Volume 31 — Idaho Reports

<p>Contract — Performance of — Broker—Commission—Conflicting Evidence — Judgment on.</p> <p>Held, where there is substantial evidence to support the verdict of a Jury, the same will not be disturbed on appeal.</p>

<p>APPEAL from the District Court of the Fourth Judicial District, for Minidoka County. Hon. James R. Bothwell, Judge.</p> <p>Action to enjoin levy of execution and for damages. Judgment for plaintiffs.</p> <p>In a collateral attack on the judgment, the only evidence that is admissible in support of such attack is the judgment-roll, and if that shows on its face the court had no jurisdiction, the judgment is absolutely void; otherwise it is valid. “Only such facts and circumstances can be shown or relied on in support of such attack as affirmatively appear on the face of the record or what under the law constitutes the judgment-roll.” (O’Neill v. Potvin, 13 Ida. 721, 93 Pac. 20, 257.)</p> <p>If any fraud or misrepresentation is alleged or shown by the evidence, it is directly involved in the original action. Such a fraud is not sufficient to support a complaint to set aside the judgment rendered in the original action. (Donovan v. Miller, 12 Ida. 600, 10 Ann. Cas. 444, 88 Pac. 82, 9 L. R. A., N. S., 524.)</p> <p>Complainants having had an opportunity in the original action of presenting the same defense as here offered, their remedy is lost; for their rights were exhausted- when they chose to open and have set aside the first default. (Richards v. Richards, 24 Ida. 87, 132 Pac. 576.)</p> <p>“If a person sued upon a cause of action which he knows he has discharged by payment, neglects to make his defense or chooses to waive it, equity will leave him to reap the consequences of his folly.” (Pearce v. Vhastain, 3 Ga. 226, 46 Am. Dec. 423; McGehee v. Gold, 68 111. 215; Ahl v. Ahl, 71 Md. 555, 18 Atl. 959.)</p> <p>■ A court of equity will not restrain the enforcement of a judgment at law on the ground of want of consideration in the contract sued on or that it was against public policy, where the defendant through negligence of his attorneys, failed to set up such defenses in the original action. (Donovan v. Miller, supra; Little Rock & Ft. Smith Ry. Co. v. Wells, 61-Ark. 354, 54 Am, St. 216, 248, 33 S. W. 208, 30 L. R. A. 560.)</p> <p>All evidence aliunde the original record was inadmissible, and plaintiff’s ease is inadequate, because the complaint does not set up, nor have they proved, a good and meritorious defense. {Bernhard v. Idaho Bank & Trust Co., 21 Ida. 598, Ann. Cas. 1913E, 120, 123 Pac. 481.).</p> <p>When the judgment was entered, it'was never intended for the Title Guaranty and Surety Co., notwithstanding they so stated to the Lewis and Jackson Construction Co. That being so, the judgment as entered was clearly fraudulent, and the action to restrain an execution thereon was proper. (23 Cye. 989, 992.)</p> <p>The right of the Title Guaranty and Surety Co. to a judgment is n,ot questioned if they go about it in the proper way, and being misled by statements of the appellants, respondents supposed that was what was being done at the second default and hence made no appearance, and they supposed also the judgment, if one was entered for the Title Guarantee and Surety Co., would be for $570.11 only. Upon these facts the injunction was proper. (Kelley v. Kriess, 68 Cal. 210, 9 Pac. 129; Thompson v. Lcmghlin, 91 Cal. 313, 27 Pac. 752; Camp-hell v. Durand (Utah), 115 Pac. 986-989; Handley v. Jackson, 31 Or. 552, 65 Ani. St. 839, 50 Pac. 915; Cline Piano Co. v. Sherwood, 57 Wash. 239, 106 Pae. 742; Harris v. Smiley, 36 Okl. 89, 128 Pac. 276; Missouri Pac. By. Co. v. Beid, 34 Kan. 410, 8 Pac. 846.)</p> <p>The judgment being fraudulently obtained, the execution too was fraudulently issued, and though legal on its face, when set aside it affords no protection to the party in whose interest it was issued. (4 Cyc. 831.)</p>

Hon. ¥m. A. Babcock, Judge. Action for damages alleged to have been caused by defective bridge.

Hon. James G. Gwinn, Judge. Action for damages and injunction. Judgment for defendant. The wasting of water having been expressly prohibited by the legislature, constitutes a public nuisance. (Secs. 3293, 7144, Rev. Codes; Lewis v. Stein, 16 Ala. 214, 50 Am.

<p>Larceny — Proof of Want of Consent.</p> <p>Beld, where there is no direct proof and a total absence of circumstantial evidence to prove want of consent of the owner to the taking of the animal, the evidence is insufficient to sustain a conviction of grand larceny.</p> <p>[As to when animals are subjects of larceny, see note in 47 Am. Eep. 765.]</p>

Hon. James G. Gwinn, Judge. Appellant was convicted of maintaining a common nuisance in a prohibition district. The state cannot prove against the defendant any crime not alleged, either as the foundation for separate punishment or for the purpose of aiding to prove that he is guilty of the one charged.

Hon. James G. Gwinn, Judge. Appeal from a judgment dismissing an appeal from the probate court. “The application for such relief (to set aside default) must be made within a reasonable time, not later than sis months from the rendering of the decree, or the making of the order, or the occurrence of the proceedings sought to be set aside.” (Chandler v. Probate Court, 26 Ida. 173, 141 Pac. 635.) The proper procedure, if notice was insufficient, would be to set aside the…

<p>Intoxicating Liquors — Delivery or — Prohibition District — Interstate Shipment — Police Power.</p> <p>1. Under see. 25, S. B. 62, Sess. Laws 1909, p. 17, whieb provides that, “Any persons .... who shall ship, transport or deliver any intoxicating liquors to any person .... in any prohibition district in the state of Idaho, or to any point or plaee in this state where the sale of intoxicating liquors is prohibited by law .... shall be guilty of a misdemeanor.....” It is a misdemeanor to deliver intoxicating liquor to any person in sueh plaee, without regard to whether the liquor is intended for sale, or merely for his personal use, and this notwithstanding the fact that the act does not make mere possession a crime, nor does the fact it was interstate shipment alter the rule.</p> <p>On constitutionality, construction and effect of Webb-Kenyon Aet, see note in L. R. A. 1917B, 1229.</p> <p>Por authorities discussing the validity of Webb-Kenyon Aet, see note in L. R. A. 1917B, 1218.</p> <p>2. The above section held to be a valid exereise of the police power.</p> <p>[As to validity of statute forbidding bringing of liquor into prohibition territory, see note in Ann. Cas. 1917A, 740.]</p>

<p>APPEAL from the District Court of the Fifth Judicial District, for Bear Lake County. Hon. J. J. Guheen, Judge.</p> <p>Action for damages. Judgment for plaintiff.</p> <p>A railroad company is not bound by the present statute to construct and maintain cattle-guards at all highway crossings in cities, and especially where there is no pleading or proof that at such places the road runs through or along inclosed or cultivated fields or inclosed lands. (Bernardi v. Northern Pacific Ry. Go., 18 Ida. 76, 108 Pac. 542, 27 L. R. A., N. S., 796; Reid v. San Pedro, L. A. ó S. L. R. Go., 42 Utah, 431, 132 Pac. 253.)</p> <p>Statutes creating a liability where none would otherwise exist must be strictly construed. (Perkins v. Loiox, 14 Ida. 607, 95 Pac. 694; Sherwood v. Stephens, 13 Ida. 399, 90 Pac, 345.)</p> <p>In order to avoid absnrd consequences we must conclude that the word “such” as repeatedly used by the legislature had reference to steam or electric railroads operated through or along inclosed or adjoining cultivated fields.</p> <p>The statute does not provide either expressly or by implication in the title that the railroad company shall construct and maintain cattle-guards at places where it is not “required” to fence. (Hailey v. Huston, 25 Ida. 165, 136 Pac. 212; State v. Paulsen, 21 Ida. 686, 123 Pae. 588; State v. Porch, 26 Ida. 755, 146 Pac. 110-112.)</p> <p>Where one bases a right of recovery solely on a special statute creating a new liability, he must plead and prove the facts showing his right to recover under such statute. (Kelly v. Northern Pac. B. Co,, 35 Mont. 243, 88 Pae. 1009; Miley v. Northern Pac. B. Co., 41 Mont. 51, 108 Pac. 5; Sherwood v. Stephens, supra.)</p>

<p>APPEAL from the District Court of tbe Fifth judicial District, for Bear Lake County. Hon. J. J. Gubeen, Judge.</p> <p>Action on contract. Judgment for plaintiffs.</p> <p>If one contracts to do work subject to the approval of the agent of the other, such an approval is an essential prerequisite to the right of action for the price. (Denver ete. By. Go. v. Biley, 7 Colo. 494, 4 Pae. 785; S Am. & Eng. Ency. of Law, 911; 9 Cyc. 700, 702; Olympia Mining & Mill Go. v. Kerns, 24 Ida. 481, 135 Pate. 255.)</p> <p>A condition in contract to refer any question which may arise out of the contract will be, if so stated, a condition precedent to the right to sue on the contract. (6 R. C. L. 905.),</p> <p>A sum of money payable on a contingency does not become a debt until the contingency has happened. (People v. Arguello, 37 Cal. 524.)-</p> <p>In order to prevent a default, the defendant must see to it that his appearance is filed with the proper officer, and to file it means to deposit it with the proper custodian for filing or custody and the tender of the legal fee as provided by law. (O’Connor v. Board of Comrnrs., 17 Ida. 346, 105 Pac. 560.).</p> <p>“An action lies against one into whose hands money belonging to plaintiff can be traced, as well as where he received the money in the first instance.” (Levine v. Klem, 65 Misc. Rep. 498, 120 N. T. Supp. 196; 27 Cyc. 869.)</p> <p>This is clearly an action for money had and received and is an action upon contract, that is, an action wherein the law implies a promise that one person will pay money in his possession to another. (Jackson v. Creek, 47 Ind. App. 541, 94 N. E. 416; 27 Cyc. 857, 869.)</p> <p>It might have been better pleading to have alleged specifically that plaintiffs had secured appellant’s approval of the work, — still, the complaint is not defective in the sense that it is not sufficient to support the judgment. (Wyman v. Hooker, 2 Cal. App. 36, 83 Pac. 79; Fox v. Cowperthwait, 60 App. Div. 528, 69 N. T. Supp. 912; West v. Johnson, 15 Ida. 681, 99 Pac. 709.) ,</p>

<p>Banks and Banking — Insolvency—Depositor—Trust Fund.</p> <p>Where a party who is indebted to a bank leaves with it, as security, notes belonging to him, and authorizes it to collect upon them and apply a portion of the proceeds to the payment of his debt, and instructs it to not deposit the balance, but to deliver it to a third person, and the cashier, contrary to such instruction, deposits the balance in the bank, such balance is not a general but a special deposit, or trust fund.</p> <p>[As to a bank’s liability for special deposits, see note in 9 Am. Dec. 183.]</p> <p>For authorities on. the question as to when a deposit is special so that the title remains in the depositor, see note in 16 L. R. A. 516; 39 L. R. A., N. S., 847.</p>

<p>Public Lands — Adverse Possession — Statute of Limitations — Findings Based on Conflicting Evidence — Belinquishment.</p> <p>1. Adverse possession of tbe public lands of tbe United States cannot be initiated by any claimant prior to the issuance of patent when such possession is asserted in defense of a title adverse t.o the government, and the statute of limitations with reference thereto does not begin to run until patent issues.</p> <p>2. Where an action is tried to the court without a jury and the evidence is conflicting, but there is substantial evidence in support of the findings of the court, such findings will not be disturbed by the appellate eourt on appeal.</p> <p>3. Held, that one Wallace, respondent’s predecessor in interest to the land in controversy, having parted with his title "in favor of respondent’s grantor Beymer, was not thereafter in a position to make a valid relinquishment' of said land in favor of another claimant, and whatever rights appellant obtained in said land, if any, must have been initiated at the time he filed his homestead entry and went into possession.</p> <p>[As to adverse possession of public lands, see note in 76 Am. St. 479.]</p>

Hon. Wm. A. Babcock, Judge. From a conviction for grand larceny defendants appeal. Held: any irregularity as to the place where the court held the examination would be waived by failure to object at that time.

<p>APPEAL from .tbe District Court of the Fourth Judicial District, for Twin Falls County. Hon. Wm. A. Babcock, Judge. •</p> <p>Motion to dismiss the appeal.</p> <p>The right to diminute at the suggestion of either party has been repeatedly recognized by the decisions of this court, both as to supplying the omitted papers and the correction of the clerk’s certificate. . (Zienhe v. Northern Pac. By. Co., 7 Ida. 746, 65 Pac. 431; Smith v. Intermountain Auto Co., 25 Ida. 212, 136 Pac. 1125; Steensland\ v. Hess, 25 Ida. 181, 136 Pac. 1124.X</p> <p>The certificate of the clerk to the transcript is insufficient, and the transcript does not contain copies of all papers as required by law. {Fouch v. Bates, 18 Ida. 382, 110 Pac. 265 ; Coon v. Sommercamp, 26 Ida. 787, 146 Pac. 728; D.udacek v. Vaught, 28 Ida. 442, 444, 154 Pac. 995; Simmons Hardware Co. v. Alturas Commercial Go., 4 Ida. 386, 389, 39 Pac. 553; Trueman v. Village of St. Maries, 21 Ida. 632, 123 Pac. 508; Taylor v. McCormick, 7 Ida. 524, 64 Pac. 239; Beck v. Holland, 28 Mont. 460, 72 Pae. 972; In re Gamble Estate, 166 Cal. 253, 135 Pac. 970; Porter v. Ewing, 51 Fla. 265, 641, 39 So. 996; Anderson v. Long, 48 Fla. 212, 37 So. 565; Mallory v. Waugh, 5 Kan. App. 879, 48 Pae. 147.)</p> <p>“Ordinarily compliance with regulations as to appeals is a condition precedent to the right of review, without which unless waived the right of appeal is lost and the appeal will be dismissed.” (4 C. J. 565; Steamboat Zephyr v. Brown, 2 Wash. Ter. 45, 3 Pac. 186; Penny v. Hez Perces County, 4 Ida. 642, 43 Pac. 570; Pence y. Lemp, 4 Ida. 526, 43 Pae. 75.)</p>

o APPEAL from the District Court of the Seventh Judicial District, for the County of' Canyon. Hon. Ed. L. Bryan, Judge. Aetion to recover upon promissory note. Where there is no confidential relation involved, a party is not entitled to have a contract set aside on the grounds of fraud, mistake or misrepresentation, if such party negligently sign the contract. (McNinch v. Northwest Thresher Go., 23 Old. 386, 138 Am.

<p>APPEAL from the District Court of the Ninth Judicial District, for Fremont County. Hon. James G. Gwinn, Judge.</p> <p>Action for damages for personal injury.</p> <p>“When damages arise from one of two causes, for one of which the defendant is responsible, and for the other of which it is not responsible, the plaintiff must fail if his evidence does not show that the damages were produced by the former cause; and he must fail also if it is just as probable that they were caused by one as the other.” (Powers v. Pere Marquette B. Go., 143 Mich. 379, 106 N. W. 1117.)</p> <p>And under such circumstances a verdict will be set aside upon the ground that it cannot be supported by speculation or conjecture. (Neal v. Chicago, B. I. & P. By. Co., 129 Iowa, 5, 105 N. W. 197, 2 L. R. A., N. S., 905; Union Pac. B. Co. v. Fickenscher, 74 Neb. 497, 105 N. W. 39, 110 N. W. 561.)</p> <p>‘ ‘ Inferential evidence of negligence is overcome by defendant’s undisputed testimony negativing negligence, so that, if plaintiff’s case rests wholly on inferential evidence, the case should be taken from the jury.” {Bichards v. Oregon Short Line B. Co., 41 Utah, 99, 123 Pac. 933.)</p> <p>The jury may not arbitrarily disregard testimony of unimpeached witnesses supported by all the circumstances in the case. (Haddox v. Northern Pac. B. Co., 43 Mont. 8, 113 Pac. 1119 ; Sparks v. Bends Bros. Bag Co., 62 Wash. 625, 114 Pac. 442.)</p> <p>The judgment must be reversed because of misconduct of counsel. (Goldstone v. Bustemeyer, 21 Ida. 703, 123 Pac. 635; Petajaniemi v. Washington Water Power Co., 22 Ida. 20, 124 Pac. 783; McLean v. Hayden Creek Mining & Milling Co., 25 Ida. 416, 138 Pac. 331.)</p> <p>The effect of remarks of counsel was substantially and by •inference the same as commenting on excluded evidence, or of stating what counsel would have been able to prove had not the adverse party objected and the court excluded the evidence. (Haynes v. Trenton, 108 Mo. 123, 18 S. W. 1003; Festner v. Omaha & S. W. B. B. Co., 17 Neb. 280, 22 N. W. 557; Cook v. Doud, 14 Colo. 483, 23 Pac. 906; Southern By. Co. v. Shaw, 86 Fed. 865, 31 C. C. A. 70; Becker v. Philadelphia Bapid Transit Co., 245 Pa. St. 462, 91 Atl. 861.)</p> <p>“Where a motion for a nonsuit is made and overruled and the defendant introduces evidence to support his defense and makes a case upon the merits, the court and jury has a right to consider the whole case and the motion for a nonsuit is waived.” (Smith v. Potlatch Lumber Co., 22 Ida. 782, 128 Pac. 546; Tonkin Clark Bealty Co. v. Hedges, 24 Ida. 304, 133 Pac. 669.)</p> <p>On a motion by the defendant for a nonsuit after the plaintiff has introduced his evidence and rested his case, the defendant is deemed to have admitted all the facts of which there is any evidence, and all of the facts which the evidence tends to prove, and the evidence must be interpreted most strongly against the defendant. (Culver v. Kehl, 21 Ida. 595, 123 Pac. 301; Shank v. Great Shoshone & Twin Falls Water Power Co., 205 Fed. 833, 124 C. C. A. 35.)</p> <p>Where there is any evidence to support plaintiff’s case, a motion for nonsuit or directed verdict should be denied. (Martin v. Dowd, 8 Ida. 453, 69 Pae. 276; Powers v. Pere Marquette E. Go., 143 Mich. 379, 106 N. W. 1117.)</p>

<p>Equitable Estoppel — Assessment — Erroneous Description in Tax Sale Certificate — Tax Deed — Void Assessment for Lack of Correct Description.</p> <p>1. In order to apply the principle of equitable estoppel it is essential that the party claiming to have been influenced by the conduct or declarations of another to his injury was himself ignorant of the facts in question, and also without any convenient and available means of acquiring such knowledge. Where the facts are known to both parties or both have the same facilities for ascertaining the truth, there can be no estoppel.</p> <p>2. Where the true description of a tract of land sold for taxes is as follows: “beginning % of one mile west and % of one mile north of the southeast corner of said Section 22, Township 15 South of Range 24 East of Boise Meridian; thcnee running west 73 rods; thence north 75 rods; thence a little south of east 96 rods to the center of the county road; thence south along said road 35 rods to the place' of beginning; said latter piece containing 28 acres and 140 square rods, more or less,” but the tax sale certificate describes the tract as the W. % of the NE. % of the SE. % of see. 22, such certificate does not comply with the requirement of see. 1759, Rev. Codes, that it shall contain, among other things, “a description of the land sold,” and cannot operate as a conveyance of any part of the tract purported to be sold for taxes.</p> <p>3. See. 1763, Rev. Codes, required the assessor or ez-ojficio tax collector, in the event' property sold for taxes was not redeemed within three years from the date of sale, to make a deed therefor to the purchaser, “reciting in the deed substantially the matters contained in the certificate,” and where the tax sale certificate contains an erroneous description of the land, it cannot be cured by inserting the correct description in the deed.</p> <p>4. Secs. 1685 and 1718, Rev. Codes, required each tract of land to be separately assessed and described by sectional division or fractional subdivision when this could be done, and if not, then by metes and bounds or other description sufficient to identify it, giving an estimate of the number of acres and locality, and noncompliance with this requirement renders the assessment to that extent void.</p> <p>5. Where one valuation is fixed by the assessor for the entire assessment of a taxpayer’s land consisting of different parcels or subdivisions, and a portion of the land is correctly, and another portion erroneously, described, the owner is without data from which to determine what portion of the assessment was intended to apply to the land correctly described and what portion to the land erroneously described. He is therefore not in a position to effectively present the matter to the board of equalization for correction, or to pay the taxes on the land described correetly, and cannot be deemed t'o have had such notice as would enable him to ascertain what amount of taxes he should pay upon any portion of his land in order to prevent a delinquency, and it must be held that under such circumstances the taxpayer is deprived of the protection which the law is designed to secure him, and the' entire assessment is void.</p> <p>[As to recitals in tax deeds as evidence, see note in 31 Am. St. 233.]</p>

<p>Mortgage Foreclosure — Variance Between Pleadings and Proof— Correct Theory — ¡Conflicting Evidence — Instructions.</p> <p>1. Where both parties to an action try their case upon the same theory as to the issue tendered by the pleadings, they are bound by the theory so adopted.</p> <p>2. Where conflicting evidence upon an issue has been submitted to a jury, the verdict based thereon will not be disturbed.</p> <p>3. Where the jury has returned a verdict for thp defendant upon a counterclaim, and where it cannot be determined from the record whether the verdict was based upon a correct theory of the case or an erroneous instruction delivered by the trial court, such instruction is prejudicial error.</p> <p>[As to what are proper subjects of instructions to jury, see note in 72 Am. Dec. 538.]</p>

Hon. R. N. Dunn, Judge. Action for damages for personal injury. As between the plaintiff and the defendant, the defendant was under no obligation to inspect the poles to see whether they were decayed, and there was therefore no evidence of negligence on the part of the defendant. (Mclsaac v. Northhampton Electric Lighting Go., 172 Mass. 89, 70 Am. St. 244, 51 N. E. 524; Kellogg v. Denver City Tramway Co., 18 Colo.

<p>APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Chas. P.' McCarthy, Judge.</p> <p>Action on fire insurance policy. Judgment for plaintiff.</p> <p>The assured must comply with the terms of his contract in that he must file his proof of loss within sixty days after the fire. The court has no power to change that contract. It conforms to high public policy that the insured should notify the company within a reasonable time after the loss, so that the company may take such means as it deems necessary to make investigations as to whether the loss is a just one, and for the further reason that the public, as well as the company, is entitled to know what liabilities are outstanding against it. (White v. Home Mutual Ins. Co., 128 Cal. 131, 60 Pac. 666; Davis v. Northwestern Mut. Fire Assn., 48 Wash. 50, 15 Ann. Cás. 333, 92 Pac. 881; Davis v. Pioneer Mut. Ins. Assn., 44 Wash. 532, 87 Pac. 829; San Francisco Savings Union v. Western Assurance Co., 157 Fed. 695; Missouri Pac. By. Co. v. Western Assur. Co., 129 Fed. 610; Maier v. Fidelity Mut. Life Assn., 78 Fed. 566, 24 C. C. A. 239; Bruce v. Phoenix Ins. Go. (German Sav. <& Loan Society), 24 Or. 486, 34 Pac. 16; Citizens’ Mut. Fire Ins. Co. v. Conowingo Bridge Co., 113 Md. 430, 77 Atl. 378; Morris v. Dutchess Ins. Co., 67 W. Va. 368, 68 S. E. 22; Cast-ell v. Woodcock, 121 N. Y. Supp. 585; Scottish Union & National Ins. Co. v. Encampment Smelting Co., 166 Fed. 231, 92 C. ,C. A. 139; American Ins. Co. v. Haynie, 91 Ark. 43, 120 S. W. 825; Bennett v. Aetna Ins. Co., 201 Mass. 554, 131 Am. St. 414, 88 N. E'. 335; Smith v. Scottish Union■ & National Ins. Co., 200 Mass. 50, 85 N. E. 841; Commercial Fire Ins. Go. v. Waldren, 88 Ark. 120, 114 S. W. 210; Slocum v. Saratoga & Washington Fire Ins. Go., 149 App. Div. 867, 134 N. Y. Supp. 72; Peabody v. Satterlee, 166 N. Y. 174, 59 N. E. 818, 52 L. E. A. 956.)</p> <p>“If a policy of insurance provides that notice and proofs of loss are to be furnished within a certain time after loss has occurred, but does not impose a forfeiture for failure to furnish them within the time prescribed, and does impose forfeiture for a failure to comply with other provisions of the contract, the insured may, it is held, maintain an action, though he does not furnish proofs within the time designated, provided that he does furnish them at some time prior to commencing the action upon the policy.” (Joyce on Insurance, sec. 3282; Dakin v. Queen City Fire Ins. Co., 59 Or. 269, 117 Pac. 419; Nance v. Oklahoma Fire Ins. Co., 31 OKI. 208, 120 Pac. 948, 38 L. E. A., N. S., 426, 431; .Commercial Union Co. v. Shults, 37 Okl. 95, 130 Pae. 572; North British etc. Ins. Co. v. Edmunson, 104 Ya. 486, 52 S. E. 350; Loewenstein v. Queen Ins. Co., 227 Mo. 100, 127 S'. W. 72; Taber v. Boyal Ins. Co., 124 Ala. 681, 26 So. 252; Indian River Bank v. FLaA'tford Fire Ins. Go., 46 Fla. 283, 35 So. 228; Continental Fire Ins. Co. v. Whitaker, 112 Tenn. 151, 105 Am. St. 916, 79 S. W. 119, 64,L. E. A. 451; Welch v. Fire Assn., 120 Wis. 456, 98 N. W. 227; Flatley v. Phoenix Ins. Co., 95 Wis. 618, 70 N. W. 828; Munson v. German-Am. Fire Ins. Co., 55 W. Ya. 423, 47 S. E. 160; S. M. Smith Ins. Agency v. Hamilton Fire Ins. Co., 69 W. Ya. 129, 71 S. E. 194; Mason v. St. Paul Fire & Marine. Ins. Co., 82 Minn. 336, 83 Am. St. 433, 85 N. W. 13; Gragg v. Home Ins. Co., 28 Ky. Law, 988, 90 S, W. 1045; St. Paul Fire & Marine Ins. Co. v. Owens, 69 Kan. 602, 77 Pac. 544; Higson v. North River Ins. Co., 152 N. C. 206, 67 S. E. 509.)</p>

<p>PETITION for writ of mandate.</p> <p>“Public officers have not only the powers expressly conferred upon them by law, but they also possess by necessary implication such powers as are requisite to enable them to discharge the official duties devolved upon them.” (23 Am. & Eng. Ency. L., 2d ed., 364; Bateman v. Colgan, 111 Cal. 580, 44 Pac. 238; Lewis v. Colgan, 115 Cal 529, 47 Pac. 357; Karris v. Gibbins, 114 Cal.' 418, 46 Pac. 292.)</p> <p>The claim of this petitioner having been regularly and lawfully incurred, properly audited and allowed by the persons by lawful authority designated so to audit the same, the duty of the state auditor to draw his warrant therefor in favor of petitioner is a mere ministerial duty, and he should be properly directed by the mandate of this court to perform that duty. (Wycoff v. Strong, 26 Ida. 502, 144 Pac. 341; Bice v. Gwinn, 5 Ida. 394, 49 Pae. 412.)</p> <p>The legislature cannot authorize a committee to act after adjournment, except through a regularly enacted law. {Fergus v. Bussell, 270 111. 304, Ann. Cas. 1916B, 1120, 1147, 110 N. E. 130; Ex parte Caldwell, 61 W. Va. 49, 11 Aun. Cas. 646, 55 S. E. 910, 10 L. E. A., N. S., 172; Dickinson v. Johnson, 117 Ark. 582, Ann. Cas. 1916B, 1067, 176 S. W. 116, L. E. A. 1915E, 496; Commercial & Farmers’ Bank v. Worth, 117 N. C. 146, 23 S. E. 160, 30 L. E. A. 261.)</p> <p>The legislature had no authority to employ persons to perform certain work already provided for by statute. (Anderson v. Lewis, 6 Ida. 51, 52 Pac. 163; Robinson v. Dunn, 77 Cal. 473, 11 Am. St. 297, 19 Pac. 878; State v. Cheetham, 21 Wash. 437, 58 Pac. 771.)</p> <p>It is unlawful to attempt to pay out public funds for the performance of duties which the statute places upon an official and for which said official is paid a salary. (State v. Fitzpatrick, 5 Ida. 499, 51 Pac. 112; Givens v. Carlson, 29 Ida. 133, 157 Pae. 1120.)</p>

<p>APPEAL from tbe District Court of tbe Eigbtb Judicial District, for Kootenai County. Hon. R. N. Dunn, Judge.</p> <p>Action for damages. Judgment for plaintiff.</p> <p>It is a settled rule of law in this state that tbe legal measure of tbe master’s duty or liability is the exercise of ordinary care, having regard to tbe hazards of tbe service, to provide tbe servant with reasonably safe working places, machinery and appliances, and tbe exercise of ordinary care to maintain them in a reasonably' safe condition of repair. (Wiesner v. Bonners Ferry L. Co., 29 Ida. 526, 160 Pac. 647, L. R. A. 1917C, 328; Armour & Co. v. Bussell, 144 Fed. 614, 75 C. C. A. 416, 6 L. R. A., N. S., 602.)</p> <p>It is prejudicial error to instruct tbe jury that it is the duty of tbe master to. furnish tbe servant a reasonably safe place to work, or that it is his duty to keep such place in a reasonably safe condition, as tbe full measure of bis duty is to exercise reasonable or ordinary care to furnish a reasonably safe place to work. (F. C. Austin Mfg. Co. v. Johnson, 89 Fed. 677, 32 C. C. A. 309; Chicago etc. B. Co. v. Merches,' 36 111. App. 195; Peoria etc. By. Co. v. Hardwick, 48 111. App. 562; Chicago etc. B. Co. v. Garner, 78 111. App. 281; Comvay v. Illinois etc. B. Co., 50 Iowa, 465; Louisville & N. B. Co. v. Mounce’s Admr., 24 Ky. Law, 1378, 71 S. W. 518; Anderson v. Michigan Cent. B. Co., 107 Mich. 591, 65 N. W. 585; Huglüey v. Wabasha, 69 Minn. 245, 72 N. W. 78; Chicago etc. B. Co. v. Oyster, 58 Neb. 1, 78 N. "W. 359; Lincoln Street By. Co. v. Cox, 48 Neb. 807, 67 N. W. 740; International etc. B. Co. v. Bell, 75 Tex. 50, 12 S. W. 321; Texas é P. By. Co. v. McCoy, 90 Tex. 264, 38 S. W. 36; 'Gulf C. c& S. F. By. Co. v. Beall (Tex. Civ.), 43 S. W. 605.)</p> <p>Any instruction which tends to mislead the jury is reversible error. (Southwestern Tel. & Tel. Co. v. Newman (Tex. Civ.), 34 S. W. 661; Warner v. Beebe, 47 Mich. 435, 11 N. W. 258; Funk v. St. Paul City By. Co., 61 Minn. 435, 52 Am. St. 608, 63 N. W. 1099, 29 L. B. A. 208; Welter v. Leistikow, 9 N. D. 283, 83 N. W. 9; Dorr v. Camden, S5 W. Ya. 226, 46 S. E. 1014, 65 L. B. A. 348.)</p> <p>Defendant having provided that the warning should -be given, had fully complied with the obligations placed upon it by law. (Wiesner v. Bonners Ferry Lbr. Co., swpra.)</p> <p>“All of those engaged in the master’s service in effecting a common purpose are to be deemed fellow-servants, notwithstanding the fact that the work is done in successive stages, different parts thereof being devolved upon different persons, and the labor performed by one set of employees being prior to that performed by another set.” (Citrone v. O’Bourke Engineering Const. Co., 188 N. Y. 339, 80 N. E. 1092, 19 L. B. A., N. S., 340-342; 4 Wigmore on Evidence, sec. 2389; Woods v. Lisbon, 150 Iowa, 433, 130 N. "W. 372; Beed v. Bex Fuel Co., 160 Iowa, 510, 141 N. W. 1056; Epstein v. Pennsylvania B. Co., 250 Mo. 1, Ann. Cas. 1915A, 423, 156 S. W. 699, 48 L. B. A., N. S., 394; Holloway v. Kansas City, 184 Mo. 19, 82 S. W. 89.)</p> <p>To constitute workmen fellow-servants they must be engaged in the same common work under the same employment, for the reason that the rule of “ fellow-servant ’ ’ is based upon the idea that by the association of the men each with the other in a common line of work they will exercise a mutual caution for each other’s welfare. {Belyea v. Kansas City etc. B. Co., 112 Mo. 86, 20.S. W. 480, 18 L. B. A. 817; Merritt.v. Victoria Lbr. Go., Ill La. 159, 35 So. 497; Nocita v. Omaha & G. B. St. B. Co., 89 Neb. 209, 131 N. W. 214; Edward Hines Lbr. Co. v. Ligas, 172 111. 315, 64 Am. St. 38, 50 N. El. 225; Christy v. Tremont Lumber Co., 129 La. 175, 55 So. 754; John Spry Lbr. Co. v. Duggan, 182 111. 218, 54 N. E. 1002; Frost Mfg. Co. v. Smith, 98 111. App. 308; Louisville <& N. B. Co. v. Edmund’s Admr., 23 Ky. Law, 1049, 64 S. W. 727; Koerner v. St. Louis Car Co., 209 Mo. 141, 17 L. R. A., N. S., 292, 107 S. W. 481; Hendricks v. Lesure Lumber Co., 92 Minn. 318, 99 N. W. 1125,100 N. W. 638; Allard v. Northwestern Contract Co., 64 "Wash. 14, 116 Pac. 457; Illinois Steel Co. v. Zemkowski, 220 111. 324, 77 N. E. 190, 4 L. R. A., N. S., 1161.)</p> <p>“Fallers in logging camps are not fellow-servants of the members of a crew engaged in hauling logs from the woods, where they are left by the fallers.” (Cunningham v. Adna Milt Co., 71 Wash. Ill, 127 Pae. 850.)</p> <p>The position the servant is in when the accident occurred or the ' employment in which he is working must be the proximate cause of the injury, and must be outside of the scope of his employment to relieve the employer of liability. (Terre Haute & I. B. Co. v. Mansberger, 65 Fed. 196, 12 C. C. A. 574; Phillips v. Chicago, M. & St. P. By. Co., 64 Wis. 475, 25 N. W. 544.)</p> <p>It was the duty of the master to use reasonable care and diligence to furnish' a safe place for the employee to perform his service in. (City of Minneapolis v. Lundin, 58 Fed. 525, 7 C. C. A. 344; Wiesner v. Bonners Ferry Lumber Co., 29 Ida. 526, 160 Pae. 647, L. R. A. 1917C, 328; Potlatch Lumber Co. v. Anderson, 199 Fed. 742, 118 C. C. A. 180.)</p> <p>It is the duty of the master- to furnish the servant with a reasonably safe place in which to work, and in default he is guilty of negligence. {Kncmf v. Dover Lumber Co., 20 Ida. 773, 120 Pac. 157; Crawford v. Bonners Ferry Lumber Co., 12 Ida. 678, 10 Ann. Cas. 1, 87 Pac. 998; Craesafulli v. ,Winston Bros. Co., 18 Ida. 158, 108 Pac. 740; Crawford v. Bonners Ferry Lumber Co., 12 Ida. 678, 10 Ann. Cas. 1, 87 Pae. 998; Baltimore & O. B. Go. v. Baugh, 149 U. S. 368, 13 Sup. Ct. 914, 37 L. ed. 772.)</p> <p>The failure so to do is not assumed by the servant. (Yost v. Atlas Portland Cement Co., 191 Mo. App. 422, 177 S. W. 690; Patrum v. St. Louis etc. B. B. Co., 259 Mo. 1Ó9, 168 S. W. 622; Norris v. Holt-Morgan Mills, 154 N. C. 474, 70 S. E. 912, 2 N. C. Q. A. 708; Southern Turpentine Co. v. Douglass, 61 Fla. 424, 54 So. 385.)</p> <p>“When the master orders the servant to perform his work, the latter has a right to assume that the former, with his superior knowledge of the facts, would not expose him to unnecessary perils.” (Hardy v. Chicago, B. I. & P. B. Co., 149 Iowa, 41, 127 N. W. 1093; McMahon v. Ida. Mining Co., 95 Wis. 308, 60 Am. St. 117, 70 N. W. 478.)</p> <p>The master is liable where he directs the employee into some work or to go into some place of danger without .giving him warning thereof. (Oolitic Stone Co. v. Bidge, 174 Ind. 558, 91 N. E. 944; Industrial Lumber Co. v. Bivens, 47 Tex. Civ. 396, 1Ó5 S. W. 831; Missouri Pac. By. Co. v. Peregoy, 36 Kan. 424, 14 Pac. 7.)</p> <p>This court has held from the earliest time that it is the duty of the master to furnish the servant a reasonably safe place in which to work. (Harvey v. Alturas Gold Mining Co., 3 Ida. 51Ó, 31 Pae. 819; Barrow v. B. B. Lewis Lumber Co., 14 ída. 698, 95 Pac. 682; Maw v. Coast Lumber Co., 19 Ida. 396, 114 Pac. 9; Tucker v. Palmberg, 28 Ida. 693, 155 Pac. 981; Cnkovch v. Success Mining Co., 30 Ida. 623, 166 Pae. 567. See, also, Bunker Hill etc. -Com. Co. v. Jones, 130 Fed. 813, 65 C. C. A. 363; Chicago ds A. B. Co. v. Scanlan, 170 111. 106, 48 N. E. 826; Knott v. Dubuque & S. C. By. Co., 84 Iowa, 462, 51 N. W. 57; Nugent v. Cudahy Packing Co., 126 Iowa, 517, 102 N. W. 442; Higgins v. Williams,' 114 Cal. 176, 45 Pae. 1041; Grant v. Varney, 21 Colo. 329', 40 Pac. 771; Cudahy Packing Co. v. Sedlack, 69 Kan. 472, 77 Pac. 102; Gustafson v. Seattle Traction Co., 28 Wash. 227, 68 Pae. 721; Mueller. v. Northwestern Iron Co., 125 Wis. 326, 104 N. W. 67.X</p> <p>Where the instructions all read together fairly state the law as applicable to the evidence, there is no error. (Barrow v. B. B. Lewis Lumber Co., 14 Ida. 698, 95 Pac. 682; Taylor v. Lytle,*29 Ida. 546, 160 Pac. 942.)</p> <p>. The physician’s testimony was excluded by the provisions of sec. 5958, Rev. Codes. (Jones v. City of Caldivell, 20 Ida. 5, 116 Pac. 110, 48 L. R. A., N. S., 119, 23 Ida. 467, 130 Pac. 995; Pennsylvania Co-. v. Marion, 123 Ind. 415, 18 Am. St. 330, 23 N. E. 973, 7 L. R. A. 687.)</p> <p>Appellant’s contention that the physician being employed by it prevented the communication from being privileged is not the law. (Holtzen v. Missouri Pac. B. Co., 159 Mo. App. 370, 140' S. W. 767; Louisville & 8. I. Traction Co. v. Snead (Ind. App.), 93 N. E. 177; McBae v. Erickson, 1 Cal. App. 326, 82 Pac. 209; Colorado Fuel & Iron Co. v. Cummings, 8 Colo. App. 541, 46 Pae. 875; Arizona & N. M. B. Co. v. Clark, 235 U. S. 669, 35 Sup. Ct. 210, 59 L. ed. 415, L. R. A. 1915C, 834.)</p> <p>The verdict was not excessive. (Maloney v. Winston Bros. Co., 18 Ida. 740, 111 Pac. 1080-, 47 L. R. A., N. S., 634; Konig v. N evada-G alif ornia-Oregon By., 36 Nev. 181, 135 Pac. 141; Lynch v. Southern Pac. Co., 24 Cal. App. 108, 140 Pac. 298; Kusnir v. Pressed Steel Car Co., 201 Fed. 146; Baird v. New York Cent. & H. B. Co., 64 App. Div. 14, 71 N. Y. Supp. 734; Bidenhour v. Kansas City Cable By. Co., 102 Mo. 270, 13 S. W. 889, 14 S. W. 760; O’Keefe v. Eighth Ave. B. Co., 33 App. Div. 324, 53 N. Y. Supp. 940; Smith v. Fordyce, 190 Mo. 1, 88 S. W. 679; Howard Oil Co. v. Davis, 76 Tex. 630, 13 S. W. 665; Ulrickson v. Soderberg, 69 Wash. 347, 124 Pac. 909-; Krum v. Sullivan & Sclm-berg, T. & F. Co., 97 Neb. 491,150 N. W. 640; 3 Cye. 381; Barter v. Stewart Mining Co., 24 Ida. 540, 135 Pac. 68.)</p>

Hon. John M. Flynn, Judge. Action to foreclose lien. Judgment for plaintiff. Where there is evidence to support the finding of the court and the judgment, the judgment will not be reversed. (Brown v. GrvM, 23 Ida. 537, 130 Pac. 1073.) Where there is substantial evidence supporting the findings and judgment, the judgment will be affirmed. (Morris-Roberts Go. v. Mariner, 24 Ida. 788, 135 Pac. 1166.)

<p>Writ op Beview— State Board op Equalization — Functions op — • State Auditor — Statutory Duty — Writ op Mandate.</p> <p>1. A writ of review will lie wben an inferior tribunal, board or officer, exercising judicial functions, has exceeded tbe jurisdiction of sucb tribunal, board or officer, and there is no appeal nor, in tbe judgment of tbe court, any plain, speedy or adequate remedy.</p> <p>2. Wben the state board of equalization bas determined tbe number of miles of electric current transmission lines in a certain county and tbe value thereof, and of the operating property, its judicial function with respeet thereto terminates.</p> <p>3. Wben tbe state board of equalization bas determined tbe number of miles of electric current transmission lines in a certain county and the assessed valuation thereof, and of tbe operating property in sucb county, it becomes tbe statutory duty of tbe state auditor to certify sucb amount to that county, and that duty may ■be enforced by a writ of mandate notwithstanding any order to tbe contrary from sueb board.</p> <p>4. Where plaintiff can obtain tbe relief sought by a writ of mandate to compel the performance of an official duty, a writ of review will be denied.</p> <p>[As to persons entitled to proseeute writ of certiorari, see note in 103 Am. St. 110.]</p>

Hon. R. N. Dunn, Judge. Action for injunction. Judgment for defendants. There was no necessity for a formal declaration of forfeiture because by the provisions of the franchise ordinance itself it declared the forfeiture in the case of a failure to comply with its provisions.

Hon. Chas. O. Stoekslager, Judge. Action on a promissory note. Judgment for the defendants.

Hon. R. N. Dunn, Judge. From a judgment of conviction for selling intoxicating liquor and from an order denying a new trial, defendant appeals. The granting or denying of a new trial in a criminal case rests in the sound discretion of the trial court, and its action thereon will not be disturbed on appeal unless there appears a clear abuse of discretion.

APPEAL froDi tbe District Court of tbe Second Judicial District, for Lewis County. Don. Edgar C. Steele, Judge. Action for divorce. Judgment for plaintiff. Tbe evidence in tbis action does not show sufficient grounds to warrant tbe court in granting tbe respondent a divorce. (See Divorce, Cent.

Hon. Robert N. Dunn, Judge. Action to quiet title. Judgment for defendants. A description and plat made by the surveyor-general from the field-notes are conclusive, and the section lines and corners as laid down in the description and plat are binding upon the general government, and upon all parties concerned. (Beaty v. Robertson, 130 Ind. 589, 30 N. E. 706.) The plat, according to which lands are patented, will govern the description.

Hon. R. N. Dunn, Judge. Action on promissory notes. Costs and attorney’s fees cannot be recovered unless demand is made upon the mortgagor for the possession of mortgaged property before the foreclosure proceedings and an allegation showing such demand be made in the complaint.

Hon. Edgar C. Steele, Judge. Action to recover a portion of the purchase price paid in consideration of the transfer of a tract of land. “The fact that so much per acre is mentioned as the price to be paid does not prevent the sale from being a sale in gross.” {Hyde v. Phillips, 61 Wash. 314, 112 Pac. 257.) The distinction between a sale in gross and a sale by the acre “does not depend entirely upon whether the payment is to be made in a gross sum or at so much per acre, or…

<p>APPEAL from the District Court of the Second Judicial District, for Idaho County. Hon. Edgar C. Steele, Judge.</p> <p>Action to recover a portion of the purchase price paid in consideration of the transfer of a tract of land.</p>

<p>APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. R. N. Dunn, Judge.</p> <p>Action for an injunction to prevent foreclosure of a chattel mortgage.</p> <p>A special defense must be plead. (Horton v. BuMing & Co., 3 Nev. 498; Piercy v. Sabin, 10 Cal. 36, 70 Am, Dec. 692; Landis v. Morrissey, 69' Cal. 83, 10 Pae. 258 ; Bliss v. Sneath, 119 Cal. 526, 51 Pac. 848.)</p> <p>Affirmative matter in avoidance must be specially pleaded. (NordJwlt v. Nordholt, 87 Cal. 552, 22 Am. St. 268, 26 Pac. 599.)</p> <p>“A mortgage cannot by parol agreement of the parties be created, renewed or extended so as to take in other property not covered by the mortgage.” .(Willows v. Bosenstien, 5 Ida. 305, 48 Pac. 1067; Moulton v. Williams, 6 Ida. 424, 55 Pae. 1019; Bloch v. Edwards, 116 Ala. 90, 22 So. 600.)</p> <p>Under sec. 3419, Bev. Codes, a release of personal property covered by mortgage may be done by parol. (Knollm & Co. v. Jones, 7 Ida. 466, 63 Pac. 638.)</p> <p>Such release may be oral, and oral evidence may be given as to the same. {Mills v. Glennon, 2 Ida. 105, 6 Pac. 116.)</p> <p>The mortgagor cannot release nonexempt property covered by his mortgage, thereby making the exempt property included in the mortgage subject to the entire burden of the debt. (26 Cyc. 993.)</p>

Hon. Eobert N. Dunn, Judge. Action to recover for personal injuries. Judgment for plaintiff. Held: as a matter of law, to take cognizance of it without being warned. (Wheeler v. Wason Mfg. Co., 135 Mass.’294: Thompson v. State, 89' Wis. 253, 61 N. W. 565; Gracia v. Maestri Furniture Mfg.

Hon. Edgar C. Steele, Judge. Action for damages for personal injury. Judgment for plaintiff in the sum of $905. “The plaintiff assumed the ordinary. risks incident to the work in whieh he was engaged, and this included all risks that were obvious and patent or that were open and obvious to one of ordinary understanding.” (Anüer v. Cox, 27 Ida. 517, 149 Pac. 731; Bush v. Missouri Pac. By.

Hon. Edgar C. Steele, Judge. Action for damages. Judgment for plaintiff. The evidence renders the cause of injury conjectural and attributable to conditions insufficient to form the basis for a recovery against appellant. (Antler v. Cox, 27 Ida. 517, 149 Pac. 731.) A servant assumes the risks arising from the master’s negligence- — assuming that the master was negligent in this case — where such risks are known to the servant, or where they are obvious. (Minty v. Union Pac.

Hon. Edgar C. Steele, Judge. Action in claim and delivery. In the absence of a statute prohibiting the receiving donations or gifts, the general rule is that the donations being for the benefit of the county and not creating a liability against it, the donation may be received. (2 Dillon’s Mun.

<p>APPEAL from the District Court of the Second Judicial District, for Nez Perce County. Hon. Edgar C. Steele, Judge.</p> <p>Action for money had and received.</p>

Hon. F. J. Cowen, Judge. Action for damages. Judgment for plaintiffs. Mismanagement by directors gives a right of action to the corporation, or its receiver or a stockholder for its benefit, but not to a stockholder for damages to him individually. (McMullen v. Ritchie, 64 Fed. 253; Smith v. Hurd, 12 Met. (Mass.) 371, 46 Am.

<p>APPEAL from the District Court of the Eighth Judicial District, for Bonner County. Hon. R. N. Dunn, Judge.</p> <p>Action by receiver to recover from stockholders assets unlawfully withdrawn and distributed.</p> <p>It was clearly the intention of the legislature in framing sec. 2979, Rev. Codes, to provide in substance that where the assets of the bank are not sufficient to pay its indebtedness or to liquidate its affairs, that then, and not until then, does the right of action against the stockholder accrue. (Wilson v. Book, 13 Wash. 676, 43 Pac. 939; McLaughlin v. O’Neill, 7 Wyo. 187, 51 Pac. 243; 10 Cyc. 724, 728; Swan Land & Cattle Co. v. Frank, 39 Fed. 456.)</p> <p>If our contention is correct that the stockholders-’ liability is secondary then no action could be maintained against the individual stockholders until the legal remedy against the corporation had been exhausted. Whether the transfer of its assets to its stockholders was intentionally fraudulent or not, the effect of dividing up all of its property worked a legal fraud upon its creditors. (Watkins v. Wilhoit, 4 Cal. Unrep. 450, 35 Pac. 646; Taylor v. Bowker, 111 U. S. 110, 4 Sup. Ct. 397, 28 L. ed. 368; Bose v. Dunklee, 12 Colo. App. 403, 56 Pae. 342.)</p> <p>The assets are a trust fund, and the corporation cannot divide the' same up until after the creditors are paid. (10 Cyc. 654; Panhandle National Bank v. Emery, 78 Tex. 498, 15 S. W. 23; Chicago, M. & St. P. By. Co. v. Third National Bank of Chicago, 134 U. S. 276, 10 Sup. Ct. 550, 33 L. ed. 900; Beid v. Eatonton Mfg. Co., 40 Ga. 98, 2 Am. Rep. 563; Curran v. State, 15 How. (U. S.) 304, 14 L. ed. 705; Schley v. Dixon, 24 Ga. 273, 71 Am. Dee. 121; Chicago, B. I. <&' P. B. B. Co. v. Howard, 7 Wall. (U. S.) 410, 19 L. ed. 117; Baltimore & O. Tel. Co. v. Interstate Tel. Co., .54 Fed. 50, 4 C. C. A. 184; Jahn v. Champagne Lbr. Co., 157 Fed. 407; Wood v. Dimmer, 3 Mason, 308, Fed. Cas. No. 17,944; Crandall v. Lincoln, 52 Conn. 73, 52 Am. Rep. 560.)</p> <p>The receiver in such a case is the proper party to sue. (Wilson v. Book, supra; McTamcmy v. Da/y, 23 Ida. 95, 128 Pae. 563; Foster v. Bow (Broas), 120 Mich. 1, 79 N. W. 696 ; High on Receivers, 360; Brown v. Brink, 57 Neb. 606, 78 N. W. 280; Farmers’ Loam & Trust Co. v. Funk, 49 Neb. 353, 68 N. W. 520; German National Bk. v. Farmers’ & Her. Bk., 54 Neb. 593, 74 N. W. 1086.)</p> <p>After the stock has been issued and paid for, all liability that can be imposed upon the stockholder as a stockholder has been satisfied. (Wall v. Basin Mining Co., 16 Ida. 313, 101 Pae. 733, 22 L. R. A., N.'S., 1013; 2 Proceedings and Debates Ida. Const. Convention, 1107, 1111.)</p> <p>“When a constitution makes stockholders liable for corporate debts and fixes the liability, the legislature has no power to exempt them from such liability or impose a different one.” (Thompson on Oorp., see. 4760.)</p> <p>The liability of the stockholder in any case is primary, and any action instituted by a creditor must be based’ upon the original consideration between the corporation and the creditor. (Bedington v. Cornwell, 90 Cal. 49, 27 Pae. 40; Hunt v. Ward, 99 Cal. 612, 37 Am. St. 87, 34 Pací. 335; Knowles v. Samdercock, 107 Cal. 629, 40 Pac. 1047; Part-' ridge v. Butler, 113 Cal. 326, 45 Pac. 678; Thompson on Corp., sec. 4802.)</p> <p>“An action to enforce personal liability of stockholder for debts of corporation must be commenced within three years from date on which debt is created, whether cause of action has matured or not.” (Greene v. Beckman, 59 Cal. 545; Mitchell v. Beckmm, 64 Cal. 117, 28 Pac. 110; Hyman v. Coleman, 82 Cal. 650, 16 Am. St. 178, 23 Pac. 62; Wells v. Black, 117 Cal. 157, 59 Am. St. 162, 48 Pac. 1090, 37 L. E. A. 619; Goodall v. Jack, 127 Cal. 258, 59 Pac. 575; Byland v. Commercial & Sav. Bank, 127 Cal. 525, 59 Pae. 989 )</p> <p>“In case of judgment against a corporation,'the stockholder’s liability accrues when debt or obligation was contracted, and not from date on which judgment was recovered, and from former date statute of limitation runs against action to enforce that liability.” (Mokelumne Hill C. & M. Co. v. Woodbury, 14 Cal. 265; Davidson v. Bankin, 34 Cal. 503; Larrabee v. Baldwin, 35 Cal. 155'; Young v. Bosenbaum, 39 Cal. 646; Stilphen v. Ware, 45 Cal. 110; Hyman v. Coleman, 82 Cal. 650, 16 Am. St. 178, 23 Pac. 62.)</p>

<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 negligence resulting in personal injury to invitee. Judgment for' defendant upon a directed verdict.</p> <p>Plaintiff was rightfully upon the premises by invitation of defendant, it was the duty of defendant to provide the plaintiff with a reasonably safe place to work, and to provide him with reasonable protection against the consequences of hidden or concealed dangers known to the defendant. {Gag-non v. St. Maries Light & Power Go., 26 Ida. 87, 141 Pae. 88; Bennett v. Louisville & Nashville B. B. Go., 102 U. S. 577, 26 L. ed. 235; Cooley on Torts, 604-607; New York Lubricating Oil Co. v. Pusey, 211 Fed. 622, 129 C. C. A. 88, Lie-bold v. Green, 69 111. App. 527.)</p> <p>Ordinarily it is for the jury to decide whether it is or is not negligence to operate machinery in which are revolving shafts, couplings and like contrivances held in place by unguarded .protruding set-screws. {Prattville Cotton Mills Go. v. McKinney, 178 Ala. 554, 59 So. 498; York Lumber Go. v. Dexter, 114 Ark.. 573, 169 S. W. 315; Schellin v. North Alaska Salmon Go., 167 Cal. 103, 138 Pac. 723; Halpin v. National Safe Deposit Go., 184 111. App. 13; Gunther-Wright Mach. Go. v. Lancaster, 145 Ky. 78, 140 S. W. 58; Barr v. Guelph Patent Cask Co., 129 Mich. 278, 88 N. W. 640; Pruke v.- South Park Foundry Mach. Go., 68 Minn. 305, 71 N. W. 276; Dowling v. Allen, 74 Mo. 13, 41 Am. Rep. 298; Lobban v. Wabash By. Go., 159 Mo. App. 464, 141 S. W. 440; Eplee v. Southern B. Co., 155 N. C. 293, 71 S. E. 325; Both v. Northern Pac. Lumbering Go., 18 Or. 205, 22 Pae. 842; Planters’ Oil Go. v. Keebler (Tex. Civ.), 170 S. W. 120; Ockey v. Bingham-New Ha/ven Copper & Gold Min. Go., 47 Utah, 315, 154 Pae. 586; Bush v. Independent Mill Co., 54 Wash. 212, 103 Pac. 45; Olson v. Seldovia Salmon Go., 88 Wash. 225,152 Pac. 1033; Janiak v. Milwaukee Western Fuel Go., 156 Wis. 544, 146 N. W. 788; Mountain Copper Go. v. Pierce, 136 Fed. 150, 69 C. C. A. 148; 4 Commentaries on the Law of Negligence, sec. 4022; Columbia Box & Lumber Go. v. Drown, 156 Fed. 459, 84 C. C. A. 269.)</p> <p>Where upon all the facts and circumstances there is a reasonable chance or likelihood of the conclusions of reasonable men differing, the question is one for the jury. (Fleenor v. Oregon Short Line B. B. Co., 16 Ida. 781, 102 Pac. 897; Wheeler v. Oregon B. & Nav. Co., 16 Ida. 375, 102 Pac. 347; Adams v. Bunker Hill etc. Min. Co., 12 Ida. 637, 89 Pac. 624, 11 L. R. A., N. S., 844; Tucker v. Palmberg, 28 Ida. 693, 155 Pac. 981.)</p> <p>Contributory negligence is not imputable to a person for failing to look for danger, when, under the surrounding circumstances, the person sought to be charged with it had no reason to suspect that danger was to be apprehended. {Langan v. St. Louis etc. B. Co., 72 Mo. 392; Moulton v. Aldrich, 28 Kan. 300; Missouri Pac. By. Co. v. Johnson, 69 Kan. 721, 77 Pac. 576; Greerdeaf v. Dubuque & S. C. B. Co., 33 Iowa, 52; Baldwin v. St. Louis K. & N. W. By. Co., 63 Iowa, 210, 18 N. W. 884; New York Lubricating Oil Co. v. Pusey, supra; National Life Ins. Co. v. McKenna, 226 Fed. 165, 141 C. C. A. 163.)</p> <p>Contributory negligence is a matter for the jury. {Staab v. Bocky Mountain Bell Tel. Co., 23 Ida. 314, 129 Pac. 1078; Jones v. National Laundry Co., 66 Or. 218, 133 Pac. 1178; Washington & G. B. Co. v. McDade, 135 U. S. 554, 10 Sup. Ct. 1044, 34 L. ed. 235.)</p> <p>The conduct of plaintiff, as indicated by his own testimony, shows that he failed to exercise ordinary care for his own safety.</p> <p>“If the evidence is such that but one conclusion can be reached, then the question becomes one of law.” {Bippetoe v. Feely, 20 Ida. 619, 119 Pac. 465; Bundy v. Union Iron Works, 46 Wash. 231, 89 Pac. 545; Day v. Cleveland C. C. & St. L. By. Co., 137 Ind. 206, 36 N. E. 854.)</p> <p>“If a servant voluntarily and unnecessarily puts himself into a dangerous position, where there are other positions which he may take, in connection with the discharge of his duties, which are safe, or reasonably so, he cannot recover damages for an injury contributed to by_ his negligence in so .doing.” (26 Cyc. 1249; Vicksburg Mfg. Co. v. Vaughn (Miss.), 27 So. 599; Choctaw O. & G. B. Co. v. Stalling, 70 Ark. 603, 70 S. W. 303; Kewnedy v. Merrimack Pav. Co., 185 Mass. 442, 70 N. B. 437; Glassheim v. New York Economical Printing Co., 13 Misc. Rep. 174, 34 N. T. Supp. 69; Quirouet v. Alabama G. S. B. Co., Ill Ga. 315, 36 S. E. 599; Southern By. Co. v. Harbin, 110 Ga. 808, 36 S. E. 218; Coyle v. Pitts-burg, C. C. & St. L. By. Co., 155 Ind. 429, 58 N. E. 545; Haynes v. Fort Dodge & O. B. Co., 118 Iowa, 393, 92 N. W. 57; J enhins v. Maginnis Cotton Mills, 51 La. Ann. 1011, 25 So. 643; Washington & G. B. Co. v. McDade, 135 U. S. 554, 10 Sup. Ct. 1044, 34 L. ed. 235.)</p>

<p>APPEAL from the District Court of the Sixth Judicial District, for Lemhi County. Hon. James R. Bothwell, Presiding Judge.</p> <p>From an order sustaining defendant’s plea of once in jeopardy, the state appeals.</p>

Hon. John M. Flynn, Judge. Action to foreclose mortgages. Judgment for plaintiff. The court erred in finding that the plaintiff was damaged in the sum of $8,000, and holding that said sum was secured by the mortgage, because the contract itself provides the procedure to be followed by the plaintiff in ease the defendant Case should not prosecute the work diligently, or fail in any manner to perform the contract.

<p>Election — Ballot-Box as Evidence — Admissibility — Conflict of Evidence.</p> <p>1. Held, that it is a fair inference from the evidence, as shown by the reeord in this case, that the contents of the ballot-box were in the same condition when offered in evidence at the trial as at the time of the close of the election, and that the lower court exercised a reasonable discretion in admitting in evidence said ballot-box and it's contents.</p> <p>2. Where there is a conflict in the evidence as to whether the contents of a ballot-box as disclosed at the trial are the same as at the close of the election, and there is substantial evidence to support the ruling of the trial court admitting the ballot-box and its contents in evidence, such ruling will not be disturbed on appeal.</p> <p>On power of courts to require ballot-boxes to be produced or opened in proceedings other than election contests, see note in 33 Zi. E. A. 386.</p>

<p>PROCEEDING to disbar attorney.</p> <p>The real question for determination in disbarment proceedings is whether or not the attorney is a fit person to be longer allowed the privileges of being an attorney. (6 C. J. 581, and note.)</p> <p>Betraying the confidence of a client is sufficient ground for disbarment. (6 C. J". 588, and many cases cited.)</p>

<p>Habeas Corpus — Record op Conviction — Jurisdiction — Presiding Judge — Proceedings—Regularity op Color op Authority — Collateral Attack.</p> <p>1. Habeas corpus is a collateral remedy, and in an assault upon the judgment of a court of general jurisdiction, nothing to the contrary appearing in the record, it will be conclusively presumed, in support of a motion to quash the writ, that the court had full jurisdiction of the person and of the subject matter, and that all the proceedings were according to law.</p> <p>2. Where a district judge from one district holds court in another district and no question is raised as to his authority, it will be conclusively presumed, unless the reeord discloses to the contrary, that he was lawfully exercising jurisdiction.</p> <p>3. Such jurisdiction is exercised under color of authority and is not open to collateral attack.</p> <p>4. The entries contained in the record of a trial in a court of general jurisdiction import verity, and they cannot be questioned on babeas corpus.</p> <p>5. Where the constitution or statutes require an act to be done and there is no statute expressly requiring a record to be kept of it, the conclusive presumption is, when the record is silent upon the point, that the proceedings were regular and that the law was complied with.</p>

<p>Writ op Prohibition.</p> <p>Where a plain, speedy and adequate remedy at law exists, the writ of prohibition is not available.</p> <p>[As to when a writ of prohibition lies, see notes in 12 Am. Dec. 604; 18 Am. Dec. 238; 111 Am. St. 929.]</p>

<p>Mandate — Reporter’s Transcript as Bill op Exceptions — Settlement op.</p> <p>1. A proper system of appeals, under art. 5, see. 13, of the state constitution, includes not only the character of the record to be used upon appeal, but also the questions whieh may be raised by the record.</p> <p>2. The constitution has committed to the legislature, and not to the courts, the task of prescribing what the record on appeal shall contain and the method by whieh it shall be prepared and authenticated.</p> <p>3. The failure to make the service required by sections 4820a and 4434 of the Rev. Codes would divest this court' of jurisdiction to consider on appeal the record or that portion thereof involved in the failure of service.</p> <p>4. The statute relative to the preparation of a reporter’s transcript to be used in lieu of a bill of exceptions indicates that the method prescribed thereby is the method to be pursued in all cases in which it is desired that the reporter’s transcript of the testimony should be obtained and settled for use on appeal.</p>

<p>Original proceeding for writ of habeas corpus. Writ issued and return made.</p> <p>“Parents should not be permanently deprived of the custody of their children and the right to act as their legal guardians even though the custody of the child must for good reasons be temporarily surrendered, except in strict accordance with law and under circumstances where such deprivation is fully warranted.” {Ex parte Martin, 29 Ida. 716, 161 Pac. 573.)</p> <p>‘ ‘ If the parent is not made a party to the hearing and proceeding, under all recognized rules of legal procedure he is clearly not .bound by the judgment and none of his rights are precluded.” (Ex parte Sharp, 15 Ida. 120, 96 Pac. 563, 565, 18 L. R. A., N. S., 886-; Ex parte Becknell, 119 Cal. 496, 51 Pae. 692; Mill v. Brown, 31 Utah, 473, 120 Am. St. 935, 88 Pac. 609, 614.)</p> <p>Mere cognizance of the fact that a suit has been brought is not notice in the sense of due process. (23 Cye. 684.)</p> <p>Mere actual presence at the hearing will not cure this defect of notice, if no part is taken in the proceedings. (Seifert v. Brooks, 34 Wis. 443; 12 C. J. 1227, 1228, 1234.)</p> <p>If the petitioner believed that she had been unlawfully deprived of the custody of her child, and that the probate court had acted irregularly or had in any manner exceeded its authority, her remedy was by appeal. (Ex parte Shwp, 15 Ida. 120, 96 Pae. 563, 18 L. R. A., N. S., 886.) ■</p> <p>“Habeas corpus cannot be resorted to or employed as an appellate remedy, or for the purpose of reviewing or correcting errors.” (In re Davis, 23 Ida. 473, 130 Pac.-786; In re Enudtson, 10 Ida. 676, 79 Pae. 641; Ex parte Fowler, 5 Cal. App. 549, 90 Pae. 958.)</p> <p>All that the court can inquire into in this ease is whether the probate court of Bannock county has jurisdiction to commit delinquent children to the Industrial Training School, and whether the order of commitment is regular on its face. (Ex parte Long, 114 Cal. 159, 45 Pae. 1057; Ex pwte Stephen, 114 Cal. 278, 46 Pae. 86; Ex parte Hollis, 59 Cal. 405.)</p>

<p>Original application for writ of review.</p> <p>“Generally, lapse of' time will not preclude the granting of the writ where the delay has resulted in no detriment.” (11 C. J. 146.)</p> <p>Plaintiff has not acted with due diligence in seeking to remedy the alleged wrong which has been done it. Unreasonable delay or failure to apply within the time limited by statute or established by local practice is good ground for refusing the writ. It is the well-settled rule, and particularly so in the western states, that where the statute fixes no definite time, the time is regulated by the statutory time within which an appeal must be taken. (Smith v. Superior Court, 97 Cal. 348, 32 Pac. 322; Keys v. Marin County, 42 Cal. 252; Kimple v. Superior Court, 66 Cal. 136, 4 Pae. 1149; Reynolds v. Superior Court, 64 Cal. 372, 28 Pac. 121; Thompson v. Multnomah County, 2 Or. 34; Crosby v. Probate Court, 3 Utah, 51, 5 Pac. 552; State v. Superior Court, 84 Wash. 663, 147 Pac. 408; State v. Superior Court, 56 Wash. 287, 105 Pac. 815; State v. Superior Court, 42 Wash. 684, 85 Pae. 673; 11 C. J. 143, 148; Hyde v. Lamberson, 1 Ida. 539; McMillan v. Wooley, 6 Ida. 36, 51 Pac. 1029.)</p>

Hon. Ed. L. Bryan, Judge. Action on claim and delivery bond. Judgment for plaintiff. The amount plaintiff in claim and delivery may recover in case redelivery cannot be had is the market value of the property when the taking occurred or the wrongful detention began. (Osmers v. Furey, 32 Mont. 581, 81 Pae. 345.) The measure of damages in a suit on replevin bond is the value” of the property if it.cannot be returned.

<p>Damages fob Personal Injuries — Contributory Negligence — Non-suit.</p> <p>1. A motion for nonsuit admits the truth of plaintiff’s evidence and of every fact which it fends to prove or which could be gathered from any reasonable view of it, and he is entitled to the benefit of all inferences in his favor which the jury would have been justified in drawing from the evidence had the case been submitted to it.</p> <p>2. Contributory negligence is generally a question of faet for the jury and only becomes one of law, authorizing a nonsuit, when the evidence introduced on behalf of the plaintiff is reasonably susceptible of no other interpretation than that the conduct of the injured party contributed to his injury, .and that, because of bis negligence and carelessness, he did not act as a reasonably prudent person would have acted under t'he circumstances.</p> <p>[Mere scintilla of evidence as sufficient to justify submission of cause to jury, sée note in Ann. Cas. 1914B, 472.]</p>

the ‘Third Judicial District, for Ada County. Hon. Charles P. McCarthy, Judge. • Action for maintaining a common nuisance in a prohibition district. Judgment for plaintiff. Ada county having voted to regulate and license the sale of liquor in the county, even counsel for the state does not contend that the locus of the acts charged here was “territory in which the sale of intoxicating liquor is prohibited by law” under the first clause of the statute.

Hon. James E. Bothwell Judge. Action to quiet title. Judgment for defendants. The determination of the land department as to the character of the land, except in cases of fraud, imposition or mistake, is conclusive, and cannot be reviewed by the courts. (32 Cyc. 1040 (12); Lee v. Johnson, 116 U. S. 48, 6 Sup.

Hon. Ed. L. Bryan, Judge. Action for damages for personal injuries. Judgment for plaintiff. It would be a clear abuse of the privilege rule to permit •the respondent and her witness, Dr. Farrer, to go upon the stand áhd tell all that they wished about the fracture and the alleged condition of the respondent’s arm, and then by invoking the privilege rule, draw a veil of secrecy over the mouth of the photographer.

<p>Criminal Conversation — Pleading — Proof — Witnesses — Husband and Wife — Privilege.</p> <p>1. A cause of aetion for criminal conversation may be alleged by a continuando.</p> <p>2. Proof thereunder may be given of the wrongful aet in issue, committed on any date, within the time stated in the pleading, and within the statute of limitations.</p> <p>3. The gist or gravamen of the charge is the criminal conversation, the alienation of the spouse’s affections being incidental and material only in so far as it affects the quantum of damages.</p> <p>4. See. 5958, Rev. Codes, precludes either a husband or a wife from testifying for the other, without the other’s consent, and this rule admits of no exceptions other than those expressly specified in the statute.</p> <p>[As to competency of husband or wife as witness in action for criminal conversation, see notes in Ann. Cas. 1912D, 1121; Ann. Cas. 1915B, 713.]</p> <p>On the competency of one spouse as witness to show' misconduct of other in action for criminal conversation, see note in 39 L. E. A., N. S., 316.</p>

<p>APPEAL from the District Court of the Fourth Judicial District, for Blaine County. Hon. James R. Bothwell, Judge.</p> <p>Action to have certain public funds decreed a trust fund and a preferred claim.</p> <p>It is conceded that the deposit of $10,000 by the school district was wholly illegal and contrary to law; that all parties to the transaction knew the facts, and particularly is it true that the bank received the money with full knowledge of the facts and circumstances. The money so deposited became a trust fund under the repeated decisions of this court under similar facts. (State v. Thum, 6 Ida. 323, 55 Pac. 858; First Nat. Bank v. Bunting, 7 Ida. 27, 59 Pac. 929, 1106; State v. Bruce, 17 Ida. 1, 134 Am. St. 245, 102 Pac. 831, L. R. A. 1916C, 1; Bellevue State Bank v. Coffin, 22 Ida. 210, 125 Pac. 816.)</p> <p>These decisions hold that where public moneys are illegally deposited in a bank, the latter having knowledge of the facts in regard thereto, such deposit becomes a trust fund and the right of preferential payment attaches to it.</p> <p>We admit that the illegal deposit created a trust fund and that if the school district was going to lose the same, on account of said illegal deposit, that it would have a right to have said fund declared a preference. The school district, if it lost its money, is the only one entitled to claim that the public funds were illegally deposited and therefore a preference. But we deny that the county has any right to claim a preference in said fund by reason of later acts of negligence of its treasurer. Admitting a trust fund does not necessarily, admit that the county is a preferred creditor. Even if one is a trust creditor it does not follow that he is entitled to a preference over a general creditor; they are on a par unless the trust creditor still shows other equities entitling him to a preference. (Cavin v. Gleason, 105 N. Y. 256, 11 N. E. 504; Officer v. Officer, 120 Iowa, 389, 98 Am. St. 365, 369, 94 N. W. 947; Bradley v. Chesebrough, 111 Iowa, 126, 82 N. W. 472.)</p>

<p>Master, and Servant — Interstate Commerce — Federal Employers’ Liability Act.</p> <p>1. A laborer employed in the construction of a fill beneath a wooden trestle, which when completed was intended to take the place of the trestle and to support the track of a railroad company engaged in the transportation of both intrastate and interstate commerce, is not engaged in interstate commerce so as to entitle him to maintain an aetion for personal injuries under the federal employers’ liability act of April 22, 1908-, chap. 149, 35 Stats, at L. 65.</p> <p>[As to employees entitled to protection under federal employers’ liability act, see note in Ann. Cas. 1916E, 472.]</p> <p>On constitutionality, application and effect of federal employers’ liability act, see notes in 47 L. R. A., N. S., 38; L. R. A. 19150, 47.</p>

Hon. Carl A. Davis, Judge. Action to foreclose mortgage. Judgment for plaintiff. There being no community debts against the community property at the death of the wife, her one-half of the community property descends absolutely unencumbered to the heirs of their body under sec. 5713, Eev.

<p>Water and Watercourses — Rights op Permit Holder — Injunction— Findings and Decree.</p> <p>1. The holder of a permit to appropriate the waters of a stream, with a point of diversion on the main channel thereof, is, to the extent of his permit rights, entitled to the use of the water of the stream, notwithstanding a portion thereof, originally diverted to another branch, was returned to the main channel by the holder of a junior permit.</p> <p>■ 2. A writ of injunction will issue to protect the inchoate, contingent right t'o the use of water by the holder of a permit to appropriate it who has complied with the terms of -the permit and has completed his works of diversion and application to such an extent that the water may be applied to a beneficial use.</p> <p>3. In an action for an injunction, wherein each of the parties asserts a- superior right in himself as a ground for injunctive and general relief, findings of fact and decree establishing the prior right are consistent with the case made by the pleadings and with the issues joined.-</p> <p>4. A decree fixing the rights of parties litigant to- the water of a stream is binding only on the parties and their privies.</p> <p>[As to injunction as remedy for wrongful diversion of watercourse, see note in Ann. Cas. 1912-D, 13.]</p>

<p>APPEAL from the District Court of the Fourth Judicial District, for Elmore County. Hon. James R. Bothwell, Judge.</p> <p>Action to determine priority of water rights. Judgment for defendant.</p> <p>The use of water prior to a permit gives a better right. (Mdlad Valley Irr. Go. v. Gampbell, 2 Ida. ill, 18 Pac. 52.)</p>

<p>APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Carl A. Davis, Judge.</p> <p>Action to foreclose mortgages, with cross-action by defendants, Rayburn, McReynolds and Intervenor Dean, for adjudication of priority of their respective liens. Judgment for plaintiff and for Rayburn, McReynolds and Dean with priorities in the order named.</p> <p>A deed by a corporation, after its charter has been forfeited, is a nullity. (Bradley, v. BeppelT, 133 Mo. 515, 51 Am. St. 685, 32 S. W. 615, 31 S. W. 811; Utah Optical Co. v. Keith, 18 Utah, 461, 56 Pac. 155; Provost v. Morgan’s L. <& T. B. Co., 42 La. Ann. 809, 8 So. 584.)</p> <p>A corporation cannot deed land after its charter has expired. (Marysville Invest. Co. v. Munson, 41 Kan. 191, 21 Pac. 977.)</p> <p>Stock cannot be transferred so as to pass title after the dissolution of the corporation, much less any of the assets of the corporation, nor can it assign mortgages nor make valid mortgages. (James v. Woodruff, 2 Denio (N. Y.), 571.)</p> <p>“When the nullity of a contract becomes apparent the whole transaction falls to the ground. It is incapable of affirmation nor can third parties, bona fide, acquire right for value under it.” (Anson on Contracts, sec. 205.)</p> <p>“The court will, on its own motion, raise the question of the illegality of a contract against public policy or violation of public law.” (Escambia Land & Mfg. Co. v. Ferry Pass Inspectors & Shippers’ Assn., 59 Fla. 239, 138 Am. St. 121, 52 So. 715; Pietsch v. Pietsch, 215 111. 151, 29 L. R. A., N. S., 218, 92 N. E. 325.)</p> <p>“The making of these interest payments or any other payment on the contract could not amount to an estoppel.” (Tarr v. Western Loan & Savings Co., 15 Ida. 711, 750, 99 Pac. 1049, 21 L. R. A., N. S., 707.)</p> <p>“Judgment creditors' may intervene and contest validity of mortgage.” (Tarr v. Western Loan & Savings Co., supra; Union Bank v. Bell, 11 Ohio St. 200; Cook on Corporations, 848d; Phoenix Nat. Bank v. Cleveland Co., 58 Hun, 606, 11 N. Y. Supp. 873, 875.)</p> <p>“Estoppel cannot, ordinarily, result from an invalid contract or ultra vires acts.” (Boyal Consol. Mm. Co. v. Boyal Consol. Mines Co., 157 Cal. 737, 137 Am. St. 165, 110 Pae. 123; Kyser v. Miller, 141 111. App. 316.)</p> <p>A conveyance by a corporation of real estate and a warranty of title when such corporation is unauthorizedly attempting to exercise corporate powers, where no power as a corporation has in fact been granted to it, is void. (Lafferty v. Evans, 17 Okl. 249, 21 L. E. A., N. S., 363, 87 Pac. 304; Eastman v. Parkinson, 133 Wis. 375, 13 L. E. A., N. S., 921, 113 N. W. 649.)</p> <p>It is not shown in the evidence that the Wyoming Holding Company or any of its officers knew of the lack of integrity of the mortgages herein sued upon, and the conduct of such officers cannot amount to a ratification because of a lack of the knowledge of all of the material facts connected with the transaction. (7 Words & Phrases, 5928; Blackwell v. Eerchevdl, 27 Ida. 537, 149 Pac. 1060; Jones on Mortgages,' 6th ed., sec. 93.)</p> <p>“The receiver of the corporation may defend against or sue to set aside a mortgage which is fraudulent or otherwise illegal.” (Cook on Corporations, 7th ed., sec. 848H.)</p> <p>The estoppel of a person who has dealt with a corporation, to deny its existence, does not apply to prevent showing the subsequent expiration of its corporate life. (Dotson v. Simonton, 86 N. C. 492; Ensey v. Cleveland & St'. Louis B. Co., 10 Ind. 178; Fort Wayne Turnpike v. Dean, 10 Ind. 563 ; Cuaga Iron Co. v. Dawson, 4 Blackf. (Ind.) 202; Erutz v. Paola Town Co., 20 Kan. 397.)</p> <p>The receiver, Dean Perkins, appears for all creditors and stockholders, as well as for the corporation. ITe is.acting in a dual capacity, and in such capacity can raise any question which affects the material rights and interests of any of these three parties. (Curtis v. Lewis, 74 Conn. 367, 50 Atl. 878; Alaska Salmon Co. v. Standard Box Co., 158 Cal. 567, 112 Pac. 454.)</p> <p>“If one purchases land subject to a mortgage and there is a deduction from the purchase price on account thereof and either verbally or by deed he agrees to take the land subject to the mortgage, and in whole or in part makes the mortgage debt a consideration for the transfer, he is not at liberty to deny the existence or validity of the mortgage, or dispute the amount owing under it>at the time of the transfer.” (Burke Land etc. Co. v. Wells, Fargo & Co., 7 Ida. 42, 59, 60 Pac. 87; Hancock v. Fleming, 103 Ind. 533, 535, 3 N. E. 254; Merriman v. Moore, 90 Pa. St. 78; 2 Jones on Mortgages, 1491; Fremont County v. Warner, 7 Ida. 367, 63 Pac. 106; Hadley v. Clark, 8 Ida. 497, 69 Pac. 319; Johnson v. Thompson, 129 Mass. 398; Western Loan etc. Co. v. Kendrick, State Bank, 13 Ida. 331, 90 Pac. 112.)</p> <p>Both the grantee of property and its creditors are estopped to set up as a defense in a suit to foreclose a mortgage that the act of creating the mortgage was ultra vires. (Bowman v. Foster etc. Hardware Co., 94 Fed. 592; Blue Rapids Opera House Co. v. Mercantile Bldg. etc. Assn., 59 Kan. 778, 53 Pac. 761; Illinois Trust etc. Bank v. Pacific Ry. Co., 117 Cal. 332, 49 Pac. 197.)</p> <p>One taking and retaining the benefits of a transaction is bound by the transaction; cannot avoid its obligations, and is estopped from taking a position inconsistent therewith. (Ryer v. Oesting, 119 Cal. 564, 51 Pac. 857; Hobbs v. Nashville etc. Ry. Co., 122 Ala. 602, 82 Am. St. 103, 26 So. 139; Fremont County v. Warner, 7 Ida. 367, 63 Pac. 106; Poole v. Lotee, 24 Colo. 475, 52 Pac. 741; Winslow v. Baltimore etc. R. Co., 188 U. S. 646, 23 Sup. Ct. 443, 47 L. ed. 635; Hartman v. Hornsby, 142 Mo. 368, 44 S. "W. 242; Goodwin v. Central etc. Bldg. Co., 21 Cal. App. 376, 131 Pac. 896.)</p> <p>One who has dealt with a corporation, even if it be de facto only, and who has received the benefit of his contract, or any contract with it, is estopped from denying corporate capacity. (1 Thompson on Corp. 231; Commonwealth v. Philadelphia Coimty, 193 Pa. St. 236, 44 Atl. 336; Richards v. Minnesota Saw. Bank, 75 Minn. 196, 77 N. W. 822; McDonnell v. Alabama etc. Ins. Co., 85 Ala. 401, 5 So. 120; Wing el v. Quincy Bldg. etc. Assn., 128 111. 67, 21 N. E. 12; Exchange Nat. Bank v. Capps, 32 Neb. 242, 29 Am. St. 433, 49 N. W. 223.)</p> <p>Those in privity with the grantee are estopped to the same extent as is the grantee. (Simson v. Eckstein, 22 Cal. 580; Disneukes v. Halpern, 47 Ark. 317, 1 S. W. 554; Waco Bridge Go. v. Waco, 85 Tex. 320, 20 S. W. 137.)</p> <p>The receiver can acquire no greater or better interest than the debtor had in the property, and to this extent the receiver stands in the shoes of the debtor. He has the same rights which the insolvent would have had, and can set up no rights which the debtor could not have set up. (34 Cyc. 191; Fourth St. Nat. Bank v. Yardley, 165 U. S. 634, 17 Sup. Ct. 439, 41 L. ed. 855; Tdford v. Atlantic Match Co., 134 Fed. 924; Black v. Manhattan Trust Co., 213 Fed. 692; Albien v. Smith, 24 S. D. 203, 123 N. W. 675; Southern Granite Co! v. Wadsworth, 115 Ala. 570, 22 So. 157; New Haven Wire Co. Cases (Baring v. Galpin), 57 Conn. 352, 18 Atl. 266, 5 L. R. A. 300; Crine v. Davis, 68 Ga. 138; Shinkle v. Knoll, 99 111. App. 274; Brownson v. Boy, 133 Mich. 617, 95 N. W. 710; State ea) rel. v. Superior Court, 8 Wash. 210, 35 Pac. 1087, 25 L. R. A. 354.)</p>

Hon. Carl A. Davis, Judge. Actions by irrigation district against water users to recover alleged pro rata share of repairing and concreting its canal. The property right of defendants is not an interest in the original canal as it existed ^prior to enlargement. That canal no longer exists. It is only material in determining the date of priority and amount of water rights of defendants.

<p>Agricultural College Fund — Ministerial Duty of State Treasurer —State Auditor — Void Acts of State Officers.</p> <p>1. By^ certain acts of Congress $50,000 is appropriated annually for the use and benefit of agricultural and mechanical colleges in each state and territory, the beneficiary institutions to be selected by the several states and territories. These acts provide that this sum shall be paid by the secretary of the treasury of the United States to the state treasurer, who shall, upon the order of the trustees of the college, immediately pay it over to the treasurers of the respective colleges or other institutions entitled to receive it. (U. S. Comp. Stats. 1916, sec. 8872.) This money cannot properly be placed, when received by the state treasurer, in the general fund of the state, as its exclusive supervision is vested in the trustees of the institution designated by the state legislature as the beneficiary entitled to receive it.</p> <p>2. The state treasurer, to whom the fund is transmitted by the secretary of the treasury, is charged with the ministerial duty of immediately paying it over to the treasurer of the board of regents of the University of Idaho, upon its order, and the state auditor has no authority over, and no duty to perform with respeet to it.</p> <p>3. The acts of the defendants, state auditor and state treasurer, in attempting to place the money in the general fund of the state treasury, by making entries upon their books to that end, were mere nullities and did not affect its legal status.</p>

<p>Bills and Notes — Holder in Due Course — Partnership.</p> <p>■ 1. A payee of a- negotiable instrument may become a holder thereof 'in due course under the provisions of the negotiable instrument law, Civ. Code, tit. 13.</p> <p>2. Under the negotiable instrument law one who knowingly receives partnership security in discharge of a separate pre-existing indebtedness of one of the partners is required to make due inquiry as to the authority of the partner to use the security for his individual benefit, and the law imputes to him a knowledge of the facts which proper inquiry would disclose.</p> <p>3. A creditor cannot apply funds of a partnership to payment of the separate pre-existing indebtedness of one of the partners without the consent of the remaining members of the firm.</p> <p>[As to misapplication of partnership property by partner to the payment of his personal debt, see note in 7 Am. St. 377.]</p>

Hon. Edgar C. Steele, Judge. Prosecution for adultery. From a judgment of conviction defendant appeals.

Hon. Charles P. McCarthy, Judge. Action to enforce liability of corporate directors.

<p>Animals — Two-mile Limit Law — Possessory Claim — Evidence.</p> <p>1. It is incumbent upon one who claims damages for a violation of Eev. Codes, sec. 1217, commonly known as the “two-mile limit law,” to bring himself within the terms of the.statute.</p> <p>2. Where the alleged trespass consists in herding or grazing sheep within two miles of the dwelling-house of the owner or owners of a possessory claim, mere naked possession of a dwelling-house by plaintiff will not support the action, but it must be shown that such dwelling-house is that of the owner or owners of the possessory claim.</p> <p>3. The term “owner of sueh possessory claim,” as used in the two-mile Emit law, means one who is in possession of land by reason of some title thereto, or who by reason of his settlement obtained some right, or one who can maintain his claim by reason of having complied with the provisions of sees. 4552-4556, Eev. Codes.</p>

Hon. Ed. L. Bryan, Judge. Action to remove public officer. Judgment for defendant. An action brought under see. 7459 is not a criminal action. (Ponting v. Isaman, 7 Ida. 283,' 286, 62 Pac. 680.) Rule 28 provides that the time during which the trial court, or judge thereof, may hold a bill of exceptions, etc., shall be excluded in computing time. (Fischer v. Davis, 24 Ida. 216, 222; 133 Pac. 910; Junction Placer Min.

<p>APPEAL from the District Court of the Seventh Judicial District, for Gem County. Hon. Ed. L. Bryan, Judge.</p> <p>Action to remove public officer. Judgment for defendant.</p>

<p>APPEAL from the District Court of the Seventh Judicial District, for Gem County. Hon. Ed. L. Bryan, Judge.</p> <p>Action to remove public officer. Judgment for defendant.</p>

<p>APPEAL from the District Court of the Third Judicial District, for Ada County, Hon. Chas. P. McCarthy, Judge,</p> <p>Action for money had and received.</p> <p>“In an action where one is entitled to relief at law or relief in equity, his complaint must contain a statement of the facts constituting the cause of action in ordinary and concise language.” (Bates v. Capital State Bank, 21 Ida. 141, 148, 121 Pac. 561.)</p> <p>‘‘The complaint of money had and received, unless on an account, must usually be special, setting forth the relation of the parties and the contract or wrong by means of which the money was received.” (Abbott’s Trial Evidence, p. 335; Pomeroy’s Remedies and Remedial Rights, 2d ed., sec. 554, p. 611; Pomeroy’s Code Remedies, sec. 544, p. 372; St. Louis Sanitary Co. v. Reed, 179 Mo. App. 164, 161 S. W. 315.)</p> <p>“Fraud is never presumed, and in order to entitle a party to relief either at law or in equity on that ground, it is essential that the fraud be distinctly alleged in the pleadings, so that it may be put in issue and evidence thereof given.” (9 Am. & Eng. Ency. of Pleading and Practice, 684, 685; Sutherland’s Code Pleadings and Practice, secs. 6878, 6890; Bates’ Code Pleading and Practice, p. 1453; Estee’s Pleadings, sec. 2748; 10 Standard Ency. of Proc., p. 49; Southall v. Parish, 85 Ya. 403, 7 S. E. 534, 1 L. R. A. 641; Strong v. Whybark, 204 Mo. 341, 120 Am. St. 710, 102 S. W. 968, 12 L. R. A., N. S., 240; Chase v. Busk, 90 Mo. App. 25; Wolford v. Powers, 85 Ind. 294, 44 Am. Rep. 16; MeClinton v. Chapin, 54 Fla. 510, 14 Ann. Cas. 365, 45 So. 35; Patton v. Taylor, 48 U. S. 132, 12 L. ed. 637-650; Noonan v. Braley {Lee), 67 U. S. 499, 17 L. ed. 278, 281; Wetherly v. Straus, 93 Cal. 283, 28 Pac. 1045; Hammond v. McCollough, 159 Cal. 639, 115 Pac. 216; In re Yoell’s Estate, 164 Cal. 540, 129 Pac. 999; Brown v. Bledsoe, 1 Ida. 746; Abrams v. White, 11 Ida. 497, 83 Pac. 602; Kemmerer v. Pollard, 15 Ida. 34, 96 Pac. 206; Wilson v. Baker Clothing Co., 25 Ida. 378-388, 137 Pac. 896, 50 L. R. A., N. S., 239.)</p> <p>The action is one in assumpsit for money had and received, and the pleading on the part of the plaintiff is in the common-law form for money had and received. This is the proper action to recover money obtained under a contract induced by fraud, or where there has been a rescission of contract. {Lockwood v. Kelsea, 41 N. H. 185.)</p> <p>“To sustain the count for money had and received by the defendant for the use of the plaintiff it is only necessary to show that the defendant has obtained possession of money, or received something as money, which ex aequo et bono he ought to refund.” (2 Ency. PI. & Pr. 1016.)</p> <p>“It is a liberal action in which the plaintiff waives all torts, trespasses and damages and claims only the money which the defendant has actually received. Thus this count may also be supported by evidence that the defendant obtained the plaintiff’s money by fraud or false pretenses.” (3 Elliott on Evidence, sec. 1729; Stout v. Caruthersville Hdw. Co., 131 Mo. App. 520,110 S. W. 619, 621.),</p> <p>Under the decisions of practically all the code, states the common-law form of money had and received states a cause of action. (Miller v. Abrahamson, 9 Cal. App. 396, 99 Pae. 534; Pomeroy’s Code Remedies, 3d ed., see. 542; Grannis v. Hooker, 29 Wis. 65; Keene v. Kld-ridge, Ml Or. 179, 82 Pae. 803; Waite v. Willis, 42 Or. 288, 70 Pac. 1034; Allen v. Patterson, 7 N. Y. 476, 57 Am. Dec. 542; Meagher v. Morgan, 3 Kan. 372, 87 Am. Dec. 476; Emslie v. Lemenworth, 20 Kan. 562; Jennings County Commrs. v. Verbarg, 63 Ind. 107; Jones v. Midi, 82 N. O. 252; Ball v. Fulton County, 31 Ark. 379; Hosley v. Black, 28 N. Y. 438; Carroll v. Pml’s Adnvr., 16 Mo. 226.)</p> <p>It is not a variance to prove fraudulent representations under the common count of money had and received. (WinIcier v. Jerrue, 20 Cal. App. 555, 129 Pae. 804; Minor v. Bald-ridge, 123 Cal. 187, 55 Pac. 783; Band v. Columbian Realty Co., 13 Cal. App. 444, 110 Pae. 322; Davidson Grocery Co. v. Johnston, 24 Ida. 336, Ann. Cas. 1915C, 1129, 133 Pac. 929.)</p>

<p>Husband and Wife — Fraudulent Conveyance — Costs.</p> <p>1. A husband not insolvent and in the exercise of good faith may convey community property to his wife as a gift, and the same will thereupon become her separate property.</p> <p>[As to transfers of real estate between husband and wife, tested by the law as to fraudulent conveyances, see note in 19 Am. St. 657; 20 Am. St. 715; 90 Am. St. 497.]</p> <p>2. Where a husband transfers property to his wife with intent to hinder, delay and defraud his creditors, his wife not being a party to the fraudulent intent, and thereafter she satisfies a valid pre-existing mortgage and pays taxes levied against the premises out of her separate funds, and the property is afterward sold on execution sale, she is entitled to a lien for the amount she has so expended, which lien takes precedence over the rights of the purchaser at the execution sale.</p> <p>3. In an action where the title to land is involved, the prevailing party is entitled to costs as of course under Key. Codes, sec. 4901.</p>

<p>PROCEEDINGS for disbarment of Edward Hofstede.</p>

Hon. R. N. Dunn, Judge. Action to recover taxes and penalty. Judgment for defendant. The state has a right to impose penalties upon its citizens who seek to transact business with unauthorized companies. (Hooper v. California, 155 U. S. 848, 15 Sup. Ct. 207, 39 L. ed. 297; Allgeyer v. Louisiana, 165 U. S. 578, 17 Sup.

Hon. R. N. Dunn, Judge. Action to recover taxes and penalty. Judgment for defendant. rely on authorities cited in Hyatt v. Blackwell Umber Co., cmte, p. 452.

Hon. Wm. A. Babcock, Judge. Action in claim and delivery. “All property acquired by either spouse during coverture is presumed to be community property, and the burden of proof rests upon the party who asserts that it was separate property to show such fact by a preponderance of the evidence.” (Humbird Lumber Co. v. Doran, 24 Ida. 507, 135 Pac. 66.) Under our statutes the time and earnings of both the husband and wife are community property.

Hon. William W. Woods, Judge. Action for writ of mandate. At common law the right to inspect the books and records of a corporation existed, but that right could only be exercised in good faith and for some just, useful or reasonable purpose. (7 R. C. L. 326, sec. 303; Commonwealth v. Empire Pass. By. Co., 134 Pa.

Hon. William W. Woods, Judge. Action to recover damages for personal injuries. Judgment of nonsuit and dismissal. From an order granting a new trial, defendant appeals. The court has no jurisdiction to grant a new trial in a case of this character. The action having been dismissed on a motion for a nonsuit, a motion for a new trial was improper. (People v. George. 3 Ida. 108, 27 Pac. 680; Harper v. Hildreth, 99 Cal. 265, 33 Pac. 1103; Nolle v. Harter, 6 Kan.

Hon. William W. Woods, Judge. Action to recover possession of certain mining claims and to have an option decreed to be not a cloud upon the title thereto. Generally, in contracts for the sale of land, unless expressed, time is not of the essence. (Brown v. Guarantee Trust etc. Co., 128 U. S. 403, 9 Sup. Ct. J27, 32 L. ed. 468; Goldsmith v. Guild, 10 Allen (Mass.), 239; Green v. Covillaud, 10 Cal. 317, 10 Am. Dec. 725; Waterman v. Banks, 144 U. S. 394, 12 Sup.

<p>APPEAL from the District Court of the Second Judicial District, for Lewis County. Hon. E’dgar C. Steele, Judge.</p> <p>Action on contract to recover real estate broker’s commission. Judgment for plaintiff.</p> <p>“Before a broker can be said to have earned his commission, it must be shown that he procured a purchaser who was ready and willing to make the purchase on terms satisfactory to his employer, and that he was the efficient agent or procuring cause of the sale; also that he performed the duty assumed by him within the time limited in his contract, or within such extension of time as may have been granted by his employer. If he failed to do that he is not entitled to the commission even though he made efforts to sell the property, and first called it to the. attention of the party who subsequently made the purchase, unless the delay was caused by the negligence, fraud, or fault of the owner.” (Zeimer v. Antisell, 75 Cal. 509, 17 Pae. 642; Brown v. Mason, 155 Cal. 155, 99 Pac. 867, 21 L. R. A., N. S., 328; Fultz v. Winner, 34 Kan. 576, 9 Pac. 316.)</p> <p>“Where a party employs a real estate broker to sell a piece of property at a stipulated priee and the broker procures a purchaser who purchases said property, or is able and willing to purchase said property upon the terms given to the agent by the owner, or where the purchaser’s attention was first called to the desires of .the owner of the property by the broker and he thereafter purchases the property, the broker is entitled to his commissions.” (Tonkin-Clark Realty Go. v. Hedges, 24 Ida. 304, 311, 133 Pae. 669; Phillips v. Brown, 21 Ida. 62, 120 Pac. 454; Wood v. Broderson, 12 Ida. 190, 85 Pac. 490; Smith v. Anderson, 2 Ida. 537, 21 Pae. 412; Goffe v. Gibson, 18 Mo. App. 1; Griswold v. Pierce, 86 111. App. 406; Ewan v. Power, 165 Ky. 806, 178 S. W. 1092; Rasar & Johnson v. Spttrling, 176 111. App. 349.)</p> <p>“Where a sale is actually made by the owner closing the deal with the customer of the broker, the broker need not to recover show that the sale was completed within the time fixed in the contract of employment or an option on the property, provided the broker initiated the transaction of purchase within the prescribed time and hence was the procuring cause, but recovery depends on the fact that the transaction initiated by the broker was continued by the subsequent dealings between the owner and the customer or some one representing him.” (Cole v. Crump, 174 Mo. App. 215, 156 S. W. 769; Weischs Gerhard Real Estate Co. v. Eplein (Mo.), 137 S. W. 326; Knox v. Parker, 2 Wash. 34, 25 Pac. 909.)</p>

Hon. Edgar C. Steele, Judge. Action for damages. Judgment for plaintiff. A general statement of the fundamental principles is sufficient to show that this is an action in contract and not in tort.

Hon. John M. Flynn, Judge. Action to recover damages for loss of interstate shipment while in possession of carrier. Judgment for plaintiff. Under the Cummins amendment the declared value is the limit of recovery. (Adams Express Co. v. Croninger, 226 U. S. 491, 33 Sup. Ct. 148, 57 L. ed. 314, 44 L. R. A., N. S., 257; Chicago, B & Q. B. Co. v. Miller, 226 U. S. 513, 33 Sup. Ct. 155, 57 L. ed. 323;- Chicago, St. P. M. & O. By. v. Latta, 226 U. S. 519, 33 Sup.

<p>APPEAL from tbe District Court of tbe Eighth Judicial District, for Bonner County. Hon. R. N. Dunn, Judge.</p> <p>Action to recover water rentals. Judgment for defendant.</p> <p>Franchise ordinances between municipalities and public utilities do not come within the contract clause of the constitu-, tion of the United States, and do not abrogate or prevent the exercise by the state of its police power in any manner it may consider just and proper. (Idaho Power & Light Co. v. Blomguist, 26 Ida. 222, Ann. Cas. 1916E, 282, 141 Pac. 1088; State v. Superior Court, 67 Wash. 37, Ann. Cas. 1913D, 78, and notes, 120 Pac. 861, L. R. A. 1915C, 287; City of Wood-burn v. Public Service Commission, 82 Or. 114, Ann. Cas. 1917E, 996, 161 Pac. 391, L. R. A. 1917C, 98.)</p> <p>The constitutional provision does not apply to municipal contracts affecting the safety and welfare of the public. (2 McQuillin on Municipal Corporations, sec. 753, p. 1632, and eases cited; Knox v. Lee (Legal Tender Cases), 12 Wall. (U.-S.) 457, 550, 20 L. ed. 287, 312.)</p> <p>The law in force at the time of the making of a contract and in any manner affecting it enters into and becomes a part of the contract, and cannot be repealed or altered so as to affect the obligation of the contract or to impair rights vested under those laws. (Fletcher v. Peck, 10 U. S. (6 Cranch) 87, 3 L. ed. 162; Trustees of Bishop’s Fund v. Rider, 13 Conn. 87; New Jersey v. Wilson, 7 Cranch (U. S.), 164, 3 L. ed. 303; Howard v. Jones, 50 Ala. 67, 69; Watson v. Rose’s Exrs., 51 Ala. 292, 300; English v. Oliver, 28 Ark. 317, 334; Columbus County Commrs. v. King, 13 Fla. 451, 474; State v. Walsh, 31 Neb. 469, 476, 48 N. W. 263, 265; Munday v. Assessors of City of Rahway, 43 N. J. L. 338, 340; Moore v. State, 43 N. J. L. 203, 217, 39 Am. Rep. 558, 570; Homestead Cases, 22 Gratt. (Ya.) 266, 287, 288, 12 Am. Rep. 507, 514, 515; United States v. Quincy, 4 Wall. 535, 549, 18 L. ed. 403, 408; Pond on Public Utilities, secs. 91-98.)</p> <p>“The rules applicable to legislative franchises which constitute contracts, are alike applicable to ordinances granting franchises which are ‘laws’ and which, upon acceptance by the grantee, constitute contracts. No subsequent ordinance which constitutes a law can impair their obligations.” (2 McQuillin on Municipal Corporations, sec. 759; 12 R. C. L. p. 179; State v. Real Estate Bank, 5 Ark. 595, 41 Am. Dee. 109; Peterson v. Tacoma By. & Power Co., 60 Wash. 406, 140 Am. St. 936, 111 Pae. 338; People v. State Board of Tax Commrs., 174 N. Y. 417, 105 Am. St. 674, 67 N. E. 69, 63 L. R. A. 884; City of Indianapolis v. Indianapolis GasLight & Coke Co., 66 Ind. 396.)</p>

Hon. William W. Woods, Judge. Action charging defendant, as a persistent violator, with the unlawful possession of intoxicating liquor. The lower court erred in permitting the jury to be advised in any way and the state to prove before the jury the prior conviction of defendant of a violation of the prohibition act upon his prosecution as a persistent violator of the act.

<p>APPEAL from tbe District Court of the Eighth Judicial District, for Bonner County. Hon. R. N. Dunn, Judge.</p> <p>Action for damages for personal injuries.</p> <p>Mere occupancy of the property of another is not in itself sufficient to create a tenancy. (24 Cyc. 882.)</p> <p>Where a person is hired to do a certain work at a stipulated price, and is allowed the permission to occupy a room so long as he remained in the defendant’s employ, the employer has the right to terminate the employment and to forcibly eject the employee from the room. {Be Briar v. Minium, 1 Cal. 450; Bou/rland v. McEmghi, 79 Ark. 427, 96 S. W. 179, 4 L. R. A., N. S., 698; School Bist. of Alpine Twp. v. Batsche, 106 Mich. 330, 64 N. W. 196, 29 L. R. A. 576.)</p> <p>The owner of property has the right, upon demand, to forcibly eject a trespasser from his property and to use reasonable force for that purpose. (2 R. C. L. 557; 3 Cyc. 1045.)</p> <p>Where a trespasser defiantly stands his ground armed with a deadly weapon, the occupant may at once resort to physical force to remove him without being guilty of assault and battery. (State v. Davis, 80 N. C. 351, 30 Am. Rep. 86.)</p> <p>Where the trespasser resists ejection from the premises and commits an assault on the owner, the latter may use such force as is necessary to overcome not only the trespass on the land but the assault on his person. (State v. Dcuuis, supra; Shain v. Markham, 4 J. J. Marsh. (Ely.) 578, 20 Am. Dec. 232; Morgan v. Durfee, 69 Mo. 469, 33 Am. Rep. 508; 2 R. C. L. 558.)</p> <p>The Butts, being the servants of Potter, had no right to take a lodger and boarder without obtaining Potter’s consent. (Bowman v. Bradley, 151 Pa. St. 351, 24 Atl. 1062,17 L. R. A. 213.)</p>

Court of the First Judicial District, for Shoshone County. Hon. Vm. W. Woods, Judge. Appeal from judgment of conviction for unlawful transportation of intoxicating liquors in a prohibition district. The court erred in allowing testimony to be offered by the state relative to the search of appellant’s automobile without a search-warrant or a warrant for appellant’s arrest. (Weeks v. United States, 232 U. S. 383, Ann. Cas. 1915C, 1177, 34 Sup.

<p>APPEAL from tbe District Court of the Second Judicial District, for Clearwater County. Hon. Edgar C. Steele, Judge.</p> <p>Action to foreclose an agreement as an equitable mortgage. Judgment of dismissal for plaintiff reversed.</p> <p>If defendants seek affirmative relief by their answer, the court, over their objection, cannot sustain the motion of the plaintiff to dismiss the action, and thereupon dismiss the action, and thereby prevent an adjudication of the issues raised by the answer. (Northwestern & Pac. Hypotheek Bank v. Ratach, 5 Ida. 752, 51 Pac. 764; Rev. Codes, see. 4354.)</p> <p>The court cannot dismiss the action before trial, or without trial on the merits, where “a counterclaim” has been made, or where “affirmative relief” has been demanded “or sought by the cross-complaint or answer of defendant.” (Frost v. Idaho Irr. Co., 19 Ida. 372, 114 Pae. 38.)</p> <p>The court must proceed and enter judgment, upon the merits, on the issues raised by the cross-complaint, and cannot dismiss the action, or refuse to hear and determine the matters presented by the cross-complaint. (Frost v. Idaho Irr. Co., supra; Mott v. Mott, 82 Cal. 413, 22 Pac. 1140; Islais etc. Water Co. v. Allen, 132 Cal. 432, 64 Pac. 713; Rodgers v. Parker, 136 Cal. 313, 68 Pac. 975.)</p> <p>The cross-complaint does not fall with the complaint, but remains as a distinct and independent action, or cause of action. (Mott v. Mott, 82 Cal. 413, 22 Pac. 1140, 1142.)</p> <p>The cross-complaint is a defendant’s complaint against the plaintiff to which the plaintiff must demur and answer the same as to a complaint against him in an independent action where the defendant is the plaintiff. (Western Loan & Savings Co. v. Smith, 12 Ida. 94, 85 Pac. 1084.)</p> <p>The only issue before the court in the case at bar was fixed by the second amended complaint and the answer of the defendants to this second amended complaint. No affirmative relief being asked in this answer, ip was proper for the court on motion of the plaintiff to dismiss the action. (Stevens v. Home Savings etc. Assn., 5 Ida. 741, 51 Pae. 779, 986; Louisiana & N. B. Co. v. Woods, 105 Ala. 561, 17 So. 41, 44; Putnam v. Lyons, 3 Colo. App. 144, 32 Pac. 492; Wooddy v. Jamieson, 4 Ida. 448, 40 Pac. 61, 62; Wells v. Applegate, 12 Or. 208, 6 Pac. 770, 771.)</p>

<p>Bail Bonds — Liability on.</p> <p>1. Where a bail bond has been duly executed, prior to preliminary examination, to obtain the release of one charged with crime, and the district, court upon motion to quash the information orders the case resubmitted to a committing magistrate and the prosecuting attorney files a new complaint before the committing magistrate, such magistrate does not have authority to call upon the sureties to produce the body of the defendant to answer the new charge or to declare the bond forfeited by reason of their failure to do so.</p> <p>[As to what will excuse surety from producing principal, see note in 99 Am. Dec. 216.]</p>

<p>APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. Wm. W. Woods, Judge.</p> <p>Action for writ of mandamus. Judgment for plaintiff.</p> <p>Garnishee, not a party to the action, without issues, from a default judgment is without right of appeal. Only a party may appeal. (Rey. Codes, secs. 4310e, 4310i, 4310m, 4838, 4308-4310n; Stroup v. Sullivan, 2 Ga. 275, 46 Am. Dec. 389; Eagleson v. Rubin, 16 Ida. 92, 100 Pac. 765; In re Switzer, 119 Am. St. 751 (note), 2 R. C. L. 55; Hanna’s Syndics v. Lauring, 10 Mart. (O. S.) La. 568, 13 Am. Dee. 339.)</p> <p>The judgment in probate court against garnishee was rendered Jan. 25, 1917. It became final Feb. 25, 1917. The issues cannot be tried again. These, however, are the same issues that garnishee must try if his appeal is allowed. He has no issues. He is not permitted a trial de novo on new issues, on an answer filed in district court, and has no right to frame an issue in district court. {Zimmerman v. Bradford-Kennedy Go., 14 Ida. 681, 686, 95 Pac. 825.) He is and was estopped by the judgment which was final on and after Peb. 25, 1917. {Last Chance Min. Co. v. Tyler Min. Co., 157 U. S. 683, 15 Sup. Ct. 733, 39 L. ed. 859, at 863; Cromwell v. Sac County, 94 U. S. 351, 24 L. ed. 195; Aspden v. Nixon, 4 How. (U. S.) 467, 11 L. ed. 1059.</p> <p>Mandamus does not lie. {Ex parte Flippin, 94 U. S. 348, 24 L. ed. 194; State v. Gardner, 32 Wash. 550, 98 Am. St. 858, 865, 73 Pac. 690.)</p> <p>Any party dissatisfied with a judgment in a civil action in a probate or justice court may appeal therefrom to the district court, and it matters not whether such judgment was upon the merits or upon questions of law or for want of an answer. If it was a final judgment terminating the controversy in said court an appeal may be taken therefrom. • (Rev. Codes, sec'. 4838; Smith v. Clyne, 15 Ida. 254, 97 Pac. 40; Thompson v. State (OH.), 154 Pac. 508.)</p> <p>The judgment in the probate court against respondent as garnishee defendant was a final judgment terminating the controversy in said court, from which judgment the respondent garnishee had a right to appeal to the district court as in any civil action in said probate court. (Rev. Codes, secs. 4310-G, 4310-H, 4310-1, 4310-M; Eagleson v. Rubin, 16 Ida. 92, 100 Pac. 765; Shumdke v. Shumahe, 17 Ida. 649, 107 Pac. 42; Santa Fe Pac. By. Co. v. Bossut, 10 N. M. 322, 62 Pae. 977; Stevenson v. Standard Adding Machine Co., 150 Mo. App. 555, 131 S. W. 162; Haughton v. Allen, 1 N. C. 364; Peering & Co. v. Bichardson-Kimball Co., 109 Cal. 73, 41 Pac. 801; Giesy Walker Co. v. Briggs (Utah), 162 Pae. 876; Davis Co. v. Choctaw etc. B. Co., 73 Ark. 120, 3 Ann. Cas. 658, 83 S. W. 318.)</p> <p>Mandamus will lie to compel the performance of a duty enjoined upon the court by law. (Hill v. Morgan, 0 Ida. 718; 76 Pac. 323; State v. Quarles, 13 Ida. 252, 253, 89 Pac. 636; Oliver v. Kootenai County, 13 Ida. 281, 90 Pac. 107; Hays v. Stewart, 7 Ida. 193, 61 Pae. 591.)</p>

<p>APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. William W. Woods, Judge.</p> <p>Action to foreclose liens. Demurrer to complaint sustained and judgment of dismissal entered.</p> <p>The contract is not a lease. It provides that when its terms are complied with by second parties, the title passes to them. There is no reversion remaining in the owners. (24 Cyc. 878-884; 2 Blaekstone, p. 1142 (*page 818) Jones ed.)</p> <p>This contract is one of option purchase within the meaning of such authorities as Donaldson v. Thousand Springs Power Co., 29 Ida. 735, 162 Pac. 334; Johnson v. Geddes, 49 Utah, 137, 161 Pac. 910; Cheney v. Libby, 134 U. S. 68-84, 10 Sup. Ct. 498, 33 L. ed. 818.</p> <p>Because this contract creates the relation of vendor and vendee in possession with required work, labor and improvements to be done and performed by vendee, the owners are not within the exemption of the proviso, sec. 5110, Rev. Codes, and are, therefore, liable for indebtedness incurred for labor performed in the fulfilment of the contract, at the instance of the “person"in charge” of the property. (Chicago Lumber Co. v. Dillon, 13 Colo. App. 196, 56 Pac. 989.)</p> <p>"While at common law and under the statute the landlord's interest is not lienable for work done at the instance of the tenant, yet the terms of this document added clauses which create the second party the agent of the owners, as neither the ownership nor the “lease” prevented the second party from being made the “agent” of the first parties. (Western Lumber & Mill Co. v. Merchants’ Amusement Co., 13 Cal. App. 4, 108 Pac. 891; 27 Cyc. 56; Higcfins v. Carlotta Gold M. Co., 148 Cal. 700, 113 Am. St. 344, 84 Pac. 758; Oregon Lumber & F. Co. v. Nolan, 75 Or. 69, 143 Pae. 935, 146 Pae. 474; Long-Bell Lumiber Co. v. McCray Band Co., 89 Kan. 788, 132 Pae. 992.)</p> <p>“As a general rule, where the contract of purchase stipulates that the purchaser shall erect certain buildings or make certain improvements, the lien will attach to and bind the interest of the vendor even though the vendee forfeit his contract.” (27 Cyc. 61; Shearer v. Wilder, 56 Kan. 252, 43 Pae. 224.)</p> <p>The requirement for the performance of assessment work and the filing of the proofs of labor can be done only by the owner or his agent or someone authorized to act for such owner. (Snyder on Mines, ed. 1902, sec. 494; Lavery v. Mid-Continent Oil Dev. Co. (Okl.), 162 Pae. 737; Higgins v. Carlotta Gold Min. Co., supra.)</p> <p>The vendors not only knew that work and labor was to be done and necessary supplies purchased to carry out the terms of the contract, but they required the vendees to do such work and furnish such supplies which should enrich the fee because it was agreed they would become fixtures. Modem authorities speak in no uncertain terms of the relationship established by such contracts and hold the fee responsible for the indebtedness incurred in carrying out such terms. {Dahlman v. Thomas, 88 Wash. 653, 153 Pae. 1065; Oregon Lumber & Fuel Co. v. Nolan, 75 Or. 69, 143 Pac. 935, 146 Pac. 474; Myers v. Joseph A. Strowbridge Estate Co., 82 Or. 29, 160 Pac. 135; Hume v. Seattle Dock Co., 68 Or. 477, 137 Pac. 752, 50 L. R. A., N. S'., 153; 29 Cyc. 58.)</p> <p>The terms of the agreement stamp it emphatically as a lease with an option to purchase, and no other intention can be drawn from the conduct of the parties than that it was at all times so understood by them. (Steel v. Argentine Min. Co., 4 Ida. 505, 95 Am. St. 144, 42 Pac. 585; Block v. Murray, 12 Mont. 545, 31 Pae. 550; Donaldson v. Thousand Springs Power Co., 29 Ida. 735, 162 Pae. 334; Tilton v. Sterling Coal <& Coke Co., 28 Utah, 173, 107 Am. St. 689, 77 Pac. 758; Sweezy v. Jones, 65 Iowa, 272, 21 N. W. 603.)</p> <p>The lease did not create the relation of vendor and vendee, and such relation could only exist after the lessees had exercised their option to purchase by making payments. (24 Cyc. 1023.)</p>

<p>APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. Wm. W. Woods, Judge.</p> <p>Action to recover upon benefit certificate of 'a fraternal beneficiary society. Judgment for plaintiff.</p> <p>Members of fraternal beneficiary societies are presumed to know the by-laws and are bound by them. (Corey v. Sherman (Iowa), 60 N. W. 232; Benes v. Supreme Lodge K. & L. of Honor, 231 111. 134, 139, 121 Am. St. 304, 83 N. E. 127, 14 L. B. A., N. S., 540; Miller v. National Council of K. & L. of Sec., 69 Kan. 234, 76 Pac. 830; Fry v. Charter Oak Life Ins. Co., 31 Fed. 197; Sterling v. Head Camp, 28 Utah, 505, 80 Pac. 375.)</p> <p>Unless death is proved the presumption is that life continues. (Greenleaf on Evidence, sec. 41; 19 Am. & Eng. Ency. of Law, 74; Needy v. Millizen, 155 111. 636, 40 N. E. 1028; Whiting v. Nicholl, 46 111. 230, 241, 92 Am. Dec. 248; Clarke’s Exrs. v. Canfield, 15 N. J. Eq. 119.)</p> <p>An inference of death is not raised by seven years’ absence alone. It must also be made to appear that the absentee has not been heard from by all persons who might be expected to hear from him, and it must be shown also that diligent search and inquiry has been made for him at all places where he might be. (Modern Woodmen v. Gerdom, 72 Kan. 391, 7 Ann. Cas. 570, 82 Pac. 1100, 2 L. B. A., N. S., 809; Hitz v. Ahlgren, 170 111. 60, 48 N. E. 1068; Metropolitan Life Ins. Co. v. Lyons, 50 Ind. App. 534, 98 N. E. 824; New York Life Ins. Co. v. Hoick, 59 Colo. 416, 151 Pae. 916.)</p> <p>Sec. 33 of appellant’s by-laws provides that no presumption of death shall arise until the expiration of insured’s period of expectancy, according to the National Fraternal Congress Table of Mortality. This has not expired. The by-law was binding and precludes recovery by appellee. (Kelly v. Supreme Council, 46 App. Div. 79, 61 N. T. Supp. 394; Porter v. Home Friendly Soc., 114 Ga. 937, 41 S. E. 45; Miller v. National Council, 69 Kan. 234, 76 Pac. 830; MeLaughlin v. Sovereign Camp W. O. W., 97 Neb. 71, Ann. Cas.. 1917A, 79, 149 N. W. 112, L. R. A. 1915B, 756; McGovern v. Brotherhood of Locomotive Fireman & Engineers, 85 Ohio St. 460, 98 N. E. 1128; Tisch v. Protected Home Circle, 72 Ohio St. 233, 74 N. E. 188.)</p> <p>A provision in the by-law stating what evidence shall be admissible and sufficient is valid. (Underwood v. Modern Woodmen, 141 Iowa, 240, 119 N. W. 610; Boss v. Modern Brotherhood of America, 120 Iowa, 692, 95 N. W. 207.)</p> <p>Where the contract provides the limitation of time within which suit may be instituted, such limitation is binding, and suit must be brought within the limitations therein provided. (Faulk v. Fraternal Mystic Circle, 171 N. C. 301, 88 S. E'. 431; Williams v. Western Travelers’ Acc. Assn., 97 Neb. 352, 149 N. W. 822; Fitzpatrick v. North American Acc. Ins. Co., 18 Cal. App. 264, 123 Pae. 209; TJlman v. Supreme Commandery, 220 Mass. 422, 107 N. E. 960; Arold v. Supreme Conclave I. O. H., 123 Md. 675, 91 Atl. 829; Fey v. I. O. O. F. Mutual Life Ins. Soc., 120 Wis. 358, 98 N. W. 206; Larkin v. Modern Woodmen, 163 Mich. 670, 127 N. W. 786, 788; Mooney v. Supreme Council Boyal Arcanum, 243 Pa. St. 463, 90 Atl. 132; Bates v. German Commercial Accident Co., 87 Vt. 128, Ann. Cas. 1916C, 447, 88 Atl. 532, 533:)</p> <p>There is no evidence before the court in this case that Grace Wiley died at any time, and especially is there no evidence that she died at the time of her disappearance, and it was error for the court to submit to the jury the special finding with reference thereto. (Apitz v. Supreme Lodge K. & L. of Honor, 196 111. App. 278; Donovan v. Major, 253 111. 179, 97 N. E. 231.)</p> <p>Plaintiff was entitled to await the termination of the seven-year period which would give rise to the presumption of death before commencing this action; and, this Being so, the statute of limitations could not have operated as a bar. (Linneweber v. Supreme Council Catholic Knights, 30 Cal. App. 315, 158 Pac. 229.),</p> <p>The by-laws should never be permitted to place a restriction on the beneficiary when enforcing the rights or claims of insured against the society. (Kennedy v. The Grand Fraternity, 36 Mont. 325, 92 Pac. 971, 25 L. R. A., N. S., 78.)</p> <p>After a continued and unexplained absence of seven years from the home or residence the presumption of death of the absentee arises. {Davie v. Briggs, 97 U. S. 628, 24 L. ed. 1086; In re Harrington’s Estate, 140 Cal. 244, 98 Am. St. 51, 73 Pac. 1000; Kennedy v. Modern Woodmen, 243 HI. 560, 90 N. Ef. 1084, 28 L. R. A., N. S., 181; Tisdale v. Connecticut Mut. Life Ins. Co., 26 Iowa, 170, 96 Am. Dec. 136; Miller v. Sovereign Camp Woodmen of World, 140 "Wis. 505, 133 Am. St. 1095, 122 N. W. 1126, 28 L. R. A., N. S., 178; Renard v. Bennett, 76 Kan. 848, 14 Ann. Cas. 240, 93 Pac. 261; Policemen’s Benev. Assn, of Chicago v. Ryce, 213 111. 9, 104 Am. St. 190, 72 N. E. 764.)</p> <p>The date of death was a material finding and the evidence fully sustains the finding and verdict of the jury. {Benjamin v. District Grand Lodge, 171 Cal. 260, 152 Pac. 731; Johnson v. Merithew, 80 Me. Ill, 6 Am. St. 162, 13 Atl. 132; Turneov. Williams, 202 Mass. 500, 132 Am. St. 511, 89 N. E. 110, 24 L. R. A., N. S., 1199; St. Martin v. Hendershott, 82 Or. 58, 151 Pac. 706, 160 Pac. 373; McLaughlm v. Sovereign Camp W. O. W., 97 Neb. 71, Ann. Cas. 1917A, 79, 149 N. W. 112, L. R. A. 1915B, 756; Wisconsin Trust Co. v. Wisconsin M. & F. Ins. Co., 105 Wis. 464, 81 N. W. 642; Davie v. Briggs, 97 U. S. 628, 24 L. ed. 1086; WMteley v. Equitable Life Assu/r. Soc., 72 Wis. 170, 39 N. W. 369; Nepean v. Doe, 2 Mees. & W. 913, 150 Eng. Reprint, 1029.)</p> <p>If the evidence warrants a finding that death occurred at an earlier date than seven years, a finding to such effect will stand. {Tisdale v. Connecticut Mut. Life Ins. Co., 26 Iowa, 170, 96 Am. Dec. 136; Hancock v. American Life Ins. Co., 62 Mo. 26; Lancaster v. Washington Life Ins. Co., 62 Mo. 121; Cox v. Ellswoo'th, 18 Neb. 664, 53 Am. Rep. 827, 26 N. W. 460; Caldwell v. Modem Woodmen, 89 Kan. 11, 130 Pac. 642.)</p> <p>The provision in the by-laws which attempts to defeat recovery in such a case as this, and the limitation provision in the certificate, are null and void, and contravene the law of this forum. (Douville v. Pacific Coast Casualty Co., 25 Ida. 396, Ann. Cas. 1917A, 112, 138 Pac. 506; Euler v. St. Joseph’s Hospital, 11 Ida. 631, 83 Pae. 768; 1 Bacon on Benefit Societies and Life Insurance, p. 164.)</p> <p>If a corporation undertakes to make by-laws in contravention of the statute, they are ultra vires and of no-effect. (Brower v. Supreme Lodge National Reserve Assn., 74 Mo. App. 490; Magner v. Mutual Life Assn., 17 App. Div. 13, 44 N. Y. Supp. 862.)</p>

<p>APPEAL from the District Court of the Second Judicial District, for Latah County. Hon. Edgar C. Steele, Judge.</p> <p>Action to foreclose a mortgage.</p> <p>After a sale of mortgaged property through the probate court, the security is exhausted and it cannot be pursued any further. {First National Bank v. Glenn, 10 Ida. 224, 109 Am. St. 204, 77 Pae. 623.)</p> <p>Where the mortgagee allows the property to be sold by the administrator and has presented a secured eláim as an unsecured claim, then the security is waived. {In re Turner’s Estate, 128 Cal. 388, 60 Pac. 967.)</p> <p>The record shows that plaintiff intended to file its claim as a secured claim; that all of the parties in any way affected knew that plaintiff’s claim was a secured claim. The question involved in the case at bar is not whether the mortgagee by failing to file his claim as a secured claim loses the right to have his claim treated in probate proceedings as a secured claim, but whether by failing to file it as a secured claim he loses the right to have it treated as a secured claim in all other courts. (Bank of Sonoma County v. Charles, 86 Cal. 322, 24 Pae. 1019; Mathew v. Mathew, 138 Cal. 334, 71 Pac. 344.)</p>

<p>Beal Property — Bescission op Contract op Sale — Pleading—Encumbrances- — Cost Bill — Appeal and Error.</p> <p>1. In an aetion by the vendee to rescind an executory contract of sale of real estate by reason of the vendor’s refusal to perform, it having been agreed that the stipulated time of payment of the purchase price should be of the essence of the contract, the complaint is defective if, without presenting any legal excuse therefor, it shows that the vendee has not complied with the terms of the contract by making payment when due.</p> <p>2. Where the answer and evidence show that the vendor has, at all times, treated an executory contract of sale as being in fuE force and effect, the failure of the vendee to tender final payment at the time it fell due is waived.</p> <p>3. An agreement to convey real property in fee simple, free and clear of aE encumbrances, is not fulfilled by tender of a [itle which exposes the party holding it to litigation.</p> <p>4. A vendor in an executory contract of sale, made in good faith, need only be able to perform when the vendee has a right to caE upon him to do so.</p> <p>5. A negative pregnant does not present an issue of faet.</p> <p>6. An order denying a motion to strike a cost bill, not being a part of the judgment-roE, nor one of the papers required to be furnished to this court upon appeal, eannot be reviewed unless incorporated in a bill of exceptions.</p> <p>[As to construction if covenant in contract of sale that grantor shall give warranty deed, see note in Ann. Cas. 1915B, 1022.]</p>

<p>APPEAL from the District Court of the Eighth Judicial District, for Bonner County. Hon. R. N. Dunn, Judge.</p> <p>Action to obtain injunction and for damages. Judgment for plaintiff.</p> <p>The demurrer to the complaint on the ground it does not state facts sufficient to constitute a cause of action should be sustained. The complaint contains no allegation to the effect that the plaintiff corporation has acquired a water right, or has complied with the laws of the state of Idaho regulating the appropriation and diversion of waters.</p> <p>There is no allegation in the complaint that the plaintiff has sustained any actual damage by reason of the construction of the ditch by the defendants. (Bower v. Moorman, 27 Ida. 162, 182, 147 Pac. 496; Boise Development Go. v. Idaho Trust etc. Bank, 24 Ida. 36, 133 Pac. 916.)</p> <p>It is incumbent upon the plaintiff to allege in its complaint and prove at the trial that it did not have sufficient water to supply its demands by reason of the diversion of the water by defendants. (Salt Lake City v. Gardner, 39 Utah, 30, 114 Pac. 147.)</p> <p>Appropriation by use is just as legal and valid as though plaintiff had secured a permit from the state engineer and posted and recorded its notices under the old statutes. (Nielson v. Parker, 19 Ida. 727, 115 Pac. 488; Washington State Sugar Co. v. Goodrich, 27 Ida. 26, 38, 147 Pac. 1073; Sand-point Water & Light Co. v. Panhandle Dev. Co., 11 Ida. 405, 83 Pac. 347.)</p> <p>The defendant never submitted or requested any finding on the issue on which he now complains that no finding was made. It was necessary for him to do so if he desired to assign that as error. (People v. Hunt, 1 Ida. 433; Johnson v. Fraser, 2 Ida. 404, 18 Pac. 48,)</p> <p>Under the issues and facts proven, the appellants were clearly estopped from in any manner claiming the water in this gravel basin or from the springs supplying respondent’s reservoir. (Orient Mining Go. v. Freckleton, 27 Utah, 125, 74 Pac. 652; Farter v. Page & Mott Ltr. Co., 20 Ida. 354, 118 Pae. 664; Herman on Estoppel, see. 735; Town v. Needham, 3 Paige (N. Y.), 545, 24 Am. Dec. 246, 254; Anderson v. Subtle, 93 Ind. 570,47 Am. Rep. 394, 399; Ada County Fanners’ Irr. Co. v. Farmers’ Canal Co., 5 Ida. 793, 799, 51 Pac. 990, 40 L. R. A. 485; McGinness v. Stanfield, 6 Ida. 372, 55 Pac. 1020; Knowles v. New Swedeh Irr. Fist., 16 Ida. 217, 225, 101 Pac. 81.)</p>

<p>Eminent Domain — Evidence — Expert Testimony — Trial — Instructions — View by the Jury — Value—Damages—Benefits.</p> <p>1. In an action for the condemnation of lands by a railroad company, it is not error to exclude from the evidence a permit to divert and appropriate waters for mining purposes upon the lands in question, issued by the state engineer to one not a party to the action, upon an application filed therefor after the issuance of the summons.</p> <p>2. It is not error to allow an expert witness to testify as to the facts and assumptions upon which he arrived at his opinion, which is admitted in evidence, where such assumptions are based upon his own investigation.</p> <p>3. The market value of the property actually taken in a condemnation proceeding is the correct rule of ascertaining damage for the property taken in all cases where it is of such a nature that its market value can be determined.</p> <p>[As to evidence of damages in condemnation proceedings, see note in 22 Am. St. 49.]</p> <p>4. Even though an isolated instruction, considered alone, may be erroneous and misleading, where the instructions as a whole state the law correctly, no reversible error is committed.</p> <p>5. Evidence of the discovery of mineral deposits upon lands sought to be condemned for railroad right of way after the issuance of summons íb admissible for the purpose of enabling the jury to determine whether the market value of the land was affected thereby at the time of the issuance of the summons. In such cases it is not permissible to draw a distinction between actual value and market value, for actual value must be held to mean actual market value.</p> <p>6. Under Eev. Codes, sec. 5220, benefits whieh will specially and directly accrue to the portion of the land not sought to be condemned may be set off against the damages which will accrue to the portion not sought to be condemned, but not against the' value of the portion of the land taken. Under this statute, increased transportation facilities are not special and direet benefits to the land not taken.</p> <p>7. Benefits which may be set off against lands not sought to be condemned must be such as relate to the land and not to the owner.</p> <p>8. The knowledge gained by the jury by means of a view of the premises involved does not supply a want of evidence and is not evidence upon whieh a verdict may be based, but it is to be applied in determining the weight and applicability of the evidence introduced at the trial.</p>

<p>APPEAL from the District Court of the Fourth Judicial District, for Gooding County. Hon. Wm. A. Babcock, Judge.</p> <p>Prosecution for unlawfully transporting intoxicating liquors.</p>

Hon. F. J. Cowen, Judge. Action for damages. Judgment for plaintiff. Defendant appeals from an order denying a new trial. “Unless good cause is shown for the delay, an appeal from an order denying a new trial, taken more than a year after the entry of judgment, will be dismissed on motion.” (Mc-Crea, v. McGrew, 9 Ida. 382, 75 Pac. 67; Smith v. Americam Falls Canal & Power Co., 15 Ida. 89, 95 Pac. 1059; Wood v. Tanner, 15 Ida. 689, 99 Pac. 123, 1053.)

<p>Appeal-Drainage District — Judgment—Costs.</p> <p>1. The right to appeal, if it exists, must be found in the constitution or statutes.</p> <p>2. An order declaring a drainage district organized is not a final judgment.</p> <p>3. The right to costs is statutory, and their allowance as a matter of course is dependent upon, and incidental to, a final judgment.</p>

Hon. Isaac F. Smith, Judge. The defendant was convicted of rape. Unless a witness understands the nature and obligation of an oath, the form of swearing the witness to tell the truth, the whole truth and nothing but the truth, is idle and of no effect and the witness is not in any manner qualified to testify. {Lee v. Missouri Pac. By.

Hon. Chas. P. McCarthy, Judge. Action for damages. Judgment for plaintiff. No jurisdiction was conferred upon this court by the filing of notice of appeal and undertaking on Feb. 28, 1918, 1 year, 4 months and 17 days after the appellant filed his praecipe with the clerk of the trial court for a transcript of the clerk’s record of the judgment-roll, and 10 months, 7 days after the appellant filed his second notice of appeal and undertaking on appeal.

<p>Criminal Law — Appeal — Transcript — Service — Dismissal — Lewd Cohabitation — Complaint—Suppicien cy op.</p> <p>1. Where the transcript on appeal in a criminal case contains no showing that it was ever served on the attorney general the appeal is subject to dismissal upon motion.</p> <p>2. A criminal eomplaint must allege every element necessary to constitute the offense charged, or it is demurrable on the ground that it does not state facts sufficient,to constitute a public offense.</p> <p>3. The venue of an offense must be laid in the complaint, indictment or information.</p> <p>4. Where it is sought to charge a divorced person with the crime of lewd cohabitation upon the theory that a subsequent marriage of sueh person is void by reason of having been consummated within the six months’ inhibited period provided by Revised Codes, see. 2617, the complaint must negative the fact that the subsequent husband or wife is not the divorced spouse.</p> <p>5. A complaint charging lewd cohabitation is insufficient where it does not allege either that the defendants lived and cohabited together as man and wife or that they lewdly and notoriously associated together, and a complaint under the former clause which merely alleges that the parties openly lived together as man and wife states no offense, — the gist of such offense consisting of their cohabiting together.</p> <p>[As to what constitutes living in open and notorious adultery, see note in 113 Am. St. 271.]</p>

<p>APPEAL from tbe District Court of tbe Tenth Judicial District, for Nez Perce County. Hon. Wallace N. Scales, Judge.</p> <p>Action in claim and delivery.</p> <p>“A charge that the measure -of damages is ‘the value of the use or hire of the property while in the possession of the defendant, from the time of the demand’ is prejudicial to the defendant when unaccompanied by considerations of whether the property could have been constantly employed by plaintiff at a given rate of earnings, either letting for hire or by employment at home.” (Brunell v. Cook, 13 Mont. 497, 34 Pac. 10Í5.)</p> <p>The verdict in this case should have passed upon the question of ownership and wrongful taking and detention. (Hickey v. Breen, 40 Mont. 368, 106 Pac. 881, 20 Ann. Cas. 429; Johnson v. Fraser, 2 Ida. 371, 373, 18 Pae. 48.)</p> <p>The verdict makes no mention of the essential facts of either possession, ownership or wrongful taking, all of which are essential to a judgment in plaintiff’s favor. The basis of every action in claim and delivery is ownership or possession, and without a verdict on these important facts plaintiff is not entitled to a judgment in his favor. (Castagnino v. Balletta, 82 Cal. 250, 251, 23 Pac. 127; Gallagher v. Williamson, 23 Cal. 331, 83 Am. Dec. 114; Venine v. Archibald, 3 Colo. 163, 169; Deasey v. Thurman, 1 Ida. 775, 779; Barker v. State, 48 Ind. 163, 167. Cited to the point stated, in 90 Am. Dec. 390, and 97 Am. Dec. 499, note.)</p> <p>The judgment in claim and delivery should be in the alternative, — first for the delivery of the property, and second for the payment of a specific sum in ease delivery cannot be had. The judgment in this ease is not clear on that point, and is also indefinite as to the item' on which interest is to be charged. (Hynes v. Barnes, 30 Mont. 25, 75 Pac. 523.)</p> <p>“The measure of damages in actions of replevin where the property sought to be recovered has a usable value is the value of the property at the time of the taking with the value of its use from the time of taking.” (Cornwall v. Mix, 3 Ida. 687, 34 Pae. 893; Sebree v. Smith, 2 Ida. 359, 16 Pae. 915; Cowden v. Finney, 9 Ida. 619, 75 Pac. 765; Cunningham v. Stoner, 10 Ida. 549, 79 Pac. 228.)</p>

<p>Mandamus — Educational Institution Funds — Appropriations.</p> <p>1. Funds derived, from the various land grants by the general government to the state of Idaho, made by the Idaho admission act, are trust funds, and are not, strictly speaking, subject to appropriation by the legislature. It requires legislative action, however, in order that the proceeds of such funds may become available for the purposes designated by the terms of the grant.</p> <p>2. The perpetual appropriations of the proceeds of the University fund, Agricultural College fund, Scientific School fund, Normal School fund, Idaho Industrial Reform School fund, now known as the Idaho Industrial Training Sehool fund, and the Academy of Idaho fund, now known as the Idaho Technical Institute fund, found in Sess. Laws of 1905, 1907 and 1911, are still effective, such perpetual appropriations not having been amended or repealed by the appropriation act of 1917 providing for the support of such institutions.</p> <p>3. Sess. Laws 1917, chap. 70, does not authorize the transfer of any of the funds properly belonging to the institutions above named to any other funds in the state treasury.</p> <p>4. Writ of mandate will not issue to compel an officer to perform his duties generally. It must be directed to a specific act or actions.</p> <p>[As to the duties the performance of which may be compelled by mandamus, see note in 125 Am. St. 495.]</p>

<p>Injunction — Primary Election — Candidates—Political Parties.</p> <p>1. Injunction will not lie to restrain a ministerial act by a public official where no property rights are involved.</p> <p>2. The laws of Idaho contain no provision which directly or impliedly forbids a candidate of one political party from seeking and obtaining the nomination of another political party at the same primary election, but permit a candidate to solicit and secure the nomination from one or more political parties at the same time.</p> <p>[As to jurisdiction of equity to protect political rights, see note in Ann. Cas. 1915C, 989.]</p>

<p>Evidence — Exhibits—Identification of — Contract.</p> <p>1. In an action upon a bond for tbe faithful performance of a construction contract, where there is sufficient evidence that certain items are lienable, the liens are admissible in evidence.</p> <p>2. A provision in sueh a contract “that the contractor agrees to pay all expenses, such as engineering, supervision, and inspection, that the village or its engineer may be put to by reason of the work not being completed at the time specified in the contract,” does not contemplate any liability on the part of the construction company or the bonding company for engineering services rendered prior to the breach of the contract.</p> <p>3. In such an action testimony which shows clearly that certain sums were expended by the obligee in completing the contract in accordance with the plans and specifications is sufficient to make a prima faeie case against the bonding company.</p>

Hon. Ed. L. Bryan, Judge. Action on contract and to recover the sum of $1,000 liquidated damages. Judgment for plaintiff. When any contract, agreement or undertaking has been reduced to writing and is evidenced by a document or series of documents, the contents of such documents cannot be contradicted, altered, added to or varied by parol or extrinsic evidence.

Hon. Carl A. Davis, Judge. Action for damages. Judgment for plaintiffs. The husband was entitled | to maintain a separate action to recover for medical attendance, loss of service and of the society of his wife. (Ohio & M. By. Co. v. Cosby, 107 Ind. 32, 7 N. E. 373; Indiana Union Tract. Co. v. McKinney, 39 Ind. App. 86, 78 N. E- 203; Efroymson v. Smith, 29 Ind. App. 451, 63 N. E. 328; Birmingham etc. By. Co. v. Lintner, 141 Ala. 420, 109 Am. St. 40, 3 Ann.

<p>Insurance — Evidence—Waiver.</p> <p>1. The issuance of a policy of insurance differing in terms and rate of premium from the one applied for constitutes a rejection of the application and a counter offer by the company requiring acceptance before a valid contract is made.</p> <p>2. Held, that there was substantial evidence to support the finding of the jury that the policy was accepted by the applicant.</p> <p>3. Where at the time of mating application for a policy of insurance a sufficient amount is paid to the company to cover the first premium and a policy is issued not as applied for but on a different plan and at a higher rate of premium, which policy acknowledges receipt of the first premium as of the date when paid and is offered to and accepted by the applicant, the company waives an agreement in the application that the policy shall not take effeet until the first premium has been paid during the good health of the applicant.</p> <p>[As to waiver of conditions in insurance policy by insurer’s failure to inquire into existing facts, see note in Ann. Cas. 1917B, 500.]</p>

Hon. Chas. P. McCarthy, Judge. Action for damages for personal injuries. Judgment for plaintiff, from which, and from an order denying a motion for a new trial, this appeal is taken.

<p>APPEAL from the District Court of the Sixth Judicial District, for Custer County. Hon. P. J. Cowen, Judge.</p> <p>Prosecution for unlawful possession of intoxicating liquor. Judgment of conviction.</p>

Hon. Wallace N. Scales, Judge. Appeal from an order denying injunction. It has become the settled law of this state, by repeated decisions of this court, that boards of county commissioners are boards of limited jurisdiction and that they only have such authority as is granted to them by statute. Hence they have no authority to make a levy of this character unless expressly authorized by statute.

<p>APPEAL from the District Court of the Sixth Judicial District, for Lemhi County. Hon. James G. Gwinn, Presiding Judge.</p> <p>Action for an accounting. Dismissed.</p>

Hon. James G. Gwinn, Judge. Action to recover on three promissory notes; judgment for defendants. Plaintiff appeals. The diligence which this court requires must be directed toward seeing that the transcript of the record on appeal is filed within the time allowed under the rules of this court does not embrace the obtaining of an order extending the time for the filing of such transcript.

Hon. F. J. Cowen, Judge. Action in claim and delivery. Judgment dismissing appeal from probate court.

Hon. F. J. Cowen, Judge. Action to have deed canceled and mortgage substituted. Judgment for defendants. If a transaction resolves itself into security, whatever may be its form and whatever name the parties may choose to give it, it is in equity a mortgage. (Capital Lumber Co. v. Saunders, 26 Ida. 408, 410, 143 Pac. 1178.) When findings of the trial court are based upon substantial evidence, its sufficiency will not be inquired into on appeal.

Hon. Bobert M. Terrell, Judge. Action for injunction. Judgment for defendant, dissolving temporary injunction and dismissing the action. The transcript of record on appeal was not served upon the respondent or his attorney and filed in this court within sixty days after the appeal was perfected, as required by Rule 26. (Stout v. Cunningham, 29 Ida. 809, 162 Pac. 928.)

Hon. James G. Gwinn, Judge. Defendant was convicted of the crime of rape. A conviction on a prosecution on a, charge of rape is justified upon the uncorroborated testimony of the prosecutrix, only, when her statements are consistent with the circumstances surrounding the alleged commission of the act, and are not incredible or improbable; and only when her testimony stands unimpeached as to the material facts and circumstances.

<p>Contract op Sale — Statute op Frauds — Delivery and Acceptance.</p> <p>1. Delivery and acceptance of property sold under an executory contract of sale take the contract out of the statute of frauds.</p> <p>2. Although the goods remain in the possession of the seller, there may be a receipt by the buyer if the former ceases to hold as owner and agrees to hold as bailee of the latter.</p> <p>3. The act of the buyer in offering to sell goods which he has contracted to purchase is such an act as constitutes an acceptance thereof, so as to take the contract out of the operation of the statute of frauds.</p> <p>4. Questions of sale, delivery and acceptance sufficient to take a contract of sale out of the statute of frauds are questions of fact, for the jury, under proper instructions, and if there is sufficient evidence to justify the jury in reaching the conclusion that the goods were delivered and accepted unconditionally, their verdict should not be disturbed.</p> <p>[As to acceptance and delivery of goods to satisfy the statute of frauds, see notes in 49 Am. Dec. 325; 37 Am. Rep. 16; 96 Am. St. 215; Ann. Cas. 1917B, 566, 572.]</p>

Hon. F. J. Cowen, Presiding Judge. Action upon conditional sale contract for damage to and use of property. Judgment for plaintiff. “Where a conditional sale contract .... provides that the seller may retake the property, the seller has two remedies: First, the collection of the remainder of the purchase price; second, the retaking of the property, but the seller cannot resort to both remedies.” {Pease v. Teller Corporation, 22 Ida. 807, 128 Pac. 981; Keystone Mfg.

Hon. F. J. Cowen, Judge. Action for dissolution of partnership and for appointment of receiver with power to conduct the business of the firm. Judgment decreeing holder of a debt created by a receiver entitled to priority over prior recorded mortgage.

<p>APPEAL from the District Court of the Fourth Judicial District, for Twin Falls County. Hon. Wm. A. Babcock, Judge.</p> <p>Suit for injunction and to quiet title. Judgment for plaintiffs.</p> <p>A prescriptive title cannot be founded upon use and occupation which is not adverse to the title of the owner. {Davis v. Devanney, 7 Ida. 742, 65 Pae. 500; Unger v. Mooney, 63 Cal. 586, 49 Am. Rep. 100; Crocker v. Dougherty, 139 Cal. 521, 73 Pae. 429; Lucas v. White, 120 Iowa, 735, 98 Am. St. 380, 95 N. W. 209.)</p> <p>“It must be hostile in its inception and it must continue hostile throughout the whole statutory period.” {Illinois Cent. Co. v. Houghton, 126 111. 233, 9 Am. St. 581, 18 N. E. 301, 1 L. R. A. 213; Güdehcms v. Whiting, 39 Kan. 706, 18 Pae. 916; McDonald v. Fox, 20 Nev. 364, 22 Pac. 234; Sommer v. Compton, 52 Or. 173, 96 Pac. 124, 1065; Zeller v. Eckert, 4 How. (U. S.) 289, 11 L. ed. 979.)</p> <p>“If the possessor disclaims title in himself, it prevents his acquiring title by the running of the statute of limitations. ’ ’ {English v. Doe, 7 Ga. 387; Colvin v. Burnet, 17 Wend. (N. Y.) 564; De Lcrncey v. Hawkins, 23 App. Div. 8, 49 N. Y. Supp. 469; Hindley v. Metropolitan Elevated By. Co., 42 Misc. Rep. 56, 85 N. Y. Sup'p. 561.)</p> <p>It must be held under a claim of title, exclusive of any other right, as one’s own. (Garrison v. McGlockley, 38 Cal. 78; Lovell v. Frost, 44 Cal. 471; Thompson v. Pioche, 44 Cal. 508, 517.)</p> <p>It must be continuous and uninterrupted for a period of five years prior to the commencement of the action. (San Francisco v. Fulde, 37 Cal. 349, 99 Am. Dec. 278; City of .San Jose v. Trimble, 41 Cal. 536.)</p> <p>“Essence of adverse possession is that the holder claims right to his possession, not under, but in opposition to title to which his possession is alleged to be adverse.” {Fcurrish v. Coon, 40 Cal. 33.)</p> <p>“The character of the possession to be adverse must be such' as to give a right of action to real owner, and this is necessary to set the statute of limitation running in favor of an adverse owner.” (Hanson v. McCue, 42 Cal. 303, 10 Am. Rep. 299; Humphreys v. Blasingame, 104 Cal. 40,37 Pac. 804; Fa/alkner v. Rondoni, 104 Cal. 140; 37 Pac. 883; Sullivan v. Zeiner, 98 Cal. 346, 33 Pac. 209, 20 L. R. A. 730.)</p> <p>lie who has the legal title to real property is presumed to have the right to the possession thereof until better ri^ht is shown. (Lamme v. Dodson, 4 Mont. 560, 587, 2 Pae. 298; Peter v. Stephens, 11 Mont. 115, 28 Am. St. 448, 27 Pac. 403.)</p> <p>It must be shown by a preponderance of the evidence that the true owner had actual knowledge of the hostile claim, or that the adverse possession was so open, visible and notorious as to raise a presumption of notice to the world that the right of the true owner was invaded intentionally and with a purpose of asserting a claim of title adverse to such owner. (Trask v. Success Min. Co., 28 Ida. 483, 155 Pac. 288; McDaniel v. Sloss-Sheffield etc. Co., 152 Ala. 414, 126 Am. St. 48, 44 So. 705; Brown v. Brown, 18 Ida. 345, 110 Pac. 269.)</p> <p>“A mere passive possession, without intent to claim the property, is insufficient, regardless of the length of time such a possession continues, or whether it is open, notorious or exclusive, as the rights of the parties are not determined by the possession, but by the character of the possession.” (Pioneer etc. Trust Co. v. Board of Education, 35 Utah, 1, 136 Am. St. 1016, 99 Pac. 150; DeFrieze v. Quint, 94 Cal. 653, 28 Am. St. 151, 30 Pac. 1; Batch v. Smith, 4 Wash. 497, 30 Pac. 648; Harvey v. Tyler, 2 Wall. (U. S.) 328, 17 L. ed. 871.)</p> <p>The respondent has no color of title and claims none, and therefore his case must stand on claim of right, and it is his contention that the facts surrounding the initiation of use of the ditch make out a clear claim of right.</p> <p>“IJse in ordinary or appropriate way is sufficient adverse possession.” (Coryell v. Ccdn, 16 Cal. 567, 573; English v. Johnson, 17 Cal. 107, 116, 76 Am. Dee. 574; Brumagim v. Bradshaw, 39 Cal. 24; Webber v. Clarice, 74 Cal. 11, 17, 15 Pac. 431; Koclcemann v. Biclcel, 92 Cal. 665, 28 Pac. 686.)</p> <p>“The claimant’s possession, and its continuity will be sufficient if by his acts and conduct it is apparent to men of ordinary prudence that he is exercising and asserting ownership over the property; and for this purpose it is necessary to take into consideration the nature, character and location of the property; and the uses to which it is fitted or to which it has been put.” (1 R. C. L. 717; Swan v. Munch, 65 Minn. 500, 60 Am. St. 491, 67 N. W. 1022, 35 L. R. A. 743; Hesperia Land <& Water Co. v. Bogers, 83 Cal. 10, 17 Am. St. 209, 23 Pac. 196.)</p> <p>An omission to use when not needed does not disprove a continuity of use, shown by using it when needed. (Bodfish v. Bod-fish, 105 Mass. 317.)</p> <p>The law makes certain allowances for change of ownership, as in the case of the transfer from Heyl to the respondent. (2 Corpus Juris, 112, par. 182; Minor & Wurtz on Real Property, sec. 848; Beasley v. Howell, 117 Ala. 499, 22 So. 989; 14 Cyc. 1156.)</p> <p>“A possession not taken and held by contract or purchase is adverse to all the world from its inception.” (Boone v. Chiles, 10 Pet. (U. S.) 177, 9 L. ed. 388; Bowman v. Wathen, 1 How. (U. S.) 189, 11 L. ed. 97.)</p> <p>“There is no absolute, unvarying rule as to what will constitute an adverse possession. It must always depend in a great degree upon the circumstances of each case, and is a question of fact rather than law.” (Grafton v. Grafton, 8 Smedes & M. (16 Miss.) 77.)</p>

<p>APPEAL from the District Court of the Fourth Judicial District, for Minidoka County. Hon. James E. Bothwell, Judge.</p> <p>Action against Independent School District No. 1 to enjoin the collection of a portion of a tax.</p> <p>“Taxes cannot be levied or collected at any other time nor in any other manner nor for any other purpose than that designated by law, and statutes authorizing the levy of special taxes should not be so construed as to extend their meaning beyond a clear import of the words used.” {Shoup v. Willis, 2 Ida. 120, 6 Pac. 124; Weiser Nat. Bank v. Jeffreys, 14 Ida. 659, 95 Pae. 23.)</p> <p>The true intent and meaning must prevail over the literal sense of the terms and control the strict letter of the law when the letter would lead to possible injustice, contradiction and absurdity. {Chandler v. Lee, 1 Ida. 349.)</p> <p>The whole purpose and intent of chapter 14 is to provide for the construction and maintenance of gymnasiums and playgrounds. The first proviso is “in the event of the issuance of bonds.” The gymnasium was in fact built from the proceeds of bonds. Then follows the next provision, “as provided for in this section.”</p> <p>The word “as” has been judicially found to have a number of meanings. To accept it in the sense “in the specific way” or “by the exact means” would lead to a manifest injustice, would put a premium on form instead of substance, and would have the legislature say that the way in which the thing was to be done was of more importance than the thing itself. But the other and equally well-accepted meaning of the word, “for the purpose,” resolves the matter in accord with the real purpose of the act. {Alexander v. Tolleston Club of Chicago, 110 111. 65; Smith v. Phillips, 131 Ala. 629, 30 So. 872; Carr v. State, 34 Ark. 448, 36 Am. Eep. 15; Lemmons v. State, 56 Ark. 559, 20 S. W. 404; 1 Words & Phrases, 518.)</p>

<p>Foreign 'Corporations — Eight to Sue — Doing Business Within the State.</p> <p>1.. Bev. Codes, see. 2792, refers to foreign corporations “doing business” in this state.</p> <p>2. A contract or agreement whieh cannot be sued upon or enforced in any court of this state by a foreign corporation under the prohibitions of Bev. Co&s, see. 2792, is ono growing out of the “doing of business” in this state, or one so connected therewith' as to be an element of such transaction.</p> <p>3. When a contract or agreement sued upon by a foreign corporation proves to be one which was made and performed outside of this state, the question as to whether it was doing other business within the state is not material.</p> <p>[As to what constitutes “doing business in the state” by foreign corporation, see note in Ann. Cas. 1912A, 553; Ann. Cas. 1913E, 1154.]</p>

<p>Poreign Corporations — Right to Sub — Doing Business Within the State.</p> <p>Judgment reversed on authority of Bettilyon Borne Builders Co. v. W. B. Bhilbrick and B. B. Greenwood, ante, p. 721, 175 Pae. 958. .</p>

<p>Mandamus — Public Officers — Village Ordinances — 'Statutory Construction.</p> <p>1. Where the intent of a village ordinance is clear, courts are not required to resort to rules of construction in order to determine its meaning.</p> <p>2. The existence of an adequate remedy in the ordinary course of law, either legal or equitable in its nature, will prevent the issuance of a writ of mandate.</p> <p>3. Held, that in this eo.se the relator did not have a plain, speedy and adequate remedy in the ordinary course of law.</p> <p>4. A citizen has a right to a writ of mandate to compel public officers to perform a statutory public duty, even though he may have a right of action against a private individual which would redress the private injury to himself.</p> <p>5. Public officers may be compelled by writ of mandate to perform their official duties, although the details of such performance are left to their discretion.</p> <p>6. The power to provide for the demolition of buildings constructed in violation of an ordinance establishing fire limits within a village is necessarily implied in order to make the ordinance effective, where the statute authorizes the village to prescribe fire limits within which no building shall be constructed except of brick, stone or other incombustible material, with fire-proof roof.</p> <p>7. An ordinance can be repealed only in pursuance of the same method required for its enactment.</p> <p>8. In an action for a writ of mandate to require the enforcement of an ordinance prescribing fire limits, and providing for the demolition of buildings erected in violation thereof, members of the board of trustees of the village, and the chairman thereof, are the officers to whom the writ should be directed.</p> <p>[As to mandamus against public officer, see note in 98 Am. St. 853. As to duties performance of which may be compelled by mandamus, see note in 125 Am. St. 492.]</p>

<p>Caret Act — Eight to Enter — Lands—State Board of Land Commissioners — Duties of — Mandamus.</p> <p>After the state board of land commissioners has thrown open to entry the land of a -Carey Act segregation, or a portion thereof, and published its notice to that effect in compliance with the statute, -the board is not vested with discretionary power to refuse to allow an entry on said land by a person possessing the statutory qualifications and having complied with the statutory conditions precedent to a right to make entry. In case of such refusal mandamus will lie to compel the board to allow the entry.</p> <p>[As to when the action of a land office is conclusive, see note in , 20 Am. Dec. 273.]</p>

<p>Appeal and Error — Transcript on Appeal — Questions Reviewable.</p> <p>1. A transcript of the evidence not duly certified and settled by the trial judge cannot be considered on appeal from the judgment.</p> <p>2. Errors of the trial court in giving or refusing instructions to the jury must be presented either by reporter’s transcript of the testimony and proceedings or by bill of exceptions duly settled and allowed.</p>

Hon. James G. Gwinn, Judge. Action to recover for goods sold and delivered. Judgment for defendant. Counsel cite no authorities on points decided.

Hon. R. M. Terrell, Judge. Appeal from an order denying writ of injunction. An injunction is not a matter of strict right. Its issuance rests in the sound discretion of the court, and the exercise of this discretion in granting or refusing an injunction will not, as a general rule, be reversed on appeal, or otherwise controlled or interfered with. (1 Am. & Eng. Ency. Law, 345; Staples v. Rossi, 7 Ida. 618, 65 Pac. 67.)

<p>Deed as Mortgage — Inadequacy of Consideration — Equity of Redemption — Burden of Proof — Motion for Nonsuit — Defenses— Laches — Estoppel—Bona Fide Purchaser.</p> <p>1. Where a mortgagor parts with his equity of redemption in favor of the mortgagee and the transaction is thereafter ealled in question, it must be shown, in order to uphold it, that the agreement was fairly entered into between the parties thereto, for a consideration not grossly inadequate in view of all the cireumstanees.</p> <p>2. In this ease three facts must be considered as admitted by the motion for nonsuit: First, the relation of mortgagor and mortgagee between appellant and respondent Looney; second, that a deed, absolute in form, was taken by the mortgagee, conveying to him the property encumbered by the mortgage; third, that such property was conveyed for an inadequate consideration.</p> <p>3. Where the legal effect of an absolute conveyance from mortgagor to mortgagee is called in question in an action by the mortgagor, and the latter shows the existence of that relation, the subsequent execution of an instrument purporting to be an absolute conveyance, and the inadequacy of the consideration therefor, he has made a prima facie case and a motion for nonsuit should be denied.</p> <p>4. In an action at law the defense of laches is not available, where questions arise as to loss of legal rights through lapse of time. In such cases only statutes of limitations of actions apply.</p> <p>5. The defense of estoppel is not available to a holder of title as against one contesting his right, where such title holder was at all times in possession of full knowledge of thve nature of his title and the facts relating to the manner of its acquisition.</p> <p>6. The defense of tona fide purchaser is not available to a holder of title who relies upon a-motion for nonsuit, as such defense would become proper only when he is put upon his proof.</p> <p>[As to effect of lapse of time upon right to have a deed declared a mortgage, see note in Ann. Cas. 1914B, 354.]</p>

Hon. F. J. Cowen, Judge. Order affirming an order of the board of county commissioners creating a school district. Section 47b, chap. 159, Sess. Laws 1911, as amended by chap. 119, Sess. Laws 1913, at p. 462, subdivision (b), is constitutional, and applicable to the organization of school districts.

<p>Original proceeding for a writ of mandate.</p> <p>The record now before the court contains all of the records, papers and files of the ease which the court considered, and no other files or records or matters could be certified up to the appellate court. This being true, the court could not give us a consideration upon its merits and could not give us adequate relief. It could do nothing but command the court to hear the motion upon its merits and then let the dissatisfied party bring up the record on the second appeal. No formal action is necessary. (Kelley v. Clark, 21 Ida. 231, 121 Pac. 95; Storer v. Eeitfeld, 17 Ida. 113, 122, 105 Pac. 55.)</p> <p>As to the contents of notice of motion, see Andregg v. Oregon Short Line By. Co., 22 Ida. 437, 126 Pac. 528. In the above case the court uses “Intention to Move” and “Notice of Motion” as if they meant one and the same thing.</p> <p>There is a distinction between a notice of a motion and the motion itself, which must be observed. (Eerrlich v. McDonald, 80 Cal. 472, 22 Pac. 299.)</p> <p>The judgment in question was entered February 23, 1918, and the time for appeal expired May 24th. It appears, therefore, that the action was no longer pending in the district court, unless its termination was suspended by a proper legal proceeding. “Upon the entry of judgment the jurisdiction of the trial court over the subject matter of the suit and the parties was exhausted unless preserved in the mode authorized by statute.” (White v. White, 130 Cal. 597, 80 Am. St.. 150, 62 Pac. 1062.)</p> <p>If the motion is not made until after the time of appeal has passed, it cannot be considered, for the reason that the judgment has become final and the court no longer has jurisdiction of the parties or the subject matter. (Carpenter v. Eart, 5 Cal. 406.)</p> <p>The purpose of the amendments of 1911 was to expedite the taking of appeals and the ending of litigation. Prior thereto the time of presenting and hearing of motions for new trials was to an extent a matter of discretion of the trial judge and largely under the control of the movant. Even then, however, this court held that a motion made after the time for appeal had passed was too late. (McCrea v. Mc-Orew, 9 Ida. 382, 75 Pac. 67; Smith v. American Falls Canal Co., 15 Ida. 89, 95 Pac. 1059; Wood v. Tanner, 15 Ida. 689, 99 Pac. 123, 1053.)</p> <p>The time mentioned in these decisions within which a motion for a new trial must be made is the same as the 'time for the taking of an appeal, and for the same reasons that justified them that should be the rule now. (Minneapolis Thresh ing Machine Co. v. Fox (Utah), 172 Pac. 699.)</p>

<p>APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. R. M. Terrell, Judge.</p> <p>Appeal from an order dissolving a preliminary injunction.</p> <p>In the following cases the appeal was dismissed upon information supplied to the court by affidavits of matters which had transpired after the perfecting of the appeal, which would render the matter involved a moot question. (Wilson v. Boise City, 7 Ida. 69, 60 Pac. 84; Waters v. Dimn, 18 Ida. 450, 110 Pae. 258; Roberts v. Kartzhe, 18 Ida. 552, 111 Pac. 1.</p>

<p>APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Charles P. McCarthy, Judge.</p> <p>Proceeding for a writ of mandate.</p> <p>The right to make appropriations depends upon the existence of certain facts which do not appear in the law. In such cases it is for the legislature and Governor and not the court to say if the facts are a sufficient basis for a valid appropriation and are not in conflict with the prohibition that the credit of the state shall not in any manner be given or loaned or that the legislature shall not impose taxes for the purpose of any county, city, town or other municipal corporation. This court will presume that such facts were a sufficient basis for the law as passed and signed. (Stevenson v. Goigan, 91 Cal. 649, 25 Am. St. 230, 27 Pac. 1089, 14 L. R. A. 459.)</p> <p>The bill does not pretend to impose taxes for the purpose of the Gem Irrigation District upon the lands within the Gem Irrigation District, as the law has already authorized the Gem Irrigation District to assess and collect taxes for the purpose of such district. This court in the case of State v. Union Central Life Ins. Go., 8 Ida. 240, 67 Pac. 647, explains what is meant by sec. 6, art. 7. Under that explanation the law in question in no way violates sec. 6 of art. 7, as it does not impose upon the lands of a municipal corporation taxes for the purpose of the corporation.</p> <p>The presumption is that the money was appropriated by way of a settlement between the Gem Irrigation District and the state of Idaho, and that all matters with reference to said settlement were before the legislature and the Governor, and after they have passed on the same their decision is final. (6 R. C. L., secs. 99, 101.)</p> <p>An irrigation district is a municipal corporation within the meaning of the provisions used throughout the state constitution. (Pioneer Irr. Dist. v. WaUcer, 20 Ida. 605, 119 Pac. 304; Ferbrache v. Drainage District No. 5, 23 Ida. 85, Ann. Cas. 1915C, 43, 128 Pac. 553, 44 L. R. A., N. S„ 538; School District No. 8 v. Twin Falls etc. I. Co., 30 Ida. 400, 164 Pac. 1174; Brown Bros. v. Columbia Irr. Dist., 82 Wash. 274, 144 Pac. 74; Wilson v. Board of Trustees of Sanitary District of Chicago, 133 111. 443, 27 N. E. 203.)</p> <p>An act appropriating money from the state treasury may be an act levying or imposing a tax, within the meaning of the constitutional provision that the state shall not impose taxes for the purposes of any county, city, town or other municipal corporation. (Agricultural & Mech. College v. Eager, 121 Ky. 1, 87 S. W. 1125.)</p>

Hon. R. M. Terrell, Judge. Action for damages. Appeal from a judgment of dismissal. On demurrer to the complaint all facts well pleaded in the complaint are admitted. (Northern Pacific Ry. Co. v. Clear-water County, 26 Ida. 455, 144 Pac. 1.) Where a complaint states any cause of action that will put the defendant on his defense, the demurrer should be overruled.

<p>PETITION for writ of mandate. Alternative writ quashed.</p> <p>The mere fact of a combination at a public auction sale is not enough to vitiate the sale. Combination formed with a clean purpose will not vitiate a sale. (Kearney v. Taylor, 56 U. S. 495; Phippen v. Stickney, 3 Met. (Mass.) 384; Hopkins v. Ensign, 122 N. Y. 144, 25 N. E. 306, 9 L. R. A. 731; Hunt v. Elliott, 80 Ind. 245, 253, 41 Am. Rep. 794; Bailey v. Morgan, 44 N. C. 352; Martin v. Evans, 2 Rich. Eq. (S. C.) 368.)</p> <p>There is nothing, either in law or morals, to prevent parties- from uniting together in good faith to purchase property offered at public auction. (Smith v. Vllman, 58 Md. 183, 42 Am. Rep. 329; James v. Fulcrod, 5 Tex. 512, 55 Am. Dec. 743; Bellows v. Bussell, 20 N. H. 427, 51 Am. Dec. 238; Jenkins v. Frink, 30 Cal. 586, 89 Am. Dec. 134; 6 C. J. 831; 4 Elliott on Contracts, sec. 2874.)</p> <p>It is not unlawful for individuals to associate together to purchase public lands for their joint interests. (Piatt v. Oliver, 2 McLean, 267, 19 Fed. Cas. No. 11,115.)</p> <p>The state land commissioner who conducted this sale was, under the pleading, admittedly the authorized agent of the land board and acting within the scope of his authority in selling this land, and therefore his action in consummating this sale is binding upon the state land board. (Mecham on Public Officers, p. 842.)</p> <p>The state land board is given a large discretionary power in the exercise of its trust with reference to the sale and disposition of public lands. (Pierson v. State Board of Land Commrs., 14 Ida. 159, 93 Pae. 775; Bdlderston v. Brady, 17 Ida. 567, 107 Pac. 493; Pike v. State Board of Land Commrs., 19 Ida. 268, Ann. Cas. 1912B, 1344, 113 Pac. 447; Tobey v. Bridgewood, 22 Ida. 566, 127 Pac. 178; Barber Lumber Co. v. Gifford, 25 Ida. 654, 139 Pae. 557.) Their judgment and discretion will not be interfered with in the absence of fraud. (State ex rel. Gravely v. Stewart, 48 Mont. 619, 137 Pae. 854.)</p> <p>The agreement made by the prospective bidders and carried out by them vitiates the sale. (2 R. C. L. 1133; 6 C. J. 830; Smith, v. Greenlee, 13 N. C. 126, 18 Am. Dec. 564.)</p> <p>The sale held at Rexburg cannot be upheld as a “public auction.” An auction is a sale of competitive bidding instituted to reach the highest price of the article by inciting competition for it. (Hibler v. Hoag, 1 Watts & S. (Pa.) 552; Kline, v. Turner, 27 Or. 356, 41 Pac. 664.) Anything that stifles or prevents competition at a sale of public lands should vitiate the sale.</p>

Hon. James G. Gwinn, Judge. Prosecution for embezzlement. Judgment of conviction. Where each taking is a separate and distinct offense, the court should, on motion of the defendant, compel and require the state to elect upon which of the alleged several takings it will rely for a conviction.