Volume 3 — Arizona Reports

<p>APPEAL from a judgment of the District Court of the Third Judicial District in and for the County of Apache. James H. Wright, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Cochise. D. H. Pinney, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Mines and Mining—Location—Citizenship—Presumption prom Besidence.—It will be presumed that a resident of the United States who has made a mining location was a citizen.</p> <p>2. Same—Location Notice—Becokded—Evidence—Prima Eacie Title. —Where it appears that a locator, at or near the time of location, recorded his location notice, reciting all the facts essential to a valid location, such evidence will make out a grima facie title.</p> <p>3. Same—Mining Claims—Possessory Actions—Evidence.—The rule in ejectment that the plaintiff moist recover on the strength of his own title and not on the weakness of the defendant’s, does not apply to possessory actions for mining claims. Each must prove his claim to the premises in dispute, and the better right prevails.</p> <p>4. Witnesses—Credibility.—The testimony of a witness who 'disputes his own record, made long before and at the time the acts reeited therein were reported as done, to discredit a title based thereon, should be disregarded as unworthy of belief.</p>

<p>1. Principad and Agent—Undisclosed Dual Agenct—ContractSpecific Performance.—An agent cannot enforce specific performance of a contract for Ms own benefit respecting the subject-matter of Ms agency where he has secretly acted for both parties.</p> <p>Barnes, J., dissenting.</p>

<p>1. Public Lands—Mexican Grants—Jurisdiction—Courts—Survey- or-General—Act of July 22, 1854—Act of July 15, 1870, 16 ¶. S. Stats, at Large, 291, Cited and Construed.—Congress lias conferred no jurisdiction on the courts of the territory to determine the validity of Spanish or Mexican grant. The statutes, supra, invest the surveyor-geneml with power to settle, primarily, these questions.</p> <p>2. Action to Quiet Title—Pleading—Must Show Equity—Distinction between Law and Equity Preserved—Ely v. Bailroad Co., 2 Ariz. 420, 19 Pac. 6, Approved,—A complaint in an action to quiet title must aver facts to bring the complainant under some bead of equitable relief. The distinction between law and equity in this class of eases is still preserved.</p>

<p>APPEAL from a judgment of the District Court of the Second Judicial District in and for the County of Maricopa. Wüliam W. Porter, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the District Court of the Second Judicial District in and for the County of Maricopa. William W. Porter, Judge.</p>

<p>APPEAL from a judgment of tbe District Court of the First Judicial District in and for the County of Pima. William H. Barnes, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Pima. William H. Barnes, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Pima William H. Barnes, Judge.</p>

<p>1. Criminal Law—Continuances—Affidavits—Uncertainty—Grant- ' jng Discretionary—Appeal and Error—Reviewed Only When Refusal Unjust.—When affidavits for continuance fail to state that the party expects to procure the testimony of the witnesses at any time, with such uncertainty, a criminal case ought not to be continued. A continuance in a criminal action rests in the sound discretion of the court and will not be reversed except in eases manifestly arbitrary and unjust.</p> <p>2. Trial—Exclusion of Witnesses.—The exclusion of witnesses is solely a matter of discretion.</p> <p>3. Criminal Law—Evidence—Previous Conversation between Prosecuting Witness and Defendant.—A defendant will not be permitted to testify as to a conversation between the prosecuting witness and himself three hours before the alleged assault.</p> <p>4. Same—Jury—Impeaching Verdict.—A jury cannot impeach their own verdict by a showing that in their deliberations they arrived at their verdict by some of them being persuaded that the punishment would be light.</p> <p>5. Same—Same—Custody—Sworn Oeeccer.—There is do provision of the criminal statutes requiring an officer in charge of the jury to be sworn.</p> <p>6. Same—Appeal and Error—Instructions to Jury—Failure to Instruct Jury—Request Must be Made or Error Waived.—Where the court did not charge the jury that they could render a verdict for an assault with a deadly weapon, or any less offense, the defendant, not having asked for such instruction, cannot take advantage on appeal of the failure so to instruct, though a refusal on request would have been error.</p>

<p>APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Pima. William H. Barnes, Jndge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Taxation—Delinquent Taxes—Jurisdiction—Special Term—Bev. Stats. Abiz. 1887, Pars. 2685, 628, Cited and Construed.—The Bevenue Act (par. 2685, supra), provides that the tax-collector must publish, with the delinquent list, a notice that he will apply to the district court “at the next ensuing term thereof” for judgment and order of sale of the property described, and also give notice “that on the Monday next succeeding the day fixed by law for the commencement of such term” such property will be sold. Regular terms of the district court commence on the first Monday in July of each year. Paragraph 628, supra, provides that special terms of the district court may be held “whenever in the judgment of the presiding judge of said court public justice demands it,” and that notice be given by the clerk upon the order of the judge by publication. The proceeding contemplated by the revenue law, being special, should be strictly construed and every material provision of the statute complied with. The term “fixed by law” must be the regular term of court as fixed by statute. Special terms cannot embrace special proceedings requiring fixedness of time.</p> <p>2. Courts—Special Terms—Record.—The record must affirmatively show the authority by which a special term is held.</p> <p>Wright, C. J., dissents.</p> <p>On rehearing.</p> <p>1. Rehearing—Purpose of.—The purpose of a rehearing is not to open the whole case, but to afford an opportunity for the court to correct any misapprehension of the record, or any oversight or omission inadvertently made. Arizona Prince Copper Co. v. Copper Queen Copper Co., 2 Ariz. 169, 11 Pao. 896, cited.</p> <p>2. Courts—Regularity of Proceedings—Presumptions—Want of Record—Special Term—Convening Order.—While what is recited in the record of a court of general jurisdiction as having been done is presumed to be done, this presumption will not put into the record what is not there. The record of a special term must show that it met according to law and upon due notice.</p> <p>8. Taxation—Collection by Suit—Special Proceeding in Rem— Jurisdiction of Court Special.—The collection of taxes is a special proceeding in rem. When this special power' is conferred on courts they are treated, in the exercise of it, as courts of special jurisdiction.</p>

<p>1. Appeal and Error—Conflicting Evidence—Verdict op Jury.— Where there is any conflicting evidence, although it may greatly preponderate against the verdict of a jury, appellate courts will not interfere.</p> <p>2. Same—Record—Bill op Exceptions—Reporter’s Notes—Errors op Layi Reviewed.—In absence of bill of exceptions or statement of facts, this court will not review the evidence. What purports to be the reporter’s notes, without even his affidavit annexed, is insufficient, and was not intended as a substitute for a bill of exceptions or a statement of faets. Manifest errors of law should be corrected, even without a bill or statement.</p> <p>3. Criminal Law—Province op Jury—Judges op Pacts.—It is the exclusive province of the jury, aided by the court only as to questions of law, to say what fact or faets have been proven or not.</p> <p>4. Same—Instructions—Assumption op Material Pacts as Proven. —Assumption of material faets as proven in an instruction is error.</p> <p>5. Same—Same—Degree op Proop—Reasonable Doubt.—An instruction in a murder case to “weigh the testimony of all the witnesses in the case, and from that examination of all the testimony, and all that has been given in the ease, and render such a verdict as you believe is fair, just, and right,” is error, though a proper instruction as to the degree of proof required as that which satisfies beyond a reasonable doubt was given in another part of the charge.</p>

<p>1. Malicious Prosecution—Essential Elements—What Constitutes Probable Cause—Question of Law—Malice—Possession of Goods Becently Stolen.—In an action for malicious prosecution the essential elements are a criminal charge by defendant against plaintiff, made maliciously and without probable cause. Where the facts are admitted, probable cause is a question of law to be determined by the court; if disputed, the court by its charge will say what facts found by the jury will constitute it. Malice is for 'the jury. The burden is on the plaintiff to prove, by a preponderance of the evidence, both malice and want of probable cause. Where coal recently stolen from defendant was found at plaintiff’s house, the possession of sueh stolen goods amounts to probable cause and justifies a criminal charge. Though the possessor may be innocent, the prosecutor is not bound to seek for an explanation.</p> <p>Weight, C. J., dissenting.</p>

<p>'l. Public Lands—Mexican Grants—Evidence—Report on Surveyor-General—Act July 15, 1870 (16 Stats, at Large, 304), and Act July 22, 1854, Cited.—The report of the surveyor-general upon a Mexican grant is not competent evidence for any purpose.</p> <p>2. Same—Same—Withdrawal—Act on 1870.—Act of 1870, supra, does not confer power upon the surveyor-general or the secretary of the interior to reserve from sale lands claimed to be within a valid Mexican grant.</p> <p>3. Mexican Grants—Kinds—Strictly Construed.—Mexican grants are of three hinds: (1) specific boundaries, (2) by quantity, or (3) grants of a certain place by name, with or without boundaries. This grant is of the second class. The expediente partakes largely of the nature of a judicial sale, and should be strictly construed. The rule that where there is a doubt as to what is conveyed, and the boundary is certain, but disagrees with the quantity mentioned, the latter is disregarded, and cannot be invoked where its application would defeat the evident intent.</p> <p>4. Public Lands—Fencing—Color of Title—No Adverse Possession as against the United States—Grant—Construction—Color by Deed Limited.—Color Defined—“Claim or Color” Means Color of Title—Validity to be Determined by Court—Evidence Reviewed and Fence Held Unlawful Inclosure under Act of Feb. 25, 1885, Ch. 149, Secs. 1, 2, 23 U. S. Stats, at Large, 321.— Defendant claims to own the land fenced under grant. He had no exclusive occupation prior to the building of the fence, nor ean he hold by trespass, and acquire adverse title as against the United States and defend the right to fence by claim or color of title so acquired. His claim or color of title is based on his paper title, which is the expediente. No one can claim color of title by deed, when entering upon land, beyond what his deed purports to convey. Color of title is where there is an apparent colorable title under which an entry or claim has been made in good faith. “Claim and color” mean the same as color of title. Where the defendant claims the right to fence upon a claim or color of title derived from paper title, the court has the power to ascertain the extent thereof, but not the'validity of the grant, and when it further appears that the lands fenced are far from the lands described therein and include no lands ever occupied by, or in the possession of, the defendant under the deed, such cannot be a claim or color of title and the fence so erected is an unlawful inelosure of the public lands.</p>

<p>APPEAL from a judgment of the District Court of the Third Judicial District in and for the County of Apache. James H. Wright, Judge.</p> <p>The facts are stated in the opinion.</p>

APPEALS from tlie judgments of the District Courts of the Third Judicial District in and for the Counties of Mojave and Yavapai. James H. Wright, Judge. The facts are stated in the opinion.

<p>1. Public Lands—Town-Sites—Act op Congress, March 2, 1867, Cited—Entry in Trust-Deeds to Actual Occupants—Presumption—Occupant Defined.—Under the act of Congress, supra, the probate judge of any county in Arizona has the power to enter land occupied as a town-site, and hold it in trust to be deeded to the actual occupants. In the absence of anything to the contrary, it will be presumed that when he has made a deed it was to the proper person, and one not interested in the land cannot question his acts. An “occupant,” within the meaning of the act, is one who is a settler or resident of the town, and in the actual 6 ona fide possession of the lot at the time the entry was made.</p> <p>2. Title—Purchase of Outstanding Title—Estoppel.—Purchase, by one in possession and claiming ownership, of another’s claim of title, does not admit title in the grantor, and such purchaser is not estopped thereby to deny the validity of the claim thus purchased. Compare Anderson v. Thompson et al., ante, p. 62, 20 Pae. 803.</p>

<p>1. Presumptions—North Defined.—In. the absence of overwhelming evidence to the contrary, “north” will be construed as meaning true north, as distinguished from magnetic north.</p> <p>2. Appeal and Error—Conflict in Evidence.—Where there is a conflict in the evidence, the judgment of the trial court will not be reviewed.</p>

<p>1. Mandamus—Against Governor. —Mandamus is a civil remedy for the protection of purely civil rights, and will not lie, at the instance of officials of a branch of the executive department, to compel the governor to perform a public duty.</p>

<p>1. Costs—Actions at Law—Losing Parties Pay Costs.—In actions at law it is a general rule that losing parties are to pay the costs.</p> <p>2. Customs—Seizure of Goods—Proceedings at Law—When Claimant Liable fob Costs—18 U. S. Stats, at Lakge, 188, 189, Sec. 16 Cited.—In eases of seizure of goods for violation of the customs laws, the proceeding is at common law. Only in cases of a payment or forfeiture is the claimant or property seized liable for cost of same. Statute, supra, cited.</p>

<p>APPEAL from the District Court of the Second Judicial District in and for the County of Maricopa. William W. Porter, Judge.</p>

. APPEAL from a judgment of the District Court of the Second Judicial District in and for the County of Pinal. IWiUiam H. Barnes, Judge. The facts are stated in the opinion.

<p>1. Legislatures—Length of Sessions—Rev. Stats. TJ. S. 1878, Sec. 1852, as Amended December 23, 1880, by 1 Supp. R. S. TJ. S., p. 313, Being Ch. 7, 46th Congress, 3d Session, Par. 16, Organic Act, Rev. Stats. Ariz. 1901, Construed.—Statutes, supra, providing that ‘‘the sessions of the legislative assemblies of the several territories of the United States shall be limited to sixty days’ duration,” is mandatory and means a session of sixty legislative or working days, exclusive of Sundays, public holidays, and days of intermediate adjournment, not sixty consecutive days.</p> <p>2. Organic Act—Relation to Government—Construction.—The organic law of the territory bears the same relation to the government of the territory as the constitution of a state sustains to the people of the state. The same rules of eonstruetiou apply to it as to a state constitution.</p> <p>3. Statutes—Construction—Legislative.—The contemporaneous construction of a constitutional provision piit upon it by the authority for whose guidance it was intended, particularly if acquiesced in for a long term of years, should be followed by the courts.</p> <p>4. Same—Constitutionality Presumed.—A legislative act will be presumed constitutional till the contrary clearly appears.</p> <p>Wright, C. J., dissents.</p>

<p>APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Pima. William H. Barnes, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the District Court of the Second Judicial District in and for the County of Maricopa. William W. Porter, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Appeal and Error—Failure to File Assignment of Errors—Effect—Bev. Stats. Ariz. 1887, Par. 940, Cited.—The effect of a failure to file any assignment of errors is to waive all errors not apparent upon the record, and which do not go to the foundation of the action.</p> <p>2. Same—Same—-Appellate Court May Affirm or Dismiss.—In the absence of an assignment the court may either affirm the judgment of the court below or dismiss the appeal.</p> <p>3. Same—Same—Practice—Objection at Hearing Treated as Motion to Dismiss.—The objection, having been made by the appellee at the hearing of the ease, this may be taken as a motion to dismiss the appeal.</p> <p>4. Same—Record—Omissions—Statement of Facts—Bill of Exceptions—Time of Presentation.—Where there are numerous omissions to comply with the statutory provisions regulating appeals, no statement of facts, no bill of exceptions, preserved to the ruling upon the motion for new trial, and nothing in the record to show whether the bill of exceptions prepared, which was not settled till ninety days after the trial, was presented within ten days after the trial or filed within the term, the appeal will be dismissed.</p>

<p>APPEAL from a judgment of the District Court of the Third Judicial District in and for the County of Gila. William W. Porter, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the District Court of the First Judicial District in and' for the County of Pima. W. H. Barnes, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Appeal and Error—Jurisdiction—Bond—Rev. Stats. 'Ariz. 1887, Par. 849, Cited—Filing—End op Term—Compare Lose v. Doran, post, p. 284, 73 Pag. 443—Must Appear of Record—Bond—Essentials—Rev. Stats. Ariz. 1887, Par. 863, Cited—Order of Court Eixing Amount Void.—Paragraph 849, supra, requires that an appeal bond, or affidavit, be filed within twenty days after the expiration of the term at which judgment was rendered. The transcript should show affirmatively the date of adjournment of the term. Compare Lose v. Doran, supra. Presumptions cannot supply omissions therein of facts essential to the jurisdiction. The bond must describe the judgment appealed from, name all the parties thereto, and be payable to appellee in double the amount of the judgment and costs—paragraph 863, supra. An order of court fixing the amount of such bond is void.</p> <p>2. Same—Assignment of Errors—Borm—Rev. Stats. Ariz. 1887, Par. 940, Cited—Necessity for—In Absence of May Disregard Errors and Affirm or Dismiss.—Paragraph 940, Revised Statutes, requires the filing of assignment of errors. It should he a separate paper, signed by the party or his attorney, and filed with the clerk below before the appellant withdraws the transcript, -and a copy should be attached thereto. This court is not bound to notice errors not properly assigned, and ordinarily may affirm the judgment or dismiss the appeal.</p> <p>3. Same—Motion for New Trial—Practice to Obtain—Review of Ruling upon—Rev. Stats. Ariz. 1887, Pars. 833, 593, Clause 2, 834, 842—Dalton v. Rentaría, 2 Ariz. 275, 15 Pac. Rep. 37, Cited. —The only method by which to obtain a new trial is by motion therefor to the trial court, and, upon an adverse ruling, by appeal from that ruling. This court cannot consider any error which would be cause for a new trial unless a motion therefor upon that ground has been made to the court below, and such motion overruled, the ruling excepted to, and the motion embodied in a bill of exceptions, and the ruling properly assigned as error.</p> <p>4. Same—Same—Ruling—Exceptions—How Brought into Record— Par. 842, Rev. Stats. Ariz. 1887, Cited—Minute Entries—Bill of Exceptions—When Unnecessary—Par. 827 Cited.—Paragraph 842, Revised Statutes of Arizona, 1887, requires the motion for new trial, ruling, and exceptions to be brought into the record by a bill of exceptions. The minute entries by the clerk reciting the motion, ruling, and exception cannot serve this purpose. Paragraph 827 provides that where the ruling or other action of the court appears otherwise of record, a bill of exceptions shall not be necessary.</p> <p>•5. Same—Record—What Constitutes—Rev. Stats. Ariz. 1887, Pars. 810, 832, 844, 845, 849, 874, 875, Cited.—The statutes, supra, prescribe what shall constitute the record.</p> <p>•6. Same—Bill of Exceptions—Purpose of—Compliance with Statute.—The purpose of a bill of exceptions is to incorporate into the record as facts the action of the trial court complained of, and the objection thereto. The requirements of the statute that they shall be prepared within a specified time, presented to the trial judge, who shall after submitting them to the opposite party, if correct, sign them, cannot be dispensed with.</p> <p>7. Same—Statement of Pacts—Rev. Stats. Ariz. 1887, Pars. 843, 845, Cited—Time for Piling.—Where the record fails to show that a paper purporting to be a statement of facts was filed in term time or within thirty days thereafter it must be disregarded.</p> <p>8. Same—Same—Contents.—The statement of facts must affirmatively show that it contains all the facts admitted, those agreed to have been proved, and the evidence of those disputed.</p> <p>9. Same—Errors—How Made Part of Record.—Exceptions to rulings upon admission or rejection of evidence may be saved by being included in statement of facts, provided rules governing bills of exceptions have been observed. Rulings upon motions and the like and exceptions thereto must be embodied in bills of exceptions. Every matter not otherwise made by statute a matter of record must be made so by a statement of facts or bill of exceptions to present it for review.</p> <p>10. Courts—Supreme Court—No Power to Make Rules—Practice in to be Determined bt Judicial Construction.—The legislature has conferred no power upon this court to make rules of practice. These must be supplied by judicial construction.</p>

<p>APPEAL from a judgment of the District Court of the Second Judicial District in and for the County of Maricopa. William W. Porter, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the District Court of the Second Judicial District in and for the County of Maricopa. Joseph H. Kihbey, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the District Court of the Second Judicial District in and for the County of Maricopa. William W. Porter, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Pima. R. E. Sloan, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Appeal and Error—Assignment of Errors—Failure to Assign Error Waives Errors not Fundamental-—Practice—Motion to Dismiss Appeal.—A motion to dismiss an appeal upon the ground that there is no assignment of error in the record must prevail unless the record shows error on its face.</p> <p>2. Officers—Official Bond—Withdrawal of Surety—Releases All —Daws 1883, pp. 158, 159, No. 63, Construed—Must Give New Bond.—When a surety upou the ,'ioint and several bond of a county officer gives notice of his desire to be released from all further liability thereon, in conformity to statute, supra, such withdrawal operates as a release of all the sureties. The statute requires in such an event the officer to give, not other or additional surety, but a new bond.</p> <p>3. Same—Same—Statute Part of Contract—Repeal—Rev. Stats. Ariz. 1887, Par. 3101, Cited—-Impairing Obligation of Contract. —A statute in force at the time a bond is given becomes a part of the contract and any subsequent act of the legislature cannot vary the contract without the consent of the sureties.</p>

<p>1. Appeal and Error—Review—Conilicting Evidence.—Where there is a substantial conflict in the evidence this court will not disregard the conclusion of the trial court.</p> <p>2. Irrigation—Wrongful Diversion—Damages—Defenses—Tenancy or License -Terminated by Adverse Holding.—In an action for damages for the wrongful diversion of water from plaintiff’s land by defendant it is no defense for defendant to claim as tenant or licensee of plaintiff where it appears that he had terminated his relations with plaintiff by “jumping” the land on which he was as tenant or by license and holding adversely to plaintiff.</p> <p>3. Appeal and Error—Bill oi; Exceptions—Motion for New Trial— Bev. Stats. Ariz. 1887, Par. 842, Cited.—Failure to save the motion for a new trial by a bill of exceptions is fatal to the appeal.</p>

<p>1. Appeal and Error—Conflict in Evidence.—Where there is a conflict in the evidence the appellate court will defer to the conclusion reached by the court below.</p> <p>2. Same—Transcript of the Evidence—Bill of Exceptions—Statement of Facts—Bev. Stats. Ariz. 1887, Bars. 1739, 1740, 1744, Penal Code, Cited.—A transcript of the reporter’s shorthand notes filed and approved by tbe judge fifty-five days after the motion for. new trial was overruled cannot be taken either as a bill of exceptions, it not having been presented to the judge for his allowance and signature within ten days af.ter the conclusion of the trial, par. 1739, supra, no order for an extension of time appearing of record, par. 1744, supra, and it not having been presented to the district attorney as provided by par. 1740, supra; or as a statement of facts, the provisions of the law for making up a statement of facts being similar.</p>

<p>APPEAL from a judgment of the District Court of the Second Judicial District in and for the County of Maricopa.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the District Court of the Second Judicial District in and for the County of Maricopa. William W. Porter, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Appeal and Error—Motion por New Trial—Necessity por Review op Evidence—Putnam v. Putnam, ante, p. 182, 24 Pac. 320, Followed.-—Error in admission of evidence is good ground for a new trial and it not appearing from the record that any motion for new trial was made in the court below that alleged error is not before us for consideration. Putnam v. Putnam, supra, followed.</p> <p>2. Courts—United States Supreme Court—Decisions Binding on Territorial Courts—Construction op Local Statutes.—The territorial courts are completely subordinate to the United States Supreme Court. It is the court of final resort, and its decisions are binding and conclusive upon this court in the construction of our local statutes as well as in other cases.</p> <p>3. Injunctions—Bond—Damages—Counsel Fees—Comp. Laws Ariz. 1877, Secs. 2544-2555, Cited and Construed.—Counsel fees are not recoverable upon an injunction bond conditioned, as provided. by statutes, supra, that the plaintiff will pay'^ucFvdamages, not exceeding an amount to be specified, as such party may sustain by reason of the injunction, if the court finally decides that the plaintiff was not entitled to the injunction.</p> <p>4. Taxes—Interest.—Taxes do not bear interest unless imposed by statute.</p> <p>5. Pleading—Evidence—Relevancy—Variance.—In an action upon an injunction bond evidence that the damages was interest on an indebtedness incurred by reason of deprivation of taxes is not permissible under a pleading alleging damages as interest on taxes enjoined.</p>

<p>1. Actions—Procedure—No Distinction Between “Equity” and “Law”—Civil Suits—Bev. Stats. Ariz. 1887, Pars. 649, 668, 734, Cited—Bight to Trial by Jury—Verdict—Not Advisory.—There is no distinction in procedure between “equity” and “law” under the statutes of this territory. All proceedings in courts of justice whereby a civil remedy for a civil wrong is sought, except in some special proceedings, are denominated civil suits. Statutes, supra, cited. Under our statutes parties to a civil suit, unless otherwise provided, are entitled to a trial by jury, and their verdict is not in any sense advisory—the judgment of the court must follow it, or the judge must set it aside as erroneous and order a new trial.</p> <p>2. Mortgages—Action to Declare Deed Mortgage—-Payment or Tender not Bequired.—In an action to declare a deed absolute on its face a mortgage, prior payment or tender of the amount of the indebtedness is not required.</p> <p>3. Same — Same — Evidence — Unsatisfied Judgment.— A judgment against plaintiff, assigned to defendant prior to the execution of a deed from plaintiff to defendant, and still unsatisfied, is admissible, in an action to declare the deed a mortgage, for the purpose of showing the relation of the parties.</p>

<p>APPEAL from the District Court of the First Judicial District in and for the County of Pima. William H. Barnes, Judge.</p>

<p>1. Mortgages—Foreclosure—Exemption op Homestead—Defense— Issue op Fact—Judgment on Demurrer—Comp. Laws, Ariz. 1877, Ch. 37, Secs. 1 and 2, Cited and Construed.—The homestead exemption provided by statute, supra, is a good defense to a foreclosure suit to enforce a mortgage, upon a homestead, executed by the husband alone. The plea of the statute raises an issue of fast to be determined by a trial, and judgment for plaintiff upon demurrer to the answer is error.</p> <p>2. Same—Same—Reply by Way op Estoppel—Issue op Fact.—A reply to an answer pleading an exemption, setting up facts constituting an estoppel against defendants’ plea, unless admitted, raises issues of fact, which can only be determined by trial.</p> <p>3. New Trial—Purpose op—Issues op Fact Determined at a Former Trial Cannot be Considered.—The purpose of a new trial is to permit a re-examination and determination of issues of fact, and the granting of judgment by the trial court upon the pleadings because all the facts in issue were before the court upon the former trial is error.</p>

<p>APPEAL from a judgment of the District Court of the Second Judicial District in and for the County of Maricopa. William W. Porter, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the District Court of the Second Judicial District in and for the County of Maricopa. Joseph H. Kihbey, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Negotiable Instruments—Bona Pide Holder—Partnership Note —Executed without Consent op All Partners Valid.—The holder of a promissory note, executed by the member of a trading partnership having charge of its financial affairs to secure an extension on a loan made to another of the partners for the use and benefit of the firm, is a tona fide holder for value, though as between the partners the note may have been for the accommodation of the individual partner, without consideration, and made without the consent of the remaining partner.</p> <p>2. Same—Partnership Note—Executed by One Partner—Valid-Innocent Holder.—In the hands of an innocent holder for value a promissory note made by one member of a trading partnership in the name of the firm is valid, notwithstanding it was not made in the usual course of the business of the firm, and that other partners did not give their consent and had no knowledge of its execution.</p> <p>3. Evidence—Materiality—Presumption.—Objection to a question put to a witness as to whether he did not consider the security for the individual note ample at the time the loan was made properly sustained, as it is' to be presumed he did from the fact of the loan being made, and it is not to be considered as tending to show that -the firm note was or was not given as additional security at a time months later.</p> <p>4. Same—Same—Contradicting Pact Admitted.—Evidence that Webster, the partner making the individual note, was indebted to the firm at the time the note was made, unless the holder knew he was so indebted, would not be material further than as indicating whether the loan was made for his own benefit or for that of the firm, but as it was conceded it was used for the firm it was properly-excluded.</p> <p>5. Same—Expert Testimony—Failure to Qualify—Harmless Error. —Where one of the members of the firm had testified that certain words had been substituted for others originally upou the note, it was not error for the court to refuse to permit him to testify that the erasures had been made with a chemical, he having not qualified as an expert and the firm having had the benefit of his positive testimony as to the change.</p> <p>6. New Trial—Newly Discovered Evidence—Cumulative Evidence —Diligence.—A motion for new trial based upon newly discovered evidence is properly overruled where it appears that the evidence would have been merely cumulative and would not have changed the result of the trial, and the affidavits in support thereof fail to show diligence in the procurement of the evidence.</p>

<p>APPEAL from a judgment of the District Court of the Second Judicial District in and for the County; of Pinal. William W. Porter, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Appeal and Error—Bond—Jurisdiction—Requisites—Rev. Stats. Ariz. 1887, Par. 859, Construed.—The execution and filing of a proper appeal bond is prerequisite to the appellate jurisdiction of this court. Where it fails to conform substantially to the statute, supra, names no obligee, is not in a sum. at least double the probable amount of costs in both the appellate and lower courts, and is not conditioned that the appellant shall prosecute his appeal with effect, the appeal will be dismissed.</p>

<p>APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Cochise. Richard E. Sloan, Judge.</p>

<p>APPEAL from a judgment of the District Court of the Third Judicial District in and for the County of Yavapai. James H. Wright, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the District Court of the Second Judicial District in and for the County of Maricopa. Joseph H. Kibbey, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from the District Court of the First Judicial District in and for the County of Cochise. William H. Barnes, Judge.</p>

<p>APPEAL from the District Court of the First Judicial District in and for the County of Cochise.</p>

<p>APPEAL from the District Court of the First Judicial District in and for the County of Cochise. William H. Barnes, Judge.</p>

<p>APPEAL from a judgment of tibe District Court of the Third Judicial District in and for the County of Yavapai. James H. Wright, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Fraud—False Representations as to Title—Pleading—Failure to State Cause oe Action.—Where it appears from the complaint that the fraud alleged to have been practiced upon the vendee related solely to the title of the property sold to him, and there is no allegation that the false representation made by the vendor was to any matter peculiarly within hia knowledge, and that the vendee has been guilty of gross carelessness in failing to investigate the title and right of possession, and in failing to demand a warranty deed a demurrer to the complaint is properly sustained.</p> <p>2. Same — Real Property—■ Sales — Fraudulent Representation— When Actionable.—A vendee may maintain an action for damages against his vendor, upon a sale' of real property, upon the ground of false and fraudulent representations, when they relate to some matter collateral to the title and right of possession, or relate to some matter connected with the title peculiarly within the knowledge of the vendor, and not otherwise.</p>

<p>APPEAL from a judgment of the District Court of the-Third Judicial District in and for the County of Yavapai. James H. Wright, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the District Court of the Second Judicial District in and for the County of Gila. William W. Porter, Judge.</p> <p>The facts are stated in the opinion.</p>

1. Appeal and Error—Bond—Sueetgiency—Undertaking—Jurisdiction—Bev. Stats. Ariz. 1887, Seo. 859, Ch. 20, Title 15, Cited and Construed.—If an undertaking, filed in lieu of the bond on appeal required by the statute, supra, complied with its requirements necessary to give this court jurisdiction, the form might be disregarded.

<p>APPEAL from a judgment of the District Court of the Third Judicial District in and for the County of Yavapai. James H. Wright, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Appeal and Errob^-Bill op Exceptions—What Constitutes.—A paper purporting to be an agreed statement of tbe ease, if presented to tbe trial judge, and by bim settled and signed, as required by tbe statutes, and filed within the time allowed, can be considered a bill of exceptions, under authority of Putnam v. Putnam, ante, p. 182, 24 Pae. 320.</p> <p>2. Same—Agreed Statement—Signing—Bev. Stats. Ariz. 1887, Par; 874, Cited.—Tbe agreed statement of tbe case, permitted by statute, supra, must be signed and allowed by the trial judge, or it will be stricken from the record.</p> <p>3. Same—Becord—Absence of 'Bill of Exceptions and Statement of Eacts-—Scope of Beview—Judgment-Boll.—Where there is no bill of exceptions, statement of facts or motion for new trial in the record, there is nothing to review except the judgment-roll, and, when there is no error therein, the judgment will be affirmed.</p>

<p>1. Forcible Entry and Detainer—Statutory Remedy.—The action of forcible entry and detainer does not exist independent of statute.</p> <p>2. Same — Issue Involved — Jurisdiction—Summary Remedy—Rev. Stats. 1887, Par. 2016, Cited.—Statute, supra, provides that the only issue shall be the right of actual possession. The action may be tried by the probate judge or justice of the peace, and is summary in character.</p> <p>3. Same—Appeals—When Permitted—Rev. Stats. 1887, Par. 2026, Cited and Construed.—Statute, supra, grants the right of appeal when the damages exceed one hundred dollars, but in no case from a judgment on the “right of actual possession.” The general statute of appeals does not apply except where the appeal is specially allowed.</p>

<p>APPEAL from a judgment of the District Court of the Second Judicial District in and for the County of Maricopa. Joseph H. Kihbey, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Set-Off—Power, of Court not Statutory—Discretionary—Reviewed Only for Abuse.—The power of a court to set-off mutual judgments is inherent. It rests upon its general jurisdiction over its judgments, not upon statute. The exercise of the power is discretionary and will be reviewed only for abuse.</p> <p>2. Same—Assignments—Notice—Sec. 5, Ch. 48, Compiled Laws> Ariz. 1877, Construed.—Statute, supra, expresses the equitable doctrine of assignment, that is: that it carries with it all existing equities together with any which may thereafter arise between the assignor and his debtor before notice of the assignment to the latter which might be urged by him as a proper set-off.</p> <p>3. Assignments—Recording—Absence of Statute—Not Constructive Notice.—Where there is no law providing for the recording of assignments of judgments in the county recorder’s office such record does not give constructive notice.</p> <p>4. Same—Notice—Burden of Proof.—The burden of proof is on the assignee to show that the judgment debtor had notice of the assignment before his set-off was obtained. In absence of proof that the debtor had notice of the assignment prior thereto the right of set-off still exists.</p>

<p>1. Counties—Claim for Monet against—Necessity for Presentation of Claim to Board of Supervisors—Bev. Stats. Ariz. 1887, Pars. 384, 407, 552, Cited and Construed and Remedy Provided Held Exclusive.—Presentation of a claim against a county to the board of supervisors for its action is a condition precedent to the maintenance by the claimant of an action thereon, and the remedy prescribed by statutes, supra, for the establishment and enforcement of claims for money against the county is exclusive.</p> <p>2. Same—Same—Claims Allowed in Part—Claimant Must Accept as Pull Settlement or Wholly Reject—Rev. Stats. Ariz. 1887, Pars. 414 and 383, Cited.—Paragraph 414, supra, requires the claimant, if he be dissatisfied with the allowance by the board to either forego the part rejected or submit his claim as a whole to the courts. An agreement between the board of supervisors and the claimant, providing that the acceptance by the claimant of a warrant for a part of his claim shall not operate to affect the claimant’s" right to proceed by suit to establish his whole claim, is void.</p> <p>3. Sheriff’s Fees—Executing Warrant of Arrest—Outside of Territory—Rev. Stats. Ariz. 1887, Pars. 1972 and 1277, Cited.—To execute a warrant of arrest is to actually effect the arrest by virtue of and in obedience to the mandate of the writ, and make of the person therein named the disposition required. A warrant of arrest issued out of any court in this territory cannot be executed, in a legal sense, outside of the territory. No fee can be, under the statutes, supra, charged for travel beyond the territory in the execution of a warrant of arrest.</p> <p>4. Counties—Contracts—Chairman of Board of Supervisors—District Attorney—Power to Bind County.—'Whether the board of supervisors could make a valid agreement to pay compensation for arrest made outside the territory is not determined. The chairman of the board, by virtue of his office, cannot bind the county, nor can the district attorney.</p> <p>5. Evidence—Minutes of Board of Supervisors, Best Evidence— Presumptions—Parol Evidence not Admissible—-Rev. Stats. Ariz. 1887, Pars. 394, 395, Cited.—Statutes, supra, require that the clerk of the .board of supervisors shall record all proceedings of the board, and that the board must cause such a record to be kept. It will be presumed that the board and its clerk have done their duty and, if the board made an order, that there is a record of it. Such record is the best and only evidence of such order. In the absence of a showing that there is no record of the action of the board, parol evidence is not competent to prove the action of the board.</p> <p>6. Board of Supervisors’ Power to Bind County for Mileage in Serving Subpcena Outside of the Territory—Bev. Stats. 1887, Par. 579, Clause 9, Cited.—Where it appears from the records of the proceedings of the board of supervisors that the sheriff shall be allowed mileage to subpoena witnesses without the territory in a specified case, such employment is sufficient to bind the county; the board having power, under statutes, supra, to employ means to secure the attendance of necessary witnesses who cannot be secured by the ordinary process of the court,</p> <p>Gooding, C. J., dissents.</p> <p>7. Evidence—Contents of Telegram—Parol Evidence—Foundation —Communications Between Plaintiff and Third Parties.—In an action by a sheriff against a county for fees a witness was permitted to testify to the contents of certain telegrams. This was erroneous as the proper foundation was not laid for the admission of parol evidence of their contents, and because communications between a sheriff and a third person are incompetent to establish an agreement between the sheriff and board of supervisors relative to the subject-matter of such communications.</p> <p>8. Sheriffs—Fees for Executing a Writ of Arrest—Bev. Stats. Ariz., Par. 579, Clause 3, and 1972, Construed—Expenses for Returning Prisoner.-—Under statutes, supra, for the arrest of a prisoner, and removing him to the court whence the writ issued, the only compensation to be allowed to the sheriff is two dollars for the service of the writ, and thirty cents for each mile, counting one way only, necessarily traveled in effecting such arrest and removal. In. addition the sheriff is entitled to his expenses, other than personal, incurred in returning his prisoner.</p> <p>9. Same—Pees—Serving Subpcenas Outside of County—Must be Indorsed under Provisions op Rev. Stats. Ariz. 1887, Penal Code, Par. 2054, Cited.—The sheriff is not bound to serve a writ of subpoena in a criminal ease upon a witness non-resident of the county where the trial is to be had unless it be indorsed by the trial judge as provided by statute, supra, and no fee for service of writ not so indorsed can be allowed as a legal county charge.</p> <p>10. Same—Same—Mileage in Unsuccessful Attempts to Arrest not Allowed—Rev. Stats. Ariz. 1887, Par. 1972, Cited and Construed.—Fees for mileage traveled in unsuccessful attempts to execute warrants of arrest will not be allowed.</p> <p>Gooding, C. J., and Wells, J., dissenting.</p>

<p>APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Pima. R. E. Sloan, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Appeal and Error—Becord—Assignments of Error—Failure to File—Bev. Stats. Ariz. 1887, Par. 940, Construed and Held Mandatory.—Paragraph 940, supia, providing that the appellant shall file with the clerk of the court below an assignment of errors before he takes the transcript of the record from the clerk’s office, is mandatory. An assignment of errors not so filed will not be considered as in the record.</p> <p>2. Pleading—Set-Off and Counterclaim—Account—Necessity for Pleading Items—Bev. Stats. Ariz. 1887, Par. 737, Construed.— Under statute, supra, providing that “the plea setting up such counterclaims shall state distinctly the nature and several items thereof, and shall conform to the ordinary rules of pleading,” no greater degree of particularity is required in setting forth the nature and various items of a claim when pleaded by way of set-off than when pleaded in a complaint.</p>

<p>APPEAL from a judgment of the District Court of the Third Judicial District in and for the County of Yavapai. James W. Wright, Judge.</p> <p>The facts are stated in the opinion. ■</p>

<p>Original Application for mandamus..</p>

<p>1. Appeal and Error—Motion por New Trial—-Assignments op Error—Suppiciency—Review op Evidence.—The motion, for new-trial assigns as reason therefor, “The verdict is contrary to the law and the evidence,” and the ninth assignment of error is, “The court erred in overruling the motion of defendant for a new trial for reasons stated in the motion.” This brings the evidence before us for consideration. Evidence reviewed and held sufficient, to support the judgment.</p> <p>2. Trial — Continuance — Counter-Appidavits. —Counter-affidavits to those in support of an application for a continuance may be allowed.</p> <p>3. Venue—Change' op—Discretionary—Kev. Stats. Ariz. 1887, Par. 1568, Penal Code, Cited—Appeal and Error—Beview—Abuse op Discretion.—A motion for a change of venue is addressed to the discretion of the trial judge. Paragraph 1568, supra, cited. It is competent for this court to loot into the whole case, upon review of such motion, based upon the ground that the applicant cannot have a fair and impartial trial, to determine whether the exercise of discretion was wrongful and to the prejudice of the defendant, and when it appears that the evidence leaves no doubt as to the legal guilt of the defendant, and the defendant did not exhaust his peremptory challenges before he accepted the jury, though ordinarily the showing made for the change would have required a reversal for abuse of discretion in its refusal, the judgment will be affirmed.</p> <p>4. Jury—Appeal and Error—Challenges—Harmless Error.-—The refusal of a proper challenge for cause is not reversible error when there remain unexhausted challenges at the time of going to trial.</p>

<p>1. Contempt—Review—Habeas Corpus.—This court will not grant a writ of habeas corpus where a'party has been committed for a contempt by a court having jurisdiction of the person and the subject-matter.</p>

<p>APPEAL from a judgment of the District Court of the Second. Judicial District in and for the County of Maricopa. Joseph H. Kibbey, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the District Court of the Second Judicial District in and for the County of Maricopa. Joseph H. Kibbey, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Damages—Measure of—Actual Compensation for Loss.—In actions for breach of contract the circumstances of each case must determine what measure of damages should apply, having in view always the giving of actual compensation for actual loss.</p> <p>2. Sales—Breach of Contract—Vendor’s Remedies—Measure of Damages.—For a breach of a valid contract of sale of chattels by the vendee, in failing to accept and pay the contract price, the vendor may treat the contract as a complete sale, and at his option, either store the goods as the property of the vendee, or within a reasonable time resell in the open market. If he hold the property for the vendee he may recover the full contract price. If he resells, the law deems Mm agent of the vendee, and he may apply the proceeds as payment pro tanto, and, if less than the contract price, recover the difference. He may also treat the contract as executory, and the sale as not having vested title in the vendee, and retain the property as his own, and may sue and recover any loss of profit had the contract price been paid. This would be the difference between the contract price and the market value at the time and place of delivery.</p> <p>3. Same—Election oe Remedy—Resale—Evidence—Measure oe Damages—Instructions.—Where the vendors plead they have resold the property and ask the difference between the contract price and the amount they have realized from the sale, they have elected their remedy, and must show the amount realized from the sale. The measure of damages is the difference between the contract price and the actual amount realized from the sale in excess of the necessary and proper expenses of the sale and the keep of the property, and an instruction that the measure of damages is the difference between the contract price and the market value at the time and place of delivery is error.</p> <p>4. Appeal and Error—Revie v-—Failure to Save Objection Below— Waived. -Where appellee entered no default upon appellant’s failure to answer his counterclaim below, and permitted evidence thereon to be admitted without objection, appellee may assign error as to matters arising upon such counterclaim as it is too late on appeal to obtain an advantage which might have been taken at the trial had the default been properly entered.</p>

<p>APPEAL from a judgment of the District Court of the Second Judicial District in and for the County of Maricopa. Joseph H. Kibhey, Judge.</p> <p>The facts are stated in the opinion.</p>