Volume 29 — Idaho Reports

<p>Criminal Law — Preliminary Examination — Incest—Information— Evidence — Sufficiency—Corroboration.</p> <p>1. The jurisdiction of a justice of the peace, sitting as a committing magistrate, extends throughout the county, and such a magistrate with whom a criminal complaint is filed charging that a felony or an indictable misdemeanor has been committed, and who entertains the complaint and issues a warrant for the arrest of the accused, thereby acquires jurisdiction to hold a preliminary examination of such charge and cannot be ousted therefrom by the officer who makes the arrest.</p> <p>2. The right to a preliminary examination is one which the accused may waive, and when a defendant is arrested and is taken before a magistrate, other than the one who issued the warrant, in the county wherein the crime is alleged to have been committed, and fails to make objection, but waives his preliminary examination, his right to be taken before the magistrate who issued the warrant is waived.</p> <p>3. An indictment or information must contain a statement of the acts constituting the offense in ordinary and coneise language, and in such a manner as to enable a person of common understanding to know what is intended to be charged thereby. No indictment or information will be held to be insufficient, by reason of any defect or imperfection in matter of form, which does not tend to the prejudice of a substantial right of the accused upon its merits.</p> <p>4. Where no showing has been made that an act of sexual- intercourse had been recently committed, or attempted, upon the prosecutrix, and no attempt has been made to impeach her testimony, it is error to permit the prosecution, as a part of its ease in chief, to introduce evidence in detail of a complaint made by her to third persons, not in the presence of appellant, to the effect that he had been molesting and bothering her.</p> <p>5. Where the testimony of the prosecutrix is contradictory, or her general reputation for truth, honesty and integrity in the community wherein she resides is shown to be bad, and where the accused testified and denied specifically her aeeusations and was corroborated by other witnesses, the testimony of the prosecutrix, standing alone and without corroboration, will not warrant a conviction. By corroboration is meant evidence other than that of the prosecutrix whieh, in itself and without the aid of her testimony, tends to connect the accused with the commission of the offense.</p> <p>[As to necessity and sufficiency of corroboration of prosecutrix in prosecutions for rape, see note in Ann. Oas. 1913D, 660.]</p>

<p>APPEAL from the District Court of the Fourth Judicial District, for Elmore County. Hon. James R. Bothwell, Judge.</p> <p>Suit to enjoin the construction of, and payment for, a sewer system and disposal works. Judgment for defendants.</p> <p>The warning ordinances must particularly describe the works to be constructed, must be clear and specific, and, above all, must, be clear, definite and not misleading, so that the taxpayer may be able to determine, either from the ordinance itself or from it and the plats or other data specifically referred to in the ordinances, just what is proposed to be constructed. The provisions must not be conflicting, or misleading, nor such as will either mislead or deceive the people into believing that the system will be one thing, while the system to be constructed differs therefrom in any material matter. (Williams v. City of Caldwell, 19 Ida. 514, 114 Pac. 519; Dement v. City of Caldwell, 22 Ida. 62, 125 Pac. 200; Platt v. City of Payette, 19 Ida. 470, 114 Pac. 25; CougTianour v. City of Payette, 26 Ida. 280, 142 Pac. 1076; Ostrander v. City of Salmon, 20 Ida. 153, 117 Pac. 692; Gurley v. City of New Orleans, 124 La. 390, 50 So. 411; Ladd v. Spencer, 23 Or. 193, 31 Pac. 474; Dyer v. City of Bandon, 68 Or. 406, 136 Pac. 652; Bay Bock Co. v. Bell, 133 Cal. 150, 65 Pac. 299; Lambert v. Cummings, 2 Cal. App. 642, 84 Pac. 266; Williamson v. Joyce, 137 Cal. 107, 69 Pae. 854; Haughawout v. Raymond, 148 Cal. 311, 83 Pac. 53; Grouse v. Barrows, 156 Cal. 154, 103 Pac. 894; Barber Asphalt Go. v. Grist, 21 Cal. App. 1, 130 Pac. 435; Chase v. Trout, 146 Cal. 350, 80 Pac. 81; City of Laaurenceville v. Hennessey, 244 111. 464, 91 N. E. 670; Holden v. City of Chicago, 172 111. 263, 50 N. E. 181; City of Jackson v. Williams, 92 Miss. 301, 46 So. 551; Whittaker v. City of Deadwood, 23 S. D. 538, 139 Am. St. 1076, 122 N. W. 590; Coulter v. Phoenix Brick & Con. Co., 131 Mo. App. 230, 110 S. W. 655; Barber Asphalt Co. v. O’Brien, 128 Mo. App. 267, 107 S. W. 25; Fellows v. Dorsey, 171 Mo. App. 289, 157 S. W. 995.)</p> <p>If a change was made, which would injure any of the parties to be affected, it would render it void. (Barton v. Kansas City, 110 Mo. App. 31, 83 S. W. 1093; In re Scranton Sewer, 213 Pa. St. 4, 62 Atl. 173; Church v. People, 179 111. 205, 53 N. E. 554, 174 111. 366, 51 N. E'. 747; Gardner v. City of CUcago, 224 111. 254, 79 N. E. 624.)</p> <p>Where the law requires the contract submitted to competitive bids, if not let to the lowest responsible bidder, it is void. (People v. City of Buffalo, 84 N. Y. Supp. 434; In re Delaware & H. Land Co., 8 N. Y. Supp. 352; Fourmy v. Township of Franklin, 126 La. 151,- 52 So. 249; Armitage v. City of Newark, 86 N. J. L. 5, 90 Atl. 1035; Miller v. City of Oelwein, 155 Iowa, 706, 136 N. W. 1045.)</p> <p>“The general rule that a demurrer admits the facts well pleaded does not apply to facts which appear unfounded by a record incorporated in the pleadings, or by a document, referred to.” (3 Cye. 337.)</p> <p>No objection was raised by plaintiff, or by any other person to the boundaries of District No. 2, at the hearing before the board of trustees, when objections to the ordinance of intention were heard. The boundaries of said district were clearly defined in the ordinance, and the plaintiff should have presented his objections to the board. (Hildreth v. City' of Longmont, 47 Colo. 79,105 Pac. 107; Kansas City v. Richards, 34 Mo. App. 521.)</p> <p>A special assessment cannot be defeated upon the ground that the improvement was poorly or improperly constructed, unless the departure is such as to make the improvement a substantially different one from that provided for in the ordinance. (Chicago v. Sherman, 212 111. 498, 72 N. E. 396; Warren v. Riddell, 106 Cal. 352, 39 Pae. 781; Shreve v. Cicero, 129 111. 226, 21 N. E. 815; Eustace v. People, 213 111. 424, 72 N. E. 1089; Chicago v. Ayers, 212 111. 59, 72 N. E'. 32; Petter v. Allen, 21 Ky. Law Rep. 1122, 54 S. W. 174; Kansas City v. Askew, 105 Mo. App. 84, 79 S. W. 483.)</p> <p>“A property owner who stands by and permits an improvement to be made is usually held to be estopped from attacking the proceedings.” (28 Cyc. 1014, 1085.)</p> <p>“A city which has advertised for bids for the construction of sewers is not bound to accept the lowest bid made, in the absence of a requirement to that effect in its charter, the statute, or an express agreement to do so.” (Starkey v. City of Minneapolis, 19 Minn. 203; People v. Croton Aqueduct Board, 49 Barb. (N. Y.) 259; Dillon, Municipal Corporations, 5th ed., see. 811.)</p> <p>The prevailing rule is that the determination of the municipality as to which is the deserving bid, in the absence of fraud or abuse of discretion, will not be disturbed by the courts. (McQuillin, Mun. Corporations, sec. 1238; Clapton v. Taylor, 49 Mo. App. 117; People v. Kent, 160 111. 655, 43 N. E. 760.)</p>

Hon. W. A. Babcock, Judge. Actions to recover on breach of contract. Judgments for defendant. The demurrer to the answer should have been sustained, because the answer was filed in a summary proceeding to recover possession of real estate, and involved the consideration of three separate and distinct items of counterclaim, one of which was unliquidated and founded upon the negligence of appellant.

<p>APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. W. W. "Woods, Judge.</p> <p>Criminal prosecution for murder. Judgment for defendant.</p> <p>For the purpose of the motion for an advisory instruction to acquit, every fact brought out by the evidence is admitted to be true. It is therefore admitted by this motion, first, that the defendant killed Patrick Haggerty; second, that the defendant killed him without cause, or justification.</p> <p>In the case of People v. Walter, 1 Ida. 386, this court held that every homicide, unexplained, is murder, but it is left to the jury to say whether it is murder of the first or second degree, and then further held that if the defendant admitted the killing, he was guilty of murder, unless he was insane or had some other defense. In order for the court to give this instruction, it was necessary that it should be found that the homicide was justifiable.</p> <p>For the purpose of a motion to quash an indictment the facts stated in the indictment are to be taken as true. (People v. Williams, 1 Ida. 85.)</p> <p>A demurrer to the evidence admits the truth of facts which are shown, whether by parol or by writing, and every fair inference from such facts, and the court decides upon their legal effect only, and not upon the sufficiency of their proof. (12 Cyc. Crim. Law, 594.)</p> <p>This court has repeatedly held that under sec. 7877, Rev. Codes, the court may advise the jury to acquit. (State v. Peck, 14 Ida. 712, 95 Pac. 515; State v. Downing, 23 Ida. 540, 130 Pae. 461.) In State v. Eaverly, 4 Ida. 484, 42 Pac. 506, this court expressly holds that the giving of such instruction under sec. 7877 is a matter of discretion with the trial court, and its action is not reviewable in the supreme court.</p> <p>The California courts construing statutory provisions similar to the Idaho provisions have held that an acquittal upon advice of the court to acquit bars all subsequent prosecution, and that any subsequent prosecution would put the defendant twice in jeopardy for the same offense, in violation of the statute and constitutional guaranty. (People v. Horn, 70 Cal. 17, 11 Pac. 470; People v. Roberts, 114 Cal. 67, 45 Pac. 1016 ; People v. Terrill, 132 Cal. 497, 64 Pac. 894; People v. Hill, 146 Cal. 145, 79 Pac. 845.)</p>

Hon. R. N. Dunn, Judge. Appellant was convicted of a violation of ordinance No. 77 of tbe village of Post Falls. When tbe municipal authorities bave no power to make a municipal regulation, it is void, although tbe regulation in itself is reasonable, just and proper, and even necessary for tbe preservation of peace and good order. (Taylor v. District of Columbia, 24 App.

<p>APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. R. N. Dunn, Judge.</p> <p>Appellant was convicted of a violation of ordinance No. 78 of the village of Post Palls.</p>

Hon. J. M. Stevens, Judge. Appellant was convicted of embezzlement. After the jury had been impaneled and sworn, the information was not read and the plea of the defendant stated to the jury. (Sec. 7855, Rev. Codes; State v. Chambers, 9 Ida. 673, 75 Pac. 274; People v. Corbett, 28 Cal. 328; People v. Monaghan, 102 Cal. 229, 233, 36 Pac. 511; Crain v. United States, 162 U. S. 625, 640, 16 Sup.

Hon. James R. Bothwell, Judge. Action to foreclose a mortgage on real estate. Judgment for defendants. The assignments, whether accompanied by delivery of the notes or not, were sufficient to pass all title to the notes to Crane, as against the assignors, and any person having actual knowledge of the assignment.

Original application for writ of prohibition. Under sees. 20 and 21, art. 5, of our constitution, we contend that the district court has no original jurisdiction, nor can it try de novo appeals from the probate court in matters affecting the settlement of estates, etc. (Estate of McVay, 14 Ida. 64, 67, 93 Pac. 31; Connolly v. Probate Court, 25 Ida. 35, 45, 136 Pac. 205; Miller v. Mitcham, 21 Ida. 741, 123 Pac. 941; In re Bowen, 34 Cal. 682, 688; Territory v. Mix, 1 Ariz. 52,…

Hon. R. N. Dunn, Judge. Action to recover on a promissory note. Judgment for plaintiff. Instruction No. 4 is particularly erroneous in that it charges that notice to the officer assuming to do the unauthorized act is notice to the corporation, which is not the fact. (10 Cyc. 1079, 1080, note D; Sanford Cattle Co. v. Williams, 18 Colo.

Hon. R. N. Dunn, Judge. Appeal from certain orders made by the court in regard to compensation of the receiver and the approval of his final report. An appeal will not lie from orders made upon ex parte application. (2 Cyc. 621; In re Dunn, 59 Hun, 626, 14 N. Y. Supp. 14; Stewwrt v. Stewart, 127 App. Div. 672, 111 N. Y. Supp. 736; Wilson v. Martin, 43 Wash. 95, 86 Pac. 205, 10 Ann.

Hon. J. J. Guheen, Judge. Action to recover for labor and services alleged to have been performed for the defendant. Verdict and judgment for plaintiff. Where there is a substantial conflict in the evidence, the verdict of the jury will not be disturbed on appeal. (Ainslie v. Idaho World Printing Co., 1 Ida. 641; Chamberlain v. Woodin, 2 Ida. 642, 23 Pac. 177; Coffin v. Bradbury, 3 Ida. 770, 95 Am.

<p>Contract for Sale of Land — Time Essence of Contract — Conditions Precedent — Notice of Forfeiture — Encumbrance on Land at Time of Final Payment — Waiver—Tender to Escrow Holder— Rescission by Vendor.</p> <p>1. In the case of a contract for the sale of land upon instalments, where time is made the essence of the contract and it is provided that upon default by the vendee in any of the conditions to be performed by him the contract shall become void and he shall forfeit his rights thereunder, and any payments that may have been made to the vendor shall be deemed liquidated damages, and it is further provided that upon performance of all the conditions of the contract by vendee, vendor shall execute and deliver a good and sufficient warranty deed to vendee, and under such contract a deed to the land in question is placed in eserow, and the vendee fails to make the final payment on said contract at the time said payment becomes due, and the vendor declares no forfeiture, but about six months thereafter submits to vendee a statement of account and about a year thereafter withdraws his deed from eserow, and subsequently the vendee brings suit against the vendor to recover all payments made on the contract, alleging that vendor was not in a position at the time the last payment' became due to give good title to the land, for the reason that said land was encumbered by an outstanding mortgage, held that vendee was not' in a position to demand a deed until he had complied with the conditions precedent of his contract, and in the absence of acts or conduct on the part of vendor such as would amount to a waiver of vendee’s default, all payments theretofore made according to the terms of the contract became forfeited to the vendor under such contract'.</p> <p>2. In the case of a contract for the sale of land, where time is made the essence of the contract' and it is stipulated that in the event of default by the vendee in performing any of the conditions of the contract the contract shall become void, and sueh default on t'he part of the vendee occurs, the vendor is not required to serve notice upon the vendee of his intention to declare a forfeiture.</p> <p>Upon the question of excuse for not performing conditions precedent to rescission or abandonment of contract for other party’s default, see note in 30 L. R. A. 40. As to effect of making time of the essence of contract by demand or notice, see note in 15 L. R. A. 737. And for cases on the question of delivery of deed in eserow as change of title or interest, see note in 38 L. R. A., N. S., 142.</p> <p>3. Where a vendee fails to perforin an obligation that is a condition precedent in a contract for the purchase of land, t'he vendor may rescind without tendering a deed; and if the deed has been plaeed in escrow pending a performance of the conditions, tender of the same need not be made, since the vendee knows where it is and how he can get it.</p> <p>4. A statement of account under a contract for the purchase of land submitted by vendor to vendee after the latter has defaulted in the final payment under t'he contract, in which statement such final payment is offset by a mortgage on the land owing by vendor, with the amount of which mortgage vendee is credited in sueh statement, is not a waiver or breaeh of the conditions of the contract on the part of the vendor.</p> <p>5. Under a contract for the sale of land where time is made the essence of the contract, covenants on the part of the vendee are conditions precedent to the execution and delivery of a deed from vendor; and where the land in question is encumbered by a mortgage, it is the duty of the vendor, after the performance of t'he precedent conditions, to forthwith execute and deliver sueh deed to the vendee and to procure a release of the mortgage on the land. The circumstance of an outstanding mortgage lien in an amount equal to the final payment under the contract would furnish no legal excuse for the failure of t'he vendee to pay or tender the amount due upon the contract, in the absence of an allegation that vendor was unable or unwilling to give an unencumbered title to the land when vendee had complied with his part of t'he contract.</p> <p>6. The tender by vendee to an escrow holder of the amount due under a contract for the purchase of land after the time for making such payment has expired and at a time when, according t'o the provisions of the contract, vendee has forfeited his right to a performance on the part .of the vendor, and vendor has accordingly withdrawn a deed to the land from eserow, will not' avail to restore the rights of the vendee under such contract.</p> <p>[As to when time is or may become of the essence of contracts for the sale of land, see note in 104 Am. St. 265.]</p>

<p>APPEAL from the District Court of the First Judicial District for Shoshone County. Hon. William W. Woods, Judge.</p> <p>Defendant was convicted of the infamous crime against nature.</p> <p>“A penetration of the mouth is not sodomy.” (2 Bishop’s Crim. Law, pp. 1193, 1194; Russell on Crimes, p. 693; Wharton’s Criminal Law, pp. 575-579; McClain’s Crim. Law, p. 1153; Prindle v. State, 31 Tex. Cr. 551, 37 Am. St. 833, 21 S. W. 360; Mitchell v. State, 49 Tex. Cr. 535, 95 S. W. 500; People v. Boyle, 116 Cal. 658, 48 Pac. 800; Kinnan v. State, 86 Neb. 234, 125 N. W. 594, 21 Ann. Cas. 335, 27 L. R. A., N. S., 478; Bailey v. State, 57 Neb. 706, 73 Am. St. 540, 78 N. W. 284; Harvey v. State, 55 Tex. Cr. 199, 115 S. W. 1193; Lewis v. State, 36 Tex. Cr. 37, 61 Am. St. 831, 35 S. W. 372; Commonwealth v. Poindexter, 133 Ky. 720, 118 S. W. 943; Bams v. Brown, 27 Ohio St. 326; State v. Johnson, 44 Utah, 18, 137 Pae. 632.)</p> <p>Whether one commits the crime or simply aids and abets it, he is guilty as principal. (People v. Mills, 41 Misc. Rep. 195, 83 N. T. Supp. 947; Drury v. Territory, 9 Okl. 398, 60 Pac. 101; Beeves v. Territory, 10 Okl. 194, 61 Pac.- 828.) “All who participate in a criminal enterprise are equally guilty of the crime committed by one of their number, in which the others, being present, either participate or are ready to assist. ’ ’ (People v. Gooch, 105 Mo. 392, 16 S. W. 892; State v. Nelson, 98 Mo. 414, 11 S. W. 997; People v. Cotta, 49 Cal. 166, 643; State v. Murray, 126 Mo. 526, 29 S. W. 590; Sanhey v. State, 128 Ala. 51, 29 So. 578; People v. Moran, 144 Cal. 48, 77 Pac. 777.)</p> <p>“Modern lexicographers unite in giving the word ‘sodomy’ a broad and comprehensive definition, as is shown by the definition in the Century Dictionary, which is given as ‘unnatural sexual relations, as between persons of the same sex or with beasts.’ ” (Glover v. State, 179 Ind. 459, 101-N. E. 629, 45 L. R. A., N. S., 473; State v. Start, 65 Or. 178, 132 Pac. 512, 46 L. R. A., N. S., 266.)</p> <p>“The clause ‘crime against nature’ as used in our statute was so used intending to include therein every unnatural carnal copulation.” (State v. Whitmarsh, 26 S. D. 426, 128 N. W. 580; Herring v. State, 119 Ga. 709, 46 S. E. 876.)</p> <p>Misnomer of a crime in the information works no prejudice to the defendant if the offense is correctly described in the statement of facts. (State v. Anderson, 3 Nev. 254; State v. Johnson, 9 Nev. 175; People v. Phipps, 39 Cal. 326; State v. Amáleme, 15 Iowa, 44; United States v. Elliot, 3 Mason, 156, Fed. Cas. No. 15,044; State v. Gillett, 92 Iowa, 527, 61 N. W. 169; Brady v. Territory, 7 Ariz. 12, 60 Pac. 698.) ■</p> <p>“The general test to determine whether a witness is or is not an ‘accomplice’ is, could he himself have been indicted for the offense, either as principal or accessory. If he could not, then he is not an accomplice.” (State v. Ean, 90 Iowa, 534, 58 N. W. 898; Levering v. Commonwealth, 132 Ky. 666, 136 Am. St. 192, 117 S. W. 253, 19 Ann. Cas. 140; State v. Duff, 144 Iowa, 142, 138 Am. St. 269, 122 N. W. 829, 24 L. It. A., N. S., 625.)</p>

<p>APPEAL from the District Court of the Seventh Judicial District for Adams County. Hon. Ed. L. Bryan, Judge.</p> <p>Action for damages for breach of warranty. Judgment for plaintiff.</p> <p>In this case there was no proof offered of notice to the defendant of any action against or ouster of the plaintiff from the possession of the described premises alleged to have been purchased from the defendant by F. E. Brown, trustee. Therefore defendant was given no opportunity to appear and defend the title to said premises in said action, and was not bound by the judgment of ouster. {Webb v. Alexander, 7 Wend. 281; 2 Devlin on Deeds, 3d ed., see. 937, p. 1751; McCrillis v. Thomas, 110 Mo. App. 699, 85 S. W. 673; Baumga/rten v. Ghipman, 30 Utah, 466, 86 Pac. 411; Wallace v. Pereles, 109 Wis. 316, 83 Am. St. 898, 85 N. W. 371, 53 L. R. A. 644.)</p> <p>“Where a grantee has surrendered possession to one claiming adversely, he must show that the title of such person is paramount to that of his grantor.” (Snyder v. Jennings, 15 Neb. 372, 19 N. W. 501; Dalton v. Bowher, 8 Nev. 190; ■Richmond v. Ames, 164 Mass. 467, 41 N. E. 671; Cobb v. Klosterman, 58 Or. 211, 114 Pac. 96.)</p> <p>“Where the grantor is not notified, he is not precluded from proving, in the action on the covenant, a good title in himself at the time of making the warranty.” (Pitkin v. Dewitt, 13 Yt. 379; Miner v. Clark, 15 Wend. (N. Y.) 425, 427; Collingwood v. Irwin, 3 Watts (Pa.), 306, 310; Paul v. Witman, 3 Watts & S. (Pa.) 407; Menasha Woodenware Co. v. Nelson, 45 Wash. 543, 88 Pac. 1018; Pearse v. Templeton, 3 N. C. (2 Hayw.) 379.)</p> <p>Grantee needs only to prove a paramount and outstanding title at the time of the warranty as against the grantor, and when having so proved such outstanding title, the grantor is required to set up in answer and prove that by appearing and defending the title in such ejectment suit, he could have' prevented a recovery. ' (Sterling v. Fusilier, 7 Mart. (O. S.) (La.) 442; Johnston v. Bell, 6 Mart. (N. S.) (La.) 384; Mayer’s Heirs v. Neraut’s Admr., 12 La. 30; Rivas v. Hun-stock, 2 Rob. (La.) 187; Kelly v. Wiseman, 14 La. Ann. 661; Walton v. Cox, 67 Ind. 164; Collingwood v. Irwin, supra; Groesbeck v. Harris, 82 Tex. 411, 19 S'. W. 850.)</p>

Hon. R. N. Dunn, Judge. Action to recover damages and counsel fees on an injunction bond. Judgment for plaintiffs. It does not follow that the temporary injunction was wrongfully issued simply because the cause was finally decided in favor of the defendants.

<p>Real Estate — Oral Contract to Purchase — Sufficiency of Evidence.</p> <p>1. Held, that the evidence is sufficient to support the findings, and that the findings are sufficient to support the judgment.</p> <p>[As to what acts amount to part performance in specific performance suit and what acts do not, see note in 53 Am. Dec. 539.]</p>

<p>Delinquent Tax Liens — Foreclosure — Attorneys' Fees — Prosecuting Attorney.</p> <p>1. The services rendered by a prosecuting attorney in foreclosing delinquent tax liens, which have not been assigned, are rendered for the county in the discharge of a duty imposed upon him by virtue of his ofdce, for the performance of which he is paid with the salary fixed by the board of county commissioners pursuant to see. 18, art. 5, of the constitution, as amended. Sec. 7, art. 18, of the constitution, as amended, which provides that all county officers shall receive fixed annual salaries as full compensation for their services, applies to the prosecuting attorney, and prohibits the payment to him of fees in such foreclosure proceedings.</p> <p>[As to what are and what are not official acts of public officers, see note in 6 Am. St. 130.]</p>

<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 plaintiffs.</p> <p>“An initial carrier is the carrier first receiving the goods.” (4 Words and Phrases, p. 3610; Beard v. St. Louis, A. & T. H. By. Co., 79 Iowa, 527, 44 N. W. 803.)</p> <p>The mere changing of the destination en route cannot alter the character of the shipment and make it an initial or original shipment at the point where such change in destination is made. (Dunlap v. Great Northern B. Co., 34 S. D. 320, 148 N. W. 529.)</p> <p>The initial carrier is the carrier which originally receives the goods for transportation. (Atlantic Coast Line B. Co. v. Biverside Mills, 219 U. S. 186, 31 Sup. Ct. 164, 55 L. ed. 167, 31 L. B. A., N. S., 7.)</p> <p>Under the testimony in this case it is conclusively shown that either the C. B. & Q. or the O. W. B. & N. was the initial carrier, and in order to take advantage of the provisions of the Carmack Amendment plaintiffs were required, to proceed against one of those companies, and cannot now recover from appellant without proving conclusively that it alone was responsible for the loss and damage sustained by them. (Eastern By. Co. v. Montgomery (Tex. Civ.), 139 S. W. 885.)</p> <p>The liability of the initial carrier cannot be extended beyond the contract evidenced by the bill of lading, and that is,- to deliver the shipment at the place of destination named therein. (Porker-Bell Lumber Co. v. Great Northern B. Co., 69 Wash. 123, 124 Pac. 389, 41 L. R. A., N. S., 1064.)</p> <p>The failure of the initial carrier to issue any receipt or bill of lading for an interstate shipment will not relieve it from liability under the statute, but it will be liable to the shipper to the same extent that it would have been liable to the lawful holder of the shipping receipt or bill of lading had it performed its statutory duty to issue such receipt or bill of lading. (International Watch Co. v. Delaware L. & W. B. Co., 80 N. J. L. 553, 78 Atl. 49; Galveston, H. & S. A. B. Co. v. Wallace, 223 U. S. 481, 32 Sup. Ct. 205, 56 L. ed. 516, 517.)</p> <p>“A company operating a mere switching railroad, transporting cars to and from trunk lines upon the basis of a division of profits, may be an interstate carrier.” (Aton Piano Co. v. Chicago, M. & St P. B. Co., 152 Wis. 156, 139 N. W. 743.)</p> <p>Notice to the terminal carrier is notice to the initial carrier under the law, for the reason that all of the carriers are agents of the initial carrier. (Perkett v. Manistee etc. B. Co., 175 Mich. 253,141 N. W. 607, 611.)</p> <p>The presumption of law in all shipments of this kind is that the goods remain in good condition until the contrary is shown. (Dunlap v. Great Northern B. Co., 34 S. D. 320, 148 N. W. 529; Colbath v. Bangor & A. B. Co., 105 Me. 379, 134 Am. St. 569, 74 Atl. 918.)</p>

Hon. Carl A. Davis, Judge. Action to recover upon a Carey Act construction bond. Those covenants wherein Speer expressly bound himself to carry out and fulfil the settlers’ contracts were covenants directly for the benefit of these settlers. If it was to that extent a contract made directly for the benefit of these settlers, under the statutes of Idaho the settlers can sue directly in their own names upon that contract and upon the bond given to secure its fulfilment.

<p>Irrigation District — Public Corporation — Treasurer—Public Officer —' Public Monets — Custodian — Special Deposit — Trust Fund — Subdiv. 4, Sec. 6975, Rev. Codes, not Repealed by State and County Depository Law.</p> <p>1. An irrigation district organized under the laws of this state is a public corporation; its treasurer is a public officer; and moneys of such district received by him as treasurer are public moneys within the meaning of see. 6977, Rev. Codes.</p> <p>2. Subdivision 4 of see. 6975, Rev. Codes, prohibits a public officer from depositing public moneys with any bank, or with any banker or other person, otherwise than on special deposit, or as otherwise authorized by law. Seld, that since there is no provision of law which authorizes the treasurer of an irrigation district- to deposit the moneys of the district except on special deposit, a general deposit by such treasurer of such moneys in a bank becomes a trust fund and not part of the estate of the bank; and in case of insolvency of the bank, its receiver must treat such fund as the property of the true owner and not of the bank.</p> <p>3. Seld, that subdivision 4 of sec. 6975, Rev. Codes, was not repealed by the enactment of legislation commonly known as the state and county depository law, either in direct terms or by implication.</p> <p>4. Seld, that the appellant herein reimbursed the Nampa & Meridian Irrigation District in the sum of $1,046.64, and by reason thereof was subrogated to all of the right, securities or remedies of the Nampa & Meridian Irrigation District against the Bank of Nampa, Limited.</p> <p>[As to deposit of trust funds as preferred claim against insolvent bank, see note in Ann. Cas. 1913D, 391.]</p>

APPEALS from the District Court of the Seventh Judicial District for Canyon County. Hon. Ed. L. Bryan, Judge. Actions to recover on contracts for the sale of real property. ’Judgments for plaintiffs. The affirmative allegations in the counterclaim upon which affirmative relief is asked for have been completely disregarded. A trial court must find upon all the material issues raised by the pleadings.

Hon. C. O. Stockslager, Judge. Action to quiet title to certain real estate. Judgment quieting title in defendants. If the village of Mountain Home had the right to use this land for street purposes (which we contend it did not, under the evidence), its right did not commence until it opened the same and used it for street purposes. (Thiessen v. Lewiston, 26 Ida. 505, 144 Pac. 548.) The defendant cannot have decreed to him an interest of a third party.

Hon. Edgar C. Steele, Judge Appeal from action of the board of county commissioners •making an appropriation to the Northwest Livestock Association. Judgment for plaintiff. Judicial repose is accorded to statutes long acquiesced in. (Continental Improvement Go. v. Phelps, 47 Mich. 299, 11 N. W. 167; Ferris v. Coover, 11 Cal. 175, 176.) Long and continued usage furnishes a contemporaneous construction, which must prevail over the mere technical import of the words.

Hon. Edgar C. Steele, Judge. Appeal from an order of the board of county commissioners requiring certain real estate indexes to be prepared and kept. A board of county commissioners being created for special purposes can exercise only such powers as are conferred upon it by the constitution or statutes of the state, or such as arise by necessary implication from the express grant of the constitution or statute.

<p>Stipulation op Parties — Discretion op Court.</p> <p>1. The evidence in this ease examined and found t'o sustain the action of the trial court in setting aside the stipulation of the parties whereby it was attempted to compromise and dismiss the action.</p> <p>"2. It is within the sound judicial discretion of the trial court, for good cause shown and in furtherance of justice, to relieve parties from stipulations which they have entered into in the course of judicial proceedings, and it is its duty to do so when enforcement thereof would be inequitable and when all parties to the action will, by vacating the stipulation, be placed in exactly the same condition they were in before it was made.</p> <p>[As to power and discretion of courts with respect to relieving parties from stipulation, see note in Ann. Cas. 1912C, 769.]</p>

<p>Nonresident Decedent — Community Personal Property — Distribution op — Statutory Construction.</p> <p>1. The succession of community property is provided for by sec. 5713, Bev. Codes, as amended by Sess. Laws 1911, p. 29. That section must be construed with other sections of the statutes, in regard to descent and distribution of the property of a deceased person.</p> <p>2. See. 5628, Bev. Codes, provides for the settlement of ancillary administration.</p> <p>3. See. 3095, Bev. Codes, provides that if there is no law to the contrary in the place where personal property is situated, it is deemed to follow the person of its owner, and is governed by the law of his domicile; and the general rule is that the succession to and distribution of personal property wherever situated is governed by the lex domicilii of the owner or intestate at the time of his death, without regard to thp location of the property or the place of his death. However, so far as creditors are concerned, each state will deal with the property of a deeedent within it's jurisdiction according to its own laws.</p> <p>4. Held, that the distribution of the Gutehes estate in accordance with the laws of the state of Washington does not conflict with any statute in this state, and does not contravene the public policy of the state.</p> <p>[As to right of alien or nonresident to act as executor or administrator, see note in Ann. Cas. 1912A, 747.]</p>

<p>Eminent Domain — Judgment op Condemnation — Appeal—Stay op Proceedings.</p> <p>1. While an appeal in a condemnation suit does not operate to stay proceedings under the provisions of the Code of Civil Procedure governing and regulating appeals from district courts to the supreme court, secs. 9 and 13, art. 5, of the constitution invest this court with discretionary power in the matter of the issuance of such writs as it may deem t'o be expedient, in the exercise of its appellate jurisdiction, including the power to order a stay of proceedings in such a case when, in the opinion of the court, the ends of justice will be best subserved thereby.</p> <p>[As to who may appeal or bring certiorari in eminent domain proceedings, see note in Ann. Cas. 1914D, 1139.]</p>

<p>Homicide — Dying Declaration — Interpreter as Witness — Addiction of Witness to Use of Drugs — Admissibility of Evidence to Show Credibility of Witness — Cross-examination—Hearsay.</p> <p>1. Where the victim of a homicide was a Chinaman'unfamiliar with the English language, and his purported dying statement was interpreted by a Chinese interpreter and taken down in shorthand by a stenographer, evidence of the fact that the interpreter was addicted to the use of opium or other drugs was competent for the purpose of showing the mental balance of such interpreter and his capacity to remember the questions that were propounded by the prosecuting attorney through him to the deceased and the deceased’s answers thereto, as the admissibility of such purported dying declaration depended on the truthfulness and aceuraey of the interpretation of such questions and answers.</p> <p>2. Great liberality 'should be allowed by the trial court in the cross-examination of an interpreter touching the extent of his addiction t'o the use of opium or any other nareotie which is well known to impair the intellectual faculties and reduce the capacity of an individual to remember and correctly relate incidents, as well as to morally pervert him and destroy the sanctions of truthfulness on the part of a witness.</p> <p>3. The habitual use of opium, morphine, cocaine or other like narcotics, which inevitably tend to impair the mind, destroy the memory and pervert the moral character of a witness, may be shown for the purpose of affeeting his credibility or the weight that should be given to his testimony, but is not ground for tne exclusion of his testimony unless it satisfactorily appears-that he was under its influence to such an extent that his intellect Was imbalanced when examined as a witness.</p> <p>4. Where' a witness is offered to testify to the statements of another person spoken in a language not understood by such person but translated for him by an interpreter, such witness is not qualified to testify, because he does not speak from personal knowledge, and the interpreter, or some other person who heard and understood the language in which the testimony was given, is the only competent witness to such statements.</p> <p>On how sense of impending death is evidenced to make dying declarations admissible in evidence, see notes in 56 L. R. A. 406; 30 L. R. A., N. S., 393.</p> <p>On evidence to establish mental incompeteney of witness, see note in 46 L. R. A., N. S., 1031.</p> <p>5. Where a purported dying declaration contains such statements as: “I don’t know whether I am going to die or not, but I think I have only one chance out of a hundred that I will live,” and “In making this statement' I do so in fear that I may die, but I don’t know whether I will die or not,” and at the request of the prosecuting attorney a final clause is added to the statement as follows: “I now sign this statement and again say that the facts therein are true and that I make the same under the fear and belief that I will die,” such final clause not appearing to have been the voluntary statement of the deceased, the declaration is not admissible as a dying declaration, since it does not satisfactorily appear that it. was made under a sense of impending death or that the deceased had given up all hope or expectation of recovery, and the admission of sueh dying declaration by the trial court is reversible error.</p> <p>[As to incompeteney of witness through insanity, intoxication or loss of memory, see note in 35 Am. Kep. 291.]</p>

Hon. Edgar C. Steele, Judge. Action to enjoin defendants from interfering with pipeline and water right of plaintiff. Judgment for plaintiff. The court erred in not receiving the proffered evidence of appellants, as it shows the use claimed by appellants, indispensable domestic use taking precedence over other uses, as irrigation.

Hon. Charles P. McCarthy, Judge. Appeal from judgment sustaining demurrer to and dismissing application for writ of prohibition. Under the provisions of sec. 6825, Eev. Codes, as amended, the city council could not of its own volition, in the absence of the proper petition, enact an ordinance allowing the opening of picture shows.

<p>APPEAL from the District Court of the Second Judicial District for Latah County. Hon. Edgar C. Steele, Judge.</p> <p>Action for divorce. Judgment for plaintiff.</p> <p>“Where there is a substantial conflict in the evidence, the findings of the court will not be disturbed.” (Abbott v. Reedy, 9 Ida. 577, 75 Pae. 764; Small v. Harrington, 10 Ida. 499, 79 Pae. 461; Heckman v. Espey, 12 Ida. 755, 88 Pac. 80; Hufton v. Hufton, 25 Ida. 96, 136 Pae. 605; Bower v. Moor-man, 27 Ida. 162, 147 Pae. 496.)</p>

Hon. Edgar C. Steele, Judge. Action to recover excessive levy of school taxes. Judgment for defendant. Common school districts were limited in their levy by chap. 88, Laws 1913, and hence could not levy to exceed five mills for the year 1914.

Hon. J. J. Guheen, Judge. Motion to vacate a judgment and set aside a default. Motion granted. Plaintiff appeals. To justify the court in setting aside the default judgment the applicant must show that the default occurred by reason of mistake, inadvertence, surprise or excusable neglect, and he must also show that he has a good defense to the cause of action set forth in the complaint.

<p>APPEAL from the District Court of the Second Judicial District for Nez Perce County. Hon. E. C. Steele, Judge.</p> <p>Appeal from judgments of the district court setting aside decree of final distribution in the probate court.</p> <p>Under sec. 5702, Rev. Codes, Ann Blackinton, at the time of her death, must have owned the real estate to which her heirs succeed; the section does not include Ann. Blackinton’s personal right to maintain an action in the district court to set aside, vacate and annul her deed to appellant, and does not say that her heirs succeed, upon her death, to this personal right of Ann Blackinton to have her own deed annulled by a decree of court. (Rowland v. Rowland, 2 Sneed (34 Team.), 543.)</p> <p>Though an executed gift of a bond is secured from an heir’s ancestor by undue influence, and though the heir’s ancestor is of unsound mind, or insane to the extent of being incapacitated to do business, the heir of such ancestor after the death of the ancestor cannot maintain, an action to set aside the executed gift. (Bishop v. Leonard, 123 Fed. 981.)</p> <p>The right to avoid a deed for duress is personal to vendor. (Schee v. McQuillcen, 59 Ind. 269.)</p> <p>Ann Blackinton had the absolute right to waive all undue influence, all fraud, all duress, and thereupon to ratify and confirm the deed of conveyance; and this right was personal to her. (13 Cyc. 591, 592, subn. 8, and notes.)</p> <p>The district court can try only questions of law or of fact presented to the probate court, and George and William Blackinton presented no question of fact or of law to the probate court for his decision on final settlement and distribution. (Estate of McYay, 14 Ida. 56, 93 Pac. 28; Kent v. Dalrymple, 23 Ida. 694, 132 Pac. 301; In re Christensen’s Estate, 15 Ida. 692, 99 Pac. 829.)</p> <p>There is only one undertaking on the two appeals contained in the notice of appeal from the December, 1914, decree and the appeal from the February, 1915, order. (Horn v. Volcano Water Co., 18 Cal. 142; Bornheimer v. Baldwin, 38 Cal. 671; In re Kasslon’s Estate, 135 Cal. 1, 66 Pac. 871; Centerville etc. Ditch Co. v. Batchold, 109 Cal. Ill, 41 Pac. 813.)</p> <p>The appeal bond or undertaking does not conform to secs. 4834, 4835, Rev. Codes. (In re Page’s Estate (on rehearing), 12 Ida. 410, 86 Pae. 273.)</p> <p>The undertaking on the two appeals is indefinite, uncertain and ambiguous, and no court or person can tell whether it is an undertaking on both appeals, or on only one of the appeals, or what appeal it secures or undertakes with reference to. (Wallace v. McKinley, 6 Ida. 95, 53 Pac. 104; Kelley v. Leachman, 5 Ida. 521, 51 Pac. 407; Weil v. Sutter, 4 Ida. 748, 44 Pac. 555; Schiller v. Small, 4 Ida. 422, 40 Pac. 53.)</p> <p>A final settlement and distribution cannot by appeal to the district court be divided into “fragments” and changed into a piecemeal final settlement and distribution. (2 Cyc. 532.)</p> <p>Sec. 4808, Rev. Codes, authorizes an appeal from “some specific part” of a final judgment or order, but, if in the very nature of things, the final judgment or order cannot be divided, the party aggrieved cannot appeal from a part thereof and have that part reversed and the other part affirmed. (Hampton v. Board of Commrs., 4 Ida. 646, 43 Pac. 324 ; 3 Cyc. 220; In re Burdick, 5 Cal. Unrep. 6, 40 Pac. 35.)</p> <p>The probate court, in the settlement of the estate of Emmett Blackinton, has exclusive original jurisdiction of the transmission of decedent’s title to whomsoever takes it, upon distribution, as legal owner. (In re Burton’s Estate, 93 Cal. 459, 29 Pac. 36; More v. More, 133 Cal. 489, 65 Pac. 1044; Connolly v. Probate Court, 25 Ida. 35, 136 Pac. 205; Miller v. Mitcham, 21 Ida. 741, 123 Pae. 941.)</p> <p>The decree of distribution is a conclusive adjudication on the transmission of the decedent’s title to its legal owner; or to the person entitled to it on distribution of the estate being administered. (Connolly v. Probate Court, supra; Blair v. Hazzard, 158 Cal. 721, 112 Pac. 298; In re Burton’s Estate, supra; More v. More, supra; sees. 5627, 5634, Bev. Codes.)</p> <p>Property conveyed to another by 4he decedent constitutes no part of his estate in probate to be partitioned by the probate court. (Freeman on Judgments, 4th ed., p. 551, sec. 308a.)</p> <p>“A purchase of property of the estate by an executor or administrator at a sale under order of court, while universally considered to be highly improper, is usually held to be merely voidable at the election of the persons interested, and not void; and even statutes providing that such sales are void have been construed to mean simply that they are voidable. It follows that until the sale is actually set aside the legal title remains in the representative.” (18 Cyc. 771, subn. C, and note 6.)</p> <p>The probate court has the jurisdiction to decide that Ann Blackinton’s deed to appellant is valid, and therefore that respondents could not inherit appellant’s real estate. (In re Walker’s Estate, 169 Cal. 400, 146 Pac. 868; Coats v. Harris, 9 Ida. 458, 75 Pae. 243; In re Daughaday’s Estate, 168 Cal. 63,141 Pac. 929; French v. Phelps, 20 Cal. App. 101, 128 Pac. 772.)</p> <p>Appeals cannot be taken in one notice from separate judgments in separate proceedings. (2 Ency. PI. & Pr., pp. 219, 220; 2 Hayne on New Trial and Appeal (Rev. ed.), p. 1106.)</p> <p>The objection having been as to. the undertaking that it did not contain the language of sec. 4835, Rev. Codes, we suggest that the undertaking is based not on this section to which counsel refers, but on sec. 4933a, Rev. Codes, which was construed in Finney v. Moore, 9 Ida. 284, 74 Pac. 866.</p> <p>The probate court should have distributed the land included in the deed from Ann Blackinton to Grace A. Woodward and the rentals thereafter accruing therefrom to the heirs, with a reservation of the rights, if any, of Grace A. Woodward under the deed, as such rights may be determined in a proceeding in a court of competent jurisdiction, rather, than passing on and enforcing the deed by distributing the property to Grace A. Woodward, the grantee therein. (Estate of Howe, 161 Cal. 152, 118 Pac. 515; In re Gamble’s Estate (Huffaker v. Donnelly), 166 Cal. 253, 135 Pac. 970; Martmovitch v. Marsicano, 137 Cal. 354, 70 Pac. 459; Coats v. Harris, 9 Ida. 458, 75 Pac. 243.)</p> <p>The said deed was void on its face without any evidence, because violating the provisions of sec. 5543, Rev. Codes, annulling any interest acquired from the estate, directly or indirectly for the benefit of an administrator. (French v. Phelps, 20 Cal. App. 101, 128 Pac. 772; Gardella v. Meeker, 3 Wash. Tr. 178, 13 Pac. 709; McDonald v. White, 46 Wash. 334, 89 Pae. 891.)</p> <p>The right to cancel a deed procured from an ancestor by fraud, duress or undue influence passes to the heirs where the ancestor has not ratified it or acquiesced in it. (18 Ency. PI. & Pr. 763, notes 2 and 3; 4 Ballard’s Law of Real Property, sec. 152, pp. 155, 156; 9 Id., sec. 143, pp. 124, 125; 12 Id., sec. 90, pp. 126, 127; Curtis v. Burns, 27 Ind. App. 74, 60 N. E. 963; Groesbeck v. Groesbeck, 49 Or. 113, 88 Pac. 870; Marsh v. Marsh, 78 Vt. 399, 63 Atl. 159; Samuel v. Marshall, 3 Leigh (Va.), 567; Waddell v. Lanier, 62 Ala. 347; Coidson v. Coulson, 180 Mo. 709, 79 S. "W. 473; Hatch, v. Hatch, (Utah), 148 Pae. 433.)</p> <p>Appellant does not claim as an heir, devisee or creditor of either Ann Blackinton or Emmett Blackinton, and she cannot be heard to question the procedure by which their estates are distributed. (Gwinn v. Melvin, 9 Ida. 202, 108 Am. St. 119, 72 Pae. 961, 2 Ann. Cas. 770.)</p> <p>The form of undertaking is that prescribed by sec'. 4933a, Rev. Codes. This section was adopted to avoid the necessity of having to write in conditions. The statute imports into the form every condition required by law. If the penalty were not sufficient for the appeal from both orders, the bond would be void for uncertainty; but where the appeal is from two specified orders, in the form into which the statute imports every condition required by law, and the penalty is sufficient for both appeals, it is in legal effect two bonds in one instrument, and cannot be otherwise construed without distorting the plain provisions of a statute designed to simplify the practice and save the time of counsel. (Finney v. Moore, 9 Ida. 284, 74 Pac. 866; Edminston v. Steele, 12 Ida. 613, 87 Pac. 677; Vane v. Towle, 5 Ida. 471, 50 Pac. 1004.)</p> <p>This court has already determined that sec. 4229, Rev. Codes, is a part of the probate practice act. (Chandler v. Probate Court, 26 Ida. 173, 141 Pac. 635.)</p>

Original application for a writ of prohibition. The court had no jurisdiction to order a receivership for the reason that the complaint was not an affidavit of any evidential value, the verification thereof, even though in the present statutory form, being insufficient to make the same evidence of any facts whatever. “A bill .verified upon information and belief is held to afford no evidence upon which alone to predicate an order appointing a receiver.” (34 Cyc. 134.)…

<p>APPEAL from the District Court of the Second Judicial District for Idaho County. Hon. Edgar C.- Steele, Judge.</p> <p>Defendants were convicted of grand larceny.</p> <p>Secs. 3947 to 3960, inclusive, Rev. Codes, provide the method of obtaining a jury panel, and the same can be departed from, under the provisions of see. 3961, only when a reasonable necessity therefor appears, and not at the absolute option of the district judge. (State v. Barber, 13 Ida. 65, 79, 88 Pac. 418; Levy v. Wilson, 69 Cal. 105, 111, 10 Pac. 272; People v. Suesser, 142 Cal. 354, 75 Pac. 1093, 1095.)</p> <p>When the sheriff and two of his deputies are witnesses for the prosecution, it is error for the court to refuse to quash a jury panel selected from the body of the county by the sheriff. (State v. Barber, 13 Ida. 65, 79, 88 Pac. 418; State v. Jordan, 19 Ida. 192, 197-200, 112 Pac. 1049.)</p> <p>In the case of State v. Barber, 13 Ida. 65, at p. 80, 88 Pac. 418, this court gave a substantial reason in support of the procedure of the trial court in acting under the provisions of sec. 3961, Rev. Codes.</p>

<p>Negotiable Instruments — Holder in Due Course — Burden or Proof.</p> <p>1. Every holder of a negotiable instrument is deemed prima facie to be a holder in due course, but when it is shown that the title of any person who has negotiated the instrument is defective, the burden is on the holder t'o prove that he acquired title as a holder in due course, except where a party became bound on the instrument prior 'to the acquisition of such defective title.</p> <p>2. Sec. 3512, Bev. Codes, declares when a title to negotiable paper is defective.</p> <p>3. Sec. 3509, Eev. Codes, defines a “holder of negotiable paper, in due course.”</p> <p>4. Held, that the evidence shows, without contradiction or conflict, that the appellant' was a holder of said promissory note in due course.</p> <p>5. While the jury is the judge of the evidence and the weight that should be given to it, it is not at' liberty to ignore entirely evidence where there is no conflict in it and where there is nothing to indicate that t'he witness was testifying falsely.</p> <p>6. Held, that the jury in rendering its verdict was misled or influenced by passion or prejudice.</p> <p>[As to who is a T>ona tide holder of a note, see notes in 9 Am. Dec. 272; 44 Am. Dec. 698.]</p>

<p>Original application for writ of mandate to compel the delivery of water for irrigation purposes.</p> <p>Having paid the maintenance and operating expense as fixed for the season of 1916, it is the duty of defendants to deliver the water for the irrigation of plaintiffs’ crops, and determine the question of arrears on the contract afterward. (Shelby v. Farmers’ Co-Op. Ditch Co., 10 Ida. 723 (738), 80 Pac. 222.)</p> <p>“The law in force when a contract is made is a part of such contract as fully as if its provisions had been incorporated into such contract.” (2 Page on Contracts, par. 1117; 9 Cyc. 582.)</p> <p>“The attempt to contravene the policy of a public statute is illegal, nor is it necessary to render it so thát the statute contain an express prohibition of such attempt.” {Sharp v. Teese, 9 N. J. L. 252 (254), 17 Am Dec. 479.)</p> <p>“Forfeitures, under the well-known rule of law, are not favored, and such contracts will be strictly construed against the company, especially where the consumer has the right of compulsory service.” (Kinney on Irrigation and Water Rights, 2d ed., sec. 1528; Shelby v. Farmers’ D. Co., supra.)</p> <p>There is a statutory duty to furnish the water under the Carey Act, and upon the payment of the rentals and tolls for the operation and maintenance of the system for the irrigating season of 1916, it is the duty of the company to furnish the water. (Mandell v. San Diego etc. Co., 89 Fed. 295; San Diego etc. Co. v. Sharp, 97 Fed. 394, 38 C. C. A. 220.)</p> <p>By the enforcement of clause 6 of the contract, defendants may withhold the waters from plaintiffs’ lands, and foreclose without proceeding in the ordinary tribunals, and deny the plaintiffs their equity of redemption which is provided to them by see. 1629, Rev. Codes. This is in all respects contrary to the established policy of the state in husbanding its waters, and a plain violation of the constitutional rights of plaintiffs. (Const., art. 15, secs. 1, 2, 4; Wilterding v. Green, 4 Ida. 773, 45 Pac. 134.)</p> <p>Any policy that works contrary to an economical, beneficial use of the waters is discountenanced. (State v. Twin Falls Canal Co., 21 Ida. 410, 121 Pac. 1039; Vcm Camp v. Emery, 13 Ida. 202, 89 Pac. 752; Farmers’ etc. Bitch Co. v. Riverside Irr. Bist., 16 Ida. 525, 102 Pac. 481.)</p> <p>"What right has the operating company, at the mere suggestion of the construction company, in anybody’s control, to arbitrarily assist it in the collection of its past due bills, to the extent of withholding water from the lands of plaintiffs, even if based on a clause in a contract? (Hatch v. Consumers’ Co., 17 Ida. 204, 104 Pac. 670, 40 L. R. A., N. S., 263.)</p> <p>The defendant construction company’s right is only to the extent created for the purpose of permitting it to appropriate for sale and delivery, as provided by law, in its capacity as a qrowi-public corporation, the quantity agreed to be delivered to the lands of plaintiffs, whether these lands may remain in the hands of plaintiffs or pass to the hands of some other qualified entrymen or purchasers. The only other interest of this company in this water is by virtue of its lien, whether it be called a mortgage, mechanic’s lien or special statutory lien. (Bennett v. Twin Falls N. 8. L. & W. Co., 27 Ida. 643, 150 Pac. 336.)</p> <p>Under the constitution and laws of the state and the decisions of this court, after the water has once become appurtenant to a certain tract of land, the land and water cannot be separated to the injury of any other person or unless consented to by the owner of the land. (Hard v. Boise City Irrigation & Land Co., 9 Ida. 589, 76 Pac. 331, 65 L. R. A. 407.)</p> <p>“There is nothing to compel either a municipality or a water company to furnish water to one who will not pay for it, and a regulation that in case the consumer is in default, his supply will be cut off, is reasonable and may be enforced.” (1 Farnham on Waters, sec. 164a; Hatch v. The Consumers’ Co., 17 Ida. 204,104 Pac. 670, 40 L. R. A., N. S., 263.)</p> <p>The contracts here in question were directly and fully, agreed to in tfee most formal manner and were afterward approved by the state authorities. Entrymen were not required to take land. There was no obligation upon them to do so. They took it of their own volition. (Idaho Irr. Co. v. Pew, 26 Ida. 278, 141 Pac. 1099.)</p> <p>Conditional sale contracts may lawfully be made whereby, in case of failure to make payment, the owner may retake the property. (Pease v. Teller Co., 22 Ida. 807, 128 Pac. 981.)</p> <p>An attack upon contracts upon the ground that they are against public policy is not favored by the courts. (Baltimore & O. S. By. Co. v. Voigt, 176 U. S. 498 (504); 20 Sup. Ct. 385, 44 L. ed. 560.)</p> <p>Even in the case of public service corporations, where there is a repudiation of a just debt, the person may be refused further service. (Wyman on Public Service Corporations, sec. 448.)</p> <p>We are under no obligation whatever to permit the use of the property, that is, the proportionate part of the ditch owned by the settler and the appurtenant water supply, unless ■he keeps up his instalments, and this result would come about without inserting such a paragraph as paragraph 6 in the contract. (Page on Contracts, sec. 1489.)</p> <p>While the settler is not performing the contract upon his part and has no legal excuse for not performing, we are not required to keep up a performance on our part. (Hammond on Contracts, see. 454; Elliott on Contracts, sec. 1590.)</p> <p>When water is ready for delivery in the irrigation system, the construction company shall notify the. settler under the irrigation works that they are prepared to furnish water under the terms of their contract with the state, and within a certain specified time after notice certain reclamation must be done by the settler. The settler cannot delay; he must proceed. (Sec. 1628, Rev. Codes; Hanes v. Idaho Irr. Co., 21 Ida. 512, 122 Pae. 859.)</p> <p>While the national Carey Act only recognizes the right to a lien upon the land, the state statute authorises the creation of the lien upon both the land and water, and said latter provision is in harmony with the provisions of Congress. (Idaho Irr. Co. v. Pew, 26 Ida. 272, 141 Pae. 1099.)</p> <p>The company, like the settler, takes its risks, and if the settler is unable to pay his deferred payments, the company has no right to destroy the prosperity of the state, to deprive the United States and the state of the benefits which were .intended to flow to them from the development and reclamation of the public lands, to impair or destroy the very thing and purpose for which the lands were segregated and donated to the state, but it was the intent of Congress and the intent of the legislature that the company would have a lien upon the land and the water, and that it could foreclose this lien and transfer such land and water to other persons. Such procedure does not call for the deprivation of water, but carries with it the idea that the furnishing of water shall continue and be transferred upon the foreclosure of the lien.</p> <p>Judicial tribunals hold themselves bound to the observance of rules of extreme caution when invoked to declare a transaction void on grounds of public policy, and prejudice to the public interest must clearly appear before a court would be warranted in pronouncing a transaction void on this account. The power of courts to declare a contract void for being in' contravention of sound public policy is a very delicate and undefined power, and, like the power to declare a statute unconstitutional, should be exercised only in eases free from doubt. (Smith v. Du Bose, 78 G-a. 413, 6 Am. St. 260, 3 S. E. 309; United States v. United Shoe Machinery Co., 222 Fed. 349, 407; People v. Hawkins, 157 N. Y. 1, 68 Am. St. 736, 51 N. E. 257, 42 L. R. A. 490; Hollis v. Drew Theological Seminary, 95 N. Y. 166; Girard Will Case (Vidal v. Girard), 43 U. S. (2 How.) 127, 11 L. ed. 205.)</p> <p>A person who applies for service, whether it be water, gas or electric current, and subscribes to regulations to the effect that the supply may be discontinued if the consumer fails or neglects to pay his bills when due, cannot repudiate the contract after he has obtained the benefit thereof, and the alleged public policy involved does not go to the extent of forbidding such contracts. (Machín v. Portland Gas Co., 38 Or. 120, 61 Pac. 134, 62 Pac. 20, 49 L. R. A. 596; State v. Butte Electric and Power Co., 43 Mont. 118, 115 Pac. 45; City of Mansfield v. Humphreys Mfg. Co., 82 Ohio St. 216, 19 Ann. Cas. 842, 92 N. E. 233, 31 L. R. A., N. S., 301; Tacoma Hotel Co. v. Tacoma Light & Water Co., 3 "Wash. 316, 28 Am. St. 35, 28 Pac. 516, 14 L. R. A. 669; People v. Paris Mountain Water Co., 81 S. C. 443, 128 Am. St. 923, 62 S. E. 874; State v. Board of Water etc. Commrs., 105 Minn. 472, 127 Am. St. 581, 117 N. W. 827; Pond on Public Utilities, sec. 220.)</p> <p>This court in Shelby v. Farmers’ etc. Ditch Co., 10 Ida. 723, 80 Pae. 222, refers to sec. 3289, Rev. Codes, which provides that canal companies must furnish water to any person who shall make a proper demand therefor, and furnish reasonable security for the payment thereof, and says “It protects parties who are willing to invest large sums of money in an enterprise that brings slow return. It is not an unreasonable requirement of the consumer and only furnishes the producer with reasonable protection for furnishing water.”</p> <p>Can it be seriously urged that the provision of the contract here in issue does not come squarely within the rule so announced by the court!</p> <p>The parties to the action have contracted that the water company may do the very thing which has been done in the present action, and the water company is not bound to rely upon any rule or regulation, or statutory provision, but must have the right to rely upon the express terms of the contract between the parties. (Jackson v. Indian Creek etc. Irr. Co., 16 Ida. 430, 101 Pae. 814.)</p> <p>The provisions of our statute give the construction company the right to enter into a contract with the state and with the settler, controlling “the price and terms per acre at which such works and perpetual water rights shall be sold to settlers.” In the Jackson case, the court clearly held that the statute authorized the parties to contract in relation to these matters, and the Carey Act statute likewise authorizes such contracts. (San Diego Flume Co. v. Souther, 60 Fed. 164, 32 C. C. A. 548.)</p> <p>“If as soon as an entryman makes a contract for the purchase of water from a construction company to irrigate his land, the water becomes an inseparable appurtenance to such land, the terms of the contract which provide that the land and water company may refuse to deliver water, unless payments are made in accordance with the contract, would be absolutely without any value or force whatever, and the entryman would secure his water without regard to his payments therefor. No such inequitable construction of said contracts would be tolerated by any court.” (Bennett v. Twin Falls etc. Co., 27 Ida. 643, 653, 150 Pae. 336.)</p>

Hon. Ed. L. Bryan, Judge. Proceeding to annul or set aside assessments made by a drainage board against a canal and diteh company. Order granted to set aside such assessments.' The assessment is not made against the waste ditch as such, but against the corporation by reason of being relieved of the necessity of maintaining the waste ditch. This is clearly a special benefit.

<p>General Property Road Tax — Where Expended — Collection op Tax —Apportionment of Tax — Special Road Levy — Petition for by Resident Taxpayers — Discretion of Board — Proceeds of — Where Expended.</p> <p>1. Under the provisions of see. 882, Rev. Codes, it is the mandatory duty of the board of county commissioners to levy a property road tax to be paid into the county road fund, and under the provisions of sec. 99, Sess. Laws 1913, page 203, boards of county commissioners in this state must levy annually upon all the taxable property in their respective counties a tax for general county purposes, and upon the same property and for the same year the board must also levy for general road purposes, to be collected and paid into the county treasury and apportioned to the county road fund, which levy shall not exceed twenty-five cents on each one hundred dollars of such assessed valuation. =■</p> <p>2. Subd. 6 of sec. 882, Rev. Codes, provides that at least twenty-five per cent of the fund collected in any road district must be expended within the district in which such fund was collected.</p> <p>3. Under the provisions of sec. 900, Sess. Laws 1913, page 524, the tax for general road purposes must be levied by the board of county commissioners at their session when the tax is by them levied for county purposes, and must be collected by the same officers and in the same manner as other state and county taxes are collected, and paid into the county treasury and apportioned to the county road fund, except that twenty-five per cent of that portion of such tax which shall have been levied upon property within the limits of any incorporated city, town or village must be apportioned to such city, town or village, for the road fund of such city, town or village, and if there be within the county any taxing district organized under any law of this state providing for the apportionment of any portion of such tax to such taxing district, that portion of such tax which may have been levied upon property within the limits of such taxing district shall be paid and applied as provided in such law.</p> <p>4. Where the.resident taxpayers of any road district within a eounty desire k special road levy, in addition to the general levy made by the board of county commissioners for road purposes on the assessed valuation of all of the taxable property in the county, in order to provide for a greater degree of improvement than would be made possible by the general levy, said resident taxpayers may petition the board of county commissioners for such special levy. Under the provisions of sec. 901, Sess. Laws 1913, page 522, the granting of said petition and the making of said special levy are discretionary with the board of county commissioners.</p> <p>5. Boards of county commissioners, in making a general levy for road purposes, are not authorized, neither is it their duty to take into consideration petitions filed with them for special levies by a majority of the resident taxpayers of any road district in their respective counties, petitioning sueh board under the provisions of see. 901, Sess. Laws 1913, page 522. The proceeds of any such special levy for road purposes, when granted, are to be expended only within the district or for the benefit of the district from which they, were collected, and should not be considered by boards of eounty commissioners in making a just and equitable distribution to the various road districts of the moneys paid into the county treasury under the general levy made upon the assessed valuation of all of the taxable property in their respective counties for road purposes.</p> <p>[As to validity of statute in assessing cost of construction or repair of rural highway on land benefited, see note in Ann. Cas. 1913D, 550.]</p>

<p>Cities and Villages — Public Improvement — Competitive Bids — Specifications.</p> <p>1. It was the purpose of the legislature, in enacting subds. 15 and 16, sec. 2238f, Rev. Codes (Sess. Laws 1915, p. 231), relative to making contracts for certain improvements by eities and villages, to procure competitive bidding for such contracts and thereby to safeguard public funds and prevent favoritism, fraud and extravagance in their expenditure.</p> <p>2. It was also the legislative intent that such a contract must not be let to any other than the lowest bidder, unless some fact, or facts, exist by reason of which a bid, other than the lowest, has been made by one who is, even though higher in price, the best responsible bidder.</p> <p>3. If sueh faets do exist they must be weighed and considered by the mayor and council or board of trustees, while in session, and, if the contract is let to another than the lowest bidder, the ultimate facts upon which that action is based should be entered in the clerk’s minutes.</p> <p>4. The specifications for a public improvement such as is contemplated by subds. 15 and 16, see. 2238f, supra, must be made sufficiently definite and certain that any bidder who secures the contract may be compelled to perform it in a way to produce the kind, character and grade of improvement desired and that-liability upon his bond will result from his failure so to do.</p> <p>[As to construction of “lowest responsible bidder” or similar phrase in statute providing for letting of municipal contracts, see note in Ann. Oas. 1913A, 500.]</p> <p>The question of sufficiency of specifications for guidance of bidder for public contract is discussed in a comprehensive note in 30 L. R. A. N. S., 214.</p>

Honorable John M. Flynn, Acting Judge. Action to condemn strip of land for right of way through defendant’s property for temporary logging railroad. Judgment for plaintiff. At common law, permanent improvements placed upon land of another by one having no interest or title therein and without the owner’s consent become part of the realty. (22 Cyc. 7.) This common-law rule has not been changed or modified by any law or statute in Idaho as applying to a trespasser.

Hon. Edgar C. Steele, Judge. Action to quiet title to certain parts of the beds of the Snake and Clearwater rivers bordering on the city of Lewis-ton. Judgment quieting title in the mayor-trustee for the city. A description running “to the bank” or “along the bank” is sufficient to convey the bank and riparian rights, including the soil to the center of the stream. (5 Cye. 903; St. Clair Co. v. Loving si on, 23 Wall. 46, 23 L. ed. 59; Luce v. Corley, 24 Wend.

<p>APPEAL from the District Court of the Second Judicial District for Nez Perce County. Hon. Edgar C. Steele, Judge.</p> <p>Appellant was convicted of practicing medicine within this state without having obtained a license so to do.</p> <p>In construing a statute the court should take into consideration the reason of the law; that is, the object and purpose of the same, and the object and contemplation of the legislative body in enacting the same, and the time and conditions under which it was passed. (Wood v. Independent School Dist., 21 Ida. 734, 124 Pac. 780; Oneida Go. v. Evans, 25 Ida. 460, 138 Pac. 337; Oregon S. L. B. B. Go. v. Minidolca, 28 Ida. 214,153 Pac. 425; Colborn v. Wilson, 24 Ida. 94, 132 Pac. 579.)</p> <p>The statute reads, “any drug, medicine, means or appliance.” Applying the doctrine ejusdem generis, the words “means or appliances,” being general terms, are limited by the preceding words, “drugs and medicine,” and refer-back to the subject “practice of ... . medicine and surgery,” so that they belong to the same class or genus. {State v. Gallagher, 101 Ark. 593, 143 S. W. 98, 38 L. R. A., N. S., 330; State ex rel. Spriggs v. Bobinson, 153 Mo. 271,161 S. W. 1169; San Antonio Independent School Dist. v. State (Tex.), 173 S. W. 525.)</p> <p>Where a statute expressly forbids certain things, there is an implication raised that it was the legislative intent to exclude from that prohibition every other thing. '{Scott v. Ford, 52 Or. 288, 97 Pac. 99; 19 Cyc. 23; 36 Cyc: 1122, n: 48.)</p> <p>That this statute, see. 1358, was only intended to cover “medicine and surgery” is shown by the frequent recurrence of the words “or either” following the mentioning of these two professions. (People v. Chong, 28 Cal. App. 121, 151 Pae. 553.)</p> <p>It cannot be contended that ehiropracty falls within the term “drugs or medicines”; the prosecution must be based upon the words “means or appliances.” (State v. Gallagher, 101 Ark. 593, 143 S. W. 98, 38 L. R. A., N. S., 328; State v. Liffring, 61 Ohio St. 39, 76 Am. St. 358, 55 N. E. 168, 46 L. R. A. 334; Hayden v. State, 81 Miss. 291, 95 Am. St. 471, 33 So. 653; State v. Biggs, 133 N. C. 729, 98 Am. St. 731, 46 S. E. 401; Martin v. Baldy, 249 Pa. 253, 94 Atl. 1091.)</p> <p>Many courts have held that massage treatments of various kinds and character have not fallen within the purview of general medical statutes. (State v. Lawson (Del.), 65 Atl. 593; Beg. v. Valleau,, 3 Can. Crim. Cas. 435; People v. Gordon, 194 111. 560, 88 Am. St. 165, 62 N. E. 858; Parks v. State, 159 Ind. 211, 64 N. E. 862, 59 L. R. A. 190; Witty v. State, 173 Ind. 404, 90 N. E. 627, 25 L. R. A., N. S„ 1297; Milling v. State (Tex.), 150 S. W. 434.)</p> <p>The practice of ehiropracty appears to have originated in the state of Iowa, and hence it is pertinent to inquire as to the position taken by the highest court in that state relative to the question involved in the case at bar. (State v. Corwin, 151 Iowa, 420, 131 N. W. 659; State v. Zechman, 157 Iowa, 158, 138 N. W. 387; Commonwealth v. Zimmerman, 221 Mass. 184, 108 N. E. 893; Locke v. Ionia Circuit Judge, 184 Mich. 535, 151 N. W. 623; State v. Siler, 169 N. C. 314, 84 S. E. 1015; People v. Ellis, 162 App. Div. 288, 147 N. Y. Supp. 681 ; Board of Med. Ex. v. Ereenor (Utah), 154 Pae. 942; People v. Batledge, 172 Cal. 401, 156 Pac. 455; People v. Vermillion, 30 Cal. App. 417, 158 Pac. 504; State v. Griener, 63 Wash. 46, 114 Pac. 898; State v. Smith, 233 Mo. 242, 135 S. W. 465, 33 L. R. A., N. S., 179; Swartz v. Siveny, 35 R. I. 1, 85 Atl. 33; Commonwealth v. Jewell, 199 Mass. 558, 85 N. E. 858.)</p> <p>“As new schools of practice come into favor their followers must possess the requirements for the practice of medicine or surgery or prevail upon the legislature to make separate provisions for them as it has done for the osteopath. ” (State v. Johnson, 84 Kan. 411,114 Pac. 390, 41 L. R. A., N. S., 539.)</p> <p>The police power of the state extends to the point of empowering the legislature to protect the individual from his own ignorance and from those who desire to prey thereon. {State v. Davis, 194 Mo. 485, 92 S. W. 484, 5 Ann. Cas. 1000, 4 L. R. A., N. S., 1023.)</p> <p>A chiropractor comes within the provisions of sec. 1353. {Swartz v. Siveny, supra; State v. Wilhite, 132 Iowa, 226, 11 Ann. Cas. 180, 109 N. W. 730.)</p> <p>Even applying the rule of ejusdem generis,, as contended for by the defendant, our statute is broad enough to include the chiropractor within its provisions, although it was enacted at a time prior to the establishment of schools of ehiropracty. {State v. Convin, 151 Iowa,- 420, 131 N. W. 659.)</p>

Hon. W. W. Woods, Judge. Action to recover for goods, wares and merchandise sold and delivered, and for zinc ore appropriated without the owner’s consent. Judgment for plaintiff. Citations of authority not in point on decision.

Hon. John M. Flynn, Judge. Action brought against defendant as administrator to recover loss occasioned by unauthorized acts of plaintiff as agent. Motion for nonsuit granted. Tbe lack of full knowledge does not protect a principal who deliberately chooses to act without such knowledge, or where he deliberately ratifies without full knowledge under circumstances which are sufficient to put a reasonable man upon inquiry.

<p>APPEAL from the District Court of the First Judicial District for Shoshone County. Hon. William W. Woods, Judge.</p> <p>Appeal from justice’s court to district court. In that court respondent’s motion to dismiss appeal was granted, and appellant’s motion to require justice to file transcript on appeal Was denied. Appeal from order for judgment.</p> <p>The rule of the court is not jurisdictional, and should be applied with discretion. (Perkins v. Bridge, 10 Ida. 193, 77 Pac. 329; Stevenson v. Cadwell, 14 Mont. 311, 36 Pac. 185.)</p> <p>The order appealed from is not a final judgment nor a special order made after final judgment. (Durant v. Gomegys; 3 Ida. 67, 35 Am. St. 267, 26 Pac. 755; Ah Kle v. McLean, 3 Ida. 70, 26 Pac. 937; TMessen v. Biggs, 5 Ida. 21, 46 Pac. 829; Connell v. Warren, 3 Ida. 117, 27 Pac. 730.) *</p> <p>An order of the district court dismissing an appeal from a justice court judgment is not appealable. (Altman v. Young, 38 Mich. 410; Kelly v. Hopkins (Kelly’s Estate), 72 Minn. 258, 75 N. W. 374; Taylor v. Bed Lake Falls Lumber Co., 81 Minn. 492, 84 N. W. 301; Durham Fertilizer Co. v. Matrshbum, 122 N. C. 411, 65 Am. St. 711, 29 S. E. 411; Merrell v. McHone, 126 N. C. 528, 36 S. E. 35; Lough v. White, 13 N. D. 387, 100 N. W. 1084.)</p> <p>An order sustaining a motion to dismiss an appeal from a justice is not appealable to the supreme court under Code Civ. Proc., par. 1772, as amended by Sess. Laws 1899, p. 146, enumerating the orders from which appeals may be taken. {Franzman v. Davies, 32 Mont. 251, 80 Pac. 251.)</p>

Hon. Robt. N. Dunn, Judge. Action to recover resaw and attachments sold under conditional sale. Judgment for plaintiff.

Original proceeding in this court under the Public Utilities Act to review the action of the Public Utilities Commission in fixing rates to be charged for telephone service in Coeur d’Alene City. The commission erred in not deducting the sum of $15,725.50 for actual, tangible depreciation.

<p>Levy op County Commissioners por General Road Purposes — Discretion op Board — Citation for Contempt in Disregarding Judicial Mandate.</p> <p>1. Under sec. 896, Rev. Codes, as amended by Session Laws of 1911, p. 162, it is tbe duty of the board of county commissioners to make an annual estimate of the probable amount of money necessary for general road purposes for the ensuing year, and when it appears that they honestly use their best judgment in making such estimate, their action is not subject to review upon citation to show cause why they should not be punished for eontempt in disregarding the mandate of the . court.</p> <p>2. Held, that it appeared from the evidence adduced before the court upon eontempt proceedings in this case that the board of county commissioners for Latah county used their best judgment in fixing the levy for general road purposes for the ensuing fiseal year, and that no evidence was submitted which would justify the court in concluding that said commissioners wilfully disobeyed the mandate of the court with regard to said levy, and that they are guilty of neither a civil nor a criminal contempt of this court.</p> <p>[As to mandamus against public officers, see note in 98 Am. St. 863.]</p>

Hon. Robt. N. Dunn, Judge. Action to foreclose five liens. Judgment for plaintiff. Held: to compensate employees for the time, not exceeding thirty days, they spend in waiting to be paid for their labor. {Olson v. Idora Hill Min. Co., 28 Ida. 504,155 Pae. 291.) ’

<p>Personal Injuries — Master and Servant — Hazardous Business — Assumption of Bisk — Warning Signals — Duty to Give — Delegation or — Negligence.</p> <p>1. Where servants are employed for the prosecution of a lawful but hazardous business, they assume the risks of such employment arising from the negligence of coemployees, subject, however, to the exception that the master is liable for such injuries as accrue to the servant from the negligence of a fellow-servant in the selection of whom the master has been culpably negligent. But when the master exercises ordinary care, having regard to the hazards of the service, to provide the servant with a reasonably safe working place, machinery, tools and appliances and to maintain them in a reasonably safe condition of repair, and adopts adequate and efficient rules and regulations, and uses reasonable care to enforce such rules and regulations by employing fit and competent servants devolving upon them the positive duty to carry out and enforce the rules for the protection of the workmen — the failure of the servant to give a signal under such circumstances, in an isolated instance, which results in an injury to a fellow-servant, is in no sense the negligence of the master for which he would be liable, but is the carelessness and negligence of a coservant in the same common employment.</p> <p>2. The legal measure of the master’s duty or liability is the exercise of ordinary care, having regard to the hazards of the service, to provide the servant with reasonably safe working places, machinery and appliances, and the exercise of ordinary care to maintain them in a reasonably safe condition of repair, and use due diligence in the employment of competent servants to whom may be intrusted the duty of giving proper signals which is part of the work of operation; and it is not the master’s fault if such servant fails to give such proper signals and as a consequence injury results to a fellow-servant.</p> <p>3. Held, under the facts in this case, that where the master used due diligence in the selection of a competent servant to give warning signals and adopted a reasonably safe signal system and used reasonable care to see that the signal system was enforced, his nondelegable duties were complied with, and he could not be held answerable in damages for injuries to a servant caused by the negligence of a fellow-servant in failing to give the proper signal.</p> <p>4. The case of Hucey v. StacJc-Gih~bs Lumber Go., 23 Ida. 628, 131 Pac. 897, 46 L. R. A., N. S., 86, followed and approved, except wherein it is held that it is the absolute duty of the master to give warning signals, and the failure to do so, though the failure be the neglect of an employee, renders the master liable to a servant who is injured in consequence of such neglect, and that the duty to give proper signals is nondelegable — and to that extent it is hereby overruled.</p> <p>5. Held, that the court erred in giving instruction No. 6 and in refusing to give appellant’s requested instruction “B.”</p> <p>[As to how far servant may rely on knowledge of master concerning risks, see note in 24 Am. St. 320.]</p>

<p>Real Property — Vendor and Purchaser — Representations as to Boundary — Evidence—Instructions.</p> <p>1. While the purchaser of real property has a right to rely upon the representations made by the vendor as to the boundary lines thereof, where, as in this case, purchase of timber situated upon certain land has been made, and the purchaser testifies that a blazed, line was pointed out to him by the vendor as the true boundary, and that he believed the representation so made and acted upon it to his injury, and the vendor denies that he made such representation, and where it appears that the purchaser and others, prior to the transaction being completed, made an estimate of the timber in question, it is not error to admit evidence showing that it is customary for timber cruisers to definitely locate the boundaries of land upon which timber is situated, before making an estimate thereof, and that it would have been easy to do So, as tending to establish the probability, or improbability, of the testimony of the parties.</p> <p>2. Although certain instructions, and portions of others, may not accurately state the law applicable to the facts in a case, when read and considered alone, if read in the light of the entire charge given to the jury they are not misleading, the giving of sueh instructions will not constitute reversible error. All instructions given in a case must be read and considered together, and where they are not inconsistent, but may be reasonably and fairly harmonized, it will be assumed that the jury gave due consideration to the instructions as a whole rather than to an isolated portion thereof.</p> <p>[As to liability of vendor for false representations innocently made, see note in Ann. Cas. 1913C, 63.]</p> <p>Upon the question of right of purchaser to rely on representations of seller as to boundaries, see notes in 37 L. R. A. 610; 14 L. R. A., N. S., 1210.</p>

Hon. John M. Flynn, Judge. Suit to foreclose mortgage, and to recover possession of personal property. Verdict for defendant upon counterclaim set aside and new trial granted. la an action for fraud in the sale of land the measure of damages is the difference between the actual value of the property and its value as represented.

Original application for a writ of review. Under the constitutional and statutory provisions and the decided law of this state, the writ of certiorari is the proper mode of appeal from the action of this board.

<p>APPEAL from tbe District Court of tbe Eigbtb Judicial District for Kootenai County. Hon. R. N. Dunn, Judge.</p> <p>Action to have a deed, absolute on its face, declared a mortgage. Judgment for the defendant.</p> <p>There was a pre-existing antecedent debt, evidenced by the promissory note and mortgage. The transaction therefore amounts to a mortgage, whatever language the parties may have used and whatever stipulation they may have inserted in the instrument. (3 Pomeroy’s Eq. Jur., 3d ed., sec. 1195, and cases cited; Keithley v. Wood, 151 111. 566, 42 Am. St. 265, 38 N. E. 149; Hickox v. Lowe, 10 Cal. 197; Robertson v. Wheeler, 162 111. 566, 44 N. E. 60; Kelleran v. Brown, 4 Mass. 443; Colwell v. Woods, 3 Watts, 188, 27 Am. Dec. 345; Phillips v. HuZsizer, 20 N. J. Eq. 308, 315.)</p> <p>The fact that the grantor, Shaner, was left in possession of all of the property and that his estate still holds possession of the same is important, and throws much light upon the real intent and nature of the transaction, as tending to show the existence of a debt and the whole character of the instrument as constituting a mortgage. (3 Pomeroy’s Eq. Jur., sec. 1195, and eases cited; Kelly v. Leaehman (2 Ida. 1112), 3 Ida. 392, 129 Pae. 849; Worley v. Carter, 30 Okl. 642, 121 Pac. 672.)</p> <p>“While the debt assumed a new form, when all the evidence and circumstances are considered, we do not think it was paid and discharged, but, on the other hand, it was enlarged by appellant advancing an additional sum.” {Smith v. Hoff, 23 N. D. 37, Ann. Cas. 1914C, 1072, 135 N. W. 772; Gray v. Shelby, 83 Tex. 405, 18 S. W. 809.)</p> <p>The .embarrassed financial condition of Shaner, his inability to pay interest, taxes and insurance, and the threat of foreclosure, are all circumstances favorable to appellant’s contention that the transaction constituted a mortgage. {Reed v. Reed, 75 Me. 264; Tilla v. Rodriguez, 12 Wall. 339, 20 L. ed. 406.)</p> <p>“A deed absolute on its face, and a separate agreement by the grantee for reconveyance of the same tract of land to the grantor upon payment of the consideration named in the deed, with, interest, taxes, etc., by a specified time, bearing the same date as the deed, constitute a mortgage.” {Smith v. Hoff, supra; Kelly v. Leachman, supra.)</p> <p>“Where a deed absolute in form is executed with or without a contemporaneous agreement for a resale of the property, in the absence of anything on the face of the collateral papers to show a contrary intent, the presumption of law, independent of evidence, is that the transaction is what it appears to be, and he who asserts that the writing shall be given a different construction must show, by dear and convincing evidence, that a mortgage, and not a sale with the right to repurchase, was intended.” {Johnson v. National Bank of Commerce, 65 Wash. 261, 118 Pac. 21, L. R. A. 1916B, 4; Miller v. Smith, 20 N. D. 96, 126 N. W. 499; Pomeroy, Eq. Jur., 3d ed., par. 1196; Harmon v. Grants Pass Banking & Trust Go., 60 Or. 69, 118 Pae. 188; Bogk v. Gassert, 149 U. S. 17, 13 Sup. Ct. 738, 37 L. ed. 634.)</p> <p>Payment of an indebtedness may be made by the transfer to the mortgagee of the mortgaged premises and the acceptance thereof by him. (27 Cyc. 1390.)</p> <p>Cancelation and satisfaction of the note cancels and satisfies the mortgage. {Harmon v. Grants Pass Banking & Trust Co., supra; Brown v. Thomas, 37 Kan. 282,15 Pac. 211.)</p> <p>“The test is the existence or nonexistence of a debt. If after the transaction no debt remains, there is no mortgage, but only a conditional sale.” {McNamara v. Culver, 22 Kan. 661; Saxton v. Hitchcock, Ml Barb. 227; Hays v. Emerson, 75 Ark. 551, 87 S. W. 1027; Vance v. Anderson, 113 Cal. 532, 45 Pac. 816; Woods v. Jansen, 130 Cal. 200, 62 Pac. 473; Felland v. Vollmer Milling etc. Co., 6 Ida. 120, 53 Pac. 268.)</p> <p>“Before a deed can be declared to be an equitable mortgage there must exist a debt which must be personal in its nature and enforceable against the person independent of the security.” {Fabrique v. Cherokee & P. Coal & Mining Co., 69 Kan. 733, 77 Pac. 584; Bushton v. Mclllvene, 88 Ark. 299, 114 S. W. 709; Miller v. Smith, 20 N. D. 96, 126 N. W. 499; Bradbury v. Davenport, 120 Cal. 152, 52 Pac. 301; Vance v, Anderson, 113 Gal. 532, 45 Pae. 814.)</p> <p>“In an action for the purpose of declaring a deed a mortgage, the evidence to support the claim of the plaintiff must be clear and satisfactory and show the intent of the parties to be that the instrument delivered is security for a debt, and not a conveyance of absolute title.” (Bergen v. Johnson, 21 Ida. 619; 123 Pac. 484; Jasper v. Hazen, 4 N. D. 1, 58 N. W. 454, 23 L. R. A. 58.)</p> <p>In attempting to have a deed declared a mortgage, equity requires the party so asking to tender and offer to pay the amount of the debt and interest before he is entitled to any standing in a court of equity. (Hicks v. Hieles (Tex. Civ.), 26 S. W. 227; Dawson v. Overmyer, 141 Ind. 438, 40 N. E. 1065; Rodriguez v. Haynes, 76 Tex. 225, 13 S. W. 296; Jones on Mortgages, 2d ed., par. 1095.)</p>

<p>Default — Setting Aside — Affidavit for — Sufficiency of — Discretion of Court — Sound, Legal.</p> <p>1. The showing made in this ease to set aside the default reviewed and held insufficient to support or justify the order of the trial court in setting aside the default.</p> <p>2. The failure of the attorney to familiarize himself with the law covering the practice of the forum wherein Ms ease is pending will not be held to be excusable negleet, since it is incumbent upon the lawyer from another state, practicing law in this state, to familiarize himself with the rules of practice of the courts in this state.</p> <p>3. The action of the trial court in setting aside a default is governed by sound, legal discretion, and where it appears that such discretion has been abused, the order setting aside a default will be reversed on appeal.</p> <p>[As to opening or vacating judgment because of negligence or inadvertence of attorney, see note in 80 Am St. 264.]</p>

<p>Prohibition — Mayor and City Council — Ordinance—Sewerage Disposal Plant — Construction of New Plant — Old Plant — City Enjoined from Using — Assessment of Benefits — What Property Liable to — Statutory Construction — Description of Property — Sufficiency of Sewer Committee — Method of Procedure.</p> <p>1. Where it becomes necessary to construct a new system of sewerage disposal works, the provisions of subd. 4 of sec. 2353, Rev. Codes, as amended by Laws of 1911, p. 256, do not apply, as said provisions were not intended to apply to the construction of a new sewerage disposal plant, as it provides only for repairing and maintaining an existing plant.</p> <p>2. It is declared by Ordinance No. 429 to be the intention of the city to construct an entirely new sewerage disposal plant, and said ordinance creates a sewerage district bounded by the corporate limits of said city for that purpose, and it is proposed to assess the real property within such district to pay the cost and expense of such new plant aeeording t'o the benefits received by each tract, as provided by subd. 3 of said sec. 2353.</p> <p>3. After such assessments are made, the property owner is given opportunity to be heard in regard to the matter, and the decision of the city council upon such hearing is subject to appeal.</p> <p>4. The assessing board is the proper tribunal to first determine what property is assessable so far as benefits are concerned, subject to protest to the council, and the right to appeal is given' from the decision of the council to the courts.</p> <p>5. Held, that the ordinance of intention is sufficiently specific as to the boundaries of said sewerage district.</p> <p>6. The ordinance ordering the improvements to be made and the assessment of lots and tracts of land within sueh district to be assessed must be described by the proper subdivisions.</p> <p>7. Held, under the provisions of sec. 2238, Rev. Codes, as amended by Laws of 1915, p. 221, that general authority is given to cities and villages to construct sewers as well as other improvements, and with that power is included the power to construct all of the necessary and incidental works for a complete sewerage system, including sufficient outlets and disposal works of proper capacity to make such system effective and complete.</p> <p>8. Held, that there are two methods provided by statute for the construction of a sewer system, one under the provisions of chap. 14 of the Political Code, commencing with see. 2342, and the other under the provisions of sec. 2238, Bev. Codes, as amended by Sess. Laws 1915, p. 221, and the city may follow either of said procedures in the construction, of a sewerage system; and if the procedure first mentioned is adopted, a sewer committee must be appointed; if the latter is followed, a sewer committee need not be appointed, and a writ would not issue to prohibit the city from adopting either method of procedure.</p> <p>9. Held, that if the city mayor and council desire, they may legally proceed in the construction of a sewer system without the appointment of a sewer committee.</p> <p>[As to eases in which the writ of prohibition lies, see notes in 12 Am. Dec. 604; 18 Am. Dec. 238; 111 Am. St. 929.]</p>

Hon. William W. Woods, Judge. Action to obtain a perpetual injunction and to determine the extralateral rights of the defendant to certain mining ground, and to recover damages for the value of ores alleged to have been removed from the Cardiff mining claim; and to quiet title of plaintiff in said Cardiff claim. Judgment for plaintiff.

<p>Divorce — Extreme Cruelty — Calling Adverse Party as Witness— Impeachment.</p> <p>1. Extreme cruelty, as a ground for divorce, is defined by sec. 2649, Bev. Codes, to be “the infliction of grievous bodily injury or grievous mental- suffering upon the other by one party to the marriage.”</p> <p>2. Under the provisions of see. 1 of an act of the legislature approved March 13, 1909 (Sess. Laws 1909, p. 334), either party to an action for divorce may eall the other as a witness.</p> <p>3. That act of the legislature permits a party to a civil action to call as a witness the adverse party and to prove by him a fact, or facts, in issue which could not be otherwise readily established, and allows such witness to be examined according to the liberal rules of cross-examination whereby leading questions may be propounded. Trial courts have the same control over such examination that they have over cross-examination, and it is an abuse of judicial discretion and of the privilege granted by the act to permit a party calling his adversary as a witness to inquire into the entire controversy and to examine him with respect to matters about which other evidence is readily available.</p> <p>4. The right to impeach a witness and the methods of impeachment are statutory, and if a witness is to be discredited in this manner, the statute must be conformed to.</p> <p>5. Divorce is a remedy for the relief of an injured spouse who has not been the voluntary, procuring cause of the acts relied upon to invoke it, and it is not available for one who, disregarding the solemnity of the nuptial vows, prompts the other party to the marriage to conduct which would be inexcusable if committed against a husband or wife who was honestly endeavoring to sustain the marriage relation.</p> <p>6. Where it appears that the plaintiff in an action for divorce, by disagreeable and nagging conduct, was the procuring cause of the commission of the acts complained of, a decree dissolving the bonds of matrimony should not be granted, and if granted will be reversed.</p> <p>[As to cruelty as ground for divorce, see notes in 29 Am. Deo. 674; 73 Am. Dec. 619; 48 Am. Rep. 463; 51 Am. Rep. 736; 65 Am. St. 69.]</p>

<p>APPEAL from tbe District Court of the Third Judicial District for Ada County. Hon. Charles P. McCarthy, Judge.</p> <p>Action upon a judgment for costs. Judgment for plaintiffs.</p> <p>The so-called judgment upon which this action is based is void, and as sueh may be collaterally attacked. (Freeman on Judgments, 3d ed., sec. 117; Leland v. Isenbeck, 1 Ida. 469; Bay v. Bay, 1 Ida. 566, 581.)</p> <p>“If a person is not made a party to an action, his rights cannot be determined or affected by a judgment or decree entered in such ease.” (Idaho Irr. Go. v. Dill, 25 Ida. 711, 720, 139 Pac. 714; 23 Cyc. 412; Bachman v. Sepulveda-, 39 Cal. 688; Sisk v. Almon, 34 Ark. 391; Bice v. Goldberg, 26 111. App. 603; Johnson v. Block (Tex. Civ.), 46 S. W. 85; Dunlap v. Southerlin, 63 Tex. 38.)</p> <p>Prior to the time when this so-called judgment was rendered, sec. 37 of the 1903 act, which was the court’s sole authority for taxing these costs, had been superseded by the 1905 amendment to sec. 37, which became effective May 3, 1905 (1905 Sess. Laws, p. 362, sec. 4), and the amendment authorizes no judgment whatever against parties, to the action.</p> <p>The court would be absolutely bound by the new amendment at the time this judgment was made, as is shown in Boise Irr. & Land Co. v. Stewart, 10 Ida. 38, 58, 77 Pac. 25, 321.</p> <p>Assuming that the judgment was a valid judgment, this plaintiff can maintain no action thereon, for no valid assignment of the judgment is pleaded or proven. (Freeman on Judgments, 3d ed., see. 424; McMarray v. Marsh, 12 Colo. App. 95, 54 Pac. 852.)</p> <p>“It seems to be the uniformly received doctrine that partial assignments of judgments cannot be made without the consent of the judgment debtor.” (Lewis v. Third St. etc. B. B. Co., 26 Wash. 28, 66 Pac. 150; Snedden v. Harmes, 5 Colo. App. 477, 39 Pac. 68; Burnett v. Crandall, 63 Mo. 410.)</p> <p>There is a defect of parties, in that all persons holding certificates or otherwise having a joint interest in the so-called judgment are not joined, or, if joined, were not served with process. (Kissler v. Moss, 26 Ida. 516, 144 Pac. 647; Burkett v. Lehmen-Higginson Grocery Co., 8 Okl. 84, 56 Pac. 856; Jansen v. Hyde, 8 Colo. App. 38, 44 Pac. 760; 23 Cyc. 1507; Gilbert v. Allen, 57 Ind. 524; Culver v. Smith, 82 Mo. App. 390.)</p> <p>It is held that in an action by an equitable assignee of a judgment, an assignor must be made a party defendant. (Chicago & S. IS. By. Co. v. Higgins, 150 Ind. 329, 50 N. E. 32; McCardle v. Aultman Co. (Ind. App.), 66 N. E'. 507; affirmed, 31 Ind. App. 63, 67 N. E. 236.)</p> <p>The so-called judgment was set aside by the order of this court sustaining the motion for a new trial, and until new trial is had no judgment exists upon which to base a suit. (1 Hayne, New Trial & Appeal, see. 167, p. 871; Kent v. Williams, 146 Cal. 3, 79 Pac. 527.)</p> <p>It is within the power of this court to affirm a judgment in part and grant a new trial for the determination of certain things which the court deems undetermined therein, or erroneously determined. (Farmers’ Co-operative Ditch Co. v. Riverside Irr. Dist., 16 Ida. 525, 102 Pac. 481.)</p> <p>The law governing the case at bar is laid down in the cases of Boise Irr. & Land Co. v. Stewart, 10 Ida. 38, 77 Pae. 25, 321, and Farmers’ C'o-operative Ditch Co. v. Riverside Irr. Dist., 14 Ida. 450, 94 Pac. 761.</p>

<p>APPEAL from the District Court of the Third 'Judicial District for Ada County. Hon. - Charles P. McCarthy, Judge.</p> <p>Action upon a judgment for costs. Judgment for plaintiffs.</p> <p>The judgment sued on was vacated by the decision of this court in case of Farmers’ Co-operative Ditch Co. v. Riverside Irr. Dist., 16 Ida. 525, 102 Pae. 481, and if respondents have any valid claim for moneys advanced by them, they should have the same allowed in their favor when final judgment is entered in said action.</p> <p>The law expressly provides that costs of this character must be based upon the final judgment allotting the water rights. The lower court was governed by sec. 4620, Rev. Codes.</p> <p>This law was enacted in 1905 and was the same as sec. 37, p. 357, of the.Laws of 1903, which was construed by this court in case of Boise Irr. & Land Co. v. Stewart, 10 Ida. 38, 77 Pac. 25, 321, and in Farmers’ Co-operative Ditch Co. v. Riverside Irr. Dist., 16 Ida. 525, 102 Pac. 481.</p> <p>A water right cannot exist with merely a date or priority of right and no amount. Until the amount is determined, it seems absurd to claim that judgment could be entered and affirmed establishing the right.</p> <p>“The right to costs does not become vested until final judgment has been pronounced, nor do they, until then, become a debt against the party on whom they are imposed. ” (5 Ency. PI. & Pr. 121.)</p> <p>The state engineer’s authority to issue said certificates was upheld by this court in the case of Boise Irr. & Land Co. v. Stewart, 10 Ida. 38, 77 Pac. 25, 321, and the judgment entered in the original case by the lower court was granted for the express purpose of paying these same certificates and the holders of these certificates are the owners of the judgment. (.Farmers’ Co-operative Ditch Co. v. Riverside Irr. Dist., 14 Ida. 450, 94 Pac. 761; Farmers’ Co-operative Ditch Co. v. Riverside Irr. Dist., 16 Ida. 525, 102 Pac. 481.)</p> <p>“By the addition of a party plaintiff or substitution of a party plaintiff in a case wherein the cause of action or claim was not substantially changed, the cause of action is not, therefore, barred by reason of the fact that the new party or parties were not brought in until the statute of limitations would otherwise have run, and bringing in the new parties would relate back to the date of the commencement of the original action.” (Green v. Clifford, 94 Cal. 49, 29 Pac. 331; Rain v. Arizona Copper Co., 14 Ariz. 566, 133 Pae. 412; Vunk v. Raritan River R. R. Co., 56 N. J. L. 395, 28 Atl. 593; Bradford v. Andrews, 20 Ohio St. 208, 5 Am. Rep. 645; Súber v. Chandler, 36 S. C. 344, 15 S. E. 426.)</p>

Hon. Ed. L. Bryan, Presiding Judge. Suit to. cancel and annul certain deeds. Judgment for defendant. Lemp cannot claim adversely, as he holds the property as trustee. (2 Pomeroy, Eq. Jur., sees. 688, 770, 920.) The plaintiff in this action sues on behalf of the community in its collective capacity, and as such is the trustee of an express trust, and his authority is plain and explicit under sec. 4092, Rev. Codes. (1 Pomeroy, Eq.

<p>APPEAL from the District Court of the Third Judicial District for Ada County. Hon. Charles P. McCarthy, Judge.</p> <p>Action in intervention, to subject the proceeds of a judgment in favor of the state to an attorney’s lien for services rendered and expenses incurred. _ Temporary restraining order issued and thereafter vacated.</p> <p>The equitable charging lien, which is the one involved in the case at bar, is entirely different from the common-law lien. It rests upon the broad principle that an attorney is entitled in equity to a lien for his fees and disbursements upon the judgment which his services and skill have produced. This seems to be the only ground upon which it has ever been put. . (Reed v. Dupper, 6 Term Rep. 361, 101 Eng. Pull Reprint, 595; Baker v. St. Quentin, 12 Mees. & W. 441; 152 Eng. Pull Reprint, 1270.)</p> <p>The authorities are collected and very ably reviewed in Weed Sewing Mach. Co. v. Boutelle, 56 Yt. 570, 48 Am. Rep. 821; Warfield v. Campbell, 38 Ala. 527, 82 Am. Dec. 724; McDonald v. Napier, 14 Ga. 89, 110; Renick v. Ludington, 16 W. Ya. 378, 392; In re Knapp, 85 N. Y. 284; Goodrich v. McDonald, 112 N. Y. 157, 19 N. E. 649; Barnes v. Taylor, 30 N. J. Eq. 467.</p> <p>The power which the courts have summarily to enforce the performance by the attorney of his duties toward his client enables the court to protect the rights of the attorney as against the client. (Everett v. Alpha Portlcmd Cement Co., 225 Ped. 931, 935, 141 C. C. A. 55; Cowdrey v. Galveston etc. R. R. Co., 93 U. S. 352, 23 L. ed. 950; Zentmire v. Brailey, 89 Neb. 158, 130 N. W. 1047; Merchants’ Nat. Bank v. Armstrong, 107 Ga. 479, 33 S. E. 473; Walker v. Floyd, 30 Ga. 237; Fuller v. Clemmons, 158 Ala. 340, 48 So. 101.)</p> <p>If the fund on which the lien is claimed is paid into court, the court will not permit it to be withdrawn without first paying the attorney out of it. (McKelvey’s Appeal, 108 Pa. St. 615; Ex parte Plitt, 2 "Wall. Jr. 453, 19 Fed. Cas. No. 11,228, p. 883.)</p> <p>In Dahlstrom v. Featherstone, 18 Ida. 179, 110 Pac. 243, this court recognized “the justness of the rule that an attorney may take such steps against his client as to have an equitable lien decreed by the court against the judgment to the extent of the balance due him for his services in procuring the judgment. ”</p> <p>If this is not a claim against the state, then it is no claim at all. (Thomas etc. v. State, 16 Ida. 81, TOÜ Pac. 761.)</p> <p>See. 10, art. 5, and see. 18, art. 4, of Ida. Const., must be construed together, and, as was said by this court in the case of Bragaw v. Gooding, 14 Ida. 288, 293, 94 Pae. 438: ‘ ‘ The board of examiners were created by and derive their jurisdiction and authority from the same source as this court, and while acting within the scope of such authority, the courts have no power to direct or control their actions.”</p> <p>Under these two sections of the constitution as construed by this court, there is only one way by which a claim against the state can be prosecuted. It must first be presented to the board of examiners, and if by them disallowed, come before this court, secure a recommendatory judgment and with such judgment go before the legislature.</p> <p>It is a general rule that statutes do not apply to the sovereign power without express words of reference. {Thomas v. State, supra; Hendrick v. Posey, 104 Ky. 8, 45 S. W. 525, 46 S. W. 702; Wood v. State, 125 Ind. 219, 25 N. E. 190; United States v. Knight, 39 U. S. (14 Pet.) 301, 307,10 L. ed. 465, 469; Compton v. State, 38 Ark. 601.)</p> <p>„ Appellant has his remedy clearly defined by the constitution. {Bathhun v. State, 15 Ida. 273, 97 Pae. 335.)</p> <p>The equitable lien doctrine has no application in the face of the clear constitutional provision declaring how a claim against the state must be enforced. The district court has no jurisdiction to entertain it. {Armstrong v. Mayer, 60 Neb. 423, 83 N. "W. 401; Messner v: Giddings, 65 Tex. 301; Hollister v. State, 9 Ida. 8, 13, 71 Pae. 541.)</p> <p>“The state board of examiners is given power under section 18, article 4, of the constitution, to examine all claims against the state except salaries or compensations of officers fixed by law; and such power cannot be exercised by a district court.” {Thomas v. State, supra.)</p> <p>The sovereign, as well as an individual, can obtain the services of an attorney under such circumstances as will give to that attorney the right to assert a lien for his disbursements and fees against funds in the hands of the court obtained upon a judgment in favor of his client. {The Siren, 7 Wall. (74 U. S.) 152, 19 L. ed. 129; In re Paschal, 10 Wall. (77 U. S.) 483, 19 L. ed. 992; State v. Ampt, 6 Ohio Dee. 699, 7 Am. Law. Bee. 469; Board of C'ommrs. v. Clapp, .83 Minn. 512, 86 N. W. 775; Union Pacific B. Co. v. United States, 2 Wyo. 170; United States v. Boyd, 79 Fed. 858; Commonwealth, v. Herr, 1 Pears. (Pa.) 328.)</p> <p>Where it is necessary to incur expenses to recover, preserve or protect a trust fund, the fund itself is directly chargeable with those expenses. (Trustees of Impr. Fund v. Greenough, 105 U. S. 527, 26 L. ed. 1157; Colley v. Wolcott, 187 Fed. 5.95, 109 C. C. A. 425; State ex rel. Marshall v. Butler County, 164 Mo. 214, 64 S. W. 176; In re Creighton’s Estate, 93 Neb. 90, 139 N. W. 827.)</p>

’APPEAL from the District Court of the Second Judicial District for Idaho County. Hon. Edgar C. Steele, Judge.

Hon. Edgar C. Steele, Judge. Action to recover an attorney’s fee. Judgment for plaintiff. Upon the issue of the reasonableness of an attorney’s fee, preponderance of expert testimony should govern as in other cases. (Blizzard v. Applegate, 61 Ind. 368.) There is a wide divergence in the testimony of the respective experts called by plaintiff and defendants as to the value of the alleged services.

'Application for writ of habeas corpus. “Any judge sitting in habeas corpus court has a right on the application of a parent to inquire into the propriety of the benevolent institution being required to return the child to the parent, on the grounds that the conditions have changed since judgment of commitment was made.” (Kennedy v. Mara, 127 Ga. 68, 9 Ann.

<p>APPEAL from tbe District Court of the Fourth Judicial District for Lincoln County. Hon. James R. Bothwell, Judge.</p> <p>H. D. Curtis was convicted of the crime of presenting for payment to the county treasurer of Blaine county certain false and fraudulent claims, and appeals.</p> <p>The state must show prima facie case of conspiracy independent of declarations of co-conspirator. Therefore, the acts and declarations of co-conspirator cannot be considered for the purpose of proving the conspiracy itself. (8 Cyc. 683; State v. Walker, 124 Iowa, 414,100 N. W. 354; State v. Miller, 35 Kan. 328, 10 Pae. 865; State v. Grofford, 121 Iowa, 395, 96 N. W. 889; Smith v. State, 46 Tex. Cr. 267,108 Am. St. 991, 81 S. W. 936.)</p> <p>An action based upon presenting an affidavit which is genuine in execution but false in statements is separate and distinct, and requires different allegations than an action which is based upon presenting a forged or counterfeited affidavit. (United States v. Staats, 49 U. S. (8 How.) 12 L. ed. 979.)</p> <p>There is a great distinction between an affidavit false in its making and one false in its statements; the indictment should clearly set forth wherein the falsity is claimed to exist so that the defendant can properly prepare for trial. (United States v. Corbin, 11 Fed. 238.)</p> <p>The prosecution must prove both the false affidavit and the false claim as alleged. (United States v. Miskell, 15 Fed. 369.)</p> <p>The case of United States v. Goggin, 3 Fed. 492, 9 Biss. 416, is also instructive as to the presentation of a false claim upon a genuine certificate and the presentation of a false claim upon a false or fraudulent certificate.</p> <p>If the indictment charged a genuine writing, the prosecution could not then prove a false writing, and likewise if it charged a false writing, it could not prove a genuine writing as the basis of the false claim. (Dimmick v. United States, 116 Fed. 825, 54 C. C. A. 329.)</p> <p>Where the defendant gives a reasonable explanation of his possession and he is corroborated by other witnesses, who are not impeached in any way, and said explanation of possession is not contradicted, evidence is insufficient to sustain the verdict and judgment of conviction. (State v. Seymour, 7 Ida. 257, 61 Pac. 1033; State v. Marquardsen, 7 Ida. 352, 62 Pae. 1034.)</p> <p>“If the explanatory evidence creates a reasonable doubt in the minds of the jurors that he stole the property, he should be acquitted. It is not absolutely requisite that the accused should prove that his possession was honest. It is sufficient to acquit him if he gives a natural, reasonable and probable explanation of how he acquired possession which the prosecution does not show to be false.” (Underhill on Crim. Ev., sec. 301.)</p> <p>The order of proof in the matter of establishing the conspiracy is within the discretion of the court. (6 Am. Dig., Dec. Ed., 569; People v. Bunkers, 2 Cal. App. 197, 84 Pac. 364, 370; State v. McIntosh, 109 Iowa, 209, 80 N. W. 349.)</p> <p>The felony with which the defendant was charged was the presentment of a false claim, and the receipt of money thereon is in no way essential to the accomplishment of the criminal act. (State v. Adams, .10 Ida. 591, 79 Pae. 398.)</p> <p>“A genuine instrument containing a false statement of facts, used in support of a claim, the party knowing it to be false, and using it with intent to defraud, presents a case not distinguishable in principle, or in turpitude, or in its mischievous effects, from one in which every part of the instrument is fabricated.” (United States v. Stoats, 49 U. S. (8 How.) 12 L. ed. 979.)</p> <p>While it is true that the information in this ease erroneously designates the offense, examination of the information indicates that the charge is correctly stated. (State v. Altwatter, 29 Ida. 107, 157 Pae. 256.)</p> <p>A variance within the meaning of the term as applied to criminal law refers to a disagreement between the allegations in the information and the proof, with reference to some matter which is legally essential to the charge. (State v. Crean, 43 Mont. 47, Ann. Cas. 1912C, 424, 114 Pac. 603.)</p>

Hon. James • R. Bothwell, Judge. Action to subject the property of a foreign corporation to the payment of a judgment, and to set aside conveyances to such corporation for noncomplianee with sec. 10 of art. 11 of the constitution and the provisions of sec. 2792, Rev. Codes, as amended by chap. 124, p. 270, 1915 Sess. Laws. Demurrer to complaint sustained.

APPEAL f-rom the District Court of the Second Judicial District, in and for the County of Idaho. Hon. Edgar C. Steele, Judge.

Hon. Edgar C. Steele, Judge. Action for an accounting and for other relief. Judgment for plaintiff.

Hon. Edgar C. Steele, Judge. Action to discharge attachment and quiet title in real estate. Judgment for plaintiff. The giving of a new promissory note in lieu of an existing one is payment of the old note when such is the intention of the parties. The cancelation of the old note is a good consideration for the new one.

Original application by Solon B. Clark and W. W. Adam-son for writ of prohibition to the District Court of the Sixth Judicial District in and for Bingham County, and Frederick J. Cowen, as Judge thereof. The right of appeal is purely statutory, and the recora on appeal must affirmatively show a strict compliance with the statute or the court has no jurisdiction to try the case or do anything except to dismiss the appeal on motion.

<p>Water Eights — Placer Mining — Injunction Pendente Lite.</p> <p>1. The purpose of an injunction pendente lite, in eases of this kind, is to preserve the property, or rights, in controversy and to prevent irreparable injury thereto, and the rule adopted by courts in granting such restraining orders is more liberal than is that applied at a trial upon the merits.</p> <p>[As to what is irreparable injury within the meaning of the law of injunction, see note in 1 Am. St. 374.]</p>

Hon. Carl A. Davis, Judge. Action to determine the legality of School District No. 63, created in part out of School District No. 47.

Hon. Charles P. McCarthy, Judge. Motion to dismiss on the ground that appeal was prematurely taken. A judgment is appealable as soon as rendered by the court in such form as to be enforceable, and it does not cease to be appealable until ninety days after it has been entered upon the judgment-book.

<p>Injunction — Temporary ^Restraining Order — Contempt op Court.</p> <p>1. A restraining order issued under authority of sec. 4292, Eev. Codes, is an injunction as defined by sec. 4287, and is void unless an undertaking be exacted of, and given by, the plaintiff as required by sec. 4291.</p> <p>2. Disobedience of a void order is not punishable as contempt of court.</p> <p>[As to right to punish violation of injunction after dissolution thereof, Bee note in Ann. Cas. 1915D, 1010.]</p>

<p>Motion to Dismiss Appeal — Extension op Time to File Transcript —Jurisdiction—Court Rules and Statutes — Laches op Attorney.</p> <p>1. Jurisdiction of an appeal is acquired by the supreme court upon the filing of notice of appeal and undertaking within the time prescribed by law. Failure to file and serve the transcript within the time fixed by the rules of this court is not fatal to the jurisdiction.</p> <p>2. An affidavit in support of a motion for extension of time to file transcript on appeal, whieh states that appellant’s counsel made frequent inquiries of the clerk of the district court as to whether the transcript was ready, and urged him to hasten the preparation thereof, is not sufficient when it affirmatively appears from such affidavit that appellant’s time had already expired before the application for extension was made.</p> <p>3. An order made by a justice of the supreme court for an extension of time in which to file transcript on appeal does not operate to make such extension effective, when the time for filing the transcript had already expired at the time the application was made, where from the showing it affirmatively appears that the appellant failed to use proper diligence in the prosecution of his appeal.</p> <p>4. It is the duty of the clerk of the district court to prepare and file the transcript of record on appeal within the time fixed by the rules of the supreme eourt, but it is also the duty of appellant’s attorney to use due diligence and all reasonable means within his power to the end that the transcript may be filed within the time allowed under the rules or to procure an extension upon a proper showing before the expiration of such time.</p> <p>5. Held, that it appears from the record due diligence has not been shown in the prosecution of this appeal, and the same must accordingly be dismissed.</p>

<p>ON REHEARING.</p> <p>APPEAL from the Sixth Judicial District for Lemhi County. Hon. J. M. Stevens, Judge.</p> <p>Appellant convicted of embezzlement of bank credit.</p>