Volume 35 — Idaho Reports

<p>APPEAL from the District Court of the Eighth Judicial District, for Bonner County. Hon. R. N. Dunn, Judge.</p> <p>Action to enjoin sale of stock. Judgment for plaintiff.</p> <p>Where there is a failure of a part of the lawful consideration, the part which fails is simply a nullity and imparts no taint to the residue. If there is a > substantial consideration left, it will still be sufficient to sustain the contract. (9 Cyc. 370;' 11 Cent. Dig., “Contracts and Equity,” 398-402, authorities therein cited; Desha’s Exrs. v. Robinson, 17 Ark. 228; Case v. Grimm,, 77 Ind. 565; Wilson v. Webster, Morris (Iowa), 312, 41 Am. Dee. 230; Hodgdon v. Golder, 75 Me.-293; Gilmore v. Aiken, 118 Mass. 94; Wesley am Seminary v. Fisher, 4 Mich. 515; Washburn etc. Mfg. Co. v. Wilson, 48 N. T. Supr. Ct. 159; Martin v. Hirst, 6 Phila. (Pa.) 230.)</p> <p>A contract can only be rescinded where it, is possible to put the parties back in their original position and with their original rights. If it cannot be rescinded in toto, it cannot be rescinded at all, and the party complaining must be left to an action in damages. (9 Cyc. 437; Seeby v. Hutchinson, 9 111. 319, 332; Bloomington Electric Light Co. v. Radbourn, 56 111. App. 165; Desha’s Exrs. v. Robinson, supra; Gathin v. Wilcox, 26 Ark. 309; Burge v. Cedar Rapids etc. R. Co., 32 Iowa, 101; Stoddart v. Smith, 5 Binn. (Pa.) 355; Keenan v. Brown, 21 Yt. 86.)</p> <p>Unless the illegal part of the contract is malum in se, equity will not aid a party to recover something which has moved from him under the terms of the contract when those terms have been executed. One seeking relief from an illegal contract where the illegality is malum pro se even then cannot have relief unless he is willing and able to do equity on his part. (Pomeroy’s. Equity Jur., par. 937, p. 1985, and authorities cited.)</p> <p>Every contract made for or about any matter or thing which is prohibited and made unlawful by any statute is a void contract, though the statute itself does not mention that it shall be so but only inflicts a penalty on the offender, because a penalty implies a prohibition thereof though there are no prohibitory words in the statute. (9 Cye. 475, 580’; Aetna Ins. Co. v. Harvey, 11 Wis. 394; Chattanooga, Nat. Bldg. etc. Assn. v. Denson, 189 U. S. 408, 23 Sup. Ct. '630, 47 L. ed. 870 ; 3 Words and Phrases, “Enforced,” and Webster’s Dictionary; Katz v. Herrick, 12 Ida. 1, 86 Pac. 873; 12 R. C. L. 81; Tarr v. Western Loan & Savings Assn., 15 Ida. 741, 99 Pac. 1049, 21 L. R. A., N. S., 707; Valley Lumber & Mfg. Co. v. Driessel, 13 Ida. 662, 13 Ann. Cas. 63, 93 Pac. 765, 15 L. R. A., N. S., 299.)</p> <p>This is not an action for rescission of a contract, and the defendant Standard Development Company is not entitled to be placed in statu quo. (Clark v. American Dev. & Min. Co., 28 Mont. 468, 72 Pae. 978; Reddish v. Smith, 10 Wash. 178, 45 Am. St. 781, 38 Pac. 1003; Lawrence v. Miller, 86 N. T. 131; Suburban Homes Co. v. North, 50 Mont. 108, Ann. Cas. 1917C, 81, 145 Pac. 2; Cook-Reynolds Co. v. Chipman, 47 Mont. 289, 133 Pac. 694; Nr ait v. Daniels-Jones Co., 47 Mont. 487, 133 Pac. 700; Anvil Mining Co. v. Humble, 153 U. S. 540, 14 Sup. Ct. 876, 38 L. ed. 814.)</p>

<p>Court Procedure — Reopening Cause- — Discretion oe Trial Court.</p> <p>The granting of or refusing a request to reopen a cause after submission thereof is within the discretion of the trial court, and its action will not be disturbed, unless an abuse of discretion is shown.</p>

<p>Original petition for Writ of Mandate.</p> <p>Under the provisions of see. 2666, G. S., the duties of the defendant as state auditor are purely ministerial. (In re Huston, 27 Ida. 231, 147 Pac. 1064; Jeffreys v. Huston, 23 Ida. 372, 129 Pac. 1065; Gilbert- v. Moody, 3 Ida. 3, 25 Pac. 1092; Times Pub. Co. v. White, 23 B. I. 334, 50 Atl. 383; McKillop v. Board of Supervisors, 116 Mich. 614, 74 N. W. 1050; State v. Moore, 1 Ohio Dec. 506; Falk v. Strother, 84 Cal. 544, 22 Pac. 676, 24 Pac. 110.)</p> <p>The state board of examiners in passing upon and certifying to the state auditor claims against the state, acts in a judicial capacity in the exercise of a discretionary power. (Pyke v. Steunenberg, 5 Ida. 614, 51 Pae. 614; Bragaw v. Gooding, 14 Ida. 288, 94 Pae. 438.)</p> <p>• The state board of examiners is a constitutional tribunal, and in passing’ a claim under see. 2666, C. S., and certifying the same to the state auditor, determines the existence of all facts prerequisite to the drawing of a warrant by the auditor to pay the claim. (Kroutinger v. Board of Examiners, 8 Ida. 463, 69 Pae. 279; Bragaio v. Gooding, 14 Ida. 288, 94 Pac. 438.)</p> <p>Sec. 3095, C. S., does not constitute an appropriation. (Kingsbury v. Anderson, 5 Ida. 771, 51 Pae. 744; Kroutinger v. Board of Examiners, 8 Ida. 463, 69 Pac. 279; Jeffreys v. Huston, 23 Ida. 372, 129 Pac. 1065; Epperson v. Howell, 28 Ida. 338, 154 Pae. 621.)</p> <p>Sec. 2666, C. S., does not appropriate any moneys to pay such a claim as the plaintiff’s. (Authorities above cited; Oliver v. Bolinger (Ark.), 225 S. W. 314.)</p> <p>Where there are two statutes on the same subject, one statute dealing with the subject in a general and comprehensive way and another dealing with the same subject in a- more minute and definite way, the two should be read together and harmonized if possible, but to the extent of any necessary repugnancy between them, the special will prevail over the general statute. (Oregon Short Line B. Co. v. Minidoka County, 28 Ida. 214, 153 Pae. 424; Boise City National Bank v. Boise City, 15 Ida. 792, 100 Pac. 93.)</p> <p>Statutes that pertain to the same subject matter should be construed together unless they are in conflict, and in case they are, the later or subsequent statute is deemed to repeal the former. (Noble v. Bragaw, 12 Ida. 265, 85 Pac. 903; Sutherland’s Stat. Const., secs. 443, 447, 491.)</p> <p>Sec. 2666, C. S., is inconsistent with the provisions of sec. 3095, C. S., and sec. 2666 being the later statute, will prevail over sec. 3095.</p>

<p>APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. E'd. L. Bryan, Judge.</p> <p>Agister’s action for damages against sheriff foreclosing chattel mortgage. Judgment for plaintiff.</p> <p>The evidence all shows that the defendant in receiving the affidavit of foreclosure of chattel mortgage of the bank and Ms subsequent proceedings in seizing the property and selling the same was in all respects acting lawfully and in accordance with the law, and was justified in seizing and selling said property under said affidavit and demand of the bank. (Secs. 472, 474; Jones on Chattel Mortgages, 5th ed., Smith v. Wormcm, 19 Ohio St. 145; Eisler v. Union Transfer & S. Go., 35 N. Y. St. Rep. 374, 12 N. Y. Supp. 732; Vette v. Leonori, 42 Mo. App. 217; Ingalls v. Vance, 61 Yt. 582, 18 Atl. 452; Hanch v. Ripley, 127 Iud. 151, 26 N. E. 70, 11 L. R. A. 61; Howes v. Newcomb, 146 Mass. 76, 15 N. E. 123.)</p> <p>The court erred in giving instructions to the jury on the question of actual or implied consent on the part of the Weiser National Bank, for the reason that there was no evidence whatsoever given of any implied consent, or- any facts upon which could have been legally predicated an instruction of actual or implied consent. (Wilson v. Donaldson, 121 Cal. 8, 66 Am. St. 17, 53 Pae. 404, 43 L. R. A. 524; Hanch v. Ripley, supra; Howes v. Newcomb, supra; Storms v. Smith, 137 Mass. 201; Ingalls v. Vance, supra.)</p> <p>Alleged errors of the trial court in giving and refusing to give instructions cannot be reviewed by this court unless the instructions are presented by the reporter’s transcript, or saved by a bill of exceptions duly settled and certified as required by law. (C. S., sec. 6886; Minneapolis Threshing Mach. Co. v. Peterson, 31 Ida. 745, 176 Pac. 99; King v. Seebecli, 20 Ida. 223, 118 Pac.- 192; Crowley v. Croesus Gold & Copper Min. Co., 12 Ida. 530, 86 Pac. 536.)</p> <p>The specification that the judgment is contrary to law and evidence is not legal ground for a reversal of the judgment. (Caldwell v. Wells, 16 Ida. 459, 101 Pac. 812.)</p> <p>Where the issues raised upon an appeal from the judgment have been disposed of on appeal from an order on motion for new trial in the same case, the appeal from the judgment will be dismissed. (Coats v. Harris, 9 Ida. 470, 75 Pac. 246.)</p>

<p>Appeal — Reporter's Transcript — Service—Statutory Time — Objection — Motion to Strike — Waiver.</p> <p>When the reporter’s transeript is served on respondent by appellant, but not within five days after receipt of the same by appellant, as provided by the statute, respondent waives his right to object to a consideration by this court of the transcript on the ground it was not served within the statutory time, if he permits the transeript to be settled by the trial court without objection.</p>

Hon. John M. Flynn, Judge. Action to recover damages for negligently burning timber on plaintiffs’ land. Judgment for plaintiffs and defendant appeals. There is no difference in principle between a wilful cutting and a destruction by reason of negligence. Negligent destruction does not change the right of recovery. (Knapp v. Alexander-Edgar Lumber Go., 237 U. S. 162, 35 Sup.

Hon. Charles F. Reddoch, Judge. Action for damages for conversion.

Hon. Wm. A. Babcock, Judge. Action to recover for services as special prosecuting attorney. Judgment for plaintiff. A district court bas no power to appoint a special prosecuting attorney to appear and prosecute criminal actions pending in a justice’s court, or to appear in any action or proceeding not pending in or before such district court.

<p>Contract to Sell — Personal Property — Change or Possession — Evidence — Instructions.</p> <p>1. Held, that the evidence in this ease shows without conflict that the transaction between appellants and Abbl was an executory contract to sell; that the latter at all times retained possession of the sheep involved in this. action until he sold and delivered the same to respondent, and that there is no evidence in the record from which the inference may .be drawn that delivery, either actual or constructive, was ever made of these sheep to appellants.</p> <p>2. Under an executory contract to sell, where the vendor retains possession of the property, and there is no evidence tending to show either actual or constructive delivery thereof to the vendee, error cannot be predicated upon an instruction by the court that the law presumes every sale of personal property to be fraudulent and void as against purchasers in good faith, subsequent to such sale, unless change of possession of the property from the seller to the purchaser accompanies and follows the sale, and that sueh change must be an open, visible change, manifested by sueh outward signs as rendered evident to persons dealing with the property that the possession of the former owner as such had ceased, and that the delivery incident to sueh change of possession must be an actual manual delivery when the property is susceptible of it.</p>

Hon. Ed. L. Bryan, Judge. Action for injunction. Judgment for defendants. Under the provisions of see. 16713, C. S., it is necessary to refer expressly to the proper section numbers of the statutes to raise the question of the statute of limitations, and failure to so plead it waives it.

Hon. Charles P. McCarthy, Judge. Petition for writ of habeas corpus. Judgment for petitioner. It is well established in law that the right of a parent to the custody of the child- is not absolute. (20’ R. C. L. 597, and eases there cited.) The welfare of child is of chief importance, and will prevail over any mere preponderance of legal right in one or the other party.

Hon. Charles F. Reddoeh, Judge. Defendant was convicted of having' in his ■ possession intoxicating liquor. Provisions concerning indictments are applicable to informations. (C. S., see. 8812.) .The indictment must charge but one offense.

<p>APPEAL from the District Court of the Fourth Judicial District, for Miuidoka County. Hon. Wm. A. Babcock, Judge.</p> <p>Action to foreclose mortgage. Judgment for defendants.</p> <p>This contract is one of sale and not agency, and statements of defendant as to his own status as an agent are inadmissible. (Watkins Medical Go. v. Holloway, 182 Mo. App. 140, 168 S. W. 290; McConnon & Go. v. McCormick (Tes. Civ.), 179 S. W. 275; McCormon & Go. v. Haskins (Mo. App.), 180 S. W. 21; Saginaw Medicine Go. v. Batey, 179 Mich. 651, ■146 N. W. 329; Dr. Koch Vegetable Tea Go. v. Malone (Tes. Civ.), 163 S. W. 662; W. T. Rawleigh Go. v. Van Duyn, 32 Ida. 767, 188 Pac. 945; W. T. Rawleigh Medical Co. v. Rose, 133 Ark. 505, 202 S. W. 849.)</p> <p>The sending of printed matter to purchaser to assist in advertising goods, or price list, or requirement of reports or records of sale by company from salesman, or provision allowing salesmen to return goods to company, or designation of salesman’s territory, or suggestions and advice to wagonmen by the company concerning the sale of goods, does not alter character of contract nor tend to establish the relation of agency between them. (Ross v. Northrup, King & Go., 156 Wis. 327, 144 N. W. 1124; Sucker State Drill Go. v. Wirtz, 17 N. D. 313, 115 N. W. 844, 18 L. R. A., N. S., 134; Rich v. Chicago etc. Ry. Go., 34 Wash. 14, 74 Pac. 1008; Arbuckle v. Kirkpatrick, 98 Tenn. 221, 60 Am. St. 854, 39 S. W. 3, 36 L. 11. A. 285; Granite Roofing Go. v. Gasler, 82 Mich. 466, 46 N. W. 728; W. T. Rawleigh Medical Go. v. Van Winkle, 67 Ind. App. 24, 118 N. E. 834.)</p> <p>There is no provision in the statutes denying the right to recover the debt contracted between McConnon & Company and Holden. (21 E. C. L., sec. 72, p. 558; Vermont Loan (& Trust Co. v. Hoffman, 5 Ida. 376, 95 Am. St. 186, 49 Pac. 314, 37 L. E. A. 509; Wood v. Krepps, 168 Cal. 382, 143 Pac. 691, L. E. A. 1915B, 851; McCall Go. v. Hughes, 102 Miss. 375, 59 So. 794, 42 L. E. A., N. S., 63; Mandlebaum v. Gregovich, 17 Nev. 87, 45 Am. Eep. 433, 28 Pac. 121; Hughes v. Snell, 28 Okl. 828, Ann. Cas. 1912D, 374, 115 Pac. 1105, 34 L. E. A., N. S., 1133; Banks v. McCosker, 82 Md. 518, 51 Am. St. 478, 34 Atl. 539; Robbins v. Taxing District of Shelby County, 120 U. S. 489, 7 Sup. Ct. 592, 30 L. ed. 694.)</p> <p>The giving of the note and mortgage by Holden and his wife in payment of the book account, even though such book account was founded on an illegal consideration, is a sufficient consideration for the note and mortgage, and the defendants are estopped from setting up a lack of consideration or its illegality. (Oakdale Mfg. Go. v. Garst, 18 E. I. 484, 49 Am. St. 784, 28 Atl. 973, 23 L. E. A. 639; McCall Go. v. Hughes, supra; Koons v. Vauconsani, 129 Mich. 260, 95 Am. St. 438, 88 N. W. 630; Smith v. Smith, 4 Ida. 1, 35 Pac. 697; Fidelity State Bank v. Miller, 29 Ida. 777, 162 Pac. 244; First National Bank v. Harkey, 63 Okl. 163, 163 Pac. 273.)</p> <p>Secs. 2353-2359, C. S., is a police measure, enacted to protect public from fraud, and to prohibit peddling except in compliance with those sections. Contracts or sales made in violation thereof are void; notes and securities given to secure payment of price of goods sold in violation of the statute likewise are void and unenforceable. (17 E. C. L. 560; 3 E. C. L. 963; Benjamin on Sales, 521; Vermont Loan etc. Co. v. Hoffman, 5 Ida. 376, 95 Am. St. 186, 49 Pac. 314, 37 L. R. A. 509; Levinson v. Boas, 150 Cal. 185, 11 Ann. Cas. 661, 88 Pac. 825, 12 L. R. A., N. S., 575; Wood v. Krepps, 168 Cal. 382, 143 Pac. 691, L. R. A. 1915B, 851; Mandlebaum v. Gregovich, 17 Nev. 87, 45 Am. Rep. 433, 28 Pac. 121; Banks v. McCosker, 82 Md. 518, 51 Am. St. 478, 34 Atl. 539; Smith v. Bach, 183 Cal. 259, 191 Pac. 14; Bash v. Farley, 91 Ky. 344, 34 Am. St. 233, 15 S. W. 862; 8 C. J. 244; 13 C. J. 510; Martin v. Steele, 7 Ida. 497, 63 Pac. 1040; Baker v. Lehman etc. Co., 186 Ala. 493, 65 So. 321; Mo Yaen v. State, 18 Ariz. 491, 163 Pac. 135, L. R. A. 1917D, 1014; Leonard v. Poole, 114 N. Y. 371, 11 Am. St. 667, 21 N. E. 707, 4 L. R. A. 728.),</p> <p>Where it is intended by the parties that the subject matter of the sale is to be taken into the jurisdiction of the forum and there sold in violation of the laws of the latter state, and the seller aids in the furtherance of such illegal purpose, the courts of the latter state will not permit an action to be maintained thereon. (23 R. C. L. 1316, 1320; Gaylord v. Soragen, 32 Vt. 110, 76 Am. Dec. 154; Cojfe & Glarkener v. Wilhite, 56 Okl. 394, 156 Pac. 169; Standard Furnihwe Go. v. Van Alstine, 22 Wash. 670, 79 Am. St. 960, 62 Pac. 145, 51 L. R. A. 889; Arnott v. Pittston <& Elmira Goal Go., 68 N. Y. 558-, 23 Am. Rep. 190; Graves v. Johnson, 179 Mass. 53, 88 Am. St. 355, 60 N. E'. 383; Tracy v. Talmage, 14 N. Y. 162, 67 Am. Dee. 132; Corbin v. Houlehan, 100 Me. 246, 61 Atl. 131, 70 L. R. A. 568; Wasserboehr v. Boulier, 84 Me. 165, 30 Am. St. 344, 24 Atl. 808; Smith v. Godfrey, 28 N. H. 379, 61 Am. Dec. 617.)</p> <p>Apart from the contract of sale, the evidence establishes the relation of principal and agent between McConnon & Co. and' Holden in the resale' of McConnon products in Idaho, and this finding of the court sitting as a jury will not be disturbed. (Clark v. J. B. Watkins Medical Go., 115 Ark. 166, 171 S. W. 136; 2 C. J. 438; Willcox & G. Sewing Mach. Go. v. Ewing, 141 H S. 627, 12 Sup. Ct. 94, 35 L. ed. 882; Sturm v. Boker, 150 U. S. 312, 14 Sup. Ct. 99, 37 L. ed. 1093; McKinney v. Grant, 76 Kan. 779, 93 Pac. 180; Studebalser Gorp. of America v. Hanson, 24 Wy. 222, Ann. Cas. 1917E, 557, 157 Pac. 582, 160 Pac. 336; Moline Plow Go. v. Rodgers, 53 Kan. 743, 42 Am. St. 317, 37 Pac. Ill; Garstens v. Nut House, 96 Wash. 50, 164 Pac. 770; Herring-Hall-Marvin Safe Go. v. Balliet, 38 Nev. 164, 145 Pac. 941; Gaufkorn v. Burley State Bank, 26 Ida. 532, 144 Pac. 1108; Blackwell v. Kercheval, 29 Ida. 473, 160 Pac. 741.)</p>

<p>Judgment — Order Denting New Trial — Appeal—Dismissal.</p> <p>1. Appeal from judgment taken after expiration of statutory time will be dismissed.</p> <p>2. Appeal from order denying motion for new trial taken before such order is made will be dismissed.</p> <p>3. A motion for new trial must be disposed of by an order of the trial court granting or denying such motion, and the simple announcement of the trial judge of what his decision will be is not such an order.</p>

<p>Land Sale Contract — Forfeiture—Default.</p> <p>1. A vendor in a contract of sale which does not provide that time is of the essence, nor stipulate for a forfeiture on failure to pay the price, is not entitled to maintain ejectment against the purchaser, who has paid a part of the price and has taken possession, because of his failure to pay the balance, without showing an abandonment of the contract.</p> <p>2. A party claiming a forfeiture of payments made by a vendee in a land sale contract must show by clear and satisfactory proof that such forfeiture comes within the terms of the contract.</p>

Hon. Ed. L. Bryan, Judge. A ction for trespass. Judgment for plaintiff. In actions for damages, the value of the thing injured at the time of the injury must be proved and the facts upon which the value is based must be given. (Axtell v. Northern Pac. By. Go., 9 Ida. 392, 74 Pac. 1075; McClain v. Lewiston etc. Assn., 17 Ida. 63, 20 Ann. Cas. 60, 104 Pac. 1015, 25 L. R. A., N. S., 691; Jenkins v. Commercial Nat.

APPEAL AND CROSS-APPEAL from District Court of the Third Judicial District, for Ada County. Hon. Raymond L. Givens, Judge. Action for personal judgment on stock subscription contract. Demurrer to complaint sustained and action dismissed. An action in debt will lie for a personal judgment against the party subscribing for stock, under a contract such as the one in this case. (Beedy v. San Mateo Hotel Go., 27 Cal.

<p>Original petition for Writ of Mandate.</p> <p>Tbe constitution does not require that tbe appropriation shall be for a fixed sum, and whatever tbe state constitution does not prohibit, tbe legislature may do. (People v. Miner, 46 111. 384, 386.) •</p> <p>In tbe absence of such a constitutional limitation, tbe legislature may appropriate money for given objects without specifying tbe amount or fixing a maximum limit. (State v. Anderson, 33 S. D. 574, 146 N. W. 703; Highgate v. State, 59 Yt. 39, 7 Atl. 898; Campbell v. Board of Commissioners, etc., 115 Ind. 591, 18 N. E. 33; Henderson v. Board of Commissioners, 129 Ind. 92, 28 N. E. 127, 13 Ir. R. A. 169; State v. Henderson, 1Q9 Ala. 244, 74 So. 344, L. R. A. 1917F, 770; State Board of Charities, etc., v. Hays, 190 Ky. 147, 227 S. W. 282; Bosworth v. Harp, 154 Ky. 559, Ami Cas. 1915C, 277, 157 S. W. 1084, 45 L. R. A., N. S., 692; Norcross v. Cole, 44 Nev. 88, 189 Pac. 877.)</p> <p>The statutory direction to pay is not an appropriation within the meaning of art. 7, secs. 11 and 13 of the constitution, for it contains no limit by fund or amount. (36 Cyc. 892; Ann. Cas. 1915A, 1241; Kingsbury v. Anderson, 5 Ida. 771, 51 Pac. 744; Kroutvnger v. Board of Examiners, 8 Ida. 463, 69 Pac. 279; Epperson v. Howell, 28 Ida. 338, 154 Pae. 621; Herrick v. Gallet, ante, p. 13, 204 Pae. 477; State v. Eggers, 29 Nev. 469, 91 Pac. 819, 16 L. R. A., N. S., 630; State v. Moore, 50 Neb. 88, 61 Am. St. 538, 69 N. W. 373; State v. La Grave, 23 Nev. 25, 62 Am. St. 764, 41 Pac. 1075.)</p> <p>While a definite limit is required in appropriation acts it is not necessary that this be by specific amount or by dollars and cents. (Holmes v. Olcott, 96 Or. 33, 189 Pac. 202; People v. Miner, 46 111. 384; State v. Anderson, 33 S. D. 574, 146 N. W. 703; Norcross v. Cole, supra; Atkins v. State Highway Department (Tex. Civ.), 201 S. W. 226.)</p>

Hon. Ed. L. Bryan, Judge. Action to recover on life insurance policy. Judgment for plaintiff. The policy in suit never became effective, because the first annual premium, which was a condition precedent to the policy taking effect, was not paid during the' continuance of Swetland in good health, or paid at all, nor was there any waiver of payment of said premium by the defendant. (Rathbun v. New York Life Ins. Go., 30 Ida. 34, 365 Pac. 997; Cranston v. ■West Coast Life Ins.

<p>APPEAL from the District Court of the Seventh Judicial District, for Payette County. Hon. Ed. L. Bryan, Judge.</p> <p>Action for trespass. Judgment for plaintiff.</p> <p>A married woman cannot bring an action upon a cause of action belonging to the community; and when this is done the fact that the cause of action is community property is a defense. (Holton v. Sand Point Lrumber Co., 7 Ida. 573, 64 Pac. 889.)</p> <p>All property acquired during coverture is presumed to be community property. This presumption may be overcome, but the burden of proof rests upon the party asserting the property to be separate property. (See. 4660, C. S.; Jacobson v. Bunker Eill etc. Co., 3 Ida. 126, 28 Pac. 396; Vermont Loan & Trust Co. v. McGregor, 5 Ida. 510, 51 Pac. 104; Stowell. v. Tucker, 7 Ida. 312, 62 Pac. 1033; Stewart v. Weiser Lumber Co., 21 Ida. 340, 121 Pac. 775; Douglas v. Douglas, 22 Ida. 336, 125 Pae. 796; Gooding Milling etc. Co. v. Lincoln County State Bank, 22 Ida. 468, 126 Pao. 772; Eumbird Lumber Co. v. Doran, 24 Ida. 507, 135 Pac. 66; Chaney v. Gauld Co., 28 Ida. 76, 152 Pac. 468.)</p> <p>When a woman, who has settled upon a government homestead, marries, and she has at the time of marriage complied with the laws to such an extent as to be entitled to make final proof and receive patent for such homestead, the subsequent acquisition of title inures to the benefit of the community and the land will be deemed community property. (Eumbird Lumber Co. v. Doran, supra.)</p>

<p>Contract for Benefit of Third Person — Sufficiency of Evidence. Evidence in this ease held not sufficient to sustain the judgment.</p>

Hon. Chas. P. McCarthy, Judge. Prosecution for the crime of burning hay. Defendant was convicted, and appeals. The question as to whether a person on trial has been tried previously for the same offense is a question of fact to be determined partly by the record of the former proceeding and partly by evidence outside the record.

Hon. Ed. L. Bryan, Judge. Action for breach of warranty. Prom judgment for plaintiff, defendant appeals. “Where a former judgment is pleaded in bar, it is no objection to its operation as an estoppel that the former action included some parties who are not joined in the present action or vice versa, provided the judgment was rendered on the merits and not on an objection as to parties, and provided the cause of action in the two suits is the same, and the party against whom…

Hon. James G. Gwinn, Judge. Action in foreclosure. Appeal from order denying motion to vacate writ of assistance and order striking appellant’s affidavit in support thereof. The affidavit of Sherman was not in fact a collateral attack upon the decree of the court. (Mills v. Smiley, 9 Ida. 325, 76 Pac. 783; O’Neill v. Potvin, 13 Ida. 721, 93 Pac. 20, 257.) In an application for writ of assistance, if the judgment be attacked, it is a direct and not a collateral attack.

Hon. Charles P. McCarthy, Judge. Motion to vacate judgment and set aside default. The judgment being void, the proceedings to set aside and vacate the judgment were in due time. (Kerns v. Morgan, 11 Ida. 572, 83 Pae. 954; Shumake v. Shumake, 17 Ida. 649, 107 Pae. 42; People v. Greene, 74 Cal. 400, 5 Am.

Hon. Ralph W. Adair, Judge. Action to contest election of county commissioner of Lemhi county. Judgment for contestee. The ballot-box of Junction precinct having been proved to be safely kept, and in the same condition as when the ballots were placed in the box, the box locked and placed in the possession of the deputy sheriff, should have been admitted in evidence.

Hon. Chas. F. Reddoch, Judge. Action upon a restraining order bond for attorney fees. Judgment for plaintiffs and order denying a motion for new trial. The court erred in admitting evidence of attorneys’ services rendered for plaintiff in resisting the complaint in the main action, upon which this action is based, and in not confining such evidence to services rendered by plaintiffs’ attorneys in resisting the restraining order in said action alone.

<p>Action for Personal Injuries — -Jurors—Connection With Casualty Insurance Company — Voir Dire Examination — Master and Servant— Assumption of Risk — Ordinary Risk — Extraordinary Risk — When Question for Court and When for Jury- — Contributory Negligence — When Question for Court and When for Jury — Nonsuit—Directed Verdict — Offer of Deposition as a Whole — Rejection as a Whole — Part Admissible — Part Inadmissible.</p> <p>1. Rule of Wilson v. St. Joe Boom Co., 34 Ida. 253, 200 Pae. 884, as to examination of jurors on voir dire examination affirmed and applied.</p> <p>2. The question of assumption of risk is generally one of fact for the jury, and becomes one of law only when the evidence is reasonably susceptible of no other interpretation than that the injured party assumed the risk, which, in the case of a risk arising out of the employer’s negligence, would mean that the servant both knew the facts and appreciated the danger.</p> <p>3. Rule of Testo v. Oregon-W. B. N. Co., 34 Ida. 765, 203 Pae. 1065, as to when contributory negligence is and is not a question of fact for the jury, affirmed and applied.</p> <p>4. When a deposition and attached exhibit are offered as a whole, and objected to as a whole, a ruling sustaining that objection is not error if the deposition and exhibit contained matter that was inadmissible.</p> <p>5. To predicate error in such case the party making the offer must offer that part which is admissible, excluding the part which is inadmissible.</p>

Hon. Charles F. Reddoch, Judge. Action for cancelation of mortgage. Judgment for defendant. The mortgage was given to secure Daniel Allen’s individual debt created before the partnership was organized, and was executed in his own name, and in such case the firm is not liable, and the mortgage is void as against the appellant. (30 Cyc. 69-71; First Nat.

Hon. Chas. P. McCarthy, Judge. Action for damages. From judgment for defendant, plaintiff appeals. A person or corporation manufacturing any article and placing it upon the market for sale to the public is liable for the defective quality of his or its goods, and if any damage arises from the defective quality of his or its goods, the company or person is liable in law for such damage.

Hon. Charles F. Reddocb, Judge. Action to rescind the transfer of certain stock. Judgment for plaintiff. To entitle one to relief in equity • on the ground of intoxication, such intoxication must be so deep and excessive as to deprive one of his understanding. (2 Pom. Eq., sec. 949; 14 Cye. 1103.) To constitute duress, the restraint, intimidation or compulsion must have been so great as to take away the voluntary act and consent of the person.

Hon. Ed. L. Bryan, Judge. Action for personal injuries. Judgment of nonsuit. The evidence shows notice to defendants of the dangerous condition of the stairway in question when they leased the adjoining rooms to the plaintiff, and this was a question for the jury.

<p>Gift Causa Mortis — Requisites—Mode of Transfer — Presumption.</p> <p>1. To constitute a valid gift causa mortis, it must be made with a view to the donor’s death, and must have been given while the donor was in peril of death, or while he was under the apprehension of impending dissolution from an existing malady.</p> <p>2. The test of an effectual gift causa mortis is that the mode of transfer was such that, in conjunction with the donative intention, it completely stripped the donor of his dominion of the thing given.</p> <p>3. In the absence of explanatory or contradictory evidence, the possession by the donee of an instrument in regular form transferring the title of property to him is sufficient to raise the presumption that the instrument was delivered by the grantor with intent that it should take effect according to its terms.</p> <p>Publisher’s Note.</p> <p>1. The law of gifts causa mortis, see note in 99 Am. St. 890.</p> <p>4. Held, in the instant case, that the evidence shows decedent intended to confer upon respondent the ownership of the property in controversy, that he proceeded to do so by executing and delivering to respondent a bill of sale to the property, and that the gift thereupon became complete.</p>

Hon. Wm. A. Babcock, Judge. Action for debt. Order setting aside default and judgment. Defendant’s motion to strike complaint and motion to dismiss did not stay the running of time in which to file and serve answer to amended complaint. (C. S., secs. 6672, 6691, 6832, 7202; Ham v. Amazon Fire Ins. Go.

<p>Appeal — Motion to Dismiss — Undertaking on Appeal and por Stay op Execution Combined — Defective Undertaking — Method op Attacking — Waiver op Defect.</p> <p>1. One instrument may serve the double purpose of an undertaking on appeal and of an undertaking for stay of execution,-if it substantially meets the requirements of both C. S., see. 7154, and C. S., sec. 7155,</p> <p>2. An undertaking which provides that appellant will pay all damages and costs which may be awarded against him on appeal, and omits 'the words, “or on a dismissal thereof,” is defective, but not void.</p> <p>3. Such defect is waived unless raised by respondent in the manner and within the time provided by C. S., sec. 7154.</p>

<p>Original proceeding in mandamus.</p>

<p>Claim and Delivery — Demand—Verified Complaint — Denials.</p> <p>1. The general rule is that claim and delivery will not lie against one who has obtained possession of the property lawfully until a proper demand has been made for the same and possession refused.</p> <p>2. Denials of allegations of a verified complaint must be specific.</p>

<p>Writ of Attachment — Dissolution — Affidavit — Statute — Retrospective Effect.</p> <p>1. Ia order to authorize issuance of a writ of attachment there must be filed with the clerk by or on behalf of plaintiff an affidavit conforming substantially to the requirements of C. S., sec. 6780, otherwise on motion of defendant the writ will be discharged.</p> <p>2. Retrospective effect will not be given to a statute unless it appears that it was the intent of such legislation that it should have such effect.</p>

<p>APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Charles F. Reddoch, Judge.</p> <p>Action for damages caused by trespass of sheep. Judgment for plaintiff.</p> <p>The true measure of damages for the destruction of growing crops is the value of the crop at the time of its injury or destruction. (Bisse v. Collins, 12 Ida. 689, 87 Pac. 1006.)</p> <p>The evidence offered in proof of the second cause of action was such as to afford a jury no more than an opportunity to guess as to the amount of damage for which the defendants were responsible, if any. (Smith v. Highland Livestock <& Land Co., 34 Ida. 321, 200 Pac. 679.)</p> <p>“A jury selected from the county or community where the loss was suffered, after hearing the evidence as to the nature and condition of the crops and the extent of the injury, will seldom go far wrong in their estimate of the real injury done.” (Bisse v. Collins, 12 Ida. 689, 87 Pae. 1006.)</p> <p>Under the above rule the plaintiff offered to show the cost of near-by pasture. Appellants objected to all this class of competent evidence and succeeded in having it excluded.</p>

Hon. Charles P. McCarthy, Judge. Action for damages for breach of contract. Judgment for plaintiff. An action for a breach of a contract cannot be split up into two or more causes of action. There can be only one cause of action for the breach of a contract.

<p>APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. E'd. L. Bryan, Judge.</p> <p>Action to foreclose a mechanic’s lien. Judgment for defendant, and plaintiff appeals.</p> <p>Every person performing labor or furnishing material for a building or structure is entitled to a lien therefor, and the amount to be recovered under such lien is always measured by the amount found to be due him under his contract. (Stelt-z v. Armory Go., 15 Ida. 551, 99 Pac. 98, 20 L. R. A., N. S., 872.) Without reference to whether such person performing such labor or furnishing such material is an original contractor or a subcontractor or a laborer or a material-man. • {Hill v. Twin Falls Salmon River Land & Water Go., 22 Ida. 274, 125 Pac. 204.)</p> <p>A lien may be sustained upon property for labor and material expended thereon without the express or implied consent of the owner where the owner derives a benefit or advantage from the labor or material for which the lien is given. {Van Stone, v. Stillwell & B. Mfg. Go., 142 U. S. 128, 12 Sup. Ct. 181, 35 L. ed. 961; Jones v. Great Southern Fire Proof Hotel Go., 86 Fed. 370, 30 O. O. A. 108; Perrault v. Shaw, 69 N. H. 180, 76 Am. St. 160, 38 Atl. 724; Mallory v. La Crosse Abattoir Co., 80 Wis. 170, 49 N. W. 1071; 27 Cyc. 72.)</p> <p>For the purpose of establishing either an implied or an express contract there must have been a meeting of minds between appellant and respondent. (6 R. C. L. 587.)</p>

<p>Appeal and Error — Justices’ Practice — Pinal Judgment — Bendition.</p> <p>1. Under C. S., sec..7179, an appeal may be taken from a final judgment in a civil action in a justice’s court within thirty days after the rendition thereof.</p> <p>2. A final judgment in a civil action in a justice’s court is not rendered until the entry thereof in the docket.</p>

<p>APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Chas. F. Reddoch, Judge.</p> <p>Action for conversion. Judgment for defendant and order denying a motion for new trial.</p> <p>The court erred in denying the appellant his fourth peremptory challenge, which compelled him to accept juror Wells, whom he positively knew was biased and prejudiced. The sitting of the juror Wells after the remark of the' court, which still further prejudiced him against the plaintiff, prevented a fair trial. (People v. Backus, 5 Cal. 275; People u. Ah You, 47 Cal. 121; State v. Pritchard, 15 Nev. 74.)</p> <p>The errors in law, which occurred beginning with impaneling of the jury, at which time the court denied the respondent his last and fourth peremptory challenge, was irregularity of the jury and error of law occurring at the trial. (Lombardi v. California St. Cable By. Co., 124 Cal. 311, 57 Pac. 66.)</p> <p>This court cannot review the questions whether appellant had a right to a fourth peremptory challenge because-this matter was not presented to trial court for a ruling. (Forsythe v. Richardson, 1 Ida. 459.)</p> <p>Appellant waived his right to a fourth peremptory challenge. (Vance v. Richardson, 110 Cal. 414, 42 Pac. 909.)</p> <p>Appellant waived any prejudice on account of remarks by counsel by not calling the court’s attention to same. (29 Cyc. 777; Reynolds v. Metropolitan St. Ry. Go., 180 Mo. App. 138, 168 S. W. 221.)</p> <p>The terms of a written instrument cannot be varied by oral testimony. (Jwrrett v. Prosser, 23 Ida. 382, 130 Pac. 376: Newmyer v. Roush 21 Ida. 106, Ann. Cas. 1913D, 433, 120 Pac. 464.)</p> <p>This court cannot even consider the assignment that the court committed error in excluding evidence as to value, because appellant has not pointed out in the transcript the folio or folios where the alleged error was committed. (Rule 42.) The error, if any was committed,, was immaterial, for the reason that the jury found for the defendant. (4 Corpus Juris, 969-971, 988; Work Bros. v. Kinney, 8 Ida. 771, 71 Pac. 477; Spongherg v. First Nat. Bank, 15 Ida. 671, 99 Pac. 712; Rosnagle v. Armstrong, 17 Ida. 246, 105 Pac. 216.)</p>

Hon. Ed. L. Bryan, Judge. Action to recover on fire insurance policy. Judgment for plaintiffs. Parol evidence is inadmissible to vary an insurance contract. (Northern As sur. Co. v. Grand View Building Assn., 183 U. S. 308, 22 Sup. Ct. 133, 46 L. ed. 213; Penman v. St. Paul Fire & Marine Ins. Co., 216 U. S. 311, 30 Sup. Ct. 312, 54 L. ed. 493; Lumber Underwriters of New York v. Rife, 237 U. S. 605, 35 Sup.

<p>APPEAL from the District Court of the Seventh Judicial District, for Washington County. Hon. Ed. L. Bryan, Judge.</p> <p>Action to recover on fire insurance policy. Judgment for plaintiffs.</p>

<p>APPEAL from the District Court of the Seventh Judicial District, for Washington County. Hon. Ed. L. Bryan, Judge.</p> <p>Action to recover on fire insurance policy. Judgment for plaintiffs.</p>

<p>APPEAL from the District Court of the Seventh Judicial District, for Washington County. Hon. Ed. L. Bryan, Judge.</p> <p>Action to recover on fire insurance policy. Judgment for plaintiffs.</p>

Bannock County. Hon. Robert M. Terrell, Judge. Action to recover on two promissory notes. Judgment for plaintiff, and defendant appeals. Ordinarily a false promise upon which fraud may be predicated must be of an existing fact, but if the intention not to perform the promise be shown to have existed at the time the promise was made, the promise is fraudulent.

Hon. B. S. Yarian, Judge. Action for breach of contract. Judgment for. plaintiffs. The objection that the complaint does not state facts sufficient to constitute a cause of action is not waived by failure to demur or to raise the objection by answer. (Trueman v. Village of St. Maries, 21 Ida. 632, 123 Pac. 508; Newport Water Co. v. Kellogg, 31 Ida. 574, 174 Pac. 602; Naylor 6 Norlin v. Lewiston, etc. By.

<p>APPEAL from the District Court of the Seventh Judicial District, for Washington County. Hon. Ed. L. Bryan, Judge.</p> <p>Action for trespass to real property. Judgment for plaintiff for damages, but denying him a lien upon animals dis-trained damage feasant or compensation for their care and keeping while distrained.</p> <p>Under the facts the appellant was entitled to a common-law lien upon the livestock distrained for the amount of his damages and the care and keeping of such livestock while in his possession, and for the costs of this action. (2 Cye. 392, 398, 399, and notes; Novak v. Shoup, 209 111. App. 27; Vanderford v. Wagner, 24 N. M. 467, 174 Pac. 426.)</p> <p>‘ ‘ The common law of England, so far as it is not repugnant to, or inconsistent with, the constitution or laws of the United States, in all cases not provided for in these compiled laws, is the rule of decision in all courts of this state.” ÍC. S., see. 9460.)</p> <p>“Where there is no obligation to maintain a division fence, the owner of the beasts must take care that they do not trespass on the land of adjoining proprietor.” (2 Waterman on Trespass, see. 874, 877; Harris v. Gray (Okl.), 165 Pac. 1148.)</p> <p>“A person finding the animals of another trespassing on his ground damage feasant may, by the rules of the common law, distrain them until satisfaction for the damage done shall be made by the owner of the animals.” (3 Corpus Juris, p. 135, sec. 407, and cases cited; 1 R. C. L. 1140, sec. 81, and cases cited; 2 Cyc. 400.)</p> <p>The right to impound animals taken damage feasant is merely cumulative of the common-law remedy of distress, and the injured person may elect between the remedies. (3 Corpus Juris, 139, sec. 417, and cases cited; 15 Cyc. 253.)</p> <p>The owner of unfenced or uninclosed land cannot maintain an action for damages against the owner of stock because they happen to feed or graze upon his land. (Strong v. Brown, 26 Ida. 1, Ann. Cas. 1916E, 482, 140 Pac. 773, 52 L. R. A., N. S., 140.)</p> <p>Where a common field is established by agreement or common consent, there is no liability if the stock of one range on the land of another in such field. (3 C. J. 130, sec. 400.)</p> <p>Where the rule of common law requiring the owner of cattle to confine them on his own land does not prevail, one of adjoining owners is not liable to the other for trespass of his cattle on account of not having a division fence. {Pace v. Potter, 85 Tex. 473, 22 S'. W. 300; note, 22 L. R. A. 55.)</p> <p>The remedy by distress was cumulative and satisfaction obtained in this mode was a bar to an action for damages. {Rockwell v. Nearing, 35 N. Y. 302; 3 Bl. Com. 6.)</p>

Hon. Wm. A. Babcock, Judge. Action for damages for breach of contract. Judgment for defendant. Where, after the expiration of the time limit for performance, both parties have treated a contract as still in force, neither party may rescind without setting a new limit, and giving the other party a reasonable opportunity to perform.

Hon. H. F. Ensign, Judge. Proceeding for partition of real property. Appeal from decree confirming the report of referees. There can be no partition without an interlocutory judgment which must determine the rights of the parties.

APPEAL.from the District Court of the Fourth Judicial District, for Cassia County. Hon. Wm. A. Babcock, Judge. Action to enjoin owners of community property from interfering with possession under a purported lease. Judgment for plaintiff. A lease of real estate for a term of years is a conveyance or encumbrance within the meaning of C. S., see. 4666.

<p>APPEAL from the District Court of the Fourth Judicial District, for Twin Falls County. Hon. H. F. Ensign, Judge.</p> <p>The so-called pooling agreement is against public policy, in that its actuating and stated purpose is to acquire control of the corporation. (7 R. C. L., sec. 362; Wheeler v. Abilene Nat. Bank Bldg. Co., 159 Fed. 391, 89' C. C. A. 477; 14 Ann. Cas. 917, and note, 16 L. R. A., N. S., 892; Koehler v. St. Mary’s Brewing Co., 228 Pa. St. 648, 139 Am. St. 1024, 77 Atl. 1016.)</p> <p>In disposing of corporate assets majority stockholders are in the position of trustees, whose sales to themselves, even though fair, are voidable at the election of the cestuis que trustent. (7 R. C. L., sec. 286; Mason v. Pewabic Min. Co., 133 U. S. 50, 10 Sup. Ct. 224, 33 L. ed. 524; Chicago Hansom Cab Co. v. Yerkes, 141 111. 320, 33 Am. St. 315, 30 N. E. 667.)</p> <p>In making sales of corporate property by exercising their power to control the affairs of the corporation, the majority stockholders must act in the interest of all of the stockholders. (7 R. C. L., sec. 287; Wheeler v. Abilene Nat. Bank Bldg. Co., 159 Fed. 391, 14 Ann. Cas. 917, 89 C. C. A. 477, 16 L. R. A., N. S., 892; Sparrow v. H. Bennett <& Sons, 142 Mich. 441, 105 N. W. 881, 10 L. R. A., N. S., 725.)</p> <p>A voting agreement, where the arrangement is made for the sole benefit of the parties to the agreement and not for the general welfare of the corporation and all of its stockholders, is ordinarily held invalid. (7 R. C. L., secs. 329-331; Clarke v. Central. II. It. <& Bkg. Co. of Georgia, 50 Fed. 338, 15 L. R. A. 683; Morel v. Hoge, 130 Ga. 625, 14 Ann. Cas. 935, 61 S. E. 487, 16 L. R. A., N. S., 1136; Gage v. Fisher, 5 N. D. 297, 65 N. W. 809, 31 L. R. A. 557.)</p> <p>It seems that an agreement to pool stock and vote it as a unit for a certain length of time, without power to withdraw from the agreement, and without any consideration in connection with the purchase of the stock, falls within the prohibition of the law, as being against public policy. (1 Thompson on Corporations, secs. 898-904, inch; 3 Fletcher’s Cyc. Corp., sec. 1711; 14 C. J., sec. 1422.)</p> <p>Specific performance will not lie to compel transfer of the stock under the agreement. (Gage v. Fisher, 5 N. D. 297, 65 N. W. 809, 31 L. R. A. 557; 3 Fletcher’s Cyc. Corp., sec. 7321; Ryan v. McLane, 91 Md. 175, 80 Am. St. 438, 46 Atl. 340, 50 L. R. A. 501.)</p> <p>The “pool” agreement is not void as against public policy. (10 Cyc. 341; Smith v. San Francisco etc. Ry. Co., 115 Cal. 584, 56 Am. St. 119, 47 Pac. 582, 35 L. R. A. 309; Boyer v. Nesbitt, 227 Pa. St. 398, 136 Am. St. 890, 76 Atl. 103; Windsor v. Commonwealth Coal Co., 63 Wash. 62, 114 Pac. 908, 33 L. R. A., N. S., 63; Cla/rk v. Foster, 98 Wash. 241, 167 Pac. 908; Bowditch v. Jackson Co., 76 N. H. 351, Ann. Cas. 3913A, 366, 82 Atl. 1014, L. R. A. 1917A, 1174; Thompson v. J. D. Thompson Carnation Co., 279 111. 54, Ann. Cas. 3917E, 591, 116 N. E. 648; Ramsey v. W. M. Welch Co., 163 Iowa, 324, 144 N. W. 323; Brightman v. Bates, 175 Mass. 105, 55 N. E'. 809; Weber v. Della Mountain Min. Co., 14 Ida. 404, 94 Pac. 441; Hey v. Dolphin, 92 Hun, 230. 36 N. Y. Supp. 627; Faulds v. Tates, 57 111. 416, 11 Am. Rep. 24; Borland v. Prindle etc. Co., 144 Fed. 713; Havemeyer v. Eavemeyer, 43 N. Y. .Super. Ct. 506; Williams v. Montgomery, 148 N. Y. 519, 43 N. E. 57; note, 16 L. R. A., N. S., 1140, and eases cited.)</p> <p>The “pool” agreement is supported by a sufficient consideration. (Carnagie Trust■ Go. v. .Security Life Ins. Co., Ill Ya. 1, 21 Ann. Cas. 1287, 68 S. E. 412, 31 L. R. A., N. S., 1186; American Agricultural Chemical Co. v. Kennedy etc., 103 Ya. 171, 48 S. E. 868; Smith v. San Francisco etc. B. Co., 115 Cal. 584, 56 Am. St. 119, 47 Pae. 582, 35 L. R. A. 309; Warren v. Pirn, 66 N. J. Eq. 353, 59 Atl. 773.)</p> <p>Whether or not specific performance of the “pool” agreement would lie is no test of its validity in this action. (Pomeroy, 3d ed., par. 1401; 25 R. C. L. 206.)</p> <p>After the “pool” agreement was made and the stock deposited in escrow, the members thereof could not withdraw their stock. (16 Cyc. 569, 570; McDonald v. Euff, 77 Cal. 279, 19 Pac. 499; Doran v. Bunker Eill etc. Min. Co., 23 Cal. App. 644, 139 Pae. 93; Fitzgerald v. Allen, 240 111. 80, 88 N. E. 240; Gammon v. Bunnell, 22 Utah, 421, 64 Pae. 958; Thardldson v. Everts, 87 Minn. 168, 91 N.. W. 467; Gaston v. City of Portland, 16 Or. 255, .19 Pae. 127.)</p> <p>A bill in equity will lie to compel the transfer of stock on the books of the corporation. (6 Fletcher on Corporations, 6387; Ellsworth v. National Some & Town Bldrs., 33 Cal. App. 1, 164 Pae. 14.)</p>

<p>Appeal and Error — Affirmance Under Bule 48.</p> <p>Where a cause is reached for hearing on the calendar of this court and appellant has not filed a brief and does not appear, respondent is entitled to have the judgment affirmed, in accordance with Bule 48 of this court, where the record on appeal discloses no fundamental errors in the trial below.</p>

Hon. Wm. A. Babcock, Judge. Action to recover earnest-money on contract to purchase. Judgment for plaintiff. Rights based on the violation of the law will never be enforced by the court.

Hon. Vm. A. Babcock, Judge. Action by respondent to recover his salary as probate judge of Cassia county during the period for which he was deprived of such office as the result of an election contest pending appeal. Judgment for plaintiff. If the ousted incumbent, notwithstanding that he was duly elected, fails to furnish the bond provided by see. 7298, he loses the right to demand the salary. (Chubbuck v. Wilson, 151 Cal. 162, 12 Ann.

Hon. Ed. L. 'Bryan, Judge. 'Action by indorsee against indorser of promissory note. Judgment for defendant. Where presentment for payment is waived in a note, the indorser is not entitled to notice of nonpayment. [Wurth v. Baxter, 24 Wash. 608, 64 Pae. 798; Phillips v. Dippa, 93 Iowa, 35, 57 Am.

Hon. O. R. Baum, Presiding Judge. Action to recover on contractors’ employers’ liability policy. Judgment for plaintiff. The loss for which plaintiff is attempting to recover does not come within the terms of his contract and was not such a loss as plaintiff was insured against. This accident occurred while the workmen’s compensation law was in force. (C. S., sec. 6214.) Under this law, the question of negligence is immaterial.

<p>APPEAL from the District Court of the Third Judicial District, for Owyhee County. Hon. Chas. F. Reddoeh, Judge.</p> <p>Application for writ of mandate. Writ granted, and defendants appeal.</p> <p>The court erred in holding that the district could not adopt both methods of collecting the maintenance in their .entireties, and that the district has demanded more than the toll for water in advance. , (C. S., secs. 4346, 4407, 5556; Ciity of Nampa v. Nampa & Meridian Irr. Dist., 19 Ida. 779, 115 Pae. 979; Adams v. Twin Falls-OaMey L. & W. Go., 29 Ida. 357, 161 Pae. 322; Parrott v. Twin Falls etc. Water Co., 32 Ida. 759, 188 Pac. 451.)</p> <p>Statutes conferring upon municipal corporations power to levy taxes must be strictly construed. (Aachen etc. Fire Ins. Co. v. City of Omaha, 72 Neb. 518, 101 N. W. 3; Edger-ton v. Goldsboro Water Co., 126 N. C. 93, 35 S. E'. 243-, 48 L. B. A. 444.)</p> <p>The provisions of the statutes for the collection of this assessment clearly show that it is a charge against the land and not against the owner. In case the assessment is not paid the land is sold, but there is no provision for obtaining a judgment against the owner of the land and no method of enforcing the collection out of the personal property of the owner. (Oregon Short Line B. Co. v. Pioneer Irr. Dist., 16 Ida. 578, 102 Pac. 904; Colburn v. Wilson, 24 Ida. 94, 132 Pac. 579.)</p>

Hon. II. F. Ensign, Judge. Action to recover commission on sale of real estate. Judgment for defendant, following sustaining of demurrer and refusal of plaintiff to plead further.

<p>Strike — Boycott—Picketing.</p> <p>1. A right to conduct a business, together with the incidental right to the goodwill thereof, is property.</p> <p>2. Laborers for wages have a right to form unions for the purpose of improving their economic and social conditions. They have a right to strike in concert for a lawful purpose. In aid of a lawful strike they have a right to acquaint the publie with the fact of its existence and the causes thereof, and appeal, by peaceful persuasion, for public support and to request the public to withhold its patronage from the other party to the labor dispute.</p> <p>3. A combination to strike to accomplish an object which is not regarded as lawful, or the use of illegal means in aid of a lawful strike, are wrongs for which the law affords a remedy.</p> <p>4. The means employed in aid of a lawful strike must be free from falsehood, libel or defamation, and from physical violence, coercion or moral intimidation.</p> <p>O. The persuasion which the law permits in aid of a lawful strike is such as appeals to the judgment, reason or sentiment, and leaves the mind free to act of its own volition.</p> <p>6. The constitutional guaranty of freedom of speech is not encroached upon by affording appropriate remedies for the abuse of the privilege of free speech.</p> <p>7. The use of the words “Unfair to organized labor,” if truthful, will not be enjoined. The use of expressions in aid of a strike which convey covert implications, calculated to defame, coerce or intimidate will be enjoined.</p> <p>8. Posting of pickets on the street in front of a place of business does not of itself constitute a trespass upon the premises of the owner of the abutting property.</p> <p>9. A lawful strike is not within the purview of sec. 18, art. ' 11, of the constitution, or sees. 2531 and 8512 of the Comp. Stats., commonly known as the anti-trust provisions of the constitution and statutes of the state of Idaho.</p> <p>10. Placing of pickets in the street, in front of or near to a restaurant, necessarily results in intimidation and coercion of prospective customers, and is properly enjoined.-</p> <p>Publisher’s Note.</p> <p>7. Constitutional guaranty of free speech as authorizing boycott, see note in 15 Ann. Cas. 7; and as affording right to injunctive relief against boycott in industrial disputes, see note in 6 A. B. R. 971.</p> <p>Publication that employer has been placed in “unfair list” of labor union as libelous, see notes in 15 Ann. Cas. 677; Ann. Cas. 1918B, 570.</p> <p>Right of labor union to notify persons not to deal with certain individuals, see note in L. R. A. 1917E, 391.</p> <p>Boycott as a weapon in industrial disputes, see notes in 103 Am. St. 488; 1 Ann. Cas. 177; 13 Ann. Cas. 86, 826; 16 A. B. R. 230; 6 A. L. R. 909.</p> <p>10. Daw as to picketing, see notes in 61 Am. St. 706; 13 Ann. Cas. 60; 9 Ann. Cas. 1222; Ann. Cas. 1918E, 54; 4 L. R. A., N. S., 302; 50 L. R. A., N. S., 412.</p>

<p>APPEAL from the District Court of the Seventh Judicial District, for Washington County. Hon. Ed. L. Bryan, Judge.</p> <p>An action for value of goods sold and delivered. Appeal from judgment of dismissal.</p>

Hon. Ed. L. Bryan, Judge. Action to obtain reduction of taxes. Judgment for petitioner.

Hon. Charles P. McCarthy, Presiding Judge. Action for adjudication of water rights. Having acquired this water by appropriation and purchase, it could be lost only by abandonment, and in this case abandonment has neither been pleaded nor has there been one word of testimony upon the subject of abandonment of the rights by appropriation and purchase. Abandonment is an affirmative action and must be pleaded and proven.

Hon. B. S. Varían, Judge. Aetion for trespass. From judgment for plaintiff, defendant appeals. O. M. Van Duyn and Frank T. Wyman, for Appellant. The measure of damages for trespass upon plaintiff’s close by livestock that ate the grass and pasturage is the value of the grass and pasturage at the time of the trespass. (17 C. J. 893; Risse v. Collins, 12 Ida. 689, 87 Pae. 1006; Coa> v. Creme Creek Sheep Co., 34 Ida. 327, 200 Pae. 678.)

Seventh Judicial District, for Canyon County. Hon. Ed. L. Bryan, Judge. Action to recover the value of goods, wares and merchandise sold and delivered.

<p>Agency — Partnership—Evidence—Honoring Drafts — Undertaking on Appeal — Sufficiency—Waiver of Objection.</p> <p>1. The declarations of one assuming to act as an agent, made without the hearing of his principal, are not admissible to prove such agency.</p> <p>2. The declarations -of one partner, not made in the presence of his copartner, are not competent to prove the existence of a partnership between them as against sueh other partner.</p> <p>3. The mere fact that a party has at times honored the drafts of another party is not alone sufficient to constitute such other party his agent.</p> <p>4. Undertakings on appeal in this ease held sufficient under C. S., sections 7154 and 7236.</p>

Hon. Ed. L. Bryan, Judge. Action to quiet title. Judgment for plaintiff and defendants appeal. An action for divorce is an action in rem and respondent having procured her divorce in Washington, said court could not make a binding decree in personam against the appellant in Idaho. Especially is this the rule affecting the property rights of the parties. (Pennoyer v. Neff, 95 U. S. 714, 24 L. ed. 565; Proctor v. Proctor, 215 111. 275, 106 Am. St. 168,£ 2 Ann.

<p>Sale of Personal Property — Rescission—Warranty—Reliance on —Pleading.</p> <p>1. Generally, to rescind a contract an offer to return property received ■ thereunder must be made before suit.</p> <p>2. In an action by the vendee of personal property for breach of warranty it must be alleged that vendee believed and relied upon, and purchased on the strength, of sueh warranty.</p>

<p>APPEAL from the District Court of the Seventh Judicial District, for Adams County. Hon. Ed. L. Bryan, Judge.</p> <p>Defendant was convicted of the crime of robbery, and appealed. Motion to affirm judgment.</p>

<p>APPEAL from the District Court of the Fourth Judicial District, for Lincoln County. Hon. H. F. Ensign, Judge.</p> <p>Defendant was convicted of being a persistent violator of the prohibition laws and appealed. Motion to affirm judgment.</p>

Hon. Charles P. McCarthy, Judge. Action to recover on promissory note. Judgment of dismissal. “As a rule, the defense of the statute has been unsuccessful, the courts holding that such a provision is a mere option for the benefit of the mortgagee.” (13 Am. & Eng.

Hon. James G. Gwinn, Judge. Action on a promissory note. Judgment for defendant, and plaintiff appeals. “A verdict or finding of the jury must be based upon and conform to the evidence; and a verdict wholly unsupported by any evidence whatever should not be allowed to stand.” (Abbott’s Civil Jury Trials, 3d ed., p. 748; Continental Life Ins. Co. v. Tung, 113 Ind. 159, 3 Am.

Hon. F. J. Cowen, Judge. Action on promissory note. Judgment of dismissal. A motion to dismiss on the ground that the summons was not properly served is not in accordance with the practice of any code state. (Kubli v. Hawhett, 89 Cal. 638, 27 Pac. 57.) The right of the district court to dismiss an action must be exercised upon a just discretion. This dismissal was an abuse thereof and the judgment should be reversed on that account. (C. S., secs. 6389, 6671, 6673; 6 Eney.

<p>APPEAL from the District Court of the Ninth Judicial District, for Fremont County. Hon. James G. Gwinn, J udge.</p> <p>Appeal from an order denying injunction to restrain collection of tax.</p> <p>Where the law requires an estimate or ordinance, or both, to be made and published before the time for levying the tax, the requirements are jurisdictional and must be complied with or the tax will be void. (37 Cye. 971; sec. 2361, McQuillin, Municipal Corp; People v. Plorville, 207 111. 79, 69 N. E'. 623; People v. McElroy, 248 111. 574, 94 N. E. 81; Nelson v. Oklahoma City, etc. R. Go., 24 OkL. 617, 104 Pac. 42; Police Jury v. Bouanchaud, 51 La. Ann. 860, 25 South. 653; Waggoner v. Maumus, 112 La. 229, 36 So. 332; Gilmore v. Hentig, 33 Kan. 156, 5 Pac. 781; Hentig v. Gilmore, 33 Kan. 234, 6 Pae. 304.)</p> <p>“Taxes cannot be levied or collected at any other time or in any other manner nor for any other purpose than that designated by law.” (Shoup v. Willis, 2 Ida. 120, 6 Pac. 124; Hewes v. Reis, 40 Cal. 255.)</p> <p>Thos. B. Hargis, C. Redmond Moon and H. W. Soule, for Respondents.</p> <p>The levy of a tax by a municipality, the preparation and publication of an estimate and the passage of an annual appropriation bill, are each a separate, distinct and independent requirement.</p> <p>The purpose of the estimate and the annual appropriation bill is not to give the taxpayers notice of what rate of levy they may expect, but to divide any levy made into specific funds for specific purposes, to regulate the drawing of warrants, to aid the village treasurer in keeping the village accounts. (Henderson v. Hughes County, 13 S. D. 576, 83 N. W. 682; Standrod v. Case, 24 Ida. 365, 133 Pac. 651; Oregon R. Go. v. Umatilla County, 47 Or. 198, 81 Pae. 352.)</p> <p>A court of equity will not issue its writ of injunction simply because some formality or legal requirement in levying a tax is wanting, if it is levied for an authorized purpose and by the persons designated by law. (37 Cye. 1258; 1 High on Injunctions, secs. 184, 486; State v. Johnson, 80'Or. 107, 156 Pac. 579; French v. Edwards, 13 Wall. (80 U. S.) 506, 20 L. ed. 702; Sweet v. Boyd, 6 Okl. 699, 52 Pac. 939.)</p>

<p>APPEAL from the District Court of the Fourth Judicial District, for Twin Falls County. Hon. "Win. A. Babcock, Judge.</p> <p>Judgment of conviction for adultery.</p> <p>Mere disposition and opportunity to commit adultery are not alone sufficient to justify a conviction, but there must be circumstances inconsistent with any other reasonable hypothesis. (State v. Trachsel, 150 Iowa, 135, 129 N. "W. 736.)</p> <p>The evidence is insufficient to support the verdict of the jury or the judgment rendered thereon. (State v. Trachsel, supra; People v. Turner, 260 111. 84, Ann. Cas. 1914D, 144, 102 N. E. 1036.)</p> <p>An instruction which informs the jury that evidence of an adulterous disposition or inclination, together with evidence of an opportunity to commit the crime, would be sufficient to justify the jury in bringing in a verdict of guilty, if the evidence satisfies them of the guilt beyond a reasonable doubt, is a correct instruction. (/State v. Eggleston, 45 Or. 346, 77 Pac. 738.)</p> <p>When assigning the insufficiency of the evidence to support the verdict or the judgment, it should be specified wherein the evidence is insufficient. (C. S., sec. 9068; State v. Jones, 28 Ida. 428, 154 Pac. 378; State v. Maguire, 31 Ida. 24, 169 Pac. 175; State v. Snook, 34 Ida. 403, 201 Pac. 494.)</p> <p>The evidence is sufficient to sustain the verdict and the judgment based thereon. (2 C. J., sec. 43, p. 22; Monteifh v. State, 114 Wis. 165, 89 N. W. 828; State v. Lamore, 53 Or. 261, 99 Pac. 417; Cummings v. State, 14 Ga. App. 441, 81 S. E. 366; Counts v. State, 49 Tex. Cr. App. 329, 94 S. W. 220; Wong Goon Let v. United States, 245 Fed. 745; State v. Kimball, 74 Yt. 223, 52 Atl. 430.)</p>

<p>APPEAL from the District Court of the Sixth Judicial District, for Bingham County. Hon. F. J. Cowen, Judge.</p> <p>Action to quiet title to real property and enjoin removal of crops therefrom. Judgment for defendant.</p> <p>The question as to whether or not the parties in this case entered'into an agreement to abandon the boundary line between their lands established by Gray and Keeney was a question of fact for the jury, and the jury having found under the evidence that the plaintiff and defendant entered into such agreement, if there is substantial evidence to support such finding it will not be disturbed. (Miller v. Blunclt, 24 Ida. 234, 133 Pac. 383; Dcwidson Grocery Go. v. Johnston, 24 Ida. 336, Ann. Cas. 1915C, 1129, 133 Pac. 929; Montgomery v. Gray, 26 Ida. 583, 585, 144 Pae. 646; Cameron Lumber Go. v. Stacic-Gibbs Lumber Go., 26 Ida. '626, 144 Pac. 1114; sec. 7170, C. S.)</p>

<p>APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Robert M. Terrell, Judge.</p> <p>Plaintiffs seek to recover damages for taking of property and making of arrest by sheriff. Motion for change of venue denied.</p> <p>“Acts done by virtue of office are where the acts are within the authority of the officer, but in doing it. he exercises that authority improperly, or abuses the confidence which the law reposes in him, while acts done by color of office are where they are of such a nature that his office gives him no authority to do so.” (Feller v. Gates, 40 Or. 543, 91 Am. St. 492, 67 Pac. 416, 56 B. R. A. 630; Gerber v. Ackley, 37 Wis. 43, 19 Am. Rep. 751; State v. Fowler, 88 Md. 601, 71 Am. St. 452, 42 Atl. 201, 42 L. R. A. 849; Benfroe v. Codquitt, 74 Ga. 618; Broughton v. Maywood, 61 N. C. 380; Seeley v. Birdsall, 15 Johns (N. Y.) 267; State ex rel. West v. McCafferty, 25 Okl. 2, 105 Pac. 992, L. R. A. 1915A, 639; Leger v. Warren, 62 Ohio St. 500, 78 Am. St 738, 57 N. E'. 506, 51 L. R. A. 193; People v. Schuyler, 4 N. Y. 173; State v. Fowler, 88 Md. 601, 71 Am. St. 452, 42 Atl. 201, 42 L. R. A. 849; Decker v, Judson, 16 N. Y. 439.)</p> <p>An examination of the complaint will show that it is predicated first upon the actions of the sheriff “done by color of office” and not upon any act done by him “by virtue, or in virtue of his office,” and that the cause of action as against the defendant Allred is predicated upon his assistance of the sheriff, not in the duties of his office, but, in the violation of the duties of his office; therefore, this cause should be remanded with orders to the trial court to grant demand for change of venue to Power county.</p> <p>A party cannot avoid responsibility by pleading his own misfeasance. (Turner v. Billagram, 2 Cal. 523.)</p> <p>If he could commit only legal acts “in virtue of his office,” plaintiff would “have no cause of complaint.” (State ex rel. Stephens v. District Court, 43 Mont. 571, Ann. Cas. 19120, 343, 118 Pae. 268.)</p>

<p>APPEAL from the District Court of the Sixth Judicial District, for Custer County. Hon. F. J. Cowen, Judge.</p> <p>Action for usurpation of office. From judgment for plaintiff, defendant appeals.</p> <p>This action is.in the nature of a criminal action and defendant is entitled to a trial by jury. (People ex rel. Gorman v. Havird, 2 Ida. 531, 25 Pac. 294, 10 L. E. A. 831; People ex rel. Warfield v. Sutter St. By., 129 Cal. 545, 79 Am. St. 137, 62 Pac. 104.)</p> <p>The right of trial by jury, as provided for under art. 1, see. 7, of our constitution, “Secures the right as it existed at the date of the adoption of the constitution.” (Christensen v. Hollingsworth, 6 Ida. 87, 96 Am. St. 256, 53 Pac. 211; Shields v. Johnson, 10 Ida. 476, 3 Ann. Cas. 245, 79 Pac. 391.)</p> <p>A defendant in proceedings such as these is entitled to a trial by jury. This constitutional right exists only where there are questions of fact raised. (Buclcman v. State ex rel. Spencer, 34 Fla. 48, 15 So. 697, 24 L. R. A. 806 ,• People v. Kadletz, 30 Ida. 698, 167 Pae. 1161.)</p> <p>Judgment in this case was rendered notwithstanding the verdict, which proceeding has been a recognized and regular course of procedure for trial courts when verdicts contrary to the law such as the one in this case are rendered, and constitutes the only proper action which a trial court can take to dispense real justice between the parties. (Baxter v. Covenant Mutual Life Assn., 81 Minn. 1, 83 N. "W. 459; Welch v. Northern P. By. Co., 14 N. D. 19, 103 N. "W. 396; Sheehy v. Duffy, 89 "Wis. 6, 61 N. W. 295; Plano Mfg. Co. v. Richards, 86 Minn. 94, 90 N. W. 120.)</p>

Hon. Ralph W. Adair, Judge. Appeal from a judgment of the district court reversing an order of the probate court which set aside a former order confirming an administrator’s sale. Motion to dismiss appeal. The condition of the case at the time of the appeal to the district court was such that neither of respondents Thomp- • son and Matthews could possibly have been adversely affected by any decision that the district court might make.

<p>Dental Act —No Retroactive Effect — Revocation of Dental License — Right to Practice Dentistry a Valuable Personal Right — Penal Legislation — Statutory Construction — Charges Under Act must be Specific — Right of Accused to Impartial Tribunal.</p> <p>1. The dental act of this state (C. S., chap. 91) contains no provision which, either expressly or by neeessary implication, authorizes the state department of law enforcement to revoke dental licenses issued prior to the passage and approval of the act.</p> <p>2. While legislation of the character embraced within the general scope of the dental aet of this state may be sustained upon the ground that the legislature has authority under the police power to provide all reasonable regulations that may be necessary affecting the public health, safety or morals, such an act is in its nature highly penal and must be strictly construed.</p> <p>3. Seld, that respondent’s license is not subject to revocation by the department of law enforcement, upon the grounds and in the manner provided in the present dental law, the license having been issued prior to the passage and approval of said law.</p> <p>4. In any judicial or quasi-judicial proceeding a pleading in the nature of an accusation or complaint, must contain positive statements of the essential facts in issue, and is to be deemed insufficient where it merely states conclusions.</p> <p>5. Seld, that the charges brought against respondent as a practicing dentist by the department of law enforcement were indefinite and uncertain, and that he was entitled to a bill of partie.ulars or to have such charges set out specifically, in order that he might have an opportunity to prepare his defense.</p> <p>Publisher’s Note.</p> <p>3. Statute requiring dentist to take out license as impairing vested rights of previous practitioners, see notes in 5 Ann. Cas. 1005; 19 Ann. Cías. 833; Ann. Cas. 1914B, 399.</p> <p>Reporter’s Note. — This case and the following twelve cases, known as the Dental Cases, were consolidated for argument at the hearing and all the briefs filed by counsel for the respective respondents were considered by the court in its disposition of the Abrams case.</p> <p>6. Where the state confers a license upon an individual to practice a profession, trade or occupation, such license becomes a valuable personal right, which cannot be denied or abridged in any manner except after due notice and a fair and impartial hearing before an unbiased tribunal.</p> <p>7, Respondent being entitled to a hearing before an impartial tribunal upon the charges whieh had been preferred against him, held, that this right was denied when he was required to submit himself for trial before a body whieh was acting in the capacity of accuser, prosecutor and judge.</p>

APPEALS from the District Court of the Third Judicial District, for Ada County. Hon. Charles P. McCarthy and Hon. Charles F. Reddoch, Judges. Actions to enjoin the revocation of licenses to practice dentistry and déntal surgery. Judgments for Plaintiffs.

Hon. Charles P. McCarthy, Judge. Action to enjoin change of place of use of water. Judgment of nonsuit. A senior appropriator may not change place of use or point of diversion to the detriment of subsequent appropriators. (Walker v. McGinness, 8 Ida. 540, 69 Pac. 1003 ; Bennett v. Nourse, 22 Ida. 249, 125 Pac. 1038; Hall v. Black-man, 22 Ida. 556, 126 Pac. 1047; Last Chance Min. Co. v. Bunker Hill etc. Mm. Co., 49 Fed. 430; United States v. Union Gap Irr.

Hon. T. Bailey Lee, Judge. Action to obtain an injunction against defendants. From judgment of dismissal, plaintiff appeals. The method of passing chap. 110, Sess. Laws 1921, is contrary to and violates sec. 15, art. 3, Idaho constitution.

<p>APPEAL from the District Court of the Sixth Judicial District, for Lemhi County. Hon. F. J. Cowen, Judge.</p> <p>Defendants convicted of grazing and herding sheep on cattle range.</p> <p>The evidence must establish beyond a reasonable doubt that the defendants acted wilfully, and even though the evidence might conclusively establish all of the 'other elements of the offense, if there is no showing of criminal intent, then the evidence is insufficient to support the verdict and the judgment. (C. S., see. 6311; State v. Omaechevviaria, 27 Ida. 797, 152 Pac. 180.)</p> <p>It is necessary to save an exception to an order of the court overruling a demurrer to the information, and overruling a motion to quash the information. (C. S., see. 9008; State v. Crawford, 32 Ida. 165, 179 Pac. 511.)</p> <p>It is necessary on appeal to particularize in the specification of error wherein the evidence is insufficient to support the judgment or the verdict. (C. S., sec. 9013; Rule 42, Rules Supreme Court; State v. Maguire, 31 Ida. 24, 169 Pac. 175; Hole v. Yam Duzer, 11 Ida. 79, 81 Pac. 109; Later v. Haywood, 14 Ida. 45, 93 Pac. 374; Humphrey v. Whitney, 17 Ida. 14, 103 Pac. 389; Newport Water Go. v. Kellogg, 31 Ida. 574, 174 Pac. 602.)</p>

<p>APPEAL from the District Court of the Fourth Judicial District, for Cassia County. Hon. Wm. A. Babcock, Judge.'</p> <p>Appeal from judgment of conviction of murder of the second degree. Motion to dismiss.</p>

Hon. F. J. Cowen, Judge. Appeal from judgment of conviction of grazing sheep on a cattle range. The provisions of our statutes commonly known as the “Two-mile limit law,” and the “Priority law,” are applicable only to offenses committed in the use of the public domain. (State v. Horn, 27 Ida. 782, 152 Pac. 275; State v. Omaechevviaria, 27 Ida. 797, 799, 152 Pac. 280; Omaechevarria v. State, 246 U. S. 343, 38 Sup.

Hon. F. J. Cowen, Judge. Action to recover value of crops. From judgment for defendant, plaintiff appeals. The motion of plaintiffs for a new trial should have been granted as the evidence shows complete title in the plaintiffs, and under the law defendant was liable whether he was-permitted to cut the hay or not, it being without the consent of the plaintiffs.

Hon. O. R. Baum, Judge. Defendant was convicted of transporting intoxicating liquor. The only intent necessary to constitute the offense of transporting intoxicating liquors is the intent to transport. (State v. Sheehan, 33 Ida. 103, 190 Pac. 71.) A person is bound to know whether he is a de jure officer. So the argument of good faith or good intentions avails him nothing if he is not in truth and in fact an officer.

the Fifth Judicial District, for Bannock County. Hon. O. R. Baum, Judge. Appeal from judgment of conviction for having possession of intoxicating liquor. It is necessary to allege the kind of intoxicants under the Idaho statute in order to negative a permit, or show it is unlawful. (C. S., sec. 2628.) And when alleged it must be proven as alleged. (State v. Hesner, 55 Iowa, 494, 8 N. W. 329; City of Lincoln Center v. Linker, 5 Kan.

Hon. F. J. Cowen, Judge. Prosecution for murder; conviction of involuntary manslaughter. Appealed. The appellate court will examine the evidence to ascertain whether or not the verdict is supported by the evidence.

Hon. F. J. Cowen, Judge. Action for specific performance. Judgment for plaintiff. The certificate of acknowledgment by both husband and wife to the writing by which community real estate is sold, or encumbered, is an essential part of the instrument, must be attached to it or indorsed on it, and such instrument without such certificate of acknowledgment is void and unenforceable.

Hon. Robert M. Terrell, Judge. Action on bond. Judgment for plaintiff. The transcript of the testimony was never settled by the court, and hence, of course, cannot be considered.

Hon. F. J. Cowen, Judge Presiding. Appellants were convicted of the crime of murder in the first degree. Admission of gruesome exhibits, when not necessary to establish a material fact, is erroneous as tending to inflame the jury. (Flege v.. State, 93 Neb. 610, 142 N. W. 276, -47 L. R. A., N. S., 1106; McKay v. State, 90 Neb. 63, Ann. Cas. 1913B, 1034, 132 N. W. 741, 39 L. R. A., N. S., 714; Id., 91 Neb. 281, Ann.

Hon. Albert H. Feather-stone, Judge. Motion to dismiss appeal, strike transcript and part of transcript.

<p>APPEAL from the District Court of the Eighth Judicial District, for Bonner County. Hon. W. F. McNaughton, Judge.</p> <p>Action to recover money illegally paid to commissioner of highway district. Judgment for defendant.</p> <p>The contracts upon which the defendant received the money from the district were illegal and void as being against the statutes and public policy of this state. (C. S., secs. 386, 1515.)</p> <p>“Contract,” as the term is used in these statutes, embraces express as well as implied contracts. It is a comprehensive term embracing every kind of contract. (R. C. L. 586, 587.)</p> <p>Contracts prohibited by statute are, as a general rule, void notwithstanding the statute does not expressly declare them to be so, especially where a penalty is attached for their violation. (2 Elliott, Cont., p. 7, sec. 648.)</p> <p>Our legislature and courts have declared the public policy of this state with respect to a contract between a member of a board and the board itself in unmistakable terms, with respect to counties (C. S., see. 3515); with respect to school districts (C. S., sec. 887); with respect to cities and towms (C. S., sec. 4066; McRoberts v. Howr. 28 Ida. 163, 152 Pac. 1046; Robinson v. Huff alter, 23 Ida 173, 129 Pac. 334; Huoltols v. Lyle, 8 Ida. 589, 70 Pac. 401, Independent School Dist. v. Collins, 15 Ida. 535, 128 Am. St. 76, 98 Pae. 857; Rankin v. Jauman, 4 Ida. 53, 36 Pae. 502; Smith v. Ellis', 7 Ida. 196, 61 Pae. 695; Miller v. Smith, 7 Ida. 204, 61 Pac. 824; Pouting v. Isaman, 7 Ida. 283, 62 Pac. 680; Young v. Mankato, 97 Minn. 4, 105 N. W. 969, 3 L. R. A., N. S., 849).</p> <p>“The better reason and authority permit a recovery, in the absence of express prohibition of law, on the quantum meruit, where the services contracted for and actually performed were proper and necessary, and no unfairness was used, or undue advantage taken, in obtaining the contract.” {City of Concordia v. Hageman, 1 Kan. App. 35, 41 Pae. 133; Diver v. Keokuk Sawings Bank, 126 Iowa, 691, 102 N. W. 542; Berka v. Woodward, 125 Cal. 119, 73 Am. St. 31, 57 Pac. Ill, 45 L. R. A. 420; Smith v. Dandridge, 98 Ark. 38, Ann. Cas. 1912D, 1130, 135 S. W. 800, 34 L. R. A., N. S., 129; City of Ensley v. J. E. Hollingsworth & Co., 170 Ala. 396, Ann. Cas. 1912D, 652, 54 So. 95.)</p> <p>No recovery can be had of money paid under an executed contract assailable only as against public policy. {Kagy v. Independent District, 117 Iowa, 694, 89 N. W. 972; Weitz v. Independent District, 87 Iowa, 81, 54 N. W. 70; Macon v. Huff, 60 Ga. 221; Frick v. Brinkley, 61 Ark. 397, 33 S. W. 527; Niles v. Muzzy, 33 Mich. 61, 20 Am. Rep. 670; Currie v. School District No. 26, 35 Minn. 163, 27 N. W. 922; Pickett v. School Dist. No. 1, 25 Wis. 551, 3 Am. Rep. 105; Murray v. White, 42 Mont. 423, Ann. Cas. 1912A, 1297, 113 Pac. 754.)</p> <p>“Statutes imposing a penalty on a county officer for certain defaults or delinquencies are not to be extended by implication.” (15 C. J. 518, sec. 193; Price v. Board of Commissioners, 22 Colo. App. 315, 124 Pac. 353.)</p> <p>“While statutes prohibiting county officers from being interested in contracts with the county are general in their nature, their prohibition generally comprehends only contracts for public works.” (15 C. J. 517.)</p> <p>“There is no liability to account further, where the money has been expended in good faith for legal purposes, but in an illegal manner.” (15 C. J. 515; Flowers v. Logan County, 138 Ky. 59, 137 Am. .St. 347, 127 S. W. 512; Trainer v. Wolfe, 140 Pa. St. 279, 21 Atl. 391.)</p> <p>The payments made to respondent were submitted to the board and allowed as an expense account of the district. Such payments are not “contracts awarded or to be awarded,” and do not fall within the prohibition of sec. 1515. Sec. 1514 specifically provides that the highway commissioners shall receive no salary, but “shall receive the amount of their actual and necessary expenses incurred in the performance of their official duties.”</p> <p>The items referred to come within the term “actual and necessary expenses.” (15 C. J. 563, sec. 265; McQuillin, Municipal Corporations, see. 522; Abbott, Municipal Corp., 1650; Borne v. McWilliams, 67 6a. 106; Neary v. Robinson, 98 N. Y. 81.)</p>

<p>APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. R. N. Dunn, Judge.</p> <p>Action for divorce. Judgment for defendant.</p> <p>“A continuous course of fault-finding, threats, and other acts, intended to aggravate and annoy the other party to a marriage, though each act is trifling in itself, may cause such a degree of mental suffering as to constitute a ground for divorce, on the charge of extreme cruelty.” (Mosher v. Mosher, 16 N. D. 269, 125 Am. St. 654, 113 N. W. 99, 12 L. R. A., N. S., 820.)</p> <p>The letters of appellant were statements of one of the parties and for that reason inadmissible to corroborate the respondent. (C. S., sec. 2661; Bell v. Bell, 15 Ida. 7, 9, 24, 96 Pac. 196; Be Cloedt v. Be Cloedt. 24 Ida. 277, 133 Pac. 664; Bonaldson v. Bonaldson, 31 Ida. 180, 184, 170 Pac. 94.) These letters are not corroborated in a single particular by any outside person, fact or circumstance.</p> <p>Equity opposes multiplicity of suits and all the matters in controversy are within the jurisdiction of a court of equity. (1 Pomeroy, Eq. Jur., 2d ,ed. sec. 181; Wadsworth v. Wadsworth, 81 Cal. 182, 187, 15 Am. St. 38, 22 Pae. 648.)</p> <p>Independent’ of statute, courts of equity, in suits for divorce or separation, have the power of restoring to the wife the whole or a portion of her property. And this too, as well as on a bill filed by the wife as when the husband comes into a court of equity to assert his rights. (Wads-worth v. Wadsworth, supra; Holmes v. Holmes, 4 Barb. (N. Y.) 295 ; Boot v. Boot, 164 Mich. 638, Ann. Cas. 1912B, 740, 130 N. W. 194, 32 L. R. A., N. S., 837.),</p> <p>“If a wife by fraud and imposition on her husband induces him to transfer property to her for her benefit, a court of equity will afford him relief and compel a reconveyance.” (Johnston v. Johnston, 54 Kan. 726, 39 Pae. 725; 13 R. C. L., secs. 399, 400; Fitts v. Fitts, 14 Tex. 443; Snodgrass v. Snodgrass, 40 Kan. 494, 20 Pac. 203; 9 Am. & Eng. Eney. Law, 864.)</p> <p>The testimony of the party in whose favor a decree of divorce is rendered must be corroborated by some extrinsic evidence. (C. S., sec. 4641; Bell v. Bell, 15 Ida. 7, 96 Pac. 196.)</p> <p>When there is an entire absence of evidence of collusion, a lesser degree and quantity of corroboration is required. {Broderick v. Broderick, 40 Cal. App. 550, 181 Pac. 402.)</p> <p>Or, when the facts and circumstances are such as to preclude any possibility of collusion, only slight corroboration is necessary to sustain a decree. {Piatt v. Piatt, 32 Ida. 407, 184 Pac. 470; Baker v. Baker, 13 Cal. 87; Tattle v. Tuttle, 21 N. D. 503, Ann. Cas. 1913B, 1, 131 N. W. 460; Thompson v. Thompson, 32 N. D. 530, 156 N. W. 492; Heinmuller v. Heinmuller, 133 Md. 491, 105 Atl. 745.)</p> <p>Such corroboration need not be by the testimony of witnesses, but may be drawn from circumstances which lend credence to the testimony of one party, or tend to discredit the testimony of the other party. {Foote v. Foote, 71 N. J. Eq. 273, 65 Atl. 205;. Robinson v. Robinson, 83 N. J. Eq. 150, 9 Atl. 311; Rogers v. Rogers, 89 N. J. Eq. 1, 104 Atl.' 32; Carsten v. Garsten, 90 N. J. Eq. 181, 107 Atl. 45.)</p> <p>Thus, where the charge is extreme cruelty, and the party testified to physical violence, testimony of other witnesses as to finding marks of violence on the person of such party constitutes sufficient corroboration. {Roelke v: Roelke, 103 Wis. 204, 78 N. W. 923.)</p> <p>Testimony that the husband showed austerity of temper toward the wife, though insufficient in itself to justify a decree, is sufficient corroboration of plaintiff’s testimony as to cruel treatment to sustain a decree. (Blanchard v. Blanchard, 10 'Cal. App. 203, 101 Pac. 536.)</p> <p>A letter written by the husband to the wife charging her with adultery is sufficient corroboration of her testimony that he charged her with infidelity. (Yenzke v. Yenzke, 94 Cal. 225, 29 Pac. 499.)</p> <p>The testimony of plaintiff was not only uncorroborated, but was also insufficient to justify a decree in his favor. {Benson v. Benson, 45 Utah, 514, 146 Pac. .564, on the Potter charges; Barton v. Woodward, 32 Ida. 375, 182 Pac. 916, 5 A. L. R. 1090, and Beach v. Beach, 4 Okl. 359, 46 Pac. 514, 522, on the insanity charge.)</p> <p>"Where a question in regard to the ownership of property is put in issue in a suit for divorce and the divorce is not granted, such issue will not be determined. {Bell v. Bell, 15 Ida. 7, 25, 96 Pae. 196; Uhl v. Uhl, 52 Cal. 250; Houston v. Timmerman, 17 Or. 499, 11 Am. St. 848, 21 Pac. 1037, 4 L. R. A. 716; Wetmore v. Wetmore, 40 Or. 332, 67 Pac. 98; Reed v. Reed, 70 Neb. 779, 98 N. W. 73; Hunter v. Hunter, 88 Neb. 153, 129 N. W. 422; Peck v. Peck, 66 Miclf. 586, 33 N. W. 893; Benson v. Benson, supra-, 19 C. J., p. 21; Redding v. Redding (N. J. Eq.), 85 Atl. 712; Bensen v. Bensen, 20 Cal. App. 462, 129 Pac. 596.)</p>

<p>APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. John M. Flynn, Judge.</p> <p>Action to quiet title. Judgment for plaintiff.</p> <p>The pleader must plead all facts which are necessary and material, to entitle plaintiff to the relief sought. In this case the plaintiff pleaded a conclusion of law in stating that the property was her separate property.</p> <p>The presumption in this state is that all property is community property. (Lewis v. Burns, 122 Cal. 358, 55 Pac.</p> <p>132; Gwynn v. Dierssen, 101 Cal. 563, 36 Pac. 103; Bamsdell v. Fuller, 28 Cal. 37, 42, 87 Am. Dec. 103; Laws v. Boss, 44 Nev. 405, 194 Pac. 465; Estate of Warner, 167 Cal. 686, 140 Pac. 583.)</p> <p>The complaint is fatally defective in not alleging plaintiff was the owner at the time of filing the suit. (Clark v. Holmes, 31 Old. 164, Ann. Cas. 1913D, 385, 120 Pac. 642," and authorities referred to in the opinion; Melvin v. Melvin, 8 Cal. App. 684, 97 Pac. 696; 16 Cyc. 233.)</p> <p>■“An averment of the ultimate fact of title to the land, such as an averment that the plaintiff is the owner or the owner in fee simple, or the owner of a complete equitable title, without setting out specifically the character of the title, is sufficient.” (32 Cyc. 1351; Andersen v. Andersen, 69 Neb. 565, 96 N. W. 276; Ely v. New Mexico & iré. E. Co., 129 U. S. 291, 9 Sup. Ct. 293, 32 L. ed. 688; Knight v. Boring, 38 Colo. 153, 87 Pac. 1078; Marques v. Maxwell Land Grant Co., 12 N. M. 445, 78 Pac. 40.)</p> <p>The question of insufficiency of the evidence will never be passed upon by the appellate court where the witnesses appear in person and testify if there is any evidence to sustain the findings and decree. It is only wffiere there is a total lack of evidence that the court will reverse a decision. {Brown v. Grubb, 23 Ida. 537,-130 Pac. 1073; Moody v. Beggs, 33 Ida. 535, 196 Pac. 306; Bank of Orofino v. Well-man, 26 Ida. 425, 143 Pac. 1169; Cole v. Brown, 114 Mich. 396, 68 Am. St. 491, 72 N. W. 247; State Bank v. Frey, 3 Neb. (Unof.) 83, 91 N. W.-239; Graham v. LaCrosse & M. E. Co., 102 U. S. 148, 26 L. ed. 106; Schreyer v. Scott, 134 U. S. 405, 10 Sup. Ct. 579, 33 L. ed. 955; 209 Cyc. 423; State Bank v. Chatten, 69 Kan. 435, 77 Pac. 96; Arnett v. Coffey, 1 Colo. App. 34, 27 Pac. 614.)</p>

<p>Corporations — Capacity op Foreign Corporations to Sue.</p> <p>1. Where a complaint contains an allegation that plaintiff is a foreign corporation, without showing that it has complied with the constitution and statutes of this state relative to foreign corporations doing business therein, the question of its capacity to sue in the courts of this state must be raised by demurrer or answer or it is waived.</p> <p>2. The appellate court will not consider an alleged error which was waived in the court below.</p>

Hon. Wallace N. Scales, Judge. Action to foreclose mortgage. Demurrer to answer sustained. The tax lien had all the effect of a personal judgment against the owner, Brinton, and was a lien, not only on the property conveyed, but on all his other property.

Hon. Wallace N. Scales, Judge. Action to recover taxes paid on covenant implied from the nse of the word “grant” in a deed of conveyance. Demurrer to complaint sustained.

Hon. Edgar C. Steele, Judge. Action in ejectment. Judgment for defendants and intervenor. The mayor-trustee acts as an agent for, and instead of, the officers of the general land department of the United States and the same conclusive presumptions arise from his execution of a deed as arise from the execution of a deed by officers of the general land office. (Anderson v. Bartels, 7 Colo. 256, 3 Pac. 225; Chever v. Horner, 11 Colo. 68, 7 Am.

<p>APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. W. W. Woods, Judge.</p> <p>Action on a claim against an estate. Judgment for plaintiff.</p> <p>When the evidence, even though uncontradicted, is insufficient to sustain the verdict of the jury, or such verdict is plainly contrary to the decided weight of evidence, such verdict and the judgment based thereon will be reversed. (Hawkins v. Pocatello Water Co., 3 Ida. 766, 35 Pac. 711; Commercial Bank v. Lieuallen, 5 Ida. 47, 46 Pae. 1020; Idaho Mercantile Co. v. Palanquin, 8 Ida. 101, 66 Pac. 933; Watson v. Molden, 10 Ida. 570, 578, 79 Pac. 503; Wood v. Broderson, 12 Ida. 190, 201, 85 Pac. 490; Quayle v. Beam, 15 Ida. 666, 99* Pae. 707; Lamb v. Licey, 16 Ida. 664, 671, 302 Pac. 378; Bippetoe v. Feely, 20 Ida. 619, 119 Pac. 465; Card v. Thompson, 21 Ida. 485, 123 Pac. 497; Goldstone v. Bustemeyer, 21 Ida. 703, 706, 123 Pac. 635; Breshears v. Callender, 23 Ida. 348, 131 Pac. 15.)</p> <p>The evidence warranted a more substantial verdict. {Baft Biver Land etc. Co. v. Laird, 30 Ida. 804, 168 Pae. 1074; Dore v. Benedict, 30 Ida. 731, 167 Pae. 1165; Watkins v. Mountain Home etc. Irr. Co., 33 Ida. 623, 197 Pac. 247.)</p>

Hon. Wallace N. Scales, Judge. Action for damages for wrongful foreclosure of chattel mortgage. Judgment for defendants and plaintiff appeals. While the instant action is on appeal, the judgment herein cannot be used as res adjtidicata, for, so long as appeal is pending, the judgment is not final. (Chambers v. Farnham, 39 Cal.

<p>APPEAL from the District Court of the Eighth Judicial District, for Benewah County. • Hon. John M. Flynn, Judge.</p> <p>Action for specific performance of an agreement to convey. From judgment for defendants, plaintiff appeals.</p> <p>Upon reading the several acts of Congress it must be found to be the intention of the legislature to be most lib•eral in extending to all persons the right to nse water on public lands, and to secure to them this right as against the settler when the use is for a beneficial purpose, and the act, sec. 2288, Rev. Stats., in effect declares it was not the intention of Congress to bar the settler from making those reasonable and necessary transfers and granting those privileges for easements subject to which every person holds his property. (United States v. Reed, 28 Fed. 482; Methow Cattle Co. v. Williams, 64 Wash. 457, 460, 461, 117 Pac. 239.)</p> <p>Springs may be appropriated as water in a watercourse, and when a spring furnishes a stream of water that rises to the surface the right of appropriation attaches. (Wiel, Water Rights, sec. 92; Wilkins v. McCue, 46 Cal. 656; Shenandoah Min. etc. Co. v. Morgan, 106 Cal. 409, 39 Pac. 80; Brosnan v. Harris, 39 Or. 148, 87 Am. St. 649, 65 Pac. 867, 54 L. R. A. 628.)</p> <p>“The fundamental and only restrictions . . . imposed on 'a tona tide homesteader by the act of Congress are that he shall enter upon the land for his own exclusive use, and with the honest purpose and intention of residing upon and cultivating it for five years.” (Grubts v. United States, 105 Fed. 314, 44 C. C. A. 513; King-Byder Lumter Co. v. Scott, 73 Ark. 329, 84 S. W. 487/ 70 L. R. A. 873; St. Louis Min. & Mill. Co. v. Montana Min. Co., 171 U. S. 650, 655, 19 Sup. Ct. 61, 63, 43 L. ed. 320, 322; Orrell v. Bay Mfg. Co., 83 Miss. 800, 36 So. 561, 70 L. R. A. 881.)</p> <p>A prescriptive right is acquired in Idaho in five years to the use of water. (Brassard v. .Morgan, 7 Ida. 215, 61 Pac. 1031; Wiel on Water Rights, 3d ed., p. 629, sec. 583.)</p> <p>Where the question of public policy under the United States statutes is not involved, an agreement like in the case at bar should be specifically enforced. (C. S., sec. 7975; Stowell v. Tucker, 7 Ida. 312, 62 Pac. 1033; Francis v. Green, 7 Ida. 668, 65 Pac. 362; Barton v. Dunlap, 8 Ida. 82, 66 Pac. 832; Fleming v. Baker, 12 Ida. 346, 85 Pac. 1092.) ' '</p> <p>A license will be enforced in equity where valuable improvements have been made. (Rerick v. Kern, 14 Serg. & R. (Pa.) 267, 16 Am. Dec. 497; Stoner v. Zucker, 148 Cal. 516, 113 Am. St. 301, 1 Ann. Cas. 704, 83 Pac. 808.)</p> <p>The appropriation of the water was expressly authorized by the United States government, and whatever rights respondent had were sold for a valuable consideration by him to appellant. (Maffet v. Quine, 95 Fed. 199.)</p> <p>The time fixed for respondent to make the conveyance was proper, for had the respondent for any reason failed to complete his homestead entry appellant would hold under grant from the United States. (Le Quime v. Chambers, 15 Ida. 405, 98 Pac. 415, 21 L. R. A., N. S., 76.)</p> <p>Title to land is in no way concerned. (Wiel, Water Rights, 3d ed., sec. 281.)</p> <p>In the absence of a written agreement subscribed by the parties sought to be charged, another person cannot acquire any right in the land of another or any water in the land of another, and any right that such person has to take water and cross the land, as in this ease, is permissive, and may be revoked at will. (Marshall v. Niagara Springs Orchard Co., 22 Ida. 144, 125 Pac. 208.)</p> <p>Under the law of the United States existing at that time, the respondent could not make a contract that alienated the whole or any part of his homestead claim or any interest in said land. (Anderson v. Carkins, 135 U. S. 483, 10 Sup. Ct. 905, 34 L. ed. 272; Mellison v. Allen, 30 Kan. 382, 2 Pae. 97; Bailey v. Sanders, 228 U. S. 603, 33 Sup. Ct. 602, 57 L. ed. 985; Cascade Public Service Corp. v. Bailsback, 59 Wash. 376, 109 Pac. 1062; Armstrong v. Henderson, 16 Ida. 566, 102 Pac. 361; Jackson v. Baker, 48 Or. 155, 85 Pac. 512.)</p> <p>The contract sought to be enforced by the plaintiff is void as being against the public policy of the United States. (McCrillis v. Copp, 31 Fla. 100, 12 So. 643; Kine v. Turner, 27 Or. 356, 41 Pac. 664; Horseman v. Horseman, 43 Or. 83, 72 Pae. 698; Robinson v. Jones,' 31 Neb. 20, 47 N. W. 480; Garley v. Gitchell, 105 Mich. 38, 55 Am. St. 428, 62 N. W. 1003; 13 C. J. 507; Adams v. Church, 193 U. S. 510, 24 Sup. Ct. 512, 48 L. ed. 769.)</p>

Hon. Wm. W. Woods, Judge. Prosecution for the crime of possessing intoxicating liquor to be used for beverage purposes. Judgment of conviction. Defendant appeals. Where the evidence leaves the defendant’s guilt in doubt, a new trial should be granted, as contrary to the evidence.

Hon. Wallace N. Scales, Judge. Action upon a promissory note. Judgment for plaintiff. In Idaho there seems to be no difference as to the effect and validity of a writ of attachment, or as to its rightfulness or wrongfulness between an insufficient and a false affidavit, for in either case the writ is issued without jurisdiction and therefore wrongfully issued. (Murphy v. Montmidon, 3 Ida. 325, 35 Am. St. 279, 29 Pac. 851; Merchants’ Nat. Bank v. Buisseret, 15 Cal.

<p>APPEAL from tbe District Court of the Tenth Judicial District, for Nez Perce County. Hon. Wallace N. Scales, Judge.</p> <p>Action to quiet title. Judgment for cross-plaintiffs Mitcham, Miller and Riley. Plaintiff appeals.</p> <p>The deed from Oylear to Alfred P. Hollingsworth and his heirs by Mary E. Hollingsworth, his wife, conveys title of the whole estate to the grantee named and the grantees designated. (Bo¿Line’s Admr. v. Arthur, 91 Ky. 53, 34 Am. St. 162, 14 S. W. 904; Sullivan v. McLaughlin, 99 Ala. 60, 11 So. 447; Fanning v. Docm, 128 Mo. 323, 30 S. W. 1032; Beeves v. Cook, 71 S. C. 275, 51 S. E. 93; Fletcher v. Tyler, 92 Ky. 145, 36 Am. St. 584, 17 S. W. 282; Smith v. Upton, 12 Ky. Law Rep. 27, 13 S. W. 721; Tmder v. Tinder, 131 Ind. 381, 30 N. E. 1077; Cullens, v. Cullens, 161 N. C. 344, 77 S. E. 228, L. R. A. 1917B, 64.)</p> <p>The parties, having by their acts, silence and acquiescence placed a construction on the deed from Oylear, the construction, not being repugnant to any rule of law, will be followed by the court. (Bakin v. Savage, 172 Mass. 23, 51 N. E. 186; Huff v. Mimard, 24 Ky. Law Rep. 2272, 73 S. W. 1036; Kamer v. Bryant, 103 Ky. 723, 46 S. W. 14.)</p> <p>The Oylear deed shows on its face that the property did not vest in the community, and the estate conveyed passed to the grantee named and grantees designated. No evidence was introduced to rebut this presumption or show a different intention. (McCutchen v. Purinton, 84 Tex. 603, 19 S. W. 710; Baker v. Baker, 55 Tex. 577; Morrison <& Hart v. Clark, 55 Tex. 437; Hatchett v. Conner, 30 Tex. 104; Swain v. Duane, 48 Cal. 358; Sanchez v. Grace Methodist Episcopal Church. 114 Cal. '295, 46 Pac. 2; Letot v. Peacock (Tex.) 94 S. W. 1121.)</p> <p>The extent of the estate purported to be conveyed characterizes the entry and subsequent possession, and shows that they were made under claim to the whole of the estate and with intent to oust others asserting an interest. (Wilson v. Linder, 21 Ida. 576, Am. Cas. 1913E, 148, 123 Pac. '487, 42 L. R. A., N. S'., 242; Elder v, McClaskey, 70 Fed. 529, 17 C. C. A. 251; Hall v. Lam, 102 H. S. 461, 26 L. ed. 217; Christie v. Gage, 71 N. Y. 189; Greenhill v. Biggs, 85 Ky. 155, 7 Am. St. 579, 2 S. W. 774; Little v. Crawford, 13 Ida. 146, 88 Pae. 974.)</p> <p>A tenant in possession may disseise his cotenants either by direct notice of adverse claim or by unequivocal acts from which notice will be presumed. (Parsons v. Sharpe, 102 Ark. 611, 145 S. W. 537; Allen v. Morris, 244 Mo. 357, Ann. Cas. 1913D, 1310, 148 S. W. 905; Clarke v. Dirks, 178 Iowa, 335, 160 N. W. 31; Smith v. Barrick, 41 Cal. App. 28, 182 Pac. 56; Hahn v. Keith, 170 Wis. 524, 174 N. W. 551; Hynds v. Hynds, 253 Mo. 20, 161 S. W. 812; Mathews v. Baker, 47 Utah, 532, 155 Pac. 427; Carr v. Alexander (Tes. Civ.), 149 S. W. 218; Wilson v. Hoover, 154 Ky. 1, 156 S. W. 880; Winterburn v. Chambers, 91 Cal. 170, 27 Pac. 658.)</p> <p>The heir clause in the deed merely attempts to limit the inheritance or succession to the land, and in no way prevents the whole fee-simple title vesting in the named grantee by force of the deed itself. The fact that the word “heirs” immediately follows the named grantee conclusively proves that a limitation was only intended, and nothing more. (C. J., 'sec. 279, p. 300; Howe v. Howe, 94 Kan. 67, 145 Pac. 873; Lane v. TJtz, 130 Ind. 235, 29 N. E. 772; Tipton v. La Bose, 27 Ind. 484; Bonnell v. McLaughlin, 173 Cal. 213, 159 Pac. 590; McNeer v. Patrick, 93 Neb. 746, 142 N. W. 283; Cox v. Newby, 101 S. C. 193, 85 S. E. 369; Garrett v. Wiltse, 252 Mo. 699, 161 S. W. 694.)</p> <p>The clause, as a limitation of the inheritance, is absolutely void, and cannot set aside the Idaho statutes. (Howe v. Howe, supra.) Mary E.' Hollingsworth and her heirs cannot be affected at all by the heir clause, for she is not named as a grantee in the Oylear deed. She gets her title to one-half of the land by the law vesting it, and not the deed. (Hwald v. Hufton, 31 Ida. 373, 173 Pac. 247.)</p> <p>It requires very strong evidence and facts and circumstances to establish adverse possession against tenants in common, especially where they are related to each other by blood or by marriage as in the instant case. (1 Cyc. 1071, 1080.)</p> <p>Cross-plaintiffs accepted their distributive part of the effects of their mother on her death in accordance with the memorandum left by her, and, having so accepted, and having failed to probate their mother’s estate, they cannot be now heard to assert their stale claim. (Bycm v. Woodin, 9 Ida. 525, 75 Pae. 261.)</p>

Edgar C. Steele, Judge. Action for partition of real property. Judgment quieting title in respondents. Tbe homestead declaration of Mrs. Oylear was valid. It does not recite in tbe words of tbe statute tbe reason wby Mrs. Oylear made it, but merely states that ber husband had made no declaration and that she made it for their joint benefit.

Hon. Albert A. Feather-stone, Judge. Action on promissory notes. Appeal from default judgment and order denying motion to set it aside. Where a genuine mistake arises or exists between attorneys as to the extent, character or nature of their employment or retainer, it constitutes mistake, inadvertence, surprise and excusable neglect. (Barto v. Sioux City Electric Go., 119 Iowa, 179, 93 N. W. 268; Buena Vista v. Iowa Falls etc. Ry.

Hon. John M. Flynn, Judge. Action to collect debts of insolvent bank. Judgment against makers of two promissory notes. Cases in which partnership claims have been set off: Tucker v. Oxley, 5 Cranch (U. S.), 34, 3°L. ed. 29; Funk v. Yoxmg, 138 Ark. 38, 210 S. W. 143, 5 A. L. E. 79; St. Paul & Minneapolis Trust Co. v. Leek, 57 Minn. 87, 47 Am. St. 576, 58 N. W. 826.

<p>APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. John M. Flynn, Judge.</p> <p>Action for specific performance of a forfeiture. From a judgment for plaintiff, defendants appeal,</p> <p>Where an instalment contract, in which time is made the essence thereof, gives the vendor an option to forfeit upon a breach of snch contract by the vendee, the vendor cannot summarily declare the contract forfeited, but he must give the vendee notice of his intention to do so and a reasonable time within which to comply with the provisions of the contract. (Higinbotham v. Frock, 48 Or. 129, 120 Am. St. 796, 83 Pae. 536; O’Connor v. Hughes, 35 Minn. 446, 29 N. W. 152; Basse v. Qallegger, 7 Wis. 442, 76 Am. Dec. 225; 39 Cyc. 1360, 1383; 20 Am. & Eng. Ency. of Law, 2d ed., 684.)</p> <p>Where time is of the essence of a contract and the vendor, by his conduct, leads the vendee to believe that a forfeiture will not be insisted upon, he thereby waives his right to declare a forfeiture until he gives the vendee reasonable notice of his intention to do so and an opportunity to perform. (Eaton v. Schneider, 185 111. 508, 57 N. E. 421; Gray v. Felton, 67 Or. 239, 135 Pac. 755; Gibson v. Bouse, 81 Wash. 102, 142 Pac. 464; Cue v. Johnson, 73 Kan.' 558, 85 Pac. 598; Monson v. Bragdon, 159 111. 61, 42 N. E. 383; Gray v. Gurley, 252 Mo. 410, 159 S. W. 1076; City of Los Angeles v. Krutz, 170 Cal. 344, 149 .Pac. 580; Walker v. McMurchie, 61 Wash. 489, 112 Pac. 500; Ball v. Belden, 59 Tes. Civ. 29, 126 S. W. 20; Smith v. Treat, •234 111. 552, 85 N. E. 289; Casner v. Meyer (Mo. App.), 191 S. W. 1119; Kessler v. Pruitt, 14 Ida. 175, 93 Pac. 965.)</p> <p>Forfeitures are looked upon unfavorably by courts of equity and they will turn to the vendor to see if the default is the result of his act or conduct, or was contributed to by him. (King v. Seebeck, 20 Ida. 223, 118 Pac. 292; Harris v. Seed, 21 Ida. 364, 121 Pac. 780; Prairie Dev. Co. v. Leiberg, 15 Ida. 379, 98 Pac. 616.)</p> <p>Courts of equity are loth to enforce a forfeiture, especially when a refusal to do so will give the vendor every right he was entitled to under the contract. (Kohler v. Lundberg, 54 Utah, 339, 180 Pac. 590.)</p> <p>Where the parties have so stipulated as to make the time of payment of the essence of the contract within the view of equity, as well as of law, a court of equity cannot relieve a vendee who has made default. (1 Pomeroy’s Eq. Jur., 3d ed., sec. 455; vol. 6, sec. 811; Qlock v. Howard & Wilson Colony Co., 123 Cal. 1, 69 Am. St. 17, 55 Pac. 713, 43 L. R. A. 119; 39 Cyc. 1369; 6 R. C. L., sec. 285; Garvey v. Barkley, 56 Wash. 24, 104 Pac. 1108.)</p> <p>When an extension of time is given the vendor does not thereby waive his right to rescind or forfeit the contract, if the purchaser refused to pay when the time fixed by the agreement for extension has elapsed. (39 Cyc. 1393, 1395, 13 C. J. 689; Bryson v. McCone, 121 Cal. 153, 53 Pac. 637.)</p> <p>Where the vendee has been guilty of gross neglect in regard to performance, the vendor has a right to rescind, even though the time within which a contract for the sale of land' should be performed has become indefinite because of mutual forbearance of the parties. (39 Cyc. 1392; 6 Pomeroy’s Eq. Jur., 3d ed., sec. 816.)</p> <p>A tender to be sufficient in law must be in an amount at least equal to the amount due. (Louisville <& N. B. Co. v. Cottengim, 31 Ely. Law. Rep. 871, 104 S. W. 280; Fridge v. State, 3 Gill & J. (Md.) 103, 20 Am. Dec. 463; Cary v. Bancroft, 14 Pick. (Mass.) 315, 25 Am. Dec. 393; State v. Barnes, 22 N. D. 18, Ann. Cas. 1913E, 930, 132 N. W. 215, 37 L. R. A., N. S,, 114; Horgan v. Bussell, 24 N. D. 490, 140 N. W. 99, 43 L. R. A., N. S., 1150; Bell v. Biggs, 34 Okl. 834, 127 Pac. 427, 41 L.'R. A., N. S., 1111; Stolze v. Milwaukee etc. B. Co., 113 Wis. 44, 90 Am. St. 833, 88 N. W. 919.)</p> <p>If a party, seeking specific performance, has been guilty of gross laches, or has been inexcusably negligent, in performing the contract on his part, or if there has in the meantime been a material change in circumstances affecting the rights, interest or obligation of the parties, courts of equity will refuse to decree specific performance. (Taylor v. Longworth, 14 Pet. (39 U. S.) 172, 10 L. ed. 405.)</p>

F. MeNaughton, Judge, granting temporary alimony and suit money. Original motion to quash order to show cause. Original application for suit money on appeal.

Hon. Wm. W. Woods, Judge. Action for damages for breach of contract. Appeal from judgment of dismissal. The contract involved in this action was not lacking in mutuality, but embodied a written offer by the plaintiff to sell a definite number of shares of corporate stock at a definite price per share, payable on fixed dates, and upon the written acceptance of such offer by defendant it became a valid and binding contract.

Hon. E. C. Steele, Judge. Action by plaintiff as beneficiary under life insurance contract. Judgment for plaintiff. The agreement stated in the application binds the parties, as to the materiality of - the answers. (Jeffries v. Economical Mutual Life Ins. Co., 22 Wall. (U. S.) 47, 22 L. ed. 833; Harris v. Newi York Life Ins. Co., 86 W. Ya. 638, 104 S. E. 121; McEwen v. New York Life Ins. Co., 42 Cal.

<p>Mortgage Foreclosure — Usury—Correct Judgment upon Erroneous Theory op the Law — Agency Under Sec. 6255, Remington & Ballinger’s Code op Washington.</p> <p>1. Under Remington & Ballinger’s Code of Washington, see. 6255, a principal is responsible for the acts of his agent in making a usurious eontraet. The agency referred to in the statute is one which has to do with the making of the contract.</p> <p>2. The employment of an attorney to pass upon an abstract and an escrow agreement before a loan will be made does not render such attorney the agent of the lender within the purview of the Washington statute.</p> <p>3. Where the trial court enters a correct judgment upon an incorrect theory of the law applicable to the ease, the judgment will be affirmed, but upon a correct theory of the law, provided no injustice will thereby result.</p>

Hon. Robert N. Dunn, Judge. Suit in equity to set aside judgment for fraud.

<p>.Highway Districts — Deposit op Funds — Statutory Provisions— Special or General Deposit — Contractual Relation — Trust Fund' — Daw Impairing Obligation op Contract — Constitutional Inhibitions.</p> <p>1. Prior to the enactment of chap. 42, Sess. Laws 1921, there was no lawful way for the funds of a highway district to reach the vaults of a hank under general deposit, and a treasurer of such district attempting to so deposit such funds and any bank undertaking to receive such funds otherwise than upon special deposit actccl in violation of the provisions of C. S., see. 8379.</p> <p>2. Prior to the enactment of chap. 42, Sess. Laws 1921,. the funds of a highway district illegally deposited in a bank upon general deposit remained the property of the district; the title thereto did not pass, to the bank, neither did the relationship of debtor and creditor arise between the bank and the district. In contemplation of law the bank received such funds impressed with a trust for the use of the true owner, and neither the illegal act of the treasurer of the district nor of the bank officials created any other relationship than that of bailor and bailee.</p> <p>3. In the instant ease when the funds of the highway district were deposited by its treasurer in the bank the law created a contract of special deposit, and the highway district being a municipal corporation was legally empowered to make this contract of special deposit and none other. The highway district acquired a vested right in this contract of special deposit made in its behalf by its treasurer.</p> <p>4. It is not within the constitutional power of the legislature to enact a valid statute abrogating a contract of special deposit between a highway district and a bank, making in lieu thereof a contract of general deposit whereby the title to the highway district’s money is passed to the bank and such money becomes a part of its general assets, subject to distribution among its depositors and creditors in case of insolvency, imposing upon the highway district the status of a creditor entitled to receive only its pro rata share of the assets of the bank upon liquidation.</p> <p>5. The remedy to enforce a contract is a part of the contract, and any subsequent law of the state which so affects that remedy as to substantially impair and lessen the value of the contract is such an impairment of the obligation of a' contract as to bring it within the inhibition of sec. 10, art. 1 of the federal constitution, and of see. 16, art. 1 of the constitution of this state.</p> <p>6. The obligation of a contract is impaired by a statute which alters its terms, by imposing new conditions or dispensing with existing conditions, or which adds new duties or releases or lessens any part of the contractual obligation or substantially defeats its ends.</p> <p>7. The inhibitions of the state and federal constitutions with regard to impairing the obligations of contracts extend to contracts made by a state or municipal corporation.</p> <p>8. Seld, that chap. 42, Sess. Laws of 1921, is unconstitutional and void in so far as it purports to affect or is sought to be applied to contracts of deposit of funds of municipal corporations made before its enactment, so as to impair the obligation of such contracts.</p>