Volume 33 — Idaho Reports

Hon. Wm. A. Babcock, Judge. Action for debt. Judgment for plaintiff. “In addition to jurisdiction of the parties and the subject matter it is necessary to the validity of a judgment that the court should have jurisdiction of the question which its judgment assumes to decide or of the particular remedy or relief which it assumes to grant.” (23 Cyc. 684, 1073; Watkins Land Mortgage Go. v. Mullen, 8 Kan. App. 705, 54 Pac. 921; United States v. Walker, 109 U. S. 25$, 3 Sup.

Hon. Carl A. Davis, Judge. Appellant was convicted of obtaining money under false pretenses. “The general rule that the provisions of the law for drawing and summoning jurors are directory does not permit one to serve on a grand jury where his name was substituted by the sheriff for a name that was propeVly drawn from the jury-box.” (State v. Paramore, 146 N. C. 604, 60 S. E. 502, and eases cited.) “When the defendant has not been held to answer before the indictment, he may…

Hon. Charles P. McCarthy, District, for Judge. attachment bond. 'Judgment for plaintiff. Action on Where an attachment is dissolved upon motion, the weight of authority favors the rule that reasonable attorney’s fees and disbursements incurred upon such motion are properly recoverable, although there are many cases holding the contrary. (Jacobus v. Monongahela Nat. Bank, 35 Fed. 395; Patton v. Garrett, 37 Ark. 605; Commonwealth v. Meyer, 170 Pa. 380, 32 Atl. 1044; First Nat.

Judicial District, for Ada County. Hon. Charles P. McCarthy, Judge. Action for damages. Judgment of nonsuit. On motion by the defendant for nonsuit after the plaintiff has introduced his evidence and rested his case, the defendant must be deemed to have admitted all the facts of which there is any evidence and all the facts which the evidence tends to prove, and the evidence must be interpreted most strongly against the defendant.

Hon. F. J. Cowen, Judge. Suit to determine priority to the right to use the water of Jagles Springs. Judgment for plaintiffs. The appellant being the first to appropriate the waters to a beneficial use is entitled to the priority of use of said waters.

<p>Criminal Law — Public Range — Sufficiency of Evidence.</p> <p>Evidence examined and found to be insufficient to sustain tbe verdict.</p>

Hon. James B. Bothwell, Judge. Appellant was convicted of having violated C. S., sec. 8333. The complaint in this case is insufficient, in that it is not alleged that the defendant committed the act complained of wrongfully, unlawfully, knowingly and intentionally. Such allegations are necessary in such a complaint, for if there is no knowledge or intent to commit a crime, there is no crime. {State v. Omaechevviariti, 27 Ida. 797, 152 Pac. 280.)

Hon. Carl A. Davis, Judge. Action for damages. Judgment for plaintiff. In proving values in the ordinary case, it is not necessary to qualify the witness as an expert. (McKissick v. Oregon Short Line By. Go., 13 Ida. 195, 89 Pac. 629; Rankin v. Caldwell, 15 Ida. 625, 99 Pac. 108.) It is proper to permit a witness to give his estimate as to values, after having stated his grounds for the estimate.

Honorable Charles P. McCarthy, Judge. Action by corporate creditor to recover from stockholder unpaid balance on par value of stock issued in exchange for fraudulently overvalued property. Judgment for .plaintiff. Stockholders who are not original incorporators, and who buy stock in good faith, relying upon its being paid-up stock and nonassessable, are good faith purchasers and not liable for debts of the corporation. (Young v. Erie Iron Go., 65 Mich.

<p>Husband and Wife — Community Pboperty — Evidence—Conflict ot Evidence.</p> <p>1. All property acquired by either spouse during coverture is presumed to be community property, and the burden of proof rests upon the party who asserts it is separate property to show such fact by a preponderance of evidence.</p> <p>1. Por authorities on what constitutes community property, see notes in 86 Am. Dec. 628; 126 Am. St. 100.</p> <p>Authorities passing on the question as to whether secret profits accruing during marriage in connection with property belonging to separate estate of either spouse is community property are collated in a note in 31 L. B. A., N. S., 1092,</p> <p>2. The separate property of either spouse may undergo mutations and changes during the marriage relation and still retain its separate character, yet the proof to trace and identify it in its changed condition must be clear and satisfactory.</p> <p>3. An appellate court will not disturb the judgment of a trial court because of conflict in the evidence, where there is sufficient proof, if uneontradieted, to sustain it.</p>

Hon. Charles P. McCarthy, Judge. Motion to dismiss appeal. Where an appeal has been perfected before entry of judgment, no jurisdiction is thereby conferred on this court, and the appeal should be dismissed for want of jurisdiction. {Yeomans v. Lmnberton, 29 Ida. 801, 162 Pac. 674; Aihey v. Oregon 8.

Hon. James R. Bothwell, Judge. Actions for damages to crops for failure to deliver water in accordance with water deeds. Judgments for plaintiffs. “Where a special finding of fact is inconsistent with the general verdict the former controls the latter and the court must give judgment accordingly.” (C. S., sec. 6861.) It was clearly the duty of the court to receive the special interrogatories and their answers thereto by the jury and their verdict thereon.

<p>Appeal and Error — Sufficiency of Evidence to Support the Judgment. *■</p> <p>Evidence examined anj held sufficient to support - the findings of the trial court.</p>

Hón. Carl A. Davis, Judge. Action for rescission of contract. Judgment for defendants.

Hon. Charles P. McCarthy, Judge. Action to recover for services rendered. Judgment for plaintiff. The instructions given by the court and the requested instructions also given by the court could not be read and considered together as a whole; they could not reasonably and fairly be harmonized, for the reason that they were inconsistent and contradicted each other, and therefore it was error for the court to give them. (Tarr v. Oregon Short Line B. Go., 14 Ida. 192, 125 Am.

Hon. Carl A. Davis, Judge. Action by a bank depositor to recover balance on deposit. Judgment for plaintiff. The law is so well established as to require no citation of authorities that the supreme court will not disturb the verdict of a jury where there is a substantial conflict in the testimony. (Hellebrant v. Kent, 29 Ida. 89, 157 Pac. 780; Jensen v. Bumgarner, 28 Ida. 706, 156 Pac. llé.^

<p>APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Chas. P. McCarthy, Judge.</p> <p>Prosecution for the crime of transporting intoxicating liquor into the State of Idaho. Judgment of conviction, from which defendant appeals.</p> <p>Transportation means the act of the carrier, not the act of the shipper. (10 C. J. 37, 38; Van Zile, Bailments, secs. 19, 395; 6 C. J. 1099; Meehem, Agency, secs. 26, 41; State v. Carson, 147 Iowa, 561, 140 Am. St. 330, 126 N. W. 698; Alexander v. Atlantic etc. B. Co., 144 N. C. 93, 56 S. E. 697; Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 5 Sup. Ct. 826, 29 L. ed. 158', see, also, Rose’s U. S. Notes; State v. Pickett, 47 S. C. 101, 25 S. E. 46; State v. Pope, 79 S. C. 87, 60 S. E. 234; Ogdensburg etc. B. Co. v. Pratt, 22 Wall. (U. S.) 123, 22 L. ed. 827, see, also, Rose’s U. S. Notes; Sturgeon Bay etc. Harbor Co. v. Leathern, 164 111. 239, 45 N. E. 422; United States v. Sheldon, 2 Wheat. (U. S.) 119, 4 L. ed. 199, see, also, Rose’s U. S. Notes.)</p> <p>The overt act of the carrier, if innocent, cannot be imputed to the shipper as criminal; and even though Criminal, cannot be imputed to the shipper if the carrier acts independently and without community of intent with shipper. (People v. Collins, 53 Cal. 185; State v. Jamen, 22 Kan. 498 ;• State v. Currie, 13 N. D. 655, 112 Am. St. 687, 102 N. W. 875, 69 L. R. A. 405; State v. Hayes, 105 Mo. 76, 24 Am. St. 360, 16 S. W. 514; Bishop’s Crim. Law, 7th ed., sec. 241.)</p> <p>Evidence of other offenses cannot be considered upon the probability of appellant’s having committed the crime charged. (18 Ann. Cas. 846, note; Underhill, Crim. Ev., 2d ed., sec. 87; 1 Bishop, New Crim. Pro., sec. 1124; Wig-more, Evidence, sec. 305; People v. Hurley, 126 Cal. 351, 58' Pac. 814; State v. Marshall, 2 Kan. App. 792, 44 Pac. 49; 1 Wharton, Crim. Ev., 10th ed., p. 59; State v. Eder, 36 Wash. 482, 78 Pae. 1023; 16 C. J. 81, 588-592; 8 R. C. L. 206, and n. 5; Proctor v. State, 8 Old. Cr. 537, 129 Pae. 77; Ghipman v. People, 24 Colo. 520, 52 Pac. 677; People v. King, 23 Cal. App. 259, 137 Pae. 1076; State v. Hughes, 3 Kan. App. 95, 45 Pac. 94; State v. Reynolds, 5 Kan. App. 515, 47 Pac. 573; Porath v. State, 90 Wis. 527, 48 Am. St. 954, 63 N. W. 1061.)</p> <p>One who commits a crime through the instrumentality of an innocent agent is punishable as a principal. (16 C. J. 124, and cases cited; Johnson v. State, 142 Ala. 70, 38 So. 182, 2 L. R. A., N. S., 897, and note; Hendry v. State, 147 Ga. 260, 93 S. E. 413.)</p> <p>To sustain a conviction for illegally transporting intoxicating liquor, it is not necessary that the defendant shall have personally transported the same. (Hendry v. State, supra; State v. Warburton, 97 Wash. 242, 166 Pac. 615; State v. Blauntia, 170 N. C. 749, 87 S. E. 101; Combs v. Commonwealth, 162 Ky. 86, 172 S. W. 101; Town of Harts-ville v. McCall, 101 S. C. 277, 85 S. E. 599; Bridgeforth v. State, 15 Ala. App. 502, 74 So. 402.)</p> <p>Evidence of other offenses may be admitted upon the question of intent, motive, or for the purpose of showing a system, and sometimes for purpose of corroboration. (State v. Lancaster, 10 Ida. 410, 78 Pac. 1081; State v. Henderson, 19 Ida. 524, 114 Pae. 30; State v. Hammock, 18 Ida. 424, 110 Pac. 169; State v. Driskill, 26 Ida. 738, 145 Pac. 1095; State v. Schmitz, 19 Ida. 566, 114 Pac. 1; State v. O’Neil, 24 Ida. 582, 135 Pac: 60; State v. Davis, 6 Ida. 159, 53 Pac. 678; State v. McGann, 8 Ida. 40, 66 Pac. 823.)</p> <p>Instructions identical, in the substance thereof, with those given by the court in this case have been approved by our court in State v. Roolee, 10 Ida. 388, 79 Pac. 82; State v. Maguire, 31 Ida. 24, 169 Pae. 175.</p>

<p>APPEAL from the District Court of the Fourth Judicial District of the State of Idaho, for Gooding County. Hon. Wm. A. Babcock, Judge.</p> <p>Action to recover damages for breach of covenant in a</p> <p>deed. Judgment for plaintiff.</p> <p>In the United States the covenant of seizin, and that of a good right to convey, are regarded as synonymous, the covenant of seizin being defined as an assurance by the grantor to the purchaser that such grantor has the very estate in quantity and quality which he purports to convey. (7 R. C. L., Covenants, sec. 45; Wetzel v. Rich Creek, 53 Ohio St. 62, 40 N. E. 1004 ; 2 Devlin on Deeds, 3d ed., sec. 885.)</p> <p>When, therefore, the grantor has no title to a portion of the land which is described in the conveyance, and is not in possession, the covenant is broken when made, and so broken upon the execution of the deed. (11 Cyc. 108'5; 2 Devlin on Deeds, 3d ed., sec. 889; Messer v. Oestreich, 52 Wis. 684, 10 N. W. 6; 7 R. C. L. 1186; Egan v. Martin, 71 Mo. App. 60; Lawrence v. Montgomery, 37 Cal. 183; Salmon v. Vallejo, 41 Cal. 481; Bull v. Beiseker, 16 N. D. 290, 113 N. W. 870, 14 L. R. A., N. S., 514.)</p> <p>Defendants purchased said lands subject to the right of said railroad company, knowledge of which was imputed to them by act of Congress. (Schurger v. Moorman, 20 Ida. 97, Ann. Cas. 1912D, 1114, 117 Pac. 122, 36 L. R. A., N. S., 313; Memmert v. McKeen, 112 Pa. St. 315, 4 Atl. 542; Sandum v. Johnson, 122 Minn. 368, Ann. Cas. 1914D, 1007, 142 N. W. 878, 48' L. R. A., N. S., 619; Goodman v. Eeüig, 157 N. C. 6, 72 S. E. 866, 36 L. R. A., N. S., 1004.)</p> <p>A covenant of warranty is broken at the time of eviction. (7 R. C. L. 1147, sec. 60; 15 C. J. 1282, sec. 137; Warren v. Stoddart, 6 Ida. 692, 59 Pac. 540; notes, 122 Am. St. 852.)</p> <p>A covenant of warranty is a covenant that runs with the land ánd inures to the benefit of remote grantees. (Notes, 82 Am. St. 686, 687; 15 C. J. 1248, sec. 64 (27); 7 R. O. L. 1172, see. 90, and 1143, sec. 56.)</p> <p>The term “right of way” does not include the terms “grounds adjacent to such right of way,” sometimes designated “station grounds.” The latter term is used in the act of Congress of March 3, 1875 (18' Stats, at Large, p. 482). (Oregon Short Line R. Co. v. Stalker, 14 Ida. 362, 371, 94 Pac. 56, 59; Oregon Short Line R. Co. v. Gooding, 6 Ida. 773, 59 Pae. 821.)</p> <p>Knowledge of the existence of defects in the title cannot defeat the right to rely upon a positive covenant, neither can exceptions or reservations be shown by parol testimony to exist in a deed. (11 Cyc. 1066 (c); Newmyer v. Roush, 21 Ida. 106, Ann. Cas. 1913D, 433, 120 Pac. 464; West Coast Mfg. & Inv. Co. v. West Coast Improvement Co., ,25 Wash. 627, 66 Pac. 97, 62 L. R. A. 763; 2 Devlin on Real Estate, p. 1690, sec1. 897.)</p>

Hon. Carl A. Davis, Judge. Suit by vendors of real property for foreclosure of vendees’ interest therein and for sale thereof. Decree for plaintiffs. In a contract for the sale of land where the vendor retains title, said vendor cannot bring an action to foreclose a vendor’s lien. The vendor’s remedy in such a case is upon the contract, either to enforce specific performance or in an action at law.

Hon. Ed. L. Bryan, Judge. Appellant was convicted of having intoxicating liquor in his possession unlawfully. An information which charges more than one offense is defective. (Sec. 7681, Ida. Rev. Codes; State v. Gruber, 19 Ida. 692, 115 Pac. 1; Clarice v. State, 5 Okl, Cr. 704, 115 Pae. 377; Grant v. State, 6 Okl. Cr. 172, 117 Pac. 1100; KimbreTl v. State, 7 Okl.

<p>Criminal Law — Demurrer to Information — Future Prosecution— Election.</p> <p>1. If a demurrer to aa information is allowed, the judgment is final and a bar to a future prosecution for the same offense, unless the court directs the prosecuting attorney to file another information, or, in case of an indictment, directs the ease to be resubmitted to the same or another grand jury; but in order that the action of the court in sustaining a demurrer may be a bar to a futpre prosecution, proof must be submitted that the offense thereafter charged is the same.</p> <p>2. C. S., see. 8829, does not authorize inclusion in an information of more than one offense, except when the offenses charged relate to the sales of intoxicating liquor.</p> <p>3. The fact that two offenses are charged in a complaint before a committing magistrate does not deprive the prosecuting attorney of power to file an information charging an offense for which the accused has been held to answer.</p> <p>4. Where an information charges more than one offense, contrary to the provisions of the statute, a demurrer thereto on the ground of duplicity in the information should be granted.</p> <p>5. Where an information charges more than one offense, a motion on the part of defendant that the state be required to elect upon which charge it will proseeute should be granted at the opening of the trial, and where the motion is renewed at the close of the state’s evidence, it is prejudicial error to deny the same.</p> <p>4. Time and method of objecting to indictment or information on ground of dupiieity, see note in 10 Ann. Cas. 1004.</p>

Hon. Carl A. Davis, Judge. Defendant was convicted of having in his possession intoxicating liquor, and appeals. When a demurrer is allowed to an information, the court is the only power or authority by which the prosecution can be continued, and its right is exercised by adjudicating at the time of allowing the demurrer that in its opinion the objection may be avoided in a new indictment or information, and without this being done the prosecution is at an end.

Hon. Ed. L. Bryan, Judge. Proceeding to assess benefits and damages in drainage district. “Where the testimony in such a ease is conflicting, and from it reasonable men might draw different conclusions, since there is evidence to support both theories of the case, the judgment of the trial Court will not be disturbed.” (iJones v. Yanausdeln, 28 Ida. 743, 156 Pac. 615; Little v. Little, 29 Ida. 292, 158 Pac. 559; Hufton v. Hufton, 25 Ida. 96, 136 Pac. 605.) Even if it could…

Hon. Charles F. Reddoch, Judge. Appellants were convicted of violating C. S., secs. 2439 and 2440.

Hon. Ed. L. Bryan, Judge. Appeal from a judgment of the district court quieting title to the use of the waters of the Weiser River. The finding of the court placing all users of water from the Weiser River on a common level, ignoring the priorities of the appropriations and granting to all users a common and equal right to the use of water for irrigation of crops regardless of the date of the several appropriations, was gross error.

Hon. Carl A. Davis, Judge. Action of ejectment. Judgment for plaintiff. An action of ejectment will not lie to recover a strip of ' land embraced in the description contained in a deed, but not intended to be conveyed. (Butler v. Barnes, 60 Conn. 170, 21 Atl. 419, 12 L. R. A. 273.) No relief Can be afforded which is not founded on the pleadings. (Davis ^v. Pacific Tel. etc. Go., 127 Cal. 312, 57 Pae. 764, 59 Pae. 698; Snoderly v. Bower, 30 Ida. 484, 166 Pae. 265; Comp.

<p>Appeal and Error — Place op Hearing Appeal — Becord on Appeal —Guardian and Ward — Action Against Former Ward on Claims Allowed During Guardianship — Action -by Guardian Against Former Ward.</p> <p>1. Tinder the constitution of this state, the legislature may not ■prescribe the time or place of hearing and determining any cause pending on appeal in the supreme court.</p> <p>2. On appeal from an order of the court granting or denying a contested motion, the action of the court cannot be reviewed unless the record contains a certificate identifying the papers presented to and used in the consideration of the motion.-</p> <p>3. The question as to whether a cross-complaint states a cause of action so as to invest the trial court with jurisdiction to consider the matters therein set forth is fundamental and presents itself on appeal from a judgment.</p> <p>4. A personal action cannot be maintained to recover for services rendered to or money advanced for the benefit of an incompetent ward under guardianship, against the ward after he has been restored to competency.</p> <p>5. The procedure in a probate court with relation to the estate of an incompetent person is in the nature of a proceeding in rem.</p> <p>6. A decree of a probate court made on the settlement of the final account of a guardian, adjudging that a certain sum is due the guardian from the ward, cannot be made the basis. of a personal action against his former ward after he has been restored to competency. Such sum must be recovered, if at all, out of his former ward’s estate..</p>

Hon. John M. Flynn,Judge. Action for damages for death caused by negligence. Judgment for plaintiff. Order granting new trial. “In the United States the tendency is to extend, rather than narrow, the scope of the doctrine of res gestae.

<p>Appeal — Rules—Filing Brief — Delay in — Specification of Errors.</p> <p>1. Failure to file brief within the time prescribed by Rule 45 is not a ground for dismissal of appeal.</p> <p>2. The errors relied upon for reversal should be distinctly enumerated in appellant’s brief in conformity with Rule 42. However, in this case there is a distinct enumeration of the errors relied upon in the argument in the brief. Therefore, we do not feel constrained to entertain a motion to strike the brief from the files.</p>

APPEAL .from the District Court of the Third Judicial District, for Ada County. Hon. Carl A. Davis, Judge. Action to recover money paid under duress. Judgment for plaintiff. Hugh E. McElroy, for Appellant. Parties acquiring interests in the same canal are under no obligation to maintain the canal for the benefit of their co-owners, and hence are under no obligation to make deliveries for the benefit of their co-owners. {Nampa & Meridian Irr.

<p>APPEAL from the District Court of the Third Judicial District, for Owyhee County. Hon. Ed. L. Bryan, Presiding Judge.</p> <p>Motion to strike reporter’s transcript from the record, and to dismiss appeal. Motion to strike granted.</p>

Hon. Carl A. Davis, Presiding Judge. From a conviction of the crime of grand larceny, defendant appeals. There is a distinction between acts which may by statute be made prima facie evidence of certain facts and acts which cannot be given such effect without denying a defendant the due process of law. (Voght v. State, 124 Ind. 358, 24 N. E. 680; State v. Divine, 98 N. 0. 778, 48 S. E. 477; People v. Cannon, 139 N. T. 32, 36 Am.

<p>Appeal and Error — Questions Reviewable — Mechanic’s Lien — Defects — Waiver—Findings.</p> <p>1. As a general rule, a party cannot avail himself of a defense for the first time in the appellate court; nor will a question not raised in the trial court be considered on appeal.</p> <p>2. A defect or irregularity in the claim of lien is waived by a failure to make timely objection thereto.</p> <p>3. A finding that respondent had not appropriated property to his own use and benefit is sustained by evidence which shows that a sale of the property by him to a third party was ratified by the proper officers of the company owning the property.</p> <p>2. For cases discussing waiver of mechanics’ liens, see note in 41 Am. Dec. 221.</p>

Hon. R. N. Dunn, Judge. The defendant was convicted of burglary in the second degree. “To constitute burglary the felonious intent must exist at the time of the breaking and entry, and it is not enough if it is formed after the entry or even before the entry, if after the breaking.” (6 Cyc. 197.) “The entry must appear to be made with the immediate intent to commit a felony as distinguished from the previous intent to procure admission to the dwelling.” (4 R. C. L. 428.)…

<p>APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. Ed. L. Bryan, Judge.</p> <p>Action contesting the admission of a purported will to probate. Judgment for plaintiff.</p> <p>If there is any doubt or conflict in the evidence, it arises from a comparison of the handwriting of the proposed will with the voluminous exhibits which are Conceded to have been written by William A¡ Black.</p> <p>The “substantial evidence” upon which the verdict of the jury must stand or fall exists entirely within the written exhibits and not in the opinions expressed by the witness.</p> <p>“Where a trial has been had entirely upon depositions and the trial court has not seen and heard the witnesses, the appellate court is in as favorable position for judging of the truthfulness of the witnesses and weight of the evidence as the trial judge, and will consider the same as if originally heard in the appellate court.” (Roby v. Roby, 10 Ida. 139, 77 Pac. 213; Stoneburner v. Stoneburner, 11 Ida. 603, 83 Pac. 938; Van Camp v. Emery, 13 Ida. 202, 89 Pae. 752; Van Camp v. Breyer, 13 Ida. 209, 89 PaC. 754; Village of Sandpoint v. Doyle, 14 Ida. 749, 95 Pae. 945, 17 L. R. A.,v N. S., 497; Council Imp. Co. v. Draper, 16 Ida. 541, 102 Pae. 7; Spofford v. Spofford, 18 Ida. 115, 108 Pae. 1054; Parsons v. Wrble, 19 Ida. 619, 115 Pac. 8; Jones v. Marshall, 25 Ida. 678, 135 Pac. 841; Ainslie v. Idaho World Printing Co., 1 Ida. 641.)</p> <p>This court has never departed from the rule that it will not disturb a judgment entered upon conflicting evidence where any part of the evidence has been given by the witnesses in person before the trial court. (Jones v. Marshall, 24 Ida. 678, 135 Pae. 841.)</p> <p>The evidence being conflicting, and there being substantial evidence to support the verdict, this court will not disturb the verdict. (Hardy v. Ward, 31 Ida. 1, 168 Pae. 1075; Casady v. Stuart, 29 Ida. 714, 161 Pac. 1026; Hemphill v. Moy, 31 Ida. 66, 169 Pac. 288; Brown v. Hardin, 31 Ida. 112, 169 Pac. 293; Labonte v. Davidson, 31 Ida. 644, 175 Pac. 588; Fleming v. Benson, 32 Ida. 103, 178 Pae. 482.)</p>

Hon. F. J. Cowen, Judge. Petition for the settlement of final account of guardian of an incompetent person. Judgment that guardianship proceedings were void ab initio.

<p>Railroads — Operating Property — Terminals—Taxation.</p> <p>1. Under onr statute, operating property of a railroad is assessable for taxation by the state board of equalization and nonoperating property by the assessor of the county in which it is situated.</p> <p>2. In the statute defining operating property of a railroad, the word “terminal” • means property used at the time of the assessment for the purpose of furnishing terminal facilities in the operation of the railroad.</p> <p>3. Where a county assessor inseparably commingles property which he has jurisdiction to assess with property which he has no jurisdiction to assess in his description thereof on the assessment-roll, the entire assessment is void.</p> <p>4. Where the assessment of property is void, it is not incumbent upon the owner thereof to tender payment of the taxes thereon as a condition precedent to his right to cancel a tax sale certificate based upon- such void assessment.</p>

Hon. Robert N. Dunn, Judge. Action for divorce. Judgment for plaintiff and order for. attorney fees made after judgment. Under the evidence and the findings of fact made by the trial court, the distribution of the community property made by the court was unjust and inequitable,' Respondent contributed nothing to the community property, and by her conduct forfeited all right to share in it.

<p>Constitutional Law — Highway Distbicts — Bonds—Elections.</p> <p>1. The constitution, art. 8, see. 3, prohibits a highway district from incurring any indebtedness, except for ordinary and necessary expenses authorized by the general laws of the state, in excess of the income and revenue provided for it for the year in which such indebtedness is sought to be incurred, without the assent of two-thirds of the qualified electors thereof voting at an election to be held for that purpose, nor unless, before or at the time of incurring such indebtedness, provision shall be made for the collection of an annual tax sufficient to pay the interest on such indebtedness as it falls due, and also to constitute a sinking fund for the payment of the principal thereof, within twenty years from the time of contracting the same.</p> <p>2. In an election to determine whether ot not a highway district shall issue and sell bonds, where the purposes for which the money to be raised thereby constitute separate and distinct proposals, they must be separately stated in order that a voter may cast his vote in favor of one and against the other if he desires to do so.</p> <p>2. Necessity of stating singly propositions submitted to voters, see notes in 2 Ann. Cas. 369; 12 Ann. Cas. 851; Ann. Cas. 1912D, 319.</p>

Hon. Edgar C. Steele, Judge. Action to foreclose mortgage and to cancel release thereof. Judgment for plaintiff.

Hon. R. N. Dunn, Judge. Suit to foreclose mortgage. Judgment for plaintiff. The mortgagor having sold the land, cannot extend the statute by any act of his. (California Bank v. Brooks, 126 Cal. 198, 59 Pac. 302; Brandenstein v. Johnson, 140 Cal. 29, 73 Pac. 744; Cook v. Prindle, 97 Iowa, 464, 59 Am. St. 424, 66 N. W. 781; Cottrell v. Shepherd, 86 Wis. 649, 39 Am. St. 919, 57 N. W. 983; George v. Butler, 26 Wash. 456, 90 Am.

Hon. Eobert M. Terrell, Judge. Action for damages for assault. 'Judgment for defendant.

<p>Criminal Law — Cirodmstantial Evidence.</p> <p>In order to sustain a conviction based solely on circumstantial evidence, the circumstances must be consistent with the guilt of the accused and inconsistent with his innocence, and incapable of explanation on any other reasonable hypothesis than that of guilt,</p>

<p>Judgment — Vacatioít—Motion foe — Time—Jurisdiction—Judgment-roll.</p> <p>1. The district court is without jurisdiction to entertain a motion to vacate a judgment upon any of the statutory grounds, unless the motion is made within the time limited by the statute.</p> <p>2. The district court may at any time vacate or set aside its judgment previously entered when it is apparent from the face of the judgment-roll that such judgment is void.</p> <p>3. When the district court has lost its jurisdiction to entertain a motion to vacate its judgment, it is without jurisdiction to set its judgment aside unless from the face of the judgment-roll it is void, except where an independent action has been brought for that purpose.</p> <p>4. Under O. S., see. 6901, in case the complaint be not answered by the defendant, the judgment-roll consists of the summons with the affidavit of proof of service, the complaint with a memorandum indorsed thereon that the default of the defendant in not answering was entered and a copy of the judgment. Under this statute neither the affidavit for nor the order of publication is a part of the judgment-roll.</p> <p>1. Duration of power of court to open or vaeate judgment, see note in 52 Am. St. 795.</p>

Hon. F. J. Cowen, Judge. Suit to quiet title. Judgment for defendant. The appeal is from an order for a judgment, which has not been entered, and this court is without jurisdiction to consider the same. (Oliver v. Kootenai County, 13 Ida. 281, 90 Pac. 107; Santti v. Hartman, 29 Ida. 490, 161 Pae. 249.)

<p>Statutory Construction — Two-mile Limit Law — Grazing Bights— Partnership — Owner or Possessory Claimant — Damages—Evidence.</p> <p>1. Dnder the provisions of C. S., sees. 1908 and 1909, partnership sheep have no lawful right to graze within two miles of the dwelling-house on the land or possessory claim of one of the partners; nor can the partner sustain any damages by reason of the fact that other sheep have grazed thereon. Such grazing invadeü no legal right of the partnership.</p> <p>2. One of the purposes of the provisions of the statute above referred to is to protect the public range for the benefit of the livestock of the owner or possessory claimant within two miles of his dwelling-house.</p> <p>3. Proof of loss in the weight of partnership lambs and loss in the wool clip of partnership sheep is not competent evidence to establish damages resulting from the trespass of other sheep on the homestead of one of the partners, nor from the destruction of pasturage thereon.</p>

<p>Prohibition — Dismissal of Action — Affirmative Belief Sought by Cross-complaint.</p> <p>1. Under C. S., see. 6830, a plaintiff has an absolute right to dismiss his aetion, providing a counterclaim has not been filed or affirmative relief sought by the cross-complaint or answer of defendant.</p> <p>2. In order for a cross-complaint to be sufficient to prevent plaintiff from dismissing his action, it must state faets sufficient to entitle the cross-complainant to affirmative relief.</p> <p>3. A. cross-complaint filed by a defendant in an action for the adjudication of water rights from a stream, but which states only that the cross-complainant is the owner of certain lands; that he has appropriated water for their irrigation and used the water each and every irrigation season thereafter upon such lands; that the lands are arid in character and require artificial irrigation for the production of crops, does not state facts which entitle the cross-complainant to affirmative relief.</p> <p>4. Upon dismissal of an action by a plaintiff, the court thereby loses jurisdiction, apd a writ of prohibition may issue to prevent further proceedings in the action.</p>

Hon. Robert M. Terrell, Presiding Judge. Action on contract. Judgment for plaintiff, from which he appeals. Taking by the jury to its jury-room reguested instructions which were refused by the court was .error. (State v. Buster, 28 Ida. 110, 152 Pae. 196.) Error was committed at the trial by the court in refusing to accept the first two verdicts returned, and. in accepting the last verdict of the jury in lieu thereof. (22 Ency.

Hon. Robert M. Terrell, Judge. Action to recover on a policy of fire insurance. Default judgment for plaintiff. Appeal from order vacating the judgment and setting aside the default. The court abused its discretion and erred in holding a sufficient showing had been made to set aside the default and judgment. (Heaton v. Peterson, 6 Ind.

Hon. Vm. A. Babcock, Judge. Action on contract. Judgment by default set aside. The district court erred in sustaining the motion of defendant to set aside the judgment. There was no sufficient showing of mistake, inadvertence, surprise or excusable neglect on the part of the defendant. The proposed answer of the defendant is not a sufficient showing of merit to constitute a defense to the action. The district court abused its discretion in sustaining the motion.

Hon. Wm. A. Babcock, Judge. Action to enjoin a corporation from performing certain acts pursuant to purported amendments to its articles of incorporation and by-laws. Judgment for plaintiff, and order overruling motion to dissolve injunction. This act affects all corporations of the kind mentioned where the number of stockholders exceeds three hundred. The classification is not unreasonable. (Continental Inv.

Hon. Wm. A. Babcock, Judge. Proceeding for judicial review of acts of a stockholder’s meeting whereby articles of incorporation and by-laws were declared to be amended. Judgment for' petitioners.

<p>Intoxicating Liquor — Forfeiture of Automobile Used in Transportation — Conditional Sale Contracts.</p> <p>1. The unlawful use of an automobile, without the knowledge of its owner, to transport intoxicating liquor does not forfeit his right to claim and recover possession of it, nor render it subject to confiscation.</p> <p>2. Conditional sales, like other contracts, are to be construed Recording to the intent of the parties as disclosed by the terms employed when’ they are not ambiguous.</p>

<p>Appeal and Error — Conflict in Evidence.</p> <p>An appellate court will not disturb the verdict of a jury or the judgment of a trial court because of conflict in the evidence when there is sufficient proof, if uncontradicted, to sustain it.</p>

Hon. William A. Babcock, Judge. Prosecution for the crime of rape. Judgment of conviction. Anything which renders the statutory right of peremptory challenge materially less valuable is an injury to a party within the meaning of the statute. (Searle v. Roman Catholic Bishop, 203 Mass. 493, 17 Ann. Cas. 340, 89 N. E. 809, 25 L. R. A., N. S., 992, citing the following cases: Hildreth v. Troy, 101 N. T. 234, 54 Am. Rep. 686, 4 N. E. 559; Welch v. Tribtme Pub.

<p>APPEAL from the District Court of the Fifth Judicial District, for Power County. lion. Robert M. Terrell, Judge.</p> <p>Action to recover balance on account. Judgment for plaintiff.</p> <p>The jury decides the question upon the'evidence, not upon the pleadings. It would be a vicious practice to require the pleadings to be sent out with the jury to their jury-room. (Spaulding v. Saltiel, 18 Colo. 86, 31 Pac. 486.) It would not conduce to a full and fair trial if inexperienced jurors were left to determine the issues from the pleadings. (Kansas City, Ft. Scott, S. & M. B. B. Go. v. Eagan, 64 Kan. 421, 67 Pac. 887; Granite Gold Mining Co. v. Maginness, 118 Cal. 131, 50 Pae. 269; Kansas City, Ft. Scott S. & M. Co. v. Dalton, 66 Kan. 799, 72 Pac. 209.)</p> <p>In order that the pleadings should go to the jury, it would necessitate their introduction in evidence. (Powley v. Swenson, 146 Cal. 471, 80 Pac. 722, 1. c. 727.) The practice cannot be approved in any case. {Stevens v. Maxwell, 65 Kan. 835, 70 Pae. 873.)</p> <p>The judgment of dismissal or nonsuit, under the circumstances of this ease, is a final adjudication of the case. {McGuire v. Bryant Lumber Co., 53 Wash. 425, 102 Pac. 237; Smith v. Progressive Irr. List., 28 Ida. 812, 156 Pae. 1133, Black on Judgments, 2d ed., sec. 712.)</p> <p>A decision of a court upon a claim in the former action is as effectually a bar to recover in another suit upon the same cause of action as that of a jury. {Glenn v. Savage, 14 Or. 567, 13 Pac. 442; Goodman v. Malcom, 5 Kan. App. 285, 48 Pac. 439; Indian Land Co. v. Shoenfelt, 135 Fed. 484, 68 C. C. A. 196.)</p> <p>A judgment of nonsuit is a final judgment within the meaning of the provisions of sec. 6830, subd. 5. {Spongberg v. First Nat. Bank, 15 Ida. 671, 99 Pae. 712.)</p> <p>The sending of pleadings to the jury-room is not reversible error, in the absefice of a showing of prejudice. {Powley v. Swensen, 146 Cal. 471, 80 Pae. 722.) The sending of papers to the jury-room is in the discretion of the trial court. {McLean v. Crow, 88 Cal. 644, 26 Pac. 596.) The appellant must show some prejudice in the court’s action in sending pleadings to jury. {Hankins v. Hankins (Iowa), 79 N. W. 278; Odd Fellows Hall v. Masser, 24 Pa. 507, 64 Am. Dec. 677; Franklin v. Atlanta & C. Air Line By. Co., 74 S. C. 332, 54 S. E. 578; Shulsz v. McWilliams, 104 Ind. 512, 3 N. E. 243; Snyder v. Braden, ^58 Ind. 143; Summers v. Greathouse, 87 Ind. 205; Paxton v. Woodward, 31 Mont. 195, 107 Am. St. 416, 3 Ann. Gas. 546, 78 Pae. 215; 14 R. C. L. 728; Bluedorn v. Mo. Pac. By. Co., 121 Mo. 258, 25 S. W. 943.)</p> <p>A judgment of nonsuit is not res judicata, and is not a decision on the merits nor a bar to another action between the same parties. (Berlin Machine Works v. Dehlbom, Lumber Co., 29 Ida. 494, 160 Pac. 746; 23 Cyc. 1136, par. 6; Woods v. Lindvall, 48 Fed. 70, 1 C. C. A. 37; Northern Pac. B. Co. v. Spencer, 56 Or. 250, 108 Pac. 180; Smalley v. Bio Grande, 34 Utah, 423, 98 Pac. 311; City of San Francisco v. Brown, 153 Cal. 644, 96 Pac. 282; Craver v. Christian, 34 Minn. 397, 26 N. W. 8; Andrews v. School District, 35 Minn. 70, 27 N. W. 303; Gates v. McLean, 2 Cal. Unrep. 636, 9 Pac. 938; Bobinson v. American Car Foundry Co., 135 Fed. 693, 68 C. C. A. 331; Flemming v. Hawley, 65 Cal. 492, 4 Pac. 494; Hoover v. King, 43 Or. 281, 72 Pac. 880, 65 L. R. A. 790; Hudson v. Bemington Paper Co., 71 Kan. 300, 6 Ann. Cas. 104, 80 Pac. 568.)</p>

Hon. James G. Gwinn, Judge. Appeal from an order setting aside default and vacating judgment. “While it may not be good practice to embody in the same instrument an answer and a cross-complaint, we know of no provision of the statute prohibiting that method of pleading, and it is clear to us that a cross-complaint is pleaded in this action which was not answered.” (Western Loan & Sav■ Co. v. Smith, 12 Ida. 94, 85 Pac. 1084.) While each cause of action must be complete in…

<p>Divorce — Judgment—Findings—Evidence—Sueeicienct or.</p> <p>A judgment will be reversed when the findings are not supported by the evidence.</p>

Hon. Robert M. Terrell, Judge. Action for damages for seduction. Order denying motion for change of venue. The only purpose of a notice of motion is to bring the opposite party into court at the time of the presentation of the motion, and where the opposite party actually comes into court and participates in the argument of the motion when made, he thereby waives the requirement for notice of motion. (Herman v. Santee, 103 Cal. 519, 42 Am.

<p>Statute of Frauds — Contracts—Full Performance — Effect of— Consideration — Irrigation — Water Bights — Action to Quiet Title to — Complaint—Essential Allegations of — Priorities— Findings.</p> <p>1. The statute of frauds does not apply to a contract which has been fully performed.</p> <p>2. The completion of diversion works in time to protect permit-holder’s rights which might otherwise be lost is such a benefit to the permit-holder as to constitute a valid consideration for an agreement that the right to use the waters diverted by the works as between the parties should be equal as to priority.</p> <p>3. When the conclusions of law and the judgment based thereon are not sustained by the facts found, the judgment will be reversed or modified.</p> <p>4. A judgment not sustained by the pleadings will be reversed or modified.</p> <p>5. A complaint which fails to state that lands sought to be irrigated are arid in character and require artificial irrigation, that waters have been applied to a beneficial use thereon, or that the parties are in a position to apply such waters to a bene-' fieial use, and the amount of water necessary ,to be applied to the lands, lachs the essential allegations necessary to constitute an' action to quiet title to a water right.</p>

Hon. Robert M. Terrell, Judge. Suit to foreclose mortgage. Judgment for defendants. One who places a note in the hands of another, vesting in him apparent ownership and right to sell the same, is estopped from defending against the payment, where the note is in the hands of an innocent purchaser. (8 C. J. 721; Herbert v. Huie, 1 Ala. 18, 34 Am.

Hon. Wallace N. Scales, Judge. Action in unlawful detainer. Judgment of dismissal. It is error for the court to construe a written instrument and change its meaning and effect unless it is so uncertain and ambiguous that the meaning thereof cannot be determined. (Quirk v. Rich, 40 Mont. 552, 107 Pac. 821; Clark v. Mallory, 185 111. 280, 56 N. E. 1099; Jacobs v. Parodi, 50 Fla. 541, 39 So. 833; Rosen v. Rosen, 159 Mich. 72, 134 Am.

Hon. William W. Woods, Judge. Action on contract for the sale of timber. Judgment for plaintiff and order denying a new trial. Judgment and order Where contract does not fix mode of measurement and there is no statute, the measurement should be made by the customary standard. (Kinney, Essentials of American Timber Law, secs. 141, 142; 17 R. C. L. 1102; Bestrehan v. Louisiana Co., 45 La. Ann. 920, 40 Am. St. 265, 13 So. 230; W. T. Smith Lbr. Co. v. Jernigan, 185 Ala. 125, Ann.

Hon. John M. Flynn, Presiding Judge. A proceeding to direct a trustee in regard to the distribution of trust funds. Order against certain claimants, who appeal.

<p>Fraud — Instructions.</p> <p>1. Instructions given examined and found to state the law applicable to the case correctly.</p> <p>2. Instructions offered by appellant and refused by the court examined, and so far as not included in the instructions given, found not to state the law correctly, and to be inapplicable to the evidence.</p>

Hon. James E. Bothwell, Judge. Aetion on account. From an order of the court setting aside the verdict of the jury and granting a new trial on its own motion, defendant appeals. Trial courts possess a .discretion to be exercised wisely in the granting or refusal of new trials, and such discretion will not be by the appellate court disturbed unless it manifestly and clearly appears to have been exercised unwisely and to have been manifestly abused.

<p>Original application for writ of mandate.</p> <p>The power of a city council to proceed under the provisions of C. S., sec. 4056, has been upheld in the ease of Hickey v. City of Nampa, 22 Ida. 41, 124 Pac. 280.</p> <p>"Webster defines casualty as “that which comes without design or without being foreseen, a contingency.” 6 Cyc. 701 defines casualty as “inevitable accident, event not to be foreseen or guarded against.” Bouvier defines accident as “an event which under the circumstances is unusual and unexpected to the person to whomQit happened.” Bouvier defines casualty as “inevitable accident. Unforeseen circumstances which should be guarded against by human agency and in which man takes no part.”</p> <p>In the ordinary sense the term “casualty” is synonymous with the terms “inevitable accident” or “act of God.” (Polack v. Pioche, 35 Cal. 416, 95 Am. Dec. 115.)</p>

Original application for writ of mandate. The term “legal voters” simply provides a rule of evidence upon which the court can base its findings; the same is not conclusive, and any person who possesses the qualification of an elector is entitled to sign such a petition. (Wilson v. Bartlett, 7 Ida. 271, 62 Pae. 416.) The signers to this petition state over their signature that they are legal voters of the city of Coeur d’Alene.

Hon. Charles P. McCarthy, Judge. Action on contract of guaranty. Demurrer to complaint sustained, and plaintiff appeals. The statute of limitations does not commence to run in favor of a guarantor upon a continuing guaranty until there is a default in payment by the principal and a full and complete cause of action has arisen against the guarantor. {Bank v. Knotts, 10 Rich. 543, 70 Am.

Hon. Charles P. McCarthy, Judge. Application for writ of assistance. Application granted and defendant Alvin M. Harris appeals. Harris was in possession under an expired lease on agricultural lands, and he was permitted to remain undisturbed in possession of the premises from January 1, 1916, without a word of complaint from petitioner until April 7, 1916, and without any act on her part until June 10, 1916.

Hon. Ed. L. Bryan, Judge. Action for partition of real estate. Appeal from an order setting aside defaults and interlocutory decree. An action for the partition of property is an action purely in rem, and under well-known general principles of law, as well as the ^provisions of the Idaho statute, does not abate upon the death or disability of a party. (Kelly v. Rochelle (Tex.

Hon. Carl A. Davis, Judge. Action on two promissory notes. Judgment for plaintiff. Defendant appeals. “Where there is a retaking under the contract, the seller of the property loses the right to compel payment of the purchase price.” (Pease v. Teller Trans. Go., 22 Ida. 807, 128 Pac. 981; Seanor v. McLaughlin, 165 Pa. 150, 30 Atl. 717, 32 L. R. A. 467.) By retaking the property the plaintiff could not maintain an action on the notes. (Yellowstone Nat.

Original application for writ of prohibition. So far as any of these funds constitute trust funds, or moneys held by the state for a specific purpose and no other, irrespective of any constitutional proviso giving the board of regents any power over them, they would, by reason of their character as trust funds alone, be not subject to the constitutional provision requiring appropriation and requiring allowance of claims against them by the board of examiners.

Hon. Carl A. Davis, Judge. Appellant was convicted on charge of unlawfully allowing cattle owned by him to run at large in a certain lawfully created herd district. Boards of ■ county commissioners are only quasi-judicial tribunals with limited jurisdiction and can only act in strict compliance with statutes.

Hon. James R. Bothwell, Judge. Action, to foreclose mortgage. Judgment for defendant Mountain Home Co-operative Irrigation Company. Statutes regulating foreign corporations and requiring the performance of certain acts by them do not relate to taking of single mortgage or purchase or sale of single piece of real property.

Hon. Ed L. Bryan, Judge. Action for divorce. Order denying motion to continue cause for recovery of attorney fees and costs, and judgment dismissing the action. When there is an evident intention to cheat the attorney and to defraud him of his rights, the proper course for the attorney to pursue is to proceed with the suit in the name of his client, notwithstanding the collusive settlement, for the purpose of collecting his costs. (Hanna v. Island Coal Co., 5 Ind.

Hon. Wm. A. Babcock, Judge. Action to recover taxes paid under protest. Demurrer to complaint was sustained and action dismissed.

Hon. Carl A. Davis, Judge. Action to foreclose mortgage. Judgment of dismissal. Plaintiff appeals. The phrase “subject matter” as used in an inquiry as to the jurisdiction means the thing in issue or the authority of the court to exercise judicial power over the class of cases or proceedings to which the one under consideration belongs.

<p>Corporations — Officers — Stockholders — Purchase of Stock by General Manager — -Fiduciary Relation — Fraudulent Misrepresentations— Statute of Limitations — Cause of Action — Accrual of.</p> <p>1. An officer or director of -a corporation, or a general manager who is neither a stockholder, officer nor director, 'but merely an employee of the company, does not sustain a fiduciary relation to an individual stockholder with respeet to his stock, and consequently may purchase stock from him with the same freedom as though he were a stranger, and in so doing the mere failure to disclose information as to the value of the stock or the fact that he will be able to dispose of it at a higher price will not render him liable, in the absence of actual fraudulent misrepresentations.</p> <p>2. In this ease the defendant Blanchard & Company sent to the shareholders of the Boise power company a circular letter in which the following language was used: “A proposition in the nature of a sale and merger has been made us on behalf of the shareholders.” This was followed by a letter to the shareholders from the City Trust Company, referring to the first letter, and advising shareholders to send their shares of stock to the latter company, properly indorsed, to be by said trust company delivered upon payment being made, together with other information showing that a sale of such stock was being negotiated. Held, sufficient notice to put shareholders upon inquiry as to who was assuming to act in their behalf and what interest he had in such proposed sale.</p> <p>1. On duty of director of • corporation toward one from whom he purchases stock, see note in L. R. A. 1916B, 708.</p> <p>As to whether directors of corporation are under any obligation to disclose matters which may make shares more valuable, before purchasing shares from individual stockholders, see note in 4 B. R.. C. 792.</p> <p>2. Liability of person whose name appears upon prospectus of corporation as officer for fraudulent representations therein, see note in Ann. Cas. 1915C, 559.</p> <p>3. A cause of action on the ground of fraud is barred under the provisions of C. S., sec. 6611, subd. 4, within three years.</p>

Hon. Charles P. McCarthy, Judge. From a judgment of conviction for herding and grazing sheep on a cattle range previously occupied by cattle, and from an order overruling a motion for new trial, defendant appeals.

<p>APPEAL from tbe District Court of the Eighth Judicial District, for Bonner County. Hon. John M. Flynn, Presiding Judge.</p> <p>Appeal from an order of the board of county commissioners of Bonner county disallowing a claim of Laclede highway district for its proportionate share of the road and bridge fund. Judgment for defendant.</p> <p>Under the provisions of C. S., sec. 9444, the statutes of-this state must be liberally construed, to effect their evident purpose and harmonize their various provisions. ('Larrikin v. Sterling, 1 Ida. 92.)</p> <p>And so as to give effect to each and every part thereof, if possible. (People v. Hunt, 1 Ida. 433.)</p> <p>Statutes that pertain to the same subject matter should be construed together. (Noble v. Bragaiu, 12 Ida. 265, 85 Pac. 903.)</p> <p>The board had no right to deplete the funds, to a part of which the district was entitled, by the allowance and payment of claims which could not lawfully be payable out of the revenues derived from the 1917 levy. (Smith v. Broderick, 107 Cal. 644, 48 Am. St. 167, 40 Pae. 1033; Arthur v. City of Petaluma, 175 Cal. 216, 165 Pac. 698.)</p> <p>The taxes in controversy, collected on and after the second Monday of April, 1918, must be paid into the county treasury and apportioned to the county warrant redemption fund, and the district has no right to any share in that. (Const., secs. 15, 16, art. 7; C. S., secs. 3211, 3217, 3219; Peavy v. McCombs, 26 Ida. 143, 140 Pac. 965.)</p> <p>These taxes would not thereafter come into such county road and bridge funds under C. S., sec. 1524.</p>

Hon. Charles P. McCarthy, Judge. Action in cause numbered 3147 on two promissory notes and in cause numbered 3148 on one promissory note. All of the notes were given by defendant, a married woman, for obligations which were in no sense her separate debts, and she is not liable therefor.

Hon. Ed. L. Bryan, Judge. Action on contract of warranty. Judgment for defendant. In the case of agricultural lands, a contract for their purchase may be rescinded by the vendee on discovering that he had been deceived by false representations of the seller as to the character, fertility or chemical composition of the soil, as to its adaptability to the growing of particular crops. (2 Black on Bescission, sec. 425, p. 1052; Becker v. Sunnyside Land & Inv.

<p>Assignment for Benefit of Creditors — Intent to Prefer or Defraud — Continuance of Business — Time of Sale — Consideration — Besidue to Assignor.</p> <p>1. A voluntary assignment for benefit of creditors is valid.</p> <p>2. Intent.to delay or defraud creditors is a question of fact. The mere fact that a transfer prefers certain creditors does not avoid it under C. S., sec. 5433.</p> <p>3. Provisions authorizing the assignee to continue the business, and delay sale of the assets, until they can be wisely and prudently reduced to money, do not invalidate such assignment.</p> <p>4. The payment of the debts and administration of the' trust for that purpose is sufficient consideration.</p> <p>5. A provision for payment of the balance to the assignors after payment of all the debts does not invalidate the assignment.</p> <p>5. Beservation of balance or surplus under assignment or trans-fer for payment of debts as rendering transaction void, see note in Ann. Cas. 1912D, 500.</p>

<p>APPEAL from the District Court of the Seventh Judicial District, for .Canyon County. Hon. Ed. L. Bryan, Judge.</p> <p>Action for damages, with counterclaim by .defendant. Judgment for plaintiff.</p> <p>“If injury follows as the combined result of the wrongful acts of several acting independently, recovery may be had severally against each of such independent tort-feasors, in proportion to the contribution of each to the injury.” ('Woodland v. Portneuf-Marsh Valley Irr. Co., 26 Ida. 789, 146 Pac. 1106.)</p> <p>“But if the wrong consists not of one tort alone, for which the parties are severally liable, but of separate and distinct, although closely connected torts, for which the parties are respectively liable, then the acceptance of satisfaction from one in respect to his part in the wrongdoing does not discharge the others from liability for their respective shares in the transaction.” (34 Cyc. 1088, 1089; Jewett v. Wanshura, 43 Iowa, 574; Carson v. Smith, 133 Mo. 606, 34 S. W. 855; Pittsburg B. Co. v. Chapman, 145 Fed. 886, 76 C. C. A. 418; Schram v. Brooklyn Heights Co., 54 N. Y. Supp. 945; Miller v. Beck, 108 Iowa, 575, 79 N. W. 344; Chicago v. Babcock, 143 111. 358, 32 N. E. 271; Pogel v. Meilke, 60 Wis. 248, 18 N. W.‘ 927.)</p> <p>The rule of joint tort-feasors has no- application here, but the rule that “a person injured is entitled to but one satisfaction for the same injury,” is nearer in point. (34 Cyc. 1088; Tompkins v. Clay Street Hill B. Co., 66 Cal. 163, 4 Pac. 1165.)</p>

Hon. James R. Bothwell, Judge. Priority suit. Defendants Kief appeal. All the testimony in this case was taken before referees and reported by them to the judge who rendered the decision, and who did not see nor hear a single witness; therefore, the case was in effect tried upon documentary evidence, and is to be heard by this court de novo.

Hon. Wm. A. Babcock, Judge. Defendant was convicted of transporting intoxicating liquor into a prohibition district. The alleged offense is barred by the statute of limitations. (Sec. 8703, C. S.; 16 C. J. 230; People v. Ayhens, 85 Cal. 88, 24 Pac. 635; Vaughn v. Gongdon, 56 Yt. Ill, 48' Am. Rep. 758; sec. 801, Kerr’s Penal Code Cal.; and eases cited.) “The plea of not guilty puts in issue every material allegation of the indictment” (or information).

<p>APPEAL from tbe District Court of the Third Judicial District of the State of Idaho, for Ada County. Hon. Carl A. Davis, Judge.</p> <p>Action do set aside deed from husband to wife. Judgment for defendant.</p> <p>Where the wife claimed to have loaned the husband money with which to buy property and which property he had controlled and managed and dominated for a long term as his own, the unsupported testimony of the wife was held to be insufficient to sustain a judgment awarding her the property. (McDonnell v. Jones, 25 Ida. 552, 138 Pae. 1123.)</p> <p>“When a deed is shown to be voluntary as to existing creditors, then the burden of proof rests on the donee to establish the circumstances which will rebut fraudulent intent — for such conveyance is presumptively fraudulent.” {Scharff v. McGaugh, 205 Mo. 344, 103 S. W. 550; Cartwright v. West, 155 Ala. 619, 47 So. 93; James v. Malloy, 76 Art. 509, 89 S. W. 472; Harlmess v. Smith, 3 Ida. 221, 28 Pac. 423; California etc. Min. Co. v. Manley, 10 Ida. 786, 81 Pac. 50; Dill v- Carver, 70 Wash. 103, 126 Pac. 86; 20 Cyc. 462, 463, note 98; Wooten v. Steele, 109 Ala. 563, 55 Am. St. 947, 19 So. 972; 20 Cyc. 511-516.)</p> <p>A conveyance from husband to wife for a nominal or fictitious consideration, or in consideration of natural love and affection, will not be supported as against creditors. (20 Cye. 522, 523, note 40-, Radley v. Riker, 80 Hun, 353, 30 N. T. Sup. 130.</p> <p>While a debt due from husband to wife may be a sufficient consideration for a conveyance where advances are made without any promise to pay at the time, it will not sustain such a conveyance as against creditors. (20 Cyc. 527, note 61; Templeton v. Cook, 69 Or. 313, 138 Pae. 230; 20 Cye. 529, note 74.)</p> <p>Where the wife advances money to the husband without any promise to repay the same or under such circumstances as not to create the relation of debtor and creditor at the time of such advancement, it is no consideration against his creditors for a subsequent conveyance to her. (Reeves v. Slade, 71 Ark. 611, 77 S. W. 54; Vietor v. Swisky, 200 111. 257, 65 N. E. 625; Hoffman v. Henderson, 145 Ind. 613, 44 N. E. 629; Woods v. Allen, 109 Iowa, 484, 80 N. W. 540; Bailey v. Kansas etc. Co., 32 Kan. 73, 3 Pae. 756; Diggs v. McCullough, 69 Md. 592, 16 Atl. 453; Kuhn v. Stansfield, 28 Md. 210, 92 Am. Dec. 681; Sykes v. City Sav. Bank, 115 Mich. 321, 69 Am. St. 562, 73 N. W. 369; Wake v, Griffin, 9 Neb. 47, 2 N. W. 461; Cole v. Lee, 45 N. J. Eq. 779, 18-Atl. 854; First Nat. Bank of Albuquerque v. McClellan, 9 N. M. 636, 58 Pae. 347; Clift v. Moses, 75 Hun, 517; Grabill v. Moyer, 45 Pa. St. 530; New South etc. Assn. v. Reed, 96 Va. 345, 70 Am. St. 858', 31 S. E. 514; Maxwell v. Hanshaw, 24 Ya. 405; Le Saulnier v. Krueger, 85 Wis. 214, 54 N. W. 774.)</p> <p>Where the funds of the wife are received and used by the husband with her knowledge and consent, and no evidence of indebtedness is taken by her, or no claim that he is her debtor, is made during a lapse of many years, a conveyance in consideration of such funds will not be sustained, especially where it is made after the husband has become insolvent or greatly financially embarrassed. (20 Cyc. 529, note 74; Wood v. Riley, 121 Ala. 100, 25 So. 723; Hauk v. Van Ingen, 196 111. 20, 63 N. E. 705; Brookville Nat. Bank v. Kimble, 76 Ind. 195; Williams v. Snyder (Iowa), 94 N. W. 845; Allen v. Meriweither, 10 Ky. Law Rep. 600; Balz v. Nelson, 171 Mo. 682, 72 S. W. 527; Brownell v. Stoddard, 42 Neb. 177, 60 N. W. 380; Cole y. Lee, 45 N. J. Eq. 779, 18 Atl. 854; Briggs v. Mitchell, 60 Barb. (N. T.) 288. Kanawha etc. Bank v. Atkinson, 32 W. Va. 203, 25 Am. St. 806; Htime v. Scruggs, 94 U. S. 22, 24 L. ed. 51, see, also, Rose’s U. S. Notes.)</p> <p>"Where the wife for a long period permitted the husband to handle her money as his own, keeping no account of it, and he never paid any of it back, a judgment setting aside the deed to the wife affirmed. (Goodrich v. Bagnell Timber Co., 105 Ark. 90, 150 S. W. 406; Cowling v. Bill, 69 Ark. 350, 86 Am. St. 200, 63 S. W. 800; Briggs etc. Bank v. Nor-wood, 50 Ark. 42, 7 Am. St. 78, 6 S. W. 323; Creel v. Cloyd, 151 Ky. 627, 152 S. W. 776.)</p> <p>“When the husband undertakes to prefer the wife the proof should be clear and satisfactory that the wife has a subsisting debt, one which is to be enforced and payment exacted regardless of the fortunes of the husband.” (Siffermann v. Bill, 131 111. App. 174; aff. Hill v. Siffermann, 230 111. 19, 82 N. E. 338.)</p> <p>The law requires clear and satisfactory proof of indebtedness between husband and wife. The secret agreement between husband and wife under which she was to have the property cannot prevail as against creditors. (Harrison vTourtillott, 148 111. App. 576.)</p> <p>The admission of assessment-rolls, in support of the contentions of defendant as to the value of the properties referred to, was error. This class of evidence is not competent. The county assessor was within reach, and could have been brought to testify and submitted to cross-examination. (Central Pac. By. Co. v. Feldman, ■ 152 Cal. 303, 92 Pac. 849; St. Louis etc. By. Co. v. Magness, 93 Ark. 46, 123 S. W. 786; Lewis v. Englewood etc. B. Co., 223 111. 223, 79 N. E. 44.)</p> <p>Whenever there is a true debt and a real transfer for an adequate consideration, there is no collusion, and fraud in its legal sense cannot be predicated thereon, even though the transfer result in a preference; nor does the fact that the creditor obtaining the preference is the debtor’s wife operate to change or modify the rule. (Bates v. Papesh, 30 Ida. 529, 166 Pac. 270; Wükerson v. Aven, 26 Ida. 559, 144 Pac. 1105; Coffey v. Scott, 66 Or. 465, 135 Pac. 88.)</p> <p>“If the wife advanced money to her husband, although no time be fixed for payment and no express promise is made to repay, and the circumstances attending the receipt of the money by the husband are such as to show that they dealt with each other as debtor and creditor, the husband may pay or secure the indebtedness by making a conveyance or transfer of property to her.” (20 Cyc. 527, note 61.)</p> <p>“A conveyance in fulfilment of a previous valid agreement between a husband and wife, such agreement being based upon a sufficient consideration, will be upheld as against creditors.” (20 Cyc. .529, note 74.)</p> <p>“A court of equity will never presume fraud when the transaction under their investigation is equally susceptible of two explanations, one of which is consistent with a fraudulent intent, and the other with good faith and fair dealing. In such ease, that construction of the acts of the parties which is consistent with good faith and fair dealing will be preferred.” (Coffey v. Scott, supra; Eurford v. Earned, 6 Or. 362.)</p>

<p>Appeal — Notice—Service—Proof—Sheriff.</p> <p>1. In the absence of a showing of valid service of the notice of appeal, an attempted appeal should be dismissed.</p> <p>2. Where a sheriff is disqualified from serving a notice of appeal because a party to the -case, attempted service by him in his official capacity, by his deputy, is ineffective; and in such case his return is no proof of service.</p>

<p>Criminal Law — Obtaining Monet bt False Pretenses — Crime Consummated Outside of State — Variance—Defense of Alibi— Degree of Proof Required — Instructions.</p> <p>1. C. S., see. 8091, provides: “The following persons are liable to punishment under the laws of this state: 1. All persons who commit, in whole or in part, any erime within this state.” Under this section one charged with the crime of obtaining money by false pretenses who commits any portion of such crime within •this state is punishable to the same extent and in the same manner as though all of the acts which constituted the crime had been committed within this state.</p> <p>2. Under the facts as shown by the record in this ease, defendant was a party to the crime of obtaining money by false pretenses, which crime was initiated in Ada county, and under the provisions of C. S., see. 8688, the district court for Ada county had jurisdiction of the offense.</p> <p>3. Where one is informed against for the erime of obtaining money by false pretenses, proof that tho defendant obtained money through the medium of a cheek drawn upon a bank is sufficient to sustain the allegation charging the erime.</p> <p>4. In a prosecution for obtaining money by false pretenses the state need not prove that the defendant in the manner alleged obtained the exact amount of money charged in the information. The allegation as to the amount of money obtained is not descriptive of an essential ingredient of the offense.</p> <p>5. It is incumbent upon one interposing the defense of alibi in a criminal case to prove the alleged fact of alibi, not beyond a reasonable doubt nor by a preponderance of the evidence, but by such evidence and to such a degree of certainty as will, when the whole evidence is considered, create and leave in the minds of the jury a reasonable doubt of the guilt of the accused.</p> <p>1. Jurisdiction of offense of obtaining property by false pretenses, see notes in 4 Ann. Cas. 368; Ann. Cas. 1917E, 311.</p> <p>5. On burden and measure of proof of an alibi, see notes in 8 Ann.- Cas. 1189; 41 L. R. A. 530.</p> <p>6. The defense of alibi in a criminal case raises a question of fact, and the verdict of a jury thereon will not be disturbed on appeal where there is substantial evidence to support the verdict.</p> <p>7. Held, that the trial court in this case committed no prejudicial or reversible error in the admission of evidence or the giving or refusal to give certain instructions.</p>

Hon. Charles P. McCarthy, Judge. Action for damages. Judgment for plaintiff.

Original application for writ of prohibition. Under sec. 6830, C. S., the plaintiff may dismiss his action any time before trial. (Boyd v. Steele, 6 Ida. 625, 59 Pae. 21’; Stover v. Stover, 7 Ida. 185, 61 Pac. 462; Chicago etc. By. Go. v. Trueman, 18 Ida. 687, 693, 112 Pac. 210; Bamsey v. District Court, ante, p. 296, 193 Pac. 733.) The statutory mode of dismissal must be exercised in the manner provided by statute.

<p>Common Carrier — Liability—Negligence in Delivery oe Livestock;— Oral Contract — Nonprejudicial Error — Instructions — Damages.</p> <p>1. Held, that plaintiff’s right to recover in this action, taking the allegations of the complaint all together, is not based upon alleged oral contract, but on the alleged carelessness and negligence of defendant railroad corporation in performing its obligations as a common carrier.</p> <p>2. The judgment of the lower court will not be reversed on account of error in the admission of evidence, where such error is corrected by proper admonitions or instructions to the jury to disregard such testimony, and it does not appear that such admonitions or instructions of the court have failed of their purpose.</p> <p>3. Instruction in regard to liability of common carrier in providing proper facilities for unloading of livestock considered and approved.</p> <p>4. A common carrier is required to deliver goods intrusted to him at a safe place accessible to the consignee, and where delivery of livestock is to be made from a ear, sueh car must be placed by the carrier where it may be conveniently unloaded by the consignee.</p> <p>5. In an action for damages, where there is substantial evidence to support the finding of the jury that defendant was negligent, sueh finding will not be disturbed by the appellate court.</p> <p>6. Where, in an action against a carrier for damages to sheep before delivery to consignee, it is alleged and proved that the market value of sucb slieep was depreciated by reason of tie fact that they would not breed on account of the injuries sustained, and that this element of damage flowed directly from the injuries in question, the jury under proper instructions from the court may award plaintiff just compensation for the loss thereby sustained.</p> <p>3. Duty of carrier of livestock with respect to animals carried, see note in 63 Am. St. 548.</p> <p>Liability of carrier for loss or injury to livestock, see notes in 13 Am. Rep. 53; 130 Am. St. 433. 1</p> <p>4. Liability of carrier for improper delivery of livestock, see note in 130 Am. St. 460.</p> <p>6. Liability of carrier and measure of damages for injuries to livestock, see notes in 1 Ann. Cas. 158; 5 Ann. Cas. 416; 13 Ann. Cas. 1141.</p>

Hon. I. F. Smith, Judge. Action to quiet title. Judgment for plaintiffs. It is a condition precedent to the existence of a water, right under sec. 5639, C. S., that payment therefor shall have been made. (Bennett v. Twin Falls etc. Water Co., 27 Ida. 643, 150 Pae. 336.) That section does not apply to nor include a mechanic’s lien on the property and the defendant claims title to the canal under a foreclosure of his mechanic’s lien.

Original application to this court for a writ of habeas corpus. The original jurisdiction of the district court or a judge thereof is fixed by see. 20, art. 5, of the constitution, and it is beyond the power óf the legislature to extend such original jurisdiction so as to include any matter over which the probate court has been granted exclusive jurisdiction.

<p>Original proceedings for disbarment.</p> <p>“Although it is well settled .that the legislature may provide that certain acts or conduct shall require a disbarment, the accepted doctrine is that statutes and rules merely regulate the power to disbar instead of creating it, and that such statutes do not restrict the general powers of the court over attorneys, who are its officers, and that they-may be removed for other than statutory grounds.” (6 O. J. 584.)</p> <p>The legislature, being only co-ordinate with the judiciary, cannot deprive the courts of their inherent power to dispose of such cases as the circumstances require. (State v. Reynolds, 22 N. M. 1, 158 Pac. 413; In re Simpson, 9 N. D. 379, 83 N. W. 541; 6 C. J. 581.)</p> <p>The court has such inherent power. (6 C. J. 580; People v. Harris, 273 111. 413, 112 N. E. 978; Chreste v. Commonwealth, 171 Ky. 77, 186 S. W. 919; In re Hilton, 48 Utah, 172, Ann. Cas. 1918A, 271, 158 Pac. 691; People v. Irwin, 60 Colo. 177, 152 Pac. 905; Wernimont v. State, 101 Ark. 210, Ann. Cas. 1913B, 1156, 142 S. W. 194.)</p> <p>The court may exercise its power in such regard in cases of professional misconduct generally; which misconduct may consist “in' fact in any conduct which tends to bring reproach upon the legal profession or to alienate the favorable opinion which the public should entertain concerning it.” (6 C. J. 589.)</p> <p>In the case at bar the court may proceed both under its inherent power and under the statute as well. The first duty of an attorney is “to support the constitution and laws of the United States and of this state” (see. 6572, C. S.), and this duty is incorporated in his oath; and any violation of his oath is a statutory ground for disbarment. (C. S., sec. 6578, subd. 2.)</p> <p>At the time of the Civil War, disloyalty was recognized as a ground for disbarment. (Cohen v. Wright, 22 Cal. 293).</p> <p>Many courts hold that common-law right of control over attorneys cannot be abridged by legislation. However, many courts of the country hold to the contrary. (In re Collins, 147 Cal. 8, 13, 81 Pac. 220; Kane v. Haywood, 66 N. C. 1.)</p> <p>The universal attitude of courts is that an attorney will not be disbarred, unless the charges against him be of serious nature, and even defined as gross, and that such charges must be proven beyond question. (In re Sch-nitzer, 33 Nev. 581, 112 f>ae. 848, 33 L. E. A., N. S., 941; In re Lentz, 65 N. J. L. 134, 46 Atl. 761, 50 L. E. A. 415; In re Eaton, 4 N. D. 514, 62 N. W. 597; In re Snow, 27 Utah, 265, 75 Pae. 741; dissenting opinion of Justice Field in Ex parte Wall, 107 Ü. S. 265, 318, 2 Sup. Ct. 569, 27 L. ed. 552, see, also, Eose’s U. S. Notes; 6 C. J. 581, par. 37; In re Haymond, 121 Cal. 385, 53 Pac. 899.)</p>

<p>Evidence Sufficient to Support Verdict — Submission of Particular Questions Optional — How Questions Should be Pramed — Competent Evidence on Value of Trees — Improper Remarks of Counsel.</p> <p>'1. Under the provisions of C. S., see. 7170 (R. S., see. 4824, as amended by Laws of 1907,-p. 483), the verdict of a jury will not be set aside where there is substantial evidence to support such verdict.</p> <p>2. Under the provisions of O. S., sec. 6861 (R. C., sec. 4397), in an aetion for recovery of money only or specific real property, it is optional with the court to submit or refuse to submit “particular questions of fact” to the jury.</p> <p>3. Where the court on its own motion or the motion of either party has submitted “particular questions of fact” to the jury, it is not reversible error for the court to receive a general verdict with such questions as may have been answered, and this is ■ in effect a withdrawal of the questions that the jury has failed to answer.</p> <p>4. Where requests for the submission of “particular questions of faet” are made, the questions should be so framed as to call for an answer as direct as the nature of the inquiry will admit.</p> <p>5. The “particular questions” submitted in this ease and not specifically answered by the jury, held to have been in effect answered by the general verdict and questions that were answered.</p> <p>6. One who has lived upon a farm and grown an orchard and shade trees is competent to testify as to the value of trees that have been injured or destroyed in that vicinity.</p> <p>7. Where " attention of the court is called to objectionable remarks of counsel, and it instructs the jury to disregard them, such conduct of counsel will not ordinarily be grounds for a reversal of the judgment.</p> <p>8. The measure of damages for the destruction of trees cannot be based solely upon the cost of their production, to the time of such loss.</p> <p>8. Liability of irrigation company for failure to supply water, see note in 81 Am. St. 488.</p> <p>On measure of damages for breach of contract to furnish water for irrigation, see notes in 19 L. R. A., N. S., 938; 31 L. R. A., N. S., 743.</p>

Hon. James R. Bothwell, Judge. Action for damages. Appeal from judgment for defendant. “If a party by Ms contract charge himself with an obligation possible to be performed, he must make it good, unless his performance is rendered impossible by the act of God, the law, or the other party. Difficulties, even if unforeseen, and however great, will not excuse Mm.” (United States v. Gleason, 175 U. S. 588, 20 Sup.

Hon. Charles P. McCarthy, Judge. Conviction for selling and disposing of intoxicating liquor for beverage purposes. Improper rehabilitating evidence was admitted after impeachment of state’s witness Simmons, by testimony of his reputation at residence abandoned three years before trial. (Fisher v. Conway, 21 Kan. 18, 125, 30 Am. Rep. 419; McGuire v. Eenefick, 111 Iowa, 147, 82 N. W. 485; Watkins v. State, 82 G-a. 231, 14 Am.

Hon. Charles P. McCarthy, Judge. Appellant was convicted of the crime of grand larceny. Book entries as original evidence are incompetent evidence, unless the entrant is unavailable as a witness (Wig-more on Evidence, secs. 1517-1561), unless under the “shop-book rule”-applicable only in actions based on book accounts. Book entries are otherwise admissible only when refreshing recollection of witness, or known by witness to have been correct when made.

Hon. Wallace N. Seales, Judge. Action to enjoin the issuance of county road and bridge bonds. Since the law does not fix the time for holding special elections, the provisions of the law as to notice are mandatory, and the election is void unless notice is given in the manner provided by the statute.

<p>APPEAL from the District Court of the Seventh Judicial District, for Washington County. Hon. Ed. L. Bryan, Judge.</p> <p>Action for conversion. Judgment for plaintiff.</p> <p>Plaintiff waived his right to a lien and is estopped from asserting his lien as against this defendant by reason of his failure to assert his rights when he knew the grain was being taken to market and when, by his failure to so act, he permitted the defendant to buy and pay for the grain. (Knollin v. Jones, 7 Ida. 466, 63 Pae. 638; Ryan v. Rogers, 14 Ida. 309, 94 Pac. 427; Sigel-Campion Livestock Co. v. Holly, 44 Colo. 580, 101 Pae. 68; Ziegler v. Ilf eld, 52 Colo. 275, Ann Cas. 1913D, 583, 122 Pac. 56; 11 Corpus Juris, Chattel Mortgages, sec. 339.)</p> <p>The mortgagee of a growing crop loses his lien by allowing the crop to be removed from the land on which it was grown, thereby removing the means of identifying the property. (5 R. C. L. 444, sec. 78; Brande v. A. L. Babcock Hardicare Co., 35 Mont. 256, 119 Am. St. 858, 88 Pac. 949; QilUlan v. Kendall & Smith, 26 Neb. 82, 18 Am. St. 766, 42 N. "W. 281.)</p> <p>“The mortgage vested the title of the growing wheat in the. mortgagee, and the recording of it created ednstruetive notice as against a subsequent purchaser or attaching creditor. The lien follows the grain after severance and removal, and the money after sale, whether such removal be by the mortgagor or by a third person, and whether the removal be rightful or tortious. The change which it underwent did not change the property so .as to divest the title of the mortgagee or to prevent its identification.” (Jones on Chattel Mortgages, par. 69; Hansen v. Haley, 11 Ida. 278, 81 Pac. 935; McConnell v. Langdon, 3 Ida. 157, 28 Pac. 403.)</p>

Wm. A. Babcock, Judge. Action for Specific performance of contract for purchase of real estate. Judgment for defendant. The evidence was not contradicted that appellant took immediate possession of the land and began improving it. Respondent’s agent knew appellant had possession, as he went to the land to find appellant. The respondent was charged with notice of any such facts coming to the attention of his agent.

<p>APPEAL from the District Court of the Fourth Judicial District of the State of Idaho, for Lincoln County. Hon. Wm. A. Babcock, Judge.</p> <p>Motion to set aside judgment by default. Motion denied and defendant appeals.</p> <p>Walters & Hodgin and Boyd, Devine & Eccles, for Appellant.</p>

<p>Walters & Hodgin and Boyd, Devine & Eccles, for Appellant.</p>

Hon. Ed. L. Bryan, Judge. Appellant was convicted of the crime of adultery. The evidence is insufficient to sustain the, verdict and the judgment in this case in that it is not shown that either of the parties had an adulterous tendency. (2 C. J. 23 j State v. Scott, 28 Or. 331, 42 Pac. 1; State v. Kimball, 74 Yt. 223, 52 Atl. 430; Oreen v. State, 53 Tex.

<p>Executors and Administrators — Presentation of Claims — Identification of Trust Funds — Pleading and Practice.</p> <p>1. An action to recover a trust fund from an administrator of an estate of a deceased person is not an action upon a claim against the estate. The presentation of a “claim” to the administrator is not required, and C. S., secs. 7588 and 7590-, have no application in such\ cases.</p> <p>2. A cestui que trust may follow a trust fund so long as it may be identified, either in its original or a substituted form; if the fund is merged into a mass of which it forms a component part, equity will afford relief by, creating a charge or lien upon such mass to the extent that the trust fund has entered into it.</p> <p>3. The right to recover a trust fund has its basis in the right of property and not upon a- right of preference by reason of unlawful conversion.</p> <p>4. A trust fund is dissipated when it can no longer be traced. A cestui que trust is not entitled to a preference lien upon the assets of the estate of the trustee on the ground that it may have been indirectly increased as a result of the process of dissipation of the trust fund.</p> <p>5. “When a cestui que trust can no longer traee his trust funds, but must recover out of the trustee’s general estate, he is in the position of a general creditor of the estate: •</p> <p>2. ■ Eight to pursue and recover trust funds, see notes in 32 Am. St. 125; 46 Am. St. 608.</p> <p>Liability of personal representative - where trust property held by decedent comes into his hands, see note in 19 Ana. Cas. 563.</p>

<p>Unlawful Possession of Intoxicating Liquor — Failure to Preserve Exceptions — Instructions—Alleged entrapment of Defendant — Evidence.</p> <p>1. Assignments of error involving the action .of the trial court in overruling motion to quash the information, demurrer to the information and objections to the introduction of testimony, and in denying motion in arrest of judgment, are not reviewable upon appeal when no exceptions thereto were taken or preserved in a bill of exceptions.</p> <p>2. Instructions given by the court of its own motion, to which no exceptions were taken or preserved in a bill of exceptions, are not reviewable on appeal.</p> <p>3. Held, under the faets in this case the court did not err in overruling appellant’s motion that the court advise the jury to acquit appellant.</p> <p>4. The record in .this ease fails to disclose by competent evidence any attempt on the part' of the sheriff or his deputies to lure appellant into the commission of the offense for which he was convicted, and error cannot be predicated upon the refusal of the court to give appellant’s requested instructions thereon.</p> <p>5. The unlawful possession of intoxicating liquor was a crime under the statutes of this state at the time appellant was convicted thereof.</p> <p>6. Where there is a substantial conflict in the evidence in a criminal ease and there is sufficient competent evidence to sustain the verdict of the jury, such verdict will not be disturbed on appeal.</p>

<p>APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. Ed L. Bryan, Judge.</p> <p>Appellant was convicted of the crime of unlawfully pos-</p> <p>sessing intoxicating liquor.</p> <p>Appellant is charged with the violation of Senate Bill' No. 50; no reference or attempt is made to place the alleged offense under the provisions of House Bill No. 142, and in order to hold appellant under the judgment of conviction it becomes necessary for the court to read into the provisions of House Bill No. 142 the word “possession,” which had been rejected by the legislature, and to strike out the words “for beverage purposes,” which had been specifically included by the legislature. • {United States' v. Wiltberger, 5 Wheat. (U. S.) 76, 5 L. ed. 37, see, also, Bose’s U. S. Notes.)</p> <p>An order overruling defendant’s motion to quash an information or an order overruling defendant’s demurrer to information must be excepted to. (Sec. 9008, 0. S.; State v. Crawford, 32 Ida. 165, 179 Pac. 511; State v. Maguire, 31 Ida. 24, 169 Pac. 175.)</p> <p>It is within the discretion of the trial court to grant de. fendant’s motion that the court advise the jury to acquit the defendant. (Territory v. Neilson, 2 Ida. 614, 23 Pac. 537; State v. Soberly, 4 Ida. 484, 42 Pac. 506; State v. Murphy, 29 Ida. 42, 156 Pac.‘ 908; State v. Grant, 26 Ida. 189, 140 Pac. 959; State v. Jones, 28 Ida. 428, 154 Pac. 378.)</p> <p>Instructions given dn the court’s own motion in a criminal case are not deemed excepted to, and in order to be reviewed must be excepted to and properly preserved by a bill of exceptions, or excepted to and incorporated in the reporter’s transcript of the proceedings at the trial. (Sec. 9006, G. S.; State v. Lundhigh, 30 Ida. 365, 164 Pac. 690; State v. Bay, 32 Ida. 363, 182 Pac. 857.)</p>

Hon. Isaac F. Smith, Judge. Mcmdamus proceeding. Alternative 0 writ issued. Motion to quash denied, and peremptory writ' issued.

<p>APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Charles P. McCarthy, Judge.</p> <p>Motion to vacate a judgment on the ground that it is null and void. Order vacating judgment</p> <p>The judgment must be in conformity with and based on the decision of the court; after the decision is made and filed and the judgment entered thereon accordingly, the trial court has no jurisdiction or power to change or modify the judgment until the decision has been changed, so that the changed or modified judgment and the changed or modified decision will finally agree. (C. S., see. 6867; Caldivell v. Wells, 16 Ida. 459, 101 Pac. 812; Knowlton v. MacKenzie, 110 Cal. 183, 42 Pac. 580; Broder v. Conklin, 98 Cal. 360, 33 Pac. 211; Egan v. Égan, 90 Cal. 15, 27 Pae. 22.)</p> <p>Judgments containing judicial errors and mistakes can be changed after the entry thereof only through, a motion for a new trial or by appeal, except clerical errors and misprisions therein can be corrected on motion therefor so as to make the judgment conform to the decision. (C. S., secs. 6726, 6888; Wyllie v. Kent, 28 Ida. 16, 152 Pac. 194; Lawrence v. Corbeille, 28 Ida. 329, 154 Pae. 495; Caldwell v. Wells, supra; Croke v. American Nat. Bank, 18 Colo. App. 3, 70 Pac. 229 ; Knowlton v. MacKenzie, supra; Los Angeles County v. LankersMm, 100 Cal. 525, 35 Pac. 153, 556; Egan v. Egan, supra; O’Brien v. O’Brien, 124 Cal. 422, 57 Pae. 225; 23 Cyc. 873, 890-c.)</p> <p>The trial court abused its discretion in making said order under the circumstances. The neglect of movants cannot be held to be excusable, as shown by the facts. (Domer v. Stone, 27 Ida. 279, 149 Pac. 505, and cases cited.)</p> <p>The court was authorized to amend its judgment in any particular not involving the correction of a judicial error. (15 Standard Proc., p. 121, and n. 40.)</p> <p>The part of the judgment granting affirmative relief to the Faults was a nullity. The court was authorized to strike such affirmative relief upon respondents’ motion in this proceeding or upon its own motion. (Kerns v. Morgan, 11 Ida. 572, 83 Pac. 954; Shumake v. STvumake, 17 Ida. 649, 107 Pac. 42.) If the part of the judgment granting affirmative relief to the Faulls was void, they had no right to have it standing on the records against respondents. (Leonard v. Brady, 27 Ida. 75, 147 Pae. 286.)</p>

<p>APPEAL from the District Court of the Seventh Judicial District, for Gem County. Hon. Ed L. Bryan, District Judge. ,</p> <p>Action to recover upon a promissory note. Judgment for defendant.</p> <p>There is no substantial testimony opposed to that of appellant. Appellant’s evidence in this case consisted entirely of depositions and documentary evidence. The evidence of respondent was all taken orally before the jury. They saw and heard the respondent and his witnesses, and did not see or hear the appellant or his witnesses. Therefore, it would be unfair for this court not to examine the evidence throughout and decide the case on the question of its sufficiency. (Roby v. Roby, 10 Ida. 139, 77 Pac. 213; Spofford v. Spofford, 18 Ida. 115, 108 Pac. 1054; Parsons v. Wrble, 19 Ida. 619, 115 Pac. 8; Stonebn/rner v. Stone-burner, 11 Ida. 603, 83 Pae. 938; Van Camp v, Emery, 13 Ida. 202, 89 Pae. 752; Village of Scmdpoint v. Boyle, 14 Ida. 749, 95 Pae. 945, 17 L. R. A., N. S., 497; Council Imp. Co. v. Draper, 16 Ida. 541, 102 Pae. 7.)</p> <p>Where there is a substantial conflict in the evidence, the verdict will not be set aside unless plainly contrary to the decided weight of evidence. We believe that rule should be invoked in the case. The respondent’s evidence is not positive and is only suggestive. It is not even contradictory of appellant’s evidence. (Hawhim v. Pocatello Water Co., 3 Ida. 766, 35 Pac. 711.) Where the evidence of one side is positive and the other shows want of recollection^ all things being equal, the positive testimony should be given the greater weight. (Idaho Mercantile Co. v. Kalcmquin, 8 Ida. 101, 66 Pac. 933.)</p> <p>The ruling on a motion for a new trial will not be reviewed in the absence, of a certificate of the judge who passed upon the motion as to the papers, matters and things used in ruling on the motion. (Crowley v. Croesus Gold etc. Min. Co., 12 Ida. 530, 86 Pae. 536; Doust v. Rocky Mountain Bell Tel. Co., 14 Ida. 677, 95 Pae. 209; Bumpas v. Moore, 31 Ida. 668, 175 Pac. 339; Pedersen v. Moore, 32 Ida. 420, 184 Pac. 475; Lyons v. Lambrix, ante, p. 99, 190 Pac. 356; Talbot v. Collins, ante, p. 169, 191 Pae. 354.)</p> <p>The only question is: Is there any evidence in the record which, if standing alone and undisputed, would support defendant’s contention that at the time the note and mortgage were executed and delivered there was contained therein a provision that defendant should not be personally liable on the note? If there is any evidence to sustain such defense, this court will not disturb the verdict of the jury. (Consolidated etc. Min. Co. v. Morton, 32 Ida. 671, 673, 187 Pac. 791; Bafus v. Peeper, ante, p. 324, 194 Pae, 96; Ldbonte v. Davidson, 31 Ida. 644, 175 Pac. 588; Lisenby v. Iniermountain State Bank, ante, p. 101, 190 Pac. 355; Lyons v. Lambrix, supra.)</p>

<p>Appeal Bond from Justice’s oe Probate Court — When Sufficient in Claim and Delivery.</p> <p>1. Under C. S., see. 7183, an undertaking in the sum of one hundred dollars is a sufficient undertaking on appeal from a judgment of a justice’s or probate court, where a stay of proceedings is not claimed.</p> <p>2. In an appeal from a judgment of a justice or probate court, if a stay of proceedings be claimed, the undertaking must contain the additional conditions prescribed by C. S., sec. 7183, depending in eaeh ease on the character of the action.</p>

Hon. Ed. L. Bryan, Judge. Action by appellants against C. E. Pennington et al. to quiet title to certain mining claims in Owybee county, and action by Murphy Lumber Company to foreclose a trust deed covering the same property, consolidated by stipulation. Judgment for respondents.

Hon. Isaac F. Smith, Judge. Judgment of conviction of crime of grand larceny. Questions tending to degrade defendant must be those directly tending to affect his credibility as a witness, or to show his character (the defendant’s character had1 not been made an issue in the case), thus compelling him to' answer as to past transactions, even though similar, but which are separate and distinct.

Hon. H. F. Ensign, Judge. Motion to strike from judgment entered in tbe district court memorandum of costs and disbursements. Motion sustained and defendant D. R. Swartwout appeals. “By statute the remittitur from this court is transmitted to the clerk of the court below and by him it is attached to the judgment-roll and a minute of the judgment of this court is entered on the docket against the original ■ entry.

Hon. Chas. P. McCarthy, Judge. Action to restrain the issuance of irrigation district bonds. Judgment for plaintiff, The power of an irrigation district to dispose of bonds authorized at an election held June 6, 1910, is not lost by failure to exercise it until 1920. (Secs. 4367, 4359, C. S.; Baltes v. Farmers’ Irr.

Hon. Ed. L. Bryan, Judge. Action to quiet title. Judgment for' defendants. “Substantial compliance with the requirements of the law in making assessment is all that is necessary.” (Cooperative Savings etc. Assn. v. Green, 5 Ida. 660, 51 Pae. 770; Armstrong v. Jarrón, 21 Ida. 747, 125 Pac. 170; Bacon v. Bice, 14 Ida. 107, 93- Pac. 511; McGowan v. Elder, 19 Ida. 153, 113 Pae. 102; White Pine Mfg.

<p>APPEAL from the District Court of the Seventh Judicial District, for Gem County. Hon. E’d. L. Bryan, Judge.</p> <p>Action to foreclose a mortgage. Judgment for plaintiff.</p>

Hon. H. F. Ensign, Judge. Appeal from the order of a magistrate requiring defendants to give a bond to keep the peace. Appeal dismissed. A prosecution under the statute for surety to keep the peace is a criminal proceeding to prevent the commission of a crime, but is not a prosecution for crime. .

<p>APPEAL from the District Court of the Fourth Judicial District, for Gooding County. Hon. H. F. Ehsign, Judge.</p> <p>E. D. Reynolds, E. A. Walters and Paul S'. Haddock, for Appellamt.</p>

Original application for writ of mandate. The legislative body is not without power to raise the interest rate on a bond issue submitted to the people, for the reason that the rate of interest was not one of the things required to be submitted. (Yesler v. City of Seattle, 1 Wash. 308, 25 Pae. 1014; Parkinson v. Seattle School Dist.

Hon. H. F. Ensign, Judge. Action to recover wages, attorney fees and statutory penalty. Judgment for plaintiff. A defendant is denied due process of law, contrary to the provisions of the 14th amendment to the constitution of the United States, where he is. penalized either in attorney’s fees or additional wages under color of chap. 170, p. 565, Sess. .Laws 1911, for refusing to pay an excessive demand. (St. Louis Iron Mountain etc. By. Co. v. Wynne, 224 U. S. 354, 32 Sup.

Hon. John M. Flynn, Judge. Action to foreclose a mortgage. Judgment decreeing foreclosure as to part of the property. Ministerial duties may be performed by a notary public even though he be interested in the subject matter of the instrument to which he attaches his certificate. (Nixon v. Post, 13 Wash. 181, 43 Pae. 23; Keene etc. Sav.

<p>Keepers’ Pees — Claim eor Wages — Demand—Attorney’s Pees.</p> <p>1. An allowance of $4.00 per diem each for two keepers for keeping possession of and preserving property under attachment is in conflict with C. S., sec. 3704, which provides “that no more than $3.00 per .diem be allowed to a keeper.” In this case $3.00 per diem for one keeper will be allowed, although the trial court made no order allowing keepers’ fees, inasmuch as appellant does not question such allowance.</p> <p>2. Where in a claim for wages no demand is made in writing by plaintiff in accordance with the provisions of C. S., see. 7380, it is error to allow attorney’s fees to plaintiff.</p>

Hon. James G. Gwinn, Judge. Appellant was convicted of murder in the first degree. A witness can only refer to memoranda made by himself, to refresh his memory. (Massey v. Hackett, 12 La.