an act which, under the state law, constitutes an indictable misdemeanor, is null and void.</p> <p>8. Eeld, that it was the duty of the police magistrate in this case to proceed to hold a preliminary examination under the provisions of secs. 7565-7589, Rev. Codes, and, if the evidence warranted, to hold the defendant to answer to the district court.</p> <p>9. Eeld, that the defendant had a constitutional right to a preliminary examination unless he expressly waived the same, before he could lawfully be placed upon trial for the offense with which he was charged.</p> <p>[As to police power of municipal corporation to punish crimes, see note in 110 Am. St. 149.]</p>

Hon. C. O. Stockslager, Judge. The defendant was convicted of the crime of grand larceny and sentenced to the state penitentiary for a term of not less than six years nor more than fourteen years.

Hon. James M. Stevens, Judge. Defendant was convicted of obstructing a publie road and sentenced to pay a fine of $100. Where land, is vacant and unoccupied, the fact that the public travel over it for the prescriptive period does not constitute it a public road. (State v. Horn, 35 Kan. 717, 12 Pac. 148; Harding v. J asper, 14 Cal. 643; Smith v. Smith, 34 Kan. 293, 8 Pae. 385; Friel v. People, 4 Colo.

<p>Criminal Law — View or Premises by Jury — Improper Beception or Evidence — Presumption or Prejudicial Ineluence — View or Premises After Submission or Case — Waiver or Error.</p> <p>1. Under see. 7878, Bev. Codes, a jury may be allowed, in the exercise of the discretion of the court, to inspect the seene of the transaction under investigation, but it is improper for the jury to take evidence by experimentation or otherwise outside of the court. Held, that in this case a demonstration by certain jurors with a broom and the making of statements by outsiders in the presence of the jury while engaged in a view permitted by the court, constituted receiving evidence other than a view within the meaning of said sec. 7878, Bev. Codes.</p> <p>2. Where evidence has been improperly received by a jury engaged in a view under sec. 7878, Bev. Codes, the presumption arises, in the ease of one being prosecuted for the commission of an offense, that the jury has been prejudicially influenced by receiving evidence other than a view of the premises.</p> <p>3. Sec. 7878, Bev. Codes, which provides that a view of the premises may be had by the jury when in the opinion of the court such view is proper, contemplates a view prior to the argument of counsel and the giving of instructions by the court. It was not intended by this section to give the jury permission to view the premises after the cause had been submitted to them.</p> <p>4. Where the defendant in a criminal case consents to a view of the premises by the jury after the submission of the case, and is present with his counsel during such view, he is chargeable with knowledge of any irregularity that may have taken place or any error that may have been committed in his presence, and in that event should avail himself of the first opportunity to call to the attention of the trial judge such error or irregularity, and in the absence of a showing to the contrary, “the first opportunity” will be considered to be upon the return of the jury from the view.</p> <p>5. It is incumbent upon the defendant in a criminal ease, as it is upon a party in a civil action, if he would take advantage on appeal of the commission of an error during the progress of his trial, to make his objection and save his exception at the time when the error or irregularity was committed, and he is not permitted to await the action of the jury, and after an adverse verdict has been rendered assign as error alleged misconduct of the jury which was known to him at the time, and by reason thereof be granted a new trial.</p> <p>6. Where the attorney for the defendant stated after a view of the premises by the jury, under sec. 7878, Eev. Codes, that he was satisfied with such view, it was not incumbent upon the attorney for the s'tate to call to the attention of the court any alleged error committed during such view, and thereby save the record for the defendant’s case on appeal.</p> <p>[As to right of court, trying case without jury, to view the premises, see note in Ann. Cas. 1916A, 258.]</p>

<p>Artesian Wells — Action to Enjoin Use- op — Proof Required — Conflicting Evidence — Ecnding op Ultimate Pacts — Decree—Adjudication of Rights.</p> <p>1. Where the owners of a group of artesian wells bring an action against the owners of another group of wells which were sunk at a later date, to restrain the latter from operating their wells, on the ground that they are tapping the same subterranean flow and thereby decreasing the flow in plaintiffs’ wells, satisfactory and convincing proof should be adduced before a court of equity would be justified in permanently enjoining defendants from the operation of their wells, since witnesses cannot testify by aetual observation to the exact origin and course of subterranean waters, and the decrease in flow of plaintiffs’ wells might be due to other causes.</p> <p>2. Where a trial court, sitting as a court of equity, makes findings of fact based upon conflicting evidence, and there is evidence to support both theories of the case, and from which reasonable men might draw different conclusions, such findings of fact will not be disturbed on appeal.</p> <p>3. Where a trial court makes a finding of faet whieh is ultimate in its effect and decisive of all the material issues, the losing party has no ground for complaint because the court does not make findings of other facts in issue whieh are probative or subordinate as regards the main issue in the ease, and the determination of which is made unnecessary by such finding of ultimate facts.</p> <p>4. Held, that the record in this ease supports the finding of the lower court to the effect that there was insufficient evidence to show the existence of an underground connection between plaintiffs’ and defendants’ wells.</p> <p>5. In an action to restrain the owners of a group of artesian wells from operating the same, on the ground that such operation decreases the flow of water in plaintiffs’ wells, the gist of the action is the question of defendants’ right to operate their wells, and when the court found that the evidence was insufficient to establish that there is an underground connection between the two groups of wells and accordingly rendered judgment in favor of defendants, the lower court was not required to adjudicate the rights of either of tie parties to tie use of subterranean waters, even tiougi suei adjudication was prayed for in the complaint, since tie court by its finding of fact ias determined tiat the evidence does not show that the parties take water from tie same subterranean flow.</p> <p>[As to rights of adjoining land owners to use of premises, see note in 123 Am. St. 566.]</p>

Hon. James G. Gwinn, Judge. Action to recover on promissory note. Judgment for plaintiff. The consideration named in a written instrument may be shown by parol evidence to be different from that expressed. (3 Jones on Evidence, art. 469; Van Lehn v. Morse, 16 Wash. 219, 47 Pac. 435; Don Yooh v. Washington Mill. Co., 16 Wash. 459, 47 Pac. 964; Welch v. Brown, 46 Colo. 129, 103 Pac. 296; Parish v. Stone, 14 Pick. (Mass.) 198, 25 Am.

<p>APPEAL from the District Court of the Fourth Judicial District, ■ for Lincoln County. Hon. Chas. O. Stockslager, Judge.</p> <p>Action for damages. Judgment for plaintiff.</p> <p>The theory of the complaint is that the sides of the barn became charged with electricity; that the electricity passed into the barn setting it on fire. In the proof, the theory is that the fire started on the outside by reason of a spark or arc. This variance between the allegations and the proof misled the appellant to its prejudice in maintaining its defense upon the merits. The variance was a material one and the trial court should have sustained appellant’s motion for non-suit. (Sec. 4245, Rev. Codes; Lewis v. Utah Construction Co., 10 Ida. 214, 77 Pac. 336; Davidson Grocery Co. v. Johnston, 24 Ida. 336, Ann. Cas. 1915C, 1129, 133 Pac. 929; Pomeroy, Code Remedies, p. 616; Dolbee v. Detroit etc. By. Co., 144 Mich. 656, 108 N. W. 99; Birmingham By. & Electric Co. . v. Brannon, 132 Ala. 431, 31 So. 523; Chitty v. St. Louis etc. By. Co., 148 Mo. 64, 49 S. W. 868; Pierce v. Great Falls & C. By. Co., 22 Mont. 445, 56 Pac. 867.)</p> <p>The verdict in this action was arrived at by the jury impaneled in this case by a resort to the determination of chance, having agreed in advance that the quotient verdict obtained by the addition of the several amounts to which each juror thinks the party entitled and by dividing the same by the number of jurors voting should be the verdict for which judgment was rendered. (Flood v. McClure, 3 Ida. 587, 32 Pae. 254.)</p> <p>“Courts should at all times discountenance and disapprove the resorting to any such insidious means of reaching a verdict. It is demoralizing in its tendencies and is calculated to bring the administration of justice into disrepute. ’ ’ (Great Northern By. Co. v. Benjamin (Mont.), 149 Pac. 968-, McDonald v. Great Northern By. Co., 5 Ida. 8, 12, 46 Pac. 766.)</p> <p>A quotient or average verdict will be upheld, if the jurors do not antecedently agree to be bound by the result of the computation, but reserve to themselves the right to dissent from it in arriving at their verdict, or if they do so agree, they subsequently discuss the question, and the court can see the verdict is really the result of deliberation and discussion. (Giffen v. City of Lewiston, 6 Ida. 231, 55 Pac. 545; Bealüey v. Optimist Printing Co., 28 Ida. 67, 152 Pac. 212; 1 Hayne, New Trial & Appeal, sec. 71; 38 Cyc. 1845; Thompson, Trials, see. 2602; Lee v. Clute, 10 Nev. 149; Florence etc. B. Co. v. Kerr (Colo.), 151 Pac. 439; Greeley Irr. Co. v. Von Troika, 48 Colo. 12, 108 Pac. 985, 989; Colorado Springs v. Luff, 15 Colo. App. 437, 62 Pac. 959; Empson Packing Co. v. Vaugkn, 27 Colo. 66, 59 Pae. 749, 752; Wiles v. Nortkern Pac. By. Co., 66 Wash. 337, 119 Pac. 810.)</p> <p>The general allegations in the complaint with respect to negligence were ample, and clearly bring the case within the rule announced by this court in Younie v. Blackfoot Ligkt & Water Co., 15 Ida. 56, 96 Pac. 192; Gagnon v. St. Maries Ligkt & Power Co., 26 Ida. 87, 141 Pac. 88.</p>

Hon. Ed. L. Bryan, Judge. Suit for injunction and damages. Judgment for plaintiff. Verdicts of juries and findings of trial courts, where cases have been tried on oral testimony and the evidence is conflicting, will not be disturbed on appeal. For Idaho cases holding to these rules, see Flynn’s Digest, Appeal and Error, XVI, (G), 2 and 4, pp. 52 and 54. The same rule applies in equity cases. (Flynn’s Digest, Appeal and Error, XVI, (G), 5, p. 54.)

<p>Inheritance Tax- — Probate Courts — Jurisdiction — Constitutional. Law — Situs of Personal Property — Corporate Shares.</p> <p>1. "Where there is want of jurisdiction of the subject matter, a. judgment is void, and consent of the parties cannot impart validity to it.</p> <p>2. The jurisdiction of the probate court is limited and defined by sec. 21, art. 5, of the constitution to matters of probate, settlement' of estates of deceased persons, and appointment of guardians; also,, jurisdiction to hear and determine civil cases wherein the debt or-damage claimed does not exceed the sum of $500, exclusive of interest, and concurrent jurisdiction with justices of the peace in. criminal eases.</p> <p>3. It was not the intention of -the legislature to attempt to provide for the appointment of an appraiser under the circumstances, disclosed by this application, but it authorized sueh appointment, by the probate court, only in eases where proceedings to probate an estate are pending, or where the decedent has left an estate, subject to probate in Idaho.</p> <p>4. Since no proceeding is pending to probate the estate of the-late E. H. Harriman, and since he does not appear to have left an estate in Idaho subject to settlement under our laws, and since the-proceeding commenced in the probate court does not involve the appointment of a guardian, nor in any particular come within the prescribed limits of the jurisdiction of the probate court as defined, by sec. 21, art. 5, of the constitution, that court is without jurisdiction to entertain sueh proceeding or -to enter the judgment, desired by plaintiff.</p> <p>5. See. 1873, Eev. Codes, so far as it applies to the facts presented here, limits the right to collect transfer tax upon inheritance-to eases where property shall pass by will or by the intestate laws-of this state, from any person who may die seised or possessed of-' the same while a resident of Idaho, or if such decedent was a nonresident at the time of his death, whieh property, or some part thereof, shall be within this state.</p> <p>6. The words “property which shall pass by will” are limited by the words “or the intestate laws of this state,” and the tax is not payable because the owner of the property died testate if it would not be payable had he died intestate. The right to collect the tax, in either event, is dependent upon the jurisdiction of the state over the transfer.</p> <p>7. While the situs of property is a controlling factor when the right to collect a property tax is under consideration, it must be remembered that an inheritance or succession tax is not a tax upon property, but is a bonus in the nature of an exeise or duty exacted by the state for the privilege granted by its laws of inheriting or succeeding to property on the death of the owner, and that in considering whether or not such a bonus is due, the location of the property is material only'when it invests the state with jurisdiction to control the right to make the transfer by inheritance or succession.</p> <p>8. Shares of stock in a corporation are personal property and descend according to the laws of the state which was the domicile of the owner at the time of his death, and the certificates of shares of corporate stock, which constitute evidence of ownership, are transferred according to the laws of the state wherein the corporation was organized.</p> <p>[As to avoidance of judgment where court acted without having jurisdiction, see note in 29 Am. St. 78.]</p>

Hon. James G. Gwinn, Judge. Action for the purpose of establishing the rights of plaintiffs and quieting their title to a certain flow of water in a canal owned, operated and controlled by the defendant, the Progressive Irrigation District. Judgment for plaintiff. Where there is any competent evidence to support the plaintiff’s complaint, a motion for nonsuit should be denied.