Volume 32 — Idaho Reports

Hon. J. G. Gwinn, Judge. Suit for adjudication of water rights. A prior appropriator of the waters of a stream has no right to salvage or to new waters saved or added to a stream by the artificial works of another. (Wiel on Water Bights in Western States, 3'd ed., secs. 38a, 61, 279; Beaverhead etc. Co. v. Dillon etc. Co., 34 Mont. 135, 85 Pac. 880, 882; Churchill v. Rose, 136 Cal. 576, 69 Pac. 416; Vineland Irr. Co. v. Azma Irr.

Hon. John J. Guheen, Judge. Aetion to quiet title. Judgment for plaintiff. No assessment; or act relating to assessment, or collection of taxes is illegal on account of informality, nor because the same was not completed within the time required by law. (Sec. 1788, Rev. Codes; Armstrong v. Jarrón, 21 Ida. 747,125 Pac. 170.) The assessment is invalid for insufficiency of description.

Hon. H. F. Ensign, Judge. Suit for injunction. Judgment for plaintiff. Where the full amount of the original capital stock has never been subscribed for, and the full number' of shares .thereof has never been issued, if the directors then see fit to accept or solicit subscriptions for the shares remaining untaken, they are not obliged to give to those who are already shareholders any preference, but may offer the fresh shares in open market.

Hon. James G. Gwinn, Judge. Action to enjoin the issuance and sale of municipal bonds. Judgment for defendants. Grants of power to municipal corporations are to be strictly construed, and such corporations possess only such powers as are expressly conferred or necessarily implied. Doubts as to the existence of a power are resolved against the corporation.

Original proceeding to procure a writ of review directed to the public utilities commission. “Where the judicial power of courts, either original or appellate, is fixed by constitutional provisions, the legislature cannot either limit or extend that jurisdiction.” (Chinn v. Superior Court, 156 Cal. 478, 105 Pac. 580; Marbury ,v. Madison, 1 Craneh (U. S.) 137, 2 L. ed. 60, see, also, Rose’s U. S. Notes.) The legislature cannot impair the jurisdiction Of a constitutional court…

Original proceeding to procure a writ of review directed to the Public Utilities Commission. The question of the validity of the right of review by the supreme court under writ of certiorari as provided in sec. 63a of the utilities act of 1913 was specifically passed upon and sustained in Idaho Power & Light Go. v. Blomquist, 26 Ida. 222, 256, Ann. Cas. 1916E, 282, 141 Pac. 1083.

<p>APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Carl A. Davis, Judge.</p> <p>Suit to foreclose lien. Judgment for defendants.</p> <p>A contract cannot be rescinded in part and enforced in part. (Caldwell v. Buddy, 2 Ida. 1, 7, 1 Pae. 339; Girouard v. Jasper, 219 Mass. 318, 320, 106 N. E. 849, 850; Osterling v. Cape May Hotel Co., 82 N. J. L. 650, 83 Atl. 887; Johnson v. Cookerly, 33 Ind. 151, 154; Menard v. Sydnor, 29 Tex. 257, 262; Collison v. Beam, 95 Neb. 29, 38, 144 N. W. 1050, 1053; Hendricks v. Goodrich, 15 Wis. 679, 681; Grant v. Law, 29 Wis. 99, 103; Barhydt v. Clark, 12 111. App. 646, 649; Cole v. Smith, 26 Colo. 506, 511, 58 Pac. 1086, 1087; Krag-Beynolds Co. v. Oder, 21 Ind. App. 333, 336, 52 N. E. 458, 459; Stevens v. Pierce, 151 Mass. 207, 23 N. E. 1006; Babcock v. Harwell, 245 111. 14, 137 Am. St. 284, 301, 19' Ann. Cas. 74, 91 N. E. 683, 692; Anderson v. Chicago Trust & Savings Bank, 195 111. 341, 352, 63 N. E. 203, 207; Hayward v. Wemple, 152 App. Div. 195, 136 Ñ. Y. Sup. 625, 627; Blakeslee v. Holt, 42 Oonn. 226, 229; Fay v. Oliver, 20 Yt. 118, 122, 49 Am. Dec. 764, 768; Kimball v. Lincoln, 7 111. App. 470, 473; Lovingstoh v. Short, 77 111. 587, 591; King v. Mason,- 42 111. 223, 224, 89 Am. Dee. 426; Timmerman v. Stanley, 123 Ga. 850, 51 S. E. 760, 761, 1 L. R. A., N. S., 379, 381.)</p> <p>Even if plaintiffs in this ease had been willing to forego the parts of this contract to their liking, and had attempted to rescind on the ground of fraud, they would have been estopped from so doing, even if actual fraud had been proven, because they ratified and affirmed the contract by continued use of and dealing with the property and acting under the contract, after knowledge of all the facts. (See. 4201, Rev. Codes; Lockwood v. Fitts, 90 Ala. 150, 7 So. 467; Meyer v. Henderson, 49 La. Ann. 1547, 16 So. 729; Parsons v. McKinley, 56 Minn. 464, 57 N. W. 1134; Georgia Pac. By. Co. v. Brooks, 66 Miss. 583, 6 So. 467; Bach v. Tuch, 126 N. Y. 53, 26 N. E. 1019; Paine v. Harrison, 38 Minn. 346, °37 N. W. 588; Wheeler v. Dunn, 13 Colo. 428, 22 Pac. 827; Wolcott v. Heath, 78 111. 433.)</p>

<p>[As to reinstatement of disbarred attorney, see note in Arm. Cas. 1912A, 813.]</p>

Hon. Wm. A. Babcock, Judge. Action to quiet title. Judgment for defendant.

Hon. Wm. A. Babcock, Judge. Defendant was convicted of rape. All circumstances are against possibility of identification. The verdict has no foundation in the testimony. (State v. Balter, 6 Ida. 496, 56 Pae. 81; State v. Anderson, 6 Ida. 706, 59 Pac. 180.)

lion. James R. Both well, Presiding Judge. Action for damages. Judgment for plaintiff. “When public land is surveyed by the government and filed upon by a qualified entryman, it ceases to be public land.” . (Cheney v. Minidoka County, 26 Ida. 471, 144 Pac. 343, 347; Johnson v. Oregon Short Line R. R. Co., 7 Ida. 355, 63 Pac. 112, 53 L. R. A. 744; Brown v. Kennedy (Union Pae. Ry.

Hon. James B. Bothwell, Presiding Judge. Action for damages. Judgment for plaintiff. Appeal from an order denying a motion for a new trial. A judgment will not be reversed where the evidence is conflicting and there is substantial evidence to support the verdict of the jury. (Gumaer v. White Pine Lhr. Go., 11 Ida. 591, 83 Pae. 771; Just v. Idaho Canal etc. Co., 16 Ida. 639, 133 Am.

Hon. Edgar C. Steele, Judge. Action for money due on contract. Complaint filed by intervenor to quiet title to real estate attached. Judgment for plaintiff. Intervenor appeals. The land mentioned in the' judgment was community property and cannot be sold for the separate debt of F. E. Empey under the laws of Idaho.

Hon. Wm. A. Babcock, Judge. A claim for salary, allowed by the board of county commissioners, was ordered modified by judgment of the district court. A construction of the whole statute shows that the clear intention of the legislature was to fix the salaries of the commissioners to be elected at the next general election.

<p>APPEAL from the District Court of the Eighth Judicial District, for Bonner County. Hon. R. N. Dunn, Judge.</p> <p>Action to quiet title. Judgment for plaintiff.</p> <p>The statute is simply a remedial statute and its provisions do not impair the obligation of the contract. (Rice v. Rock, 26 Ida. 552, 144 Pac. 786; Curtis v. Whitney, 13 Wall. (U. S.) 68, 20 L. ed. 513, see, also, Rose’s U. S. Notes; Coulter v. Stafford, 56 Fed. 564, 6 C. C. A. 18; State v. 'Krahmer, 105 Minn. 422,117 N. W. 780, 21 L. R. A., N. S., 157; Lawrence v. Defenbach, 23 Ida. 78, 82, 128 Pac. 81.)</p> <p>The title to property will not be tried in mandate proceedings. (26 Cyc. 157; Gregory v. Blanchard, 98 Cal. 311, 33 Pae. 199; State v. Williams, 54 Neb. 154, 74 N. W. 396; Commonwealth v. Rosseter, 2 Binn. (Pa.) 360, 4 Am. Dec. 451.)</p> <p>The lower court erred in not allowing the appellant to introduce his testimony to show the proceedings with regard to the assessment of the land, the failure on the part of the proper officials to earry out the extensions of the delinquent taxes in red ink, and such other matters and things which would affect the title to the land and which would indicate and prove that the tax deeds did not pass good title. (Parsons v. Wrble, 21 Ida. 695, 123 Pac. 638; Griffith v. Anderson, 22 Ida. 323, 125 Pae. 218.)</p> <p>Under the law in force at the time of the sale, July 10, 1908, and during the entire three years allowed by law for redemption, no notice was required to be given, and when the three years expired, the respondent’s right to a deed became absolute and he became the actual owner of the property, the execution and delivery of the deed only being necessary to vest the bare legal title in him. {White Pine Mfg. Go. v. Morey, 19 Ida. 49, 112 Pac. 674; Lawrence v. Defenbach, 23 Ida. 78, 128 Pae. 81; Black on Tax Titles, sec. 175; Merrill v. Dearing, 32 Minn. 479, 21 N. W. 721.)</p> <p>‘ ‘ The law in being at thd time of the sale governs the right of redemption. The time can neither be lengthened nor shortened by subsequent legislation. 'The right to redeem is a condition attached to the sale, and the legislature cannot defeat it by subsequent act.” (Blackwell on Tax Titles, 5th ed., 729; Robinson v. Howe, 13 Wis. 341; Cm'gill v. Power, 1 Mich. 369; Rollins v. Wright, 93 Cal. 395, 29 Pac. 58; Haaren v. High, 97 Cal. 445, 32 Pac. 518; Wilder v. Campbell, 4 Ida. 695, 43 Pae. 677.)</p> <p>The rules already announced in the two cases involving this matter are res adjudicóla as to this whole controversy, and the law of this case from which no court of this state may depart. {Hall v. Blackman, 9 Ida. 555, 75 Pac. 608; Phelan v. San Francisco County, 20 Cal. 39, 40; Heinlen v. Martin, 59 Cal. 181; 2 Ency. PI. & Pr. 371.)</p> <p>Under the rule of this court, it was necessary that Corbeille be made a party defendant in the mandate proceedings, as he was the real party in interest. He was a necessary party. {Stethem v. Skinner, 11 Ida. 374, 82 Pac. 451; Cassatt v. Board of Commrs., 39 Kan. 505, 18 Pac. 517; Lwingston v. McCarthy, 41 Kan. 20, 20 Pac. 478; State v. Akers, 92 Kan. 169, Ann. Cas. 1916B, 543, 140 Pae. 637; State v. Cranney, 30 Wash. 594, 71 Pac. 50; Powell v. People, 214 111. 475, 105 Am. St. 117, 2 Ann. Cas. 551, 73 N. E. 795; 26 Cyc. 415.)</p> <p>On the question of res adjudicata, it is immaterial that the questions alleged to have been settled by a former adjudication were determined in a different kind of proceeding or a different form of action from that in which the estoppel is set up, the parties and the issues being the same. (23 Cyc 1221; Southern Pac. Ry. Co. v. United States, 168 U. S. 1, 18 Su£. Ct. 18, 42 L. ed. 355, see, also, Rose’s U. S. Notes.^</p> <p>A judgment in mandamus proceedings operates as an estoppel as to parties and tbeir privies. (23 Cyc. 486.)</p> <p>And this is true as to all facts concluded by such judgment, that is, all facts which the court must find, in order to determine the plaintiff’s right to the writ. (Board of Supervisors v. Thompson, 122 Fed. 860, 59 C. C. A. 70; Holt County v. National Life Ins. Co., 80 Fed. 686, 25 C. C. A. 469; O’Con-nor v. Board of Trustees, 247 111. 54, 93 N. E. 124; State v. Hartford St. By. Co., 76 Conn. 174, 56 Atl. 506; Yuen Suey v. Fleshman, 65 Or. 606, Ann. Cas. 1915A, 1072, 133 Pac. 803; Weed v. Mirick, 62 Mich. 414, 29 N. W. 78; Hoffthan v. Silverthorn, 137 Mich. 60, 100 N. W. 183; People v. Harrison, 253 IU. 625, Ann. Cas. 1913A, 539, 97 N. E. 1092; Sauls v. Freeman, 24 Fla. 209, 12 Am. St. 190, 4 So. 525; Dimond v. Ely, 28 N. D. 426, 149 N. W. 349.)</p> <p>It is likewise true as to all defenses which the defendants might have interposed but did not interpose. They are concluded by the judgment as effectually as if pleaded and proof offered in support thereof. (23 Cyc. 1170, 1196, 1295; South Park Commrs. v. Montgomery, Ward & Co., 248 111. 299, 21 Ann. Cas. 127, 93 N. E. 910.)</p>

<p>APPEAL from the District Court of the Eighth Judicial District, for Bonner County. Hon. R. N. Dunn, Judge.</p> <p>Action for damages for personal injuries. Judgment for plaintiff.</p> <p>The ignorance of a servant and the master’s knowledge of such ignorance must be pleaded and proven. (26 Cyc. 1165, 1393; Becker v. Baumgartner, 5 Ind. App. 576, 32 N. E. 786; O’Connor v. Atchison, etc. By. Co., 137 Fed. 503, 70 C. C. A. 87; Fortin v. Manville Co., 128 Fed. 642; Peterson v. New Pittsburg Coed etc. Co., 149 Ind. 260, 63 Am. St. 289, 49 N. E. 8; Brazil Block Coal Co. v. Young, 117 Ind. 520, 20 N. E. 423.),</p> <p>Respondent knew that no inspection had been made and it was his duty to make the very place in which he was working safe. (Low v. Clear Greek Coal Co., 140 Ky. 754, Ann. Cas. 1912B, 574, 587, 131 S. W. 1007, 33 L. R. A., N. S., 656; Cnkovch v. Success Mining Co., 30 Ida. 623, 166 Pae. 567.)</p> <p>The law does not exact from the servant the use of diligence in ascertaining defects, but charges' him with knowledge of such only as are open to his observation, and beyond this he has the right to assume without inquiry or investigation that his employer has discharged Ms duty of furnishing him with a reasonably safe place in which to perform his duties, and that he has a right to assume in the absence of apparent defects that a place in which he is ordered to work by a shift boss is safe, and he is not bound to inspect it for ■the purpose of discovering latent defects. (Maloney v. Winston Bros. Co., 18 Ida. 740' 111 Pae. 1080, 47 L. R. A., N. S., 634; Cnkovch v. Success Mining Co., 30 Ida. 623, 166 Pac. 567; Low v. Clear Creek Coal Co., 140 Ky. 754, Ann. Cas. 1912B, 574, 577, 131 S. W. 1007, 33 L. R. A., N. S., 656; Fredericks v. Ft. Bodge Brick & T. Co., 151 Iowa, 637, 131 N. W. 766, 48 L. R. A., N. S., 925.)</p>

<p>Temporary Kestraining Order — Order Continuing Same in Effect— Complaint — Affidavit—Sufficiency of.</p> <p>1. Where a temporary restraining order is issued upon a verified complaint, it will not be vacated on appeal where the allegations of the complaint are sufficient to justify the issuance of the order.</p> <p>2. Where, upon a hearing in the district court on an order to show cause why a temporary restraining order should not be continued, the only matters before the court were the verified complaint, and an affidavit in support thereof, and the showing so made is sufficient to justify the court in continuing the restraining order in force, the order therefor will not be reversed on appeal.</p> <p>[As to renewal of judgments, see note in 133 Am. St. 61.]i</p>

<p>APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. William W. Woods, Judge.</p> <p>Action on quantum merwit. Judgment for defendant.</p> <p>“One who has performed labor and services under a contract, which cannot be enforced because within the statute of frauds and which has been repudiated by the other party thereto, may recover for such services upon a quantum, meruit.</p> <p>“Where services are rendered on an agreement which is void by the statute, an action will lie on the implied promise to pay for such services.” (29 Am. & Eng. Ene. of Law, 2d ed., 814, 815, 839; Browne on Statute of Frauds, sec. 118; Dunphy v. Ryan, 116 U. S. 491, 497, 6 Sup. Ct. 486, 29 L. ed. 703, see, also, Rose’s U. S. Notes; Wetherbee v. Potter, 99 Mass. 354; Sluote v. Dorr, 5 Wend. (N. Y.) 204; Ray v. Young, 13 Tex. 550; Bibb v. Allen, 149 U. S. 481, 13 Sup. Ct. 950, 37 L. ed. 819; Springer v. Bien, 16 Daly, 275, 10 N; Y. Supp. 530; Reed v. McConnell, 62 Hun, 153, 16 N. Y. Supp. 586; In re Sherman, 24 Mise. Rep. 65, 53 N. Y. Supp. 376, 377; Freeman v. Foss, 145 Mass. 361, 1 Am. St. 467, 14 N. E. 141; Williams v. Beinis, 108 Mass. 91, 11 Am. Rep. 318; Scheur v. Monash, 35 Mise. Rep-. 276, 71 N. Y. Supp. 818; Towsley v. Moore, 30 Ohio St. 184, 185, 27 Am. Rep. 434; Day v. New York Central R. R. Co., 51 N. Y. 583; Wolke v. Fleming, 103 -Ind. 105, 53 Am. Rep. 495, 2 N. E. 325; Reed on Statute of Frauds, sec. 211; Wood on Frauds, p. 434; Wallace v. Long, 105 Ind. 522, 55 Am. Rep. 222, 5 N..E- 666; Cadman v. Maride, 76 Mich. 448, 43 N. W. 315; 5 L. R. A. 707; Whipple v. Parker, 29 Mich. 369, 374; La Du-King Mfg. Co. v. La Du, 36 Minn. 473, 31 N. W. 938; McCarthy v. Weare Commission Co., 87 Minn. 11, 91 N. W. 33, 34; Clark v. Davidson, 53 Wis. 317, 10 N. W. 384; Cohen v. Stein, 61 Wis. 508, 21 N. W. 514; Salb v. Campbell, 65 Wis. 405, 27 N. W. 45; Smith v. Putnam, 107 Wis. 155, 82 N. W. 1077, 83 N. W. 288; Davis v. Webber, 66 Ark. 190, 74 Am. St. 81, 49 S. W. 822, 45 L. R. A. 196; Buckingham v. Ludlum, 37 N. J. Eg. 137; Lapham v. Osborne, 20 Nev. 168, 18 Pac. 881; Longhofer v. Herbel, 83 Kan. 278, 111 Pac. 483; Jackson v. Steams, 58 Or. 57, Ann. Cas. 1913A, 284, 113 Pac. 30, 37 L. R. A., N. S., 639; Freitas v. Freitas, 31 Cal. App. 16, 159 Pac. 611, 612; Supreme Lodge K. of P. v. Ferrell (Ferrell v. Stanley), 83 Kan. 491, 112 Pae. 155, 33 L. R. A., N. S., 777; Crane v. Franklin, 16 Ariz. 501, 147 Pae. 718.),</p> <p>Practically every state in the Union holds that an executed contract takes the case out of the statute. (First Nat. Bank v. Cripple Creek State Bank (Colo.), 163 Pae. 1134, 1137-, Browne on Statute of Frauds, 5th ed., see. 116; Franklin v. Matea Gold Min. Co., 158 Fed. 941, 86 C. C. A. 145, 14 Ann. Cas. 302, 16 L. R. A., N. S., 381; Minchener v. Henderson, 181 Ala. 115, 61 So. 246; First Nat. Bank v. Gallagher, 119 Minn. 463, Ann. Cas. 1914B, 120, 138 N. W. 681.)</p> <p>“Where the owner with full knowledge of the terms on which the same has been sold by his broker ratifies the sale in writing, it is immaterial whether the agent’s authority was in writing.” (Gwinnup v. Sibert, 106 Mo. App: 709, 80 S. W. 589; 2 Lewis’ Sutherland Stat. Const. 1101, sees. 600, 601.)</p> <p>The decisions appear to be uniform in holding that no action can be maintained for the recovery of commissions upon an oral contract of employment for the sale of real property, where it is provided by statute that such 'contracts shall be in writing. (McMurran v. Duncan, 17 Ariz. 552, 155 Pac. 306; Zimmerman v. Zehender, 164 Ind. 466, 3 Ann. Cas. 655, 73 N. E. 920; Beahler v. Clark, 32 Ind. App. 222, 68 N. E. 613; Covey v. Henry, 71 Neb. 118, 98 N. W. 434.)</p> <p>“The plaintiff, however, claims to recover on a quantum meruit. This is a mere attempt in this ease to evade the statute.” (Leimbach v. Begner, 70 N. J. L. 608, 57 Atl. 138; Whiteley v. Terry, 83 App. Div. 197, 82 N. Y. Supp. 89.)</p> <p>The law having specifically declared that no contract is valid which is not in writing, the courts are not authorized to say that an oral contract is valid or that recovery can be had thereon, or on an implied contract, or for reasonable value of services, or upon a full performance of services. (McCarthy v. Loupe, 62 Cal. 299; My res v. Surryhne, 67 Cal. 657, 8 Pac. 523; Jamison v. Hyde, 141 Cal. 109, 74 Pac. 695; Shanklin v. Hall, 100 Cal. 26, 34 Pac. 636; Cushing v. Monarch Timber Co., 75 Wash. 678, Ann. Cas. 1914C, 1239, 135 Pac. 660: Keith v. Smith, 46 Wash. 131, 13 Ann. Cas. 975, 89 Pac. 473; Lueddemann v. Rudolf, 79 Or. 249, 154 Pac. 116, 155 Pac. 172; Selvage v. Talbott, 175 Ind. 648, Ann. Cas. 1913C, 724, 95 N. E. 114, 33 L. R. A., N. S., 973.)</p> <p>The full performance of the services by the plaintiff does not take the case out of the statute. (Sorenson v. Smith, 65 Or. 78, Ann. Cas. 1915A, 1127, 129 Pac. 757, 131 Pac. 1022, 51 L. R. A., N. S., 612; Lowe v. Mohler, 56 Ind. App. 593, 105 N. E. 934; Crow v. Carter, 5 Ind. App. 169, 31 N. E. 937; King v. Benson, 22 Mont. 256, 56 Pae. 280; Goldstein v. Scott, 76 App. Div. 78, 78 N. Y. Supp. 736.)</p> <p>Appellant has injected into his second cause of action his expense account as a part of the alleged agreed compensation or reward for making the sale. He cannot evade the requirements of the statute in this manner. (Stout v. Humphrey, 69 N. J. L. 436, 55 Atl. 281; Fullenwider v. Gobey, 176 Ind, 312, 95 N. E. 1010.)</p>

Hon. Ed. L. Bryan, Judge. Action against a railroad company for damages and attorney fees under the statute requiring such companies to maintain lawful fences along their rights of way. The court erred in allowing attorney’s fees under the provisions of see. 2818, Rev. Codes, as amended by chapter 223, Laws 1911. (St. Louis M. & S. By. Go. v. Wynne, 224 U. S. 354, 32 Sup. Ct. 493, 56 L. ed. 799, 42 L. R. A., N. S., 102; Pacific Mut. Life Ins.

Hon. R. N. Dunn, Judge. A motion to discharge an attachment was granted. While an affidavit for attachment may be defective if it states two or more grounds for attachment disjunctively, if the disjunctive is used in the affidavit to include or connect two or more phases of the same ground or fact, it is not a defect in the affidavit. (Societe Fonciere etc. v. Milliken, 135 U. S. 304, 10 Sup.

<p>APPEAL from the District Court of tbe Eighth Judicial District, for Benewah County. Hon. John M. Flynn, Judge.</p> <p>Action for money bad and received and damages. Motion to dismiss appeals from judgment and order denying a new-trial.</p> <p>Counsel cite no authorities on points decided.</p>

Hbn. Chas. P. McCarthy, Judge. Action to recover money paid on contract for purchase of real estate. Judgment for plaintiff. The claims of the plaintiffs herein were not presented to the executor nor filed as claims against the estate until long after the time provided by law for the filing of the claims of creditors had elapsed.

<p>Estates of Deceased Persons — Claims—Time for Presentation.</p> <p>Claims against estates of deceased persons, arising upon eontraets, which are not presented to the exeeutor or administrator within the time limited in the notice required by law to be given to creditors' are barred and no action can be maintained thereon.</p> <p>[As to effect of statute of limitations against estates of deceased persons, see note, in 130 Am. St. 324.]</p>

<p>APPEAL from the District Court of the -Third Judicial District, for Ada County. Hon. Chas. P. McCarthy, Judge.</p> <p>Action to recover money paid on contract for purchase of real estate. Judgment for plaintiff.</p>

<p>Criminal Law — Pleading—Demurrer to Indictment — Once in Jeopardy — Demurrer to Plea.</p> <p>1. This court cannot review the action of a trial judge overruling a demurrer to an indictment or information unless an exception to the order appears in the record.</p> <p>2. A demurrer to a plea in a criminal ease is unknown to the law of Idaho, and an order sustaining such a demurrer is a nullity and does not dispose of the plea.</p> <p>3. A plea of once in jeopardy presents an issue of fact to be tried by a jury, unless trial by jury be waived as by law provided, and a judgment of conviction entered while such plea is pending will be reversed.</p> <p>[As to failure to interpose objection of former jeopardy on second trial as waiver of plea, see note in Ann. Cas. 1917C, 760.)</p>

Hon. R. N. Dunn, Judge. Action for damages. Judgment of nonsuit. “The falsity of the representations and the existence of a scienter and of a fraudulent intent are questions to be determined by the jury from the facts in evidence.” (20 Cye. 124-126, and notes; Watson v. Molden, 10 Ida. 570, 79 Pae. 503.) On motion for nonsuit, defendant is deemed to have admitted all the facts of which there is any evidence, and all the facts which the evidence tends to prove.

<p>APPEAL from tbe District Court of the Third Judicial District, for Ada County. Hon. Charles P. McCarthy, Judge.</p> <p>Action for divorce. Judgment for respondent, awarding custody of children and alimony.</p> <p>The evidence is insufficient to sustain the findings and decision of the, court. (Stoneburner v. Stoneburner, 11 Ida. 603, 83 Pac. 938; Brown v. Macey, 13 Ida. 451, 90 Pac. 339.)</p> <p>The findings and decision of the court are insufficient to sustain the decree entered. (Stoneburner v. Stoneburner■, supra.)</p> <p>Full faith and credit must be given to the decree of the district court of Johnson county, Nebraska. (U. S. Const., art. 4, sec. 1; Haddock v. Haddock, 201 U. S. 562, 5-Ann. Cas. 1, 26 Sup. Ct. 525, 50 L. ed. 867, see, also, Rose’s U. S. Notes; Hilton v. Stewart, 15 Ida. 150, 128 Am. St. 48, 96 Pac. 579.)</p> <p>Unless there has been a material change of circumstances, a habeas corpus proceeding settles the custody of children, and the same will not be opened up in a subsequent application or adjudication. (Church, Habeas Corpus, 2d ed.,'sec. 387; 9 Ency. PI. & Pr. 1071; 15 Am. & Eng. Ency., 2d ed., 213; 2 Spelling Extr. Rem., sec. 1198; Cormack v. Marshall, 211 111. 519, 1 Ann. Cas. 256, 71 N. E. 1077, 67 L. R. A. 787; People v. Winston, 34 Mise. Rep. 21, 69 N. Y. Supp. 452; Bleakley v. Barclay, 75 Kan. 462, 89 Pac. 906, 10 L. R. A., N. S., 230.)</p> <p>The lower court did not err in denying motion for nonsuit. (TonkimClark Realty Go. v. Hedges, 24 Ida. 304, 133 Pac. 669.) - ></p> <p>“It is unnecessary to make a specific finding on a given issue where the findings of the court are inconsistent with a finding on that particular issue which would have been favorable-to the complaining party.” {Mine & Smelter Sitpply Go. v. Idaho Gonsol. Mines Co., 20 Ida. 300, 118 Pac. 301.)</p> <p>It was not necessary to allege that the acts of cruelty charged were committed within this state. (7 Ency. PL & Pr. 71; 7 Stand. Ency. Proc. 745.)</p> <p>“The basis upon which an adjudication bars a further action is that the same question or matter was actually and directly in issue and judicially determined in the former suit between the same parties or their privies by a court of competent jurisdiction.” {Keane v. Pittsburg Lead Mining Go., 17 Ida. 179, 105 Pac. 60.)</p> <p>Even in a subsequent habeas corpus proceeding a judgment in a former similar proceeding is not res adjudicata where the facts and circumstances affecting the question of custody have changed. (Church, Habeas Corpus, 2d ed., sec. 387; 9 Ency. PI. & Pr. 1071; 15 Am. & Eng. Ency. Law, 2d. ed., 213; 2 Spelling, Extr. Rem., sec. 1198; 10 Stand. Ency. Proe. 952.)</p> <p>A decision in a habeas corpus proceeding awarding the custody of an infant, as between its parents, is at most conclusive in respect to the facts and circumstances then existing, and does not preclude the court from making a decree as to the custody of the child in a subsequent suit for divorce between the parents. {Everitt v. Everitt, 29 Ind. App. 508, 94 Am. St. 276, 64 N. E. 892.)</p>

<p>Taxation — Assessments by Irrigation Districts — Foreclosure.</p> <p>Sess. Laws 1913, chap. 58, whieh provides for the foreclosure of delinquent tax liens, expressly excludes from its scope of operation taxes levied and collectible for the year 1912, and a suit to foreclose the liens of delinquent assessments levied for irrigation district purposes for that year cannot be maintained.</p>

Hon. Edgar C. Steele, Judge. Settlement of a guardian’s final account on appeal from order of probate court. From the judgment entered in the district court, both parties appeal. The probate court has jurisdiction to appoint a general guardian and to direct and control his conduct. After having made such appointment the court retains jurisdiction for all purposes in connection therewith until his accounts are rendered and he is legally discharged.

Hon. Chas. P. McCarthy, Judge. A litigant is denied a substantial constitutional right if such an order is held not appealable.

<p>Pleadings and Error — Assignment of Error — Insufficiency of Evidence to Support the Findings- — Adverse Possession — Payment of Taxes.</p> <p>1. Under O. L., see. 4434, a specification in the brief on appeal of the insufficiency of the evidence to support the findings is required in order to bring before this court for review the question of such insufficiency.</p> <p>2. Under O. L., see. 4043, it is necessary to prove the payment of all taxes, state, county or municipal, levied and assessed upon the property in question during five years, consecutively, in order to sustain claim of title to real property by adverse possession.</p> <p>[As to adverse possession, see note in 45 Am. St. 376.]</p>

<p>APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Carl A. Davis, Judge.</p> <p>Action to quiet title. Judgment for plaintiff.</p>

Ada County. Hon. Carl A. Davis, Judge. Action for damages. Order issued enjoining the selling of an automobile claimed to be exempt from execution. Appeal from order. Counsel cite no authorities on point decided.

Hon. R. N. Dunn, Judge Appeal from an order dissolving a temporary injunction. When stock certificates are delivered to all stockholders stating on their face that the stock represented by them is “fully paid up and nonassessable” (there being no contract to the contrary), none of the capital stock of such corporation is subject to assessment.

Hon. William W. Woods, Judge. Action to enforce stockholder’s liability for unpaid stock, Demurrer to complaint sustained and judgment of dismissal entered.

- Hon. Edgar C. Steele, Judge. Action for damages and injunction. Judgment for defendants. ‘ ‘ One may adopt as part of his ditch a depression or slough or high-water channel and have his rights to the possession and use thereof protected the same as if such ditch had been wholly artificially made.” (See, also, Bennett v. Nourse, 22 Ida. 249, 255, 125 Pac. 1038; Simmons v. Winters, 21 Or. 35, 28 Am.

Hon. James G. Gwinn, Judge. From a judgment of conviction of crime, defendants appeal.

<p>Appeal and Error — New Trial.</p> <p>Motion for new trial denied on- authority of State v. Henry Hicks and Edward Levine, ante, p. 232.</p>

<p>APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. Wm. W. Woods, Judge.</p> <p>Action to enforce specific performance of an option contract. Judgment for defendants.</p> <p>The making of the last payment upon a contract and the giving of a deed are simultaneous, dependent and concurrent acts, and neither vendor nor vendee can default the other without first offering to perform his part of the contract. (Kessler v. Pruitt, 14 Ida. 175, 93 Pac. 965; Reese v. Westfield, 56 Wash. 415, 105 Pac. 837, 28 L. R, A., N. S., 956; Gibson v. Rouse, 81 Wash. 102, 142 Pae. 464; Douglas v. Hanbury, 56 Wash. 63, 134 Am. St. 1096, 104 Pac. 1110.)</p> <p>The appellant was not required or obliged to pay out its money on the last payment without receiving a deed from the respondents, as provided for in their contract. (Brentnall v. Marshall, 10 Kan. App. 488, 63 Pae. 93; Gray v. Meek, 199 111. 136, 64 N. E. 1020.)</p> <p>The contract is essentially the same (eliminating the leasing provisions) as the contract in Settle v. Winters, 2 Ida. 215, 10 Pac. 216, which this court construed to be a lease with an option to purchase. In Steel v. Argentine Mining Co., 4 Ida. 505, 95 Am. St. 144, 42 Pae. 585, a similar contract was construed to be merely an option rather than a contract of purchase and sale. (Block v. Murray, 12 Mont. 545, 31 Pac. 550; Donaldson v. Thousand Springs Power Co., 29 Ida. 735, 162 Pae. 334; Tilton v. Sterling Coal <& Coke Co., 2& Utah, 173, 107 Am. St. 689, 77 Pac. 758.)</p> <p>Where the parties themselves have by their agreement made time of the essence thereof, the contract will 'be so construed by the courts. (36 Cye. 712; Machold v. Farnan, 14 Ida. 258, 94 Pac. 170.) Even in the absence of an express stipulation in the contract, making time of the essence thereof, on account of the character of the property covered by the option in this ease, the court would construe such contract so as to make time of the essence thereof. (Settle v. Winters, supra; Durant v. Comegys, 3 Ida. 204, 28 Pac. 425.)</p> <p>Mere indulgences giveb by the owner by extending the time for the making of payments, or the acceptance of payments after the same are due, or at a place different from that mentioned in the option, will not waive the time element in an option where time is made of the essence thereof. (Machold v. Farnan, supra; Prairie Development Go. v. Leiberg, 15 Ida. 379, 98 Pac. 616.)</p> <p>Where time is of the essence of a contract, payment or tender of payment within the time fixed by the contract must be made in order to give the vendee a right to enforce such contract. {Kelsey v. Crowfher, 162 U. S. 404, 16 Sup. Ct. 808, 40 L. ed. 1017, see, also, Bose’s U. S. Notes; Kentucky Distilleries & W. Go. v. Warwick Go., 109 Fed. 280, 48 C. C. A. 363.)</p>

<p>APPEAL from tbe District Court of the First Judicial District, for Shoshone County. Pión. Wm. W. Woods, Judge.</p> <p>Action to quiet title. Judgment for plaintiff.</p> <p>It was necessary for Hammitt to set forth and allege the facts constituting his ownership in the property. Without such fact being alleged, a mere conclusion that plaintiff Ham-’ mitt is the owner fails to constitute a cause of action and failed to advise this appellant of plaintiff’s interest. (Bingham County v. Woodin, 6 Ida. 284, 55 Pac. 662; Holton v. Sandpoint Lumber Co., 7 Ida. 573, 64 Pac. 889; Byington v. Commissioners of Saline Co., 37 Kan. 654, 16 Pac. 105; Kelly v. Perrault, 5 Ida. 221, 48 Pac. 45; Ollis v. Orr, 6 Ida. 474, 56 Pac. 162; Lowmam v. West, 8 Wash. 355, 36 Pae. 258.)</p> <p>The supreme court of Idaho has laid down the rule that the plaintiff must state the facts in his complaint, on which he intends to rely, to determine his title. (Fry v. Summers,' 4 Ida. 424, 39 Pac. 1118.)</p> <p>In an action to quiet title it is no longer necessary for a plaintiff to set out specifically the character of his own title, "or of the alleged title of the defendants; it is always sufficient simply to allege that plaintiff is the owner and in possession of the property, describing it, and that the defendants are unlawfully asserting a claim thereto adverse to him. (17 Ency. of PI. & Pr. 328; Ely v. New Mexico & A. B. Co., 129 U. S. 291, 9 Sup. Ct. 293, 32 L. E'd. 688, see, also, Rose’s U. S. Notes; Union Mill & M. Co. v. Warren, 82 Fed. 519; Stockton v. Oregon Short Line B. Co., 170 Fed. 627; New Jersey & N. C. Land & L. Co. v. Gardner etc. Dumber Co., 178 Fed. 772, 102 C. C. A. 220; Bose v. Bichmond Min. Co., 17 Nev. 25, 27 Pac. 1105; Cooper v. Birch, 137 Cal. 472, 70 Pac. 291; Payne etc. v. Treadwell, 16 Cal. 220; Bough v. Simmons, 65 Cal. 227, 3 Pac. 804; Statham v. Dusy (Cal.), 11 Pac. 606; ITeeser v. Miller, 77 Cal. 193,19 Pac. 375; ScMageter v. Gude, 30 Colo. 310, 70 Pac. 428; Parker v. Conrad, 74 Kan. Ill, 85 Pac. 810; Davis v. Crump, 162 Cal. 513, 123 Pae. 294.)</p>

Hon. Chas. P. McCarthy, Judge. Action to enjoin payment of claims against the city. Permanent restraining order issued. The municipality of Boise City can employ detectives to investigate violations of city ordinances, and to secure evidence of such violations. This is held to be within the power of municipalities everywhere.

Hon. Ed. L. Bryan, Judge. Application for writ of habeas corpus to procure custody of a child. The writ was issued and, after hearing, was quashed. The guardian is entitled to custody of ward if proper person. (In re Grocheron’s Estate, 16 Ida. Ml, 101 Pac. 7M, 33 L. R. A., N. S., 868; Watts v. Lively (Tex. Civ.

Hon. Carl A.( Davis, Judge. Action to enforce stockholder’s liability for unpaid stock. Demurrer to complaint sustained and judgment of dismissal entered. This court in Dietrich v. Copeland Lumber Co., 28 Ida.' 312, 154 Pac. 626, holds that the liability of a stockholder is one created by law, and therefore barred within three years, from the time the liability attaches.

<p>CONVERSION OF CHATTELS — SALES—PASSING OF TITLE — EXECUTORY CONTRACT.</p> <p>1. In an action for conversion, the plaintiff must rely upon the strength of his own title and not upon the weakness of that of his adversary.</p> <p>2. Whether a contract for sale of chattels is to be considered executed or executory is to be determined by the intention of the parties.</p> <p>3. The intention of the parties to a contract is to be gathered from the language thereof, if unambiguous; otherwise, by its letter in the light of such circumstances as may properly be considered in determining the intention of the parties.</p> <p>4. When the terms of a contract of sale are undisputed, and the attendant circumstances are agreed upon, the question of the intent of the parties in respect to the passing of title, is, generally speaking, one of law for the court.</p> <p>5. The usual test as to whether a contract of sale is executed or executory is to consider at whose risk the subject matter of the contract is prior to actual delivery to the buyer. If the risk of loss from injury to or destruction of the property is on the buyer the contract is executed, and if on the seller it is executory.</p> <p>[As to measure ofi damages for conversion of,, or failure to deliver, household goods, see note in Ann. Cas. 1917B, 585.]</p>

<p>Quieting Title — Pleading—Harmless Error — Mining Claims — Notice oe Location.</p> <p>1. It is not necessary to allege in the complaint, in a suit to quiet title to mining claims, the manner in which they were located nor the qualifications of the locators. It is necessary to allege the ultimate fact of plaintiff’s interest in or claim to the property.</p> <p>2. An error or defeet in the pleadings or proceedings which does not affect the substantial rights of the parties is not ground for reversal of the judgment.</p> <p>3. If, by any reasonable construction, in view of the surrounding circumstances, the language employed in the description of a mining claim will impart notice to subsequent locators, it is sufficient.</p> <p>4. Findings of fact, made by a trial judge who has had the benefit of observing the demeanor of witfiesses upon the stand and of listening to their testimony, will not be disturbed because of conflict if the evidence in support thereof, if uneontradieted, would he sufficient to sustain it.</p> <p>[As to cloud on title defined, see note in 45 Am. St. 373, 377, 378.]</p>

Original application for writ of mandate. The indebtedness contemplated in art. 8, sec. 1, of the constitution is indebtedness or liabilities in excess of the revenue provided for the fiscal year or previously provided, as distinguished, from obligations to pay money from taxes already levied or in process of collection.

<p>Original application for writ of mandate.</p>

Hon. R. N. Dunn, Judge. Action for damages for libel. Judgment for defendant. Any written or printed statement which falsely and maliciously charges another with the commission of a crime is libelous per se. Indeed, to charge a person with that which, although not criminal, yet degrades him in the eyes of the public or exposes him to contempt or ridicule is libelous per se. (25 Cyc. 269; 18 Am. & Ehg.

<p>APPEAL from tbe District Cpurt of tbe First Judicial District, for Sbosbone County. Hon. William W. Woods, Judge.</p> <p>Action for deceit. Judgment for plaintiff.</p> <p>Counsel cite no authorities on points decided.</p>

Hon. R. N. Dunn, Judge. Action to recover money due as taxes on personal property. Judgment for plaintiff. The constitutional provision prescribing equality and uniformity of taxation has no reference to the power of the legislature to pass laws exempting property from taxation.

<p>APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. R. N. Dunn, Judge.</p> <p>Action on contract. Judgment for plaintiff.</p> <p>Where horses are hired, the bailee must use ordinary care, and if any of the animals die without his fault, the bailor must stand the loss. (1 R. C. L. 1076, par. 18.)</p> <p>Every contract of letting impliedly warrants that the animals are reasonably fit and suitable for the work which they are hired to perform, if the same be known to the bailor. (2 Cyc. 311; Bass v. Cantor, 123 Ind. 444, 24 N. E. 147; Leach v. French, 69 Me. 389, 31 Am. Rep. 296; Conn v. Hunsfoerger. 224 Pa. St. 154, 132 Am. St. 770, 16 Ann. Cas. 504, 73 Atl. 324, 25 L. R. A., N. S., 372; 3 C. J. 25, see. 39.)</p> <p>Such a contract as the one in question, in the absence of fraud, constitutes the lessee an insurer and subjects him to all of the liability therefor; and where the parties by explicit contract undertake to do certain things, the contract controls and the implied obligations of the law are excluded. (5 Cyc. 174; 6 C. J. 1110.)</p> <p>“A bailee may enlarge his legal responsibility by contract express or fairly implied. Thus, by special contract, a bailee may assume the liability of an insurer.” (6 0. J. 1111, par. 43; Bufler v. Green, 49 Neb. 280, 68 N. W. 496.)</p> <p>Upon becoming insurer the bailee becomes liable in any event. (Wilmington Transportation Co. v. O’Neil, 98 Cal.- 1, 32 Pac. 705; Union Stock Yards & Transit Co. v. Western La/nd & C. Co., 59 Fed. 49, 7 C. C. A. 660; Sturm v. Boker, 150 U. S. 312, 14 Sup. Ct. 99, 37 L. ed. 1093, see, also, Rose’s U. S. Notes; Direct Nav. Co. v. Davidson, 32 Tex. Civ. 492, 74 S. W. 790; Fairmont Coal Co. v. Jones & Adams Co., 134 Fed. 711, 67 C. C. A. 265; Rapid Safety Fire Extinguisher Co. v. Hay-Budden Mfg. Co., 37 Mise. Rep. 556, 75 N. Y. Supp. 1008.)</p> <p>“Where the party by his own contract creates a duty or charge upon himself, he is bound to make it good, notwithstanding any accident or delay by inevitable necessity, because he might have provided against it by contract.” {Harmony v. Bingham, 12 N. Y. 99, 62 Am. Dee. 142; Peper v. St. Louis Brass Mfg. Co., 146 Mo. App. 187, 123 S. W. 1012; Drake v. White, 117 Mass. 10; Archer v. Walker, 38 Ind. 472; Rein-stein v. Watts, 84 Me. 139, 24 Atl. 719; Grady v. Schweinler, 16 N. D. 452, 125 Am. St. 674, 15 Ann. Cas. 161, 113 N. W. 1031,14 L. R. A., N. S., 1089.)</p>

<p>Mortgages — Foreclosure — Inclusion of Taxes Paid — Interest — Usury — Evidence—Proof.</p> <p>1. The purchase from the county by a mortgagee of tax sale certificates and delinquency certificates is a payment of taxes within the meaning of the latter term in a mortgage providing that it should secure the mortgagee for any taxes paid by him on the mortgaged property.</p> <p>2. The foregoing rule obtains notwithstanding the. taxes show on the record as unpaid, for such certificates show on their face that the county has received the sums due for the taxes therein specified, and when introduced as evidence the certificates become merged in the judgment of foreclosure.</p> <p>3. In supporting an allegation that a written obligation, honest on its face, is really corrupt and usurious, all material circumstances connected with its execution that tend to show its real nature may be shown by parol.</p> <p>4. When a contract on its face discloses no appearance of usury, it is presumed to have been made in good faith, and it is for the party who alleges that a corrupt and usurious intent lurks behind such a contract to prove the truth of his allegation.</p> <p>5. All the facts constituting usury should be proven with reasonable certainty. Evidence which creates in the mind nothing further than a mere surmise, suspicion, conjecture or doubtful inference that the transaction is usurious, or which is intrinsically improbable, is insufficient.</p> <p>6. Whether or not a corrupt and usurious intent lurks behind a contract, honest on its face, may be determined from all the surrounding circumstances tending to show the real intent of the parties'and the true nature of the transaction.</p> <p>7. Where the evidence is conflicting and there is substantial evidence to support a finding, it will not be disturbed.</p> <p>8. The defense of usury, in order to be available in an action upon a contract, fair and honest on its face, and where none of the instruments introduced in evidence disclose on their face usury .with respect to the contract sued upon,must be affirmatively plead in the answer. Otherwise evidence of usury sought to be introduced by the defense would not be responsive to any issue in the case, and would be inadmissible.</p>

<p>Drainage Districts — Orders—Res Adjudicata — High Lands — Notice, Service of — Effect of General Appearance — Eminent Domain, Exercise of by Drainage Districts — Due Process — Damages, Manner of Awarding and Paying — Assessments — Benefits— Responsibility, Ascertainment of — Enhanced Value — Verdict —Correction of Record.</p> <p>1. The order of a district court, made following the hearing of a petition to organize a drainage district, declaring the district organized and defining the boundaries thereof, is not a final order and is not res adjudicata as to any lands excluded from the boundaries of such district thereby; but the statute gives the court express authority to modify or change the boundaries of the district after the hearing upon the report of the commissioners.</p> <p>2. The term “high lands” as used in C. L., sec. 168:13, may include canals, and if water escapes by seepage from an irrigation canal and contributes to the water-logged condition of the land in a drainage district, the right of way of such canal should be assessed its proportion of the cost of construction of the drainage worts, the same as other high lands.</p> <p>3. Service óf notice of the hearings, either on petition for the organization of a drainage district, or on the report of the commissioners thereof, upon the husband, he being the member of the community in whose name community1 property stands, is sufficient to give the court jurisdiction of ,the property.</p> <p>4. A failure to give notice, or any irregularity in giving it, is waived if the persons entitled to notice appear and take part in the proceedings in the matter or matters concerning whieh they are required to be notified.</p> <p>5. The provisions of the drainage act, directing the commissioners to examine the land over and upon which the drainage works are to be constructed and to report what lands will be injured thereby and the amount of such injury, and to award to each tract or lot, by whomsoever held, the amount of damages so. determined by them, and providing that the land owner may have a jury trial in the district court upon that issue, satisfy the requirements that private property shall not be taken for public use without just compensation or due process of law, and constitute a proper exercise of the right of eminent domain.</p> <p>6. Held, that the findings as to the amount assessed against the lands herein are supported by the evidence.</p> <p>7. The term “high lands” as used in the drainage act means lands which will not be enhanced in value by construction of the drainage works, but which contribute by seepage of irrigation water therefrom to the saturation or water-logged condition of “low lands.” By “low lands” is meant lands which will be benefited in the ordinary sense, i. e., enhanced in value.</p> <p>8. Benefits to low lands are to be determined in accordance with the enhanced value thereof. 'Benefits to high lands are to be determined in accordance with the extent to which such lands are responsible for damages to low lands by reason of seepage of irrigation water which contributes to the saturation or water-logged condition of such low laids. The amount of such responsibility will be the proportion which the amount of water contributed by such high lands bears to the combined contribution of water from all sources by irrigation.</p> <p>9. If a portion of the benefits derived by low lands from the construction of drainage works will arise from enhancement of the value of such lands if they were in their natural state, or by changing conditions other than the damage caused by seepage and saturation from irrigation water, such benefits cannot be considered in determining the assessment to be charged to the high lands. After determining the proportion of the .cost of drainage works which should be borne by the high lands, the remainder should be apportioned and assessed to the various tracts of low lands according to benefits, based upon enhanced value.</p> <p>10. A district court may permit the jury to fortify its verdict, or to show by the affidavits of the jurors the verdict which they found and intended to return, and may correct the record of the verdict in conformity therewith, and this may be done after the jurors have been discharged.</p>

Hon. Wallace N. Scales, Judge. Motion to dismiss the appeal. cites no authorities on points decided. Under the common law no right of appeal existed, and the right of appeal cannot be extended to cases not within the statute. {General Custer Mining Co. v. Van Camp, 2 Ida. 40, 3 Pac. 22; Weiser Irr. Dist. v. Middle Valley Irr.

<p>Appeal and Error — Change op Venue — Evidence—Brokers—Fraud op — Liability op Principal — Broker Acting por Both Parties— Verdict.</p> <p>1. Under the provisions of C. L., sec. 4807, an appeal from an order refusing to grant a change of the place of trial must be taken within sixty days after the order is made and entered upon the minutes of the court, or filed with the clerk. v</p> <p>2. The price paid for property is not evidence of its market value.</p> <p>3. Proof of the cost of excavating a cellar and constructing' buildings is not competent as proof of the market value of real estate of which they form a part.</p> <p>4. Where the question is as to the market value of land and buildings as a whole, evidence of a witness- who expressly states 'that he does not know market value, but estimates value as he would in adjusting fire insurance losses, is incompetent.</p> <p>5. An instruction that the owner of real estate is responsible for the fraudulent representations of a broker with whom the real estate is listed for sale, notwithstanding the owner gave no instructions to the broker to make the fraudulent representations and notwithstanding the owner did not know the fraudulent representations were being made, is erroneous. ^</p> <p>6. Where the real estate broker aets for two parties with adverse interests in effecting an exchange of lands, with the knowledge and consent of both, neither principal is liable to the other for the tortious acts of the broker, in the absence of collusion or direct participation of one of the principals in the tortious acts of the agent.</p>

Hon. R. N. Dunn, Judge. Appeal from an order vacating a judgment for plaintiff.. The respondent sought to have the judgment which was entered in, this case set aside and annulled under the provisions of sec. 4229, Rev. Codes.

Hon. William W. Woods, Presiding Judge. Action for salary and expenses of assessor. Judgment for plaintiff. Before an officer can recover from the county he must allege in his complaint that said officer is not in arrears as to public funds collected by him, as without such a showing the board of commissioners could not allow him his claim or any part thereof, nor could he, in the absence of such showing, recover judgment therefor.

Hon. John M. Flynn, Judge. Action for injunction. Judgment for plaintiffs. The order for the issuing of the writ is not the writ, and is of no force and effect until the complaint and undertaking have been filed.

<p>APPEAL from th.e District Court of the Seventh Judicial District, for Gem County. Hon. Ed. L. Bryan, Judge.</p> <p>Action for damages for malicious prosecution. Judgment for plaintiff.</p> <p>Improper and prejudicial remarks made by counsel for plaintiff undoubtedly had their effect on the jury. An instruction by the court would not have eradicated it. (Me-Lean v. Hayden Greek Minvng etc. Co., 25 Ida. 416, 429, 138 Pac. 331; Goldstone v. Bustemeyer, 21 Ida. 703, 707, 123 Pae. 635; Petajaniemi v. Washington Water Power Go., 22 Ida. 20, 28, 124 Pac. 783; Powers v. Boise City, 22 Ida. 286, 292, 125 Pac. 194; State v. Givens, 28 Ida. 253, 267,152 Pac. 1054,1057; Cleveland, Paper Go. v. Banks, 15 Neb. 20, 48 Am. Rep. 334, 338, 16 N. W. 833; Hatch v. State, 8 Tex. App. 416, 34 Am. Rep. 751 ■, McDonald v. People, 126 111. 150, 9 Am. St. 547, 558, 18 N. E. 817; Brown v. Sivineford, 44 Wis. 282, 28 Am. Rep. 582; Tucker v. Henniker, 41 N. H. 317, 325; School Town of Rochester v. Shaw, 100 Ind. 268; 38 Cye. 1494 (14); Smith v. Western Union Telegraph Go., 55 Mo. App. 626.)</p> <p>The court erred in refusing to submit to the jury for special finding defendant’s questions Nos. 1 and 2. It was the duty of the court to find, as a matter of law, whether or not probable cause existed, and for the jury to find, as á matter of fact, the truth of the defendant’s statements as disclosed to his attorney, or other facts constituting probable cause. (High-tower v. Union Sawings & Trust Go., 88 Wash. 179, Ann. Cas. 1918A, 489, 152 Pac. 1015; Simmons v. Gardner, 46 Wash. 282, 89 Pac. 887, L. R. A. 1915D, 16; Dunnington v. Loeser, 48 Old. 636, 149 Pae. 1161,150 Pae. 874; Burke v. McDonald, 2 Ida. 679, 33 Pac. 49.)</p> <p>The remark made by counsel in no way influenced the jury in arriving at its verdict. The instruction of the court to the jury to disregard the remark cured any possible error committed by counsel in making it. (Theriault v. California Ins. Go., 27 Ida. 476, Ann. Cas. 1917D, 818, 149 Pac. 719; Petajaniemi v. Washington Water Power Go., 22 Ida. 20, 124 Pae. 783.)</p> <p>“The prosecution of a person criminally with any other motive than that, of bringing a guilty party to justice is malicious.” (26 Cye. 49; Krug v. Ward, 77 111. 603; Kendrick v. Gypert, 10 Humph. (Tenn.) 291; Gabel v. Weisensee, 49 Tex. 131; Porter v. Martyn (Tex. Civ.), 32 S. W. 731; Vinal v. Core, 18 W. Ya. 1; Rosenblatt v. Rosenberg, 1 Neb. (Unof.) 656, 95 N. W. ,686.) “In eases of criminal prosecutions, probable cause means reasonable grounds for suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the accused is guilty of the offense with which he is charged.” (26 Cyc. 24; Lacy v. Mitchell, 23 Ind. 67; Indianapolis Traction etc. Co. v. Eenby, 178 Ind. 239, 97 N. E. 313.)</p> <p>“It is the province of the court to determine as to what particular facts the jury shall find specially, and neither party has the right to dictate the terms of such questions, and for refusing to comply with such request no error can be assigned.” (Lufkins v. Collins, 2 Ida. 256, 10 Pac. 300; Giffen v. City of Lewiston, 6 Ida. 231, 55 PaS. 545; Fodey v. Northern Pac. Ry. Co., 21 Ida. 713,123 Pae. 835.)</p>

Hon. Wallace N. Seales, Judge. Appellant was convicted of the crime of unlawfully having in his possession intoxicating liquors. Where chances are equal that defendant has been prejudiced, a new trial should be granted. (Hoiberg v. State, 3 Minn. 262.), It is proper for the trial court to exclude irrelevant evidence when offered in rebuttal. (Sontag v. Gooding, 85 111. 452.) It is not proper to admit evidence not strictly rebuttal in a criminal cause.

Hon. Edgar C. Steele, Judge. Criminal prosecution for having possession of intoxicating liquor. From an order denying defendant’s application to set aside judgment and allow substitution of plea of not guilty for plea of guilty, theretofore entered, defendant appeals. A plea of guilty must be entirely voluntary and one entered through ignorance is not voluntary.

Hon. Edgar C. Steele, Judge. Criminal prosecution for having possession of intoxicating liquor. Prom an order denying defendant’s appliéation tq set aside judgment and allow substitution of plea of not guilty for plea of guilty, theretofore entered, defendant appeals.

Hon. E. N. Dunn, Presiding Judge. Action for malicious prosecution of a lunacy proceeding. Judgment for plaintiff. The complaint, upon its face, showed that the cause of action was barred by subd. 5, see. 4055, Eev. Codes. The action, as shown by the complaint, was brought for an injury to the person of the plaintiff, and in such cases an action for malicious prosecution is always held to be an action for an injury to the person.

Hon. Carl A. Davis, Judge. Action on injunction bond. Judgment for plaintiff. Sec. 3998, Rev. Codes, does not apply to executed contracts, nor does it apply where the opposing party has surrendered some valuable right. (Smith v. Whittier, 95 Cal. 279, 30 Pae. 529; Blackwood v. Cutting Packing Co., 71 Cal. 461, 12 Pac. 493; Hawes v. Clark, 84 Cal. 272, 24 Pac. 116; Reclamation District v. Hamilton, 112 Cal. 603, 44 Pae. 1074; Dcmeri v. Gaznóla, 2. Cal.

<p>Appeal and Error —■ Matters Beviewable — Probate Proceedings — Widow’s Allowance — Widow as Member op Decedent’s Family— Prima Facie Evidence.</p> <p>1. Upon appeal from the probate court to the district court, it is immaterial whether evidence was offered in the probate court.</p> <p>2. If sueh an appeal be taken upon questions of law alone, the district court can review only such questions of law as were raised in the probate court upon the record.</p> <p>3. The presumption is that the decedent’s widow was a member of his family, and proof of the former fact makes a prima faoie showing of the latter.</p> <p>4. The burden is upon one who objects to the granting of a widow’s allowance on the ground that she was not a member of decedent’s family, if.the proof shows that she was in fact the widow of decedent.</p>

Hon. Charles P. McCarthy, Judge. ,. Proceeding for partial distribution of decedent’s estate. Judgment of the district court reversing a judgment of the probate court setting aside the proceeds of certain life insurance policies on the life of the decedent to the surviving widow. The probate court was justified in setting aside for the widow the proceeds of the policies, because they are exempt from execution.

<p>APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Carl A. Davis, Judge.</p> <p>Action to recover damages for the violation of C. L., see. 1217. Judgment for plaintiff.</p> <p>The settler is entitled only to aetual damages suffered by him by reason of the herding or grazing of sheep within the two-mile limit. (Spencer v. Morgan, 10 Ida. 542, 79 Pac. 459; Roseborough v. Whittington, 15 Ida. 100, 96 Pae. 437; Risse v. Collins, 12 Ida. 689, 87 Pac. 1006; Chandler v. Little, 30 Ida. 119, 163 Pae. 299; Denney v. Arritola, 31 Ida. 428, 174 Pae. 135; Smith v. Benson, ante, p. 99, 178 Pae. 480.)</p> <p>‘ ‘ Courts should compel witnesses to particularize and specify the items of damages and not permit lump sum estimates. The jury must determine the amount of damages and the statement by a witness of his conclusion as to a lump sum furnishes no basis for calculation by the jury. ’ ’ (McGuire v.</p> <p>Post Falls Lumber & Mfg. Co., 23 Ida. 608, 131 Pac. 654; Mc-Kissick v. Oregon Short Line By. Co., 13 Ida. 195, 89 Pae. 629, 630; Pacific Livestoclc Go. v. Mtvrray, 45 Or. 103, 76 Pac. 1079; Hatch Bros. Co. v. Black, 25 "Wyo. 109, 165 Pae: 518.)</p> <p>“When-special damages are not claimed [in the pleading], a party can only recover such damages as are not only the natural and proximate result, but also the necessary result of the act complained of.” (8 Ency. L., 2d ed., 544; Henderson v. Coleman, 19 Wyo. 183, 115 Pac. 439, 1136.)</p> <p>Damages for loss of time, if recoverable at all, must be recovered as special damages. (Dábovich v. Fmeric, 12 Cal. 171; Lee v. Boise Development Co., 21 Ida. 461, 122 Pae 851; Sommerville v. Idaho Irr. Co., 21 Ida. 546, 554, 123 Pac. 302.)</p> <p>“In estimating the damages caused to a settler by herding and grazing sheep within two miles of his dwelling, and on the public lands, the number of livestock which he has depending on pasturage upon said lands must be taken into consideration.” (Bisse v. Collins, 12 Ida. 689, 87 Pac. 1,006.)</p> <p>The measure of damage is the loss respondent actually sustained as a direct result of appellant’s sheep grazing off and destroying, within two miles of his dwelling-house, grass growing upon the public range which, in reasonable probability, his stock would have fed upon had it not been so grazed off and destroyed. (Chandler v. Little, 30 Ida. 119,122,163 Pac. 299.) The value of the destroyed grass and loss of time to plaintiff: by the extra herding of stock around or away from his place occasioned by the proximity of the sheep and the destruction of the surrounding range are both elements of general damage under the statute. {Sweet v. Ballentyne, 8 Ida. 431, 69 Pae. 995; Chandler v. Little, supra.) ■</p>

Hon. Edgar C. Steele, Judge. Action for divorce. Judgment for plaintiff. “In order to make cruelty a ground for divorce, it must be such conduct toward the plaintiff by the defendant as will cause him or her injury by actual personal violence, or the reasonable apprehension of it, or such course of treatment as endangers his or her life or health, and renders cohabitation unsafe.” (Keezer on Marriage and Divorce, sec. 104, p. 58, and authorities cited in footnote; De C'loedt…

Hon. Ed. L. Bryan, Judge. Action for damages. Judgment for defendant A cause of action arising out of a violation of a right of property or an injury to property is assignable. (Mitchell v. Taylor, 27 Or. 377, 41 Pae. 119 ; Erickson v. Brookings County, 3 S. D. 434, 53 N. W. 857, 18 L. R. A.'347; Norfolk & W. R. Co. v. Read, 87 Ya. 185, 12 S. E. 395; Jordan v. Welch, 61 Wash. 569, 112 Pae. 656, 657; Zdbriskie v. Smith, 13 N. Y. 322, 64 Am. Dee. 551, 554; Caledoma Ins.

<p>APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. Ed. L. Bryan, Judge.</p> <p>Proceedings for the probate of a will and lost codicil. Judgment for contestant, and orders denying a motion for' judgment notwithstanding the verdict and for a new trial. Appeal from orders dismissed.</p> <p>The jurisdiction of the court from which an appeal comes is fundamental; the parties cannot waive the want thereof, and the want of jurisdiction will be noticed though not challenged in the trial court. (First National Bcmlc of Poteau v. School District No. 49 (OH.), 160 Pac. 68; Weyman Bruton Co. v. Ladd, 231 Fed. 898,146 C. C. A. 94; Ft. Dodge Lumber Co. v. Rogosch, 175 Iowa, 475, 157 N. "W. 189; People ex rel. Buckbee v. Biggs, 171 App. Div. 373, 156 N. Y. Supp. 1038; Springfield S. W. R. R. Co. v. Schweitzer, 246 Mo. 122. 151 S. W. 128; Wisconsin Real Estate Co. v. Milwaukee, 151 Wis. 198, 138 N. W. 642.)</p> <p>“The objection to the .jurisdiction of the court is never waived and may be raised for the first time in the supreme court.” (Aram v. Edwards, 9 Ida. 333, 74 Pac. 961; Idaho Trust Co. v. Miller, 16 Ida. 308, 102 Pac. 360; Keenan v. Chastaim, (OH.), 157 Pac. 326; Cummings v. McDermid, 4 OH. 272, 44 Pac. 276; De Baca v. Wilcox, 11 N. M. 346, 68 Pac. 922.)^</p> <p>The question whether an appeal is allowed by statute is one of jurisdiction, which can be raised at any time .and in any manner, and the appellate court must raise it on its own motion. ' (Beechwood v. Joplin-Pittsbiwg By. Co., 173 Mo. App. 371, 158 S. W. 868; United States Express Co. v. Hurlock, 120' Md. 107, Ann. Cas. 1915A, 566, 87 Atl. 834; Deer-field Lumber Co. v. Lyman, 89 Vt. 201, 94 Atl. 837.)</p> <p>This action is one in the nature of an equitable proceeding, but one in which the court has a right to call a jury to pass upon certain issues of fact. (2 Church, New Probate Law and Practice, 1664, 1669; Clough v. Clough, 10 Colo. App. 433, 51 Pac. 513; Wright v. Young, 75 Kan. 287, 89 Pac. 694; State v. Second Judicial District Court, 25 Mont. 355, 65 Pae. 120; In re C'layson’s Estate, 26 Wash. 253, 66 Pae. 410; Cartwright v. Holcomb, 21 Okl. 548, 97 Pac. 385; Estate of Dolbeer, 153 Cal. 652, 15 Ann. Cas. 207, 96 Pac. 266; Gallon v. Haas, 67 Kan. 225; 72 Pae. 770; Pine v. Callahan, 8 Ida. 684, 71 Pae. 473.)</p> <p>. If there is any defect in the form of the verdict, objections must be made at the proper time and cannot be raised for the first time on application for a new trial. (Bernier v. Anderson, 8 Ida. 675, 70 Pac. 1027; First National Bank v. Brown (Old..), 162 Pae. 454; In re HeTlier’s Estate, 169 Cal. 77, 145 Pae. 1008; Schumacher v. Moffitt, 71 Or. 79, 142 Pae. 353; Bee-Hive Mercantile Co. v. Insurance Co. of North America, 92 Kan. 341, 140 Pae. 854; Manhattan Wholesale Grocery Co. v. Westchester Fire Ins. Co., 92 Kan. 336, 140 Pac. 853; Euhl v. Supreme Lodge, Select Knights & Ladies, 18 Okl. 383, 89 Pac. 1126; List v. Jockheck, 59 Kan. 143, 52 Pae. 420; Taylor v. Parenteau, 23 Colo. 368, 48 Pae. 505.)</p> <p>The law permits leading questions to be asked under the direction of the court of such witnesses as the court may permit who may have been called by the party examining them. (Sec. 6077, Rev. Codes; Jones on Evidence, sec. 817.)</p>

Hon. R. N.x Dunn, Presiding Judge. Action to quiet title and for partition. Judgment for plaintiff. The probate courts have exclusive original jurisdiction in settlement of estates of deceased persons, and it is within the jurisdiction of those courts to determine who are the heirs of a deceased person and who is entitled to succeed to the estate and their respective shares and interest therein.

Hon. James G. Gwinn, Judge. Appellants convicted for conspiracy to commit extortion. As to the essential allegations in an indictment for conspiracy, see Bishop’s Directions and Forms, 2d ed., c. 23, p. 148; State v. Grant, 86 Iowa, 216, 53 N. W. 120; Crump’s Case, 84 Va. 927,10 Am. St. Rep. 895, 6 S. E. 620; McClain on Crim. Law, see. 972. Where the conspiracy is directed against a particular person, he should be designated in the indictment or information.

<p>Taxation — Conditional Sales — Interstate Commerce.</p> <p>1. Each of sixty-six persons ordered a range from the manufacturer and in payment for it gave a promissory note in -which was expressed the condition that it should be void only in case of refusal to make delivery. The transactions were conditional sales and the ranges remained the property of the manufacturer until t'he deliveries were made.</p> <p>2. PVoperty which has been shipped from one state into another, has reached its destination, and has been unloaded from the car preparatory to being delivered pursuant to a conditional sale contract, is no longer in interstate commerce, but' is a part of the mass of taxable property within the state of its destination.</p> <p>[As to retention of title by seller until payment, see note in 46 Am. St. 295.]</p>

Hon. Edward A. Walters, Presiding Judge. Defendant was convicted of voluntary manslaughter. Appeal from the judgment and order denying motion for a new trial. It is error to reject evidence tending to show bias or prejudice of a witness. ' (State v. Crea, 10 Ida. 88, 76 Pac. 1013; State v. Krum, 32 Kan. 372, 4 Pac. 621; 40 Cyc. 2667.) It is reversible error for the court to comment on the evidence.

<p>APPEAL from the District Court of the Fourth Judicial District, for Twin Falls County. Hon. ¥m. A. Babcock, Judge.</p> <p>From a judgment dissolving and discharging attachment, plaintiff appeals.</p> <p>“In order that the mortgagee of realty may recover chattels as fixtures placed thereon, he must show that the chattels were actually annexed to the freehold, or something appurtenant thereto; that they were applied to the use or purpose to which that portion of the realty was applied, and that they were annexed with the intention of making a permanent accession ,to the freehold.” (1 Ballard on Real Property, see. 176, citing Speiden v. Parker, 46 N. J. Eq. 292, 19 Atl. 21; Tail v. Werner, 132 Pa. St. 363, 19 Am. St. 598, 19 Atl. 138.)</p> <p>“If a complete machine, purchasable in the market as such, and capable of being used wherever power can be supplied, is placed in the owner’s machine-shop for use, and is not fastened to the realty, or is fastened only by being screwed to the floor so as to keep it steady while in operation, it does not thereby become a part of the realty.” (9 Ballard on Real Property, secs. 294, 297, citing Crane Iron Works v. Wilkes, 64 N. J. L. 193, 45 Atl. 1033; Neuf elder v. Third ¡Street Ry., 23 Wash. 470, 83 Am. St. 831, 63 Pae. 197, 53 L. R. A. 600.)</p> <p>The mei’e use of machinery in a mill does not render it a fixture, but the question always depends on the nature of the use and character of the annexation, and the intention of the parties. (11 R. C. L., “Fixtures,” sec. 28; 2 Devlin on Real Estate, see. 1206; Walker v. Sherman, 20 Wend. (N. T.) 636; Wade v. Johnson, 25 Ga. 331; Blanche v. Rogers, 26 N. J. Eq. 563.)</p> <p>The machinery procured for use in a manufacturing establishment, most of it being heavy and not being intended to be moved from place to place when put in position to be used with the building until worn out, or for some unforeseen cause the real estate is put to different use, constitutes a part of the realty, and although same is not fastened to the buildings. {Hopewell Mills Co. v. TaMnton Savings Bank, 150 Mass. 519, 15 Am. St. 235, 23 N. E. 327, 6 L. B. A. 249; Cavis v. Beckford, 62 N. H. 229, 13 Am. St. 554; Harla/n v. Harlan, 15 Pa. St. 507, 53 Am. Dee. 612; Ottumwa Woolen Mills v. Hawley, 44 Iowa, 57, 24 Am. Bep. 719; Bay City Land Co. v. Craig, 72 Or. 31, 143 Pac. 911.)</p> <p>Whether a structure or a part of it is a fixture depends upon the nature or character of the act, by which it is erected and the purpose for which it was intended to be used. (Hogan Lumber Co. v. City of Oakland, 25 Cal. App. 130, 142 Pae. 1084.) The intention with which the fixture is attached or affixed, or use, is always a pertinent inquiry in determining the status of what seems to be realty or personal, and the relation of the parties to the property. (Montana Electric Co. v. Northern Valley Min. Co., 51 Mont. 266, 153 Pac. 1017, 1018; Johnson v. Pacific Land Co., 84 Or. 356, 164 Pae. 564; Philadelphia Mortgage & Trust Co. v. Miller, 20 Wash. 607, 72 Am. St. 138, 56 Pac. 382, 44 L. B. A. 559.)</p>

<p>APPEAL from, the District Court of the Fourth Judicial District, for Twin Falls County. Hon. Wm. A. Babcock, Judge.</p> <p>Action by cross-complainant to subject the proceeds of mortgaged property to the lien of the mortgage. Judgment for cross-complainant.</p> <p>•»“A purchaser of mortgaged property takes the title free from the lien of the mortgage, if the sale was made with the express or implied consent of the mortgagee.” (7 Cyc. 47, note 54; Knollin & Co. v. Jones, 7 Ida. 466, 468, 63 Pac. 638; Saxton v. Breshears, 21 Ida. 333, 121 Pae. 567.)</p> <p>To sue in assumpsit, conversion must be plead. (Lehmann v. Schmidt, 87 Cal. 15, 25 Pac. 161; Fratt v. Clark, 12 Cal. 89; Robert's v. Evans, 43 Cal. 380, cited by Chittenden v. Pratt, 89 Cal. 178, 26 Pae. 626.)</p> <p>The taking of the beets by the company was a tort and it substituted its promise, implied by the law, to indemnify the mortgagee for his loss. (Chittenden v. Pratt, 89 Cal. 178, 26 Pae. 626; Bollen v. Wilson Creek etc. Trading Co., 90 Wash. 400, 156 Pac. 404.)</p> <p>The mortgagee did not lose his right by his letter to the company warning it of his mortgage and requiring payment to him. (Chittenden v. Pratt, supra; Maier v. Freeman, 112 Cal. 8, 53 Am. St. 151, 44 Pae. 357; Ziegler v. Ilf eld, 52 Colo. 275, Ann. Cas. 1913D, 583, 122 Pae. 56.)</p> <p>If the mortgagee’s complaint and the evidence show him entitled to legal relief, he should receive it at the hands of the court, regardless of his prayer. (Pomeroy’s Code Remedies, see. 11, p. *71, and see. 21, p. *82; Anderson v. War Eagle Consolidated Mm. Co., 8 Ida. 789, 803, 72 Pac. 671.)</p>

Hon. James G. Gwinn, Judge. Action by highway district to recover taxes collected by county. Judgment for defendant. The laws in force at the time of the making of the contract are a part of the contract without any express agreement by the parties, and any subsequent law impairing the rights thus acquired impairs the obligations'which the contract imposed. (.Bronson v. Kinzie, 1 How. (U. S.) 311, 11 L. ed. 143; Hendrickson v. Apperson, 245 U. S. 105, 38 Sup.

Hon. Robert M. Terrell, Judge. Action for divorce. Judgment for plaintiff. Where marriage is void, fact that person entered into it in good faith and with belief that he had right to' marry is immaterial on question of its invalidity. (Pratt v. Pratt, 157 Mass. 503, 32 N. E. 747, 21 L. R. A. 97; Thomas v. Thomas, 124 Pa.

<p>Schools and School Districts — Board of Trustees — P'owers of— Contracts With Teachers — Ratification—Statutory Construction.</p> <p>1. The proviso of subd. (g), see. 58, ehap. 159, 1911 Sess. Daws, as amended by see. 9, ehap. 115, 1913 Sess. Daws, “That no trustee shall be pecuniarily interested directly or indirectly in any contract made by the board of trustees, of whieh he is a member, and any contract made in violation of this section is null and void,” was intended by the legislature to render void only sueh contracts made by the board as some member or members thereof are pecuniarily interested in, directly or indirectly.</p> <p>2. The object of the provision of sec. 58, supra, authorizing boards of trustees to employ teachers on written contract and-providing that “before such contract can be legally signed it shall be the duty of the teaeher to exhibit his or her certificate or permit to teach to the board of trustees,” was to guard against the employment of teachers not holding certificates or permits to teach.</p> <p>3. When all of the pertinent provisions of sec. 58, supra, are construed together, it cannot be said that the act has expressly prohibited the employment of teachers except upon written contract, nor has it' expressly provided that a eontraet to teach other than a written contract is void, neither does the statute expressly authorize the employment of teachers, except upon written contract.</p> <p>4. An unauthorized contract with a teacher may he ratified hy those having authority to contract, either expressly or hy acts recognizing the employment, as hy partly performing the contract, making payments for services, accepting its benefits, and the like.</p> <p>[As to right of school teacher to compensation as dependent on validity of contract or appointment, see note in Ann. Cas. 1913 C, 372.]</p>

Hon. F. J. Cowen, Judge. Action for damages. Judgment for plaintiff. Tender is defined as an -unconditional offer to pay what is due, and no proper pleading is found under which testimony on this point could have been introduced. (Kelley v. Clark, 23 Ida. 1, Ann.

Hon. James G. Gwinn, Judge. Action on account. Judgment for plaintiff. A verdict exceeding the highest amount claimed or proved-will be set aside as excessive and contrary to the evidence. ('Wymcm v. Erickson, 35 Minn. 202, 28 N. W. 240; Bell v. Cherrie, 8 HI.

<p>Appeal and Eeeoe — Fundamental Eeeoe — Mechanic’s Lien — PsiOBITY.</p> <p>1. An. objection that tie complaint does not state facts sufficient to constitute a cause of action is fundamental. It is never waived, and may be considered by an appellate court, even in the absence of a specification of error.</p> <p>[As to right to question sufficiency of complaint for the first time on appeal, see note in 3 Ann. Cas. 545.]</p> <p>2. Under C. S., spc. 7349, a mechanic’s lien does not continue unless proceedings are commenced in a proper court against the person, or persons, against whose interest the lien is asserted, within the time limited by the statute.</p>

Hon. James G. Gwinn, Judge. Action for debt. Appeal from the judgment of the district court dismissing appeal from the probate court. cite no authorities on points decided. Brief not considered for reasons stated in opinion.

Hon. F. J. Cowen, Judge. Proceeding under C. S., sees. 7305 to 7307, inclusive, to determine tbe rights of judgment creditors in tbe proceeds of attached property. Judgment decreeing certain preferences and priorities. Attachment was unknown to the common law. It is a suim mary and extraordinary remedy depending entirely upon statutory enactment. (4 Cyc. 396, and cases there cited, including Vollmer v. Spencer, 5 Ida. 557, 51 Pac. 609; Murphy v. Montandon, 2 Ida. 1048, 35 Am.

Hon. Wm. A. Babcock, Judge. Action for mandamus to compel the levy of a tax. Judgment was for plaintiff. The judgment of the court, directing that a peremptory writ of mandate issue compelling the defendants to levy a sufficient tax to pay the judgment recovered against the school district No. 11 of Minidoka County compels the defendants to do what they have no authority of law to do.

Hon. F. J. Cowen, Judge. Action on conditional sale contract. Judgment for plain* tiff. The note upon which this action is brought is non-negotiable. ■(Kimpton v. Studeb alter Bros. Co., 14 Ida. 552, 125 Am. St. 185, 14 Ann.

Hon. Isaac E. Smith, Judge. Appellant was convicted of arson in the second degree. The testimony of J. W. Bullís, a witness for the prosecution, and admitted to be an accomplice in the crime with which the defendant was charged, was not corroborated by other evidence, so as to entitle it to be considered as sufficient to base a conviction upon, and for that reason the jury should have been advised to acquit the defendant.

<p>Vendos and Purchases — Option Contract — Tendee.</p> <p>1. Where a' vendor grants an option for the purchase of certain lands, the purchase, price to be paid in instalments, and after giving the option the vendor encumbers the land with a mortgage and agrees with the holders of the option that the assumption of the mortgage indebtedness shall be considered a part payment of the purchase price of the land, without specifying in the agreement upon which of the instalments of the purchase price it shall be applied, the holders of the option, upon electing to purchase the property, may mahe application of the payment made by the assumption of the mortgage indebtedness upon such instalments of the purchase priee as they may direct.</p> <p>[As to rights of parties under optional contract for purchase of land where land is subject to encumbrance not provided for in contract, see note in Ann. Oas. 1913E, 923.]</p> <p>2. A formal tender of performance by a purchaser is unnecessary, and an offer, together with readiness and ability on his part to perform, is sufficient where the obligations of the vendor and purchaser are mutual and concurrent, and the vendor refuses to perform his part of the contract except upon a condition which is repugnant t'o the terms thereof.</p>

<p>APPEAL from tbe District Court of the Sixth Judicial District, for Custer County. Hon. Carl A. Davis, Presiding Judge.</p> <p>Action, in the nature of a suit to quiet title to water rights and adjudicate priorities. Judgment for respondents.</p> <p>A water right can he acquired by use for a beneficial purpose of the waters of a stream upon lands owned by the United States and with the title to which the user has not connected himself. (Kinney on Irrigation, 2d ed., sec. 725, and authorities cited; Ball v. Blackman, 8 Ida. 272, 68 Pac. 19; Brose v. Boise City R. etc. Co., 5 Ida. 694, 51 Pae. 753; Branca v. Perrin, 10 Ida. 239, 77 Pac. 636; Montpelier Mill Co. v. City of Montpelier, 19 Ida. 212, 113 Pac. 741; People v. Maxon, 1 Ida. 330; Basey v. Gallagher, 20 Wall. (U. S.) 670, 22 L. ed. 452; Atchison v. Peterson, 20 Wall. (U. S. 507, 22 L. ed. 414; Rev. Stats. U. S., sec. 2339; art. 15, Constitution of Idaho.)</p> <p>Appellant J. B. Hunter was privileged to sell part of his interest in application for permit No. 4990 to his coappellant herein, W. C. Hunter. (Laws of 10th Session, p. 335, an act entitled, “An act providing for the regulation and control of the sale of water rights, etc. ’ ’)</p> <p>“The only effect given by the statute to the acts and decision of the engineer is that any party aggrieved by said decision may, within ninety days from the date of the decision, either appeal to the district court or commence his original action.” (Speer v. Stephenson, 16 Ida. 707, 102 Pac. 365.)</p> <p>A permit issued by the state engineer is the initiation of the appropriation but of itself is not an appropriation. (Marshall v. Niagara Springs Orchard Co., 22 Ida. 144, 125 Pac. 208; Tohey v. Bridgewood, 22 Ida. 566, 127 Pae. 178.)</p> <p>A right to appropriate the public water of this state cannot be initiated, or perfected, unless it be in connection with or made appurtenant to other property, to which the appropriator has an absolute or qualified light and upon which, or in connection with which, it is to be used in such manner as will constitute a beneficial use. (Kinney on Irrigation, secs. 707-710, and cases cited; Black’s Pomeroy on Water Rights, sec. 48, and authorities cited; Wiel on Water Rights, sec. 166, and cases cited under notes 72 and 73; Weaver v. Eureka Lake Co., 15 Cal. 271; Nevada County <& Sac. Canal Co. v. Kidd, 37 Cal. 282; Miles v. Butte Electric etc. Co., 32 Mont. 56, 79 Pae. 549; Mills’ Irrigation Manual, .p. 59; Drake v. Earhart, 2 Ida. 750, 23 Pac. 541; Taylor v. Hulett, 15 Ida. 265, 269, 97 Pae. 37, 19 L. R. A., N. S., 535; Low v. Bizor, 25 Or. 551, 37 Pac. 82; Toohey v. Campbell, 24 Mont. 13, 60 Pae. 396, 397; Nevada Ditch Co. v. Bennett, 30 Or. 59, 60 Am. St. 777, 45 Pae. 472, 481; Bailey v. Tintinger, 45 Mont. 154, 122 Pac. 575, 583; Sander v. Bull, 76 Wash. 1, 135 Pae. 489; Colburn v. Winchell, 93 Wash. 388, 160 Pac. 1052.)</p>

Hon. Edgar C. Steele, Presiding Judge. Action by trustee in bankruptcy to have a chattel mortgage decreed null and void and recover the reasonable value of the mortgaged property from the mortgagees and sheriff, who sold the property under notice and sale foreclosure. Judgment for plaintiff. This action was “pending” in the district court of the tenth ■ judicial district for Nez Perce county at the time of the rendition of said decree.

' APPEAL from the District Court of the Niuth Judicial District, for Teton County. Hon. James G. Gwinn, Judge. Action to enjoin issuance of school district bonds. From a judgment dissolving the temporary injunction and dismissing the action, plaintiff appeals. Injunction is a proper remedy to prevent the officers of a school district from issuing bonds unlawfully.

Hon. John M. Flynn, Judge. Conviction for selling intoxicating liquor in violation of law. The state should not have been allowed to put on witnesses to testify regarding the chute and trap-door and offer the same as rebuttal testimony, when it would be impossible for the appellant Mushrow to meet the issue at that time.

<p>Continuance — Conditional Sale Contracts.</p> <p>1. An order granting or denying a continuance will not be disturbed on appeal in the absence of a showing of abuse of discretion, and, where there is no evidence of a diligent effort to procure the attendance of a witness, refusal to grant a continuance, because his presence at the trial cannot be procured, is not an abuse of discretion.</p> <p>2. Conditional sales, like other contracts, are to be construed according to the intent of the parties, as disclosed by the ter^ns employed when'they are not ambiguous.</p>

Hon. John M. Flynn, Judge. Suit to quiet title. Judgment for plaintiff.

Hon. Chas. P. McCarthy, Judge. Action to quiet title to use of water. Judgment for plaintiff. The decree and judgment is not res adjudicada, for the reason that no judgment can be pleaded as an estoppel or res adjudicata unless it was pronounced by decision of the court upon the mérits and is his conclusion upon the facts after a final hearing of the case.

Hon. Charles P. McCarthy, Judge. Action in claim and delivery. Judgment for defendant. The appellant never parted with title to the property, and when demand was made on the sheriff for the return of the property by said appellant, the sheriff should have delivered immediate possession of said property to the appellant. (Kellogg• v. Bun', 126 Cal. 38, 58 Pac. 306; Rodgers v. Bach-man, 109 Cal. 552, 42 Pac. 448; Harkness v. Russell, 118 U. S. 663, 7 Sup.

Hon. Carl. A. Davis, Judge. Consolidated action to foreclose an alleged laborers’ lien and to quiet title founded upon a tax deed. Judgment giving holder of tax deed title subject to the lien. Under the facts as developed in this case, the plaintiff Armitage was not entitled to a lien in any amount or at all upon the Horseshoe Bend town site or any part or portion thereof., (Bev.

Hon. William W. Woods, Judge. Action for damages. Judgment was for plaintiffs and a new, trial was denied. Where damages were occasioned by one of two causes, for one of which defendant is responsible, and for one of which the defendant is not responsible, the plaintiff must, before a recovery can be had, trace the damages to the cause for which the defendant is responsible.

Original proceeding for writ of mandate. “When a motion for change of venue, on the ground of the bias and prejudice of the trial judge, is supported by sufficient showing, it is the duty of such judge to grant a change of venue and such duty is mandatory and not discretionary.” (Callahan v. Callahan, 30 Ida. 431, 436, 165 Pac. 1122; Gordon v. Conor, 5 Ida. 673, 51 Pac. 747.) To allow the order of the judge, finding and adjudging himself disqualified, to be attacked by…

Hon. R. N. Dunn, Judge. Action against surety on injunction bond. Judgment of nonsuit and dismissal. The entering of the judgment by the court in the action in which the injunction was brought and the dissolving of the injunction was a final determination of the suit upon which the injunction was brought so as to entitle the plaintiff in said action to maintain his suit-upon the injunction bond.

Hon. ¥m. A. Babcock, Judge. Action to contest election of probate judge. Judgment for plaintiff. Held: that the election should be held at the place designated in the notices of election and at no other place. (People v. Porter, 6 Cal. 26; People v. Weller, 11 Cal. 49, 70 Am.

<p>'APPEAL from the District Court of the Second Judicial District, for Latah County. Hon. Edgar C. Steel, Judge.</p> <p>Action for debt upon certain mortgages. Judgment for plaintiff.</p> <p>The statute of limitations begins to run against a cause at and from the time when an action may properly be commenced thereon. (Pridgieon v. Greathouse, 1 Ida. 359; Osburn v. Hopkins, 160 Cal. 501, Ann. Cas. 1913A, 413, 117 Pac. 519.)</p> <p>Where a contract contains an acceleration clause positive in its terms and without any optional features in it, a default under said clause renders the entire indebtedness due and the statute of limitations runs from such default. (Snyder v. Miller, 71 Kan. 410, 114 Am. St. 489, 80 Pac. 970, 69 L. R. A. 250; Buss v. Kemp Lumber Co., 23 N. M. 567, 170 Pae. 54, L. R. A. 1918C, 1015; Lovell v. Goss, 45 Colo. 304,132 Am. St. 184, 22 L. R. A., N. S., 1110, 101 Pae. 72.)</p> <p>A personal judgment rendered upon personal service had without the jurisdiction of the court is void and can be used for no purpose whatever. (23 Cye. 1583; Bennett v. Wilson, 122 Cal. 509, 68 Am. St. 61, 55 Pac. 390; Freeman on Judgments, sec. 117; Jefferson v. Gallagher, 56 Okl. 405, 150 Pac. 1071; National Bank of St. Johnsbury v. Peabody, 55 Yt. 492, 45 Am. Rep. 632; lies v. Elledge, 18 Kan. 296.)</p> <p>C. S., sec. 6949, has no extraterritorial effect and relates exclusively to mortgages in Idaho. (McGue v. Bommell, 148 Cal. 539, 83 Pac. 1000; Denver Stockyards Bank v. Martin, 177 Cal. 223, 170 Pac. 428.)</p> <p>In the absence of a local statute changing the rule, it is established by the overwhelming weight of authority that the limitation of time for bringing an action upon a contract depends upon the law of the forum. (Thomas v. Clarkson, 125 Ga. 72, 54 S. E. 77, 6 L. R. A., N. S., 658.)</p> <p>The mortgages were made and all the terms and conditions thereof were to be performed in Alberta, Canada. The law of the place where the contract is made became a part of the contract. (9 Cyc. 582; Sterrett v. Sweeney, 15 Ida. 416, 424, 128 Am. St. 68, 98 Pae. 418, 20 L. R. A., N. S., 963; 5 R. C. B. 931; Meier & Prank Co. v. Bruce, 30 Ida. 732, 738,168 Pac. 5.)</p> <p>An agreement in a mortgage maturing the entire debt on default of any payment of interest when due is not inconsistent with the agreement made with defendant assuming the mortgages, in maturing the debt at the option of the plaintiff on default of payments of interest. (Clark v. Paddock, 24 Ida. 142, 151, 132 Pac. 795, 46 L. E. A., N. S., 475 ; Mason v. Luce, 116 Cal. 232, 237, 48 Pac. 72; White v. Krutz (McMillan), 37 Wash. 34, 79 Pac. 495; Gore v. Smith, 23 Okl. 909, 102 Pac. 114.)</p> <p>Statute runs against mortgage obligation when deficiency ascertained and not against grantee’s promise to pay as a new and independent agreement. (Roberts v. Fitzallen, 120 Cal. 482, 52 Pac. 818, 819; Clark v. Paddock, supra.)</p> <p>“Whenever a debt becomes due, and is not paid in accordance with the terms of the contract, a cause of action thereupon arises. This exists as an absolute and unqualified right independent of where the debtor may be. His absence from the state in no way affects the right of the creditor to commence his action. His absence from the jurisdiction simply affects the service of process, and avoids the possibility of the debtor securing a personal service on the defendant and a personal judgment against him, but it in no way affects a judgment in rem against any property he may have within the jurisdiction, nor does it affect the right to commence the action.” (West v. Theis, 15 Ida. 167, 128 Am. St. 58, 96 Pae. 932,17 L. E. A., N. S., 472.)</p>

Hon. Edgar C. Steele, Judge. Action on account. Judgment for defendant on counterclaim. From the judgment and order overruling motion for new trial, plaintiff appeals. The verdict is so manifestly unsupported by the weight of the evidence as to suggest that it was rendered through bias or prejudice. {Goldstone v. Bustemeyer, 21 Ida. 703, 706, 123 Pae. 635.) “A party alleging an affirmative defense has the burden of proving it.” {Prince v. Kennedy, 3 Cal.

Hon. Edgar C. Steele, Presiding Judge. Suit to quiet title. The decree was in favor of plaintiff, Ford Lumber Company, and intervenor, Continental Oil Company; also that plaintiff pay to defendant the amount expended by him in the payment of assessments and taxes.

Hon. R. N. Dunn, Judge. Action for damages. Judgment for plaintiff.

<p>APPEAL from the District Court of the Eighth Judicial District, for Benewah County. Hon. R. N. Dunn, Judge.</p> <p>Motions to dismiss appeal and strike transcript.</p> <p>The respondents by signing the stipulation shown in the record and agreeing that the reporter’s transcript might be settled and allowed with their express consent have waived, and are estopped to now mate any objection. {Kelley v. Clark, 21 Ida. 231, 121 Pac. 95; Stufflebeam v. Montgomery, 3 Ida. 20, 26 Pac. 125.)</p> <p>No provision is made in the California statute for extensions by stipulation or agreement, and yet the supreme court of California has uniformly held that failure to object or a stipulation eliminates any abjection which might otherwise be urged with reference to the service, filing or settlement of a bill of exceptions. {Slye v. Hunt, 29 Cal. App. 117, 154 Pac. 607; Hicks v. Masten, 101 Cal. 651, 36 Pac. 130; Horton v. Jacks, 115 Cal. 29, 46 Pac. 920; O’Brien v. O’Brien, 124 Cal. 422, 57 Pae. 225; Kramm v. Stockton Elec. B. B. Go., 22 Cal. App. 737, 136 Pac. 523; Simpson v. Budd, 91 Cal. 488, 27 Pac. 758; Cheney v. Cooper, 14 Neb. 413, 16 N. W. 433; Thompson v. Missouri Pac. By. Co., 50 Neb. 329, 69 N. W. 1119; Nash v. Costello, 50 Neb. 325, 69 N. W. 969; Omaha & N. W. By. Co. v. Bedick, 14 Nob. 55, 14 N. W. 665; Loeff v. Taussig, 102 ill. App. 398; Hawes v. People, 129 111. 123, 128, 21 N. E. 777; Williams v. United States Fidelity & Guaranty Co., 105 Md. 490, 66 Atl. 495; 4 C. J. 61, 62, 259; 4 Standard Eney. of Procedure, 337; Sorg v. Wells, 31 S. D. 432,141 N. W. 384; Drake v. Dodsworth, 4 Kan. 159.)</p> <p>All of the parties, including the trial court, understood from the stipulation and the trial court’s certificate that the errors pointed out in the stipulation were deemed, corrected pursuant to the «stipulation. The statute or the rules of this court nowhere refer to any engrossment of a reporter’s transcript. Where a large number of amendments and additional matter to the reporter’s transcript was served and filed, it was not necessary that the statement be engrossed. {Shumake v. Shumake, 17 Ida. 649, 107 Pac. 42; Weems v. McDavitt, 49 Kan. 260, 30 Pac. 481.)</p> <p>The bond in contemplation of law is executed at the time of its delivery, it not being effective for any purpose until its delivery. {Zienke v. Northern Pac. By. Co., 7 Ida. 746, 65 Pae. 431; Atchison etc. B. Co. v. Baker (Ind. Ter.), 104 S. W. • 1182, 1193; State v. Alta Silver Min. Go., 24 Nev. 230, 51 Pae. 982; James v. Woods, 65 Miss. 528, 531, 5 So. 106; C7iataugay Ore & Iron Go. v. Blake, 35 Fed. 804; Dore v. Covey, 13 Cal. 502; 1 Ency. of PI. & Pr. 977; Covert v. Shirk, 58 Ind. 264; Byers v. Cook, 13 Or. 397, 10 Pac. 417; Dahl v. Tilláis, 5 Wash. 259, 31 Pac. 868; 3 C. J. 1299; Paul v. Cragnaz, 25 Nev. 293, 59 Pae. 857, 60 Pae. 983, 47 L. R. A. 540;. Stackpole v. Hermann, 126 Cal. 465, 58 Pae. 935.)</p> <p>No undertaking on appeal was filed. (Weiser River Fruit Assn. v. Feltliam, 31 Ida. 633, 175 Pac. 583.)</p> <p>The notice of appeal was not signed by J. B. Hogan, Bran-son’s attorney, but Hogan authorized Cannon & Ferris to attach his name to the notice. Our practice does not contemplate that appeals may be taken in that way. (Poppleton v. Nelson, 10 Or. 437; Prescott v. SaZthcmse, 53 Cal. 221.)</p> <p>The pretended proof of service shows that it was not attempted to be served until too late. (Boise-Payette Lunvler Cl. v. McCarthy, 31 Ida. 305, 170 Pac. 920.) Failure to make such service as required by the statute divests this court of jurisdiction to entertain the appeal. (Bohannon Dredging Co. v. England, 30 Ida. 721, 168 Pae. 12.)</p> <p>The order of the judge settling the transcript and the stipulation clearly show that the transcript is not a true and correct transcript of the evidence and proceedings had upon the trial of the case. A stipulation cannot take the place of the transcript required by statute. (Hansen v. Boise-Payette Llr. Co., 31 Ida. 600, 174 Pac. 703.)</p> <p>A reporter’s transcript serves the same purpose and the same office as a statement of the case on motion for a new trial or bill of exceptions, and where amendments are offered and allowed to the transcript, such transcript as amended must be engrossed before the court will consider the same. (Hattálaugh v. Vollmer, 5 Ida. 23, 46 Pac. 831; Crowley v. Croesus G. & C. Min. Co., 12 Ida. 530, 86 Pac. 536.)</p>

Hon. Edgar C. Steele, Presiding Judge. Action to reform and foreclose a mortgage. Judgment for plaintiff. Without showing intention of mortgagor to include tract in question in the mortgage and without showing mutuality of the mistake, no reformation can be had. (Houser v. Austin, 2 Ida. 204, 10 Pac. 37; Pomeroy Eq.

Hon. JohnM. Flynn, Judge. Motion to dismiss appeal. files no brief.

Hon. W. W. Woods, Judge. Action to quiet title to certain interests in a mining claim and for injunctive relief against a pretended relocation. Judgment in favor of owners of original location.

<p>Original action for disbarment of attorney.</p> <p>Counsel file no briefs.</p>

Original application for writ of review. To constitute a constructive contempt of court, some act must be done not in the presence of the court that tends to obstruct the administration of justice or bring the court or judge or the administration of justice into disregard. (In re Dill, 32 Kan. 668, 49 Am.

Hon. Wallace N. Scales, Judge. Action to enjoin the issuance of highway district bonds.

<p>Original application for writ of review.</p>

Hon. Ed L. Bryan, Judge. An action for damages by a married woman and her husband for personal injuries to the former; also an action for damages by the husband for injuries to his wife, and for destruction of personal property. The cases were consolidated, judgments were for plaintiffs and a new trial was denied.

Hon. James E. Bothwell, Judge. Action for damages. Judgment for defendant.' It is the duty of a carrier to transport stock with as little delay as possible. The handling of the train is a matter within the power of the defendant. The shipper has no control over it. If his stock is injured as a result of negligent delay on the part of the carrier, he is entitled to reasonable compensation for such damages as he may sustain by reason of injury to his stock.

Hon. James R. Bothwell, Judge. Suits to foreclose liens. Decree fixing priorities from which one of the claimants appealed.

<p>Landlord and Tenant — Implied Promise to Pat Bent for Use and Occupation of Premises.</p> <p>1. Where a party occupies the premises of another, without any agreement for the payment of rent, the law implies a promise on the part of the occupant to pay for the use and occupation of such premises the reasonable rental value thereof, unless an agreement is proven to exist between the parties that the occupancy was to be without rent.</p> <p>2. Where one in possession of personal property places it upon certain premises, and retains it thereon, the use and occupation of the premises is by him who has possession of the property.</p>

Hon. Charles P. McCarthy, Judge. Action to foreclose mechanic’s lien. Judgment for plaintiff. The court erred when it failed to find upon the issues of fact relating to the liquidated damages claimed by defendant in its cross-complaint and counterclaim. All parties to the action formally requested the court to make this finding of fact.

<p>Criminal Law — Entrapment—Evidence.</p> <p>1. A person entrapped into the commission of a wrongful act, without any original criminal design upon his part and without any attempt to carry out a criminal purpose of his own conception, does not thereby become guilty of crime.</p>

<p>Appeal — 'Statute or Limitations — Judgment—Vacation or — Concurrent Remedies — .Statutory Construction.</p> <p>1. C. S., sec. 6726, providing for relief from judgments taken through, mistake, inadvertence, surprise or excusable neglect of a p-arty, confers authority upon the district court to grant the relief therein contemplated if a proper application is made within six months after the adjournment of the term in whieh the judgment is entered.</p> <p>3.A direct appeal from the judgment does not divest the trial court of jurisdiction to entertain a proper motion under C. S., see. 6736, and to- grant the relief therein authorized.</p> <p>3. This statute provides an independent proceeding which exists concurrently with the right of appeal from the judgment.</p> <p>4. An order made pursuant to such a proceeding does not operate to extend the time for appeal from the judgment.</p> <p>5. A party desiring both forms of relief should appeal from the judgment and apply to the trial court for relief under this section notwithstanding such appeal.</p>

Hon. Wm. A. Babcock, Judge. Action on certain promissory notes. Judgment on confession for plaintiff. Appeal from the judgment and from an order refusing to vacate it. Counsel file no briefs.

<p>Mandamus — Discretion op Judge.</p> <p>Mandamus will not issue to a district judge to control his discretion, but' a writ will issue to require him to act in a matter pending before him.</p> <p>[As to right of private person- to mmdamm to enforce performanee of duty by court or magistrate, see notes in 0 Ann. Cas. 1074; Ann. Cas. 1912A, 1118.]</p>

<p>APPEAL from the District Court of the Fourth Judicial District, for Blaine County. Hon. James R. Bothwell, Judge.</p> <p>Action for damages for breach of contract of employment. Judgment for plaintiff.</p>

<p>Attorneys at Daw — Disbarment—Moral Turpitude.</p> <p>1. The purpose of disbarment is not the punishment of the attorney; it is to protect the public and those charged with the administration of justice from the misconduct of persons who have found their way int'o the legal profession and who are unfit to perform the duties of an attorney at law.</p> <p>[As to power of courts to disbar attorneys, see notes in 5 Ann. Cas. 990; 15 Ann. Cas. 419.]</p> <p>2. If a citizen of the United States of America, at a time when our country is at war, knowingly and wilfully makes false statements with intent to interfere with the success of its military and naval forces and with intent to pro-mote -the success of its enemies, or wilfully attempts to cause disloyalty, -insubordination, mutiny and refusal of duty in its military and naval forces, or wilfully obstructs its recruiting and enlistment service, his conduct involves moral turpitude.</p> <p>On the question of conviction or commission of crime or misconduct by attorney in another state as grounds for disbarment, see note in 19 D. B. A., N. S., 892.</p> <p>3. When an attorney at law,' admitted to practice in Idaho, has been convicted of a crime involving moral turpitude and a certified co-py of the record of his co-nvietion has been filed in this court with a view to bringing about his disbarment, Ms guilt or innocence is not in issue. The question is, Has he been eonvieted of such offense? jC. -S., see. 6-5-78, makes the record of his conviction conclusive evidence of that fact, and) 0. -S., sec. 6590, prescribes the judgment which must be entered.</p> <p>[As to disbarment of attorney for act Committed in another jurisdiction, see note in 17 Ann. CaS. 599.]</p>

Hon. Charles P. McCarthy, Judge. Action to procure writ of mandate. Judgment for plaintiff. This deed is no part of the process of court involved in the original action, out of which grew respondent’s right to such deed.

Ed. L. Bryan, Judge. Action for damages and upon contract to pay an amount equal to a- portion of certain indebtedness secured by mortgage.

<p>APPEAL from the District Court of tbe Seventh Judicial District, for Washington County. Hon. Ed. L. Bryan, Judge.</p> <p>Action to recover damages under “two-mile limit law.” Judgment for plaintiff.</p> <p>While sec. 1908, C. S., makes it unlawful to graze or range sheep within two miles of the dwelling-house of the owner of the lands or possessory claim, yet the courts have interpreted said section as meaning that it was unlawful to herd or graze sheep upon the public domain within two -miles of such dwelling-house. (Sweet v. Ballentyne, 8 Ida. 431, 438, 69 P'ac. 995; Bisse v. Collins, 12 Ida. 689, 696, 87 Pac. 1006.) In fact, the section has always uniformly been construed by the courts as applying only to grazing or herding sheep upon lands the title to which was still in the federal government.</p> <p>There was testimony to the effect that at the time the sheep did the alleged damages they were being trailed over to their summer range and that they were not herded or permitted to graze, but were being trailed within the meaning of the word as used in Phipps v. Grover, 9 Ida. 415, 75 Pac. 64. The court erred in failing to give proper instructions covering this' phase of the case.</p>

<p>Pleading and Practice — Yoid Judgments.</p> <p>1. It is necessary t'o the validity of a judgment that the court have jurisdiction of the question which it thereby assumes to decide, or of the -particular remedy or relief which it assumes to grant.</p> <p>2. It is the duty of a district court, when it is brought to it's attention that a portion of one of its decrees is void on its face, to amend it by striking out the void portion.</p> <p>Por authorities passing on the question of collateral attack on judgment because of lack of jurisdiction, see subdivision of a note in L. R. A. 1916-E, 3-22.</p>

Hon. Ed. L. Bryan, Judge. Action to foreclose mortgage. Motion to dismiss sustained, and judgment entered for defendant. Counsel cite no authorities on point decided.

<p>Appeal and Error — Time Within Which Transcript must be Piled— Motion to Dismiss.</p> <p>1. Where the record discloses that it is intended that the transcript on appeal shall contain a reporter’s transcript in lieu of a bill of exceptions, the time within which the transcript must be filed in this court does not begin to run. until the reporter’s transcript had been settled by the trial court. ,</p> <p>2. It is not a ground for dismissal that a transcript on appeal has not been served! and filed in this court ■within six months after perfecting of the appeal.'</p> <p>3. The time for filing transcript on appeal in this court will begin to run from the date the trial court refuses to settle the reporter’s transcript.</p> <p>4. In case the appellant permits the time within which the reporter must prepare and lodge his transcript with the clerk of the court- below, as ordered by the trial judge, to expire without procuring an extension thereof, the time for filing the transcript in this court would begin to run. from the date of the expiration of the time prescribed by the order of the trial court. But if within sixty days after the expiration of the time limited for lodging the reporter’s transcript, the appellant files a motion in the lower court for an order extending the time and requiring the reporter to prepare and lodge the transcript, which motion is denied, such denial is tantamount to a refusal to settle the reporter’s transcript, and the appeal will not .be dismissed until sixty days after the denial of the motion.</p>

Hon. Wm. A. Babcock, Judge. Action for damages for failure to deliver water. Judgment for plaintiff. A contract providing payment of canal charges as a condition precedent to a proper demand for water will be upheld. (Sees. 5556, 5631, Comp. Stats.; Adams v. Twin Falls-Oakley Land & Water Co., 29 Ida. 357, 161 Pac. 322; Jackson v. Indian Creek etc. Irr.

<p>APPEAL from tbe District Court of tbe Third Judicial District, for Ada County. Hon. Charles P. McCarthy, Judge.</p> <p>Action on contract. Judgment for plaintiff.</p> <p>A contract of guaranty tendered for acceptance is merely an offer to guarantee which requires acceptance and notice of acceptance in order to make a complete contract. (Kincheloe v. Holmes, 7 B. Mon. (Ky.) 5, 45 Am. Dec. 41; German Sav. Bank v. Drake etc. Co., 112 Iowa, 184, 84 Am. St. 335, 83 N. "W. 960, 51 L. R. A. 758; Dams v. Wells, Fargo & Co., 104 U. S. 159, 26 L. ed. 686; Davis Sewing Machine Co. v. Richards, 114 U. S. 524, 29 L. ed. 480; Douglass v. Reynolds, 32, ü. S. (7 Pet.) 113, 8 L. ed. 626, see, also, Rose’s U. S. Notes.)</p> <p>The arrangements between tbe company and tbe salesman in the restrictions as to territory, the forced credit sales, giving of free samples, all operated to such a change of relations as should discharge the guarantors from any liability. {Finóla- Mfg. Co. v. Paulsen, 50 Okl. 591, 151 Pac. 195; Credit Clearance Bureau v. George A. Hochbann etc. Co., '25 Cal. App. 546, 144 Pac. 315; City Messenger etc. Co. v. Postal Telegraph Co., 74 Or. 433, 145 Pac. 657; 2 Page on Contracts, 1126; Brooklyn Life Ins. Co. v. Dutcher, 95 U. S. 269, 24 L. ed. 410; Hall v. French Wine Co., 149 App. Div. 609, 134 N. Y. Supp. 158; Lowrey v. Hawaii, 206 U. S. 206, 27 Sup. Ct. 622, 51 L. ed. 1026, see, also, Rose’s U. S. Notes; Evans v. Lawton, 34 Fed. 233.)</p> <p>A guarantor is discharged by any alteration, whether material or not, and whether or not the alteration is to his injury. {Weiss v. Leichter, 113 N. Y. Supp. 999’; Trenton Iron Co. v. Tassi, 56 Mise. Rep. 659, 107 N. Y. Supp. 580.)</p> <p>The record admits that the plaintiff corporation never qualified to do business within the state, and assuming that the conduct of plaintiff was the transaction of business within the state, it was not entitled to recover. {Katz v. Herrick, 12 Ida. 1, 86 Pae. 873; Continental Life Ins. & Inv. Co. v. Hattabaugh, 21 Ida. 285, 121 Pac. 81; Morris-Roberts Co. v. Mariner, 24 Ida. 788, 135 Pac. 1166; Thomas Mfg. Co. v. Knapp, 101 Minn. 432, 112 N. W. 989; D. M. Osborne & Co. v. Josselyn, 92 Minn. 266, 99 N. W. 890; International Text Book Co. v. Pigg, 76 Kan. 328, 91 Pac. 74.)</p> <p>"Where, upon all facts and circumstances, there is a reasonable chance or likelihood of conclusions of reasonable men differing, the question is one for the jury. (Fleenor v. Oregon Short Line B. Go., 16 Ida. 781, 102 Pae. 897; Park v. Brandt, 20 Ida. 660, 119 Pac. 877.)</p> <p>Instructions should not invade the province of the jury by determining any fact, or leading the jury to believe that the court believes any fact to be proven. (Hughes oh Instructions, 127, and cases cited; 38 Cyc. 164, par. 2, and cases cited.)</p> <p>Interstate commerce does not fall within the provisions of the Idaho statutes requiring filing of articles and designation of agent of all foreign corporations doing business in the state, {Belle City Mfg. Co. v. Frizzell, 11 Ida. 1, 81 Pac. 58; Toledo etc. Scale Co. v. Young, 16 Ida. 187,101 Pac. 257; Foore v. Simon Piano Co., 18 Ida. 167, 108 Pae. 1038; Northern Pac. By. Co. v. Gifford, 25 Ida. 196, 136 Pae.< 1131; International Textbook Co. v. Bigg, 217 U. S. 91, 18 Ann. Cas. 1103, 30 Sup. Ct. 481, 54 L. ed. 678, 27 L. R. A., N. .S., 493, see, also, Rose’s U S. Notes; Butler Brothers 'Shoe Co. v. United States Bubber Co., 156 Fed. 1, 84 C. C. A. 167.)</p> <p>The matters provided in the original contract in this action do not even constitute doing business in the state, but in any event are interstate commerce. {J. B. Watkins Med. Co. v. Holloway, 182 Mo. App. 140, 168 S. W. 290; J. B. Watkins Med. Co. v. Coombes (Old.), 166 Pac. 1072; W. T. Bcmleigh Med. Co. v. Ellis, 132 Ark. 421, 201 S. W. 110.)</p> <p>The question of what facts constitute transaction of interstate commerce within the meaning of the federal constitution aside from the question as to what facts are proven is one of law for the court, and, if under all the facts (being undisputed) the transaction still constitutes interstate commerce, there is nothing to submit to the jury. (W. T. Bawleigh Co. v. Holcomb, 126 Ark. 597, 191 S. W. 215; Oakland Sugar Mill Co. v. Fred W. Wolf Co., 118 Fed. 239, 245, 55 C. C. A. 93; Hughes on Instructions to Juries, sec. 117; 38 Cye., p. 1514B; Soilings v. Bankers’ Union, 63 S. C. 192, 41 S. E. 90.)</p> <p>The suggestions and advice offered in evidence and rejected do not show any alteration or modification of the contract. (W. T. Rawleigh Med. Co. v. Rose, 133 Ark. 505, 202 S. W. 849; W. T. Rawleigh Med.. Co. v. Van Winkle (Ind. App.), 118 N. E. 834.)</p> <p>Where a surety’s contract waives notice of acceptance, the waiver is binding and no notice is required. (W. T. Rawleigh Med. Co. v. Lcmrsen, 25 N. D. 63, 141 N. W. 64, -48 L. R. A., N. S., 198; W. T. Rawleigh Med. Co. v. Walker (Ala. App.), 77 So. 70; Davis v. Wells, Fargo & Co., 104 U. S. 159, 26 L. ed. 686, see, also, Rose’s U. S. Notes; Hibernia Bank & Trust Co. v. Ca/ncienne, 140 La. 969, 74 So. 267, L. R. A. 1917D, 402; Hughes v. Roberts etc. Shoe Co., 24 Ky. Law Rep. 2003, 72 S. W. 799; Davis Sewing Machine Co. v. Rosenbaum (Miss.), 16 So. 340; 20 Cyc. 1411; 12 R. C. L. 1070; annotation, 16 L. R. A., N. S., 379.)</p>

Hon. Ed. L. Bryan, Judge. Action for damages. Judgment for plaintiff. Appeal from order denying new trial. The authorities do not agree upon the question of whether or not turning a vehicle to the left in violation of the law of the road is negligence per se, but the weight of authority is to that effect under the facts in this case. (Lloyd v. Calhoun, 82 Wash. 35, 143 Pac. 458.) The presumption is against the person on the wrong side of the road.

Hon. Edgar C. Steele, Judge. Appeal from an order dissolving injunction. If a good road district could be legally created or organized under the existing statute, it would be a qua,si-municipal corporation, and the qualifications prescribed by the constitution for voters at elections would apply to an election for its creation and organization. (Pioneer Irr.

Hon. Carl A. Davis, Judge. Action íór damages. Judgment for plaintiff. The court erred in instructing the jury that they might disregard entirely the testimony of any witness whom they believed had sworn falsely to any material fact, unless corroborated by testimony, facts or circumstances in evidence established to their satisfaction.