Volume 34 — Idaho Reports

<p>APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Carl A. Davis, Judge.</p> <p>Action to quiet title. Decree for defendant subject to lien. Defendant appeals.</p> <p>A deed executed for the purpose of correcting the description in a former deed operates to convey title as of the date of the original deed. (Hutchinson v. Chicago & N. W. Ry. Co., 41 Wis. 541; Hodges v. Moore (Tex. Civ.), 186 S. W. 415; Pittsburgh, C. C. & St, L. Ry, Co. v, Beck, 152 Ind. 421, 53 N. B. 439; 24 Cyc. 999; Chapman v. Fields, 70 Ala. 403; Adams v. Stutsman, 6 Ohio Dec. 612, 7 Am. L. Record, 76; Wyche v. Greene, 11 Ga. 159; 24 Am. & Eng. E'ncy. of Law, 275, see. 2.)</p> <p>Parties to a deed which does not correctly define the intention of the parties, can do voluntarily what a court of equity would compel them to do. (Hodges v. Moore, supra; Hutchinson v. Chicago & N. W. By. Co., supra; Milby v. ■Began, 16 Tex. Civ. 352, 41 S. W. 372.)</p> <p>The mere fact that property stands in the name of another is not sufficient to estop the owner from setting up his title as against the creditors of the apparent owner. (12 R. C. L. 602.) Where the owner had no knowledge that the title to land stood in the name of her husband, and she acted promptly when she discovered it, she is not estopped to assert her title against creditors of her husband. (12 R. C. L. 605; Ann. Cas. 1914C, pp. 1067-1071, note; McEeehan v. Vollmer Clear Water Co., 30 Ida. 505, Ann. Cas. 1918E, 1197, 166 Pae. 256.)</p> <p>The question of fraudulent intent is one of fact and not of law. (Sec. 5435, C. S.; Clark v. Olsen, 3 Cal. Unrep. 890, 33 Pac. 274; 6 Eney. of Ev. 105; 20 Cyc., p. 751.)</p> <p>Under the laws of our state a debtor has the right to prefer any creditor, even though he is insolvent. (Bates v. Papesh, 30 Ida. 529, 166 Pac. 270; Pettengill v. Blackman, 30 Ida. 241, 164 Pac. 358; Wilson v. Baker Clothing Co., 25 Ida. 378, 137 Pac. 896, 50 L. R. A., N. S., 239; Capital Lumber Co. v. Saunders, 26 Ida. 408, 143 Pac. 1178.) ■</p> <p>Conveyance of insolvent grantor in order to be valid -as against existing creditors, must be for a valuable and adequate consideration. (Pettengill v. Blackman, 30 Ida. 241, 164 Pae. 358; Bates v. Papesh, 30 Ida. 529, 166 Pac. 270 ; Wright v. Craig, 40 Or. 191, 66 Pae. 807; Brown v. Case, 41 Or. 221, 69 Pac. 43; 20 Cyc. 509; Prints v. Brown, 31 Ida. 443, 174 Pac. 1012.)</p> <p>Where transfer is from husband to wife fraud is to be presumed and it rests with the husband or wife to rebut this presumption by showing a valuable and adequate consideration. {Brown v. Case, supra; 56 L. R. A. 817-846, note; 12 R. C. L., pp. 515-517.)</p> <p>No actual fraudulent intent is necessary to be shown where conveyance is made by insolvent debtor for an inadequate consideration. {Capital Lumber Co. v. Saunders, 26 Ida. 408, 143 Pac. 1178; Pettengill v. Blackman, supra; Bates v. Papesh, supra.)</p> <p>A gift cannot be consummated after insolvency so as to be effective against existing creditors unless there was a visible change of ownership when the gift was made and all that remained to be done was to execute a deed. (20 Cyc. 461.)</p> <p>A wife who negligently or carelessly permits her separate property to remain on the records in the name of her husband and he obtains credit on the strength of his ownership, will be estopped to assert her title as against a creditor who has been deceived by the husband. {Chaney v. Gauld Co., 28 Ida. 76, 152 Pac. 468; McKeehan v. Yollmer Clear Water Co., 30 Ida. 505, Ann. Cas. 1918E, 1197, 166 Pac. 256; Goldberg v. Pm'ker, 87 Conn. 99, Ann. Cas. 1914C, 1059, 87 Atl. 555, 46 L. R. A., N. S., 1097; 12 R. C. L. 605.)</p>

<p>Pleading and Practice — Water and Water Eights — Mutual Mistake — Deeds—Indefinite Description.</p> <p>1. Permission to amend an answer during the progress of the trial is within the sound discretion of the trial court.</p> <p>2. In proper cases, defendant in an action may allege mutual mistake as a defense without praying for reformation of the instrument.</p> <p>3. The evidence to establish a mutual mistake must be satisfactory, clear and convincing.</p> <p>4. Where the grantor in a deed has received the consideration therefor, the instrument should be construed most strongly against him and be upheld, if it can be done, by a reasonable construction of its terms. Parol testimony may be introduced to explain an ambiguity or uncertainty in a deed.</p> <p>5. Where a contract for conveyance of land contains, as part of the description, “a perpetual right to take sufficient water from the ditches and laterals of the grantors adjacent and near thereto for the irrigation” of the land conveyed, it is incumbent upon the grantees claiming under such conveyance to show exactly what was intended by the provision for a water right, and that they had not exceeded their rights under such contract.</p>

Hon. Chas. P. McCarthy, Judge. Action on surety bond. Judgment for plaintiff. In order to create a liability on the part of the insurer, the loss must be one which is covered by the terms of the policy, fairly construed. A loss resulting from the employee’s carelessness or inattention to business or other acts or omissions not fraudulent or dishonest imposes no liability on the insurer.

Hon. ¥m. A. Babcock, Judge. Action in claim and delivery. Judgment for plaintiff. A vendee cannot maintain an action in claim and delivery against a vendor who refuses to deliver. (23 R. C. L. 1251, sec. 67; Hamilton v. Gordon, 22 Or. 557, 30 Pac. 495; Cob-bey (1900 ed.) on Replevin, sec. 289, citing Kerr v. Henderson, 62 N. J. L. 724, 42 Atl. 1073.) Claim and delivery will not lie to enforce an unexecuted' agreement.

Hon. Carl A. Davis, Judge. Judgment refusing to permit certain judgment creditors to prorate in the proceeds of attached property. “The notice is not essential to give the writ validity and binding force.

<p>Carriers — Livestock—Care or Eli Route — Contract—Negiagence— Burden or Prooe.</p> <p>1. A contract between a shipper and carrier which provides that the shipper would “at his own risk and expense, load, unload, care for, feed and water the stock until delivery of the same to the consignee at destination,” is valid and binding.</p> <p>2. Where a shipper accompanies a shipment of livestock under such a contract, the burden of proving negligence resulting in injury thereto rests upon him.</p> <p>3. It is the duty of a carrier transporting livestock to furnish reasonable and proper facilities and opportunities for feeding, watering and resting them.</p> <p>Publisher’s Note.</p> <p>2. Burden of proof as to negligence on part of carrier of livestock, see notes in 15 Ann. Cas. 35; Ann. Cas. 1913E, 311.</p> <p>3. Duty of carrier of livestock, see notes in 63 Am. St. 548; 44 L. R. A. 289; L. R. A. 1918C, 539.</p> <p>Por what acts carrier of livestock is liable, see note in 130 Am. St. 446.</p> <p>4. No inference of negligence can be drawn from tbe failure of a carrier to provide its stoekyards with patented locks, unless the circumstances are shown to be such that a prudent person would have provided locks.</p> <p>5. When livestock is accompanied by the shipper under a contract to care for them at his own risk and expense, and when he has unloaded them in the stockyards, the carrier’s duty is performed when it furnishes suitable yards in proper condition and reasonably seeure.</p> <p>4. Liability of carrier for escape of stoek from custody during transit, see note in Ann. Cas. 1912B, 392.</p>

Hon. Ed. L. Bryan, Judge. Action on contract to assume mortgage debt in the purchase of land. Judgment for plaintiffs. The deed in question was never delivered to the defendant. Acceptance of the deed by the defendant was essential to its delivery. (Parker v. Parker, 1 Gray (Mass.), 409, 411; Fonda v. Sage, 46 Barb.

Hon. Ed L. Bryan, Judge. Judgment dismissing appeal from the probate to the district court. So long as the undertaking was not entirely void and was sufficient to perfect a naked appeal, leave should be granted to file an amended undertaking in the appellate court. (Cohen v. Connick, 26 Cal.

Hon. Carl A. Davis, Judge. Proceeding for restitution by judgment creditor against purchaser at execution sale. A party obtaining through a judgment before reversal any advantage or benefit must restore what he got to the other party, after the reversal. (Reynolds v. Hosmer, 45 Cal. 616, 628; Reynolds v. Harris, 14 Cal. 667, 681, 76 Am. Dec. 459; Cowdery v. London etc. Bank, 139 Cal. 298, 96 Am.

<p>APPEAL from the District Court of the First Judicial District, for Shoshone County. William W. Woods, Judge.</p> <p>Action for contribution from cosurety upon a bond. From an order denying a motion to vacate the judgment appellant appeals.</p> <p>The discretionary power of the court to vacate a judgment means a sound and impartial discretion, and should be resolved in ease of doubt in favor of the application. (Hamilton v. Hamilton, 21 Ida. 672, 683, 123 Pac. 630; Estate of Pittock, 15 Ida. 47, 96 Pae. 212; Humphreys v. Idaho Gold Mines Dev. Go., 21 Ida. 126, 120 Pac. 823, 40 L. R. A., N. S., 817; Utah Commercial and Savings Bank v. Trumbo, 17 Utah, 198, 53 Pac. 1033; Cutler v. Haycock, 32 Utah, 354, 90 Pac. 897; Watson v. San Francisco & H. B. B. Co., 41 Cal. 17; 15 Ency. of PI. & Pr. 286; 1 Black on Judgments, p. 554; Parks v. Coyne, 156 Mo. App. 379, 137 S. W. 335; Miller v. Carr, 116 Cal. 378, 58 Am. St. 180, 48 Pac. 324; Vermont Marble Co. v. Black, 4 Cal. Unrep. 901, 38 Pac. 512, 961; Bailey v. Taaffe, 29 Cal. 423.)</p> <p>EVery presumption is in favor of the order of a trial court denying an application to vacate and set aside a default judgment. (Security Loan & T. Co. v. Estudillo, 134 Cal. 166, 66 Pac. 257.) This is especially true when the facts upon which the application to set aside such judgment is based are in dispute. (J. L. Mott Iron Works v. West Coast E. Supply Co., 113 Cal. 341, 45 Pae. 683.)</p> <p>The showing made by defendant on his application to vacate and set aside the judgment herein did not show that such judgment was taken through his mistake, inadvertence, surprise or excusable negligence, and was insufficient to justify the vacation of said judgment. (Domer v. Stone, 27 Ida. 279, 149 Pac. 505; Valley State Bank v. Post Falls etc. Water Co., 29 Ida. 587, 161 Pae. 242; Nelson v. McGoldrick Lumber Co., 30 Ida. 451, 165 Pac. 1125.)</p>

<p>APPEAL from the District Court of the Ninth Judicial • District, for Fremont County. Hon. James G. Gwinn, Judge.</p> <p>Action to foreclose mortgage. Motion to quash writ of assistance denied.</p>

Hon. H. F. Ensign, Judge. Appellants were convicted of the crime of burglary in the first degree, and they appeal.

Hon. Charles P. McCarthy, Judge. Order of the district court denying change of venue. Under provisions of sec. 6666, C. S., the right of defendant to have the place of trial changed is absolute if the demand is duly made and the court cannot retain the case on the ground of convenience of witnesses. (Smail v. Gilruth, 8 S. D. 287, 66 N. W. 452.) C. S., subd. 13, see. 141, does' not grant exclusive jurisdiction to the courts of Ada county. (State v. Campbell, 3 Cal.

<p>APPEAL from the District Court of tbe Third Judicial District, for Ada County. Hon. Charles P. McCarthy, Judge.</p> <p>Appeal from an order vacating temporary injunction.</p>

Hon. Chas. P. McCarthy, Judge. Action for damages. Judgment for plaintiff. Defendant appeals. Subrogation was never intended for the relief of those who were at liberty to elect whether they would or would not be bound, and cannot be invoked by a volunteer who, without being legally bound, pays the debt of another. (Aetna Life Ins. Co. v. Town of Hiddleport, 124 U. S. 534, 8 Sup.

Hon. James E. Bothwell, Judge. Action to compel specific performance of a contract for the sale of stock. From judgment for plaintiff, defendant appeals. Under the pleadings, as well as the general law relating to suits in specific performance, it was necessary for the plaintiff, in order to establish his case, to prove that the defendant was the owner of the stock in question, and therefore could specifically perform. (Kennedy v. Eazelton, 128 U. S. 667, 9 Sup.

Original mandamus proceeding to compel delivery of irrigation water. Mandamus lies to compel the performance of an unqualified duty imposed by law, in this class of cases. (Gerber v. Nampa etc. Irr. Gist., 16 Ida. 22, 100 Pac. 88; Id., 19 Ida. 765, 116 Pac. 104; Furbee v. Alexander, 31 Ida. 738, 176 Pae. 97; Lewis v. Mountain Home Co-operative Irr.

<p>Manslaughter — Instructions—Due Caution and Circumspection.</p> <p>1. Held, that the giving of the following instruction was prejudicial and constituted reversible error: “The jury are also instructed that if from the evidence you believe that the defendant when he shot the deceased, did not intend to shoot him, or shoot at him, and that the shooting was accidental, and that in firing the shot which resulted in the death of deceased, the defendant was not angry or excited, and was not frightened, but fired said shot merely for the purpose of frightening deceased and those with him and acting in concert with him, from the premises of defendant, and that defendant believed and had reason to believe that at the time he shot that there was no person within the range of his weapon who would be or could be shot, then you must find the defendant not guilty."</p> <p>2. In a homicide case, the faet that appellant was angry, excited or frightened does not necessarily raise a presumption that he failed to use due caution and circumspection when firing the fatal shot.</p>

Hon. W. P. McNaughton, Judge. Motion by plaintiff to set aside default. Sustained. Defendant appeals. • Motion by defendant to dissolve injunction. Denied.

Hon. Robert N. Dunn, Judge. Action to recover balance due upon an open account. Judgment for plaintiffs and dismissing complaint in intervention.

<p>APPEAL from the District Court of the Tenth Judicial District, for Nez Perce County. Hon. Edgar C. Steele, Judge Presiding.</p> <p>Action to recover value of personal property. Judgment for plaintiff. Defendant appeals.</p> <p>A mere depositary without any special undertaking, and without reward, is not answerable for the loss of the goods deposited, except in case of gross negligence. (Foster v. President etc. of Essex Bank, 17 Mass. 479, 9 Am. Dec. 168; Whitney v. First Nat. Bank, 55 Yt. 154, 45 Am. Rep. 598; First Nat. Bank v. Graham, 100 TJ. S. 699, 25 L. ed. 750; Smith v. First Nat. Bank, 99 Mass. 605, 97 Am. Dee. 59; Pitlock v. Wells, Fargo & Go., 109 Mass. 452; Scott v. National Bank of Chester Valley, 72 Pa. St. 471, 18 Am. Rep. 711; Gerrish v. Muskegon Sav. Bank, 138 Mich. 46, 100 N. W. 1000; Caldwell v. Hall, 60 Miss. 330, 44 Am. Rep. 410; Johnson v. Reynolds, 3 Kan. 257.)</p> <p>The bailee is entitled to be informed of contents of package containing money or securities that may pass from hand to hand, or other property of special value, so that bailee can give it the care required by its character. (Humphreys v. Perry, 148 U. S. 627, 13 Sup. Ct. 711, 37 L. ed. 587.)</p> <p>Money is not expected to be left in a bank, unless as a time or checking account, and is not expected to be contained in bundles or boxes, and if so left must be so treated. (Hillis v. Chicago R. I. & P. Ry. Co., 72 Iowa, -228, 33 N. W. 643; Lloyd v. West Bra/nch Bank, 15 Pa. St. 172, 53 Am. Dee. 581; First Nat. Bank v. Ocean Nat. Bank, 60 N. Y. 278, 19 Am. Rep. 181.)</p> <p>A suit for described chattels and money must be non-suited, if the proof is of delivery of a locked box, without disclosing the contents. (Sawyer, Admr., v. Old Lowell Nat. Bank, 230 Mass. 342, 1 A. L. R. 269, 119 N. E. 825.)</p> <p>Banks, being places for the deposit and safekeeping of valuables, are bound to exercise such degree of care as is consistent with the character of their business. (Morse on Banks and Banking, 5th ed., pp. 426, 431.)</p> <p>Where a bailment is proven, the bailee must deliver the property in accordance with the contract or account for its loss. The failure to either deliver the property or account for it is sufficient evidence of such a degree of negligence as will bind the, bailee. (Bates v. Capital State Bank, 18 Ida. 429, 110 Pac. 277; Strong v. Morga/n, 8 Ida. 269, 67 Pac. 1123.)</p> <p>It is called gross negligence where the courts have established the rule that a gratuitous bailee is liable only for gross negligence, (First Nat. Bank v. Zent, 39 Ohio St. 105.)</p> <p>The questions of negligence and consequent liability are fully discussed in: Bean v. Ford, 65 Mise. Rep. 481, 119 N. Y. Supp. 1074; Yazoo & M. V. B. Co. v. Hughes, 94 Miss. 242, 47 So. 662, 22 L. R. A., N. S., 975; Ouderkirk v. Central Nat. Bank, 119 N. Y. 263, 23 N. B. 875; Hackney v. Perry, 152 Ala. 626, 44 So. 1029; Central of Georgia By. Co. v. Jones, 150 Ala. 379, 124 Am. St. 71, 43 So. 575, 9 L. R. A., N. S., 1240; Fairfax v. New York Cent. etc. B. Co., 67 N. Y. 11; Burnell v. New York Cent. By. Co., 45 N. Y. 184, 6 Am. Rep. 61; Baehr v. Downey, 133 Mich. 163, 103 Am. St. 444, 94 N. W. 750; Travelers’ Indemnity Co. v. Fawkes, 120 Minn. 353, 139 N. W. 703, 45 L. R. A., N. S., 331; Union Stone Co. v. Wilmington Transfer Co., 5 Boyce (Del.) 59, 90 Atl. 407; Keith Co. v. Booth Fisheries Co., 4 Boyce (Del.), 218, 87 Atl. 715; Donlan v. Clark, 23 Nev. 203, 45 Pac. 1; Pregent v. Mills, 51 Wash. 187, 98 Pac. 328; Corbin v. Gentry, 181 Mo. App. 151, 167 S. W. 1144; Patriska v. Kronk, 57 Mise. Rep. 552, 109 N. Y. Supp. 1092; Pattison v. Syracuse Nat. Bank, 80 N. Y. 82, 36 Am. Rep. 582; Guaranty Trust Co. v. Diltz, 42 Tex. Civ. 26, 91 S. W. 596; Strong v. Morgan, 8 Ida. 269, 67 Pac. 1123; Chicopee Bank v. Seventh Nat. Bank, 8 Wall. (U. S.) 641, 19 L. ed. 422; Lloyd v. McWilliams, 137 U. S. 576, 11 Sup. Ct. 173, 34 L. ed. 788.</p> <p>The bank had notice that the box contained valuables and from the proven course of dealing of the plaintiff had sufficient reason to infer that the box contained some money. Such notice is sufficient to render a bailee liable where the bailment consists of money, and that fact is not specifically disclosed. (Dwight v. Brewster, 18 Mass. (2 Pick.) 50, 11 Am. Dee. 133; Allen v. 8ewa.ll, 2 Wend. (N. T.) 327; Farnsworth v. National Express Co., 166 Mich. 676, 132 N. W. 441; Galveston, H. & 8. A. By. Co. v. Quilhot (Tex. Civ.), 123 S. W. 200; Southern Pac. B. Co. v. D’Arcáis, 27 Tex. Civ. 57, 64 S. W. 813; Wm. Fine <& Brother v. Southern Express Co., 10 Ga. App. 161, 73 S. E. 35; Goldberg v. New York C. & II. By. Co., 164 App. Div. 389, 149 N. T. Supp. 629; Merchants’ Despatch Trcmsp. Co. v. Bolles, 80 111.473.).</p>

Hon. Edgar C. Steele, Judge. Action to quiet title. Judgment for plaintiffs. The land in question was never before the Department of the Interior for decision as to character until the secretary rendered the judgment awarding it to the state. (U. S. Miuing Regulations, p. 66; Department U. S. Regulations for Surveyors-General, p. 73, sec. 135, Lindley on Mines, 3d ed., sec. 104; secs. 2914, 5369, 5413, 5423, 5425, and 5325, C. S.; 2 Pom. Eq.

Hon. Edgar C. Steele, Judge Presiding. Action to recover taxes paid under protest. Judgment for plaintiff against defendant county. All parties appeal.

Hon. Wallace N. Seales, Judge. Appeal from judgment disallowing executor’s claim for expenses and attorney fee. The attorney’s fees, costs and expenses are chargeable to the heir or creditor who prosecutes the proceeding.

<p>APPEAL from the District Court of the Tenth Judicial District, for Nez Perce County. Hon. Wallace N. Scales, Judge.</p> <p>Action on promissory note. Judgment for plaintiff.</p>

<p>Water Eight — Priority Suit — Supplementary Adjudication — Statutory Eemedy — Exclusive or Cumulative — Due Process — Estoppel by Decree — Not Binding on Stranger.</p> <p>1. The remedy provided by C. S., see. 7036, is cumulative, and not exclusive.</p> <p>2. C. S., see. 7036, does not preclude one whose right to use the water of a stream antedates a priority decree, but who is a stranger to the action, or one whose right has been acquired subsequent to such decree, from bringing a priority suit in the nature of an aetion to quiet title.</p> <p>3. A decree adjudicating water rights does not bind one who is a stranger to the action.</p>

<p>Original application for Writ of Prohibition.</p> <p>A Public Service Commission is without power to compel a hearing before it, of a private corporation, over which it has no jurisdiction. {Qmnby v. Public Service Commission, 223 N. T. 244, P. U. R. 1918D, 30, 3 A. L. R. 685, 119 N. E. 433, 22 R. C. L., p. 21, see. 20.)</p> <p>The question of whether or not plaintiff is a public utility is a judicial question. {Neil v. Public Utilities Commission, 32 Ida. 44, 178 Pac. 271.) In this ease the question has been determined by a district court adversely to the defendants. In other words, the plaintiff’s status at present is that it is not a public utility. This ground of itself would justify the overruling of the demurrer. {Chandler v. Railroad Commrs., 141 Mass. 208, 5 N. E. 509; State v. Young, 29 Minn. 474, 485, 493, 9 N. W. 737; Oklahoma City v. Corporation Commission, 80 Obi. 194, 195 Pac. 498.)</p> <p>The commission itself went on record in its verified petition and complaint in the ease of Stoehr v. Natatorium Co., that plaintiff was a public utility.</p> <p>To compel a litigant to submit to a judge who has already prejudged the matter would be manifestly farcical and wrong. {State ex rel. Barnard v. Board of Education, 19 Wash. 8, 67 Am. St. 706, 52 Pac. 317, 40 L. R. A. 317; State ex rel. McAllister v. Slate, 278 Mo. 570, 214 S. W. 85, 8 A. L. R. 1226, 1238.)</p> <p>An appeal may be taken to the supreme court from any order of the Public Utilities Commission. (Sec. 9, art. 5 (as amended in 1920); chap. 72, Laws 1921, p. 141.)</p> <p>The adequacy of the remedy by appeal does not depend upon delay, expense or the convenience of the parties. (Olden v. Paxton, 27 Ida. 597, 150 Pac. 40 ; Blackwell Lumber Go. v. Flynn, 27 Ida. 632, 150 Pac. 42; Willman v. District Court, 4 Ida. 11, 35 Pae. 692; Fraser v. Davis, 29 Ida. 70, 156 Pac. 913, 158 Pac. 233; State ex rel. Board v. Superior Court, 73 "Wash. 296, 131 Pac. 816; Chicago & N. W. B. B. Co. v. Dougherty, 39 S. D. 147, 163 N. W. 715, P. U. R. 1917F, 617; LAndley v. Superior Court, 141 Cal. 220, 74 Pac. 765; People v. District Court, 11 Colo. 574, 19 Pac. 541; State v. Superior Court, 20 Wash. 502, 55 Pac. 933; State ex rel. Carrau v. Superior Court, 30 Wash. 700, 71 Pac. 648; Agassiz v. Superior Court, 90 Cal. 101, 27 Pac. 49.)</p> <p>Former adjudication is not binding on an intervenor or party who withdraws or abandons his claim. An intervenor, to be bound, must make himself actively and substantially a party. (Keane v. Pittsburg Lead Mining Co., 17 Ida. 179, 105 Pae. 60; Wilson v. Trowbridge, 71 Iowa, 345, 32 N. W. 373; Guthrie v. Pierson (Tex. Civ. App.), 35 S. W. 405; Lincoln Upholstering Co. v. Baker, 82 Neb. 592, 118 N. W. 321; 23 Cyc. 1243, 1249-1251; Deering & Co. v. Bichardson-Kimball Co., 109 Cal. 73, 41 Pac. 801; Singleton v. National Land Co., 183 Iowa, 1108, 167 N. W. 97; Black on Judgments, 2d ed., sec. 576, p. 822.)</p> <p>The estoppel of a former adjudication extends only to the facts that were in issue. Changed conditions of fact or law make former adjudication inapplicable. (23 Cyc. 1161, 1290, 1314; 10 Ency. U. S. Sup. Ct. Rep. 772; Black on Judgments, 2d ed., p. 925.)</p> <p>The Public Utilities Commission exercises legislative powers and in doing so it has the right to reach conclusions and make decisions on questions which must ultimately be decided by the courts. It thus exercises judicial functions but not judicial powers. (Idaho Power & Light Co. v. Blomquist, 26 Ida. 222, Ann. Cas. 1916E, 282, 141 Pac. 1083; Neil v. Public Utilities Commission, 32 Ida. 44, 178 Pae. 271.)</p>

<p>Statutory Construction — Water Corporation — Public Utility — Dedication to Public Service — Not Presumed in Absence op Unequivocal Intention.</p> <p>1. Held, that under the provisions of C. S., secs. 2392 and 2395, a water corporation which furnishes hot water to a limited number of persons for compensation does not thereby become a publie utility, in the absence of a dedication of the property of such corporation to publie service.</p> <p>2. A corporation becomes a publie service corporation, and therefore subject to regulation as a publie utility, only when and to the extent that the business of such corporation becomes devoted to a publie use.</p> <p>3. Dedication of the property of a corporation to public use is never presumed without evidence of unequivocal intention.</p>

<p>Rural High School District — Segregation op School District — Petition — Suppiciency—Statutory Construction — Amendment— Literal Construction — Intent—Impairment op Contract.</p> <p>1. A petition filed with the board of county commissioners, for the segregation of a school district from a rural high school, need not be drawn with the formal accuracy required of a pleading in a judicial proceeding.</p> <p>2. The failure of such petition to state jurisdictional facts is not fatal, if such facts appear in the reeord of the hearing.</p> <p>3. The obvious intention of a legislature in passing a statute ought to prevail as against its literal construction if the words used can be given a construction which will effectuate that intention.</p> <p>4. The usual meaning of a word may be disregarded when it is evident that it was incorrectly used, or that the legislature used it in another sense.</p> <p>5. The segregation of a school district from a rural high school district does not impair the obligation of a contract between the latter and one of the included districts, in regard to the erection and maintenance of a school.</p> <p>Publisher’s Note.</p> <p>3. Interpretation of statute so as not to recognize casus omissus, see notes in Ann. Cas. 1913D, 711; 3 A. L. R. 404.</p>

Hon. Wallace N. Scales, Judge. Judgment of District Court affirming order of County Commissioners segregating school district from rural high school district. Counsel rely upon authorities cited in Rural High School Dist. No. 1 v. School Dist. No. 58, ante, p. .222, 200 Pae. 138.

Hon. Wallace N. Seales, Judge. Judgment of District Court affirming order of County Commissioners segregating school district from rural high school district. relies upon authorities cited in Rural High School District No. 1 v. School Dist.

Hon. E. C. Steele, Judge. From a conviction of unlawful possession of intoxicating liquor, defendant appeals. It was incumbent upon the state to prove that the liquid offered in evidence was intoxicating or fermented liquor at the date it was alleged to have been found on the premises of the defendant. (Bandy v. State, 13 Okl.

<p>APPEAL from the District Court of the Second Judicial District, for Latah County. Hon. E. C. Steele, Judge.</p> <p>Action for damages for personal injuries. Judgment for plaintiff.</p> <p>Respondent assumed all the risks incident to the work in which he was engaged which were open and apparent and which were either known to him or which should have been known and appreciated by him in the exercise of ordinary care. (Minty v. Union Pac. By. Co., 2 Ida. 471, 21 Pac. 660, 4 L. R. A, 409: Goure v. Storey, 17 Ida. 352, 105 Pac. 794; Knauf v. Dover Lumber Co., 20 Ida. 773, 120 Pae. 157; Smith v. Potlatch Lumber Co., 22 Ida. 782,128 Pae. 546; Bohn Mfg. Co. v. Erickson, 55 Fed. 943, 5 C. C. A. 341; Lake v. Shenango Furnace Co., 160 Fed. 887, 88 C. C. A. 69; Chicago etc. By. Co. v. Shalstrom, 195 Fed. 725, 115 C. C. A. 515, 45 L. R. A., N. S., 387; Utah Co. v. Bateman, 176 Fed. 57; Burke v. Union Coal etc. Co., 157 Fed. 178, 84 C. C. A. 626; Biley v. Neptune, 181 Ind. 228, 103 N. E. 406; Anderson v. Columbia Imp. Co., 41 Wash. 83, 82 Pae. 1037, 2 L. R. A., N. S., 840; Props v. Washington Pulley etc. Co., 61 Wash. 8, 111 Pac. 888, 45 L. R. A., N. S., 658; Brotzki v. Wisconsin Granite Co., 142 Wis. 380, 125 N. W. 916, 27 L. R. A., N. S., 982; Bpberts v. Pell City Mfg. Co'., 197 Ala. 106, 72 So. 341; Meyers v. Bennett Auto Supply Go., 169 Iowa, 383, 151 N. W. 444.)</p> <p>Respondent’s testimony to the effect that he did not know that the tongs might pull out of the log is at war with the physical facts and furnishes nothing for the jury to pass upon. (Chicago By. v. Andrews, 130 Fed. 65; Artz v. Chicago etc. By. Co., 34 Iowa, 153; Bayne v. Chicago etc. By. Co., 136 Mo. 562, 38 S. W. 308; Chicago etc. By. Co. v. Bounds, 82 Fed. 217, 27 C. C. A. 112; Southern By. Co. v. Smith, 86 Fed. 292, 30 C. C. A. 58, 40 L. R. A. 746.)</p> <p>The court erred in permitting respondent’s attorneys, over appellant’s objection, to argue to the jury that in fixing the amount of damage they should take into consideration what they would take to have their leg broken and go through what respondent had gone through. (Hughes v. City of Detroit, 161 Mich. 283, 137 Am. St. 504, 126 N. W. 214; Union Bac. By. Co. v. Field, 137 Fed. 14, 69 C. C. A. 536; McDonald v. Champion Iron etc. Co., 140 Mich. 401, 103 N. W. 829; Chicago Union Traction Co. v. Lauth, 216 111. 176, 74 N. E. 738, 740; Sedbury v. Detroit United By., 194 Mich. 423, 160 N. W. 570; Morrison v. Carpenter, 179 Mich. 207, Ann. Cas. 1915D, 319, 146 N. W. 106; Wells v. Ann Arbor B. Co., 184 Mich. 1, Ann. Cas. 1917A, 1093, 150 N. W. 340; dolman v. Alberts, 186 Mich. 643, 153 N. W. 11; Mortensen v. Bradshaw, 188 Mich. 436, 154 N. W. 46.)</p> <p>It was the duty of the company, knowing of Haverland’s total lack of knowledge of the work he had been directed to do, to instruct him fully as to his duties, the dangers of the work and how to avoid such dangers. In view of the failure of the company to discharge its duty to Haverland in this respect, it is answerable for the injury. (Wolski v. Knapp-Stout & Co., 90 Wis. 178, 63 N. W. 87; Norfolk Beet-Sugar Co. v. Eight, 56 Neb. 162, 76 N. W. 566; Atchison, T. & S. F. By. Co. v. Bancord, 66 Kan. 81, 71 Pac. 253; Bussell v. Minneapolis & St. L. By. Co., 32 Minn. 230, 20 N. W. 147; McGowan v. La Plata Mining etc. Go., 9 Fed. 861, 3 McCrary, 393; Fox v. Peninsular White Lead etc. Works, 84 Mich. 676, 48 N. W. 203; Verdelli v. Gray’s Harbor Commercial Co., 115 Cal. 517, 47 Pac. 364, 778; Fletcher Bros. Co. v. Hyde, 36 Ind. App. 96, 75 N. E'. 9; Jones v. Florence Min. Co., 66 Wis. 268, 57 Am. Rep. 269, 28 N. W. 207; Republic Iron & Steel Co. v. Older, 161 Ind. 393, 68 N. E. 901; 18 R. C. L. 644, secs. 138, 177; 18 R. C. L. 565, sees. 76-78; Illinois Steel Co. v. Ryska, 200 111. 280, 65 N. E. 734; Raides v. J. Thompson etc. Mfg. Co., 137 Wis. 506, 118 N. W. 350, 119 N. W. 289, 23 L. R. A., N. S., 296; Smith v. Peninsular Car Works, 60 Mich. 501, 1 Am. St. 542, 27 N. W. 662.)</p> <p>One can only assume those things one knows about, those dangers that are open and apparent. (18 R. C. L. 683, sec. 172; Republic Iron & Steel Co. v. Ohler, supra.)</p> <p>A judgment will not be reversed, on account of improper remarks of counsel, in argument to a jury, where the verdict is right, and it does not appear probable that the improper remarks influenced the jury, in arriving at their verdict. (Ghezum v. Parker, 19 Wash. 645, 54 Pae. 22; Chamberlain v. Lake Shore & M. S. Ry. Co., 122 Mich. 477, 81 N. W. 339; Festner v. Omaha & S. W. R. R., 17 Neb. 280, 22 N. W. 557; Roose v. Roose, 145 Ind. 162, 44 N. E. 1; Chicago & A. R. Co. v. Pillsbury, 123 111. 9, 5 Am. St. 483, 14 N. E. 22; Southern Indiana Ry. Co. v. Baker, 37 Ind. App. 405, 77 N. E. 64.)</p>

<p>Promissory Note — Given as Stipulated Damages for Breach of Contract — When Maker not Liable Thereon.</p> <p>Where the members of two partnership firms agree to consolidate their partnership assets and turn the same over to a corporation which they agree to form, and stipulate that a failure on the part of any one of them to comply with the agreement shall subject such person to a penalty of $500, and severally execute their promissory notes for such penalty, before a recovery can be had upon such note, the maker having set up want of consideration, it must appear that he defaulted in carrying out some material condition of the agreement.</p>

Hon. H. F. Ensign, Judge. Action for damages for loss of livestock. Judgment for plaintiff. Defendant appeals. An answer setting up that in consideration of a reduced freight rate the shipper and carrier entered into an agreement that the shipper should assume the duty to load, unload, reload, feed, water, tend and care for sheep at his own risk during the entire transportation states a lawful defense and is not subject to demurrer. (Webster v. Union Pac.

Hon. John M. Flynn, Judge. Action for personal injuries. Verdict and judgment for plaintiff, and defendant appeals. The fact that a defendant was insured by a casualty company against injury of any kind of its employees is an immaterial matter and ought not to be permitted to go to the jury, and counsel ought not to be permitted to introduce any such evidence, for it is well recognized that it is only done for one purpose, and that is to prejudice the jury.

Hon. Carl A. Davis, Judge. Action for damages. Judgment for defendant. Appellant was not the real party in interest, as he was neither the legal nor beneficial owner of the contract sued upon. Where the real party in interest does not bring the action in his own name, unless the case be one of the exceptions to rule provided by statute, it is fatal to the action. (Dubbers v. Goaoo, 51 Cal. 153; Smith v. Chicago & N. W. By.

<p>Conflict of Evidence — Judgment.</p> <p>Where there is a conflict in the evidence, the judgment of the trial court will not be disturbed when the proof is sufficient, if uncontradieted, to sustain it.</p>

Hon. Ed. L. Bryan, Judge. Action to enjoin issuance of school district bonds. “After a rural high school district has exercised the functions of such district for a period of nearly two years, its legal organization will be presumed.” (Pickett v. Board of County Commissioners, 24 Ida. 200, 133 Pac. 112.) This holding establishes the legal entity of said Rural School District No. 1, and ratifies and validates all its acts as a district.

Hon. Isaac F. Smith, Judge. Defendant was convicted of grand larceny. Where a witness has wilfully sworn falsely in any material matter and it has been so shown to the satisfaction of the jury, the jury is privileged to reject the testimony of such witness except where corroborated by other and reliable evidence; the court in the instruction given by it failed to give said idea except in a modified and misleading manner.

Hon. Charles P. McCarthy, Judge. Judgment directing issuance of writ of mandate compelling defendant to accept filing on Carey Act segregation. There is a plain distinction between the case of Furbee v. Alexander, 31 Ida. 738, 176 Pac. 97, and cases such as this where the board has made an order revoking the opening notice, and that a different rule would be applied by the court is apparent not only from the statutes but from the decision in the Furbee case itself.

Hon. Isaac F. Smith, Judge. Action on promissory note. Judgment for plaintiff. The contract whereby the Shearer note was rediscounted was in writing. It was a contract of indorsement without recourse. Any contemporaneous- oral agreement to stand behind that note became merged in the written agreement, • and to admit evidence of any such agreement to change, vary or contradict the written agreement was error.

Original mandamus proceeding to compel delivery of irrigation water. Application of defendant to amend answer. All contracts sold under the Carey Act and under the contracts with the state are of equal right and of equal priority.

<p>Statutes' in Pari Materia — Construction—Paving—Lateral Street — Improvement District — Assessment — Corner Lot — Inside Lots — Appeal to District Court — Procedure.</p> <p>1. Statutes m pari materia should be construed together and in such a way as to give effect to the provisions of each.</p> <p>2. Under C. S., sees. 4000 and 4005, the cost of paving a lateral street should not be assessed entirely to the corner lot, but should be assessed to all the lots to the center of the block, in proportion to the benefits derived.</p> <p>3. Upon an appeal from an assessment for street paving made by a city council, the district court has power to modify the assessment on the property of the party taking the appeal.</p> <p>4. Upon such appeal, the district court has no power to modify the assessment on any other property than that of the party taking the appeal.</p> <p>5. Upon such appeal, the testimony of land owners and real estate men of the city is admissible as to whether property within the improvement district is benefited and how much.</p>

Hon. Chas. P. McCarthy, Judge. Action for damages for trespass of sheep owned by defendant. From judgment for plaintiff, defendant appeals. In order to entitle the plaintiff to recover he should be required to prove at least approximately the amount of damages done by defendant’s sheep. (Dooley v. 17,500 Head of Sheep, 4 Cal. Unrep. 479, 35 Pac. 1011; Partenheimer v. Van Order, 20 Barb.

Hon. Charles F. Reddoeh, Judge, Action for damages for trespass of sheep. Judgment for plaintiff. Defendant appeals. “The court should compel witnesses to particularize and specify the items of damage and not permit lump sum estimates.

Hon. Charles P. McCarthy, Judge. Action to quiet title. Judgment for defendant.

Hon. Charles F. Reddoch, Judge. Action to obtain declaration of forfeiture. Judgment for defendant.

<p>Appeal — Motion to Dismiss — Appellant not Represented — Hearing on Merits — Rule 48 — Affirmance of -Judgment.</p> <p>1. That appellant is not represented on the hearing of a motion to dismiss the appeal and files no brief is not ground for dismissing the appeal. National Bank v. Agnew, 12 Ida. 189, overruled.</p> <p>2. If, when a cause is reached on the calendar, appellant is not represented, and files no brief, and respondent is represented, the judgment will be affirmed, in accordance with Rule 48 of this court, unless, upon examination of the reeord, fundamental error is found, which requires a reversal.</p>

Hon. Carl A. Davis, Presiding Judge. Judgment awarding compensation to agent for his services. The judgment, to the extent that it awarded the plaintiff a commission, was clearly outside the pleadings; it was contrary to the theory of the case; it was supported by no prayer; no opportunity was offered to resist the same, and it is therefore void. (23 Cyc. 816, and citations under note 51; Balfour-Gufhrie Inv.

<p>APPEAL from the District Court of the Fourth Judicial District, for Cassia County. Hon. Wm. A. Babcock, Judge.</p> <p>From an order setting aside judgment by default, plaintiffs appeal.</p> <p>The default was properly entered, and it does not appear from the showing made that the respondents’ failure to appear and answer was due to their mistake of fact, inadvertence, surprise or excusable neglect, and the motion to vacate the default and set aside the judgment should have been denied. (Domer v. Stone, 27 Ida. 279, 149 Pae. 505; State v. American Swety Co., 26 Ida. 652, Ann. Cas. 1916E, 209, 145 Pac. 1097.)</p> <p>Mere neglect of an attorney to defend a suit will not discharge his client from the judgment obtained by default in the absence of fraud. (Mattlvis v. Cameron, 62 Mo. 504; Indianapolis etc. By. Co. v. Hood, 130 Ind. 594, 30 N. E. 705; Thomas v. Chambers, 14 Mont. 428, 36 Pae. 814.)</p> <p>No relief from a default judgment can be had because of the failure of counsel to plead. (People v. Bains, 23 Cal. 127.)</p> <p>Failure of defendant’s attorney to put in an answer in time is generally such neglect on his part that it cannot be excused in order to entitle the defendant to have the judgment taken for want of such answer set aside or reopened. (Dick v. Williams, 87 Wis. 651, 58 N. W. 1029; East St. Louis v. Thomas, 102 111. 453; Bash v. Van Osdol, 75 Ind. 186; Bailey v. Taaffee, 29 Cal. 423; Williams v. Cummings etc. Co., 95 Cal. 652, 30 Pac. 762; Bicharás v. Bicharás, 24 Ida. 87, 132 Pac. 576.)</p> <p>While an order of the district court setting aside or refusing to set aside the judgment by default is much in the discretion of the court, this discretion is not a mental discretion to be exercised ex gratia, but is a legal discretion to be exercised in conformity with law. (Bailey v. Taaffee, supra; Harr v. Eight, 18 Ida. 53, 108 Pac. 539.)</p> <p>Courts will, in the exercise of their discretionary powers, relieve from the harshness of default judgments. (See. 6726, C. S.)</p> <p>The action of the trial court will not be disturbed on review, except where a clear abuse of discretion is manifest. (Hamilton v. Hamilton, 21 Ida. 672, 123 Pae. 630; JDomer v. Stone, 27 Ida. 279, 149 Pac. 505; Bicharás v. Bicharás, 24 Ida. 87, 132 Pac. 576; State v. American Surety Co., 26 Ida. 652, Ann. Cas. 1916E, 209, 145 Pae. 1097; Humphreys v. Iááho Golá Mines Development Go., 21 Ida. 126, 120 Pac. 823, 40 L. R. A., N. S., 817; Parsons v. Wrble, 19 Ida. 619, 115 Pac. 8; Hollaná Bank v. Lieuallen, 6 Ida. 127, 53 Pac. 398; Pease v. Kootenai County, 7 Ida. 731, 65 Pae. 432.)</p>

Hon. Chas. P. McCarthy, Judge Presiding. Appellant was convicted of the crime of grazing sheep on cattle range. Where the evidence in the case to sustain the verdict is of such weak and uncertain character that the court cannot, say that the jury was not misled by irrelevant and illegal testimony appearing in the record, and did not act upon prejudice or passion, a new trial will be ordered.

Hon. F. J. Cowen, Judge. Respondent was convicted of statutory rape. Evidence offered for the purpose of discrediting a prosecutrix to show acts of unehastity is not admissible.

Original action for writ of mandamus. The writ of mandamus will lie to compel the judge to settle and sign a bill of exceptions or reporter’s transcript, although not to control his discretion as to the particular contents of the bill or transcript. {Hudson v. Parker, 156 U. S. 277, 15 Sup. Ct. 450, 39 L. ed. 424; Ex parte Chateau-gay Ore etc. Co., 128 U. S. 544, 9 Sup.

<p>Public Officer — Action to Behove — Appeal—Death.</p> <p>In an action to remove a public officer under O. S., see. 8684, if judgment is for defendant and plaintiff appeals, a motion to dismiss the appeal will be granted by this court on a showing that respondent is dead.</p>

Hon. Wm. A. Babcock, Judge. Action on contract. Judgment for plaintiff. The record on appeal does not contain a reporter’s transcript or bill of exceptions; there is no evidence in the record. The court can therefore not consider or pass upon the ruling of the trial court in giving or refusing to give instructions to the jury. (Crowley v. Croesus Gold etc. Min.

<p>Divorce — Application eor Attorney Pees in Appellate Court — Appellate Jurisdiction.</p> <p>1. Under art. 5, sec. 9, of tbe constitution of this state, the supreme court has jurisdiction to entertain an- original application for attorney fees on behalf of one of the parties to a divorce action, upon a proper showing that the granting of such relief is necessary to the exercise of its appellate jurisdiction.</p> <p>' 2. Where an action for divoree is brought by the husband, the wife is entitled to be provided with means at the expense of the husband for an efficient preparation of her case on appeal, where it appears that she is without means, and that all the property of the parties was awarded to the husband by the decree of the lower court.</p> <p>3. In an action for divorce, considerations of justice and public policy require that the wife be afforded an opportunity to be properly represented by counsel before her property and other rights are adjudicated by the appellate court.</p> <p>4. Under O. S., secs. 4642 and 4653, original jurisdiction -in the matter of granting alimony and suit money in divorce actions is vested in the district court, and such relief is granted by the appellate court only where it is necessary to a complete exercise of its appellate jurisdiction.</p> <p>Publisher’s Note.</p> <p>1. Allowance of attorney fees by appellate courts in divoree actions, see notes in 15 Ann. Cas. 230; Ann. Cas. 1915B, 1251; 27 Ii. K. A., N. S., 714; I*. E. A. 1916F, 1261.</p>

Hon. F. J. Cowen, Judge. Action for conversion. Judgment for appellant for one dollar damages. The admission of evidence showing preliminary negotiations leading up to the execution of the deed to Slaughter by the First National Bank was erroneous; the negotiations were merged into the deed, and the evidence was contradictory to the terms of the deed. (Jacobs v. Shenon, 3 Ida. 274, 281, 29 Pae. 44; Stein v. Fogarty, 4 Ida. 702, 43 Pac. 681; First Nat.

Hon. Robert M. Terrell, Judge. Action for damages. From order granting new. trial, plaintiff appeals.

<p>APPEAL from the District Court of the Ninth Judicial District, for Bonneville County. Hon. James G. Gwinn, Judge.</p> <p>Action for damages. From judgment for plaintiff, defendant appeals.</p> <p>A deed, in which the description is sufficiently definite to locate the land with certainty, should, as to the land conveyed, be construed from the instrument itself, and such construction is for the court. (Folk v. Graham, 82 S. C. 66, 62 S. E. 1106; Holmes v. Weinheimer, 66 S. C. 18, 44 S. E. 82; New River Mineral Go. v. Pcdnter, 100 Va. 507, 42 S. E'. 300; Brown v. Huger, 21 How. (U. S.) 305, 16 L. ed. 125; Piles v. Boulddn, 11 Wheat. (U. S.) 325, 6 L. ed. 486; 13 Cyc. 607G; 2 Devlin on Real Estate, 3d ed., sec. 835.)</p> <p>In an action for a breach of a covenant of warranty, evidence should not be heard to modify or enlarge the description of land in a warranty deed when that description can be definitely ascertained from the deed and other instruments referred to in the deed and made a part of the deed. (2 Devlin on Real Property, 3d ed., sec. 1042; 13 Cye. 626B; 1 Jones on Law of Real Property, see. 335; Folk v. Graham, 82 S. C. 66, 62 S. E. 1106; New River v. Painter, supra; Benedict v. Gaylord, 11 Conn. 332, 29 Am. Dec. 299; Clement v. Bank of Rutland, 61 Yt. 298, 17 Atl. 717, 4 L. R. A. 425.)</p> <p>Whatever is expressly granted, conveyed or promised cannot be restricted or diminished by subsequent provisions or restrictions. (Pike v. Munroe, 36 Me. 309, 58 Am. Dec. 751 ; Maker v. Lazell, 83 Me. 562, 23 Am. St. 795, 22 Atl. 474; Friedman v. Nelson, 53 Cal. 589; Piper v. True, 36 Cal. 606.)</p> <p>When land is conveyed by metes and bounds, or any other particular description, explanation of what is intended to be conveyed does not limit or enlarge the grant. (Brown v. Heard, 85 Me. 294, 27 Atl. 182; Hobbs v. Payson, 85 Me. 498, 27 Atl. 519; Smith v. Sweat, 90 Me. 528, 38 Atl. 554; Friedman v. Nelson, supra; Piper v. True, supra.)</p>

Hon. F. J. Cowen, Judge. Appellant was convicted of the crime of running sheep on cattle range. The district courts have concurrent jurisdiction with the justice and probate courts in misdemeanor eases.

<p>Contract — Condition Precedent.</p> <p>Language of contract in this ease examined and found to clearly show that agreement to discharge certain mortgage is a condition precedent to right to demand deed.</p>

Hon. P. J. Cowen, Judge. Complaint by intervenor claiming a fund in the possession of a garnishee. Judgment for intervenor. None of the notes or checks was offered in evidence, and no satisfactory reason or excuse for failing to produce them was offered. The intervenor was in duty bound to either produce such evidence or show good excuse for hi: failure to do so.

<p>APPEAL from the District Court of the Ninth Judicial District, for Bonneville County. Hon. Jas. G. Gwinn, Judge.</p> <p>Action for personal injury. Judgment for plaintiff.</p>

Hon. F. J. Cowen, Judge. Action, for recovery of purchase price following rescission of contract. Appeal from judgment of nonsuit.

<p>APPEAL from the District Court of the Fifth Judicial District, for Oneida County. Hon. Wm. A. Babcock, Judge.</p> <p>Action to enjoin trespass on realty. Judgment for plaintiff.</p>

<p>APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. W. F. McNaughton, Judge.</p> <p>Sabeos corpus by parents to obtain custody of minor child.</p> <p>In habeas corpus proceedings, by the parents for the custody of their child held under commitment as a delinquent, the return takes the place of the complaint and it must show the reason, if any there be, why such parents are not suitable and competent persons to have the custody of such minor. (Allen v. Williams, 31 Ida. 309, 171 Pac. 493; Ex parte Collins, 151 Cal. 340, 129 Am. St. 122, 90 Pac. 827, 91 Pac. 397.)</p> <p>The court did not err in overruling petitioners’ demurrer to the return to the writ. (Allen v. Williams, 31 Ida. 309, 171 Pac. 493; Ex parte Sharpe, 15 Ida. 120, 96 Pac. 563, 18 L. R. A., N. S., 886; 12 R. C. L., sec. 53, p. 1236; In re Moyer, 35 Colo. 159, 117 Am. St. 189, 85 Pac. 190, 12 L. R. A., N. S., 979; sec. 9280, C. S.)</p> <p>The original commitment of a minor under the delinquency laws cannot be collaterally attacked in a proceeding of this nature. (Allen v. Williams, supra; Ex parte Hinkle, 33 Ida. 605, 196 Pac. 1035.)</p>

Hon. Robert M. Terrell, Judge Presiding. Action to recover title to and possession of mining claims alleged to have been fraudulently relocated by defendants. From judgment for plaintiff, defendants, Adrian F. Johnson, John C. Sheridan, Isaac S. Johnson, appeal. From judgment for defendant, William B. Baker, plaintiff appeals.

Hon. William A. Babcock, Judge. Suit for specific performance or money judgment. Judgment for plaintiff.

<p>APPEAL from the District Court of the Fourth Judicial District, for Twin Falls County. Hon. Wm. A. Babcock, Judge.</p> <p>Action on contract. Judgment for plaintiff by default. Motion to set aside default, denied.</p> <p>While a defendant has a proper motion on file and undisposed of, default judgment cannot be taken against him unless the determination of the motion either way would not prevent the plaintiff from proceeding with the case. (.Kemey v. Hatfield, 30 Ida. 90, 162 Pac. 1077 ; 23 Cyc. 750; 6 Ency. PI. & Pr. 93; Culver v. Mountain Home Electric Co., 17 Ida. 669, 107 Pac. 65; Crosson v. Cooper, 41 Okl. 281, 137 Pac. 354; Ortega v. Vigil, 22 N. M. 18, 158 Pac. 487; 15 R. C. L. 666; 14 Stand. Ency. of Proc. 877; Atchison-Topeka & Santa Fe Ry. Go. v. Lambert, 31 Okl. 300, Ann. Cas. 1913E, 329, 121 Pac. 654; Rice v. Simmons, 89 Ark. 359, 116 S. W. 673; Story v. Ware, 35 Miss. 399, 72 Am. Dec. 125; Hosmer v. Hoitt, 161 Mass. 173, 36 N. E. 835; Mitchell v. Campbell, 14 Or. 454, 13 Pac. 190; Cooper v. Condon, 15 Kan. 572; Oklahoma State Bank v. Buzzard, 61 Okl. 88, 160 Pae. 462.)</p> <p>Appellant had a right to appear specially by motion to test the jurisdiction of the court over it. (3 Cyc. 511;. 2 Ency, PI. & Pr. 625; Shaw v. Martin, 20 Ida. 168, 117 Pae. 853; Morris v. Miller, 4 Ida. 454, 40 Pac. 60; Domer v. Stone, 27 Ida. 279, 149 Pac. 505; In re Clark, 125 Cal. 388, 58 Pac. 22; Remsberg v. Hackney Mfg. Co., 174 Cal. 799, 164 Pac. 792; Clark v. Forbes, 34 Cal. App. 524, 168 Pac. 155; Roberts v. Superior Court, 30 Cal. App. 714, 159 Pac. 465.)</p> <p>Defendant waived any question of jurisdiction by its general appearance after judgment. {Security Loan & Trust Co. etc. v. Boston & S. R. Fruit Co., 126 Cal. 418, 58 Pac. 941; Olcese v. Justice’s Court etc., 156 Cal. 82, 103 Pac. 317; Kaw Life Assn. v. Lemke, 40 Kan. 142, 19 Pac. 337; National Coal Co. v. Cincinnati, G. C. C. & M. Co., 168 Mich. 195, 131 N. W. 580.)</p> <p>The default was properly entered, and the motion to quash the service of summons did not extend the time for appearing or answering the suit. {Mantel v. Casey, 31 Mont. 408, 78 Pac. 591; Higley v. Pollock, 21 Nev. 198, 27 Pae. 895; Goldstein v. Peter. Fox Sons Co., 22 N. D. 636, 135 N. W. 180, 40 L. R. A., N. S., 566 ;Pilant v. Hirsch & Co., 14 N. M. 11, 88 Pac. 1129.)</p> <p>The order appealed from as disclosed by this record is not an appealable order. {Recnj v. Butler, 69 Cal. 572, 11 Pac. 469; Tripp v. Santa Rosa St. R. Co., 69 Cal. 632, 11 Pac. 219; Goyhinech v. Goyhinech, 80 Cal. 409, 22 Pac. 175; Kubli v. Hawkett, 89 Cal. 638, 27 Pae. 57; Lee Chunk v. Quan Wo Chong, 91 Cal. 592, 28 Pac. 45; Symons v. Bunnell, 101 Cal. 223, 35 Pac. 770; In re Gregory’s Estate, 122 Cal. 483, 55 Pac. 144; Hibbard, Spencer, Bartlett & Co. v. De Lanty, 20 Wash. 539, 56 Pac. 34; National Christian Assn. v. Simpson, 21 Wash. 16, 56 Pac. 844; Morrell Hdw. Co. v. Princess Gold-Min. Co., 16 Colo. App. 54, 63 Pac. 807; Birch v. Cooper, 136 Cal. 636, 69 Pac. 420; Kent v. Williams, 146 Cal. 3, 79 Pae. 527; Alpers v. Bliss, 145 Cal. 565, 79 Pac. 171; Taylor v. Marshall, 12 Cal. App. 549, 107 Pac. 1012; Steinberg v. Jacobs, 21 Cal. App. 765, 132. Pac. 1062.)</p>

Hon. Wm. A. Babcock, Judge. Appeal from order dissolving temporary injunction., The severing of crops from the soil cannot effect a transfer of the title to the crops thus severed. The severance of the crops from the soil did change the character of the property, but in no way changed the title. (Carlisle v. Killehrew, 89 Ala. 329, 6 So. 756, 6 L. R. A. 617; Van Alen v. Rogers, 1 Johns. Cas. (N. Y.) 281, 1 Am.

Hon. Wm. A. Babcock, Judge. Action to set aside conveyance. Judgment for plaintiff. If error has clearly intervened, the general rule is that the judgment must be reversed and a new trial granted. (1 Haynes on New Trial and Appeal, sec. 108; 20 R. C. L. 227.) Declarations of a grantor against the title of his grantee, made after he has parted with title, are not admissible.

<p>APPEAL from the District Court of the Fourth Judicial District, for Twin Falls County. Hon. ¥m. A. Babcock, Judge.</p> <p>Action for damages. Judgment for plaintiff.</p> <p>The obligation of the carrier with respect to the sufficiency of the pens was only that degree of care and diligence that a reasonably prudent man would, under all the circum-stances, have exercised, (Chicago, B. I. & P. B. Co. v.: Crenshaw (Tex. Civ. App.), 126 S. W. 602; Humphreys v. St. Louis & H. B. Co., 191 Mo. App. 710, 178 S. W. 233; 2 Hutchinson on Carriers, 3d ed., sec. 510; 4 R. C. L. 969.)</p> <p>In the exercise of ordinary care, the railroad company is not, in the absence of notice that vicious dogs are in the vicinity and apt to molest sheep, bound to anticipate that dogs will so molest such sheep, and to make its fences dog-proof as well as stock-proof. (Beckman v. Southern Pac. B. Co., 39 Utah, 472, 118 Pac. 118.)</p> <p>Where the shipper assumes responsibility for stock while off cars, he alone is responsible for failure to reasonably and . properly protect the same. (Heller v. Chicago, G. B. T. B. Co., 109 Mich. 53, 63 Am. St. 541, and note, 66 N. W. 667; 4 R. C. L. 731; St. Louis, I. M. & So. B. Co. v. Hudgins Produce Co., 1Í8 Ark. 398, 177 S. W. 400; Nunnelee v. St. Louis, I. M. & S. B. Co., 145 Mo. App. 17, 129 S. W. 762; Curry v. Seaboard Air Line B. Co., 156 N. C. 432, 72 S. E. 493.)</p> <p>“It is the duty of a carrier to- furnish suitable and safe facilities and appliances for loading and unloading stock at their shipping stations and to use due care in keeping such pens and loading appliances in a reasonably safe condition.” (4 R. C. L. 972; note to St. Louis, 8. F. B. B. Co. v. Beets, 75 Kan. 295, 89 Pac. 683, 10 L. R. A., N. S., 571; note to Norfolk & W. B. C. Co. v. Harman, 91 Va. 601, 50 Am. St. 855, 22 S. E. 490, 44 L. R. A. 289.)</p> <p>It is common knowledge that ordinary dogs not accustomed to sheep, upon coming in contact with sheep for the first time invariably chase, and sometimes kill them. “The court will take judicial notice of common knowledge.” (15 R. C. L. 1102, and authorities.)</p>

Hon. Wm. A. Babcock, Judge. Action by David B. Allison to recover on a beneficiary certificate issued by defendant Brotherhood of Railroad Trainmen. From judgment for plaintiff, intervenor Hannah Allison appeals.

Hon. Robt. M. Terrell, Judge. Appellant was convicted of the crime of being a persistent violator of the prohibitory law. The court had absolutely no jurisdiction to render the judgment in the former case which it did. {Ex parte Cox, 3 Ida. 530, 95 Am. St. 29, 32 Pac. 197.) Then the judgment in that' case is void. If the judgment was void, it was not a prior conviction, and would not authorize the conviction of this defendant, as a persistent violator, of a felony.

<p>APPEAL from the District Court of the Eleventh Judicial District, for Twin Falls County. Hon. Wm. A. Babcock, Judge.</p> <p>Action for removal of officer for neglect of official duties and for payment of penalty. Judgment for plaintiff.</p> <p>Sec. 8684, C. S., is highly penal in its nature and should be strictly construed, and will not be extended to cover acts and omissions which do not come clearly within its terms. (Coleman v. Wanamaker, 27 Ida. 342, 149 Pae. 292; Mc-Boberts v. Hoar, 28 Ida. 163, 152 Pae. 1046; Daugherty v. Nagel, 28 Ida. 302, 154 Pac. 375; Corker v. Cowen, 30 Ida. 213, 164 Pae. 85.)</p> <p>Removal from office is a crime or public offense. (See. 8082, C. S.) In every crime or public offense there must exist union or joint operation of act and intent. (See. 8087, C. S.)</p> <p>If the defendant acted honestly and without intent to • defraud the highway district, he will not be removed from office. (Ponting v. Isaman, 7 Ida.- 581, 65 Pac. 434; Triplett v. Munter, 50 Cal. 644; Smith v. Ling, 68 Cal. 324, 9 Pac. 171.)</p> <p>The neglect or refusal mentioned in the statute must be wilful, intentional or corrupt. (Ponting v. Isaman, supra; Triplett v. Munter, supra; Corker v. Pence, 12 Ida. 152, 85 Pac. 388; Coleman v. Wanamaker, supra; Daugherty v. Nagel, supra; McBoberts v. Hoar, supra; Corker v. Cowen, supra.)</p> <p>If the defendant honestly sought the advice of his legal adviser, and honestly followed it, he will not be removed from office, although in following such advice he acted wrongfully. (Ponting v. Isaman, supra.)</p> <p>Actions under sec. 8684, C. S., while of a penal nature, are not criminal. (BanJcin v. Jauman, 4 Ida. 53, 36 Pac. 502; Hays v. Simmons, 6 Ida. 651, 59 Pac. 182; Ponting v. Isaman, 7 Ida. 283, 62 Pac. 680; Cline v. Superior Court, 184 Cal. 331, 193 Pac. 929; In re 'Burleigh, 145 Cal. 35, 78 Pac. 242; People v. Meakim, 133 N. T. 214, 30 N. E. 828; State v. Foster, 32 Kan. 14, 3 Pac. 534; Skeen v. Craig, 31 Utah, 20, 86 Pac. 487; State ex rel. Smith v. Brown, 24 Okl. 433, 103 Pac. 762; Territory v. Sanches, 14 N. M. 493, 20 Ann. Cas. 109, 94 Pac. 954; State v. District Court, 44 Mont. 318, Ann. Cas. 1913B, 396, 119 Pac. 1103; State v. District Court, 53 Mont. 350, 165 Pac. 294; State v. Borstad, 27 N. D. 533, Ann. Cas. 1916B, 1014, 147 N. W. 380; Gay v. District Court, 41 Nev. 330, 171 Pac. 156, 3 A. L. E. 224; State v. Medler, 17 N. M. 644, Ann. Cas. 1915B, 1141, 131 Pac. 976; see. 1, art. 5, Idaho Const.; Worthman v. Shane, 31 Ida. 433, 173 Pac. 750.)</p> <p>An action penal in its nature is not a criminal action. (Sees. 3161, 3309, 3337, 3462, 1313, C. S.; 18 Am. & Eng. Eney. Law, 268; St. Louis etc. By. Co. v. State, 56 Ark. 166, 19 S. W. 572; State v. Indiana etc. By. Co., 133 Ind. 69, 32 N. E. 817, 18 L. E. A. 502; 30 Cyc. 1329; 6 Words and Phrases, 5268; 2 Words and Phrases, pp. 1330, 1741; Bailey v. Dean, 5 Barb. (N. T.) 297.)</p> <p>Ignorance of the law will not excuse an officer in a proceeding of this nature, and this is true even though he acts upon the advice of counsel as to what the law is. (Miller v. Smith,, 7 Ida. 204, 61 Pac. 824; Bobinson v. Huffaher, 23 Ida. 173, 129 Pac. 334; State v. District Court, 44 Mont. 318, Ann. Cas. 1913B, 396, 119 Pac. 1103; Bankin v. Jaurnan, supra.)</p> <p>An officer is legally responsible for the errors and omissions of an inferior officer or clerk. (State v. Beid, 129 La. 158, Ann. Cas. 1912D, 1081, 55 So. 748; Attorney General v. Jochiem, 99 Mich. 358, 41 Am. St. 606, 58 N. W. 611, 23 L. E. A. 699.)</p>

Hon. Robert M. Terrell, Judge. Action to oust defendant from office of sheriff. Prom verdict and judgment of ouster, defendant appeals.

Hon. F. J. Cowen, Judge. Action in foreclosure. Judgment for plaintiff.

Original proceeding for Writ of Mandate. Defendants demur. Demurrer sustained; alternative writ quashed and peremptory writ denied. The object of the stay bond is to prevent the enforcement of a decree or judgment pending the appeal, and if the stay bond is not given, the enforcement of such decree is not stayed. (California Mortgage & Savings Bank v. Graves, 129 Cal. 649, 62 Pae. 259; Montgomery v. Tutt, 11 Cal. 190, 191; Union Mutual Life Ins.

Hon. Wm. W. Woods, Judge. Defendants were charged with robbery and convicted of assault. Appeal from judgment of conviction and from order denying motion for new trial. Where the information charges a defendant with the commission of a felony, the verdict of the jury must be unanimous. (Debates and Proceedings, Idaho Const. Con., vol. 1, pp. 235-260; Idaho Const., art. 1, sec. 7; Idaho Comp.

Hon. W. N. Scales, Judge. Action by stockholders to compel the issuance to them of certificates of stock.

Hon. W. W. Woods, Judge. Action to condemn a right of way. Defendants appeal. Where only a part of a tract is taken, the measure of damage is the injury done to the fair market value of the entire tract by the taking. (15 Cyc. 687-689; Nichols on Eminent Domain, 2d ed., 237.) A view should not be granted when it appears that material physical changes have occurred in the character of the premises between the time the cause of action arose and the time of trial.

<p>APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. Robert N. Dunn, Judge.</p> <p>Action for damages and injunction. Cross-appeals.</p> <p>The land under navigable streams of this state does not pass to the patentees of the United States by the sale of lots or lands bordering on such streams. (Northern Pac. B. B. Co. v. Hirsel, 29 Ida. 438, 161 Pac. 854.)</p> <p>Grants by the United States of lands bounded by labes and streams are to be construed and given effect according to the law of the state in which the land lays, and each state determines for itself to what extent it will retain and exercise this prerogative over the lands under said streams and water. (Hardin v. Jordan, 140 U. S. 371, 11 Sup. Ct. 808, 838, 35 L. ed. 428; McLennan v. Prentice, 85 Wis. 427, 55 N. W. 764.)</p> <p>“Where a permanent dam was erected in a navigable stream, causing the water above it to be raised, the rights of riparian owners above the dam, as against persons entitled to use the stream, are to be construed with reference to the changed conditions, and not as they existed before the dam was built.” (Mendota Club v. Anderson, 101 Wis. 479, 78 N. W. 185; Steele v. Sanches, 72 Iowa, 65, 2 Am. St. 233, 33 N. W. 366; Pewaukee v. Savoy, 103 Wis. 271, 74 Am. St. 859, 79 N. W. 436, 50 L. R. A. 836.)</p> <p>The state holds the title to the beds of navigable streams below the natural or average high-water mark. (Northern Pac. B. Co. v. Hirzel, 29 Ida. 438, 161 Pae. 854.)</p> <p>The level of the waters of Lake Coeur d’Alene as held by the dam of the Washington Water Power Co. is not the natural or average high-water mark of the lake. The natural or average high-water mark of the lake referred to in the case cited and kindred decisions must mean the high-water mark of the lake before it has been raised by dams or other artificial means.</p>

<p>Habeas Corpus — Custody op Children — Husband and Wipe — Examination or Cross-examination op Adverse Party — Eight to Visit Children — Eight to Contribute to Support,</p> <p>1. In habeas corpus proceedings brought by a husband against his wife to obtain the custody of children, the latter may be cross-examined by the former as an adverse party under C. S,, see. 8035, or may be examined as his own witness.</p> <p>2. Where, in such a proceeding, the husband’s counsel states he would like to ask the wife a few questions, to which her counsel says, “We object,” and the court says, “I do not think you can cross-examine her unless she goes on the stand herself,” and where counsel does not call her to the stand nor ask that she be sworn, nor state what questions he proposes to ask her, nor what he proposes to prove by her, the record does not establish such a denial of the husband’s rights as to constitute reversible error.</p> <p>3. In such a proceeding, although the court award the custody of the children to the mother, nevertheless it may order that the father be allowed to visit the children at suitable times and places, and that money offered by the father be used for the benefit of the children.</p>

Hon. Robert N. Dunn, Judge. Action for injury to livestock. Judgment of nonsuit. “The owner, by permitting his cattle to be at large, simply takes the risk of inevitable accident to them, but not of injuries arising from want of ordinary care.” (Little Bock etc. B. Co. v. Finley, 37 Ark. 562; Macon etc. B. Co. v. Lester, 30 Ga. 911; Georgia B. etc. Co. v. Neely, 56 Ga. 540; Memphis etc. B. Co. v. Blakeney, 43 Miss. 218; Kerwhaker v. Cleveland etc. B. Co., 3 Ohio St. 172, 62…

<p>Judgment in Supreme Court in Criminal Case — Remittitur—Retention of Jurisdiction — Modification of Judgment After Remittitur — Alternative Penalty Dnder C. S., Sec. 8212 — Judicial Act of Jury.</p> <p>1. When a judgment has been rendered by the appellate court in a criminal case under a mistake of fact or in consequence of not being properly presented by counsel on appeal, the court may in furtherance of justice modify such judgment at any time during the term at which it was rendered.</p> <p>2. When it is clearly made to appear to the appellate court after the going down of the remittitur in a criminal case and before the sentence of conviction has been carried into effect, that considerations of justice warrant a modification of its judgment, it may order the remittitur recalled and thereupon modify the judgment of the lower court under the provisions of C. S., sec. 6446.</p> <p>3. The action of a jury in imposing the death penalty under the provisions of O. S., sec. 8212, becomes merged in the judgment of the lower court, which under the provisions of O. S., sec. 6446, the appellate court has power to modify.</p> <p>4. The decision of the jury as to which alternative penalty shall be imposed for the crime of murder in the first degree, under the provisions of C. S., sec. 8212, is a judicial act, requiring the exercise of judicial power, and the legislature is without authority to clothe the jury with the exclusive power to fix the extent of the punishment under this section, regardless of the jurisdiction of the appellate court to review any decision of the district court under art. 5, sec. 9, of the constitution.</p> <p>5. In all cases triable by a jury the court is made up of the judge and jury, and the two combined constitute the court. The final decision resulting in such eases is the decision of the court, and as such is subject to review by the appellate court under the constitution and laws of the state.</p> <p>6. Where in the trial of a criminal ease error has been committed which, though not distinctly prejudicial to the defendant or sueh as would warrant a reversal of the ease, has nevertheless, in connection with other facts and circumstances, been instrumental in excessive punishment being inflicted upon the defendant, such judgment may properly be modified by the appellate court under the provisions of O. S.,' sec. 9086.</p> <p>7. Held, that the evidence in this case as shown by the reeord on appeal is not sufficient to warrant the imposition of the extreme penalty of the law.</p>

<p>Mortgage — -Purchase Price — Beal Estate — Validity op, Where Wipe Does not Join in Execution — Priority op, Against Wipe’s Community Interest- — Assignment op Certificate of Sale to State Lands — Warranty by Assignor — Evidence—Admissibility to Prove Knowledge op Adverse Claim — Admissibility to Prove Several Instruments Part op One Transaction.</p> <p>1. A mortgage given by tbe husband fox the purchase price of real estate has priority over any statutory right of the wife in such real estate, and such mortgage is good and effectual against the wife of the mortgagor without her joining in the execution thereof.</p> <p>2. Where the assignor of a certificate of sale to state lands assigns all his right, title and interest under such certificate, he does not warrant the title to the lands described in such certificate nor undertake to defend such title.</p> <p>3. The admission of evidence tending to show that the purchaser of an assignment to a certificate of sale to state lands had knowledge of an adverse claim to a portion of the lands covered by such certificate at the time of such purchase does not constitute prejudicial error.</p> <p>4. Error cannot be predicated upon the admission of testimony tending to prove that three instruments executed by the parties at about the same time and relating generally to the same subject matter were all one transaction. Such evidence does not vary the terms of a written instrument.</p>

<p>APPEAL from the District Court of the Eighth Judicial District, for Benewah County. Hon. R. N. Dunn, Judge.</p> <p>Action to recover possession of an automobile or its value in lieu thereof. Judgment for plaintiff.</p> <p>“Where default is made by a vendee in some of the conditions expressed in a conditional sale of personal property, wherein it was provided that title should not pass to the vendee until all conditions were performed, the vendor is entitled to possession of the property and to choose his own paymaster, and he is not hound to accept any offer of payment from any other person other than the original purchaser.” (Lippincott v. Rich, 19 Utah, 140, 56 Pac. 806.)</p> <p>In actions of this kind demand need only be made where it is necessary to terminate a right of the party to the property or to confer such a right upon the plaintiff. (13 Cyc. 1404; Leek v. Chesley, 98 Iowa, 593, 67 N. W. 580; King v. Munce, 40 Colo. 276, 90 Pac. 603; Burchett v. Purdy, 2 Okl. 391, 37 Pae. 1053.)</p> <p>Where the defendant pleads ownership and title, demand is eliminated from the case. (Thompson v. Thompson, 11 N. D. 208, 91 N. W. 44; Bunce v. McMahon, 6 Wyo. 24, 42 Pac. 23; Guthrie v. Olsen, 44 Minn. 404, 46 N. W. 853.)</p> <p>Where one either by act or deed permits or induces another person to purchase property without notifying him of any claim of his in the property, he becomes estopped thereafter to set the same up. {Trustees v. Smith, 118 N. Y. 634, 23 N. E. 1002, 7 L. R. A. 755; Bryan v. Ramirez, 8 Cal. 461, 68 Am. Dec. 340; Lindsay v. Cooper, 94 Ala. 170, 33 Am. St. 105, 11 So. 325, 16 L. R. A. 813; Carpy v. Dowdell, 115 Cal. 677, 47 Pac. 695; Dickerson v. Colgrove, 100 U. S. 580, 25 L. ed. 618; Markham v. O’Connor, 52 Ga. 183, 21 Am. Rep. 249; Thompson v. Sanborn, 11 N. H. 201, 35 Am. Dec. 490; 16 Cyc. 761, 763, 764, 770; Miller v. Ross, 107 Mich. 538, 65 N. W. 562; Brooks v. Martin, 43 Ala. 360, 94 Am. Dee. 686.)</p> <p>Under the explicit provisions of sec. 8049, C. S., as well as numerous decisions thereon, the various tenders made were sufficient and the company could not escape the same by their actions in the case. (38 Cyc. 134AL36; Holmes v. Holmes, 12 Barb. (N. Y.) 137; Witt v. Dersham, 146 Mich. 68, 109 N. W. 25.)</p> <p>A demand or some affirmative action by the vendor terminating the contract is essential and necessary before the vendee’s right in the property is terminated. (People’s Furniture & C. Co. v. Crosby, 57 Neb. 282, 73 Am. St. 504, 77 N. W. 658; O’Rourke v. Hadcock, 114 N. Y. 541, 22 N. E. 33; New Home Sewing Machine Go. v. Bothane, 70 Mich. 443, 38 N. W. 326; Wheeler & Wilson Mfg. Co. v. Teetzlaff, 53 Wis. 211, 10 N. W. 155; Nattin v. Riley, 54 Ark. 30, 14 S. W. 1100; Day v. Bassett, 102 Mass. 445.)</p> <p>The vendee should be given the opportunity to pay when a forfeiture is declared. (35 Cyc. 673; Pease v. Teller Co., 22 Ida. 807, 123 Pac. 981.)</p> <p>Reynolds took his title to this property charged with absolute knowledge of Leaf’s interest therein. One buying property under such conditions is only in the position of the vendor. (California Cured Fruit Assn. v. Stelling, 141 Cal. 713, 75 Pac. 320; Phillips v. Beitz, 16 Kan. 396; Hayden v. Dwyer, 47 Minn. 246, 50 N. W. 200; Gaertner v. Western Elevator Co., 104 Minn. 467, 116 N. W. 945; 5 C. J. 962, par. 150; Fleming v. Law, 163 Cal. 227, 124 Pac. 1018; Northwestern & P. H. Bank v. Bauch, 8 Ida. 50, 66 Pac. 807.)</p>

Hon. Edgar C. Steele, Judge. Action for damages for alleged negligence in failing to remove a gauze sponge after an operation for appendicitis. Judgment for plaintiffs and defendant appeals.

Hon. Wallace N. Scales, Judge. Action on promissory note. Judgment for plaintiff. The statute which provides that an action for relief against fraud must be commenced within a certain period does not apply where the fraud is set up merely by way of defense and not as a ground for af6rmative relief. (25 Cyc. 1194; Wood on Limitations, art. 284, subd. 2; Evans v. Duke, 6 Cal. Unrep. 973, 69 Pac. 688; Thomas v. Bauer, 62 Kan. 568, 64 Pac. 80; Brown v. Cloud County Bank, 2 Kan.

<p>APPEAL from the District Court of tbe First Judicial District, for Shoshone County. Hon. William W. Woods, Judge.</p> <p>Action for damages to real property. Judgment for plaintiff.</p> <p>The court committed prejudicial error in not requiring witnesses to qualify before receiving their testimony. (Jones on Evidence, sec. 363, p. 456.)</p> <p>“If the land is temporarily but not permanently injured, the owner is entitled to recover the amount necessary to repair the injury and put the land in the condition it was at the time immediately preceding the injury, with legal interest thereon to the time of the trial.” (Boise Valley Const. Co. v. Kroeger, 17 Ida. 384, 105 Pac. 1070, 28 L. R. A., N. S., 968; Young v. Extension Ditch Co., 13 Ida. 174,. 89 Pae. 296.)</p> <p>“On navigable streams riparian rights do not extend beyond the high-water mark.” (Northern Pac. By. Co. v. Sired, 29 Ida. 438, 161 Pac. 854.)</p> <p>“The title of the state extends not only to the land underlying that part of a navigable stream or body of water over which navigation may be conducted, but extends to the entire bed, and in particular to the land which is covered and uncovered by the ordinary rise and fall of the tide, stream or lake.” {Churchill Co. v. Kingsbury, 178 Cal. 554, 174 Pac. 329; Barney v. Keokuk, 94 U. S. 324, 24 L. ed. 224; McManus v. Carmichael, 3 Iowa, 1.)</p> <p>The defendant had the right to use the channel of the north fork of the Coenr d’Alene River at all stages of the water (Idaho Northern By. Co. v. Post Falls Lbr. Co., 20 Ida. 695, 119 Pae. 1098, 38 L. R. A., N. S., 114; Mashburn v. St. Joe Improvement Co., 19 Ida. 30, 113 Pac. 92, 35 L. R. A., N. S., 824), and it has been held that snch use, even when the water is above the line of mean high water, would not be a use of the adjoining land. (Lownsdale v. Grays Harbor Boom Co., 36 Wash. 198, 78 Pac. 904.)</p> <p>Where one instruction is ambiguous or incomplete, but taken with all the instructions correctly states the law, the decision of the lower court will not be reversed on account of such incomplete or ambiguous instruction. (Brayman v. Bussell & Pugh Lumber Co., 31 Ida. 140, 169 Pac. 932.)</p>

<p>APPEAL from the District Court of the Eighth Judicial District, for' Kootenai County. Hon. R. N. Dunn, Judge.</p> <p>Action for damages for ouster of a partner from a partnership. Judgment for plaintiff.</p> <p>“An action at law by one partner against his copartner will not lie on the claim growing out of the partnership transactions until the business is wound up and the accounts finally settled.” (20 R. C. L. 924; 30 Cyc. 461.)</p> <p>“Costs can be imposed and recovered only in eases where there is statutory authority therefor. ” (11 Cyc. 24; Bhodenbaugh v. Sting el, 31 Ida. 594, 174 Pae. 604.)</p> <p>“Where the cause has not been set for trial, or is improperly listed, a party cannot tax as costs witness fees of witnesses for attendance.” (11 Cyc. 119.)</p> <p>“Evidence of profits realized during the continuance of the partnership may be received in evidence as aiding to estimate profits which would have been realized thereafter had the firm been continued.” (Bagley v. Smith, 10 N. Y. 489, 61 Am. Dec. 756; Taylor v. Nelson, 26 Cal. App. 681, 147 Pac. 1189; Gilbert v. Grubel, 82 Kan. 476, 108 Pac. 798; 30 Cyc. 465.)</p> <p>The provisions of see. 7210, C. S., apply to actions brought originally in the district eourt, and not to those originally brought in a justice’s court and appealed to the district court. (Boseborough v. Whittington, 15 Ida. 100, 96 Pac. 437.)</p>

Hon. R. N. Dunn, Judge. Judgment of dismissal for failure to furnish security for costs. As a general rule, if there is any reasonable doubt in the matter, it will be resolved in favor of the granting of the application to set aside the judgment and allowing the trial upon the merits of the case.

Hon. R. N. Dunn, Judge. ' Action for wages and penalty. Judgment for plaintiffs. On learning that the men had quit, the defendants, though wronged, hastened to pay off the men. The law demands no more than reason dictates. (Wisconsin & Ark. Lumber Co. v. Heaves, 82 Ark. 377, 102 S. W. 206.) The tenders made on the 28th and 30th of June and on the 3d of July stopped the running of the penalty, if the statute applied to such a case. (St. Louis By.

<p>APPEAL from the District Court of the Second. Judicial District, for Latah County. Hon. Edgar C. Steele, Judge.</p> <p>Action for damages for slander. Appeal from judgment of dismissal.</p> <p>In an action for damages for slander the burden of proving the truth of the alleged slanderous statement is upon the defendant. (Reynolds v. Holland, 46 Wash. 537, 90 Pae. 648; Adams v. Cameron, 27 Cal. App. 625, 150 Pae. 1005, 151 Pae. 286; 10 R. C. L. 898, see. 48; 14 R. C. L. 721, sec. 32.)</p> <p>The answer of the defendant does not properly plead justification. (17 R. C. L. 399.)</p> <p>Under the answer of the defendant it is immaterial whether the plaintiff is or was syphilitic. (17 R. C. L. 399, 400, sec. 156.)</p> <p>When a defendant alleges the truth of his slanderous assertion he must be able to substantiate his plea without invading the privacy of the person about whom the charge is made. (14 R. C. L. 722; Kern v. Bridwell, 119 Ind. 226, 12 Am. St. 409, 21 N. E. 664.)</p> <p>The falsity of defamatory words is presumed, and it is not necessary that the plaintiff shall in the first instance offer any proof that the words are false. (25 Cyc. 491; Adams v. Cameron, 27 Cal. App. 625, 150 Pac. 1005, 151 Pac. 286.)</p> <p>“When several separate and distinct things are charged, the defendant may justify as to one, though he fail as to the others.” {Kero v. Ruscoe, 4 N. Y. 162; Saunders v. Post-Standard Pub. Co., 107 App. Div. 84, 94 N. Y. Supp. 993; Powers v. Skinner, 1 Wend. (N. Y.) 451.)</p> <p>“The right of defendant to an order for a physical examination of plaintiff is not absolute but rests in the discretion of the court.” (18 C. J. 1112; Alabama Great Southern R. Co. v. Hill, 90 Ala. 71, 24 Am. St. 764, 8 So. 90, 9 L. R. A. 442; Western Glass Mfg. Co. v. Schoeninger, 42 Colo. 357, 126 Am. St. 165, 94 Pae. 342, 15 L. R. A., N. S., 663; Richmond etc. R. Co. v. Childress, 82 Ga. 719, 14 Am. St. 189, 9 S. E. 602, 3 L. R. A. 808; South Bend v. Turner, 156 Ind. 418, 83 Am. St. 200, 60 N. E. 271, 54 L. R. A. 396; Logan v. Lenawee County Agr. Soc., 156 Mich. 537, 121 N. W. 485; O’Brien v. City of La Crosse, 99 Wis. 421, 75 N. W. 81, 40 L. R. A. 831; Shepard v. Missouri Pac. B. Co., 85 Mo. 629, 55 Am. Rep. 390; St. Louis S. W. B. Co. v. Dobbins, 60 Ark. 481, 30 S. W. 887, 31 S. W. 147; Graves v. Battle Creek, 95 Mich. 266, 35 Am. St. 561, 54 N. W. 757, 19 L. R. A. 641.)</p> <p>“Where plaintiff refuses to obey the order, the court may discuss the case, or stay the proceedings, or decline to permit any evidence to establish the injury until compliance with the order.” (Wanek v. City of Winona, 78 Minn. 98, 79 Am. St. 354, 80 N. W. 851, 46 L. R. A. 448; Miami etc. Turnpike Co. v. Baily, 37 Ohio St. 104.)</p> <p>In the case of Kokomo, M. & W. Traction Co. v. Walsh, 58 Ind. App. 182, 108 N. E. 19, an entirely different rule was recognized than that set out in the case of Kern v. Bridwell, and we believe this decision overrules the rule established in the former case.</p>

<p>Boundaries — Adverse Possession — Estoppel—Instructions—Procedure.</p> <p>1. In order for a boundary line established by a common grantor of lands on both sides of sueh line to become binding and conclusive upon the grantees, it must plainly appear that the land was sold and purchased with reference to sueh line and that there was a meeting of minds as to the identical tract of land to be transferred by the sale.</p> <p>2. In order for one to obtain title to land by adverse possession, sueh possession must be hostile as against the true owner and the world at its inception.</p> <p>3. One who occupies land adjoining a partition fence which is built in ignorance of the true division line, under an agreement that the land shall be surveyed in the future and the partition fence then moved to. the true division line, does not occupy the land in hostility to the true owner.</p> <p>Publisher’s Note.</p> <p>3. Possession taken and held beyond boundary through mistake or ignorance constituting adverse possession, see notes in 24 Am. Rep. 388; 15 Ann. Cas. 827; Ann. Cas. 1912A, 450; 21 L. E. A. 829; 33 Ii. E. A., N. S., 923.</p> <p>4. It is not error to refuse to give a requested instruction when the proposition of law contained therein is sufficiently covered by other instructions given by the court.</p> <p>5. It is not reversible error for the trial court to depart from the order of procedure indicated by C. S., sec. 6847, where no objection was interposed to the order of procedure adopted by the court and no request proffered to the court to follow the order indicated by the statute.</p>

Hon. Ed. L. Bryan, Judge. Action to recover from appellant Moore and his surety moneys collected by him as assessor and tax collector and not paid over to the county. Judgment for .plaintiff, and defendant appeals.

<p>Criminal Law — Information—Certainty—Included Offense.</p> <p>1. An. information charging an assault with attempt to commit murder does not necessarily include an assault with a deadly weapon or instrument, or an assault by means and foree likely to produce great bodily injury.</p> <p>2. An information charging an assault with intent. to commit murder by then and there striking, hitting and beating a person with a heavy stick or club does not charge an assault with means and force likely to produce great bodily injury.</p> <p>Publisher’s Note.</p> <p>2. What constitutes a deadly weapon, see notes in Ann. Cas. 1912A, 1328; Ann. Cas. 1916E, 308; 8 A. L. E. 1319.</p> <p>3. An information to be sufficient must state the facts clearly and distinctly. It is not sufficient that the facts appear by inference or argument.</p> <p>4. A defendant in a criminal action cannot be convicted of a crime not necessarily included in the information.</p>

<p>Action to Quiet Title — Tax Title — Purchase by One Who Later Becomes Mortgagee — Tax Deed — Prima Facie Evidence.</p> <p>1. When one purchases property at a sale for delinquent taxes, the fact that he later takes a mortgage on it does not preclude him from relying on his tax title.</p> <p>2. Under such circumstances the taxes paid are not part of the mortgage debt.</p> <p>3. A tax deed is prima fade evidence of the validity of the assessment and levy of the tax, and must be overcome by one asserting the contrary.</p>

Hon.-R. N. Dunn, Judge. Action for damages for death caused by negligence. Judgment for plaintiff, order denying a motion for new trial, and order taxing costs. The plaintiffs have offered no evidence of any fault or negligence on the part of the defendant company, and .said cause should not have been submitted to the jury upon a mere description of the accident.

Hon. Robert N. Dunn, Judge. Action for damages for personal injuries. Judgment of nonsuit. The failure of the respondent to sound a whistle or ring a bell when approaching the place where appellant was injured, and the violation of the speed ordinance passed by the city of Wallace constituted negligence per se, or at least raised a presumption of negligence. (Wheeler v. Oregon B. B. etc. Co., 16 Ida. 375, 102 Pac. 317; Graves v. Northern Pac. By.

<p>APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. John M. Flynn, Judge.</p> <p>From judgment of district court affirming award of industrial accident board defendant appeals.</p> <p>Under the constitutional provisions and the general statute relating to appeals to the supreme court and the Industrial Insurance Act itself, the appellants are entitled to an appeal. (Sec. 9; art. 5, Const.; Maple v. Williams, 15 Ida. 642, 98 Pac. 848.)</p> <p>“The word ‘accident’ as used in a Compensation Act requiring the injury compensated for to be by ‘ accident, ’ is ■ held to be employed in its ordinary sense as meaning an unlocked for and untoward event which is not expected or designed.” (Corpus Juris, Workmen’s Compensation, pp. 64, 68; 1 Honnold on Workmen’s Compensation, p. 274, 280; Liondale Bleach, Dye <& Paint Works v. Biker, 85 N. J. L. 426, 89 Atl. 929; Prouse v. Industrial Commission of Colorado, 69 Colo. 382, 194 Pac. 625; Pimental’s Case, 235 Mass. 598, 127 N. E'. 424; Lane v. Horn etc. Baking Co., 261 Pa. St. 329, 104 Atl. 615, 13 A. L. R. 963;. McCauley v. Imperial Woolen Co., 261 Pa. St. 312, 104 Atl. 617; Phil Hollenbach Co. v. Hollenbach, 181 Ky. 262, 204 S. W. 152, 13 A. L. R. 524; Btonibaugh v. Peerless Wire Pence Co., 198 Mich. 445, 164 N. W. 537; Bucyrus Co. v. Townsend, 65 Ind. App. 687, 117 N. E. 656; In re Sanderson’s Case, 224 Mass. 558, 113 N. E. 355; Steel v. Cammell, Laird & Go. (Eng.), 2 K. B. Div. [1905] 232; Adshead’s Elliott on 'Workmen's Compensation, 6th ed., pp. 3-5 et seq.; Cooke v. Holland Furnace Go., 200 Mich. 192, 166 N. W. 1013; Adams v. Acme White Lead etc. Works, 182 Mich. 157, Ann. Cas. 1916D, 689, 148 N. W. 485, L. R, A. 1916A, 283; De Witt v. Jacoby Bros., 1 Cal. Ind. Acc. Com. Dee. (No. 11, 1914) 4, cited in 6 N. C. C. A. 488, note.)</p> <p>The loss of an eye by a one-eyed man does not constitute a permanent total disability. (See. 6234, I. C. S.; Winn v. Adjustable Table Co., 193 Mich. 127, 159 N. W. 372, 163 N. W. 906; Weaver v. Maxwell Motor Go., 186 Mich. 588, Ann. Cas. 1917E, 238, 152 N. W. 993, L. R. A. 1916B, 1276; 8 A. L. R., note, p. 1325.)</p> <p>The only logical and reasonable construction that can be placed upon all the statutes taken together is that it must have been intended by the legislature, when an injury causes total incapacity and permanent disability to an employee, that the total disability statute should apply. (In re Madden, 222 Mass. 487, 111 N. E. 379, L. R. A. 1916D, 1000; In re Branconnier, 223 Mass. 273, 111 N. E. 792.)</p> <p>“Where, by reason of a previously impaired physical condition of the employee, an accident results in a total incapacity, an award of compensation for total incapacity is permitted under some of the authorities, although a normal employee would have been only partially incapacitated.” (Corpus Juris, Workmen’s Compensation Acts, p. 94; Schwab v. Emporium Forestry Go., 167 App. Div. 614, 153 N. T. Supp. 234.)</p> <p>The provisions of this act have been very liberally construed, in order to give the law the effect and the protection which it intended. (Pettit v. Mendenhall, 2 Cal. Ind. Acc. Com. Dec. 238; Smith v. Munger Laundry Go., 1 Cal. Ind. Acc. Com. Dee. 168; Dalton v. Employers’ Liability Assurance Corp., Ltd., cited in 12 N. C. C. A. 327, note; Santa v. Industrial Acc. Com., 175 Cal. 235, 165 Pac. 689; Sclvroetke v. J ackson-Church Co., 193 Mich. 616, 160 N. "W. 383; Hartford Accident & Indemnity Co. v. Industrial Acc. Corn., 32 Cal. App. 481, 163 Pae. 225; Fleming v. Robert Gair Co., 176 App. Div. 23, 162 N. Y. Supp. 298; Turvey v. Brintons, Ltd. (Eng.), 1 K. B. [1904] 328; Shell Co. of California v. Industrial Acc. Com., 36 Cal. App. 463, 172 Pac. 611; Fidelity & Casualty Co. of New York v. Industrial Acc. Com., 177 Cal. 614, 171 Pac. 429, L. R. A. 1918F, 856.)</p>

<p>APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. Ed. L. Bryan, Judge.</p> <p>Action to recover commission for the sale of real estate. Judgment for defendant.</p> <p>It is not essential that the description should be given with such particularity as to make a resort to extrinsic evidence unnecessary. If the designation is so definite that the purchaser knows exactly what he is buying, and the seller knows what he is selling, and the land is so described that the court can, with the aid of external evidence, apply the description to the exact property intended to be sold, it is enough. (Hollis v. Burgess, 37 Kan. 487, 15 Pac. 536; Allen v. Kitchen, 16 Ida. 133, 18 Ann. Cas. 914, 100 Pac. 1052, L. R. A. 1917A, 563.)</p> <p>Great liberality is allowed in the matter of descriptions. In description that is certain which can be made certain. (2 Devlin on Real Estate, p. 1907, see. 1010.)</p> <p>The contract in question is one that is required to be in writing and must specify the description of the property to be sold. Parol evidence cannot be introduced in order to find tbe description of the property. (Kurdy v. Rogers, 10 Ida. 416, 79 Pac. 195; Allen v. Kitchen, 16 Ida. 133, 18 Ann. Cas. 914, 100 Pac. 1052, L. R. A. 1917A, 563; 9 C. J. 560; Gushing v. Monarch Timber Go., 75 Wash. 676, Ann. Cas. 1914C, 1239, 135 Pac. 660; Thompson v. English, 76 Wash. 23, 135 Pac. 664; Gilman v. Brumton, 94 Wash. 1, 161 Pac. 835; Rogers v. Lippy, 99 Wash. 312, 169 Pac. 858, L. R. A. 1918C, 583; Nance v. Valentine, 99 Wash. 323, 169 Pae. 862; Craig v. Zelian, 137 Cal. 105, 69 Pac. 853.)</p>

<p>Alias Summons — Order—Delay in .Service — Formal Defects — Judicial Control of Process — Special Appearance on Nonjurisdictional Grounds — Alleged Inadequacy of Price at Execution Sale.</p> <p>1. Where neither an affidavit for service of alias summons outside the state nor the order based thereon contain the words “alias summons,” yet both recite that summons had theretofore been issued, returned and filed with the clerk, and the alias summons, affidavit and order were issued, filed and made on the same day and recorded in the register of actions in the order given, in the absence of a contrary showing it must be presumed that such alias summons preceded the order in point of time and was “the summons” to which the affidavit and order refer, and that it was the alias summons ordered to be served upon the defendant outside the state.</p> <p>2. A court has control over its process, and where proper jurisdictional facts empowering the court to act are established to its satisfaction, such process may be delayed but not defeated by mishaps occurring while in the hands of the person by whom service is to be made. It is within the power of the court to order a lost alias summons to be replaced by another upon being satisfied of such loss.</p> <p>2. Parol proof of contents of lost or destroyed process, see note in Ann. Cas. 1916D, 252.</p> <p>3. Errors, defects or delays in the service of process which do not affect the substantial rights of the parties should be disregarded.</p> <p>4. The existence of a verified complaint on file stating a cause of action against a defendant upon whom service is sought to be made is an essential prerequisite to the issuance of an order for personal service of summons outside of the state, under the provisions of C. S., sec. 6677. Whore such a complaint was actually on file at the time the order for service of summons was made, the presumption must be that the court so found, and such presumption is not overcome by a recital that a cause of action exists as appears by affidavit, when the affidavit refers to and adopts the complaint.</p> <p>5. Where a defendant purports to appear specially and moves that a sale under execution be set aside by reason of inadequacy of the sum paid for the property sold, he seeks relief which could be granted only upon the hypothesis that the court has jurisdiction of the cause. Such appearance is accordingly a general appearance and gives the court jurisdiction over him for all purposes of the case.</p> <p>6. Mere inadequacy of price at which property is sold under execution is not sufficient ground to set aside the sale, where the parties stand on an equal footing and there are no confidential relations between them and no element of fraud, unfairness or oppression is shown to have existed with respect to such sale.</p> <p>7. Where a litigant permits judgment to be taken against him by default he cannot be heard seven months after a sale upon execution in pursuance of such judgment to question the adequacy of the price for which the property in question was sold, in the absence of proof of fraud, unfairness or oppression with respect to the sale, or the existence of a confidential relation between the parties.</p>

Hon. Charles F. Reddoeh, Judge. Application for writ of mandate. Writ granted and intervenors Campbell appeal. Intervenors have a vested interest in the lands in question and their interest cannot be taken away from them by such an action as this — they have made their application, paid their rental for the lands in question and the state has accepted such payment. (Baty v. Sale, 43 111. 351, 92 Am.