Volume 30 — Idaho Reports

<p>APPEAL from the District Court of the the First Judicial District, for Shoshone County. Hon. John M. Flynn, Presiding Judge.</p> <p>Action to condemn a portion of a patented mining claim for mining purposes. Judgment for plaintiff.</p> <p>Where property is sought to be taken by condemnation, if upon the hearing there is a total lack of competent evidence, or none at all, to prove the existence of the public necessity for the taking, and a taking is decreed, such decision and decree operate to take the defendant’s property without due process of law and in violation of the fourteenth amendment of the federal constitution. (State of Washington ex rel. Oregon R. & Nav. Go. v. Fairchild, 224 U. S. 510, 32 Sup. Ct. 535, 56 L. ed. 863.)</p> <p>The evidence fails to establish a necessity for the taking of the property sought to be condemned. (Scranton Gas & Water Go. v. Northern Goal & Iron Go., 192 Pa. St. 80, 73 Am. St. 798, 43 Atl. 470.)</p> <p>Property once appropriated to a public use cannot be taken unless for a more necessary public use than that to which it has been already appropriated. (Portneuf Irr. Go. v. Budge, 16 Ida. 116, 18 Ann. Cas. 674, 100 Pac. 1046; State ex rel. Harbor Boom Go. v. Superior Court, 65 Wash. 129, 117 Pac. 755; Samish River Boom Co. v. Union Boom Co., 32 Wash. 586, 73 Pac. 670; State ex rel. Skamania Boom Co. v. Superior Court, 47 Wash. 166, 91 Pac. 637; Boston & M. R. R. v. Lowell & L. R. Co., 124 Mass. 368; Housatonic R. Co. v. Lee <& H. R. Go., 118 Mass. 391; Baltimore & Ohio & Chicago B. Co. v. North, 103 Ind. 486, 3 N. E. 144; Pittsburgh Junction B. Co.’s Appeal, 122 Pa. St. 511, 9 Am. St. 128, 6 Atl. 564; St. Paul Union Depot Co. v. City of St. Paul, 30 Minn. 359, 363, 15 N. W. 684; Barre B. Co. v. Montpelier <& W. B. B. Co., 61 Yt. 1, 15 Am. St. 877, 17 Atl. 923, 4 L. R. A. 785; In re City of Buffalo, 68 N. Y. 167; In re New York, L. & W. By. Co., 99 N. Y. 12, 23, 1 N. E. 27; Birmingham & A. A. B. Co. v. Louisville é N. B. Co., 152 Ala. 422, 44 So. 679; St. Louis I. M. & S. B. Co. v. Memphis D. <& G. B. Co., 102 Ark. 492, 143 S. W. 107; Beclamation Dist. v. Superior Court, 151 Cal. 263, 90 Pae. 545; Chicago & N. W. By. Co. v. Chicago' & E. B. Co., 112 111. 589; Steele v. Empson, 142 Ind. 397, 41 N. E. 822; Chicago B. I. & P. By. Co. v. Williams, 148 Fed. 442; St. Louis H. & K. C. By. Co. v. Hannibal Union Depot Co., 125 Mo. 82, 28 S. W. 483; Paterson <& B. B. Co. v. City of Paterson, 81 N. J. L. 75, 80 Atl. 937; Miller v. Cincinnati L. & A. Elec. St. B. Co., 43 Ind. App. 540, 88 N. E. 102; New York Central <& H. B. B. Co. v. City of Buffalo, 200 N. Y. 113, 93 N. E. 520; St. Louis & S. F. B. Co. v. City of Tulsa, 213 Fed. 87; Oregon-Wash. B. & Nav. Co. v. Castner, 66 Or. 580, 135 Pae. 174; Buthland By., L. <& P. Co. v. Clarendon Power Co., 86 Yt. 45, 83 Atl. 332, 44 L. R. A., N. S., 1204; Kanawha Central B. Co. v. Broun, 71 W. Ya. 738, 77 S. E. 360.)</p> <p>“Two conditions must concur in order to authorize such taking. There must be some necessity therefor on the part of the condemnor, and the taking must not destroy or seriously impede the use to which the property is already devoted.” (Lewis on Eminent Domain, 3d ed., sec. 440, p. 796; Oregon Short Line B. Co. v. Postal Tel. Cable Co., Ill Fed. 842, 49 C. C. A. 663; Portland By., L. & Power Co. v. City of Portland, 181 Fed. 632, 633; Pacific Postal Telegraph-Cable Co. v. Oregon <& Cal. E. Co., 163 Fed. 967; Little Miami etc. B. Co. v. City of Dayton, 23 Ohio St. 510; City of Ft. Wayne v. Lake Shore é M. S. By. Co., 132 Ind. 558, 32 Am St. 277, 32 N. E. 215, 18 L. R. A. 367; Baltimore & O. S. W. By. Co. v. Board of Gommrs., 156 Ind. 260, 58 N. E. 837, 59 N. E. 856.)</p> <p>The grant in see. 5210, Bev. Codes, of the right to condemn for “an occupancy in common by the owners or possessors of different mines of any place for the flow, deposit or conduct of tailings or refuse matter from their several mines,” and the grant in sec. 3224 of the right of condemnation of an easement over and upon mining lands for purposes therein enumerated, excludes the implication of a grant of power for any other purpose. {Scranton Gas & Water Co. v. Northern Coal & Iron Co., 192 Pa. St. 80, 73 Am. St. 798, 43 Atl. 470; Fayetteville Street By. v. Aberdeen & B. B. Co., 142 N. C. 423, 9 Ann. Cas. 683, 55 S. E. 345; Southern By. Co. v. Memphis, 126 Tenn. 267, Ann. Cas. 1913E, 153, 148 S. W. 662; 41 L. B. A., N. S., 828.) It is immaterial that appellant has not yet reached the point in its development where all of this land is required for immediate use. {Kansas City S. <& G. By. Co. v. Vicksburg 8. & P. By. Co., 49 Ea. Ann. 29, 21 So. 144.)</p> <p>The constitution has declared that the necessary use of lands for mining uses is a public use, and the legislature has provided the procedure for subjecting such lands as are necessary for such use thereto. The constitution in this particular is self-executing. {Washington Water Power Co. v. Waters, 19 Ida. 595, 115 Pae. 682; Potlatch Lumber Co. v. Peterson, 12 Ida. 769, 118 Am. St. 233, 88 Pae. 426; Washington Water Power Co. v. Waters, 186 Fed. 572; Lamborn v. Bell, 18 Colo. 346, 32 Pac. 989, 20 L. B. A. 241; Spratt v. Helena Power Trans. Co., 37 Mont. 60, 94 Pac. 631.)</p> <p>• Sec. 14, art. 1, is a limitation of power upon the legislature and not a grant of power. {Portneuf Irr. Co. v. Budge, 16 Ida. 116,18 Ann. Cas. 674, 100 Pac. 1046.)</p> <p>“The legislature, neither by neglect to act nor by legislation, can nullify a mandatory provision of the constitution.” {Day v. Day, 12 Ida. 556, 10 Ann. Cas. 260, 86 Pac. 531; Davis v. Burke, 179 U. S. 399, 21 Sup. Ct. 210, 45 L. ed. 249.)</p> <p>That such a use is a public use is firmly settled. (Strickley v. Highland Boy Gold Min. Co., 200 U. S. 527, 4 Ann. Cas. 1174, 26 Sup. Ct. 301, 50 L. ed. 581; Douglass v. Byrnes, 59 Fed. 29; Dayton Gold <& Silver Min. Co. v. Seawell, 11 Nev. 394; Overman Silver Min. Co. v. Corcoran, 15 Nev. 147; Clark v. Nash, 198 U. S. 361, 4 Ann. Cas. 1171, 25 Sup. Ct. 676, 49 L. ed. 1085; Hand Gold Min. Co. v. Parker, 59 Ga. 419; Baillie v. Larson, 138 Fed. 177; Butte A. & P. By. Co. v. Montana Union By. Co., 16 Mont. 504, 50 Am. St. 508, 41 Pac. 232, 31 L. R. A. 298.)</p> <p>Under the evidence there can be no doubt that the lands sought to be acquired are necessary for the purposes of the respondent. There is no other available ground that the Marsh Mining Co. can acquire, and the ground which it has and the facilities which it has are entirely inadequate and insufficient. (Overman Silver Min. Co. v. Corcoran, 15 Nev. 147.)</p> <p>' The use being a public use and the necessity existing, the peculiar character of the appellants’ property does not preclude its condemnation. (Colorado Eastern B. Co. v. Union Pac. B. Co., 41 Fed. 293-300; 15 Cyc. 614, and cases cited; 2 Lewis on Eminent Domain, 3d ed., 754; North Carolina etc. B. Co. v. Carolina Cent. By. Co., 83 N. C. 489; Butte A. & P. By. Co. v. Montana Union By. Co., 16 Mont. 504, 50 Am. St. 508, 41 Pac. 232, 31 L. R. A. 298; Seattle & M. B. Co. v. Bellingham Bay & E. B. Co., 29 Wash. 491. 92 Am. St. 907, 69 Pac. 1107; Atchison T. & S. F. B. Co. v. Kansas City M. & O. By. Co., 67 Kan. 569, 70 Pac. 939-942, 73 Pac. 899; St. Louis A. (& T. H. B. Co. v. Belleville City By. Co., 158 111. 390, 41 N. E. 916; Scranton Gas & Water Co. v. Delaware L. & W. B. Co., 225 Pa. St. 152, 73 Atl. 1097; Atlanta & W. P. B. Co. v. Atlanta B. & A. B. Co., 124 Ga. 125, 52 S. E. 320; Pansing v. Village of Miamsburg, 79 Ohio St. 430, 87 N. E. 1139.)</p>

<p>Mandate — Cities and Villages — Statutory Construction — -Improvement Bonds — Lien op Bondholders — P'ayment op Interest and Principal — Liability op Lot Owners.</p> <p>1. Under the provisions of see. 2238 of the Political Code and amendments thereto, and the other sections of said Political Code defining the powers of cities and villages, improvement districts may be organized and improvement district bonds issued for the payment of improvements, and it is made the duty of the mayor and council to levy special assessments each year sufficient to redeem the instalments of such bonds maturing next -after their issue, and the funds arising from such assessments shall be applied solely to the redemption of the principal and interest on said bonds, and such bonds are made liens upon the property of the abutting property owners, and if any of such property owners pay their assessments, they are entitled to be credited on their account, as shown by the assessment-roll, both for interest and principal, and the city authorities would have no authority under the provisions of said act to divert sueh money so paid by a property owner to the payment of the interest or principal due from another abutting property owner who failed or neglected to pay his assessments as required by law.</p> <p>2. When a property owner pays his assessments as provided by said act and the city ordinance, the money arising therefrom must be paid by the city authorities on the interest due on sueh bonds and on the matured principal, and such property owner is entitled to have his property released from the lien of sueh bonds to the extent of the payment made, and the money so paid by the property owner cannot be diverted to the payment of the interest or principal due on said bonds from other property ow'ners who fail to pay their assessments.</p> <p>3. The benefit assessed to eaeh lot or parcel of ground abutting on such improvement is liable for the payment of assessments made against such lot or parcel of ground, and if the city fails or refuses to pay such bonds, or promptly collect any sueh assessments when due, the owner of such bonds may proeeed in his own name to collect such assessments and may foreclose any lien thereon in any court of competent jurisdiction, and is authorized to recover in addition to the amount of said bonds and interest, five per centum, together with costs of such suit, including a reasonable sum for attorney’s fees.</p> <p>4. Said statute gives the bondholder a plain, speedy and adequate remedy at law whereby he can proeeed to collect from each property owner the amount due from him on such bonds.</p> <p>5. Under the provisions of subsee. 12, a lien is created against the property of the abutting owner and the bond owner is authorized to receive, sue for and collect any assessments made against such property through any of the methods provided by law for the collection of assessments for local improvements.</p> <p>6. Subsee. 4 provides among other things, that the holder of any such bonds shall look only to the fund provided by such assessment for the principal and interest of sueh bond and gives the bondholder a preference over any mortgage or lien against the land of such abutting owner.</p> <p>7. It was not intended that the bondholder could require a property owner who had paid his assessments as levied under said law to pay assessments for other abutting owners who are delinquent in the payment of their assessments.</p> <p>8. Said act also provides that the holder of any such bonds shall have no claim for the payment of the same against the city or village except for the collection of the special assessments made for the improvements for which said bonds are issued, and the bondholder’s remedy in ease of nonpayment is eonfined to the enforcement of such assessments. This provision of said law is especially made a part of each bond.</p> <p>The bondholder has no claim against the city on account of the debt created by such bonds, and is given no right as against a land owner who has paid all of his assessments, and the city authorities have no power or right to divert any portion of the principal or interest paid by such taxpayer to the payment of interest and principal owed by a delinquent taxpayer.</p> <p>10. The bondholder may proceed in the matter as provided by statute, and Can either secure his money from the delinquent taxpayer or obtain title to the property owned by such delinquent, free and clear of all encumbrances.</p> <p>11. The plaintiff in this ease has a plain, speedy and adequate remedy at law for the collection of any principal or interest due • from any property owner who has failed to pay any assessments made by the eity authorities, and that being true, the peremptory writ of mandate will not issue.</p> <p>[As to whether a personal liability may be created for an assessment for loeal improvements, see note in 133 Am. St. 929.]</p>

<p>Bescission of Contract — Cancellation Deed — Promissory Note— Fraudulent Bepresentations — Complaint Sufficient — Conflict in Evidence — Judgment Sustained.</p> <p>1. Where an action is brought to rescind a contract, to cancel and hold for naught a deed made and delivered, and to seeure the recovery of a promissory note given at the time of, and in connection with, the making of the contract and deed, and for a reasonable rental of the premises possessed by defendant subsequent to the making and delivery of the deed, and the complaint alleges that the contract was entered into and the deed and promissory note made and delivered as the result of false and fraudulent representations of defendant known by him to be false and fraudulent when made, and to have been made' with the intent to deceive the plaintiff and to have' him aet upon them, and that the plaintiff relied and acted upon such false and fraudulent representations and thereby suffered injury: Held, that the complaint states facts sufficient to constitute a cause of action.</p> <p>2. Where there is a substantial conflict in the evidence, neither the findings nor judgment of the trial court will be disturbed on appeal.</p> <p>[As to right of purchaser to rescind contract of sale for breach by vendor in tendering less land than quantity contracted for, see note, in Ann. Cas. 1916D, 1154]</p> <p>Rescission of Contract — Pleading.</p> <p>1. In an action for the rescission of a contract, the complaint need not show that prior to the commencement of the action plaintiff offered to place defendant in statu quo.</p> <p>2. Where the complaint in an action for the rescission of a contract shows that the consideration received hy plaintiff was an interest in land under a contract of purchase, and that sueh contract has heen foreclosed hy decree for default in payments due thereunder, which payments defendant represented to plaintiff had already heen made, it is not necessary that the complaint should offer to restore to defendant the consideration received as a condition precedent to plaintiff’s right to cancelation and rescission.</p>

Hon. Edgar C. Steele, Judge. Action to recover on a life insurance policy.

<p>Cabey Act Lands — Reclamation of — Water Appropriation for — Insufficiency of — School. Lands Within Cabey Act Project— Purchaser of — Right to Water for — Right of State — Statutory Construction — Contracts—Construction of — Carey Act — Construction of — Sufficiency of Water Supply for Carey Act Lands — When and by Whom Determined — Construction Contract — Amendments to — E'stoppbl—Application to State.</p> <p>1. Under the aet of Congress known as the Carey Aet and the amendments thereto (28 U. S. Stats. 372-422), and the statutes of this state applicable thereto, the state made application to the Secretary of the Interior for the segregation of about 150,000 acres of land within what is known as the Twin Palls-Salmon River, Carey Aet project, which application was approved on the 10th day of April, 1908, and. a contract was entered into between the United States government and the state on that date. The Twin Palls-Salmon River Land and Water Company was a corporation organized for the construction of a reservoir and canal system for the irrigation of said lands, and the state entered into a contract with said corporation on April 30, 1908, for the construction of the proposed irrigation works, whereby said' construction company agreed to construct said works in accordance with certain plans and specifications; and it is provided, among other things in said contract, that shares of water rights should be sold to persons purchasing any portions of any state sehool lands within said project which were susceptible to irrigation and reclamation from said system, at a price not to exceed thirty dollars per share, provided that said water rights were purchased within one year after the purchase of the lands from the state, and not exceeding forty dollars per share at any time thereafter. The construction company proceeded and constructed said works under the supervision of the state authorities. During the period of construction it was ascertained that tho available supply of water for said project was less than one-half what it had theretofore been determined by the land Department of the government and the state authorities, and was agreed between the state and the construction company that not more than 80,000 acres of said Carey Act lands should be put on the market for sale and settlement. About 73,000 acres of said land were sold by the state to prospective settlers, about 14,000 acres of which thereafter became forfeited because the purchasers failed to comply with the law, thus leaving about 59,000 acres; and on later investigations of the available water supply for the lands within said project, it was ascertained that there was not sufficient water to reclaim the Carey Act lands whieh had already been sold. Thereafter on June 11, 1915, the state sold 160 acres of its school lands within said project to the plaintiff Bay1, and thereupon Bayl demanded of the construction company and also of the canal company that they sell to him a water right for said land, whieh they refused to do. Held, under the faets that the peremptory writ of mandate will not issue to eompel said corporation to sell to him the water right demanded.</p> <p>2. The construction company was permitted, under the law, to appropriate the water for said land for the purpose of transferring it to the settlers within said project for their use and benefit in connection with the irrigation system, it being intended that the settlers should ultimately own the entire project/ the' irrigation works and the water rights. The Construction Company was only a trustee in the appropriation of the water.</p> <p>3. Under the provisions of sec. 1618’, Rev. Codes, the state engineer is required to determine and report whether there is sufficient unappropriated water in the source of supply and whether or not a permit to divert and appropriate water through the proposed works has been approved by him, and whether the capacity of such works is adequate to reclaim the land described.</p> <p>4. Sec. 1619, Rev. Codes, provides that no request for the segregation of lands on whieh the state engineer has reported adversely as to the water supply, feasibility of the construction, the’ cost or capacity of the works, or as to the character of the lands sought, to be irrigated, shall be approved by the board.</p> <p>5. Seld, that the entire plan is one of complete state supervision and control.</p> <p>■6. In carrying out the provisions of the Carey Act and the statutes of this state applicable thereto, there are three contracts required: One between the government and the state, known as the state contract; one between the state and the construction company, known as the construction company contract; and one between the construction company and the settlers, known as the settlers' contract.</p> <p>7. The state acts in said matter as the agent or trustee for the settlers.</p> <p>8. The general plan is that the cost of reclamation of such lands shall be assessed as a benefit against the land, to be paid by the settler, and that sueh benefit is assessed through the medium of the state board of land commissioners.</p> <p>9. Under the provision of the Carey Act and the state law applicable thereto, the proper officers, both of the government and state, must determine in advance the sufficiency of the water supply, tbe character and kind of the system of irrigation that must be constructed, and the price to be charged the settlers for an interest therein. These things must all be done before the execution of the contract between the state and the construction company.</p> <p>10. Where certain officers of the government and the state are authorized by law to pass upon matters of the character involved in this case, their decision is conclusive where no question of fraud is raised.</p> <p>11. The time to ascertain whether the lands are of a character subject to segregation under the Carey Act and whether there is water available for their reclamation is prior to segregation.</p> <p>12. The question of the sufficiency of the water supply for the irrigation of a certain traet of land must of necessity be a matter of approximate estimate.</p> <p>13. Under the provisions of sec. 3289, Dev. Codes,- any water company or corporation is forbidden to contract or sell more water than it is entitled to, and must not sell more water than it has.</p> <p>14. By >the terms of the state contract, the Construction Company agreed to sell shares of water stock “to the extent of the water rights to which it is entitled .... but in no case' shall water rights or shares be dedicated to any land before mentioned or sold beyond the carrying capacity of the canal or in excess of the appropriation thereof.”</p> <p>15. Held, that the cases of State v. Twin Falls Canal Co., 21 Ida. 410, 121 Pac. 1039, and State v. Twin Falls Canal Co., Ft Ida. 728, 151 Pae. 1013, have no application to cases where the water supply is not adequate or sufficient and are not applicable to the facts of this ease.</p> <p>16. Under the provisions of see. 3, art. 15, of the state' constitution, the right to divert and appropriate the unappropriated waters of any natural stream to beneficial uses shall never be denied, and priority of appropriation shall give the better right as between those using the water.</p> <p>17. The state in dealing with a Carey Act project is not dealing in its governmental capacity, but in its proprietary capacity— in its capacity as a private owner improving his own property.</p> <p>18. The doctrine of equitable estoppel does not apply to the government when it is dealing or operating in its governmental capacity, but when it is operating in its proprietary capacity substantial considerations underlying the doctrine of equitable estoppel ■apply to the government as well as to individuals.</p> <p>19. Under the facts of this case, held, that an estoppel arises against the state, as no good reason can be offered why the state in its dealings in this matter should not be affeeted by considerations of morality and right which ordinarily bind the conscience, since the action of a sovereign state ought to be characterized by a more scrupulous regard to justice and higher morality than belongs to the ordinary transactions of individuals, and it clearly appears from the faets of this case that the state should act with fidelity and integrity toward the settlers.</p> <p>20. Since the state and Rayl knew that the water supply was insufiicient at the time said state land was sold and purchased, an equitable estoppel arises against thorn, and held, under the facts and the law, that the state is not entitled to a priority of right for any of said water for the land sold to Rayl.</p> <p>[As to estoppel of state to take inconsistent positions, see note in Ann. Cas. 1914A, 229.]</p> <p>Mandate — Mutual Mistake of Fact — Caret Act Project.</p> <p>1. A writ of mandate will not issue from this court to compel a Carey Act construction company to issue shares of stock to a purchaser of state sehool land where the shares of stock already sold are far in excess of the available water supply and the contract entered into between the construction company and the state of Idaho was entered into under a mutual mistake of a material fact.</p> <p>2. Where a purchaser of sehool lands under a Carey Act project could not possibly obtain the amount of water his contract would entitle him to receive, and the issuance of shares of stock to the said purchaser would in effeet defeat the rights of prior settlers to the water to which they are entitled under their contracts, a writ of mandate will not issue to compel the construction and canal company to sell shares of stock to said purchaser of school land.</p> <p>3. The state of Idaho in dealing with a Carey Act project acts by virtue of its sovereignty and not in the capacity of a private owner. 4. The doctrine of estoppel cannot be invoked against a sovereign state.</p>

<p>APPEAL from the District Court of the Fourth Judicial District, for Twin Falls County. Hon. Chas. O. Stockslager, Judge.</p> <p>Motion to amend and modify decree of divorce. Overruled and service of moving papers quashed.</p> <p>The service of moving papers upon an adverse party need not be personally made upon such adverse party. (Sec. 4891, Rev. Codes.)</p> <p>This statutory provision was complied with on the part of the appellant, and also by the act of the clerk of the district court in mailing a copy of each of the moving papers to the respondent at her place of residence in California. (Collins v. Brown, 19 Ida. 360, 364, 114 Pac. 671; Silva, v. Serpa, 86 Cal. 241, 24 Pac. 1013.)</p>

<p>Malicious Prosecution — Probable Cause — Prosecution Under Wronq Statute and Discharge — Actual Commission of Criminal Offense.</p> <p>1. In an aetion for malicious prosecution, probable cause, as a basis for instituting the prosecution complained of, is the existence of such facts or eireumstanees as would exeite the belief in a reasonable person, acting on the facts within the knowledge of the prosecutor, that the one charged was guilty of the crime for which he was prosecuted.</p> <p>2. Where plaintiff in an action for malicious prosecution shows that he was discharged by the committing magistrate after the holding of a preliminary examination, such discharge is prima facie evidence of want of probable cause but is not conclusive; and if it appears affirmatively from evidence introduced upon the trial that he was in fact guilty of an indictable misdemeanor, although not the one for which he was attempted to be held for trial, but of an indictable misdemeanor which was so closely akin thereto that the county attorney in drafting the criminal complaint inadvertently charged the defendant under the wrong section of the statute, want of probable cause is thereby rebutted, and the prosecutor cannot be held in damages.</p> <p>3. In an action for malicious prosecution, the fact that the plaintiff was not charged in the prosecution complained of under the proper statute with the commission of a criminal offense, is not evidence of bad faith or malice on the part of the prosecutor, if the latter had reason to believe the accused guilty of a crime, and sueh belief was based either upon personal knowledge or information received from others, upon which he relied in good faith, and such facts had been communicated to the county attorney.</p> <p>4. Held, under the facts of this ease, that as it affirmatively appears from the record, and from respondent’s own testimony, that he was guilty of a criminal offense against the laws of the state, but through inadvertence was charged under the wrong statute without any fault on the part of Neitzel, he cannot be permitted to maintain this action for malicious prosecution.</p> <p>[As to acquittal in criminal prosecution as evidence, in aetion for malicious prosecution, of want of probable cause, see note in Am. Oas. 191613, 376.]</p>

Hon. Wm. A. Babcock, Judge. Order overruling a motion to vacate a default and set aside a judgment. “There can be no judgment by default where there is on file an answer or other pleading of the defendant raising an issue of law or fact.” (Crossan v. Cooper, 41 Okl. 281, 137 Pae.'354; Freeborn v. Cheweldh Copper King Min.

Hon. Wm. A. Babcock, Judge. Order overruling a motion to vacate a default and set aside a judgment. Counsel rely on briefs filed in Kerney et ux. v. Hatfield, ante, p. 90, 162 Pac. 1077.

<p>Statutory -Construction — Public Officer — Term of Office — Vacancy —Holding Over — Death of One Elected to Office Before Qualification.</p> <p>1. See. 6 of art. 18 of the constitution, prescribing that the legislature shall provide for the election biennially, in eaeh of the several counties of the state, of a county assessor, merely provides for the biennial election of sueh officer, leaving it to the legislature to prescribe when such election shall be held and when the term of offiee shall commence and end.</p> <p>2. See. 32a, Rev. Codes, providing- that every officer elected for a fixed term shall hold office until his successor is elected and qualified is not in conflict with sec. 6, art. 18, of the constitution, providing for the biennial election of a county assessor.</p> <p>3. Under sec. 32a, Rev. Codes, an ineumbent of a public offiee is entitled to hold such office until his successor is not only duly elected, but also until he has legally qualified for sueh offiee.</p> <p>4. The death of a person elected to an office before he qualifies therefor does not create a vacancy within the purview of sec. 317, Rev. Codes, since see. 32a, Rev. Codes, provides that every officer elected for a fixed term shall hold office until his successor is elected and qualified.</p> <p>5. Under the provisions of secs. 32a and 317, Rev. Codes, a vacancy in a public offiee exists only in the event that there is no person lawfully authorized to exercise the duties of sueh office.</p> <p>6. Under the law of this state the person elected to an office does not become the incumbent of such offiee until he actually qualifies.</p> <p>7. Held, under the faets of this case no vacancy existed in the office of county assessor of Kootenai county on the seeond Monday of January, 1917, which the board of county commissioners of said county were authorized to fill by the appointment of plaintiff.</p> <p>[As to right of incumbent of public office to retain office where successor elected or appointed is ineligible, see note in Ann. Cas. 1913B, 677.]</p>

Hon. J. M.- Stevens, Judge. Action to foreclose mechanic’s lien. Judgment for defendants and plaintiff appeals. Record oil appeal must affirmatively show that appellant has complied with the law relative to appeals to give the court jurisdiction. (Anderson v. Knott, 1 Ida. 626.) Where record on appeal fails to show a compliance with the statute or rules of court, appeal will be dismissed.

<p>APPEAL from the District Court of the Seventh Judicial District, for Washington County. Hon. Ed. L. Bryan, Judge.</p> <p>Action to recover on account. Judgment for defendant.</p> <p>A provision in a building contract referring all matters in dispute to an engineer, architect or arbitrator for decision and declaring his decision thereof to be conclusive and final is valid and binding upon the parties in the absence of fraud, collusion or such gross error or mistake as would imply bad faith or failure to exercise an honest judgment on the part of the engineer. (Martinsburg & P. B. Co. v. March, 114 U. S. 549, 5 Sup. Ct. 1035, 29 L. ed. 255; Newman v. United States, 81 Fed. 122; Thompson v. Bradbury, 5 Ida. 760, 51 Pac. 758; Chicago, S. F. & C. B. Co-, v. Price, 138 U. S. 185, 11 Sup. Ct. 290, 34 L. ed. 917; Sweet v. Morrison, 116 N. Y. 19, 15 Am. St. 376, 22 N. E. 276; Shriner v. Craft, 166 Ala. 146, 139 Am. St. 19, 51 So. 884, 28 L. R. A., N. S., 450; Young v. Stein, 152 Mich. 310, 125 Am. St. 412, 116 N. W. 195, 17 L. R. A., N. S., 231; Williams v. Chicago, S. F. & C. By. Co., 112 Mo. 463, 34 Am. St. 403, 20 S. w‘. 631; Pope v. King, 108 Md. 37, 15 Ann. Cas. 970, 69 Atl. 417, 16 L. R. A., N. S., 489; Elliott v. Missouri, K. & T. B. Co., 21 C. C. A. 3, 74 Fed. 707; Chicago S. F. & C. Co-, v. Price, 138 U. S. 185, 11 Sup. Ct. 290, 34 L. ed. 917.)</p> <p>The contract may prescribe limitations and conditions as to substantive rights, but any attempt by the parties to stipulate as to the remedy is void. (Ñute v. Hamilton Mut. Ins. Co., 6 Gray (72 Mass.), 174, 2 Am. St. 566, note; 6 R. C. L., Contracts, sec. 160, p. 754.)</p> <p>Nothing prevents parties from ascertaining and constituting as they please the cause of action which is to become the subject matter of decision by the courts. (Holmes v. Binhet, 56 Cal. 307, 38 Am. Rep. 54; Wortman v. Montana Cent. By. Co., 22 Mont. 266, 56 Pac. 316; Thompson v. Charnock, 8 Term Rep. 139, 101 Eng. Reprint, 1310; Scott v. Avery, 5 H. L. Cas. 811, 10 Eng. Reprint, 1121; Williams v. Chicago, S. F. & C. By. Co., 112 Mo. 463, 34 Am. St. 403, 20 S. W. 631.)</p> <p>In the contract under consideration, it was provided that the decision of the chief engineer should be binding upon all parties to this agreement. It has been decisively settled by this court that such a provision in a contract is nugatory and void. (Huber v. St. Joseph’s Hospital, 11 Ida. 631, 83 Pac. 768; McCoy v. AMe, 131 Ind. 417, 30 N. E. 528, 31 N. E. 453; Louisville etc. By. Co. v. Donnegan, 111 Ind. 179, 12 N. E. 153; Board of Commrs. of Hamilton County v. Newlin, 132 Ind. 27, 31 N. E. 465.)</p> <p>The ex parte estimate of the engineer given in evidence for the first time on the trial could not be treated in any respect as an adjudication. (Boteler v. Boy, 40 Mo. App. 234; McMahon v. New York etc. B. B. Co., 20 N. Y. 463; Schwerin v. HeGraff, 21 Minn. 354; Wilson v. York etc. B. Co., 11 Gill & J. (Md.) 58.)</p> <p>The respondent was reduced to the extremity of proving its case by the best evidence obtainable, which was right and proper. (Spaulding v. Coeur d’Alene By. etc. Co., 5 Ida. 528, 51 Pac. 408; 5 Am. & Eng. Ency. of Law, 2d ed., 41, and cases there cited.)</p>

Hon. Ed. L. Bryan, Judge. Action to recover penalty for the violation of see. 1217, Rev. Codes. Judgment for plaintiff.

<p>APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Carl A. Davis, Judge.</p> <p>Action in assumpsit for money had and received. From a judgment for defendant, plaintiff appeals.</p> <p>The guaranty that “the right to trial by jury should remain inviolate” has no reference to equitable cases. (Christensen v. Hollingsworth, 6 Ida. 87, 96 Am. St. 256, 53 Pac. 211.)</p> <p>The right to a jury trial may be waived by any conduct or acquiescence inconsistent with the intention or expectation to insist upon it. (24 Cye. 154; MacKellar v. Rogers, 109 N. Y. 468, 17 N. E. 350; Boyd v. Boyd, 12 Misc. Rep. 119, 33 N. Y. Supp. 74 (affirmed, 146 N. Y. 403, 42 N. E. 542); Keystone D. Co. v. Worth, 117 N. C. 515, 23 S. E..427; People v. Firth, 88 Misc. Rep. 217, 151 N. Y. Supp. 705.)</p> <p>The noticing the case for trial after the jury has been discharged will have the effect of waiving trial by jury. (Cole v. Terrell, 71 Tex. 549, 9 S. W. 668; Blankenship v. Parsons, 113 Ala. 275, 21 So. 71.)</p> <p>The statutory method of waiving a jury trial is not exclusive. (Lindstrom, v. Mope Lumber Co., 12 Ida. 715 (721), 88 Pae. 92; Schwmacher v. Crane-Churchill Co., 66 Neb. 440, 92 N. W. 609; Keystone Driller Co. v. Worth, 117 N. C. 515, 23 S. B. 427.)</p> <p>The law is well settled that assumpsit is an action at law. (Kreutz v. Livingston, 15 Cal. 344, 345.)</p> <p>A jury trial was had in the following cases for money had and received: Minor v. Baldmdge, 123 Cal. 187, 55 Pac. 783; Lutz v. Rothschild, 4 Cal. Unrep. 888, 38 Pae. 360; Donovan v. Purtell, 216 111. 629, 75 N. B. 334, 1 L. R. A., N. S., 176; Peterson v. Foss, 12 Or. 81, 6 Pac. 397.</p> <p>“It is no objection to the maintenance of this action that equitable principles are to some extent to be applied and that the money sought to be recovered is impressed with a trust in the hands of the holder.” (Merino v. Munoz, 99 App. Div. 201, 90 N. Y. Supp. 985.)</p> <p>Where the mortgagee or the party having a deed for the premises as security for the debt sells the same, the action for money had and received is the remedy. (Lander v. Castro, 43 Cal. 497; Scranton v. Begol, 60 Cal. 642.)</p> <p>This being an action at law, the plaintiff was entitled to a trial by a jury.</p> <p>“Under the provisions of the constitution of Idaho the right to trial by jury is never to be denied even though an accounting is involved.” (Russell v. Alt, 12 Ida. 789, 88 Pac. 416, 13 L. R. A., N. S., 146; Lindstrom v. Hope Lumber Co., 12 Ida. 714, 88 Pac. 92; Robertson v. Moore, 10 Ida. 115, 77 Pac. 218; Dittemore v. Cable Milling Co., 16 Ida. 298, 133 Am. St. 98, 101 Pac. 593; Davidson Grocery Co. v. Johnston, 24 Ida. 336, Ann. Cas. 1915C, 1129, 133 Pae. 929.)</p>

Hon. Chas. O. Stockslager, Judge. Action for damages. From a judgment' for defendant, plaintiff appeals.

Original action brought against the state for the purpose of procuring a recommendatory judgment. The state interposed a demurrer. An action for damages cannot be maintained against a state unless the state has, by voluntary legislative enactment, granted such consent or assumed the particular liability which is the occasion of the action.

<p>APPEAL from the District Court of the Fourth Judicial District, for Twin Falls County. Hon. Chas. O. Stockslager, Judge.</p> <p>Suit to enjoin sale of mortgaged property. Judgment for plaintiff.</p> <p>Under sec. 3419, Rev. Codes, the sale or transfer by Ewing to Smith is void and the mortgagor, Ewing, is guilty of larceny. (Siudebaker Bros. Go. v. Mom, 13 Wyo. 358, 110 Am. St. 1001, 80 Pac. 151.)</p> <p>A creditor of the mortgagor attaching the property of a purchaser of it must look to the title. The purchaser or creditor is bound to inquire at the former residence of the owner for encumbrances there recorded. (Jones on Chat. Mort., 260A; Smith v. McLean, 24 Iowa, 322; Feurt v. Rowell, 62 Mo. 524; Kanaga v. Taylor, 7 Ohio St. 134, 70 Am. Dec. 62; Cool v. Roche,. 20 Neb. 550, 31 N. W. 367; Lathe v. Schoff, 60 N. H. 34; Hornthal v. Burwell, 109‘ N. C. 10, 26 Am. St. 556, 13 S. E. 721,13 L. R. A. 740.)</p> <p>The law of the place of contract, when this is also the place where the property is, governs as to the nature, validity, construction and effect of a mortgage, which will be enforced in another state, as a matter of comity, although not executed or recorded according to the requirements of the law of the latter state. (Jones on Chat. Mort., 5th ed., sec. 299; Blyth & Fargo Go. v. Houtz, 24 Utah, 62, 66 Pac. 611; Handley v. Harris, 48 Kan. 606, 30 Am. St. 322, 29 Pac. 1145, 17 L. R. A. 703; Ramsey v. Glenn, 33 Kan. 271, 6 Pac. 265; Douglas v. Douglas, 22 Ida. 336, 125 Pac. 796.)</p> <p>Where a chattel mortgage is not filed for record as required by sec. 3408, Rev. Codes, a subsequent purchaser of the property is not bound by the mortgage unless he is shown to have had actual notice of the same. (Cowden v. Finney, 9 Ida. 619, 75 Pae. 765; Cowden v. Mills, 9 Ida. 626, 75 Pac. 766.)</p> <p>This being an appeal from the judgment and no motion for a new trial having been made, this case is brought within the rule that where there is substantial evidence to support the verdict or substantial conflict in the evidence, the supreme court is prohibited from setting aside such judgment. (.Blister v. Fletcher, 22 Ida. 172, 182, 125 Pac. 226; State v. Silva, 21 Ida. 247, 256, 120 Pac. 835; Eaves v. Sheppard, 17 Ida. 268, 272, 134 Am. St. 256, 105 Pac. 407; Gassen v. Hendrick, 74 Cal. 444, 16 Pac. 242.)</p>

<p>Sale of Personal Property on Execution — Delivery of Possession— Conflict of Evidence.</p> <p>1. Sec. 3170, Bev. Codes, provides that “every transfer of personal property other than a thing in action, and every lien thereon, other than a mortgage when allowed by law, is conclusively presumed, if made by a person having at the time the possession or control of the property, and not accompanied by an immediate delivery „ and followed by an actual and continued change of possession of the things transferred, to be fraudulent, and therefore void, against those who are his creditors while he remains in possession..... Held, that where A purchases, at an execution sale, hogs belonging to B, and sold thereat in partial satisfaction of a judgment against him, and he leaves them in B’s possession paying him to care for them, sec. 3170 does not apply, and B’s judgment creditors obtain no rights against A in respect to the hogs by reason of his failure to remove them from B’s possession.</p> <p>2. An appellate court will not disturb the judgment of a trial court because of conflict in the evidence where there is sufficient proof, if uneontradieted, to sustain it.</p> <p>[As to retention of possession of chattels by judgment debtor after sale of same, see note in 15 Am. Dec. 671.]</p>

<p>Title to Beal Estate — Adverse Claim — Fraudulent Conveyances — • Execution Sale — Defective Complaint.</p> <p>1. An application to amend complaint while motion for nonsuit is pending is addressed to the sound discretion of the trial court.</p> <p>2. A defective allegation of a good cause of action, in the absence of a demurrer, is cured by a verdict and judgment.</p> <p>3. Where a judgment debtor causes real property which he has purchased to be conveyed by his vendor direct to a third person, and the transfer of his interest to such third person is fraudulent and void as to creditors, and the judgment creditor levies upon and sells such property as the property of the judgment debtor, the holder of the sheriff’s deed on such sale may, under sec. 4538, Bev. Codes, maintain an action as owner to quiet title.</p> <p>[As to when a general verdict causes defects in pleading, see note in 1 Am. Dec. 210.]</p>

Hon. Chas. O. Stockslager, Judge. • Action for breach of contract. Judgment for plaintiff. This being the contract between the parties, it was error for the court to permit testimony to be offered, either of prior' negotiations or of the contract offered as Exhibit “A.” (Jacobs v. Shenon, 3 Ida. 274, 29 Pac. 44; Idaho Fruit Land Co. v. Great Western Beet Sugar Co., 18 Ida. 1,107 Pac. 989; Newmyer v. Roush, 21 Ida. 106, Ann.

Judicial District, for Bonneville County. Hon. James G. Gwinn, Judge. Action to contest election of mayor of Idaho Falls. Judgment for contestee. A succession of unexplained irregularities and a disregard on the part of the officials is sufficient to deprive the ballot-box and the return to the credit to which they are entitled, and shifts the burden upon the party maintaining the legality of the official count.

<p>Escrow Agreement — Mistake—Reformation of Contract — Conditions Precedent — Waiver of Strict Performance of Contract— Evidence.</p> <p>1. Parol evidence is admissible for the purpose of showing that, by reason of mistake, a written instrument does not truly express the intention of the parties. A mistake of the scrivener whereby he fails to express the agreement of the parties may be corrected.</p> <p>2. Where the suit to reform the contract is incidental to another aetion, no prior demand for reformation need be made. This is especially true where it clearly appears that such a demand would be refused.</p> <p>3. Held, that in this action it was not necessary for respondent to return to appellant the initial payment made upon the purchase price of the land or the interest on deferred payments as a condition precedent to the bringing of the suit for the reformation of the contract.</p> <p>4. "Where time is agreed to be of the essence of a contract for the sale of real estate, the fact that the' vendor accepts an interest payment a short time after it is due does not operate as a waiver of promptness in future payments.</p> <p>5. In this state the law requiring a party to establish his ease “beyond a reasonable doubt’' applies only in criminal cases and not in a suit for the reformation of a contract, and the case of Houser v. Austin, % Ida. 204, 10 Pae. 37, so far as it is in conflict herewith, is overruled, and the ease of Panhandle Lumber Go. v. Baneour, 24 Ida. 60.3, 135 Pae. 558, approved and followed.</p> <p>[As to causes and proceedings for reformation of instruments, see note in 65 Am. St. 481.]</p>

<p>APPEAL from the District Court of the Seventh Judicial District, for the County of Canyon. Hon. Ed. L. Bryan, Judge.</p> <p>Action brought to cancel and set aside assessment and tax levied in pursuance thereof. From a judgment of dismissal, plaintiff appeals.</p> <p>Under the contract alleged, title was still vested in the state at the time of this assessment. The land itself, therefore, could not be taxed — it was exempt. If it is taxed, it cannot be sold; if it is sold, the sale is a mere nullity, and no title can be acquired by virtue of the sale. The sale gives rise to no lien upon the land; it is absolutely void and of no effect. (Quivey v. Lawrence, 1 Ida. 313; State v. Stevenson, 6 Ida. 367, 55 Pac. 886.)</p> <p>The statute, after specifically exempting state lands, permits the taxation of the value of the purchaser’s interest, which cannot be a tax upon the land itself, and if it is not a tax upon the land, then it is not a tax upon real property, and if it is not a tax upon real property, then it cannot be anything but a tax upon personal property.</p> <p>The purchaser of state lands under these contracts does not hold the equitable title, for the equitable title does not pass under forfeiture contracts. (Commissioners of Douglas County v. Union Pac. By. Co., 5 Kan. 615.)</p> <p>The statute should be interpreted strictly against the taxing power and not in favor of such power. (East Livermore v. Livermore Falls Trust & B. Co., 103 Me. 418, 13 Ann. Cas. 631, 69 Atl. 306,15 L. R. A., N. S., 952.)</p> <p>Revenue statutes are to be construed so as to effect the object of such statutes and promote justice. Statutes of exemption are to be strictly construed against exemptions and in favor of revenue. (Salisbury v. Lane, 7 Ida. 370, 63 Pac. 383.)</p>

Hon. Carl A. Davis, Judge. Suit to quiet title to an irrigation ditch and to enjoin defendants from interfering with the rights of plaintiff to the same. From a judgment for plaintiff, defendants appeal. Some sound and substantial reasons must affirmatively appear before a court will be justified in invoking so drastic a power as injunction. (Healy v. Smith, 14 Wyo. 253, 116 Am.

Hon. J. M. Stevens, Judge. Action brought for tbe purpose of canceling a mortgage, and to require defendant to- surrender to plaintiff a note, and for tbe recovery of damages. Judgment for plaintiff. Motion for new trial denied. Equity will not entertain jurisdiction wheré there is an adequate remedy at law. (16 Cyc. 31 and cases cited; County of Ada v. Bullen Bridge Co., 5 Ida. 188, 95 Am. St. 180, 47 Pac. 818; 2 Pomeroy’s Eq.

<p>Statutory Construction — Public Officers — Improper Performance of Duties — Proceedings to Remove — Causes for Removal.</p> <p>1. Where, under see. 7459, Rev. Codes, authorizing the district court to entertain an information verified by the oath of any person against an officer within its jurisdiction accusing him of charging and collecting illegal fees or with having refused or neglected to perform his official duties, an information charges that the defendant knowingly, wilfully and intentionally failed, neglected and refused to perform her duties, but the record shows that defendant performed her duties, such an information was properly dismissed by the district eourt.</p> <p>2. Where an information alleges that defendant knowingly, wilfully and intentionally charged and collected large sums of money for her services as clerk of a school board, in addition to the salary allowed her by law, but it appears that such sums of money were paid to her under a contract for services independent of her duties as said clerk, sec. 7459, Rev. Codes, does not apply.</p> <p>3. See. 7459, Rev. Codes, in so far as it relates to the performance of official duties, is not designed to cover acts of officers amounting to a misfeasance, and such acts are not within the purview of said section. The section is aimed at nonfeasances, that is, failures on the part of officers to act at all, where an act is required by law.</p> <p>[As to removal of officers for cause, see note in 135 Am. St. 250.]</p>

Hon. Chas. O. Stockslager, Judge. The facts in the above case are substantially the same as in the case of Corker v. Cowen, ante, p. 213, 164 Pac. 85. Clerks of school boards are not permitted to enter into any other agreements or allowances for compensation, nor be pecuniarily interested in any other contract made by the board (Sess. Laws 1911, p. 507, sec. 58g), and they are not permitted to collect anything other than allowed by law and fixed.

<p>APPEAL from the District Court of the Fourth Judicial District, for Twin Falls County. Hon. Wm. A. Babcock, Judge.</p> <p>Action to enjoin sale of mortgaged property. Judgment for plaintiffs.</p> <p>Possession of personal property is mere prima facie evidence of ownership. If the holder of the property has recently come from an adjoining state, there may be a mortgage upon the property in that state, and a purchaser or creditor must exercise his diligence by inquiring there whether the property is encumbered. (Jones on Chattel Mortgages, 260A; Studebaker Bros. Co. v. Man, 13 Wyo. 358, 110 Am. St. 1001, 80 Pac. 151; Shapard v. Hynes, 104 Fed. 449, 45 C. C. A. 271, 52 L. R. A. 675; Jones v. North. Pac. Fish & Oil Co., 42 Wash. 332, 114 Am. St. 131, 84 Pac. 1122, 6 D. R. A., N. S., 940.)</p> <p>The removal of a mortgagor from town or county in which he resided when the mortgage was executed and where it was duly recorded, and the taking of the mortgaged property with him does not invalidate the record of the mortgage or necessitate the recording of it again in the town or county to which he has moved. (Jones on Chat. Mo.rt., sec. 260; Brigham v. Weaver, 6 Cush. (60 Mass.) 298; Barrows v. Turner, 50 Me. 127; Hoit v. Bemick, 11 N. H. 285; Pease v. Odenkirchen, 42 Conn. 415; Elson v. Barrier, 56 Miss. 394; Cool v. Boche, 20 Neb. 550, 31 N. W. 367; Grand Island Banking Co. v. Frey, 25 Neb. 66,13 Am. St. 478, 40 N. W. 599; Hudmon v. Du Bose, 85 Ala. 446, 5 So. 162, 2 L. R. A. 475; Griffith v. Morrison, 58 Tex. 46; Keenan v. Stimson, 32 Minn. 377, 20 N. W. 364; Harris v. Allen, 104 N. C. 86, 10 S. E. 127; First Nat. Bank v. Weed, 98 Mich. 357, 373, 50 N. W. 864; Bailey v. Costello, 94 Wis. 87, 68 N. W. 663; Farmers & Merchants’ State Bank v. Sutherlin, 93 Neb. 707, Ann. Cas. 1914B, 1250, 141N. W. 827, 46 L. R. A., N. S., 95.)</p> <p>The law of the place of contract, when this is also the place where the property is, governs as to the nature, validity, construction and effect of a mortgage which will be enforced in another state, as a matter of comity, although not executed or recorded according to the requirements of the law of the latter state. (Jones on Chat. Mort., 5th ed., sec. 299; Blyth & Fargo Co. v. Houtz, 24 Utah, 62, 66 Pac. 611; Handley v. Harris, 48 Kan. 606, 30 Am. St. 322, 29 Pac. 1145, 17 L. R. A. 703; Bamsey v. Glenn, 33 Kan. 271, 6 Pac. 265; Douglas v. Douglas, 22 Ida. 336, 125 Pac. 796.)</p> <p>The Keystone Driller Co. practically waived their lien as against the purchaser, Daniel E. Regan, as they knew of the removal of the property from Missouri to Idaho, and knew that the property was located in Twin Falls, Idaho, for a period of over two years, during which time they had failed to file their mortgage for record in Twin Falls county. (Adams v. Fellers; 88 S. C. 212, 70 S. E. 722, 35 L. R. A., N. S., 385; Pennington County Banlc v. Batman, 87 Neb. 25,, 126 N. "W. 654; F. E. Creelman Lumber Co. v. LesL, 73 Ark. 16, 3 Ann. Cas. 108, 83 S. W. 320.)</p> <p>It was through the fault of appellant that the respondent Moore was able to have as to this property all the indicia of ownership in Twin Falls county, and by reason of his indicia of ownership the respondent Regan had a right to believe that Moore could legally part with title. (Hare v. Young, 26 Ida. 682, 146 Pac. 104.)</p>

Dunn, one of the Judges of the Eighth Judicial District. As a general rule, a judge cannot make orders in a cause pending in a court outside of the limits of his territorial jurisdiction. (23 Cyc. 560.) The legislature of Idaho has conferred no power upon a judge to hear a motion or to take any steps in a cause pending in another district while resident in and acting in his own district. The only two sections of the codes pertinent on this question are secs. 2886 and 3894.

Hon. Chas. O. Stockslager, Judge. Suit to recover the cost of construction of bridges over canals of defendant. Judgment for defendant. See. 2477, U. S. Rev. Stats., reads: “The right of way for the construction of highways over the public lands not reserved for public purposes is hereby granted,” and, as long as the land is public land, a mere declaration by the legislature that certain section lines are highways is sufficient to establish them as such.

Hon. Charles P. McCarthy, Judge. Action to quiet title to certain real property, brought under sec. 4538, Rev. Codes. From a judgment for defendant, plaintiff appeals. The giving of the trustee deed and mortgage by the Boise State Bank was unauthorized. The board of directors of the bank did not meet pursuant to law at the time the mortgage and trustee deed were acted upon.

Hon. J. J. Guheen, Judge. Prosecution for murder. From a judgment of conviction, defendant appeals. The court allowed the state, over the objection of the defendant, to cross-examine the defendant upon matters not testified to upon direct examination, which was reversible error.

<p>APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. William W. Woods, Judge.</p> <p>On application of William Priest and Marie Priest, writs of habeas corpus were issued out of this court for William Priest and Ruth Priest, minor children of said applicants, and made returnable in the District Court of the First Judicial District. Appeal is taken from the judgment of that court ordering the children returned to their parents.</p> <p>The children’s welfare is the guiding star. (Adrino v. Yates, 12 Ida. 618, 87 Pac. 787; Schütz v. Roenitz, 86 Wis. 31, 39 Am. St. 873, 56 N. W. 194, 21 L. R. A. 483; Jacob v. Sheets, 99 Ind. 328; In re Hamilton, 66 Kan. 754, 71 Pac. 817; Filbert v. Schroeder, 37 Neb. 571, 56 N. W. 307; Rice v. Rice, 21 Tex. 58; In re Hickey, 85 Kan. 556, 118 Pae. 56, 41 L. R. A., N. S., 564; In re Sharp, 15 Ida. 120, 96 Pae. 563,18 L. R. A., N. S., 886.)</p> <p>The probate court of Shoshone county made an order removing the Children’s Home Finding and Aid Society from its guardianship, ex parte, and without in any manner notifying the guardian of such proceedings. Before this order could be binding on the society it would be necessary for the children to be in Shoshone county at the time of the filing of the petition; there must be a complaint to the probate court and a showing that the children are not being properly cared for; the guardian must have a reasonable notice of the proceeding. {In re Sharp, 15 Ida. 120, 96 Pac. 563, 18 L. R. A., N. S., 886; 1909 Sess. Laws, sec. 1, subn. (d), p. 39.)'</p> <p>Under sec. 2703, Rev. Codes, the guardian could consent to the adoption of the children, since the parents had been deprived of the children on account of their neglect of the children and their immoral conduct. {In re McRae, 189 N. T. 142, 12 Ann. Cas. 505, 81N. E. 956.)</p> <p>The jurisdiction of the supreme court in issuing a habeas corpus writ pursuant to its constitutional and statutory authority is not limited to the jurisdiction of the district where the children are. {People v. Booker, 51 Cal. 317.)</p> <p>The probate courts are courts of original jurisdiction in the matter of guardianship {In re Sharp, 15 Ida. 120, 96 Pac. 563, 18 L. R. A., N. S., 886; secs. 3840, 3842, 3810; Rev. Codes), and courts of record. {Dewey v. Schreiber Implement Co., 12 Ida. 280,85 Pac. 921.)</p> <p>An order for adoption is not a judgment. {In re Williams, 102 Cal. 70-76, 41 Am. St. 163, 36 Pac. 407; Estate of Camp, 131 Cal. 469, 82 Am. St. 371, 63 Pac. 736; Estate of Stevens, 83 Cal. 322,17 Am. St. 252, 23 Pac. 379.)</p> <p>It is only in cases of the most imperative necessity where it appears that serious and permanent detriment to the rights and interest of the child are threatened, that courts will deprive the father and mother of the custody of the children. {In re Wilson (N. J.), 55 Atl. 160, 162; Markwell v. Pereles, 95 Wis. 406, 69 N. W. 798; Terry v. Johnson, 73 Neb. 653, 103 N. W. 319; Van Auken v. Wieman, 128 Iowa, 476, 104 N. W. 464.)</p> <p>Where the evidence is conflicting, a finding will not be disturbed. {Cameron Lumber Co. v. Stack-Gibbs Lumber Co., 26 Ida. 626, 144 Pae. 1014; Jensen v. Bumgarner, 28 Ida. 706, 156 Pac. 114; Pomeroy v. Gordan, 25 Ida. 279, 137 Pac. 888; Wolf v. Eagleson, 29 Ida. 177, 157 Pac. 1122.)</p> <p>An order appointing a guardian, or for the custody of a child, is temporary. (29 Cyc. 164; Turner v. Turner, 93 Miss. 167, 46 So. 413; McGough v. McGough, 136 Ala. 170, 33 So. 860; Patten v. Shapiro, 154 S. W. 687.)</p> <p>Due process of law demands notice and an opportunity to be heard. {Mix v. County Commrs., 18 Ida. 695,112 Pac. 215, 32 L. R. A., N. S., 534; Eagleson v. Rubin, 16 Ida. 92, 100 Pac. 765; Ex parte Martin, 29 Ida. 716, 161 Pac. 573; Scott v. McNeal, 154 U. S. 34-51, 14 Sup. Ct. 1108, 38 L. ed. 896; Sullivan v. People, 224 111. 468, 79 N. E. 695; Ex parte Livingston, 15Í App. Div. 1, 135 N. Y. Supp. 328.)</p>

Hon. J. M. Stevens, Judge. Action to quiet title to use of waters.

Hon. James R. Bothwell, Judge. Action to foreclose real estate mortgage. Judgment for plaintiffs. Carey Act operating companies are mutual irrigation companies, and each share of stock represents the interest that the holder thereof has in such corporation. (Hobbs if.

Hon. Charles P. McCarthy, Judge. Motion to dismiss on the ground that appeal was taken prematurely. The record filed for the purpose of appeal imports absolute verity. (4 Corpus Juris, sec. 2242, p. 496; In re Pichoir’s Estate, 139 Cal. 694, 70 Pac. 213, 215, 73 Pac. 604.) The affidavits of counsel and the deputy clerk of the district court are no proper part of the record, will not be considered and will be stricken on motion.

<p>APPEAL from the District Court of the Ninth Judicial District, for Fremont County. Hon. James G. Gwinn, Judge.</p> <p>Action to recover wages. From a judgment for plaintiff, defendant appeals.</p> <p>Counsel cite no authorities on point decided.</p>

<p>Fraud — Scienter—Evidence.</p> <p>1. The evidence in this case examined and held to be insufficient to sustain the allegations of the answer wherein fraud is charged.</p> <p>2. In order to establish fraud in a case of this kind it must be shown in addition to falsity of representations of a material fact, or facts, upon which the party to whom they were made innocently acted to his injury, that the party making them knew them to be false or that he made them recklessly, without knowledge of t'heir truth or falsity.</p> <p>[As to what is sufficient proof of fraud, see note in 65 Am. Dec. 157.]</p>

<p>APPEAL from the District Court of the Seventh Judicial District, for Washington County. Hon. Chas. P. McCarthy, Presiding Judge.</p> <p>Petition for writ of review. Prom a judgment granting part of the relief sought, the petitioner appeals.</p> <p>This revenue act must be read and construed as a whole, and the whole must be interpreted to give meaning to the intent of the legislature. It is true that in sec. 173 there are two different phrases which seem at first reading to limit the real estate to that within the county. Take the whole act, secs. 4,173-180, and construe them together, and it clearly appears that it was not the intention that there should be any double taxation or lack of uniformity. Read the sections 161-171 on taxation of migratory stock. There the same clear intent appears.</p> <p>In the sections on migratory stock, they provide for an adjustment between the counties of the tax for the year on such stock. The legislature in those sections properly use the words “counties” in fixing status of the property. We find them immediately taking up the question of taxation of banks and bank shares and using their same word “county,” and using it in a sense which is clearly at variance with the evident intent and purpose which was in the minds of the legislators.</p> <p>“Whenever a statute contains a clause which is directly contrary to the legislative intent, as collected from the whole act, such clause will be treated as surplusage and will be disregarded in the proper construction of the act.” {State v. Porch, 26 Ida. 755, 760, 146 Pac. 110.)</p> <p>Statutes will be construed with the view of ascertaining the intent of the law-making power and giving force and meaning to the language used. {Idaho Mutual Co-operative Ins. Co. v. Myer, 10 Ida. 294, 77 Pac. 628; Greathouse v. Heed, 1 Ida. 494; Empire Copper Co. v. Henderson, 15 Ida. 635, 99 Pae. 127; In re Bossner, 18 Ida. 519, 110 Pac. 502; Sutherland on Statutory Construction, sec. 347.)</p> <p>A writ of review cannot be extended further than to determine whether the inferior tribunal, board or officer has regularly pursued its authority or has exceeded its jurisdiction (Rev. Codes, sec. 4968), and it is equally well established that the question of jurisdiction is to be determined by the terms of the statute, and that the question of constitutionality of the statute cannot be reviewed on certiorari. {Adleman v. Pierce, 6 Ida. 294, 55 Pac. 658; Wright v. Kelley, 4 Ida. 624, 43 Pac. 565; McComiell v. State Board of Equalization, 11 Ida. 652, 83 Pae. 494.)</p> <p>Authorities are very meager which construe or define the term “uniformity” as applied to taxation. But it would seem that both the better reasoning and the weight of authority confines the application of the term to the rate of taxation and not to the mode of assessment. (People ex rel. Iron Silver Mining Go. v. Henderson, 12 Colo. 369, 21 Pae. 144; Sherlock v. Wirmetka, 68 111. 530; People v. Whyler, 41 Cal. 351.)</p>

Hon. Ed. L. Bryan, Judge. Appellant was convicted of the crime of grand larceny, and appealed from the judgment and order overruling a motion for a new trial. The identity of the cattle in the case at bar must be established. (Newton v. State (Tex. Cr.), 48 S. W. 507; mitigas v. State, 55 Neb. 586, 75 N. W. 1110; Shelby v. State (Tex.

<p>Change op Venue — Denial—Appeal—Moot Case — Costs—Dismissal.</p> <p>Held, where an appeal, from an order of the district court, denying a motion for a change of venue and continuing the cause for the term, is prosecuted upon the ground that' the trial judge is disqualified, and where upon the hearing of such appeal it appears that such disqualification has ceased to exist because such trial judge is no longer an incumbent in office, this court will take judicial notiee of that fact and the appeal will be dismissed, for the reason that no actual relief ean now be afforded other than the awarding of costs, and costs being merely incidental to a judgment, do not constitute a matter of controversy sufficient to warrant an appellate court in entertaining an appeal.</p> <p>[As to change of venue, see note in 74 Am. Dec. 241.]</p>

<p>APPEAL from the District Court of the Fourth Judicial District, for Cassia County. Hon. Edward A. Walters, Judge.</p> <p>Action for damages. Motion for a change of venue denied and plaintiff appeals.</p>

<p>Drainage Act on 1913 — Nonappealable Order.</p> <p>1. An order of the district court declaring a proposed drainage district duly organized, under the provisions of section 4, chap. 16, Sess. Laws 1913, is not an appealable order under section 4800, Rev. Codes, since it is not a final order, and a further hearing upon the question in the district court is provided by the drainage act of 1913, whieh also provides for an appeal from the order of the court confirming the report of the commissioners, upon which appeal the question sought to be raised in this appeal might properly be raised.</p> <p>2. Held, that chap. 16, Sess. Laws 1913, and amendments thereto, •providing for the establishment of drainage districts, does not provide for an appeal from an order of the district court declaring a district duly organized, after the first hearing upon the petition for such organization, and such preliminary order of the district court does not finally adjudicate any of the rights involved in proceedings under the provisions of said chapter.</p> <p>[As to what judgments and orders may be appealed from, see note in 20 Am. St. 173.]</p>

Original application by R. W. Katerndahl for writ of mandate. The court- may go back of the certificate or enrolled bill and investigate the journals of the various Houses of the legislature to ascertain whether the law was really passed and what the law really is. (Weill v. Kenfield, 54 Cal. Ill; Oakland Paving Go. v. Hilton, 69 Cal. 479, 481, 11 Pac. 3; People v. Dunn, 80 Cal. 211, 13 Am.

Hon. C. O. Stoekslager, District Judge. Action for injunction. From a judgment for the plaintiffs, defendants appeal. It is our contention under sec. 3406, Rev. Codes, relating to chattel mortgages, that Corum caused the crops in dispute to be sown, and retained an interest therein, to the amount of the mortgage of appellant. (Collins v..

Hon. Carl A. Davis, Judge. Appeal from an order setting aside clerk’s default. The appeal is not taken from an appealable order under sec. 4807, Rev. Codes, or the amendments thereto. (Sess. Laws 1915, p. 193; Maple v. Williams, 15 Ida. 642, 98 Pac. 848; Freeman v. Ambrose, 12 Wash. 1, 40 Pac. 381; Beitmeir v. Siegmund, 13 Wash. 624, 43 Pae. 878.)

Hon. P. J. Cowen, Judge. Defendant was convicted of murder in the second degree. Appeal from the judgment and order denying motion for new trial. Before a legal conviction can be had, the state must have established the accused person’s guilt of the crime charged by legal evidence and beyond reasonable doubt.

Writ issued and hearing had on return thereto. “This court cannot weigh the evidence on habeas corpus, but if it wholly fails to disclose a public offense for which the prisoner may be held, on… Held: on preliminary examination, then the petitioner should be entitled to his discharge. ’ ’ {In re Heigho, 18 Ida. 566, Ann.

<p>APPEAL from the District Court of the Fourth Judicial District, for Cassia County. Hon. Edward A. Walters, Judge.</p> <p>Action to recover damages for procuring an attachment wrongfully, maliciously and without probable cause. Judgment for plaintiffs.</p> <p>One cannot set up the volume of business done by others to establish the amount that he himself might or would have done. {O’Grady v. Julian, 34 Ala. 88; Smith v. Eubanks, 72 Ga. 280.)</p> <p>At no time did plaintiffs show that this attachment prevented them from completing any work by them undertaken. They did not seek to show what profits they would have made, but endeavored to speculate upon what they might have made. Such hoped-for profits are too remote and speculative to be considered as proper elements of damage. (2 Greenleaf on Evidence, pars. 256-261; Barnes v. Berendes, 139 Cal. 32, 69 Pac. 491, 72 Pac. 407; Pacific Steam W. Co. v. Alaska etc. Assn., 138 Cal. 632, 72 Pac. 161; Beck v. West, 87 Ala. 213, 216, 6 So. 70; Howard v. Stillwell etc. Co., 139 U. S. 199, 11 Sup. Ct. 500, 35 L. ed. 147; Livingston v. Exum, 19 S. C. 223; St ell v. Pascal, 41 Tex. 640; Bingham v. City of Walla Walla, 3 Wash. 68, 13 Pac. 408.)</p> <p>“Anticipated profits dependent upon future contingencies cannot be included in damages.” {Bergen v. City of New Orleans, 35 La. Ann. 523; Martin v. Beets, 102 Cal. 55, 41 Am. St. 151, 36 Pac. 368; Crymble v. Mulvaney, 21 Colo. 203, 40 Pac. 499; O’Neill v. Johnson, 53 Minn. 439, 39 Am. St. 615, 55 N. W. 601; Anderson v. Taylor, 56 Cal. 132, 38 Am. Rep. 52; Camper v. Elippen, 61 Minn. 353, 52 Am. St. 604, 63 N. W. 737.)</p> <p>“Where a stock of goods is held under a wrongful attachment, loss of profits and business credit are too remote to be considered.” {Lowenstein v. Monroe, 55 Iowa, 82, 7 N. W. 406.)</p> <p>“It was error to permit plaintiff to show that prior to the attachment his business had been steadily increasing but decreased thereafter.” {Zinn v. Rice, 161 Mass. 571, 37 N. E. 747.)</p> <p>The plaintiffs had wholly failed to establish upon the part of defendant either malice or want of probable cause in the suing out of attachment — both indispensable to a recovery by plaintiffs. (Stewart v. Sonnéborn, 98 U. S. 187, 25 L. ed. 116; Vesper v. Crane Co., 165 Cal. 36, 130 Pac. 876, L. R. A. 1915A, 541; Mitchell v. Silver Lake Lodge, 29 Or. 294, 45 Pac. 789; Hilfrich v. Meyer, 11 Wash. 186, 39 Pac. 455.)</p> <p>While malice may be presumed from a want of probable cause, yet such want may not be presumed, but must be clearly proven. (Collins v. Shannon, 67’Wis. 441, 30 N. W. 730; Durr v. Jackson, 59 Ala. 203.)</p> <p>The officer acquired no lien. The officer levying must take actual possession of personal property. (3 Standard Ency. Procedure, 488, 511; West Coast S. F. Co. v. Wulff, 133 Cal. 315, 85 Am. St, 171, 65 Pae. 622; Johnson v. Gorham, 6 Cal. 195, 65 Am. Dec. 501.)</p> <p>A levy on personal property capable of manual delivery must be had by taking the property into custody. (Dutertre v. Driad, 7 Cal. 549; Herron v. Hughes, 25 Cal. 555, 563; Bagley v. Ward, 37 Cal. 121, 99 Am. Dec. 256; Throop v. Maiden, 52 Kan. 258, 34 Pac. 801.)</p> <p>“If the acts required by the statute are not performed by the officer, there is no levy of the writ.” (First Bank v. Sonnelitner, 6 Ida. 21, 51 Pae. 993.)</p> <p>The lien is lost if the property is left with the defendant. (3 Standard Ency. Procedure, 512, 513, and citations; Cup-pies v. Level, 54 Wash. 299, 103 Pac. 430, 23 L. E. A., N. S., 519.)</p> <p>“In an action to recover for the wrongful and malicious attachment of the plaintiffs’ goods where injury to their credit is alleged, evidence of the amount of their business and profits and credit and the effect upon the latter is admissible.” (Hayes v. Union Mercantile Co., 27 Mont. 264, 70 Pac. 975.)</p> <p>Loss of credit, business and profits caused by the wrongful, wanton and malicious issuance and levy of a writ of attachment may be recovered as damages in an action to recover for such malicious attachment. (Allison v. Chandler, 11 Mich. 542; Lambert v. Haskell, 80 Cal. 611, 22 Pac. 327; Tranwick v. Martin-Brown Co., 79 Tex. 46,14 S. W. 564; Western News Co. v. Wilmarth, 33 Kan. 510, 6 Pac. 786; Donnell v. Jones, 17 Ala. 689, 52 Am. Dec. 194; Goldsmith v. Picard, 27 Ala. 142; Lawrence v. Hagerman, 56 111. 68, 8 Am. Rep. 674; 1 Shinn, Attachment and Garnishment, par. 379; Waples on Attachment and Garnishment, par. 1010; 6 Corpus Juris, 540, pars. 1321-1323; Schwartzberg v. Central Am. State Bank, 84 Kan. 581, 115 Pac. 110.)</p> <p>It was not essential that the officers touch or remove the machine for the levy to be valid. (Battlecreek Valley Bank v. Madison First Nat. Bank, 62 Neb. 825, 88 N. W. 145, 56 L. R. A. 124; Gaines v. Becker, 7 111. App. 315; Morse v. Smith, 47 N. H. 474; Nighbert v. Hornsby, 100 Tenn. 82, 66 Am. St. 736, 42 S. W. 1060.)</p> <p>“It is sufficient if the property is under the control of the officer, and he may even leave the debtor to hold as his agent” (Corniff v. Cook, 95 Ga. 61, 51 Am. St. 55, 22 S. E. 47; Baldwin v. Jackson, 12 Mass. 31; Treadwell v. Brown, 43 N. H. 290; Train v. Willington, 12 Mass. 495.)</p> <p>Want of probable cause in itself raises a presumption of malice. (Brand v. Hinchman, 68 Mich. 590, 13 Am. St. 362, 36 N. W. 664; Murphy v. Hubbs, 7 Colo. 541, 49 Am. Rep. 366, 5 Pac. 119; Southwestern B. B. Co. v. Mitchell, 80 Ga. 438, 5 S. E. 490; Holiday v. Sterling, 62 Mo. 321; McNam.ee v. Nesbitt, 24 Nev. 400, 56 Pac. 37; Durr v. Jackson, 59 Ala. 203; Collins v. Shannon, 67 Wis. 441, 30 N. W. 730; Parks v. Young, 75 Tex. 278, 12 S. W. 986; Toth v. Greisen (N. J.), 51 Atl. 927; 2 Greenleaf on Evidence, sec. 453; Martin v. Corscadden, 34 Mont. 308, 86 Pac. 33.) •</p> <p>“If the attachment is dissolved, this is conclusive of the right of the attachment defendant to recover actual damages, although the attachment was taken out without malice and under legal advice.” (McDaniel v. Gardner, 34 La. Ann. 340; Kennedy v. Meacham, 18 Fed. 312, 322.)</p>

Hon. E. A. Walters, Judge. Action upon a contract of insurance. Judgment for plaintiff. The board not having the power to make such a contract could not create a liability against the district, and they could be prevented from paying an assessment, particularly if beyond the statutory limitation.

<p>Promissory Note — Assignment—Real Party in Interest.</p> <p>1. One who holds a note hy assignment for the purpose of collection is the real party in interest in his own name.</p> <p>2. An indorsee, who is in possession of a promissory note, is the “holder” thereof, and may sue thereon in his own name.</p> <p>[As to who is a bona fide holder of note, see notes in 9 Am. Dec. 272; 44 Am. Dec. 698.]</p>

Hon. Edward A. Walters, Judge. Prosecution for the crime of transporting intoxicating liquors into a prohibition district. Judgment of conviction, from which defendant appeals. “Spirituous liquors are property, and do not cease to be so when their sale is prohibited.” (Preston v. Drew, 33 Me. 558, 54 Am.

<p>APPEAL from the District Court of the Seventh Judicial District, for Washington County. Hon. Ed. L. Bryan, Judge.</p> <p>Defendant was convicted of having violated see. 6872, Rev. Codes, by herding, grazing and pasturing sheep upon a cattle range.</p> <p>The statute is so ambiguous and uncertain as to render it void. (Louisville & N. R. Co. v. Railroad Commission, 19 Fed-. 679; Jamvin v. State, 42 Tes. Cr. 631, 96 Am. St. 821, 51 S. -W. 1126, 62 S. W. 419, 53 L. R. A. 349; Louisville & Nashville R. R. Co. v. Commomvealth, 99 Ky. 132, 59 Am. St. 457, 35 S. W. 129, 33 L. R. A. 209; Chicago <& N. W. Ry. v. Ley, 35 Fed. 866, 1 L. R. A. 744; Ex parte-Jackson, 45 Ark. 158.)</p> <p>The police power of the state has its limitations, and in order to be valid, the law must be founded upon some reason recognized as coining within the police power. (Lawton v. Steele, 152 U. S. 133, 14 Sup. Ct. 499, 38 L. ed. 385.)</p> <p>Again, this statute is void for uncertainty, in that it fails to define a cattle range or fix the boundaries thereof. (Holcomb v. Keliher, 5 S. D. 438, 59 N. W. 227.)</p> <p>If the court should attempt to give a definition upon this question, and therefore aid out this indefinite statute, it would be judicial legislation, and the crime would then be defined by the court and not by the statute. (Tick Wo v. Hopkins, 118 U. S. 356, 6 Sup. Ct. 1064, 30 L. ed. 220.)</p> <p>Sec. 6872, Rev. Codes of Idaho, is in direct conflict with the act of Congress of Feb. 25, 1885, and therefore null and void. (McGinnis v. Friedman, 2 Ida. 393, 17 Pac. 635; United States v. Douglas-Willm Sartoris Co., 3 Wyo. 287, 22 Pae. 92.)</p> <p>The statute has been held constitutional, and has been enforced. (State v. Horn, 27 Ida. 782, 152 Pac. 275; State v. Omaeckevviaria, 27 Ida. 797, 152 Pac. 280.)</p>

Hon. Ed. L. Bryan, Judge. Action on promissory note in which respondents intervened in order to determine priority of attachment liens. Judgment for intervenors.

Hon. F. J. Cowen, Presiding Judge. Motion to dismiss the appeal for failure to file transcript within the time prescribed by rule 26 of the rules of this court.

Hon. William W. Woods, Judge. Appeal from an order granting a change of venue on the ground of the prejudice of the judge.

<p>New Trial — Transcript on Appeal.</p> <p>1. The aetion of the trial court in overruling motion for new trial, based in part upon the minutes of the court, cannot be reviewed where the record of appeal fails to contain a transcript of the evidence duly settled by the trial judge.</p> <p>2. A transcript of the evidence not duly certified and settled by the trial judge cannot be considered on appeal, either from the judgment or from the order overruling the motion for new trial.</p> <p>[As to what proceedings are inconsistent with motion for new trial so as to waive right to move, see note in Ann. Cas. 1914B, 612.]</p>

<p>Public Street — Obstruction — Permit for — Revocation — Insufficient Complaint.</p> <p>1. The holder of a permit to install an obstruction in a public street or thoroughfare for private purposes acquires no property or contractual right by reason of the issuance to him of such permit, and whenever the city authorities deem it necessary as a police regulation to vacate and revote such permit, the holder thereof has no alternative, but must comply with the order of revocation.</p> <p>2. Held, that' the aetion of the trial court in sustaining the demurrer to the complaint and dismissing the aetion was not error.</p> <p>[As to right of private person to obstruct street temporarily, see note in 1 Am. St. 840.]</p>

<p>APPEAL from tbe District Court of the Seventh Judicial District, for Canyon County. Hon. Chas. P. McCarthy, Presiding Judge.</p> <p>Action to recover the sum of $573.75 and to apportion cost of bridges. Judgment for defendant.</p> <p>The highway board is substituted for and takes the place of the board of county commissioners with reference to highways within the territory embraced in the district, and it would appear that the power of the board of county commissioners ceases so far as such district highways are concerned. (Reinhart v. Canyon County, 22 Ida. 348, 353, 125 Pae. 791.)</p> <p>The question as to whether or not the county should reimburse the highway district because the construction of such bridges for which the bonds were voted was not a benefit to the highway district, is to be determined as provided by sec. 16 of the act. (Reinhart v. Canyon County, supra.)</p> <p>There is no question as to the uniformity of the assessment on any class of subjects in the case at bar. This tax was not levied for governmental purposes, but for the improvement of highways according .to benefits. (Hettinger v. Good Road Dist. No. 1, 19 Ida. 313, 113 Pac. 721; Elliott v. McCrea, 23 Ida. 524, 130 Pac. 785; Independent Highway Dist. No. 2 v. Ada County, 24 Ida. 416, 134 Pac. 542.)</p> <p>A statute which contains no provision for determining benefits is inoperative. (2 Elliott on Roads and Streets, p. 43, sec. 693, note 51; Road Improvement Dist. v. Glover, 89 Ark. 513, 117 S. W. 544; Hettinger v. Good Road Dist. No. 1, 19 Ida. 313, 113 Pae. 721.)</p> <p>The theory upon which assessments are sustained is that the party assessed is locally and peculiarly benefited over and above the ordinary benefits which, as one of the community, he receives in all such improvements. (Page & Jones on Taxation by Assessments, p. 21; Wilson v. Board of Trustees of Sanitary Distnct of Chicago, 133 111. 443, 27 N. E. 203.)</p> <p>Therefore, such benefits are the only benefits that are susceptible of apportionment herein, and if the plaintiff has attempted, as it has in fact attempted in this case, to apportion general benefits, it is basing its action upon the wrong principle.</p>

<p>APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. William W. Woods, Judge.</p> <p>Action to recover for labor performed and services rendered in cutting and hauling certain cedar poles. Default for failure to answer was entered and from a judgment in favor of plaintiff and an order denying a motion to vacate the default, defendant appeals.</p> <p>Statutes relating to the vacating of default judgments should receive a most liberal construction. (6 Ehey. PI. & Pr., 154; Walsh v. Boyle, 94 Minn. 437,103 N. W. 506; Lemon v. Hubbard, 10 Cal. App. 471, 102 Pac. 554; Hull v. Vining, 17 Wash. 352, 49 Pac. 537.)</p> <p>A default was set aside by this court in the following cases: Pease v. County of KootenaA, 7 Ida. 731, 65 Pac. 432; Estate of Pittock, 15 Ida. 47, 96 Pae. 212; Shumake v. Shumake, 17 Ida. 649, 107 Pac. 42; Parsons v. Wrble, 19 Ida. 619, 115 Pac. 8.</p> <p>Every reasonable doubt in such cases will be resolved in favor of a trial upon the merits. (Humphreys v. Idaho Gold Mines Dev. Co., 21 Ida. 126, 120 Pac. 823, 40 L. R. A., N. S., 817; ColemaA% v. Security Savings Soc., 57 Wash. 675, 107 Pac. 842; Reitmevr v. Siegmu-nd, 13 Wash. 624, 43 Pae. 878; Hermanee v. Cunningham, 49 Neb. 897, 69 N. W. 311; Gris-wold Linseed Oil Co. v. Lee, 1 S. D. 531, 36 Am. St. 761, 47 N. W. 955; Horton v. Neta Pass Gold & Silver Min. Co., 21 Nev. 184, 27 Pac. 376, 1018; Howe v. Coldren, 4 Nev. 171; Rosebud Lumber Co. v. Serr, 22 S. D. 389; 117 N. W. 1042; Ord/may v. Suchard, 31 Iowa, 481.)</p> <p>The laches and delays in this ease do not constitute any mistake, surprise, inadvertence or any neglect which can be excused. Neglect to be in a position to answer seventy-six days after the defendant had been served with summons and complaint does not come within neglect which should be excused by a court, nor does it show diligence on the part of appellant. The appellant does not show that it made any mistake, or that it was surprised. It was not misled or deceived in any way. (Morbeck v. Bradford-Kennecby Co., 19 Ida, 83, 113 Pac. 89.)</p> <p>There is no press of business shown which is excusable, and no excuse for the laches in this case is presented by the showing of the appellant. (Bailey v. Taaffe, 29 Cal. 422, 423; Bowen v. Webb, 34 Mont. 61, 85 Pae. 739; Scilley v. Babcock, 39 Mont. 536, 104 Pae. 677; Lovell v. Willis, 46 Mont. 581, Ann. Cas. 1914B, 587, 129 Pae. 1052, 43 L. R. A., N. S„ 930; Brumbaugh v. Stockman, 83 Ind. 583; Church v. Lacy, 102 Iowa, 235, 71 N. W. 338; Hall v. Whittier, 20 Ida. 120, 116 Pac. 1031.)</p> <p>There is no justice in permitting one party to obtain an undue or unfair advantage .through neglect or mistake of the other’s attorney. (Jones v. Vane, 11 Ida. 353, 363, 82 Pac. 110.)</p>

<p>Sewer Construction Contract With City — Breach op Contract— Completion op Contract by City — Measure op Damages — Salaries of City Officials as Item of Damage.</p> <p>1. Where a party is damaged by breach of a construction contract by the failure of the contractor to complete it, the measure of damages is the cost necessarily and reasonably incurred in completing the contract, whether he does the work himself or employs others to do it for him.</p> <p>2. Where sewers have been constructed for a municipality and accepted upon condition that the contractor would, upon notice, repair or relay any portion of said sewer should the same prove to be defective, and where thereafter a portion of the same is found to be defective and notice thereof is duly given and t'he municipality is compelled to repair and complete the system, it is entitled to recover, upon the bond, all amounts necessarily expended upon the portion of the work included'in the notice, for materials, labor and salaries of regularly employed officials actually engaged upon such work.</p> <p>3. Held, that the judgment in this case must be modified, so as to include only such sums for cost of materials, labor and salaries of regularly employed city officials, actually engaged upon the work, as were devoted to the portion of the work included in the notice.</p> <p>[As to validity of statute providing for recovery of attorneys’ fees in action for collection of special assessment, see note in Ann. Cas. 1912A, 692.]</p>

<p>APPEAL from the District Court of the Eighth Judicial District, for Bonner County. Hon. R. N. Dunn, Judge.</p> <p>Action on promissory note. Judgment for defendant.</p> <p>Parol agreements, varying the terms of the subscription to stock, and the note such as testified to by the respondent are inadmissible. (American Gas etc. Go. v. Wood, 90 Me. 516, 38 Atl. 548, 43 L. R. A. 449, and notes; Hurt v. Ford, 142 Mo. 283, 44 S. W. 228, 41 L. R. A. 823; Williams v. Mt. Hood Ry. etc. Go., 57 Or. 251, Ann. Cas. 1913A, 177, 110 Pae. 490, 111 Pac. 17; Shriner v. Meyer, 171 Ala. 112, Ann. Cas. 1913A, 1103, 55 So. 156; Loomis v. New York Central etc. R. Go., 203 N. Y. 359, Ann. Cas. 1913A, 928, 96 N. E. 748.)</p> <p>Whether respondent contends that Selzer & Taylor were principals or agents of the Western States Life Insurance Co., a conditional or contingent delivery could not be made to them as principals or agents as it would become an absolute delivery. (3 R. C. L. 860, 861, 862.)</p> <p>While a conditional delivery may be shown as between the original parties, parol evidence cannot be introduced to show a conditional delivery except as between tbe original parties. (Burke v. Dulaney, 153 TJ. S. 228, 14 Sup. Ct. 816, 38 L. ed. 700; note, 3 Ann. Cas. 561.)</p> <p>Evidence of oral agreements made prior to the signing of a note and subscription such as this is not admissible to vary the terms of the written agreement, and the note and subscription taken together constitute the written agreement herein. (Fralick v. Mercer, 27 Ida. 360, 148 Pac. 906; Smith v. Wallace National Bank, 27 Ida. 441,150 Pac. 21.)</p> <p>An instrument may be delivered to the payee on condition, the observance of which is essential to its validity. (Rev. Codes, sec. 3473 ; 3 R. C. L. 863, and cases there cited; Beach v. Nevins, 162 Fed. 129, 89 C. C. A. 129, 18 Lr. R. A., N. S., 288; Burke v. Dulaney, 153 U. S. 228, 14 Sup. Ct. 816, 38 L. ed. 700; McFarland v. Sikes, 54 Conn. 250, 1 Am. St. Ill, 7 Atl. 408.)</p> <p>Evidence is properly received that a note executed because of a certain agreement between the payee and maker that until certain acts were done, the transaction should not be deemed completed and the note enforceable. (Hughes v. Grooker, 128 Am. St. 611, 612, note.)</p> <p>By contemporaneous parol agreements, it may be shown that a note executed and delivered is not to be enforced as a present contract, as a defense to a suit upon the note. (Faux v. Fitter, 223 Pa. 568, 132 Am. St. 742, 72 Atl. 891; Kessler v. Parelius, 107 Minn. 224, 131 Am. St. 459, 119 N. W. 1069; Gandy v. Weckerly, 220 Pa. 285, 123 Am. St. 691, 69 Atl. 858, 18 L. R. A., N. S., 434; Carroll v. Nodine, 41 Or. 412, 93 Am. St. 743, 69 Pac. 51; Citizens’ Bank v. Millett, 103 Ky. 1, 82 Am. St. 546, 44 S. W. 366, 44 L. R. A. 664; Sloan v. Gibbes, 56 S. C. 480, 76 Am. St. 559, 35 S. E. 408; Jones on Evidence, 2d ed., secs. 471-495; Ware v. Allen, 128 U. S. 590, 9 Sup. Ct. 174, 32 Li. ed. 563; Smith v. Dotterweich, 200 N. Y. 299, 93 N. E. 985, 33 L. R. A., N. S.. 892; Benton v. Ma/rtin, 52 N. Y. 570.)</p>

<p>APPEAL from the District Court of the Seventh Judicial District, for Adams County. Hon. Ed. L. Bryan, Judge.</p> <p>Action on contract. Judgment for plaintiff.</p> <p>No time being named when respondent was to be paid, it must be taken, as a matter of law, that he was to be paid when he had fully completed his contract and not before. (Waite v. G. E. Shoemaker & Go., 50 Mont. 264, 146 Pac. 736.)</p> <p>'Respondent thus brings himself and his action clearly within the provisions of see. 4212, Rev. Codes.</p> <p>The theory of respondent’s pleading and proof on the trial, was that of action upon an express contract, claiming the performance of conditions precedent thereunder, and on the trial he utterly failed to prove performance of such conditions, but in fact proved the contrary. He failed to support the allegations of his complaint and the trial court should have sustained appellant’s motion for judgment of nonsuit and it was reversible error to deny such motion. (Hannan v. Greenfield, 36 Or. 97, 58 Pac. 888; Young v. Stickney, 46 Or. 101, 79 Pac. 345.)</p> <p>Appellant relied solely for its defense in this action upon the fact that the respondent had not completed his contract with the appellant, and under the pleading and theory of respondent, appellant had full right to rely upon said defense. (First Baptist Church v. Sigwald, 39 Kan. 387, 18 Pac. 289; Bichwrdson v. Investment Go., 66 Or. 353, 133 Pac. 773; Long Creek Building Assn. v. State Ins. Co., 29 Or. 569, 46 Pac 366; Morris v. Hokosonu, 26 Colo. App. 251, 143 Pac. 826.)</p> <p>“A party who has failed to perform his contract in full to deliver logs may recover compensation for the logs delivered according to the contract price, less damages occasioned by his failure to complete the contract.” (Huber v. Blackwell Lbr. Co., 27 Ida. 373, 148 Pac. 903; McDonough v. Evans Marble Co., 112 Fed. 634, 50 C. C. A. 403, 6 R. C. L. 983; Goodwin v. Merrill, 13 Wis. 658; Easton v. Jones, 193 Pa. 147, 44 Atl. 264; Gill v. Johnstown Lbr. Co., 151 Pa. 534, 25 Atl. 120.)</p> <p>A substantial compliance is all that is required from one who contracts with another, and the question as to whether a contract has been substantially performed is generally one of fact. (Pitcairn v. Philip Hiss Co., 113 Fed. 492, 51 C. C. A. 323; Elizabeth v. Fitzgerald, 114 Fed. 547, 52 C. C. A. 321; Fitzgerald, v. La Porte, 64 Ark. 34, 40 S. W. 261; West v. Suda, 69 Conn. 60, 33 Atl. 1015; Bauer v. Hindley, 222 111. 319, 78 N. E. 626; Loh v. Broadway Realty Co., 77 N. J. L. 112, 71 Atl. 112; Johnson v. He Peyster, 50 N. Y. 666; Philip v. Gallant, 62 N. Y. 256; Woodward v. Fuller, 80 N. Y. 312; Nolan v. Whitney, 88 N. Y. 648; Foeller u. Heintz, 137 Wis. 169, 118 N. W. 543, 24 L. E. A., N. S., 350.)</p> <p>Substantial performance is performance except as to unsubstantial omissions, with compensation therefor. (Spence v. Ham, 163 N. Y. 220, 57 N. E. 412, 51 L. E. A. 238; Peterson v. Pusey, 237 111. 204, 86 N. E. 692; Harlan u. Stufflebeam, 87 Cal. 508, 25 Pac. 686; City of St. Charles v. Stockey, 154 Fed. 772, 85 C. C. A. 494.)</p>

Hon. William W. Woods, Judge. Petition for writ of mandate. Peremptory writ issued. Defendants appeal. Before a writ of mandate will issue commanding that certain acts be done, there must be a demand and a refusal. (Price v. Riverside Land Co., 56 Cal. 431; Wilson v. Board of Directors, etc., 138 Cal. 67, 70 Pac. 1059; Oroville & V. R. R. Co. v. Supervisors of Plumas County, 37 Cal. 354; Moseley v. Collins, 133 Ala. 326, 32 So. 131; Lake Erie & W_.

<p>Homestead — Encumbrance op — Joinder op Husband and Wipe — Necessity por.</p> <p>Held, That under sec. 3106, Key. Codes, providing that “No estate in the homestead of a married person, or in any part of the community property occupied as a residence by a married person can be conveyed or encumbered by act of the party, unless both husband and wife join in the execution of the instrument by which it is so conveyed or encumbered, and it be acknowledged by the wife as provided in Chapter 3 of this Title,” an instrument purporting to convey or encumber sueh property or any interest therein, in which the wife does not join, is void.</p> <p>[As to conveyance or encumbrance of homestead by one spouse only, see note in 95 Am. St. 909.]</p>

<p>Irrigation Districts — Assessments—Sale of Lands for Delinquent Assessments — Public Officer — Bes Adjudicata — Findings of Fact.</p> <p>1. Where the steps taken by the officers of an irrigation district in levying assessments and spreading the same upon the assessment-roll, and matters connected therewith, are regular, upon failure to pay the assessment, the right of sale follows.</p> <p>2. The treasurer of an irrigation district' is under an affirmative statutory duty to accept nothing but “lawful money of the United States” in payment of assessment's.</p> <p>3. An agreement whereby a treasurer of an irrigation district is to accept a tender other than “lawful money of the United States,” as provided by statute, is a legal nullity.</p> <p>4. Where an assessment is duly levied by an irrigation district, and the same is unpaid and delinquent, it is the duty of the treasurer under the law to proceed to sell the land.</p> <p>5. Where an irrigation district has been regularly organized and the benefits for the cost of the works apportioned to the land, such matters become res adjudícala and are not subject to collateral attack.</p> <p>6. Special assessments are not provided for in sees. 2407 to 2409, Bev. Codes (amended, Laws 1911, p. 200), and are therefore to be levied and collected in conformity with the procedure for levying and collecting assessments for the payment of principal and interest of bonds, and the assessment is to be listed and carried out in the assessment-books in the same proportion as the assessment of benefits for the cost of the works.</p> <p>7. A finding of the trial court based upon substantially conflicting evidence will not be disturbed.</p> <p>[As to power of taxation and for what purposes it can be exercised, see note in 8 Am. St. 506.]</p>

Hon. Chas. O. Stockslager, Judge. Action on contract. Judgment for plaintiff. The contract in this case is on its face ambiguous and. uncertain. It can become enforceable only by a showing what was meant by the term “government rule.” If the contract could not be made plain in this regard, it was no agreement nor would an agreement exist unless the minds of the parties met.

<p>Malicious Prosecution — Probable Cause — Advice oe Counsel — Malice — Compensatory and Punitive Damages — Termination oe Prosecution in Pavor oe Accused.</p> <p>1. To entitle a party to recover damages by reason of malicious prosecution, it must appear that the person who preferred the criminal ehaTge acted without probable cause t'o believe the accused guilty of the crime charged, that he acted with malice and that the criminal action was terminated in favor of accused.</p> <p>2. The existence of facts showing probable cause is for the jury to determine; whether or not the faets, found by the jury to exist, constitute probable cause is a question for the court.</p> <p>3. To justify by advice of counsel defendant must show that he truly, correctly, fully, fairly and in good faith stated to sueh counsel all the faets within his knowledge, or which he might, with reasonable diligence, have ascertained, bearing upon the guilt or innocence of the accused.</p> <p>4. Malice must be shown to have existed before a recovery may ■be had by reason of a malicious prosecution, but malice, as a fact, may be inferred by the jury from the absence of probable cause. In order to recover punitive damages, however, aetual malice in preferring the charge must be shown to have existed. This is done by showing that the person who preferred the charge was actuated by ill will or a desire to injure the accused.</p> <p>5. The fact that the testimony taken at the preliminary examination was not written by a reporter does not render the proceeding void or the order discharging the accused of no avail as a determination in his favor of the criminal action.</p> <p>[As to what is neeessary to support an action for malicious prosecution, see notes in 12 Am. Dec. 215; 26 Am. St. 127.]</p>

Hon. R. N. Dunn, Judge. Action for damages and for goods sold and delivered. Judgment for defendant. The letters clearly form a part of the contract, and being signed by the defendant, not only ratify the contract but complete it and make it a written memorandum under the statutes of frauds. (20 Cye. 278.) If the buyer accepts a part of the goods under an oral agreement, such acceptance makes the entire contract valid. (Gabriel v. Kildare Elevator Co., 18 Okl. 318, 11 Ann.

<p>Husband and Wife — Wife’s Separate Property — Estoppel of Wife-Evidence — Appeal—Harmless Error.</p> <p>1. Where in a trial to the court without a jury, the court denies a motion to strike testimony as to the receipt of money by draft in exchange for the return of a deed, based on the ground that the deed and draft are the best evidence, and testimony is subsequently introduced showing that the deed was burned and never recorded, that the person who sent the draft for the drawer thereof was dead, that neither the drawer nor drawee knew where the draft was procured and that the records of the bank at which the draft was cashed were lost or destroyed, the error in refusing to strike the testimony was not prejudicial.</p> <p>2. In a suit by a wife to quiet title to real estate, sold on execution against her husband, evidence held sufficient to support the ■finding that the property was purchased with the separate funds of the wife and not with the proceeds of a sale of community property.</p> <p>3. Where there is a conflict of evidence as to whether property claimed as separate property of the wife was purchased out of the proceeds of the sale of community property, and the trial court finds that it was not so purchased, the finding will not be disturbed.</p> <p>4. A married Woman purchased real property with her own funds, allowing her husband to act as her agent in the transaction and the title was taken in the name of her husband contrary to her instructions. The wife, being unable to read, believed her husband’s statement that the title was in her name, and nothing happened to put her on inquiry or arouse her suspicions to the contrary.</p> <p>5. Held, that she was not estopped to claim title as against an execution creditor of her husband.</p> <p>[As to when resulting trust arises in favor of either husband or wife, 127 Am. St. 252.]</p>

<p>APPEAL from the District Court of tbe Eighth Judicial District, for Bonner County. Hon. John M. Flynn, Judge.</p> <p>Action against the Great Northern Railway Company to recover damages for the killing of plaintiff’s horse. Judgment for plaintiff.</p> <p>There was no evidence to show that the plaintiff’s horse got upon the right of way of the defendant at a point where it was required to fence, and the evidence does show that it got in through a gate, which it was not required to keep closed.</p> <p>Under these facts judgment should be ordered for the defendant. (Reid v. San Pedro L. A. <& S. L. R. C'o., 39 Utah, 617, 118 Pac. 1009; Missouri K. & T. Ry. Go. v. Johnson (Tex. Civ.), 39 S. W. 323; Rhines v. Chicago & N. W. Ry. Go., 75 Iowa, 597, 39 N. W. 912; Louisville N. A. & G. Ry. Go. v. Good-bar, 102 Ind. 596, 2 N. E. 337, 3 N. E. 162; Louisville E. & St. Louis By. Co. v. Thomas, 106 Ind. 10, 5 N. E. 198; Bremmer v. Green Bay 8. P. & N. By. Co., 61 Wis. 114, 20 N. W. 687; Johnson v. Chicago, B. I. & P. By. Co., 55 Iowa, 707, 8 N. W. 664 ; Great Western By. Co. v. Hanks, 36 111. 281; Sowders v. .St. Louis &' S. F. B. Co., 127 Mo. App. 119, 104 S. W. 1122; Creson v. Missouri E. & T. By. Co., 152 Mo. App. 197, 133 S. W. 57; Lynn v. St. Louis, 1. M. & S. By. Co., 164 Mo. App. 445, 146 S. W. 451; Kimball v. St. Louis & S. F. By. Co., 99 Mo. App. 335, 73 S. W. 224.)</p> <p>Under the circumstances in this case, there is no liability on the part of the defendant, where it appears that when the defendant’s employees left the gate at night it was closed so it could not be opened by an animal. (Swanson v. Chicago M. & St. P. By. Co., 79 Minn. 398, 82 N- W. 670, 49 L. R. A. 625; Mooers v. Northern Pac. By. Co., 80 Minn. 24, 82 N. W. 1085; Atchison etc. By. Co. v. Kavanaugh, 163 Mo. 54, 63 S. W. 374.)</p> <p>Where a private crossing communicating with gates in the right of way fence, through an inclosure, was constructed by the railway company, it was not the duty of such company to see that such gates were kept closed. (San Antonio etc. By. Co. v. Bobinson, 17 Tes. Civ. 400, 43 S. W. 76; Whaley v. Erie By. Co., 181 N. T. 448, 74 N. E. 417.)</p> <p>The statutory provision in case proper fences have been properly maintained and erected, that proof of the killing of the horse shall be prima facie evidence of negligence or wilfulness, means that all that is incumbent upon the part of the plaintiff in such a case to establish, is the killing of a horse upon the railroad company’s right of way by one of its trains at a place where there is a duty to fence. It will not apply where the animal was killed upon a public crossing. (Yates v. Camas Prairie Bailroad Co., 22 Ida. 802,128 Pac. 545.)</p> <p>Even had this statute not been enacted, the circumstances of the killing of this horse threw upon the defendant the burden of showing that it had not been negligent. (Kelly v. Oregon Short Line etc. B. Go., 4 Ida. 190, 3& Pac. 404.)</p> <p>Defendant is liable even though the horse may have come through the gate. (Missouri etc. By. Go. v. Bellows (Tex. Civ.), 39 S. W. 1000; Duncan v. St. Louis I. M. & S. By. Go., 91 Mo. 67, 3 S. W. 835; Atldnson v. Chicago <& N. W. By. Co., 119 Wis. 176, 96 N. W. 529.)</p> <p>The presumption is that the horse came on track where killed. (Patrie v. Oregon Short Line B. Go., 6 Ida. 448, 56 Pac. 82.)</p>

<p>APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. William W. Woods, Judge.</p> <p>Action for money had and received. Judgment for plaintiff.</p> <p>The district court acquired no jurisdiction to grant to the plaintiff a trial de novo, and the lack of jurisdiction in the district court can be raised at any time, and was not waived by a failure to object to the jurisdiction of the court by demurrer or answer; neither was it waived by proceeding to trial without objection. (Aram v. Edwards, 9 Ida. 333, 74 Pac. 961.)</p> <p>This court has had occasion to discuss the impropriety of remarks similar to those of counsel in this case, when made in the course of a trial, and under these decisions the remarks of counsel in this case constitute reversible error. (Ooldstone v. Rustemeyer, 21 Ida. 703, 123 Pac. 635; Petajaniemi v. Washington Water Power Co., 22 Ida. 20-28, 124 Pae. 783; Powers v. Boise City, 22 Ida. 286, 125 Pac. 194; McLean v. Hayden Creek Mining Co., 25 Ida. 416, 138 Pac. 331; State v. Harness, 10 Ida. 18, 76 Pac. 788; State v. O’Neil, 24 Ida. 582, 599, 135 Pac. 60.)</p> <p>Alleged errors which were not, but could have been, called to the attention of the court below, will not be entertained, for the first time, on appeal to this court. (Smith v. Sterling, 1 Ida. 128; Miller v. Donovan, 11 Ida. 545, 83 Pac. 608; Marysville M. Co. v. Home Fire Ins. Co., 21 Ida. 377,121 Pac. 1026.)</p> <p>In an ordinary trading partnership, either partner has.an implied authority to pay debts from the assets of the firm, in the ordinary course of the business. ( M. A. L. 343; Benchley v. Chapin, 10 Cush. (64 Mass.) 173.)</p> <p>A judgment cannot be reversed because of improper remarks of counsel in his argument to the jury, to which no exception was taken. (Mississippi Cent. R. Co. v. Turnage, 95 Miss. 854, 49 So. 840, 24 L. R. A., N. S., 253.)</p> <p>To warrant a reversal for remarks of counsel in his argument to the jury, they must be prejudicial. (Pigford v. Norfolk S. R. Co., 160 N. C. 93, 75 S. E. 860, 44 B. R. A., N. S., 865.)</p> <p>Improper argument by counsel will not require a reversal if from the whole case it is evident that it did not prejudice the rights of the complaining party. (Paducah B. & B. Co. v. Parker, 143 Ky. 607, 136 S. W. 1012, 43 L. R. A., N. S., 179.)</p>

Hon. William W. Woods, Judge. Action to quiet title. Judgment for plaintiff. Lot 18 having admittedly been acquired during the existence of the marriage relationship between Bates and his wife, is presumed to be community property. (Douglas v. Douglas, 22 Ida. 336, 125 Pac. 796; Humbird Lbr. Co. v. Doran, 24 Ida. 507, 135 Pac. 66; Chaney v. Gauld Co., 28 Ida. 76, 152 Pac. 468.) Property purchased with borrowed money is community property.

<p>APPEAL from the District Court of the Second Judicial District, in and for Clearwater County. Hon. Edgar C. Steele, Judge.</p> <p>Defendant was convicted, in the probate court, of disturbing the peace. His appeal to the district court was dismissed.</p> <p>Admission of due service of notice of appeal, is a waiver of irregular service, and, in general, any action which is equivalent to acknowledgment of notice, waives any defect in such notice. (Wüson v. Wilson, 6 Ida. 597, 601, 57 Pac. 708; Celia v. Schnairs, 42 Mo. App. 316.)</p> <p>The respondent’s attorneys in writing, admitted the service of a copy of a notice of appeal without objecting that it was signed by an attorney other than the attorney of record of the appellant. (Livermore v. Webb, 56 Cal. 489; People v. Grigsby, 62 Cal. 482 ; 2 Hayne, New Trial & Appeal, Rev. ed., secs. 208, 626; Bigler v. Waller, 12 Wall. (79 U. S.) 142, 20 L. ed. 260.)</p> <p>“Acceptance of service is a waiver of defects in the notice.” (Kerlec v. New Orleans Land Go., 130 La. Ill, 57 So. 647; In re Great Southern Lbr. Go., 132 La. 989, 62 So. 117.)</p>

<p>Criminal Daw — Suppicibncy op Evidence — Instructions—New Trial —Newly Discovered Evidence.</p> <p>1. Where there is sufficient evidence, if uncontradicted, to justify- a conviction, a verdict' and judgment based thereon will not be reversed because of conflict in the testimony.</p> <p>2. Persons concerned in the commission of a crime, whether they direetly commit the act constituting the offense or aid and abet in its commission, should be charged and tried as principals.</p> <p>3. All instructions given in a case must be read and considered together, and where, taken as a whole, they correctly state the law and are not inconsistent, but may be reasonably and fairly harmonized, it will be assumed that the jury gave due consideration to the whole charge and was not misled by an isolated portion, which, considered alone, does not fully and clearly state the law applicable to the facts in the case.</p> <p>4. Where affidavits of newly discovered evidence are merely cumulative or corroborative of testimony introduced at the trial, the order of the court denying a motion for a new trial will not be reversed upon appeal.</p> <p>[As to what is cumulative evidence within rule excluding it when offered as newly discovered evidence in support of motion for new trial, see note in Ann. Cas. 1913D, 157.]</p>

<p>Railway Crossings — Negligence of Railway Company — Duty of Person Crossing — Contributory Negligence — Burden of Proof.</p> <p>1. The failure of a railway company to comply with the provisions of see. 2821, Rev. Codes, requiring such company to ring a bell, or sound a whistle, when approaching a place where the railroad crosses a street, road, or highway, constitutes negligence per se.</p> <p>2. A railway corporation is liable for all damages, sustained by any person, caused by its locomotive, trains, or cars, where the provisions of see. 2821, Rev. Codes, are not complied with, unless the^ person injured is guilty of contributory negligence.</p> <p>3. It is the duty of a person crossing a railroad track to exercise such care as would be exereised by a man of ordinary prudence under like circumstances.</p> <p>4. The presumption is that one, who is killed while attempting to cross a railroad track, was exercising due and proper care for his protection.</p> <p>5. It is the duty of one about to cross a railroad track to look and listen, but it is not negligence per se to fail to stop, and where the facts are disputed the question of contributory negligence is one of fact, to be determined from all the facts and circumstances in evidence.</p> <p>6. The evidence showed that deceased, who was driving an automobile stopped some distance from the crossing, went to the track, looked and listened; drove to within a few feet of the track, there stopping to look and listen; proceeded slowly, on the lookout for trains, and was not attempting to make the crossing ahead of the train. Held, sufficient to sustain a finding that deceased was using due care and was not guilty of contributory negligence.</p> <p>7. Contributory negligence is an affirmative defense, the burden of establishing which, is on the defendant.</p> <p>[As to duty of traveler, after looking both ways on approaching railroad track, to look again before crossing, see note in Ann. Cas. 1914A, 536.]</p>

<p>Malicious Prosecution — Termination—Compromise or Agreement op Parties.</p> <p>An action for damages for malicious prosecution cannot be maintained where it' appears that the criminal ease, which forms its Basis, was terminated by dismissal, without hearing, by procurement of the party prosecuted, or as the result of a compromise.</p> <p>[As to determination of proceeding by compromise as termination sufficient to support action for malicious prosecution, see note in Ann. Cas. 1915D, 1164.]</p>

Hon. William W. Woods, Judge. Action for breach of contract.

<p>Agency — Execution Sale — Notice of Existing Equities — Bona Eide Purchaser — Lack of Consideration — After-acquired Title — Estoppel.</p> <p>1. A purchaser at an execution sale of realty, who takes the property with actual notice that the judgment debtor had given both a bond for a deed and a deed for the property to a third party before the lien of the judgment attached, is not a bona fide purchaser.</p> <p>2. A purchaser at an execution sale of realty who takes the property with constructive notice that a judgment prior to the one under which he purchases had impressed such property with a prior lien, is not a bona fide purchaser.</p> <p>3. Where a judgment creditor bids in property of the judgment debtor, at an execution sale, and credits upon the judgment the amount bid, no valuable consideration passes for such purchase, since it amounts to nothing more than a cancellation, pro tanto, of a preexisting indebtedness, and sueh purchase conveys only the legal title to the judgment creditor, subject t'o existing equities.</p> <p>4. One who parts with a consideration neither valuable nor irrevocable is not a bona fide purchaser.</p> <p>5. Where one acting as secretary, general manager and agent of a corporation dealing in land, with full authority t'o make conveyances on behalf of such corporation, induces a prospective purchaser to buy a tract of land which he represents as belonging to the corporation, when in fact it does not so belong, and on behalf of the corporation gives the purchaser a deed for the land, and-thereafter acquires title to the land himself, both he and his successors in interest are estopped from asserting title to the land as against sueh purchaser.</p> <p>6. G., as agent of a corporation, eonveyed to S. land which he represented as belonging to the corporation, but which in fact did not so belong. Afterward G. acquired title for himself without the knowledge of S. Held, that sueh title as G. acquired became impressed with a trust for the benefit of S., and when G.’s supposed interest was subsequently purchased on execution sale by a judgment creditor of G., sueh purchaser took only such title and interest as G. had, and must also be deemed to have taken the legal title in trust for S., subject to every element of estoppel that could be urged against G.</p> <p>[As to defenses available to defendant in execution when sued in ejectment by purchaser thereunder, see note in 84 Am. Dec. 570.]</p>

<p>Insufficiency of Evidence — Motion for Nonsuit — When Granted.</p> <p>1. Where the evidence is so uncertain as to leave it equally clear and probable that the injury may have been caused by any one of several parties, and there is a total absence of proof that the injury was the result of the negligence or carelessness of the defendant, then a verdict would be pure speculation and could not be sustained and it would be the duty of the trial court to grant a nonsuit.</p> <p>2. Held, that the trial court did not err in granting respondent’s motion for a nonsuit, an examination of the record disclosing the fact that there was no evidence upon which a verdict for appellant could be sustained.</p> <p>[As to mere seintilla of evidence as sufficient to justify submission of case to jury, see not'e in Ann. Cas. 1914B, 472.]</p>

Hon. Edgar C. Steele, Judge. Action for libel. Judgment for plaintiff. “The necessity of keeping the administration of public corporations pure and efficient, the importance of punishing derelictions of duty on the part of officials thereof, and the danger of silencing inquiry, all tend to render communications of this kind, if made in good faith, privileged, even though at times the effect of the rule may be to work injustice in particular cases.” (Greenwood v. Cobbey, 26…

<p>APPEAL from the District Court of the Second Judicial District, for Lewis County. Hon. Edgar C. Steele, Judge.</p> <p>Action to foreclose chattel mortgages. Judgment for cross-plaintiffs.</p> <p>There is the strongest kind of evidence that C. W. Rounds was the owner of the grain, and if so, F. W. Rounds had no right to mortgage it or attempt to do so, and any mortgage he might execute would be void. He could only mortgage such interest as he might have in the property. (Bradley Land Lbr. Go. v. Eastern Mfg. Go., 104 Me. 203, 71 Atl. 710; Benjamin Schivarz & Sons v. Kennedy, 142 Fed. 1027; Morris v. Brown, 177 Ala. 389, 58 So. 910; Smith v. J. I. Case Threshing Mach. Go., 50 Pa. Super. Ct. 92; Roper Wholesale Grocery Go. v. Famer, 8 Ga. App. 178, 68 S. E. 883.)</p> <p>The value which property has at the time of the conversion, whether market or actual, is the basis of damages in trover. The rule is not affected by either an increase or a decrease in its value subsequent to the conversion of it. {Hepburn v. Sewell, 5 Har. & J. (Md.) 211, 9 Am. Dec. 512; Bates v. Stansell, 19 Mich. 91; Garter v. Feland, 17 Mo. 383; Hendriclcs v. Evans, 46 Mo. App. 313; Burney v. Pledger, 3 Rich. L. (S. C.) 191; 13 Cyc. 170.)</p> <p>Where personal property is taken possession of without authority of law and is retained and converted to the use of the person taking such possession in trover by the owner, the plaintiff is entitled to recover, as a general rule, the market value of such, property at the time it was taken. (Unfried v. Libert, 20 Ida. 708, 119 Pac. 885; Bates v. Nyberg Automobile Works, 170 111. App. 3'01; Mautala v. Dover, 176 Mich. 366, 142 N. W. 579; Whittier v. Sharp, 43 Utah, 419, 135 Pac. 112, 49 L. R. A., N. S., 931; Massam v. J. E. Safford Lumber Co., 82 Vt. 444, 74 Atl. 197; Mart v. Brierley, 189 Mass. 598, 76 N. E. 286.)</p> <p>If the property converted was of fluctuating value, the owner may recover, according to some authorities, the highest market value within a reasonable time after conversion; according to others, the highest value attained between the time of conversion and the bringing of the action, with interest; but by the weight, of authority, the highest value between conversion and the day of trial. (Lee v. Mathews, 10 Ala. 682, 44 Am. Dee. 498; 38 Cyc. 2096; Sharpe v. Barney, 114 Ala. 361, 21 So. 490; Fromm v. Sierra Nevada S. Min. Co., 61 Cal. 629; Barrante v. Garratt, 50 Cal. 112; Lynch v. McGhan, 7 Cal. App. 132, 93 Pac. 1044; Straw v. Jenks, 6 Dak. 414, 43 N. W. 941; Robinson Mining Co. v. Riepe, 37 Nev. 27, 138 Pac. 910; Thompson v. Carter, 6 Ga. App. 604, 65 S. E. 599.)</p>

Hón. R. N. Dunn, Judge. Action to recover for money had and received. Directed verdict for plaintiff. There is no implied warranty on the part of one who sells county warrants or other securities that the same are valid or were issued by proper legislative authority. The doctrine of caveat emptor applies. ‘ ‘ There is an implied warranty of genuineness on a sale of notes, bonds, or other securities.

<p>APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. John M. Flynn, Presiding Judge.</p> <p>Suit to quiet title and for injunction. Judgment for plaintiffs and cross-defendant.</p> <p>A principal cannot claim the fruits of fraud perpetrated by his agent, whether he knew of the fraud or not, and even when the' agent acts within the scope of his authority and is instructed to make no false statements. (Nelson v. Title Trust Co., 52 Wash. 258, 100 Pac. 730; Griswold v. Gebbie, 126 Pa. St. 353, 12 Am. St. 878, 17 Atl. 673; Salina Mere. Co. v. Stiefel, 82 Kan. 7-14, 107 Pae. 774; Freemcm v. F. P. PLarbaugh Co., 114 Minn. 283, 130 N. W. 1110; Fresher v. Becker, 88 Neb. 619, 130 N. W. 275; Reed v. HaMoway (Tex. Civ.), 127 S. W. 1189; 20 Cyc. 85.)</p> <p>Where a trustee, agent or employee cannot purchase in his behalf as against his principal or cestui que trust, he cannot purchase for a third person. (Michoud v. Girod, 4 How. (U. S.) 504, 11 L. ed. 1077.) .</p> <p>In a suit of equity, as well as in an action at law, the findings of a trial judge will not be disturbed where there is a conflict in the evidence and the witnesses were produced in court. (Stuart v. Hauler, 9 Ida. 53, 72 Pac. 719; Mor roto v. Matthew, 10 Ida. 423, 79 Pac. 196; Hufton v. Hufton, 25 Ida. 96, 136 Pac. 605; Cameron Hbr. Co. v. Staclc-Gibbs Hbr. Co., 26 Ida. 626, 144 Pac. 1114; Harry v. Cox, 28 Ida. 519, 155 Pac. 660; Jensen v. Bumgarner, 28 Ida. 706, 156 Pac. 114; Wolf v. Eagleson, 29 Ida. 177, 157 Pac. 1122.)</p> <p>When an agent undertakes to represent two principals, and their interests conflict in the subject matter of the agency, if both are equally innocent there is no rule of reason or law which permits one principal to be charged with all the consequences of the agent’s double dealing, and the other to obtain all the benefits of what the agent did. (Kennedy v. Green, 3 Mylne & K. 699, 40 Eng. Reprint, 399; 2 R. O. L. 965; Benedict v. Arnoux, 154 N. Y. 715, 49 N. E. 326; Melms v. Pabst Brg. Co., 93 Wis. 153, 57 Am. St. 899, 66 N. W. 518.)</p> <p>Where there are equal equities, the first in order of time shall prevail. (1 Pomeroy, Eq. Jur., 3d ed., 413.) Where there is equal equity, the law must prevail. (1 Pomeroy Eq. Jur., 3d ed., 417.)</p>

PETITION for writ of mandate. The lower court cannot apportion costs in an action to quiet title to real estate. (Sec. 4903, Rev. Codes.) All the material issues in this ease were decided in favor of the defendant and that this is an action to quiet title to real estate.

<p>APPEAL from the District Court of the Eighth Judicial District, for Benewah County. Hon. John M. Flynn, Judge.</p> <p>Action on contract. Judgment for plaintiff.</p> <p>Counsel cite no authorities on point decided.</p>

Hon. John M. Flynn, Judge. Action for money bad and received. Judgment for defendant. When a statute is amended, repassed or re-enacted by tbe legislature, and a clause or part thereof omitted, and with such omission the statute as amended, repassed or re-enacted makes sense either with or without the omitted portion, there •is no presumption that the legislature did not intend the omission. (2 Lewis’ Sutherland’s Stat.

<p>APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. William W. Woods, Judge.</p> <p>Action for damages for personal injury. Judgment for plaintiff.</p> <p>“An instruction which leaves the jury free to consider facts not proved by the evidence, but of which they have been informed in some other way, or which tells the jury that to determine a fact they must look to the evidence as far as it is clear and unambiguous, is erroneous.” (38 Cye. 1683, 1684; 1 Blashfield’s Instructions to Jurors, sec. 79; Holt v. Spokane etc. By. Co., 3 Ida. 703, 35 Pac. 39; Whitney v. Woodmansee, 15 Ida. 735, 99 Pac. 968; Burrows v. Delta T. Co., 106 Mich. 582, 64 N. W. 501, 29 L. R. A. 468; Close v. Samm, 27 Iowa, 503; Douglass v. Trask, 77 Me. 35.)</p> <p>The result of the giving of respondent’s requested instruction No. 7 was to absolutely remove from the consideration of the jury the defense of assumption of risk. {Miller v. White Bronze Monument Co., 141 Iowa, 701, 18 Ann. Cas. 957, 118 N. W. 518; Chicago etc. B. Co. v. Heerey, 203 111. 492, 68 N. E. 74; Johnson v. Mammoth Vein Coal Co., 88 Ark. 243, 114 S. W. 722,123 S. W. 1180,19 L. R. A., N. S., 646; Schlerm mer v. Buffalo B. & P. B. Co., 220 U. S. 590, 596, 31 Sup. Ct. 561, 55 L. ed. 596; Tuttle v. M. By., 122 U. S. 189.)</p> <p>An instruction which concludes with a direction to find in a certain way must include every element necéssary to such finding, and cannot be cured by any other instruction. (1 Blashfield’s Instructions to Juries, secs. 78, 80, pp. 170, 176, 177; Just v. Idaho Canal etc. Co., Ltd., 16 Ida. 639, 133 Am. St. 140, 102 Pac. 381; Portneuf-Marsh etc. Co. v. Portneuf Irr. Co., 19 Ida. 483, 114 Pac. 19; Giffen v. City of Lewiston, 6 Ida. 231, 55 Pac. 545; Holt v. Spokane etc. By. Co., 3 Ida. 703, 35 Pac. 39; State v. Webb, 6 Ida. 428, 55 Pac. 892.)</p> <p>The court seriously erred in its refusal to tell the jury that no assurance of safety was in issue or complained of by plaintiff in his complaint and that no liability could be predicated thereon. (Thurman v. Pittsburg & M. Copper Co., 41 Mont. 141, 108 Pac. 588, 590; Minty v. Union Pac. By. Co., 2 Ida. (471) 437, 21 Pac. 660; Telle v. Leavenworth B. T. By. Co., 50 Kan. 455, 31 Pac. 1076; Cincinnati, I., St. L. & C. By. Co. v. McLain, 148 Ind. 188, 44 N. E. 306; Antler v. Cox, 27 Ida. 517, 149 Pae. 731; Woodward v. Oregon By. & Nav. Co., 18 Or. 289, 22 Pac. 1076.)</p> <p>The jury may use their experience in life and knowledge as to the matters referred, first, in determining whether or not the defendant acted as a reasonably prudent person would, and, second, in estimating the loss of earning capacity and fixing his damages. (Grand Trunk B. Co. v. Ives, 144 U. S. 408, 12 Sup. Ct. 679, 36 L. ed. 485; Baillie v. City of Wallace, 24 Ida. 706, 135 Pac. 850; Maloney v. Winston Bros. Co., 18 Ida. 740, 111 Pac. 1080, 47 L. R. A., N. S., 634; Walsh v. Winston Bros. Co., 18 Ida. 768, 111 Pac. 1090; Barter v. Steward Min. Co., 24 Ida. 540, 135 Pac. 68; Chiara v. Stewart Min. Co., 24 Ida. 473, 135 Pae. 245; Denbeigh v. Oregón-Washington etc. B. Co., 23 Ida. 663, 132 Pac. 112.)</p> <p>No court has ever held that it is error for the court to instruct the jury to make use of their experience and general knowledge in their deliberations. (1 Briekwood’s Sackett on Instructions, see. 937; Beed v. Territory, 1 Okl. Or. 481, 129 Am. St. 861, 98 Pac. 583; Willis v. Lance, 28 Or. 371, 43 Pac. 384, 487; Johnson v. Uillstrom, 37 Minn. 122, 33 N. W. 547; Sanford v. Oates, 38 Kan. 405, 16 Pac. 807; Jenney Electric Co. v. Branham, 145 Ind. 314, 41 N. E. 448, 33 L. R. A. 395; Neanoto v. Uttech, 46 Wis. 581, 1 N. W. 221.)</p> <p>The instructions must all be taken and considered together, and if they, as a whole, state the law applicable to the facts in the case, that is sufficient, and the case should not be reversed. (Barrow v. B. B. Lewis Lbr. Co., 14 Ida. 698, 711, 95 Pac. 682.)</p> <p>The negligence charged was in not keeping the place reasonably safe and in not having the loose rock so removed that it would not fall on him. (Lone Star Lignite Min. Co. v. Cad-dell (Tex. Civ.), 134 S. W. 841.)</p> <p>“The danger from which he was injured was not one of the ordinary risks of his employment. ’ ’ (Bunker Hill & Sullivan Min. & C. Co. v. Jones, 130 Fed. 813, 65 C. C. A. 363; Maloney v. Winston Bros. Co., 18 Ida. 740, 111 Pac. 1080, 47 L. B. A., N. S., 634.)</p> <p>It is the absolute duty of the master to provide a reasonably safe place in which the servant shall work, having regard to the kind of work, and the conditions under which it must necessarily be performed. (Bunker Hill & Sullivan Min. & C. Co. v. Jones, supra.)</p>

Hon. William W. Woods, Judge. Action for divorce. Judgment for plaintiff vacated. “An action for divorce is a purely personal action. Nothing is sought to be affected, but the marital status of a husband and wife.....Service upon them (executors, and administrators, on motion and notice) of a motion to vacate the judgment is farcical. ’ ’ (Dwyer v. Nolan, 40 Wash. 459, 111 Am. St. 919, 5 Ann.

<p>APPEAL from the District Court of the Second Judicial District, for Latah County. Hon. Edgar C. Steele, Judge.</p> <p>Action "n promissory note. Judgment for plaintiff.</p> <p>A contract for services rendered, or goods sold, in violation of a statute which forbids, under penalty or otherwise, the carrying on of the particular business without a license, is void. (Harrison v. Jones, 80 Ala. 412; Dudley v. Collier, 87 Ala. 431, 13 Am. St. 55, 6 So. 304; Hill v. Mitchell, 25 Ga. 704; Buckley v. Humason, 50 Minn. 195, 36 Am. St. 637, 52 N. W. 385, 16 L. R. A. 423.)</p> <p>When a statute requires persons engaging in a particular business to be licensed for the protection of the public, and not for public revenue only, the imposition of a penalty amounts to a positive prohibition of contracts made contrary to the statute. (Taliaferro v. Mojfert, 54 Ga. 150; Randall v. Tuell, 89 Me. 443, 36 Atl. 910, 38 L. R. A. 143.)</p> <p>Where a statute imposes a penalty for a failure to comply with its provisions, it is to be construed as prohibitory, and contracts made in direct contravention of its requirements are unlawful and void. (Miller v. Post, 1 Allen (Mass.), 434; Sawyer v. Smith, 109 Mass. 220; Prescott v. Battersby, 119 Mass. 285; Johnson v. Hidings, 103 Pa. St. 498, 49 Am. Rep. 131; Hustis v. Piclcunds, 27 111. 270; Tedrick v. Hiner, 61 111. 189; Gardner v. Tatum, 81 Cal. 370, 22 Pac. 880; Stevenson v. Ewing, 87 Tenn. 46, 9 S. W. 230.)</p> <p>The validity of promissory notes is controlled by the law of the place where the notes are executed, and not where they are payable. (Orr’s Admr. v. Orr, 157 Ky. 570, 163 S. W. 757; Joslin v. Miller, 14 Neb. 91,15 N. W. 214; Sheldon v. Haxtun, 91 N. T. 124; Kilgore v. Dempsey, 25 Ohio St. 413, 18 Am. Rep. 306.)</p> <p>If a note is void for usury where made it will be void everywhere, although it may have been made payable elsewhere as a cover for the usury. (Vermont Loan & Trust Co. v. Hoffman, 5 Ida. 376, 95 Am. St. 186, 49 Pae. 314, 37 L. R. A. 509; Ocobock v. Nixon, 6 Ida. 552, 57 Pae. 309; Cleveland v. Western Loan etc. Co., 7 Ida. 477, 63 Pac. 885; State v. Eves, 6 Ida. 144, 53 Pac. 543.)</p> <p>“When a statutory prohibition is found in a statute enacted for the purpose of raising revenue or the regulation of traffic or business, unless it is manifestly the intention of the statute to make the contract void, the court will hold the contract as valid.” (Vermont Loan & Trust Co. v. Hoffman, 5 Ida. 376, 95 Am. St. 186, 49 Pac. 314, 37 L. R. A. 509; Sutherland on Statutory Construction, sec. 366; Hughes v. Snell, 28 Okl. 828, Ann. Cas. 1912D, 374, 115 Pac. 1105, 34 L. R. A., N. S., 1133; Dinkelspeel v. O’Hay, 47 Utah, 18, 151 Pac. 344; Lane v. Henry, 80 Wash. 172, 141 Pac. 365; Lamed v. Andrews, 106 Mass. 435, 437, 8 Am. Rep. 346; Mandlebaum v. Gregovich, 17 Nev. 87, 45 Am. Rep. 433, 28 Pae. 121; Harris v. Runnels, 12 How. 79, 13 L. ed. 901; Kern v. Feller, 70 Or. 140, 140 Pae. 735.)</p> <p>“Where a note made in one jurisdiction is payable m another, it bears interest according to the lawful rate in the place where it is payable, .unless a different rate is specified in the contract.” (8 Cye. 312, and cases cited under footnote 84; Randolph on Com. Paper, par. 31; 2 Parsons on Bills and Notes, p. 324; Daniels on Neg. Inst., par. 879; Sykes v. Citizens’ Nat. Bank, 78 Kan. 688, 98 Pac. 206, 19 L. R. A., N. S., 665.)</p> <p>The problem of determining what law shall govern in deciding whether or not the contract is usurious is largely one of ascertaining what law the parties had in mind as fixing their rights under the contract. The intent of the parties is therefore usually the cardinal factor. (39. Cyc. 891-898; Baxter v. Beckwith, 25 Colo. App. 322, 137 Pac. 901.)</p> <p>Unless there is an intent to evade the usury laws, the law of the state where the note is payable will govern. (Crawford v. Seattle R. c& S. Ry. Co., 86 Wash. 628, 150 Pac. 1155, L. R. A. 1916D, 732.X</p> <p>Parties in their contracts will be presumed to have used language effectuating a lawful rather than an unlawful purpose. (jBeasley v. Aberdeen & B. B. Co., 145 N. C. 272, 59 S. E. 60.)</p>

<p>PETITION for writ of prohibition.</p> <p>“If a statute is plain, certain and unambiguous, so that no doubt arises from its own terms as to its scope and meaning, a bare reading suffices; then interpretation is needless.” (Sutherland on Statutory Construction, sees. 234, 235; Powell v. Spaclvman, 7 Ida. 692, 65 Pac. 503, 54 L. R. A. 378.)</p> <p>None of the constitutional provisions can be repealed by legislative , enactment. {Knight v. Trigg, 16 Ida. 256, 100 Pae. 1060; Gillesby v. Board of County Commrs., 17 Ida. 586, 107 Pac. 71; Pioneer Irr. Dist. v. Walker, 20 Ida. 605, 119 Pac. 304; Ferbrache v. Drainage Dist. No. 5, 23 Ida. 85, Ann. Cas. 1915C, 43, 128 Pac. 553, 44 L. R. A., N. S., 538.)</p> <p>Before a legislative act will be held unconstitutional, it must appear beyond a reasonable doubt that it infringes some provision of the constitution. (Noble v. Bragaw, 12 Ida. 265, 85 Pac. 903; Gillesby v. Board of Commrs., 17 Ida. 586, 107 Pac. 71.)</p> <p>When a statute can be reasonably construed and applied in a manner to avoid conflict with thé constitution, such construction will be adopted by the courts. (Grice v. Clearwater Timber Co., 20 Ida. 70, 117 Pac. 12; Continental Life Ins. etc. Co. v. Hattabaugh, 21 Ida. 285, 121 Pac. 81.)</p> <p>And it is the duty of the court to give both the statute and the constitution such construction as will give effect to both, unless the statute is so clearly repugnant to the constitution as to admit of no other reasonable construction. (Doan v. Board of Commrs., 3 Ida. 38, 26 Pac. 167; People v. George, 3 Ida. 72, 26 Pac. 983.)</p> <p>A statute will not be held unconstitutional merely because the language used may extend to persons not contemplated by the .constitution. (In re Gale, 14 Ida. 761, 95 Pac. 679.)</p>

<p>Contract fob Fruit Teres — Instructions—Foreign Corporation— Statute of Limitations — Evidence—Measure of Damages— Erroneous Inclusion of Interest in Judgment.</p> <p>1. The following instruction was given in this ease: “Where fruit trees are sold under a warranty, express or implied, that they are of the kind selected and they prove to be not of such kinds in part or whole, the measure of damages is the difference in value between the orchard actually grown from the trees received, at the next planting time after the discovery of the breaeh, and the value which such orchard would have had if the trees had been as warranted. . . . . ” Held, that under the facts, as shown -by the record, the giving of such instruction, without the inclusion of the words “at the same time deducting the cost of taking care of sueh trees,” was not erroneous.</p> <p>2. An instruction to the effect that a foreign corporation, which has admittedly failed to comply with the statutes of this state in regard to designating an agent upon whom service of summons may be had, is not entitled to urge the defense of the statute of limitations is not erroneous when the statute of limitations has been pleaded as a defense.</p> <p>3. Copies of contract orders for trees, which were afterward merged in a single contract between the parties, may be properly received in evidence as showing specific acts of the parties in making the contract and the steps which were taken leading up to the making of the final contract and the execution thereof.</p> <p>4. An instruction wtich directed the jury, in the event they found for plaintiff, to assess his damages and then add interest at the rate of seven per cent per annum from the date of the discovery of the true character of the fruit trees to the date of trial, is erroneous; but, where it appears that the prevailing party has offered to remit the interest erroneously included in the judgment in accordance with such instruction, a judgment for damages will not be reversed on account of such error, when the amount by which the verdict was thereby increased is easily ascertainable and the proper deduction can be made with certainty.</p> <p>[As to statute of limitations, and disability to plead same on part of foreign corporation which has not appointed local agent to be served with process, see note in 104’Am. St. 749. See, also, note in Ann. Cas. 1915D, 913.]</p>

Hon. James R. Bothwell, Presiding Judge. Action in assumpsit. Judgment for plaintiffs. Where money or its equivalent has been paid for the use of another, the request or ratification may be either expressed or implied.

<p>APPEAL from the District Court of the Eighth Judicial District, for Bonuer County. Hon. R. N. Dunn, Judge.</p> <p>Action to quiet title. Judgment for plaintiff.</p> <p>The grant of way was separate and distinct from the grant of lands in aid of building the road. Any doubt that may have existed theretofore in regard to the true construction of this grant and the title and estate conferred by it upon the railroad company was fully cleared up in the case of Northern Pao. By. Go. v. Townsend, 190 U. S. 267, 23 Sup. Ct. 671, 47 L. ed. 1044; Holland Go. v. Northern Pacific By. Go., 214 Fed. 920, 131 C. C. A. 216.</p> <p>Under color of title less is required of the adverse claimant than under mere claim of title, as under color of title the possession and proper use, improvement and cultivation of a part will be presumed to extend to the whole tract. Under claim of title the adverse claimant must (1) protect the whole tract claimed with a substantial inclosure; or (2) must have usually cultivated or improved it. That is, the adverse title will be sustained only to the extent of the portion inclosed or cultivated or improved, and will not extend to other portions not so inclosed, improved or cultivated.</p> <p>If plaintiff has color of title it must be found in his Ex. “A.” That deed has not a single ambiguity in it. The land conveyed by it was not only accurately described, but the portion of land now claimed was expressly excluded from its operation.</p> <p>“A deed is color of title only to that which is shown to be within the description of the grant.” (Ohio etc. By. Go. v. Barker, 125 111. 303, 17 N. E. 797; Weinig v. Holcomb, 73 Iowa, 143, 34 N. W. 787; Tate’s Heirs v. Southard, 10 N. O. 119, 14 Am. Dec. 578; Power v. Hitching, 10 N. D. 254, 88 Am. St. 691, 86 N. W. 737.)</p> <p>Until the government declares a reverter, the title remains in the railroad company. (Northern Pac. By. Co. v. Ely, 197 U. S. 1, 25 Sup. Ct. 302, 49 L. ed. 639.)</p> <p>Defendant is now claiming title under the original grantee of the government, and whatever right he may have obtained by his deeds from that company is a matter in which he, the railway company and the government are alone concerned. He is the present holder of the legal title, at least to the extent of occupancy and use, and as against him no presumption will be drawn in favor of the holder of color of title only. (White v. Harris, 206 111. 584, 69 N. B. 519.)</p> <p>In actions of this kind the plaintiff must recover, if at all, upon the strength of his own title. (Delacey v. Commercial Trust Co., 51 Wash. 542, 130 Am. St. 1112, 99 Pae. 574.) •</p> <p>The railroad company under its grant from Congress received only a limited fee in all lands given and made upon an implied condition of reverter in the event that the' company cease to use or retain the land for the purpose for which it was granted. (Holland Co. v. Northern Pac. By. Co., 214 Fed. 920, 131 C. C. A. 216; Oregon Short Line B. Co. v. Quigley, 10 Ida. 770, 80 Pac. 401; Melder v. White, 28 Land Dec. 412.)</p> <p>The language used in the exception clause of the deed from the company to Crandall is merely the reservation of a right of way. (Abercrombie v. Simmons, 71 Kan. 538, 114 Am. St. 509, 6 Ann. Cas. 239, 81 Pac. 208, 1 L. R. A., N. S., 806; Hill v. Western Vermont B. Co., 32 Yt. 68, 74.)</p> <p>Upon the abandonment being shown, the title reverted to the owner of the servient estate. (Mills v. Denver & Bio Grande B. Co., 198 Fed. 137.)</p> <p>This action can be maintained by the plaintiff for the protection of his reversionary rights. (Neitsel v. Spokane International B. B. Co., 65 Wash. 100, 117 Pac. 864, 36 L'. R. A., N. S., 522, and cases cited; Anderson v. Interstate Mfg. Co., 152 Iowa, 455, 132 N. W. 812, 36 L. R. A., N. S., 512.)</p> <p>The respondent is entitled to have,the title to the property in controversy quieted in him on the ground of adverse possession. (Johnson v. Hurst, 10 Ida. 308, 77 Pac. 784.)</p> <p>Color of title exists whenever there is a reasonable doubt regarding the validity of the apparent title, whether such doubt arises from the circumstances under which the land is held, the identity of the land conveyed or the construction of the instrument under which the party in possession holds his title. (Cameron v. United States, 148 U. S. 301, 308, 13-Sup. Ct. 595, 37 L. ed. 459, 462; Northern Pac. B. Co. v. Pyle, 19 Ida. 3, 112 Pac. 678; Cramer v. Walker, 23 Ida. 495, 497, 130 Pae. 1002.) Title to easements, franchises, etc., may be lost by abandonment. (1 R. C. L. No. 4, 135 Am. St. 899, and note, 1 L. R. A., N. S., 806.)</p> <p>Title to a right of way may be acquired by adverse possession. (1 R. C. L. 737, 2 L. R. A., N. S., 775.)</p> <p>Whatever may be the respective rights of plaintiff and the Northern Pacific Railway in the property, or the respective rights of plaintiff and the United States, the decree of this court-should, as between Crandall and Goss, quiet the title to and vest the possession of the premises in plaintiff. (Northern Pac. By. Co. v. Kranich, 52 Fed. 911; Northern Pac. By. Co. v. Pyle, supra.)</p>

<p>Election of Remedies — Res Adjudicata — Statute of Limitations— Ultra Yires — Municipalities—Implied Powers — -Action on Case —Consequential Damages — Parks—Governmental Functions— Riparian Owners — Breakwaters — Obstruction of Stream — Municipal Liability for Damages.</p> <p>1. In order to apply the doctrine of election of remedies, the party sought to be barred must actually have had at his command more than one remedy.</p> <p>2. When a party, acting upon a mistaken theory as to his legal rights, brings Ms action and is defeated by reason thereof, and afterward renews the litigation, basing his claim upon a correct theory, the former judgment is no bar to the second action.</p> <p>3. Subd. 2, sec. 4054, Rev. Codes, limiting the time within which an action may be brought for trespass upon real property, has no application to an aetion on the ease for consequential damages.</p> <p>4. Actions on the case are governed by the provisions of see. 4060, Rev. Codes, that: “An aetion for relief not hereinbefore provided for, must be commenced within four years after the cause of action shall have accrued.”</p> <p>5. Where damage is not a direet but only a consequential result of an act, no cause of action arises until injury has been done or actual damage inflieted.</p> <p>6. Municipalities have implied authority to take whatever lawful means are necessary to carry out their express powers, and to protect their property.</p> <p>7. The defense of ultra vires can be interposed only where the act complained of was wholly beyond the powers of the municipality. If the wrongful act in question is one which the municipality had the right to do under some circumstances or in some manner, then it is not ultra vires.</p> <p>8. In order for a municipality to avail itself of the defense that its tort, committed while acting within the scope of its authority, was the result of the exereise of a governmental function, it must appear that such function was the exercise of a legal duty imposed by the state, which it might not omit with impunity but must perform at its peril.</p> <p>9. The mere grant to a municipality of power to maintain a public park enjoins no absolute duty upon it to do so.</p> <p>10. The care and maintenance of parks is primarily a private as opposed to a governmental function.</p> <p>11. A municipality has a right, as a riparian owner, to construct a breakwater for the protection of its property, but if in so doing it so obstructs the stream as to divert it, and thereby damages the property of another riparian owner the municipality is liable for resulting damage.</p> <p>12. The liability in such cases does not rest solely upon the narrow ground of negligence, but rather upon the broad legal principle that no one is permitted to so use his own property as to invade the like property rights or cause injury or damage to the property of another.</p> <p>[As to liability of a municipal corporation when injury to another person has resulted from an act done by it in its governmental capacity, see note in 108 Am. St. 140.]</p>

<p>Fraud — Misrepresentations—Scienter.</p> <p>1. In an action based upon fraudulent representations it must be shown, among other things, that the party making them' knew them to be false or that be made them recklessly without knowledge of their truth or falsity.</p> <p>2. A representation believed on reasonable grounds, by the party making it, to be true, is not. fraudulent.</p> <p>[As to the defendant’s knowledge of the fallacy as essential condition to his being liable for fraud, see note in 18 Am. St. 559.]</p>

<p>APPEAL from the District Court of the Sixth Judicial District, for Lemhi County. Hon. James R. Bothwell, Presiding Judge.</p> <p>Action to recover the par value of certain bank stock alleged to have been held by a stockholder of an insolvent state bank. Judgment for plaintiff.</p> <p>The first subdivision of instruction No. 3 was wrong in requiring the plaintiff to prove that the defendant knew the bank was insolvent at the time of the transfer. The rule does not go that far, and the courts are uniform in holding that if actual knowledge cannot be known on the part of the defendant, then proof that he knew that the bank was in a failing condition, or that he had reason to believe that it was insolvent or about to fail, or words of equivalent meaning, would be sufficient. (Bowden (Adams) v. Johnson, 107 U. S. 251, 261, 2 Sup. Ct. 246, 27 L. ed. 386, 389; Pauly v. State Loan & Trust Co., 165 U. S. 606, 623, 17 Sup. Ct. 465, 41 L. ed. 844, 851; Germania Nat. Bank v. Case, 99 U. S. 628, 25 L. ed. 448, 450; Aultman’s Appeal, 98 Pa. St. 505; Stuart v. Bay den, 169 H. S. 1, 18 Sup. Ct. 274, 42 L, ed. 639, 641; McDonald v. Dewey, 202 U. S. 510, 6 Ann. Cas. 419, 26 Sup. Ct. 731, 50 L. ed. 1128, 1133; C'ox v. Montague, 78 Fed. 845, 849, 24 C. C. A. 364.)</p> <p>The jury is the judge of the facts, and its determination, so far as the facts are concerned, is final and conclusive; provided, there is some evidence to support the verdict of the jury. (Lott v. Oregon Short Line B. Co., 23 Ida. 324, 130 Pac. 88; Quirk v. Sunderlin, 23 Ida. 368, 130 Pac. 374; Denbeigh v. Oregon Wash. B. & Nav. Co., 23 Ida. 663, 132 Pac. 112.)</p> <p>The instructions, as a whole, fairly submit the ease to the jury, and in such case the verdict will not be disturbed. (Lufkins v. Collins, 2 Ida. 256, 10 Pac. 300.)</p>

<p>Quo Warranto — Qualifications of County Superintendent of Public Instruction — Teacher's Certificate.</p> <p>1. When the law prescribes the qualifications necessary for a person to become eligible to the office of county superintendent of public instruction, and included among such qualifications is a requirement that a candidate for the office must be a holder of a state or state life certificate, a certificate is intended which at least meets the requirements specified in the law for state certificates.</p> <p>2. The constitution of this state provides that the qualifications for the office of county superintendent of public instruction shall be fixed by law.</p> <p>3. A certificate issued by the state board of education, good for two years and not valid in high schools, cannot be said to be a state certificate within the meaning of the statutes of this state.</p> <p>4. A certificate issued by the county superintendent of public instruction in 1898, valid for three years in all schools of the state, must be held to be of a lower grade than a state certificate within the meaning of the law prescribing the qualifications of county superintendent of public instruction.</p> <p>[As to quo warranto proceedings involving a public office, see note in 125 Am. St. 635.]</p>

Hon. J. J. Guheen, Judge. Appeal from an order appointing a receiver, an order denying and overruling a motion to vacate and set aside the receivership and an order authorizing and directing the sale of property held thereunder. Said orders are final orders or decisions and are not appealable to this court by direct appeal. (Chemung Mining Co. v. Hanley, 11 Ida. 302, 81 Pac. 619.)

<p>Mandamus — Judgments—Penality.</p> <p>1. A writ of mandate will not issue where the party seeking it has a plain, speedy and adequate remedy at law.</p> <p>2. A final judgment is one which disposes of the subject matter of the controversy or determines the litigation between the parties on its merits.</p> <p>3. If that whieh may come before the court for further action is necessary for carrying the judgment or decree into effect, or is merely in execution thereof, it is final and appealable.</p> <p>[As to one’s right to apply for the writ of mandamus against judicial officer where having right to appeal, see note in 98 Am. St. 891.]</p>

Hon. Wm. A. Babcock, Judge. Action for an injunction. Judgment for defendants. The statute, granting to railroads the right of way through the public lands of the United States, should be liberally construed with a view to effectuating the purpose which Congress had in enacting it.

<p>Notice op Appeal — Time op Service — Absence op Certificate prom Transcript — Dismissal.</p> <p>1. Where the notice of appeal is not filed until after the expiration of the time fixed by statute, this court acquires no jurisdiction of the cause. .</p> <p>2. Where the transcript or record on appeal from an order denying a motion for a new trial does not contain a certificate of the trial judge, clerk or attorneys that the papers therein contained constitute all of the records, papers and files considered and acted upon ■by the trial court, upon the hearing of the motion, as required by see. 4821, Rev. Codes, and Rule'24 of the rules of this court, the appeal must be dismissed.</p>

<p>APPEAL from the District Court of the Sixth Judicial District, for Lemhi County. Hon. James G. Gwinn, Presiding Judge.</p> <p>Action to determine priority of water rights. Motion to dismiss appeal.</p> <p>Where the transcript fails to show compliance with the statute and all rules of court in taking an appeal, the same will be dismissed. (Flynn’s Dig., p. 30.)</p> <p>Where the transcript was not settled until after the motion for a new trial had been heard, the same will be stricken from the record on appeal. (Wood v. Tanner, 15 Ida. 689, 99 Pac. 123, 1053; Mattabaugh v. Vollmer, 5 Ida. 23, 46 Pac. 831.)</p> <p>“When the transcript on appeal has not been filed with the clerk of this court within the time provided by the rules, and it does not appear that an extension of time has been granted, a motion to dismiss the appeal will be sustained.” (California Consolidated Min. Co. v. Manley, 12 Ida. 221, 85 Pac. 919; First Nat. Bank v. Shaw, 24 Ida. 134, 132 Pac. 802; Fischer v. Davis, 24 Ida. 216, 133 Pac. 910.)</p> <p>The praecipe must be filed within five days. (Sess. Laws 1911, p. 375; Strand v. Crooked Fiver Min. & Mill Co., 23 Ida. 577, 131 Pae. 5.),</p>

<p>APPEAL from the District Court of the Fourth Judicial District, for Twin Falls County. Hon. Wm. A. Babcock, Judge.</p> <p>Action to recover for services rendered. Judgment for plaintiff.</p> <p>We rely upon the case of Weeter Lumber Co. v. Fates, 20 Ida. 255, Ann. Cas. 1913A, 403, 118 Pac. 289, and contend that under that case even were Dobson a resident of this state, he would not need personal notice, and that it is a matter for him to settle as to whom he wants as his attorney.</p> <p>Counsel for Frambach also represents Dobson, the nonresident, as well as the Aultman & Taylor Machinery Company, the principals, and is ready and willing and has ample authority to bind Dobson, the nonresident, and the Aultman & Taylor Company to abide by any judgment rendered by this court.</p> <p>The appeals of Frambach taken from the order of June 1st must be dismissed. The record shows that as to these appeals Dobson is an adverse party, and that in neither appeal was notice served on him. (Jones v. Quantrell, 2 Ida. 153, 9 Pac. 418; Coffin v. Edgington, 2 Ida. 627, 23 Pac. 80; Diamond Bank v. Van Meter, 18 Ida. 243, 21 Ann. Cas. 1273, 108 Pac. 1042, and cases cited in opinion; Miller v. Wallace, 26 Ida. 373, 143 Pac. 524; State Batik v. Watson, 27 Ida. 211, 148 Pac. 470.X</p> <p>Although a party has defaulted, if an appeal affects his rights, he is to be regarded as an adverse party and is entitled to notice. (Titiman v. Alamance Mining Co., 9 Ida. 240, 74 Pac. 529; Baker v. Brews, 9 Ida. 276, 74 Pac. 1130.)</p>

<p>APPEAL from the District Court of the Sixth Judicial District, for Lemhi County. Eton. James R. Bothwell, Presiding Judge.</p> <p>Action to recover the par value of certain bank stock alleged to have been held by a stockholder of an insolvent state bank. Judgement for plaintiff.</p>

Hon. Chas. P. McCarthy, Judge. Action on contract. Judgment for plaintiff. It is nowhere alleged in the complaint that the debt sued upon was incurred for the use and benefit of the separate estate of the appellant. The failure to so allege is fatal; no recovery can be had against a married woman without such an allegation and proof thereof.

<p>APPEAL from the District Court of the Fifth Judicial District, for Bear Lake County. Hon. J. J. Guheen, Judge.</p> <p>Action for foreclosure of mortgage. Judgment for plaintiff.</p> <p>The defense and cross-action is for a rescission of the contract of sale. In such an action it must appear from the allegations that the party seeking to rescind Is not guilty of laches. He must have acted promptly and without delay, otherwise a ratification is presumed. (Elliott on Contracts, secs. 2430, 2431; Breshears v. Callender, 23 Ida. 349, 131 Pac. 15.)</p> <p>An action for relief on the ground of fraud must be commenced within three years after the commission of the fraud or the discovery thereof. (See. 4054 (4), Rev. Codes.)</p> <p>An irrigation district is a public corporation, and all of the inhabitants thereof are chargeable with notice. (Little Willow Irr. Hist. v. Haynes, 24 Ida. 317, 133 Pac. 905.)</p>

<p>APPEAL from the District Court of the Sixth Judicial District, for Custer County. Hon. F. J. Cowen, Judge.</p> <p>Order confirming receiver’s sale.</p> <p>Service of notice of appeal upon all adverse parties is jurisdictional, and without such service the appeal must be dismissed. (Anderson v. Knott, 1 Ida. 626; Slocum, v. Slocum, 1 Ida. 589; Diamond Bank v. Van Meter, 18 Ida. 243, 21 Ann. Cas. 1273, 108 Pac. 1042; Bridgltam v. National Foie Go., 27 Ida. 214, 147 Pae. 1056; State Bank v. Watson, 27 Ida. 211, 148 Pac. 470; Berlin Mach. Works v. Bradford-Kennedy Co., 21 Ida. 669, 123 Pae. 637.)</p> <p>A purchaser at a judicial sale is an adverse party, and must be served with notice of appeal. (3 C. J. 1014-1016; Smith v. Noble Bros. (Okl.), 153 Pac. 1150; Hibemvia Sav. & L. Soc. v. Leiuis, 111 Cal. 519, 44 Pac. 175; Thompson v. Superior Court, 119 Cal. 538, 51 Pac. 863; McDonald v. Citizens’ Nat. Bank, 58 Kan. 461, 49 Pac. 595; Sanders v. Wade, 17 Ky. L. 205, 30 S. W. 656.)</p>

Hon. Chas. P. McCarthy, Presiding Judge. Proceedings upon the reports of commissioners of a drainage district. Judgment in favor of remonstrants. “The word ‘lands’ includes the beds of non-navigable lakes and streams, and lands are none the less land for being covered with water.” (1 Wash.

<p>APPEAL from the District Court of the Sixth Judicial District, for Lemhi County. Hon. J. M. Stevens, Judge.</p> <p>Action for damages. Judgment for plaintiff.</p> <p>No evidence was given showing that the collateral heirs suffered any damages. Such heirs must prove probable loss or their recovery will be limited to nominal damages. (Burk v. Areata & Mad River R. Go., 125 Cal. 364, 73 Am. St. 52, 57 Pae. 1065.)</p> <p>The entire evidence did not show any negligence on the part of the defendant company, and it was shown by the evidence that if the accident was due to anyone’s negligence, it was to the negligence of the fellow-workmen of the deceased. (New Pittsburg Goal etc. Go. v. Peterson, 136 Ind. 398, 43 Am. St. 327, 35 N. E. 7; Larsen v. LeDoux, 11 Ida. 49, 81 Pac. 600; Smith v. Potlatch Lumber Go., 22 Ida. 782,128 Pac. 546; Ell v. Northern Pac. R. R. Co., 1 N. D. 336, 26 Am. St. 621, 48 N. W. 222, 12 L. it. A. 97; McKíllop v. Superior Shipbuilding Co., 143 Wis. 454, 127 N. W. 1053; Keenan v. New York & Lake Erie Western R. Co., 145 N. Y. 190, 45 Am. St. 604, 39 N. E. 711; McKinnon v. Norcross, 148 Mass. 533, 20 N. E. 183, 3 L. R. A. 320; Bagley v. Consolidated Gas Co., 5 App. Div. 432, 39 N. Y. Supp. 302; Kliegel v. Weisel 6 Vilter Mfg. Co., 84 Wis. 148, 53 N. W. 1119.)</p> <p>Instructions Nos. 4 and 27 were wrong and misleading, for the reason that they in no sense are restrictive as to the amount of damages which the jury were entitled to assess. (Holt v. Spokane etc.'P. R. Co., 3 Ida. 703, 711, 35 Pac. 39; Burle v. Areata & Mad River R. R. Go., supra; Morgan v. Southern Pac. Go., 9.5 Cal. 510, 29 Am. St. 143, 30 Pac. 603, 17 L. R. A. 71; Green v. Southern Pac. Go., 122 Cal. 563, 55 Pae. 577; Hillebrand v. Standard Biscuit Go., 139 Cal. 233, 73 Pac. 163; Ruppel v. United Railroads of San Francisco, 1 Cal. App. 666, 82 Pac. 1073; Simoneau v. Pac. Electric Ry. Go., 159 Cal. 494, 115 Pac. 320, 2 N. C. C. A. 137; In re Calif. & Imp. Go., 110 Fed. 670; Christensen v. Floriston Pulp <8 Paper Go., 29 Nev. 552, 92 Pac. 210.)</p> <p>Where the next of kin are collateral kindred of the deceased, and have not received pecuniary aid from him and are not in a situation to require it, only nominal damages can be recovered. (Rhoads v. Chicago & Alton R. R. Co., 227 111. 328, 10 Ann. Gas. Ill, 81 N. E. 371, 11 L. R. A., N. S., 623; Wabash R. Co. v. Cregan, 23 Ind. App. 1, 54 N. E. 767; Cleveland, G. G. & St. L. R. Go. v. Hrumm, 32 Ind. App. 547, 70 N. E. 286; Atchison, T. & Scmte Fe R. Co. v. Weber, 33 Kan. 543, 52 Am. Rep. 543, 6 Pac. 877; Howard v. Delaware (8 Hudson Canal Go., 40 Fed. 195, 198, 6 L. R. A. 75; Falkenau v. Rowland, 70 111. App. 20; City of Chicago v. Scholten, 75 111. 468; Romeo v. Western Goal <8 M. Go., 157 111. App. 67; Chicago & N. W. Ry. Go. v. Swett, 45 111. 197, 92 Am. Dec. 206; Munroe v. Pacific Coast Dredging etc. Go., 84 Cal. 515, 18 Am, St. 248, 24 Pac. 303; Pepper v. Soutlvern Pac. Go., 105 Cal. 389, 38 Pac. 974; Golden v. Spoltane etc. R. Go., 20 Ida. 531, 118 Pac. 1077; Pool v. Southern Pac. Go., 7 Utah, 303, 26 Pac. 654.)</p> <p>We insist upon the definition of the word “pecuniary” adopted by the supreme court of Idaho, and the supreme court of the United States, and contend that loss of companionship of a brother is, in fact, a pecuniary loss.</p> <p>Sec. 4100, Rev. Codes, does not limit the damages to pecuniary loss, and does not refer in any way to pecuniary loss or pecuniary damages, but provides that “such damages may be given as under all the circumstances of the case may be just. ’ ’ For the court to interpolate into the statute that damages can be given only'when the loss of money is alleged and shown by evidence would be judicial legislation. (Holt v. Spokane etc. B. Co., 3 Ida. 703, 35 Pac. 39; Anderson v. Great Northern B. Go., 15 Ida. 513, 99 Pac. 91; Nehrbas v. Central Pac. B. Co., 62 Cal. 320; Beeson v. Green Mt. G. M. Co., 57 Cal. 20; Illinois Cent. B. Co. v. Barron, 5 Wall. (72 U. S.) 90,18 L. ed. 591; Houghkirk v. President, etc., 92 N. Y. 219, 225, 44 Am. Eep. 370; Chicago v. Major, 18 111. 349, 68 Am. Dec. 553.)</p> <p>In the following cases it is distinctly held that loss of society is pecuniary loss: Peters v. Southern Pac. Co., 160 Cal. 48, 70, 116 Pac. 400; Hale v. San Bernardino Valley Traction Co., 156 Cal. 713, 716, 106 Pac. 83; Clark v. Tulare Lake Dredging Co., 14 Cal. App. 414, 434, 112 Pac. 564; Evarts v. Santa Barbara Consol. B. Co., 3 Cal. App. 712, 714, 86 Pac. 830; Mize v. Bocky Mt. Bell Tel. Co., 38 Mont. 521, 535, 129 Am. St. 659, 16 Ann. Cas. 1189, 100 Pac. 971.</p> <p>The reasonable expectation of pecuniary benefit to the next of kin by inheritance, or otherwise, from the continuance in Efe of the deceased was the proper measure of damages. {Dickens v. New York C. B. Co., 23 N. Y. 158; Kane v. Mitchell Trans. Co., 90 Ilun, 65, 35 N. Y. Supp. 581; Kelly v. Twenty Third St. By. Co., 14 Daly (N. Y.), 418; Holmes v. Oregon é C. B. Co., 6 Sawy. 275, 5 Fed. 523; Holland v. Brown, 13 Sawy. 284, 35 Fed. 43; Pennsylvania B. Co. v. Mc-Closkey’s Admr., 23 Pa. 526.)</p> <p>In order for the negligence of fellow-servants to defeat an action of this kind, it must appear that the death was caused solely by the negligence of fellow-servants. If the negligence of the master commingles with that of a fellow-servant of the deceased, the master is liable. (4 Thomp. Neg., secs. 4856, 4858; Kennedy v. Grace & Hyde Co., 92 Fed. 116.)</p> <p>A master must indemnify a servant who is injured by the negligence of a fellow-servant, when the delinquency consists in a failure to discharge properly either the function of furnishing the instrumentalities with which the business is carried on or the function of keeping those instrumentalities up to the legal standard of safety while they continue to be used. {Hough v. Texas & Pac. B. B. Co., 100 U. S. 213, 25 L. ed. 612; Northern Pac. R. Go. v. Herbert, 116 U. S. 643, 6 Sup. Ct. 590, 29 L. ed. 755; Northern Pac. R. Go. v. Peterson, 162 U. S. 346, 16 Sup. Ct. 843, 40 L. ed. 994.)</p> <p>The master owes the duty to his servant to use ordinary care and diligence to provide such sound and sufficient appliances or instrumentalities as are reasonably calculated to insure the safety of the servant in performing the service, to discover and repair any defect therein, and to provide a reasonably safe place in which -to perform the service; and if he fail in either of these respects, and injury result to the servant because of such failure, the master will be liable. (4 Thompson on Neg., secs. 3986-3988.)</p> <p>Collateral heirs may sue and recover substantial damages in a case of this kind. (Whitley v. Spokane etc. R. Go., 23 Ida. 642, 132 Pac. 121; St. Louis etc. R. Go. v. Moore, 101 Miss, 768, Ann. Cas. 1914B, 597, 58 So. 471, 39 L. R. A., N. S., 978; Florida etc. R. Go. v. Foxworth, 41 Fla. 1, 79 Am. St. 149, 25 So, 338; Mize v. Rocky Mt. Bell Tel. Co., 38 Mont. 521, 129 Am. St. 659,16 Ann. Cas. 1187,100 Pac. 971.)</p>

<p>APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. J. J. Guheen, Judge.</p> <p>Suit for injunction. Judgment for plaintiffs.</p> <p>Whether the corporate stock had been properly increased was a question only the state could raise. (Pullman v. Upton, 96 U. S. 328, 24 L. ed. 819; Stutz v. Hcmdley, 41 Fed. 531.)</p> <p>If a corporation is authorized by law to increase its capital stock, upon complying with certain prescribed forms or conditions and the corporation or its agents appear to have endeavored to comply with the prescribed forms or conditions, and have in fact increased the company’s capital stock by issuing new shares, on the assumption that the legal right to increase the capital stock has been acquired, and if the holder of such new shares has acted as a shareholder, and enjoyed the rights of the shareholder, then the creation of such new shares will be recognized by the courts, and given effect according to the intention of the parties, although statutory forms or conditions were not complied with, and no legal right to create the new shares was in fact obtained. (Morawetz on Private Corporations, sec. 763.)</p> <p>The records of a corporation furnish the evidence of its acts and transactions and parol evidence is not admissible as proof thereof. (Corcoran v. Sonora Min. & Mill. Co., 8 Ida. 651, 71 Pac. 127.)</p> <p>“Other modes of service may be given the force of such service by legislative enactment, but the use of the words ‘personal service,’ unqualified, in a statute, means actual service by delivering to the person and not to a proxy.” (Brooks v. Orchard Land Co., 21 Ida. 212, 121 Pac. 101.)</p> <p>“The power to increase the capital stock of a corporation can only be exercised by the stockholders at a meeting called for that purpose.” (Wolf v. Chicago Sign Printing Co., 233 111. 501, 13 Ann. Cas. 369, 84 N. E. 614; Matthews v. Columbia Nat. Bank, 79 Fed. 558.)</p> <p>Even though the meeting was an annual meeting, the capital stock could not be increased or the number of directors decreased unless sec. 2773 was followed. (Jones v. Concord etc. B. B., 67 N. H. 119, 38 Atl. 120.)</p> <p>A certificate of increased stock issued before the statutory requirements have been complied with is worthless. (Lincoln v. New Orleans Exp. Co., 45 La. 729, 12 So. 937; Wood v. Union Gospel Church Bldg. Assn., 63 Wis. 9, 22 N. W. 756; Fishback v. Fon Du Lac etc. B. Co., 158 Fed. 88, 88 C. C. A. 367.)</p>

<p>APPEAL from the District Court of the Ninth Judicial District, for Madison County. Hon. James G. Gwinn, Judge.</p> <p>Appeal from an order of the board of county commissioners creating a new school district. Judgment for defendants.</p> <p>If it be held that the provisions of the statute embrace within their terms this class of districts, they being formed only upon the petition of the majority of heads of families, jurisdiction to dismember, segregate or disorganize them could be conferred only by petition of two-thirds of the heads of families, as provided in the law. (Wood v. Independent School Dist., 21 Ida. 734, 124 Pac. 780.)</p> <p>If the order had been made by the board while sitting in session, it would be effective without the chairman’s signature, but not having been made by the board, and being only an act of the clerk, though all of the members gave their separate or individual sanction to it, it would still be invalid, as not being the act of the board. (Rankin v. Jauman, 4 Ida. 394, 39 Pac. 1111; Miller v. Smith, 7 Ida. 204, 61 Pac. 824; Conger v. Latah County Commrs., 4 Ida. 740, 48 Pac. 1064; 11 Cyc. 391, 392; Mahr v. Pottawomie County Commrs., 26 Okl. 628, 110 Pac. 751.)</p> <p>Extrinsic evidence is not admissible to vary or explain this record. (Gorman v. Boise County Commrs., 1 Ida. 553; Ex parte Young, 154 Cal. 317, 97 Pac. 822, 22 L. R. A., N. S., 330; 17 Cyc. 582.)</p> <p>“The legislature intended to provide how two different kinds of school districts might be organized by the board of county commissioners, one upon petition and the other by a petition and vote.” (Wood v. Independent School Dist., 21 Ida. 734,124 Pac. 780.)</p> <p>In this instance it was not sought to vary the public record, but simply to explain and identify it, and this is permissible under all the authorities. (17 Cyc. 587.)</p> <p>If the members present agree to and approve the passing of the petition, it is passed as effectively as if done upon formal motion. The statute does not require the minutes of the board to be approved by the board at any meeting or while in session. The only requirement is that the chairman and clerk sign the minutes. (People v. Eureka Lake <& Y. C. Go., 48 Cal. 143.)</p> <p>It is the consent, sanction and approval by signing that gives legal life and vitality to the order and not the formality with which it was passed. (11 Cyc. 394; Rock v. Rinehart, 88 Iowa, 37, 55 N. W. 21.)</p>

<p>Bill or Exceptions — Settlement by Supreme Court.</p> <p>1. Where a petition has been presented to this court asking that a reporter’s transcript be settled as a bill of exceptions and the reporter’s transcript does not accompany the petition, there is nothing before this court upon which it can act.</p> <p>2. Under the statutes of this state the supreme court has no power to settle an entire bill of exceptions, but its power is restricted to those cases where the trial court failed to allow an exception and not where the court refused to settle the transcript as a whole.</p>

Hon. J. J. Guheen, Judge. Action for debt. Judgment for defendant. “To rescind a contract for the purchase of a chattel the property purchased should be returned, or offered to be returned, within a reasonable time, unless it is of no value to either party.” (Gale Sulky Harrow Mfg.