Volume 3 — Idaho Reports

The engine and iron pipe, attached, as they were, to the quartz-mill of plaintiffs, and on the premises of plaintiffs, became fixtures and part of the realty as soon as they were attached. (Tiedeman on Real Property, sec. 6; 2 Taylor on Landlord and Tenant, secs. 544, 549; Merritt v. Judd, 14 Cal. 60.) Fixtures cannot be removed by vendee of lessee, or levied upon by creditors of lessee, unless removed or levied upon before termination of lease.

<p>No briefs were filed in this ease.</p>

<p>Section 8, Article 3 of the Constitution Construed — Sessions of Legislature Designated. — Section 8, article 3 of tbe constitution designates the different sessions of the state legislature as follows: 1. The first session; 2. Sessions to be held biennially after the first session, commencing on the first Monday after the first day of January, and every second year thereafter; 3. Sessions convened by the governor.</p> <p>Compensation of Members of Legislature. — The first paragraph of section 23, article 3 of the constitution applies to the regular or biennial sessions only, as to the per diem compensation of members, and the aggregate of per diem allowances.</p> <p>Same. — The second paragraph of said section 23 fixes the per diem of each member, except the presiding officers, for the first session of said legislature, and for sessions convened by the governor, and does not limit the aggregate per diem allowances for said first session.</p> <p>Writ of Mandate — State Auditor to Issue Warrant. — A writ of mandate will issue to compel the state auditor to issue his warrant, to pay the per diem of each member for each day’s attendance, upon the first session of said legislature, regardless of whether such member has already received, in the aggregate, three hundred dollars for per diem allowances for said first session or not.</p> <p>(Syllabus by the court.)</p>

<p>APPEAL from District Court, Bingham County.</p> <p>The findings of a referee have the effect of a special verdict. {Kerr v. McGwire, 28 N. Y. 449; Brainerd v. Dunning, 30 N. Y. 216; Peabody v. Phelps, 9 Cal. 213-225; Brady v. Brown, 20 Cal. 521; Hams v. Railroad Go., 41 Cal. 394, 405; Lyons v. Harris, 73 Iowa, 292, 34 N. W. 864.) Findings of a referee are equivalent to findings of court. {Thompson v. Patterson, 54 Cal. 542-546.) Findings of a referee cannot be amended or added to. (Headley v. Bead, 2 Cal. 325.) A finding of a referee cannot be set aside by mere volition ol the judge. (Goodrich v. Mayor etc., 5 Cal. 430; Bassett v. Mining Co., 15 Nev. 298.) Judgment must conform to report of referee. (Sloan v. Smith, 3 Cal. 406; Grayson v. Guild, 4 Cal. 122; Phelps v. Peabody, 9 Cal. 213; Calderwood v. Peyser, 31 Cal. 337.)</p>

Opinions as to the main point in issue invade the province of the jury, and are therefore inadmissible. (Conner v. Stanley, 67 Cal. 315, 7 Pac. 723.) No confession made under the influence of hope or fear is admissible. {People v. Jim Ti, 32 Cal. 60; People v. Ecmirez, 56 Cal. 533, 38 Am.

To authorize-plaintiffs to sue, they must have suffered an injury different in kind from that sustained by the public at large. (Bigley v. Hunan, 53 Cal. 403; Jarvis v. Railroad Co., 52 Cal. 438; Marini v. Graham, 67 Cal. 130, 7 Pac. 442; Ranch Co. v. Brooks, 74 Cal. 463, 16 Pae. 250; Mehrhof Bros. Brick Mfg.

A master is not, in general, bound to indemnify his servant against the negligence of a fellow-servant when acting in discharge of his duty as servant of the common master. (Priestley v. Fowler, 3 Mees. & W. 1; Smith on Master and Servant, 237; Farwell v. Railroad Go., 4 Met. (Mass.) 49, 38 Am.

On the ground that said prejudiced jurors Gould, Einnell and Watson were allowed to sit on the grand jury which found the indictment against defendant the motion to set aside the indictment should have been granted. (State v. Olds, 19 Or. 397, 24 Pac. 394.)

The appellants, being, residents, taxpayers, property owners, and qualified electors, are proper plaintiffs, and are entitled to the relief sought, if the case presented by the complaint is otherwise sufficient. (High on Injunctions, 2d ed., secs. 1269, 1321; Bradley v. Commissioners, 2 Humph. 428, 37 Am. Dec. 563; Pomeroy on Remedies, 2d ed., sec. 142.) The wrong shown in the complaint is such an irreparable injury as entitles the plaintiffs to relief by injunction.

The contract sued on is an unconditional promise to pay money; it is, in fact, a promissory note. (Tiedeman on Commercial Paper, see. 6.) Defendants, as stockholders, were liable. (Morrow v. Superior Court, 64 Cal. 384, 1 Pae. 354.) The stockholders are not sureties for the corporation, but are principal debtors. Insolvency of the corporation need not be alleged.

After final entry has been made upon a pre-emption claim by a pre-emptor in due form, and payment from the land has been made, and final proof certificate issued, and a sale is made by the pre-emptor to an innocent purchaser, for value in good faith, it is not within the power of the land office to cancel the pre-emption entry, and deprive the innocent purchaser of the property he has bought without notice to him, and without any fault upon his part.

A statement by counsel in argument, wholly outside of the evidence in the case, is sufficient to entitle the opposite party to a new trial. (Brown v. Swineford, 44 Wis. 282, 28 Am. Rep. 582; Hatch v. State, 8 Tex. App. 416, 34 Am. Rep. 751; Hall v. Wolff, 61 Iowa, 559, 16 N. W. 710; Ghase v. Chicago, 20 111. App. 274; Marble v. Walters, 19 Mo.

<p>APPEAL from the Third District Court, Idaho Territory, ■Bear Lake County. Following the cause of Jones v. Meyers.'</p>

County. A judgment rendered against a defendant without notice' to him or an appearance by him is without jurisdiction, and is utterly and entirely void. (1 Black on Judgments,' 220; Pennoyer v. Neff, 95 U. S. 727; St. Clair v. Cox, 106 H. S. 353, 1 Sup. Ct. Rep. 354; Freeman v. Alderson, 119 H. S. 188, 7 Sup. Ct.

<p>APPEAL from District Court, Shoshone County.</p> <p>By leave of the court au amended complaint was filed in the above-entitled action on May 29, 1890, and thereafter, on the second day of June, 1890, the said complaint was demurred to upon the ground that it did not state facts sufficient to constitute a cause of action. Upon the hearing the demurrer was sustained. Thereafter, on March 9th, the court entered the following order: “At this day the court granted the plaintiffs until March 12, 1891, to elect whether to amend or stand upon their complaint.” On March 11th the following entry appears in the record: “At this day the plaintiffs, by their counsel, announce that they have elected to stand by their amended complaint.” Thereafter, on the twelfth day of March, 1891, the court made the following entry on the record: “At this day, on motion of defendants’ counsel, the court ordered this cause dismissed at plaintiffs’ costs, taxed at $3.40.” From this so-called judgment the plaintiffs take an appeal to this court, by filing and serving the following notice:</p> <p>“[Title of Court and Cause.]</p> <p>“Please take notice that the plaintiffs in the above-entitled action hereby appeal to the supreme court of this state from the judgment therein made and entered in the above-entitled district court sustaining the defendants’ demurrer to the plaintiffs’ complaint, and dismissing the above-entitled action at the cost of the plaintiffs, which judgment, made and entered as aforesaid, was in favor of the defendants and against the plaintiffs, and was entered on the tenth day of March, 1891, and appeal from the whole of said judgment.</p> <p>“Dated this eighteenth day of March, 1891. [Signed]” etc.</p> <p>This is not an appeal from an order; it is an appeal from a judgment. The form of it — the designation' of it as an “order” — is immaterial. The question is, Is it in effect a judgment, and is it final? {Sparrow v. Strong, 4 Wall. 595.)</p> <p>Where there is a substantial defect in an appeal, the objection may be taken at any time before judgment. {Wilson v. Insurance Go., 12 Pet. 140.) No appeal lies from an order sustaining a demurrer until a final judgment is rendered thereon. (Moulton v. ffllmaker, 30 Cal. 527; Graham v. Lineham, 1 Idaho, 780; Grey v. Cederholm, 2 Idaho, 34, 3 Pac. 12; Kimple v. Conway, 69 Cal. 71, 10 Pac. 189; Owen v. McCormick, 5 Mont. 255, 5 Pac. 280.) An appeal from a judgment cannot be considered if record shows no entry of it. (Mayson v. Chabrie (Cal.), 7 Pac. 634; Murphy v. King, 6 Mont. 30, 9 Pae. 585; Society v. Meeks, 66 Cal. 371, 5 Pac. 624.)</p>

<p>Appeal from Order for Judgment — Dismissal of. — An appeal will not lie from an order for a judgment.</p>

PETITION by the people, on the relation of Lincoln county, for a writ of mandate to compel Wesley B. George, clerk of the district court and ex-officio auditor and recorder of Logan county, to deliver to relator certain property alleged to belong to relator by virtue of an act of the legislature creating relator as a county.

The suit must be actually pending to justify a court of equity in appointing a receiver.

<p>District Court Clerk — Compensation Allowed by Constitution— Self-operative Sections of Constitution. — Section 16 of article 5 of the constitution provides for the election of a clerk of the district court for each county. Section 6 of article 18 provides that the clerk of the district court shall be ex-officio auditor and recorder. Section 7 of the. same article provides that the compensation of this officer, for all the duties he shall perform as such officer, shall not exceed $3,000, nor fall below $500, for any one year. Held, that these sections are self-operative.</p> <p>Maximum and Minimum Compensation of.Clerk of District Court. That the clerk of the district court, as such clerk, and as auditor and recorder, for the performance of all his duties therein cannot receive, for his own use, a greater sum than $3,000 for any one' year; and such compensation must be derived from fees and commissions. If such fees and commissions fall below the minimum, then the county must make up such deficiency.</p> <p>(Syllabus by. the court.)</p>

On the twelfth day of June the plaintiff and relator filed a notice of motion to vacate and set aside the decision of the court so rendered in the case, and to grant a new trial therein, with which motion, and as accompanying the same, was due proof-of service upon the defendant and his attorneys in the case. The notice specifies the following as the grounds and basis of the motion: 1. Insufficiency of the evidence to justify the decision; 2.

The complaint was and is fatally defective, in that it discloses that the' claim sued on was never presented to the administrator for allowance. As the agent of the estate, declarations made by the administrator, where his right to act in a ■particular has ceased, are mere hearsay and incompetent. (1 Greenleaf on Evidence, 113.) Where there is no evidence on a point, the court should so instruct.

<p>APPEAL from District Court, Alturas County.</p> <p>No briefs filed in case.</p>

'APPEAL from District Court, Bingham County. The allegations of the information being made upon information or belief, the verification in this form is'ambiguous, uncertain and fatally defective. (Act March 13, 1891, sec. 3; In re Hotchkiss, 58 Cal. 39.) An information is properly filed by the district attorney only when the defendant has been regularly committed, and has had a preliminary examination in accordance with the forms of law.

<p>No briefs filed in the case.</p>

<p>No briefs filed in the ease.</p>

<p>Ejectment — Community Property — Sufficiency of Complaint-Special Demurrer — Abandonment.</p> <p>Ejectment Against Defendant to Recover Mining Property. — J. brought ejectment against defendant for the recovery of certain mining property, claiming it to be community property of her deceased mother and one K., from whom defendant deraigned title. Complaint alleges the coverture of K. and plaintiff’s mother, and that the property described in the complaint was community property. Defendant objects for the first time in the appellate court that the complaint does not state facts sufficient to constitute a cause of action. Meld, that the allegation in the complaint was sufficient after judgment; that the objection should have been raised in the court below by special demurrer for uncertainty; not having done so it is waived.</p> <p>Mining Property Community Property in Idaho. — Mining property-acquired in this state under the laws of the United States during coverture is community property.</p> <p>Same. — Under the laws of Idaho Territory as they existed in July, 1886, all property acquired by the husband in said territory, during coverture, except such as was acquired by gift, bequest, devise or descent, was community property; and this although the wife may never have been a resident of the territory.</p> <p>Abandonment, Evidence not Sufficient to Establish. — The evidence in this case examined, and held not sufficient to establish abandonment.</p> <p>(Syllabus by the court.)</p>

<p>XiEASE at Rental of One-third of Crop — Chattel Mortgage upon Same Crop — Foreclosure—Claim and Delivery. — On the first day of October, 1889, D. leased of G. certain lands for the term of three years, at a rental of one-third of the crop to be raised on said lands during the term. D. entered under the lease and on January 28, 1890, executed to S. a chattel mortgage upon “the crop-of wheat that may be sown and grown for the year 1890 upon said lands.” The chattel mortgage was duly recorded on January 29, 1890. On March 1, 1890, D. assigned, or sublet to P. the land aforesaid for the term from March 1, 1890, to December, 1890. In an action by P. to recover from defendant, ■who as sheriff had seized and sold five hundred and ninety sacks, of wheat of the said crop of 1890, under a foreclosure of said chattel mortgage, held that, under the statutes of Idaho, said chattel mortgage, was a valid lien upon said crop, and any rights acquired thereto from D. subsequent to the recording of said chattel mortgage were subject thereto.</p> <p>Claim and Delivery — Ownership of Property. — Where in an action of claim and delivery the evidence shows that the ownership of the property was the only issue, an allegation in the complaint that the plaintiff was the owner of, and entitled to, “the property at the time of the commencement of the suit,’’ is sufficient after verdict.</p> <p>Same — Description of Property in Complaint. — In an action of claim and delivery, the description of the property sought to be recovered simply as “five hundred and ninety sacks of wheat,” held, to he insufficient, and a verdict and judgment which refer only to “the property described in the complaint,” giving value, are fatally defective.</p> <p>(Syllabus by the court.)</p>

After proof of the combination of the parties, the acts or declarations of one are evidence against the other. (Stovall v. Bank, 8 Smedes & M. 305, 47 Am. Dec. 85; Trimble v. Turner, 13 Smedes & M. 348, 53 Am. Dee. 93; Mamlock v. White, 20 Cal. 601; Beitenbach v. Beitenbach, 1 Bawle, 362, 18 Am.

The court erred in refusing to allow defendant to amend his return to make it conform to the facts. (Jeffries v. Rudloff, 73 Iowa, 60, 5 Am. St. Pep. 654, 34 N. W. 756; Thatcher v. Miller, 11 Mass. 413; Spellmyer v. Gaff, 113 111. 39, 1 N. E. 170; Shenandoah Val. R. Co. v. Ashby, 86 Ya. 333, 19 Am. St. Eep. 898, 9 S. E. 1003; People v. Ames, 35 N. Y. 483, 91 Am.

Under the practice of express findings, nothing is implied, but full findings are required without any request tberefor.

Where the meaning of a statute is plain, it is the duty of the courts to enforce it according to its terms. (Broom’s Legal Maxims, ed. 1864, 415; Mill Co. v. Muxlow, 115 N. Y. 170, 21 N. E. 1048; Thornley v. United States, 113 H. S. 310, 5 Sup. Ct.

<p>Intervener — Pleadings — Conveyance—Mining Claim — Mistake—■ Inadvertence — Proceeds of Sale — Nonsuit.</p> <p>Sufficiency of Complaint in Intervention. — The court below allowed McLelland to intervene. Held, that his complaint in’ intervention sets forth facts sufficient to bring him. within the-requirements of section 4111 of the Revised Statutes of Idaho.</p> <p>Competency of Receipt and Relinquishment as Testimony. — A. receipt and relinquishment signed by the defendants, although made without the knowledge or consent of the attorneys of record, are testimony in favor of plaintiffs, and it is error for the trial! court to refuse to receive the same.</p> <p>An Answer Admitting Allegations of Complaint Evidence fort Plaintiff. — A paper in the form of an answer, verified by the defendants, admitting that the allegations of the complaint are true, and consenting that the plaintiffs are entitled to a judgment as prayed for in the complaint, is a sworn admission of the defendants. The court erred in refusing to admit the same in evidence on behalf of plaintiffs, although said sworn statement was made without the knowledge or consent of defendants’ attorneys of record.</p> <p>Jurisdiction of Court to Determine Rights of Pleadings. — Under the pleadings, the court had jurisdiction to hear and determine the question as to whether a mistake had been made in-the deed of conveyance from Sebring, Ward, and Altizer to Pence- and Starr, and whether the conveyance from Ward to Brown was-a cloud upon plaintiff’s title, and in ease the mine was sold before-the adjudication of said matters and the proceeds of the sale of the interest in dispute deposited in court, the court had jurisdiction under the pleadings to determine the rights of plaintiffs, thereto.</p> <p>(Syllabus by the court.)</p>

PETITION of Samuel Orr for a writ of certiorari. A taxpayer has the right to prosecute this 'action. (Maxwell v. Board, 53 Cal. 389; Collins v. Davis, 57 Iowa, 256, 10. N. W. 643.) The remedy by certiorari is the proper one to set aside the action of the board of equalization where it is void for want of jurisdiction. (Rey.

Time is generally not of the essence of the contract, and purchaser does not forfeit his right of purchase by negle pay at the day. (Wells v. Wells, 3 Ired. Eq. 596; Bunné, Jackson, 1 How. (Miss.) 358; Brashier v. Grata, 6 Wheat. £ Hepburn v. Auld, 5 Craneh, 270; Taylor v. Longworth, 14 P, 174; Willard v. Tayloe, 8 Wall. 557.) It is not necessary to enable a party to specifically enforce a contract that the other could do the same thing.

.APPEAL from District Court, Shoshone County. In the case of receivers the courts have uniformly held that, 'even where receivers have instituted suit without giving bond, a nunc pro iunc order may be entered; and the same rule has been applied in cases of injunctions and other provisional remedies. (O’Farrell v. Stockman, 19 Ohio St. 297; High on Receivers, sec. 112; Morgan v. Potter, 17 Hun, 403; Whiteside v. Prendergast, 2 Barb.

<p>Statute of Frauds — Sale of Personal Property Without Change of Possession — Sale Void as to Creditors. — The statutes of Idaho make all sales of personal property in the possession of the vendor, except things in action, unaccompanied by immediate delivery and followed by an actual and continued change of possession, void as to subsequent purchasers, creditors, etc. G., being largely indebted, sold a stock of merchandise to H., one of his principal creditors, and who held a chattel mortgage upon the stock of merchandise owned by G. as security. The sale was made at the residence of H., twenty-five miles from the place where the merchandise was. No invoice was taken, no inspection or examination of the stock, no change in the clerical force, nor in the conduct or management of the business. G. continued to conduct the business as before, except that he added the abbreviation “Mgr.” when signing letters, check, etc. Held, there was no such immediate delivery and actual and continued change of possession as the statute requires, and the sale was void as to creditors.</p> <p>(Attaching Creditor Knowing of Pretended Sale does not Affect His Bights. — The fact that the attaching creditor knew of the pretended sale of G. to H., and continued to deal with G. as “Mgr.,” is of no moment, and cannot be urged to prevent the operation of the statute.</p> <p>(Syllabus by the court.)</p>

Retaxation of costs is a question of fact, and cannot be determined by a review of the cost-bill and. motion. (Evans v. Jacob, 59 Cal. 629.) It is a question of fact to be tried by the court. (Nestor v. Bisckof, 123 N. Y. 517, 25 N. E. 1046.) The clerk’s minutes of the trial are no part of the transcript on appeal. (People v. Empire etc. Min. Go., 33 Cal. 173.) Unless the court makes an order, the sheriff has no right to expenses incurred in executing processes.

A new homestead which has been purchased with the proceeds of the sale of the old homestead is exempt in all cases where the old one would have been. (Sargent v. Chubbuck, 10 Iowa, 37; Cowgell v. Warrington, 66 Iowa, 666, 24 N. W. 266; Lamb v. McConlcey, 76 Iowa, 47, 40 N. W. 77; Whitt v. Kendall, 11 Ky. Law Bep. 116, 11 S. W. 592; Maynard May, 11 Ky.

A partnership in the working of a mining claim exists whenever, either directly or indirectly, the owners thereof contribute to the expense of woking it. (Dougherty v. Greary, 30 Cal. 300, 89 Am. Dee. 116.) Any condition of facts which would warrant the dissolution of the partnership authorizes the appointment of a receiver and the granting- of an injunction.

<p>What is a Valid Judgment — Execution—Notice oe Real Estate ■ Sale, How Published — Real Estate, How Sold.</p> <p>Recitals of a Valid Judgment. — A judgment which recites that defendant was duly summoned and failed to answer, that evidence was heard, cause submitted, and the court being sufficiently advised doth adjudge the plaintiff recover of the defendant the sum of eighty-two dollars and sixty-three cents, with interest and costs, dated and signed by the justice, is a valid judgment. Sale of Property Under Execution After it Should be Returned. An execution having been duly issued, placed in the hands of the sheriff, and by him levied upon property during its lifetime, the property so levied upon may be sold after the date when said execution must have been returned, had such levy not been made. Notice of Sale, How Published. — Notice of sale of real estate levied upon under execution may, under our statute, be given by posting written or printed, notices, or by publication in a newspaper published in the county, and the sale may be postponed by announcing the fact at the time advertised and giving notice by writing same on original notice, or putting notice thereof under the original.</p> <p>How Several Parcels of Real Property Must be Sold. — When real property consists of several known lots or parcels, they must be sold separately or offered for sale in parcels, and if no bids are received, and the lots or parcels are adjacent, they may then be sold in a lump.</p> <p>(Syllabus by the court.)</p>

Priority in time of appropriation secures priority of right; or first in time is first in right. (11th Sess. Laws 1881, p. 267 ; Rev. Stats. 1887, sec. 3159.) A transfer of possession of land to purchaser transfers equitable title to the land; and the water right accustomed to be used with and for the benefit of the land passes as appurtenant to the land.

To the court alone, and not to the judge at chambers, is given the power to regulate and determine the place and manner of making connections and crossings, and enjoying the common use mentioned in that title. (Idaho Eev. Stats., sec. 5219.) The judge at chambers has no right, even by consent, to enter up a decree or try a cause or condemn land or property. (Idaho Eev. Stats., secs. 3890, 3910; Loomis v. Andrews, 49 Cal. 239; Brennan v. Gaston, 17 Cal. 375.) No brief on file.

No power of the court or of a judge could tax the costs after the expiration of three days, unless the motion was filed within three days after filing the cost bill. The costs, “ascertained” as they have been by the filing of the bill, became a part of the judgment. (Chapin v. Broder, 16 Cal. 403.) Statutes governing costs are rules of practice, and the costs in a suit are to be regulated by the statute in force at the time of its termination.

<p>Act of Establishing Ebee Schools Construed. — 1. The act of the legislature entitled “An act to establish and maintain a system of free schools” (see Session Laws of Idaho, 1890-91, page 131), did not repeal chapter 11, title 3 of the Political Code so far as it re-enacted the provisions of said chapter, but merely continued the re-enacted provisions in force.</p> <p>Independent School Districts — Powers of — Contemporaneous with Free School Act. — 2. The act entitled “An act to authorize independent school districts, to issue bonds to redeem, fund or refund their indebtedness, and to provide and improve schoolhouses and grounds and furniture and fixtures,” which act was approved March 6, 1891 (see Session Laws of Idaho 1890-91, page 129), and the act above referred to became a law on said day, are contemporaneous legislation, are not in conflict, and should be construed together. Application for injunction denied by court below sustained.</p> <p>(Syllabus by the court.)</p>

One of two joint promisees may release the obligor of a contract, and, if by so doing he injures his co-obligee, his coobligee must look to him for relief. (Jacomb v. Harwood, 2 Yes. Sr. 265; Murray v. Blatchford, 1 Wend. 583, 19 Am. Dec. 537; Napier v. McLeod, 9 Wend. 120; Decker v. Livingston, 15 Johns. 479; Kimball v. Wilson, 3 N. H. 96, 14 Am. Dec. 342; Myrick v. Dame, 9 Cush. 248.) Evidence of intention of the parties in making -a written contract is inadmissible.

The objection that the court has no jurisdiction over the subject of the indictment is not waived by a failure to demur. (Rev. Stats., secs. 7742, 7750; People v. Mellon, 40 Cal. 648; AVells’ Jurisdiction of Courts, see. 66.) Objection to the jurisdiction is available in an action against the sureties on a bond. (Pichenson v. State, 20 Neb. 72, 29 N. W. 184; 3 Criminal Law Magazine, p. 893, par. 1; Hodges v. State, 20 Tex. 497; McGee v. State, 11 Tex.

The language of a libel must be set out in the indictment or information in the very words of the publication. (Maxwell’s Criminal Procedure, 317; Coulson v. State, 16 Tex. App. .189; Starin'e on Slander and Libel, 323; Commonwealth v. Sweney, 10 Serg. & B. 173; Wright v. Clements, 3 Barn. & Aid. 503.) And not only must tbe very words be set out, but the indictment must profess to set them out. (Stale v. Goodman, 6 Rich. 387, 60 Am.

<p>APPEAL from District Court, Bingham County.</p> <p>In actions of replevin, a counterclaim cannot be pleaded by defendant or considered by the court. (Lovensohn v. Ward, 45 Cal. 8; Dole v. McGraw, 71 Mich. 106, 38 N. W. 686; Fair-man v. Fluck, 5 Watts, 516; Stow v. Tarwood, 14 111. 424; Keaggy v. Hite, 12 111. 101.) The counterclaim must have existed at the commencement of the action. (Gannon v. Dougherty, 41 Cal. 661; Jeffreys v. Hancock, 57 Cal. 646; Jjyon v. Petty, 65 Cal. 323, 4 Pac. 103.)</p> <p>The provision in action for claim and delivery for alternative judgment, for return or value, is made for the benefit of the defendant, and he alone can take advantage of its omission. (Cobbey on Replevin, 1106, 1108; Boley v. Griswold, 20 Wall. 486; Sweeney v. Lomme, 22 Wall. 208.) A verdict for one party is sufficient to warrant judgment that he was entitled to possession. (Newlien v. Feed, 30 Iowa, 496.) Defendant admitted that plaintiff was the owner of the eattle. In such case defendant is entitled to judgment for value of his spécial interest. (Cobbey on Replevin, 1126; Warner v. Hunt, 30 Wis. 200; Knudson v. Gieson, 38 Iowa, 234.) Error will be disregarded unless it affects substantial rights of appellant or operates prejudicially to his interest. (Cobbey on Replevin, 1105; Barney v. Brannan, 51 Conn. 175; Marix v. Franlce, 9 Ivan. 132.)</p>

Where a peremptory challenge has been exercised against a juror, who could have been excluded for cause, which would undoubtedly have given them another peremptory challenge, which they swore they desired to exercise against another juror, whom it appears from the record they were forced to retain, the court, with the facts fully before it, refused to recall the juror or grant plaintiffs any relief.

Injunction is the proper remedy of tbe stockholders against an illegal assessment.

Though the keeping of a house of prostitution is a public offense, and its operation involves a commission of a criminal offense, this fact does not take away any of the jurisdiction which courts of equity might otherwise exercise. (People v.. City of Last St. Louis, 10 111. 351, 48 Am. Dec. 339; Minice v. Hopeman, 87 111. 450, 29 Am. Bep. 63; Attorney General v. New Jersey By. etc. Co., 3 N. J. Eq. 136; Mayor etc. v. Jaques,. 30 Ga. 506; State v. Mayor etc., 5 Port.

<p>Revival of Judgment — Failure of Title to Property Mortgaged.— 1. W., having made entry and final proof on certain lands under the desert land laws of the United States, mortgaged same. Default having been made in payments secured by mortgage, the same was foreclosed, and at the sale the assignee of the mortgage became the purchaser. Prior to said sale one R. had instituted proceedings in the proper land office to contest said desert entry of W., which contest eventuated in the cancellation of said entry of W. by the commissioner of the general land office. Held, that under section 4498 of the Revised Statutes of Idaho the plaintiff was entitled to file his petition to revive the judgment entered on the foreclosure of mortgage.</p> <p>■Costs — Failure to File Memorandum of Costs. — 2. When the party entitled to costs fails to file his memorandum thereof within the time prescribed by section 4912 of the Revised Statutes, he thereby waives his right to costs, and the clerk has no right thereafter to insert them in the record of judgment. In such a case the fact that the costs do not appear in the record of judgment does not constitute an irregularity.</p> <p>(Syllabus by the court.)</p>

Jurisdiction must appear before presumption prevails in favor of it. (Williamson v. Berry, 8 How. 495'; Galpin v. Page, 18 Wall. 350; Pulaski Go. v. Stuart, 28 Gratt. 879; Freeman on Judgments, see. 123.) One who knowingly, upon false ground, sues out an attachment, though entitled to personal judgment, is not entitled to a judgment foreclosing the attachment if rights have intervened.

<p>Minino Partnership — Evidence not Sueeicient to Establish.— 1. While a partnership for the purpose of dealing in mining property may be proven by parol, the evidence to establish such partnership, when denied, must be clear and certain.</p> <p>Evidence Insueeicient. — 2. The evidence in these cases examined and held to be insufficient to establish such partnership. These cases were argued and submitted together, and as the evidence is the same, substantially, in each case, and the legal questions involved are the same, they are considered together by this court.</p> <p>(Syllabus by the court.)</p>

<p>Filing Transcript — Dismissal of Appeal — Haches.—1. Time for filing transcript expired November 19, 1891. On January 16, 1892, respondent moved to dismiss appeal, no transcript baring been filed.</p> <p>Haches. — 2. No sufficient cause being shown to excuse laches of ap- . pellant, motion allowed.</p> <p>(Syllabus by the court.)</p>

If the court fails to find on a material issue, judgment cannot be supported. (Traverso v. Tate, 82 Cal. 170, 22 Pac. 1082; Swift v. Canavan, 52 Cal. 417-419; Billings v. Everett, 52 Cal. 664; Shaw v. Wandesforde, 53 Cal. 300.) Findings outside the issues must be disregarded.

<p>Special Tax by School District — Literal Compliance with Provisions op Statute Required. — 1. Where the statute provides for the levying of a special tax by a school district, and prescribes the manner in which such levy must be made, a literal compliance with the requirements of the statute is necessary to the validity of the tax.</p> <p>Injunction Lies to Restrain Collection. — 2. Injunction will lie to restrain the collection of an illegal tax, where it creates a cloud upon title to real estate.</p> <p>(Syllabus by the court.)</p>

<p>Judgment on Pleadings. — 1. When any of tbe material allegations of tbe complaint are denied by tbe answer, it is error to render judgment on tbe pleadings.</p> <p>(Syllabus by tbe court.)</p>

<p>APPEAL from District Court, Lemhi County.</p>

When these defendants accepted the offices of the several trusts of the town of Coeur d’Alene, they thereby admitted the existence of the incorporation, its legality and were presumed to perform their duties and execute their trusts as such officers. They cannot be held to say that the incorporation under which they were elected and acting was illegal; that they were elected such officers, and had accepted such trusts. (Board v. Serrett, 31 La. Ann. 719, 33 Am.

<p>Motion to Dismiss Appeal — Watep. Rights — Appropriation—Priority of Right.</p> <p>Water Rights — Appropriators of. — 1. The prior appropriator of water for irrigation purposes is entitled to the water so appropriated, necessary to the proper irrigation of his land, as against subsequent locators.</p> <p>Same — First in Time First in Right. — 2. The court must determine the date and amount of each appropriation, and from these facts determine the priority of right as between the parties, as declared by section 31S9 of the Revised Statutes of Idaho 1887, to wit, “As between appropriators the one first in time is the first in right.”.</p> <p>Number of Acres Claimed or Owned to be Considered. — 3. In determining the amount of water appropriated for useful or beneficial purposes, the number of acres of land claimed or owned by each party, and the amount of water necessary to the proper irrigation of the same, should be taken into consideration.</p> <p>(Syllabus by the court.)</p>

<p>APPEAL from District Court, Bingham County.</p> <p>Where there is no evidence to support an instruction, the giving of such is an error. (Ellis v. Jeans, 7 Cal. 417; People v. Byrnes, 30 Cal. 208; Dowell v. Williams, 33 Kan. 319, 6 Pac. 603; Peineman v. Sachs, 33 Kan. 621, 52 Am. Rep. 547, 7 Pae. 225.) In order to justify the inference of legal guilt from circumstantial evidence, the existence of the inculpatory facts must be absolutely incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of guilt. (Wills on Circumstantial Evidence, 449; Greenleaf on Evidence, 22, note.) If ■evidence is entirely circumstantial, each independent circumstance forming a link in the proof must appear beyond a reasonable doubt. (People v. Phipps, 39 Cal. 326; People v. Anthony, 56 Cal. 397; People v. Shuler, 28 Cal. 490; People v. Strong, 30 Cal. 151; People v. DieTc, 32 Cal. 213; People v.. JPoley, 64 Mich. 148, 31 N. W. 94.)</p> <p>If the verdict is against the weight of evidence, but there ds still some evidence to justify it, a new trial will not be granted on the ground that the evidence is insufficient to justify the verdict. (Kile v. Tubbs, 32 Cal. 332; Doll v. Anderson, 27 Cal. 250.) While courts may set aside a verdict as against the weight of evidence, they will rarely disturb the finding of a jury upon the facts. The refusal of the court to do so is not reviewable here when there is any evidence to sustain the charge. (Earley v. State, 6 Ohio, 399-405; State ■v. Cruise, 16 Mo. 391; Wolf v. State, 11 Ind. 231; Giles v. State, 6 Ga. 276-286; State v. Elliott, 15 Iowa, 72-79; State v. Crytes, 24 Ark. 183, 184.) A conspiracy may be proved by circumstances, among which are the acts of the parties in doing the injury which is the alleged object of the conspiracy. (Wood’s Practice Evidence, 236; 2 Bishop’s Criminal Procedure, sec. 227; Ochs v. People, 124 111. 421, 16 N. E. 662; 1 Wharton’s Criminal Law, secs. 118, 860.</p>

<p>Condemnation of Land — Measure of Damages — True Basis to Estimate Damages. — 1. In proceedings for the condemnation of land for railroad purposes under the statutes of Idaho, the value of the land at the time it is taken is the measure of damages, and it is error to admit evidence of value at time of trial; where, however, one witness stated the basis of his estimate of damages to be the value of land at the time of the trial, and several others stated that their estimate was based upon the value at the time of the taking, and the court repeatedly charged the jury that the value of the property at the time of the taking was the true basis, the refusal of the court to strike out the testimony of such first witness held not to be reversible error.</p> <p>What Paid to Owners of Adjacent Land. — 2. It is error to estimate damages, in such a case, upon what has been paid by the corporation, seeking the condemnation of land, to owners of adjacent property.</p> <p>(Syllabus by the court.)</p>

The only limitation upon the taxing power of the legislature is equality and uniformity. (People v. Burr, 13 Cal. 343; People v. Seymour, 16 Cal/ 332, 76 Am. Dee. 521, and note; Beals v. Amador Go., 35 Cal. 624; Railroad Go. v. StocTcton, 41 Cal. 148; People v. Brooks, 16 Cal. 11.) ’ Uniformity requires that the law affect alike all persons or things of the same class. (People v. Coleman, 4 Cal. 46, 60 Am.

<p>What Constitutes a Mortgage — Separate Agreement to Reconvey. — 1. A deed absolute on its face, and a separate agreement by the grantee for reconveyance of the same tract of land to grantor upon payment of consideration named in the deed, with interest, taxes, etc., by specified time, bearing same date as deed, constitute together a mortgage.</p> <p>Same — Ejectment.—2. In such, case ejectment will not lie by grantee to obtain possession of land from grantor.</p> <p>Remedy — Foreclosure.—3. The remedy is foreclosure under section 4520 of the Revised Laws of Idaho, et seq.</p> <p>(Syllabus by the court.)</p>

<p>Constitutionality of Road Law. — Section 933 of the Revised Laws of Idaho, providing for laying out private or by roads, held to he constitutional.</p> <p>(Syllabus by the court.)</p>

<p>APPLICATION by Joseph R. Shepherd for a writ of mandate to compel Hyrum Grimmett, registrar of voters, to register plaintiff as a voter.</p> <p>The electors’ oath bill partakes of the nature of “a bill of pains and penalties,” which is included in the prohibition of the constitution of the United States that “no bill of attainder shall be passed,” and that “no state shall pass any bill of attainder.” (Cooley’s Constitutional Limitations, 261; Story on the Constitution, 1338; Bouvier’s Law Dictionary, 247; Fletcher v. Peck, 6 Cranch, 87; Ex parte Garland, 4 Wall. 333-388.) It is a legislative conviction for a supposed crime, which is void. (Fletcher v. Peck, 9 Cranch, 87; Cummings v. Missouri, 4 Wall. 277; Ex parte Garland, 4 Wall. 333; Drehman 1>. Stifle, 8 Wall. 595.) Any law that makes an act done before the passage of the law, and which was innocent when done, criminal, and punishes such act, is ex post facto, and void. (Colder v. Bull, 3 Dali. 386; Ering v. State of Missouri, 107 U. S. 221, 2 Sup. Ct. Bep. 443; Ex parte Bethurum, 66 Mo. 295; Smith’s Constitutional and Statutory Construction, sec. 367.)</p>

On the division of a county, and organization from its territory of a new county, the rule that the old county retains all the property, including money in treasury and uncollected taxes, has no application where the enactment itself provides for a ■division of the property, taxes, and liabilities.

<p>Filing Transcript — Excused if Through Fault of Officer of Court. — Failure to file transcript within the time prescribed by the rules of the court is ground for dismissal of appeal; but such failure may be excused for cause shown. Parties litigant should not be made to suffer through the default of an officer of the-court when due diligence is shown.</p> <p>(Syllabus by the court.)</p>

<p>APPEAL from District Court, Elmore County.</p> <p>The fundamental principle and general rule for interpreting statutes granting exemptions is that they, being in furtherance of humanity and the protection of the family, should be liberally construed. (Freeman on Executions, see. 208; Estate of McManus, 87 Cal. 292, 22 Am. St. Eep. 250, and note, 25 Pac. 413; Montague v. Richardson, 24 Conn. 347, 63 Am. Dec. 173; Kuntz v. Kinney, 33 Wis. 514; Kenyon v. Baker, 16 Mich. 373, 97 Ain. Dee. 158; Bevan v. Hayden, 13 Iowa, 122.) It cannot be claimed that this was a fraudulent conveyance of property, for there was no conveyance or attempt to convey, and for the further reason that there can be no fraudulent conveyance of exempt property. (Freeman on Executions, see. 135; Derby v. Weyrich, 8 Neb. 174, 30 Am. Eep. 827; Union Pac. By. Co. v. Brnersh, 22 Neb. 751, 3 Am. St. Bep. 290, 36 N. W. 139.)</p> <p>The proceeds of exempt property are not exempt. Transposition of exempt property destroys or loses the exemption. (Brackett v. Watkins, 21 Wend. 68; Mandlove v. Burton, 1 Ind. 39; 1 Freeman on Executions, 2d ed., sec. 247; Wooster v. Page, 54 N. H. 125, 20 Am. Eep. 128.) If personal property exempt be fraudulently assigned to defraud creditors of the debtor, and be thereafter levied upon by such creditor, the debtor is not entitled to claim the same as exempt. (State v. Koch, 40 Mo. App. 635.) If exempt property or goods be so mixed with others that they can no longer be identified, the right of exemption is lost. The claimant must always be able to point out the identical property claimed. (Smith v. Turnley, 44 Ga. 245; Both v. Wells, 29 N. Y. 471.) The right to exemption is a personal privilege, and may be waived. (Domes v. Corbin (Mo. App.), 4 West. 98.)</p>

<p>APPEAL from District Court, Elmore County.</p>

<p>APPEAL from District Court, Logan County.</p> <p>There cannot be a de facto officer where no de jure office exists to be filled. (In re Hinhle, 31 Kan. 712, 3 Pac. 531.) Unconstitutional enactments are inoperative. (Cooley’s Constitutional Law, 144; Cooley’s Constitutional Limitations, 224; State v. Tufly, 20 Nev. 427, 19 Am. St. Rep. 374, 22 Pac. 1054.) A vacancy in office can only occur upon the happening of one of the things mentioned in the statute. (People v. Whitman, 10 Cal. 38; State v. Wilson, 30 Kan. 661, 2 Pac. 828; Rosborough v. Boardman, 67 Cal. 116, 7 Pac. 261; Gormo,n v. Commissioners, 1 Idaho, 553.)</p> <p>A resignation may not only take place by abandonment of' official duties, but also by being appointed to and accepting-a new office, incompatible with the former one. (Angelí &. Ames on Corporations, secs. 433, 434.) Where office is vacated' voluntarily, no judicial determination is necessary. (State-v. McClinton, 5 Nev. 329; People v. Board of Metropolitan Police, 26 N. Y. 481; Calloway v. Sturm, 1 Heisk. 764.) Plaintiff must be “a person now rightfully entitled to the office.” He must stand on the strength of his own rights. If he has been guilty of acts that would vacate or forfeit the office, he cannot recover, even if no court or board has passed' on the question. (High on Extraordinary Remedies, sec. 652.) The right of plaintiff to the office is tried in this action; and if, by judicial proceedings, plaintiff might have at any prior time been ousted, or the office declared vacant, the failure of anyone to take those steps does not give plaintiff a right to an office he has voluntarily abandoned. (State v. Wilson, 30 Kan. 661, 2 Pac. 828.) The act of plaintiff in accepting the-appointment of probate judge of Lincoln county is an estoppel on him to claim a right to be installed into this office, or to-have the fees of the office earned by the appointee. (Bigelow on Estoppel, 2d ed., 503, 508-510, 515, 516; People v. Hart-well, 67 Cal. 11, 6 Pac. 873; High on Extraordinary Remedies, secs. 631, 658, 668, 686, 687, 746; People v. Haite, 70s 111. 25; Gunter v. Laffm> 7 Cal. 588; Dorsey v. Ashley 72 Ga. 460.)</p>

<p>Notice or Mechanic’s Lien — What Must be Stated. — 1. A notice-of mechanic’s lien which fails to state unequivocally and plainly the name of the owner, or reputed owner, or the terms, time and conditions of the contract under which the labor was performed, is fatally defective.</p> <p>Same — Statute Construed. — 2. A statement at the head - of the-notice of W. and M., subcontractors, against B., contractor, and-M., .owner, is not a compliance with the requirements of the-statute, requiring that the name of the owner or reputed owner-should be stated in the lien.</p> <p>(Syllabus by the court.)</p>

<p>Undertaking on Appeal — Void for Uncertainty-Dismissed. — Appeals taken from order refusing new trial, and from the judgment in which undertaking is given that does not specify to which appeal it relates, is void for uncertainty, and appeals will be disinissed.</p>

<p>APPEAL from District Court, Alturas County.</p> <p>Tbe garnishee cannot plead the pendency of the attachment suit in abatement of an action, subsequently brought against him, by the debtor in the attachment. Nor can he safely pay his creditor, the debtor in attachment, so long as the proceedings by attachment are in force. The proper course is for the court to order a suspension of the action against the garnishee-by his creditors until the attachment proceedings are disposed of. (3 Estee’s Pleading and Practice, sec. 4175; McFadden-v. O’Donnell, 18 Cal. 160; McKeon v. McDermott, 22 Cal. 667,. 83 Am. Dec. 86; Pierson v. McCahill, 21 Cal. 122.) Stipulations for attorneys’ fees -are not rigid, unbending contracts,, to be enforced literally under any and all circumstances, but are under the control o-f the court. They are in the nature of the stipulated damages for breach of contract. (Peyser v. Oole, 11 Or. 39, 50 Am. Eep. 451, 4 Pac. 520; Balfour v. Davis,, 14 Or. 47, 12 Pac. 89; Jaquith v. Hudson, 5 Mich. 123; Myer v, Hart, 40 Mich. 517, 29 Am. Eep. 553.)</p> <p>The garnishee is not chargeable unless the defendant could' recover of him what the plaintiff seeks to .secure by garnishment. (Waples on Attachments, see. 202; Drake on Attachments, sec. 458; Sickman v. Abernathy, 14 Colo. 174, 23 Pae. 447; Perea v. Bank, 6 N. Mex. 1, 27 Pac. 322; Hassie v. Congregation, 35 Cal. 378; Grain v. Aldrich, 38 Cal. 520, 99 Am.. Dee. 423.) There being no statement or bill of exceptions,. nothing can be considered but the judgment-roll. (McOoy v. Oldham, 1 Idaho, 465.)</p>

<p>APPEAL from District Court, Bingham County.</p> <p>In the case of Cunningham v. Moody, ante, p. 125, 35 Am. St. Eep. 269, 28 Pac. 395, this court refers to section 7 of article 7 of the constitution, which is taken substantially from section 4 of article 9 of the constitution of Nebraska of 1875. (State v. Graham, 17 Neb. 43, 22 N. W. 114; 111. Const., art. 9, secs. 1, 6; People v. Barger, 62 111. 453.)</p> <p>The provision in the constitution that “all taxes levied for state purposes shall be paid in the state treasury” was borrowed from Illinois. (See Starr & Curtis’ Annotated Statutes of Illinois, 149. For a judicial interpretation of this section, see People v. Lippincoti, 65 111. 551; Ryan v. People, 117 111. 486, 6 N. E. 37 et seq. See, also, Const., art. 18, secs. 6-8; Const., art. 7, see. 2; Cunningham v. Moody, ante, p. 125, 35 Am. St. Eep. 269, 28 Pac. 395.)</p>

Corporate powers cannot be enlarged by by-laws and ordinances. (Thompson v. Roe, 22 How. 422; Katzenberger v. Aberdeen, 121 H. S. 172, 7 Sup. Ct. Eep. 947.) When a particular method of exercising any corporate power of a municipality is prescribed by statute, no other can be adopted.

The fixing of a boundary by agreement is conclusive or effectual only where the true boundary has been or is in controversy, and parties agree on a new one, thus abandoning the-•old. (Manufacturing Go. v. Packer, 129 H. S. 688, 9 Sup. Ct.

Two petitions for a writ of mandate, one by John C. Cunningham, the other by James Otterson. As the Revised Statutes re-enacted sections 1 and 2 of the act of January 27, 1885, substantially, and omitted sections 3 and 4, it is presumed that such omissions were intentional, and the repeal of the latter sections was intended.

The building should be owned or possessed by another person. (3 Chitty’s Criminal Law, 1121; 2 Bussell on Crimes, 487, 488.) The indictment was fatally defective, in that it did not allege that the building which is alleged to be a jail was used as a jail, or that it was an erection capable of sheltering human beings, or that the same had usually been occupied by any person lodging therein at night.

The probate courts in civil jurisdiction are inferior courts, and have only the powers given by statute. (Rev. Stats. 1887, secs. 3841, 3842; Winter v. Fitzpatrick, 35 Cal. 269; State v. Mall, 49 Me. 412.) A judgment of the probate court must be rendered within the time prescribed by law. After that time jurisdiction is lost. (McNamara v. Spees, 25 Wis. 539; Mull v. Mallory, 56 Wis. 355, 14 N. W. 374; Stephens v. Santee, 49 N. Y. 35; Crandall v. Bacon, 20 Wis. 639, 91 Am.

<p>Abatement of Public Nuisance — Removal of Building from Street. — Suit by road overseer to compel tbe removal of a build- * ing from West Main street in town of Blaekfoot.</p> <p>Dedication to Public as Highwat. — Appellant’s contention is. that the land on which the building stands had never been dedicated to the public as a highway. Eeld, evidence sufficient to-show dedication.</p> <p>(Syllabus by the court.)</p>

A defect of a material averment in the pleadings will make the judgment based thereon fatally defective on appeal. (Richards v. Insurance Go., 80 Cal. 505, 22 Pac. 939; Morgan v. Menzies, 60 Cal. 341; Barron v. Frink, 30 Cal. 489; Osborn v. Graves, 11 Or. 526, 6 Pae. 227; Smith v. Smith, 106 Ind. •43, 5 N E. 411; McAninch v. Hamilton, 1 Ind.

<p>APPEAL from District Court, Alturas County.</p> <p>A principal charging himself with having received so much estops sureties from controverting it. (Potter v. United States, 107 U. S. 126, 1 Sup. Ct. Eep. 524.) The records of the court showing money to have been received by the marshal under execution are evidence against his sureties. ('Williams v. United States, 1 How. 299; Dwight v. St. John, 25 N. Y. 203; Grier v. JoneSj 54 Ga. 154.) Due delivery of letters at the usual period is presumed from the fact of mailing. (Wharton on Evidence, sees. 1323, 1324; PennypacTcer v. Insurance Go., 80 Iowa, 56, 20 Am. St. Eep. 395, 45 N. W. 408; Marston v. Bigelow, 150 Mass. 45, 22 N. E. 71; Lindenberger v. Beall, 6 Wheat. 104.) Failure to get service on the principal does not defeat an action against the surety on bond joint and .several. (Peelie v. State, 118 Ind. 512, 21 N. E. 288.) .Where obligation is joint and several, one or all may be sued. (Minor v. Bank, 1 Pet. 46; Pirie v. Tvedt, 115 U. S. 41, 5 Sup. Ct. Rep. 1034, 1161.) Demand on the principal is not necessary where surety directly undertakes. (Colburn v. Brooks, 78 Cal. 443, 21 Pac. 2; Tyler v. WaddingJiam, 58 Conn. 375, 20 Atl. 325; Crocker on Sheriffs, sec. 884.) Where one holds property belonging to another under such circumstances that a duty arises to hand it over to the owner, demand is not necessary before action. (Woods v. Hamilton, 39 Kan. 69, 17 Pac. 335.)</p>

This is not an action by a pledgee against a stranger, but it is purely and simply an action between two parties, both claiming the right to the possession derived from the same source, All that was done by the defendants was done by the consent of the pledgor, Lee R. Moon, and under an express agreement with him.

Plaintiff, not demurring to new matter in the answer, is deemed to have denied it. (Code, sec. 4217; Williams v. Dennison, 94 Cal. 540, 29 Pae. 946.) A plea in abatement is waived by pleading to the merits. (Railroad Co. v. Harris, 12 Wall. 65; Bell v. Railroad Co., 4 Wall. 598.) A pleading to the merits admits the capacity to sue.

The affidavit is no part of the undertaking. (Hayne on New Trial and Appeal, see. 213; Rev. Stats., see. 4810.) If an undertaking to stay an execution has been filed, the issuance of the execution is wrongful; and hence the motion to quash was well taken, and should have been sustained. (Rev. Stats., sec. 4810.) .

<p>Legislative Apportionment — Constitutional Construction — Legislative Representation. — 1. An act entitled. “An act providing for the apportionment of the legislature,” approved March 13, 1891 (1st Sess. Laws, p. 195), divides the state into senatorial and representative districts, and declares the representation which each district is entitled to. That, because of an act creating Alta and Lincoln counties out of territory theretofore comprising Alturas and Logan counties having been declared unconstitutional, said apportionment act failed to provide representation for two existing counties, Alturas and Logan, and provided representation for two counties having no existence. Held, unconstitutional.</p> <p>Same — Act Construed — When Part Invalid. — 2. When an act having but one object is in part valid and in part invalid, and the parts are so mutually connected with and dependent upon each other as to conditions, considerations, or compensations for each other as to warrant the belief that the legislature intended them as a whole, and, if all could not be carried into effect, the legislature would not have passed the residue independently, the act must be held void.</p> <p>Same — Proper Basis for Representation. — 3. The legislature is prohibited from passing an apportionment act which does not give substantially just and equal representation to the people of each county, based upon either the voting or entire population, or upon some other fair basis.</p> <p>(Syllabus by the court.)</p>

This is an action at law brought by the plaintiff to recover damages for certain injuries suffered by him in the employ of the appellant as a miner and pumpman in the Ida Elmore mine at Rocky Bar, in what is now Elmore county, in this state.

<p>No brief filed.</p>

This is an action brought by Ah Kle, Slam Hing, Ah Linn, Tong Ock, Mon Gue, Ah Toy, Sing Rook, Gue Hing and James Witt, the plaintiffs, against A. C. McLean, E. T. Barnett, Prank W. Rice and George Olde, the defendants, for the restitution of mining grounds and premises, and for $7,000 damages. The amended complaint, upon which the action was tried, was filed on April 21, 1890. On the same day the defendants filed a demurrer thereto.

<p>Sale and Delivery of Personal Property to Secure Loan. — M. loaned K. $1,500 in money, and took a bill of sale of some thirteen head of horses, and some other articles of personal property.</p> <p>Same — Evidence of Sale and Delivery of Property. — At the time the bill of sale was taken K. called Nelson Brothers, who then had possession of the property, and, in the presence of M., told Nelson Brothers that he had transferred the property to M. for the purpose of securing the indebtedness above mentioned.</p> <p>Same. — He told Nelson Brothers to hold the property for M. The horses had just been gathered from the range, and were in the corral of Nelson Brothers, in the town where the transaction took place, to be taken to the winter range, and cared for during the winter by said Nelson Brothers. Nelson Brothers were also informed by K. that M. would pay for the wintering of the -horses, and that they were to be turned over to him in the spring. Two horses that were included in the bill of sale were in the charge of one Lufkin. K. notified Lufkin that he had turned the horses over to M. and that he must deliver them to him.</p> <p>Delivery of Property to Vendee by Agister — Statute of Fraud.— In the spring Nelson Brothers returned the horses from the winter range, and delivered them to Murphy, who hired a man to look after them on the range during the following summer. Held, that there was such a delivery and continued change of possession as would relieve the property from the provisions of section 3021 of the Devised Statutes of Idaho.</p> <p>Claim and Delivery — Attachment—Property not Subject to Levy. — The defendant, as sheriff, levied upon the property by virtue of attachment at the suit of one La Barge against K. in September of the year following the transfer of the property. Held, that the property was not subject to levy for the debts of K. A creditor desiring to contest the validity of a sale must prove a debt or judgment, if it has been reduced to a judgment, before he can be permitted to question the validity of the transfer of property as a pledge.</p> <p>(Syllabus by the court.)</p>

WRIT OE ERROR dismissed from District Court, Shoshone County. Under the statutes regulating appeals in criminal cases, an exception taken under section Tfilo of the Statutes of Idaho, subdivision 1, “in refusing to grant a motion for a change of place of trial,” could not be heard by this court until after final judgment, or, rather) on an appeal from a final judgment of conviction.

Oral evidence is always admissible to vary, control, explain or contradict a receipt.

The Revised Statutes of Idaho decides this case. Subdivision third of section 6010 reads as follows: “When the promise, being for an antecedent obligation of another, is made upon the consideration that the party receiving it cancels the antecedent -obligation, accepting the new promise as a substitute therefor; or upon the consideration that the party receiving it releases the property of another from levy, or his person from imprisonment under an execution on a judgment…

<p>Bill of Sale — Admissibility of as Evidence. — A bill of sale made and executed on the twenty-third day of June, 1890, cannot be introduced in evidence unless it complies with the act of February 7, 1889 (15th Sess. Laws, p. 49), in that it must be acknowledged before s notary public, or other officer authorized to take acknowledgments, and must be recorded in the office of the county recorder in the same manner as a deed.</p> <p>Transfer of Personal Property — Fraud.—Where fraud is alleged in a transfer of personal property, and that it was transferred for the purpose of defrauding, delaying or hindering creditors, and facts appear in the evidence which have a strong tendency to sustain such allegation, much latitude is allowed in the examination of the parties to the transfer, and others in any wise connected with the affair.</p> <p>Same. — The acts or declarations of a party to a fraudulent transfer of property are admissible in evidence, though he is not a party to the suit, and though not made in the presence of the party claiming to be the purchaser of the property.</p> <p>(Syllabus by the court.)</p>

<p>Ejectment — Specific Performance. — To entitle a defendant in an action of ejectment to relief by way of specific performance, Ms answer or cross-complaint must show sucb a contract or agreement as would sustain a bill in equity for specific performance.</p> <p>Practice — Unilateral Contract. — An averment in an answer seeking affirmation by specific performance in ejectment, alleging a contract entirely unilateral, without time, terms or considerations, or conditions, is bad on demurrer.</p> <p>(Syllabus by the court.)</p>

The jury did not arrive at their verdict in any other maimer than as agreed on between themselves, and resorting to the determination of chance, in this, that the jury would write down certain amounts of damages to be recovered herein, and that said separate amounts should be added together and divided by twelve, and that one of the jurors, in placing his number, placed it at the sum of $500, which is in excess of any amount that the plaintiff could have recovered herein,…

<p>Practice — Writ of Review. — Writ of review does not lie from the action of a board of county commissioners, the statute having provided a speedy and adequate remedy by appeal.</p> <p>(Syllabus by the court.)</p>

Tbe statutes of Idaho, section 4810, provide for the staying of the execution of money judgments, upon the filing of an undertaking for that purpose in a prescribed form. And if in this action such an undertaking has been filed, the execution was wrongfully issued, and the motion to quash was well taken and should have been sustained.

<p>Practice — Waiver.—When cross-complaint is not answered, and defendant proceeds to trial as though answer had been filed, he-thereby waives answer.</p> <p>Diversion of Water for Irrigation — Time of Application to Beneficial Use. — Appropriators of water for irrigation purposes, after conducting water to point of intended use, have a reasonable time in which to apply it to the use intended. They may add to the acreage of cultivated land from year to year and make application of water thereto for irrigation, as their necessities demand or as their abilities may permit, until they have put to a beneficial use the entire amount of water at first diverted by them; provided, that that amount is needed for the reasonable irrigation of the land.</p> <p>Findings. — Findings sufficient to sustain judgment.</p> <p>(Syllabus by the court.)</p>

<p>Pleadings — Mining Right — Adverse Claim. — A complaint in an action under tbe Revised Statutes of tbe United States, section 2326, to contest an application for a patent for mining land, must show that the plaintiff has filed his adverse claim within the prescribed period of section 2325, and brought his action within the time thereafter allowed by section 2326.</p> <p>Same — Description of Property. — It must also contain- such a description of the property as will enable the court to determine to what extent, if at all, the claim of plaintiff is covered by the claim of defendant upon which patent is applied for.</p> <p>(Syllabus by the court.)</p>

<p>APPEAL from District Court, Bingham County.</p> <p>This record shows that the defendant was brought into court and a jury of twelve persons were duly and regularly selected, tried, and sworn to try the cause; that they heard the evidence- and argument and retired to deliberate of their verdict, and were afterward brought into court and stated that they had not agreed on a verdict, and the court discharged them. This, we contend, placed the defendant once in jeopardy, after which he should be granted his liberty, and no court had the right to again try him for the same offense, and that a retrial is prohibited under section 13, article 1, of our constitution. (People v. Webb, 38 Cal. 477; People v. Coleman, 4 Cal. 51, 60 Am. Dec. 581; Tyler v. Palmer, 31 Cal. 254.) That the plea of once in jeopardy is abundantly sustained by the proof in this case, and that the defendant could not be legally retried we cite the following authorities: People v. Horn, 70 Cal. 17, 11 Pac. 470; Wharton’s Criminal Pleading and Practice, sec. 517; People v. Soto, 65 Cal. 621, 4 Pac. 664; People v. Holm, 4 Am. Grim. Eep. 308; Adams v. State, 4 Am. Grim. Eep. 309; People v. Hunckeler, 48 Cal. 331; Cooley’s Constitutional Limitations, p. 399, side p. 326; State v. Ward, 48 Ark. 36, 3 Am. St. Eep. 213, 2 S. W. 191; Hilands v. Commonwealth, 111 Pa. St. 1, 56 Am. Eep. 235, ? Ail. 70; State v. Calendine, 8 Iowa, 288. The exercise of the discretion to discharge jury must be made a part of record. {Lee v. State, 26 Ark. 260, 7 Am. Eep. 611; 11 Am. & Eng. Ency. of Law, p. 950; People v. Cage, 48 Cal. 324. 17 Am. Eep. 436.)</p>

A chattel mortgagee to whom the mortgagor has delivered possession of the property, to be sold by the mortgagee to pay the debt secured, can maintain claim and delivery against a stranger who takes the property, and is not limited to the sole remedy of ■a suit to foreclose. (Person v. Hunan, 63 Cal. 550.) “The recording of a mortgage is made the equivalent of an immediate ■delivery.

<p>Verdict — Contradictory Evidence. — Where the evidence is simply contradictory, the appellate court will not disturb a verdict.</p> <p>(Syllabus by the court.)</p>

<p>APPEAL from District Court of Nez Perces County.</p> <p>This is an action to foreclose a mortgage. On the twenty-sixth day of July, A. D. 1883, S. S. Leachman, defendant, gave M. A. Kelly, plaintiff, a deed to certain real estate described therein. This deed was absolute on its face. On the same day the plaintiff, M. A. Kelly, and S. S. Leachman, defendant, entered into an agreement, by the terms of which the said Leachman was permitted to repurchase said land'by paying to said Kelly the amount named in said deed as the consideration therefor, with interest thereon at the rate of one and one-half per cent per month, on or before the expiration of thirty months from above date. The said Leachman agreed, further, to pay the said interest, all taxes and assessments, as the same should become due, and in like manner to pay the interest on a certain mortgage, for the sum of $250, made by said Leachman and wife to the Corbin Banking Company, which said mortgage was a lien upon the land described in said deed; to suffer no waste, injury or damage to be committed upon or to said premises — and providing that, if said payments should be made at the time they should become due, the plaintiff would reconvey said land to defendant Leachman. Defendant failed to pay according to contract, and plaintiffs brought this suit to foreclose. Complaint, filed July 13, 1892, is in the ordinary form, except the following allegations, which, it is claimed, relieve the action from the operation of the statute of limitations: After setting up the substance of the mortgage, plaintiff alleges “that thereafter, on December 15, 1885, in consideration of the foregoing facts, the defendant acknowledged the continuance of the said mortgage by executing to the plaintiff, M. A. Kelly, his promissory note, due ten months after date, with interest, for the sum of $725.50, including in said sum of $725.-50 the sum of $190 as the amount of annual interest then due, as agreed upon by plaintiff, Kelly, and defendant, upon said sum of $1,661.39, the consideration of the said mortgage; that said note is still due and unpaid; that thereafter, on May 14, 1886, defendant again acknowledged the continuance of said mortgage by executing to said plaintiff Kelly his promissory note for $295.52, as and for the amount then due and had been paid by said Kelly on the mortgage executed by said Leachman and wife to the said Corbin Banking Company, as mentioned and described in said mortgage; that said note is due and unpaid; that defendant again, on November 6, 1887, acknowledged the continuance of the said mortgage by executing to the plaintiff, Kelly, his promissory note, due ninety days after date, for the sum of $306, and included in said note the sum of $239.50 as the amount of annual interest then due, as agreed upon between said plaintiff Kelly and defendant, upon the said sum of $1,661.39, before mentioned; that defendant, on October 15, 1889, again acknowledged the continuance of said mortgage by executing his note to plaintiff Kelly, due six months after date, for the sum of $440.75, and included therein $300, annual interest on said mortgage for $1,661.39.” On July 22, 1892, defendant demurred to the complaint for misjoinder of parties, and on the ground that the complaint did not state facts sufficient to constitute a cause of action. On February 15, 1893, and before said cause was called for hearing, defendant filed a second demurrer, alleging that the cause of action was barred by the statute of limitations, and that the complaint showed no fact that removed the bar. Plaintiffs moved to strike out the second demurrer, which motion the court ■denied, and upon the hearing sustained the demurrer as to the statute of limitations, and, the plaintiffs declining to amend, the cause was dismissed, with costs to defendant. The plaintiffs appeal from the judgment of dismissal.</p> <p>There was a demurrer to the complaint filed on July 22, 1892, within the time prescribed for pleading, and without leave of the court or consent of plaintiffs a second demurrer was filed on February 15, 1893, raising the statute of limitations. Plaintiffs moved to strike out the second demurrer, which motion was overruled by the court and plaintiffs excepted. The court ■overruled the first demurrer but sustained the second, and the plaintiffs declining to amend, there was judgment for the defendants and plaintiffs appeal. The court should not have allowed the second demurrer. (Rev. Stats., secs. 4193, 4194, •4228; Hedges v. Dam, 72 Cal. 520, 14 Pae. 133.) A mortgage is simply a security and its lien special. (Rev. Stats., secs. 3350, 3353, 3328.) The lien of a mortgage in Idaho does not ■cease to exist until foreclosure, release or it becomes stale. (Rev. Stats., sees. 3364, 3365; 15 Am. & Eng. Ency. of Law, 869.) Under section 4052 of the Revised Statutes the lien is not extinguished, the remedy only is barred or suspended. (13 Am. & Eng. Ency. of Law, 690.) As the mortgage sued on had not been foreclosed, released or become stale, section 3351 of the Revised Statutes of Idaho has no application. Ry the allegations of the complaint it appears that the defendant acknowledged the continuance of the debt and the lien of the mortgage, and restored the suspended remedy. (Rev. ■Stats., sec. 4078; Reed v. Smith, 1 Idaho, 533.) Part payment is an unequivocal acknowledgment of the debt upon which the payment is made. •'‘Part payment is the best of all acknowledgments.” (3 Parsons on Contracts, 73; Barron v. Kennedey, 17 Cal. 574.) Under the Idaho statute part payment acknowledges the debt, takes the case out of the statute •and, if the creditor can show payment or acknowledgment in some writing, his remedy is not barred.</p> <p>Section 4228 of the Revised Statutes provides “a pleading maybe amended once by the party of course .... after demurrer, and before the trial of the issue of law thereon, by filing the-same as amended, serving copy on the adverse party. A demurrer is a pleading.” (Rev. Stats., sec. 4162; Sedges v. Bam,. 72 Cal. 520, 521, 14 Pac. 133.) Section 4231 of the Revised Statutes: "The court must, in every stage of an action, disregard any error or defect in the pleadings or proceedings, which does not affect the substantial rights of the parties and no judgment shall be reversed or affected by reason of such error or defect.” Plaintiff must show that prejudicial error' has been committed, not by his own showing that the de-1cision appealed from is right. (Hayne on New Trial and Appeal, sec. 286; Elliott’s Appellate Procedure, sec. 292; Tohler v.. Folsom, 1 Cal. 213; Smith v. Compton, 6 Cal. 26.) PlaintifFs-action is the foreclosure of the mortgage, evidenced by the deed and defeasance. It is the foreclosure of a certain mortgage.. The two papers constitute a mortgage. (Kelley v. Leachman, ante, p. 392, 29 Pae. 849.) That mortgage is a contract. (Rev. Stats., sec. 3350.) That contract, unless evidence under the allegations of the complaint can be introduced that will' show a new or continuing contract, is barred by section 4052' of the Revised Statutes of Idaho. Section 4078 reads: "No-acknowledgment or promise is sufficient evidence of a new or-continuing contract by which to take the case out of the operation of this title unless the same is contained in some writing-signed by the party to be charged thereby.” {Reid v. Smith, 1 Idaho, 535.) The acknowledgment say the cases must be a direct, unqualified and unconditional admission of the debt,, which the party is liable and willing to pay.” (Citing Bell v. Morrison, 1 Pet. 351; Sands v. Gelston, 15 Johns. 511; Jones-v. Moore, 5 Binn. 573, 6 Am. Dec. 428; Berghaus v. Calhoun,. 6 Watts, 219; Be Forrest v. Sunt, 8 Conn. 185; Russell v. Copp,. 5 N. PL 1.54; Sarrison v. Sandley, 1 Binn. 443; Bell v. Rowland, 1 Hard. 301, 3 Am. Dec. 729; Angelí on Limitations,.' see. 231, and note.) "When, however, there are several papers-which, together make up the memorandum, they will not be-sufficient for that purpose, unless they are so connected, either physically or bv reference, or internal evidence, that parol evidenee is not necessary to establish their connection with the contracts, if all be signed.” (Studds v. Watson, L. R. 28 Ch. Div. 305.) Revised Statutes of Idaho provide, at section 3351, that a mortgage can be created, renewed or extended only by writings executed with the formalities required in the ease of a grant or conveyance of real estate. (Same section, 2 Deering’s-Oodes, sec. 2922Í See, also, note, and Wells v. Harter, 56 Cal. 342.)</p>

<p>APPEAL from District Court, Bear Lake County.</p> <p>This is a case in equity for a partnership accounting. There must be an existing partnership. In this case, Jones and Quayle had dissolved partnership and agreed to a manner of settlement. The settlement of the partnership affairs was out of their hands and beyond their interference. While both partners might invoke a court of equity, alleging mistake, error or fraud, and ask a revocation of their acts, it is beyond the power of one of the partners to attack his own voluntary act, when resisted by the other. (Stretch v. Talmadge, 65 Cal. 510, 4 Pac. 513; 2 Bates on Partnership, secs. 909, 679.) An adequate remedy at law exists and a court of equity cannot be invoked. (2 Bates on Partnership, secs. 857-860.) Neither partner has the right to change contracts. (2 Bates on Partnership, 727.) The answer denies all the equities, hence the receiver should have been discharged. (High on Receivers, secs. 24, 491.) Before a receiver can be appointed there must be an existing partnership. (High on Receivers, secs. 473, 477, 486, 491.) Defendant was entitled to notice of motion to appoint receiver. (High on Receivers, sec. 502.) The receiver’s bond is not such a bond as required by sections 400 to 421 of the Revised Statutes of Idaho for the following reasons: 1. It is not made payable to the territory or state of Idaho (See Idaho Rev. Stats., secs. 400, 421); 2. That it is not justified as required by section 397 of the Revised Statutes of Idaho; 3. It is not approved as required by sections 394, 395 of the Revised Statutes of Idaho. The order appointing referee calls for “findings of fact,” and not “conclusions of law,” as recited in report. The findings of fact by referee is a special verdict, and cannot be made to take the place of a general verdict, and should therefore have been set aside. (See Idaho Rev. Stats., sees. 4396, 4421; Paulson v. Pluman, 64 Colo. 291.) This court can review intermediate orders necessarily affecting the judgment. (See Hayne on New Trial and Appeal, secs. 195, 262.)</p> <p>Counsel for appellant in his brief, in that portion which he has pleased to call “argument,” beginning at the top of page 7 and extending to about the middle of page 11, cites the court to many legal propositions, many of which are probably correct, some of which are manifestly incorrect. The application of these propositions to the case at bar is not attempted by the learned counsel who files the brief, and therefore we are left to guess what they are put in the brief for. Many of the propositions stated, in fact nearly the whole of them, are utterly irrelevant, and however correct they may be in the abstract, do not enlighten us one particle in this investigation. "We might as well cite an authority as follows: “God said let there be light and there was light.” (See Holy Bible, Genesis, c. 1.)</p>

This cause was dismissed for the reason that the transcript was not filed within the time required by the rules of the court. No briefs were filed on motion to dismiss.

<p>APPEAL from District Court, Bingham County.</p> <p>The court erred in granting judgment of nonsuit when evidence tending to sustain the issues presented in the complaint is given. (Graven v. Nolan (Cal.), 8 Pac. 518; Heilbron v. Last Chance etc. Ditch Co. (Cal.), 9 Pac. 456; Munroe v. Williams, 35 S. C. 572, 15 S. E. 279; Holt v. Van Hps, 1 Dak. 1, 46 N. W. 689; Cravens v. Dewey, 13 Cal. 40; Williams v. Norton> 3 ]£an. 295; Hayne on New Trial and Appeal, sec. 117.) The evidence shows that the ground in controversy was purchased by the defendants for the plaintiff, as agents for the plaintiff. (1 Parsons on Contracts, 86-88; 1 Story’s Equity Jurisprudence, secs. 315, 316, 463; McClendon v. Bradford, 42 La. Ann. 162, 7 South. 78, 8 South. 256; Edwards v. Dooly, 120 N. Y. 540, 24 N. E. 827.) The evidence shows that at the time of said purchase the plaintiff was the real owner of all of said town lots in said complaint mentioned, and since that time has not parted with the title thereto or of any interest therein. {Brennan v. Gartoni, 17 Cal. 375; Moon v. Rollins', 36 Cal. 333, 95 Am. Dec. 181; Page v. Fowler, 37 Cal. 100; Brant v. Wheat-on, 52 Cal. 430; Tate v. City of Sacramento, 50 Cal. 243; 1 Bates on Partnership, secs. 266, 284-286.) The evidence shows that the defendants in purchasing said town lots from the government were acting as. agents of the plaintiff, and in taking the deeds ini their own names perpetrated a fraud upon the plaintiff. The cestui que trust had a right at any time to demand a performance of the trust, and the evidence shows the existence of such trust. The taking the deeds in the name of the trustee does not alter the trust, nor prevent the cestui que trust from establishing his rights to the property at any time within the statute of limitations. (Meehem on Agency, 457-459; Wood v. Fox, 8 TJtah, 380, 32 Pac. 48; Reese v. Murnan, 5 Wash. 373, 31 Pac. 1027.)</p> <p>The complaint did not state facts sufficient to constitute any cause of action in case of any implied trust. The facts constituting a trust must be clearly set out in the bill. Not only must the trust be clearly alleged, but all of the facts out of which it arises or is claimed to result. (Perry on Trusts, 4th ed., see. 137, p. 162; Cumming v. Robbins, 39 N. J. Eq. 46; Slocum v. Marshall, 2 Wash. C. C. 397, Fed. Cas. No. 12,953; Corey v. Callan, 6 B. Mon. 44; Green v. Dietrich, 114 111. 636, 3 N. E. 800; Witts v. I-Iarney, 59 Md. 584; Philpot v. Penn, 91 Mo. 38, 3 S. W. 386 ; Olcott v. Bynum, 17 Wall. 44; Bucle v. Swazey, 35 Me. 51, 56 Am. Dee. 681; Conner v. Lewis, 16 Me. 274.)</p>

<p>¡Mines and Mining — Majority Interest can Manage and Control Mine. — Under the statutes of Idaho the party or parties owning a majority interest in a mining claim or mine, in the absence of any specific agreement to the contrary, have the right to the control and management of the same, subject to the laws of the United States and of this state.</p> <p>Minority Mingling Gold from Another Claim cannot Recover.— Where a mining corporation works a mining claim in which it has a minority interest, against the protest of the majority interest, and mingles with the gold extracted therefrom a portion of gold from its own claim, without the consent of the other party, and the quantity and value of such portion is unknown, the minority interest cannot recover the gold so mingled.</p> <p>(Syllabus by the court.)</p>

<p>Constitutional Law — Statute Construed. — The act creating Bannock county (2d Sess. Laws, p. 170) is not in conflict with the provisions of section 19, article 3 of the constitution.</p> <p>Power of Legislature — Authority of Governor to Appoint County Officers. — The legislature has power to create new counties, and may authorize the governor to appoint county officers therefor to serve until the election of county officers at the first biennial election held thereafter, and until such officers so elected qualify, as by law required.</p> <p>Legislative Bepresentation. — Said act does not deprive Bannock county of representation. It remains a part of the Bingham county representative district and a part of the district composed of Bingham, Logan and Alturas counties, and its electors are entitled to voté for the same number of representatives as they were prior to the creation of Bannock county.</p> <p>Same — Not an Apportionment Law. — The act creating Bannock county is not an apportionment law in any sense, and neither grants nor takes away legislative representation from said county, nor changes the boundaries of any senatorial or representative district.</p> <p>Senatorial Districts not Changed. — Said act does not segregate the eleventh senatorial district. By the creation of Bannock county the tenth and eleventh senatorial districts are in no wise changed. The electors of Bannock county have the same right in the election of senators in said districts as they had prior to the creation of said county.</p> <p>Mandamus to compel the treasurer of Bingham county to pay over certain funds claimed by Bannock county. Writ granted.</p> <p>(Syllabus by the court.)</p>

Submitted to abide decision in Sabin v. Curtis. On petition for writ of mandate to compel treasurer of Bingham to pay over certain school moneys to treasurer of Fremont.

<p>On petition for a rehearing of ease reported on page 629, ante, dated May 8, 1893.</p>

<p>APPEAL from District Court, Idaho County.</p> <p>The only question in the court below was, Did the circumstances and facts of the case confer on the sheriff the legal right to demand indemnity before he could be called on to execute the unit? This is the contention here. In this state a sheriff must execute all process regular on its face and issued by competent authority. (Idaho Bev. Stats., sec. 1882; 1 Deer-tug’s Code, see. 4187.) As to the authority, duty, method of execution and persons to be ejected; 2 Freeman on Executions, secs. 472-475; Fremont v. Grippen, 10 Cal. 211; Sampson v. Ohleyer, 22 Cal. 211; Huerstal v. Muir, 64 Cal. 450, 2 Pac. 33; Wallen v. Huff, 65 Am. Dec. 57; Howard v. Kennedy's Heirs, 4 Ala. 592, 39 Am. Dec. 307, and notes; McCreary v. Everding, 51 Cal. 166; Wetherbee v. Dunn, 36 Cal. 147, 95 Am. Dee. 166.</p> <p>The sheriff may demand indemnity of the plaintiffs in the execution of a writ of attachment before he could be required to seize property in the possession of third parties claiming to be the owners, and upon the refusal of the plaintiff to so indemnify him, no action can be maintained against the sheriff for a false return or a nonperformance of his duties. (Ohamberlain v. Seller, 18 N. Y. 117; Marshal v. Hosmer, 4 Mass. 63; Marsh v. Gold, 2 Pick. 290; Tevis v. Ellis, 25 Cal. 516; Wattson v. Dowling, 26 Cal. 127; Hessel v. Fritz, 124 Pa. St. 229, 16 Atl. 853; Wallace v. Hall, 22 Kan. 194; Crocker on Sheriffs, sec. 572; Harlow on Sheriffs, sec. 324; 2 Freeman on Executions, 472.)</p>

It will be perceived, upon investigation of the cause, that the singular anomaly is here presented of a judgment against parties whose demurrer had been sustained, and against whom the plaintiff seeks no relief whatever. We suppose that the action of the court is sought to be justified under section 4109 or section 4110 of the Revised Statutes of Idaho. The proceedings herein do not come under this section.

By filing a demurrer, then answering and thereafter participating in the trial in the probate court, defendant, the respondent herein, made a general appearance in the action. (Bev. Stats., sec. 4892; 1 Am. & Eng.

Statements made by the vendor of chattels, after a completion of the sale and a delivery of the chattels has been made to the vendee, and not connected with the sale, are not admissible in evidence against the vendee. (Allen v. Kirk, 81 Iowa, 658, 47 N. W. 906; Guaranty Go. v. Gleason, 78 N. T. 503; Lewis v. Bice, 61 Mich. 97, 27 N. W. 867; Frink v. Boe, 70 Cal. 296, 11 Pac. 829; Beard v. First Nat.

Respondents stipulate that the appeal is well taken, and withdraw all motions and briefs. Cause remanded to court below for further proceedings. Cause not heard upon merits, upon stipulation. Cause remanded to court below.

<p>APPEAL from District Court, Nez Perces County.</p> <p>This is an action by the city of Lewiston against the defendants, E. A. H. Booth and B. Booth. Said city is a municipal corporation, having the powers given it by its charter. The. defendants are the owners and operate a water ditch that flows-through the present limits of said city. Plaintiffs contention-is, that it has constructed a bridge across said ditch, at a point' within the limits of said city, and that the defendants, as owners of the ditch, are liable for, and must pay for, building the-bridge. Plaintiff had no warrant or authority under its charter, first, for charging the defendants for the construction of the bridge; and, second, for bringing any suit or action against the defendants. Plaintiff has and can exercise only such rights and authority as is conferred by its charter. (Cooley’s Constitutional Limitations, *191, *192; Douglas v. Mayor and Common Council of the City of Placerville, 18 Cal. 648; City of Oakland v. Carpenter, 13 Cal. 546; Wallace v. San Jose, 29 Cal. 187, 188; Ex parte Frank, 52 Cal. 608, 28 Am. Rep. 642; Eerzo v. San Francisco, 33 Cal. 143.) Acts authorized by section 7 of the charter are to be paid by taxes, regularly levied and regularly collected. (Charter, c. 10, see. 7; 11th Sess. Laws, 386, 400 et seq.) And the provisions as to sidewalks, sections 7 and 8, requires published ordinances and sixty days thereafter before city has authority to do the work and secure a charge on adjoining land to be collected as other taxes are collected; not by suit. (Charter, secs. 7, 8; 11th Sess. Law, p. 386.) All acts beyond the scope of powers granted are void. (1 Dillon on Municipal Corporations, sec. 89; McCann v. Otoe Co., 9 Neb. 324, 2 N. W. 709, 710; Reis v. Graf, 51 Cal. 90; Donnelly v. Tillman, 47 Cal. 40; City of Napa v. Easterly, 61 Cal. 509.) Indictment or mandamus are the only proceedings that can be taken to enforce the construction in a highway of a bridge by a private individual. (Elliott on Roads and Streets, p. 30, 32, 33; 2 Dillon on Municipal Corporations, 4th ed., sec. 836; 2 Beach on Public Corporations, secs. 1560, 1577 State v. Minneapolis etc. Ry. Co., 39 Minn. 219, 39 N. W. 153;: State v. St. Paul etc. Rv. Co., 35 Minn 131, 59 Am. Rep. 313,. 28 N. W. 3; State v. Chicago etc. Ry. Co., 79 Wis. 259, 48 N. W. 243; Easton etc. Ry. Co. v. Easton, 133 Pa. St. 505, 19 Am. St. Rep. 658, 19 Atl. 486; Pauer v Albrecht, 72 Wis. 416, 39 N. W. 771; Newcastle v. Raney, 130 Pa. St. 546, 18 Atl. 1066; City of Oshkosh v. Milwaukee etc. Ry. Co., 74 Wis. 534, 17 Am. St. Rep. 175, 43 N. W. 489.)</p> <p>Tbe common-law rule is that where a person or corporation Is given the right to build a railroad or make a canal across a public highway, this gives them no right to destroy it as a thoroughfare, but they are bound to restore or unite the highway at their own expense. {State v. Si. Paul etc. Ry. Co., 35 Minn. 131, 59 Am. Rep. 313, 28 N. W. 4; Rex v. Inhahitmts of Lindsay, 14 East, 317; Rex v. Kerrison, 3 Maulé & S. 526; Leopard v. Chesapeake etc. Canal Co., 1 Gill, 222; Northern Cent. R. R. v. Mayor, 46 Md. 425; Eyler v. Commissioners of Albany Co., 49 Md. 257, 33 Am. Rep. 249; In re Trenton Water Power Co., 20 N. J. L. 659; People v Chicago etc. Ry. Co., 67 HI. 118; Queen v. Inhabitants of Ely, 15' Ad. & E., N. S., 828; Paducah etc. R. Co. v. Commonwealth, 80 Ky. 147.) The money sued for in this case is not a tax, for the recovery of which plaintiff is limited to statutory methods for collection of taxes. If a city sues for an injury to> its property, for breach of contract, or to recover of one who is liable to it for damages, for which the city has been required to respond, it need not follow the procedure for raising a tax. Accordingly, it has been held that a claim of a municipal corporation against a citizen thereof for work done by the corporation, for which the citizen is liable, is not a tax. {Plaquemines Police Jury v. Mitchell, 31 La. Ann. 44.) No length of time will legalize a nuisance, for the very reason that while it continues a mere trifle, no one thinks of taking measures to have it removed, and thus the public would be sure to suffer. {Weld v. Hornby, 7 East, 199, 200; Folkes v. Chad, 3 Doug. 340, 343.) Section 3630 of the Revised Statutes of Idaho provides: “No lapse of time can legalize a public nuisance, amounting to an actual obstruction of public right.”</p> <p>This suit is brought by the plaintiff against the defendants to recover the sum of eighty-nine dollars and thirty cents, alleged to have been expended by the plaintiff in building a bridge across E street, in said city, near the eastern boundary ■of the same, and at or near the residence of one S. C. Thompson, and on and over a water ditch belonging to and in the possession of the defendants. The facts, as found by the court, ■are as follows: That the city of Lewiston, in Nez Perces county, in the state of Idaho, is a municipal corporation. That in the year 1874 the plaintiff granted a franchise to the Lewiston Water Ditch and Milling Company to construct a water ditch across the streets of said city, by an ordinance duly passed by ■the city council, which said ordinance required said water ditch and milling company, as a condition of said permission, to construct good and sufficient crossings where said ditch crosses ■any of the streets or lanes of said city, and to keep the same in .repair. That said water ditch was thereupon constructed by said company by virtue of said permission. That afterward the said ditch was sold and transferred by the then owners to the defendants herein, who are now, at the date of this action, the owners and in possession thereof. That at the time of ■the construction of said ditch the point of its crossing E street, where the bridge which is the subject of this action is, was not within the then limits of the city; but that said E street, where -said bridge was erected, was then, and for a long time prior thereto, a county road, and in the control and under the direction of the supervisor of highways. That at the time said ditch was constructed a good and sufficient bridge was, by the predecessors in interest of these defendants, constructed across •said street or road and along said ditch, and said bridge had been repaired from time to time by the owners of said water ditch in the succeeding years. That in the year 1881 the limits of the city were, by an act of the legislature of the state of Idaho, extended so as to bring the point of the crossing of the ditch on E street within the city limits. That on or about January 5, 1891, the bridge at said crossing was out of repair, ■and unsafe for travel. That the city council of said city ordered that a bridge should be built at said point over said ditch the full width of the street. That by direction of said city council the defendants were notified, both in wxiting and verbally, by the street commissioner of the said city, to rebuild said bridge, as above specified, the full width of the street. •That said defendants, after having had a sufficient time, neglected and refused to build the" said bridge, whereupon the bridge was constructed by the city of Lewiston, under direction of said commissioner, at a cost of eighty-nine dollars and thirty cents. It appears also that the main travel into the city from the easterly part of the town and from the country adjoining is over this bridge. That the old bridge was but twenty feet wide, and that forty feet of the road was open ditch, and for this reason it was inconvenient for teams to pass this point. That the defendants were notified of the amount expended in rebuilding said bridge, and were requested to repay the same, which they neglected and refused to do. TJpon this claim suit was brought in the ..probate court of Nez Perces county, and transferred to the district court of said county, whereupon a trial was had in said district court before the judge thereof, a jury having been waived, which resulted in a judgment in favor of the plaintiff and against the defendants, E. A. H. Booth and B. Booth, for eighty-nine dollars and thirty cents, and costs incurred in the action, amounting to twenty-six dollars and forty-five cents. Judgment placed on file July 16, 1892. From this judgment an appeal was taken on the twenty-second day of July, 1892. That thereafter, on the fifteenth day of March, 1893, a statement on motion for new trial was settled and approved by the district judge, and thereupon a motion for new trial was interposed by the defendants, which motion was denied by the court, and from this order overruling the motion for new trial an appeal was taken on the third day of March, 1893.</p>

The defendant had knowledge of the default and judgment, and without protest allows execution to issue and his property to be sold thereunder, and we now claim that his motion for relief comes too late.

<p>Practice — Exceptions.—The exception that the verdict is not supported by the evidence cannot be reviewed unless the appeal is taken within sixty days after the rendition of judgment.</p> <p>Negligence — Well Dept Open — Child Eell in. — The complaint alleges ownership and possession of a certain town lot by defendant upon which a well is situated, and that through the carelessness and negligence of defendant said well was left open, and that, deceased, without negligence, carelessness or fault on his part,, fell therein and was instantly killed, states cause of action.</p> <p>Measure of Damages — Instruction to Jury — Error.—As to the measure of damages, the court, on its own motion, instructed the jury that if they found for the plaintiff they should award him “such damages as they think him entitled to.” Eeld, error. That it gave the jury an arbitrary discretion to assess damages as caprice, whim or passion might suggest, regardless of the amount demanded by the complaint or shown by the evidence. It relieves the jury of every restriction, and authorizes them to grant such damages as they may “think” plaintiff entitled to, whether under all the circumstances of the case it be just or not.</p> <p>Instructions as to Damages. — Prior to giving the instruction above referred to' the court instructed the jury that if they found for the plaintiff, “such damages may be given as under the circumstances of the case may be just,” and, among other things, in awarding damages they might take into consideration “the relation proved as existing between plaintiff and deceased, and the injury, if any, sustained by plaintiff in loss of said deceased child’s society.” Eeld, error. The expression, “all the circumstances of the ease,” as used in section 4100 of the Devised Statutes of 1887, means relevant circumstances presented to the jury by evidence under the pleadings. No demand was made in the complaint for damages because of the loss of the said infant’s society, and no proof was offered showing the social relations existing between plaintiff and said infant.</p> <p>Section 4100 of the Devised Statutes Construed. — Under section 4100 of the Devised Statutes of 1887, in this class of cases, certain elements based upon proof may be taken into consideration, yet without proof the jury should not consider them.</p> <p>Instructions.- — Where the court gives inconsistent or contradictory instructions the judgment will be reversed.</p> <p>Instructions — Measure of Damages. — The court did not err in refusing to instruct the jury that in an action by a parent for the death of his minor child the measure of damages “is the value of the child’s services until he becomes of age, less the expenses of his support during that time”; the instruction as to the law ' of negligence as given and found in the transcript, folios 435 to 437, is the correct rule in this case.</p> <p>Prejudicial Error. — The overruling of defendant’s motion for a non-suit cannot be considered, for the reason that this- appeal was not taken within sixty days after the rendition of judgment.</p> <p>Evidence — Admissions.—Admissions and declarations made by an agent after an.accident has occurred cannot be admitted to show the negligence of the principal.</p> <p>Error Presumed to Work Injury. — Where error is shown it is presumed to have worked injury to the party against whom it was committed unless it affirmatively appears from the record that no injury did or could result.</p> <p>•(Syllabus by the court.)</p>

<p>Dismissal of Appeal — Record—Jurisdiction—Service of Notice ofAlPPeal. — The record, must affirmatively show the service of the-notice of appeal on the adverse party or his attorney. Section-4808 of the Revised Statutes of 1887 is mandatory, and the record must affirmatively show that its provisions have been complied with to give this court jurisdiction.</p> <p>(Syllabus by the court.)</p>

<p>APPEAL from District Court, Latab County.</p> <p>The first question raised on this appeal conclusively determines the action in favor of the appellant; the judgment in this cause is not supported by the pleadings and findings of fact. The judgment-roll in this action shows the cause of action was-barred by our statute of limitations, section 4054; before the-commencement of this action. Every presumption is against the pleader. He is presumed to have stated his case as strongly as it could be stated in his own favor. (Green v. Covillaud, 10- . Cal. 317, 70 Am. Dec. 725; Landers v. Bolton, 26 Cal. 393, Marriner v. Smith, 27 Cal. 649; Seale v. Ford, 29 Cal. 104; McCormick v. Tuolumne, 37 Cal. 257; Campbell v. Jones, 38 Cal. 507.) If Wallace had any title at all it was an equitable one,, but this court has decided he had none. If he did have an. equitable title, the rule of caveat emptor applies. (Shirras v.. Craig, 7' Cranch, 35; Freeman on Executions, sec. 335; Boggs v. Fowler, 16 Cal. 560, 76 Am. Dec. 561; Cromwell v. Hull, 97" N Y. 210; Tattier v. Hinde, 7 Pet. 252.) His cause of action accrued more than three years prior to filing his notice and petition. He could have sued the day of the sale complained of. The statute commenced to run on that day. (Pridgeon v. Greathouse, 1 Idaho, 359; Presbrey v. Williams, 15 Mass. 193; 13 Am. & Eng. Eney. of Law. 720; Buswell on Limitation and Adverse Possession, sec. 27; Bruce v. Tilson, 25 N Y. 194; Northrop v. Hill, 57 N. Y. 351,15 Am. Eep. 501; McMullen v. Rafferty, 89 N. Y. 456.)</p> <p>This action is brought to enforce a liabihty created by statute. (Eev. Stats., sec. 4498.) The defense is that it is barred by the statute of limitations. The question of appeal is, When, under the pleadings, did the cause of action arise ? No evidence appears in the transcript. Every presumption is in favor of the validity of the findings and judgment. We accept the issue of law tendered by appellant. Did the court err in not sustaining the plea of statute of limitations ? The answer recognizes the action as one to enforce a liability created by statute. It also recognizes a possible element of fraud or mistake. The limitation for such action is set by the Eevised Statutes, section 4054, subdivisions 1-4. Defendant so understands, and accordingly, as essential to the success of that plea, alleges: “That the cause of action.....arose on the fourteenth day of August, 1889, more than three years before filing of petition.” This is alleged as a fact. Such allegations are held to be allegations of fact. (Zelin v. Rogers, 3 N C. 471; Caulfield v. Sanders, 17 Cal. 572; Boone on Code Pleading, 1, 69.) The negative of this allega-, tion the court found as a fact. Properly, it would seem, unless a fair construction of the petition regardless of the evidence, compels the affirmative instead of negative conclusion. (Eev. Stats., sec. 4207.) When, therefore, under the law, did the cause of action as set out in the petition, arise? Easy answer will be found by reading the petition under the guidance of the statute creating the liability, to wit (Eev. Stats, see. 4498): “If the purchaser fail to recover possession because the property sold was not subject to execution and sale.” The right of revival arises out of failure to recover possession. The sale occurred August, 14, 1886. Deed of sheriff was executed February 15, 1887, at expiration of period of redemption. (Eev. Stats., sec. 4492.) Eight of possession under the sale accrued February 15, 1887. (Eev. Stats., see. 4496; Duprey v. Moran, 4 Cal. 196; Guy v. Middleton, 5 Cal. 391; ShirTc v. Thomas, 121 Ind. 147, 16 Am. St. Eep. 383, 22 N E. 976.) Failure to recover possession could not antedate right to recover possession. Eight of action did not accrue before February 15, 1887. This may also be regarded as an action for relief on the ground of fraud or mistake. In such case the cause of action is not to be deemed to have accrued until the discovery.' (Eev. Stats., sec. 4054, subd. 4.) In that case, it accrued April 24, 1889. In either ease, it did not arise August 14, 1886; and the finding and holding of the court are fully warranted.</p>

If this is an action to quiet title it is fatally defective. It should contain or show the nature or extent of the plaintiff’s claim or title. (Bliss on Code Pleading, secs. 221, 225, 226.) It is insufficient in that it fails to aver want of notice of conveyance from plaintiff’s grantors to defendants. (Lawton v. Gordon, 34 Cal. 36, 91 Am. Dec. 670.) It is insufficient, in that it fails to allege that due notice to quit was given prior to the commencement of this action.

<p>Practice — Contract; How Pleaded. — A contract may be declared in haeo verla or according to its legal effect. When the former mode is adopted, the instrument incorporated into the complaint must, show upon its face in direct terms, and not by implication, all the facts which the pleader would have to allege had he elected to set it forth by averment.</p> <p>(Syllabus by the court.)</p>

A copy of the cross-complaint had to be served upon the plaintiff personally within the territory or the state of Idaho ;. and there was no such appearance on the part of the plaintiff in such cross-action as to waive such service and confer jurisdiction upon the court as to such cross-action.

A nonsuit must be justified upon appeal, if justified at all, upon the grounds stated in the motions, or at least this court will not affirm the judgment upon any ground that could have-been avoided at the trial by additional evidence, amendment of the pleadings, or in any other way, had it then been stated. (Mateer v. Brown, 1 Cal. 222, 52 Am.

During the progress of the trial, or after their retirement for deliberation, the jury must be provided by the sheriff with suitable food and lodging. (Rev. Stats., sec. 7901.) We fail to find, however, that any change has been made in the old rule so as to allow intoxicating liquors to jurymen, and insist that there has been no relaxation in that respect. (Proffat on Jury Trial, 398; Bose v. Smith,, 4 Cow. 17, 15 Am. Dee. 331; Leighton v. Sargent, 31 N. H. 119, 64 Am.

<p>Practice — Requisites in Taking Appeal. — Where the record shows that neither the law nor rules of court have been complied with in any particular the appeal will be dismissed.</p>

<p>Variance — Pleading and Proof. — Variance between allegations of complaint and proof must be disregarded, unless such variance actually misled the adverse party to his prejudice in making his defense.</p> <p>Verdict — Conflict in Evidence. — When there is a substantial conflict in the evidence, the verdict of a jury will not be disturbed by the appellate court, unless it is plainly contrary to the decided weight of evidence.</p> <p>(Syllabus by the court.)</p>

The evidence is insufficient to justify the verdict. There was no evidence to show a contract of sale from the plaintiff to the defendants of the personal property described in the complaint. Held: as we stated, that it did not mean a final determination. (Gaplin v. Gritchlow, 112 Mass. 329; Akerly v. Vilas, 24 Wis. 165, 1 Am. Rep. 166; Home Life Ins. Co. v. Dunn, 20 Ohio St. 175, 5 Am.

<p>Practice — Supplemental Complaint. — Matters changing the relations of the parties to a suit, or either of them, which affect the matter in litigation, and which have transpired since the filing of the original complaint, are proper matters for supplemental complaint.</p> <p>Same — Guardian and .Ward. — A guardian is not permitted to bring suit in his own name and in his individual capacity for money or property belonging to the ward.</p> <p>(Syllabus by the court.)</p>