Volume 4 — Arizona Reports

<p>MANDAMUS.- Original application.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the District Court of the Fourth Judicial District in and for the County of Yavapai. Edmund W. Wells, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the District Court of the Third Judicial District in and for the County of Yavapai. Henry C. Gooding, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Statutory Construction — Intent Controls — Whole Statute Must Be Considered.—-In the construction of a statute it is the intent and purpose of the law, not the letter, that must control; and the whole statute must he considered.</p> <p>2. Husband and Wipe—Separate Estate—Purchase by Wife^—“Acquired ” as Used in Bev. Stats. Ariz. 1SS7, Tit. 34, Ch. 3, Sec. 17, Construed.—The word “acquired,” in section 17, supra, providing that “all property acquired by either husband or wife during the marriage, except that which is acquired by gift, devise, or descent, or earned by the wife while,” etc., “shall be deemed the common property of the husband and'wife, and during the coverture may be disposed of by the husband alone,1” was not intended to include a purchase made by the wife with her separate money or property.</p> <p>3. Same—Same—Personal Property—Beal Property—Acquired by Wife by Purchase or Exchange May be Held as Separate Property.—A married woman may, under the laws of this territory, by purchase or exchange, acquire personal property or real properly and hold the same as her separate property.</p> <p>4. - Same—Same—Personal'Property Purchased by Wife with Her’ Separate Property—Not Subject to Execution against Husband.—Cattle, separate property of husband, purchased by wife from him, at the full price, with money which was her separate property, become her separate property, and are not subject to • execution on a judgment against the husband, the good faith of the transaction not being questioned.</p> <p>5. Eraud—Transfers—Personal Property—Want of Immediate Delivery Only Prima Eacie Evidence of Eraud—Bev. Stats. Ariz. 1887, Tit. 30, Sec. 5, Cited—Eraud Question of Eact—Bev. Stats. Ariz. 1887, Tit. 30, Sec. 8, Cited.—Where a wife purchased cattle belonging to her husband which wore in possession of a third party, who was notified of the purchase, but continued in possession till the following spring, when the cattle were delivered to her, and at the time of purchase a bill of sale was executed and duly recorded, such sale is not, as a matter of law, fraudulent as against creditors, because there is no actual change of possession and immediate delivery, section 5, supra, providing that, unless there is immediate delivery, etc., it is “prima facie evidence of fraud,” and section 8, supra, providing that the question of fraudulent intent shall be deemed a question of fact, and not of law.</p>

<p>APPEAL from a judgment of the District Court of the Third Judicial District in and Cor the County of Maricopa. Henry C. Gooding, Judge.</p> <p>The facts are stated in the op inion.</p>

<p>APPEAL from a judgment of the District Court of the Third Judicial District in and for the County of Maricopa. Joseph H. Kibbey, Judge.'</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the District Court of the Third Judicial District in and' for the County of Maricopa. Joseph H. Kibbey, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment cf the District Court of the First Judicial District in and for the County of Cochise. Richard E. Sloan, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Criminal Law—Necessity for Plea.— Until the defendant has pleaded to the indictment, there is no issue to be submitted to the jury, and the omission to plead is fatal to the judgment even after verdict.</p>

<p>APPEAL from a judgment of the District Court of the Fourth Judicial District in and for the County of Coconino. Edmund W. Wells, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Appeal and Error—Assignments of Error—Must be Specific.— An assignment of error referring' this court to pages 13 to 18 of the transcript is too general, are1 will not he considered.</p> <p>2. Bonds—Statutory Appeal-Bond—Surety not Liable to Appellee Where Appeal Was Dismissed on His Motion for Insufficiency. —No recovery can be bad upon a bund giren as a statutory appeal-bond as against a surety where the appeal was dismissed on motion of plaintiff on the ground of the insufficiency of such bond.</p> <p>3. Same—Voluntary Bond — Liability of Sureties — Necessity for Acceptance and Delivery.—An appeal-bond, not good as a statutory bond, does not become binding on the sureties as a voluntary bond, because it was never accepted or delivered.</p>

<p>1. Constitutional Law — Criminal Law — Bev. Stats. Ariz. 1887, Penal Code, Sec. 775, Construed and Held Unconstitutional— U. S. Constitution, . Amendment 8, Cited—Witnesses—Compulsory Process—Presumptions—Larceny without State.—Section 775, supra, providing that whoever, in another state or country, steals the property of another and brings it into this territory may be convicted and punished as if the larceny had been committed in this territory, is not unconstitutional because it attempts to give our courts extraterritorial jurisdiction, but is open to two other objections. The constitution of the United States, amendment 6, provides that in criminal prosecutions the accused shall have compulsory process for obtaining witnesses, and, as process of this court cannot run without the territory where the witnesses as to the larceny, the essence of the offense, are, the law, which necessarily in its operation denies that right, is unconstitutional. Again, by the same amendment, the accused is entitled “ to be informed of the nature and cause of the accusation,” and there being no presumption that the common-law offense of larceny exists in Sonora, the accused cannot be informed of the offense attempted to be charged.</p>

<p>1. Public Lands — School Lands — Pre-emption—Assignment—Rev. Stats. U. S. 1878, Secs. 1946, 2275, Construed—Section 2263 Cited.—Section 1946, supra, provides that sections sixteen and thirty-six in each township of certain territories, including Arizona, shall be reserved for school purposes. Section 2275, supra, provides that where settlements with a view to pre-emption have been made before survey, which are found to be on school sections, those sections shall be subject to the pre-emption claim of such settlers, and if they have been or shall be reserved for school purposes, other lands of like quantity are appropriated in lieu of such as may be patented by pre-emptors. Under these sections the right of pre-emption of school lands is personal to settlers found upon school lands at the time of the survey of the lands in the field. In this case the settlers failed to assert any claim themselves to preemption, but sold their possessions and improvements after survey to appellant. The right being personal, appellant did not succeed thereto, nor was the land ever divested of its character of school land. In addition, section 2263, supra, forbids any assignment of the pre-emption right, and appellant could not lawfully succeed to any rights of the prior settlers to the land.</p>

<p>APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Cochise. Richard E. Sloan, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Witnesses—Credibility—False Testimony as to Material Fact. —An instruction that if the jury find, that any witness has sworn falsely on any material fact, they have the right to disregard his whole testimony, unless corroborated, is erroneous. This rule only applies in case the witness has knowingly and willfully sworn falsely.</p>

<p>1. Appeal and Error—Appeal How Perfected—Filing Bond before Btjling upon Motion for New Trial, but after Judgment, Does not Affect Bight of Appeal.—An appeal is perfected under our code upon the concurrence of two acts,—viz., giving notice of appeal and filing an appeal-bond. Where an appeal-bond is filed after entry of judgment, but before the action of the court upon a motion for a new trial, and notice of appeal is given after the motion had been overruled, the appeal was properly perfected.</p> <p>2. Same—Jury—Want of Unanimity—Bill of Exceptions—Ground for New Trial—Waiver of Error—Transcript on Appeal—Contradiction in Becord.—Where error is assigned upon the ground that the verdict of the jury is void because concurred in by ten jurors only, and the record, being a tianscript of the clerk’s minutes, shows in one place that the verdict was. signed by the foreman only and concurred in by the other jurors, and in another th^t the verdict was signed not. only by the foreman but by nine others of the jury, this court cannot say that one part of the record imports verity more than the other, and appellant having failed to object to its receipt and to preserve its want of unanimity in the bill of exceptions, and to make the receipt of the imperfect verdict a ground for a motion for new trial,' will be held to have waived the objection.</p>

<p>ORIGINAL APPLICATION in supreme court.</p>

<p>1. Master and Servant—Hazardous Employment—Servant Known to Be Inexperienced—Master’s Duty to Instruct—Negligence. —When the employment is hazardous and dangerous, requiring some skill and experience to properly guard against accident and eonse- • quent injuries, it is the duty of the master, if the servant he known to he, through youth, inexperience, or want of capacity, ignorant of the dangers, and the proper maimer of doing his work so as to avoid them, to see to it that this servant he informed of the risks he assumes, and properly instructed., so that he may he able to do his work in sueh a way that he nay he as safe against accident as proper care on his part may insure. If the master fail in this duty, it is, in law, negligence.</p> <p>2. Same—Same—Inexperienced Serví kt—Assumed Bisk—Presumption.—An employee who is shown to he inexperienced in the use of machinery of the kind he is sét to work with will not be presumed, in absence of proof to the contrary, to comprehend and to contract to assume such dangers as are incident thereto as may not, to a person of his age and general capacity, be apparent and obvious.</p> <p>3. Appeal and Error—Evidence—Error in Introduction and Exclusion op—Must Be Embodied in Motion por New Trial.—When assignments of error, based upon the rulings of the. trial court relative to the introduction and exclusion of evidence, were not mentioned in the motion for new trial, they cannot be considered on appeal.</p> <p>Reversed on rehearing. Post,</p>

<p>APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Cochise. Richard E. Sloan, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Mexican Grants—Ejectment—Unconfirmed Grant Will not Support—Astiazaran v. Santa Bita etc. Mining Co., 148 U. S. 80, -13 Sup. Ct. Eep. 457, Followed.—Title resting upon a Mexican grant, favorably reported upon by tbe surveyor-general, but not as yet acted upon by Congress, will not support an action of ejectment. Astiazaran r. Santa Fita etc. Mining Co., supra, followed.</p>

<p>1. Criminal Law—Instructions—Duty or Court to Instruct.—On the trial of a murder ease, evidence having been admitted of conversations between other persons, in the absence of the defendant, on the theory of conspiracy, without which evidence there was nothing to support a verdict of guilty, and defendant’s request for an instruction defining “conspiracy” having been refused as faulty, the court should have instructed the jury as to what constitutes “conspiracy.”</p>

WRIT OF ERROR from a judgment of the District Court of the First Judicial District in. and for the County of Pima. Richard E. Sloan, Judge. The facts are stated in the opinion.

<p>APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Cochise. Richard E. Sloan, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Fellow-Servants—Section-Man—Conductor—Hobson ■ v. Railroad Co., 2 Ariz. 171, Cited.—A section foreman is not a fellow-servant of the conductor of a railway train upon which he is being carried from the point where he has been at work. Hobson v. Railroad Co., supra, cited.</p> <p>2. Verdict—Damages—Excessive—Remittitur—Condition to Denting New Trial.—Verdict held excessive, and district court ordered to modify judgment, provided plaintiff shall elect to remit ten thousand dollars from his former judgment; otherwise, a new trial ordered.</p>

<p>1. Remittitur—Authority to Remit—Plaintiff in Actions for Injuries Resulting in Death—Rev. Stats. 1887, Par. 2150, Cited and Construed.—Under paragraph 2150, supra, providing that an action for injuries resulting in death “may be brought by all the parties entitled thereto, or by any one or more of them for the benefit of all,” a -widow has authority to bring suit for herself, children, and parents of the deceased. The authority to bring includes also full authority to prosecute, control, and direct the suit to its final determination. If to prevent a new trial being granted, she may remit such portion of the damages awarded by the jury as may be necessary to that end.</p> <p>2. Same—Motion to Set Aside Verdict—Allowing Remittitur as Condition to Overruling Motion—Discretionary.—A trial court has the power, where excessive damages have been allowed by the jury, and where the motion to set aside the verdict is based upon this ground, to make a remission a condition precedent to overruling the motion. The exercise of the power rests in the sound discretion of the court.</p> <p>3. Same—Verdict—Passion—Must be Set Aside—Must Consider Whole Case.—Where the verdict is the result of passion or prejudice, a remittitur should not be allowed, but the verdict should be set aside. In passing upon this question the court should look npt alone to the amount of the damages awarded, but to the whole case.</p> <p>4. Negligence—Evidence—Death by Wrongful Act—Negligence and Contributory Negligence under Case Made Questions for Jury —Rev. Stats. Ariz. 1887, Par. 322, Cited.—Where the testimony of plaintiff in an action for wrongful death tended strongly to show that at the time of the accident the train which killed the deceased was running at a high speed, without warning of its approach, as required by paragraph 322, supra, through a village and across a crossing used by deceased and other residents; that upon the north side of the track were obstructions which concealed the train, while upon the south side the view was open; that deceased a few minutes before the train came went over to the north side, and was supposed to have been struck when returning to the south side, which supposition was supported by the fact that the only witness to the train’s approach saw no one step on the south side, and injuries of deceased were upon his left side, and that the right flagstaff on the pilot was broken off and found near deceased’s body, the case is sufficient to justify the court in leaving the questions of the negligence of defendant, as well as contributory negligence on the part of deceased, to the jury.</p> <p>5. Same—Contributory—Due Care Presumed—Burden of Proof— Lopez v. Central Arizona Mining Co., 1 Ariz. 464, 2 Pac. 748, Bollowed.—The rule in this territory, as declared by the supreme court in the ease of Lopez v. Central Arizona Mining Co., supra, is, that in actions for personal injuries, where contributory negligence is relied upon as a defense, due care and caution on the part of plaintiff, in absence of proof to the contrary, will be presumed, and the burden of proving such contributory negligence rests upon the defendant. In actions for damages in injuries causing death the same rule prevails.</p>

<p>ORIGINAL APPLICATION for Writ of Mandamus.</p>

<p>WRIT OF ERROR from District Court of the First Judicial District in and for the County of Pima. Richard E. Sloan, Judge.</p>

<p>APPEAL from a judgment of the Disriet Court of the First Judicial District in and for the County of Pima. Richard E. Sloan, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Criminal Law—Burglary—Evidenge—Sufficiency.—Evidence on a trial of appellants, three Booth brothers, jointly indicted for burglary, that flour stored in a house was taken without the owner’s knowledge or consent; that a cart with flour scattered over it had been tracked from where the flour aad been stolen to the gate of the father of appellants; that flour was seen stacked up in the house of the father; that Zack Booth was seen there shortly after; that ou the night of the burglary the appellants were in town, and two of the brothers spent the night at their homes, but Zack was away some three hours, and afterwards “joshed” about having taken the flour, and told one witness but one man knew anything about it, and threatened witness that he would do him up if he said anything about what had been talked of, is sufficient to justify the jury in convicting Zack Booth.</p> <p>2. Same—Same—Joint Indictment—Evidence—Sufficiency as to One and Want of Evidence as to Others.—Where the evidence is sufficient to support a verdict of conviction as against one of three brothers jointly indicted for the crime of burglary, but there is no evidence connecting either of the others with the commission of the offense, the judgment of the trial court will be affirmed as to the one, and reversed and the ease remanded for a new trial as to the others.</p>

. APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Cochise. Richard E. Sloan, Judge. The facts are stated in the opinion.

<p>1. Criminal Law—Aggravated Assault—Instructions—Premeditated Design—Rev. Stats. Ariz. 1887, Penal Code, Par. 390, Subd. 6, Cited.—An instruction that if the defendant made an assault upon the complaining witness with a deadly weapon, the jury might find him guilty of an aggravated assault is error, it failing to include the element of “premeditated design” necessary to constitute the offense under statute, supra.</p> <p>2. Same — Same — Same — Reading Statutory Definition — United States v. Romero, Post, p. 193, Followed.—The reading of the statute defining the offense does not cure an erroneous instruction as to the elements of the crime. United States v. Romero, supra, followed.</p> <p>3. Same—Instructions—Reading Statute—Relevancy to Evidence— Misleading.—The reading of the whole section of the statute defining seven different circumstances under which a crime may be committed, many of which have no reference whatever to the evidence in the ease, is error, as instructions should have some reference to the case made by the evidence; otherwise, they are calculated to confuse and mislead.</p>

<p>APPEAL from a judgment of the District Court of the Second Judicial District in and for the County of Pinal. Owen T. Rouse, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. New Trial—Motion for Overruled by Operation of Law at Expiration of Term When Filed—Hand v. Buff, 3 Ariz. 175, 24 Pag. 257, Followed.—A motion for a new trial is overruled, by operation of law, at the expiration of the term at which it is made. Sand v. Muff, supra, followed.</p> <p>2. Appeal and Error—Final Judgment—Orders Beviewable—Time for Taking Appeal—Bev. Stats. Ariz. 1887, Pars. 593, 846, Cited and Construed.—An appeal from a final judgment carries with it jurisdiction to review all orders affecting the judgment, including an order refusing a new trial, and until final judgment is entered the aggrieved party is not required to take his appeal. Statutes, supra, cited and construed. ,</p> <p>Hawkins, J., and Bouse, J., concurring specially.</p> <p>3. Same—Becord—Bill of Exceptions—Necessity for to Secure Beyiew of Buling on Motion for New Trial.—Where no bill of exceptions is preserved to the action of the trial court in overruling the motion for a new trial, such ruling cannot he reviewed.</p> <p>4. Same—Affidavit in Lieu of Bonp—Bev. Stats. Ariz. 1887, Par. 860, Cited—Jurisdiction.—An affidavit in lieu of an appeal-bond, under statute, supra, made before the probate judge, sufficient in form, and containing the necessary averments of fact which, if true, show appellant’s inability to pay the costs, if not contested, is all that is necessary, in addition to the notiee of appeal, to give this court jurisdiction.</p> <p>5. Same—Becord—Becitals in Judgment—Necessity for Bill of Exceptions—Exceptions Saved by Bev. Stats. Ariz. 1887, Par. 827.-*— Although there is no bill of exceptions, a recital in the judgment that the verdict followed by the judgment was found by the concurrence of nine jurors only puts thf.i fact in the reeord, and under statute, supra, no bill of exceptions was necessary to reserve an exception thereto.</p> <p>6. Constitutional Law — Jury — Three-Eourths Verdict — Common-Law Cases, Laws Ariz. 1891, p. 71, Invalid as to—Conflicts with Bev. Stats. TJ. S., Sec. 1868, and Constitution, 7th Amendment. —The statute, supra, providing for a three-fourths verdict iu all civil cases and in all misdemeanor cases, in so far as it applies to cases cognizable at common law, is invalid, because iu conflict with section 1868 of the Bevised Statutes of the United States, which provides that “No party shall be deprived of the right of trial by jury in pases cognizable at common law,” and also in conflict with the seventh amendment to the constitution, providing that “In suits at common law, where the value in controversy shall exceed twenty dollars, the right to trial by jury shall be preserved.”</p> <p>7. Jury—Trial by Defined.—By the term “trial by jury” is meant trial by jury in the general manner as practiced at common law. At common law a lawful jury was composed of twelve jurors, and the unanimity of these twelve members in finding a verdict was an essential attribute.</p> <p>8. Claim aNr Delivery—Common-Daw Action.—The action termed “claim and delivery” is the same in all essential attributes as the ancient common-law remedy of replevin, and is a modification of that action, and not in derogation thereof.</p>

<p>1. Appeal and Error—Amount in Controversy—Appeal prom Justice Court—Rev. Stats. Ariz. 1887, Par. 1452, Construed—Appea*. prom District Court—Rev. Stats. Ariz. 1887, Pars. 592, 593, Con strued.—No appeal will lie from a justice court, unless the amount in controversy exceeds twenty dollars, exclusive of costs. Par. 1452, supra, construed. And no appeal from a case commenced in. justice court will lie from a judgment of the district court unless the judgment exceeds one hundred dollars. Par. 592, supra, construed. The appellate jurisdiction of the supreme court is limited to cases originating in the district court where the amount exceeds two hundred dollars. Par. 593, supra, construed.</p> <p>2. Same—Jurisdiction—Supreme Court—Rev. Stats. Ariz. 1887, Par. 846, Construed—History Co. v. Dougherty, 3 Ariz. 387, 29 Pac. 649, Disapproved.—Paragraph 846, supra, providing that an appeal or writ of error may be taken to the supreme court from any final judgment of the district court rendered in civil cases, must be construed to give the right of appeal in eases within the jurisdiction of the supreme court, and not otherwise. History Co. v. Dougherty, supra, disapproved.</p>

<p>1. Judgment—Default—Suit to Set Aside—Service on Agent—Collusion.—In a suit in equity to have a former default judgment declared void, and for other equitable relief, it is error for the trial court to refuse to allow plaintiff to defend the original suit at law where it appears that appellant herein (defendant in the original suit) was a foreign corporation; -chat it had filed its appointment of its lawful agent of record in t;lie county in which it did business; that such agent was its general manager when appointed, but was discharged six months prior to the filing of the first suit, though his appointment was not jevoked of record until after that suit was filed; that he thereupon rtmoved to another county and a new general manager was employed; that appellee was the son-in-law of the former manager, and, having full knowledge of the facts, commenced suit, served summons on his father-in-law, and took judgment by default the day after time to answer bad expired, and before appellant had actual knowledge it was sued; that appellant filed its motion to s&s aside the default judgment as soon as it knew the- same was entered, but the term of court adjourned before this motion was disposed of, and the appellant was deprived of the right to settle a bill of exceptions and appeal from the action of. the court; that at another term it endeavored to get the judgment set aside, but failed.</p>

<p>1. Appeal and Error—Assignments or Error—Necessity for—Fundamental Error—Gila R. I. Co. v. Wolfley, 3 Ariz. 176, 24 Rag. 257, Cited.—In the absence of any assignment of error, this court will not look further than to determine if there be any error apparent upon the face of the record, and which goes to the foundation of the action. Gila S. I. Co. v. Wolfley, supra, cited.</p> <p>2. Same—Same—Same—Denial of Motion for Change of Venue— Not Fundamental Error.—Error in denying a motion for change of venue is not such fundamental error as requires a review in absence of an assignment of error.</p> <p>3. Same—Same—Same—Mortgages—Foreclosure—Judgment—Principal—Default in Interest—When Eeviewable.—In a suit to foreclose a mortgage for failure to pay interest, judgment and order for sale of the premises for the principal, if the principal be not due, is fundamental error, and will be reviewed in the absence of an assignment of error, if apparent on the record.</p> <p>4. Mortgages — Foreclosure — Default in Payment of Interest — Principal not Due—Construction—Hooper v. Stump, 2 Akiz. 262, 14 Pac. 799, Followed.—On foreclosure for non-payment of interest of a mortgage providing “in case default be made in payment of the said principal or interest,” then the mortgagee is empowered to sell the premises, “and out of the money arising from such sale to retain the said principal and interest,” it is proper to enter judgment for the principal, and order a sale of the premises therefor. Hooper v. Stump, supra, followed.</p>

<p>APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Pima. Richard E. Sloan, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the District Court of the Second Judicial District in and for the County of Pinal. Owen T. Rouse, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Criminal Law—Appeal and Eerop.—New Teial—Conflict in Evidence.—Where the evidence is ample to sustain the verdict, though conflicting, a new trial will not he granted.</p> <p>2. Same—Same—Record—Bill of Exceptions—Admission and Rejection of Evidence.—Errors in the admission or rejection of evidence should he embodied in a hill of exceptions.</p>

<p>APPEAL from a judgment of the District Court of the Second Judicial District in and for the County of Gila. Owen T. Rouse, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Taxes and Taxation — Assessment — Delinquent List — Irregularities—Bev. Stats. Ariz. 1887, Par. 2688, Cited—Atlantic and Pacific A E. Co. v. Yavapai Co., 3 Ariz. 117, 21 Pac. 768, Followed.—Objections to the manner ox assessing taxes, preparing and returning the delinquent list, and similar questions ar.e mere irregularities, and are covered by statute, supra. Atlantia and Pacific B. B. Co. v. Yavapai Co., supra, followed.</p> <p>2. Same—Lew — Unconfirmed Mexican Land Grants — Validity—■ Who May Question—Tender of Taxes Due.—The objectors will not be heard to complain of the taxation of property consisting of “unconfirmed Mexican land grants,” having neither paid nor tendered the taxes admittedly due for the same year on other property owned by them.</p> <p>3. Same—Unconfirmed Mexican Land Grants — Levy — Possessory Bight—Bev. Stats. Ariz. 1887, Par. 2631, Cited.—The possessory right or claim of one in an unconfiimed Mexican land grant may be taxed, though the land belong to tho public domain. Statute, supra, cited.</p> <p>4. Same—Same—Same—Assessment — Interpretation — Possessory Claim or Fee.—If “grants” are a portion of the public domain until segregated and confirmed, an assessment of taxes to individuals, as follows: “Land and improvements. San Ignacio La Canoa, private land claim," may be construed as an assessment upon the equitable claim or “possessory claim” thereto, and not as an assessment upon the fee or land itself.</p>

<p>I. Appeal and Error—Bond—Justification of Sureties—Rev. Stats. Ariz. 1887, Par. 868, Construed, and Held Mandatory.—The statute, swpra, provides that a bond on appeal “shall be of no effect unless accompanied by the affidavit of each of the sureties that he .is worth the amount for which ho has signed, over and above his just debts and liabilities, exclusive of property exempt from execution.” This statute is mandatory, and unless the statutes in relation to appeal-bonds and their justification are strictly complied with, this court can acquire no jurisdiction on appeal.</p>

<p>1. Action to Quiet Title—Nature—Possession Immaterial—Laws Ariz. 1891, p. 66, Cited.—The action to quiet title is the ordinary means of trying a disputed title between two opposite claimants. In it the question of possession is immaterial, for it may be maintained by one either in or out of possession, and against one who claims an interest adverse, whether the adverse claimant be in or out of possession. Statute, supra, cited.</p> <p>2. 3 [orcible Entry and Detainer—Nature—Issue—Possession—Rev. Stats. Ariz. 1887, Par. 2016, Cited.—In forcible entry and detainer, the right to present and immediate actual possession is the only question for adjudication. Statute, supra, cited.</p> <p>3. Bes Judicata—Limited to Matters Properly Litigated in Suit.—• No judgment can be res judicata as to matters which the defendant had no legal right to have litigated or directly passed upon in that suit.</p> <p>4. Same—Plea in Bar—Judgment in Forcible Entry and Detainer not Good in Bar op Action to Quiet Title.—A judgment in an action of forcible entry and detainer is no bar to an action to quiet title to the same property.</p> <p>5. Same—Same—Judgment in Suit to Declare such Judgment in Forcible Entry and Detainer Void no Bar to Action to Quiet Title.—A judgment in a suit to declare a judgment of forcible entry and detainer respecting certain property void, and to restrain the issuing of a writ of restitution thereunder is not a good plea in bar to an action to quiet title to the same property, as in the injunction proceedings the title was in no way involved, except incidentally.</p>

<p>1. Criminal Law—Murder—Instruction—Definition—Malice Aforethought.—An instruction in a trial for murder under the United States laws, that if the deceased Indian was found dead in the judicial district on or about the twenty-eighth day of December, 1891, and the jury believe from the evidence beyond a reasonable doubt, that the defendant, after the death of the Indian, told witnesses that he had killed her, such statement would warrant them in finding the defendant guilty as charged in the indictment, is error, it omitting the principal ingredient of all murder,—malice aforethought.</p> <p>2. Same—Same—Same — Beading Statutory Definition.— Conceding that the territorial statute is substantially the same as the common-law definition of murder, the mere reading of the statute does not cure the defect in the above instruction.</p> <p>3. Same—Same—Same—Seasonable Doubt—Misleading.—An instruction that, “if you should find that you have not an abiding conviction, to a moral certainty, of the truth of the charge against the defendant, you have such a reasonable doubt that will warrant you in returning a verdict of not guilty; otherwise, you have not a reasonable doubt that will warrant an acquittal,” is error, being confusing and misleading. Citing Territory of Arizona v. Barth, 2 Ariz. 319, 15 Pac. 673.</p>

<p>I. Judgment Lien—Void Judgment—Power to Perpetuate Lien.—A court has no power to perpetuate a judgment lien and at the same time declare the judgment upon which such lien depends for its validity null and void.</p>

<p>1. Criminal Law — Appeal — Notice op Appeal — Kev. Stats. 1887, Penal Code, Par. 1866, Construed.—Under statute, supra, written notice of appeal in a criminal proceeding must be filed with the clerk of the trial court to confer jurisdiction upon this court. A verbal notice of appeal given in open court and entered upon the minutes is insufficient.</p> <p>2. Same—Same—Rev. Stats. Ariz. 1887, Penai Code, Par. -1866— “Stating” Misprint por “Stating."—In the statute, supra, reading: “An appeal to the supreme court of the territory is taken by filing with the clerk of the court, in which the judgment or order appealed from is entered or filed, a notice staying the appeal from the same,” the word “staying” as printed is evidently a misprint of the word “stating.”</p>

<p>1. Mines and Mining—Contract to Purchase—Mechanics’ Lien— Purchaser Agent eor Vendor — Bev. Stats. Ariz. 1887, Pars. 2278, 2280, Construed—Failure to Becord Contract—Facts Creating Exception to Bule that Purchaser Cannot Create Lien.— Mott went into possession of mill and mining claims of appellant under a written contract, which, though in the form of a lease, was intended to enable the appellant to sell, and the said Mott to buy, the premises, by extracting and reducing the ore, and crediting the proceeds upon the purchase price. By its terms Mott was to mine and reduce the ore, and appellant was to receive the entire net proceeds, the cost of extracting and milling being deducted, for a period of six months; all payments to be forfeited and the property and improvements to revert to appellant if Mott failed to complete the purchase. Mott operated the mill for several months, and finally delivered back the mill with all improvements to appellant. Under paragraph 2278, supra, persons furnishing material for use upon mills, at the request of the owner or his agent, are given a lien thereon for the amount due. Paragraph 2280, supra, defines “agent” as including persons who have the charge or control of any mill, etc., upon which labor has been performed or material furnished. The improvements made upon the property were directly contemplated by the contract; the appellant was the beneficiary, whether Mott became the purchaser or not; Mott had “charge and control” of the mill and mines; the instrument never was recorded, and the appellees had no notice of its terms. Under such circumstances the principle that when one of two innocent parties must suffer a los3 by reason of the fault of a thin], the loss should be borne by him who gave the third person powe? to commit the fault is applicable. The facts of the case take it out of the general rule that one having a mere contract to purchase, or a lessee, cannot encumber the property with liens, and Mott was properly held to be the agent of appellant in procuring the supplies, and the property was liable for the value thereof in the way of lien.</p> <p>2. Same—Same—Same—Terms of Contract Binding between Parties Cannot Affect Lien.—A clause in such contract providing that the work should be done at the cost of Mott, while binding as between the parties, will not be sufi'ered to defeat the lien.</p>

<p>APPEAL from a judgment of the District Court of the Fourth Judicial District in and for the County of Yavapai. John J. Hawkins, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>ORIGINAL APPLICATION for a Writ of Habeas Corpus.</p> <p>Tbe facts are stated in the opinion.</p>

<p>1. Criminal Law—Indictment—Assault with Intent to Commit Murder—Assault with a Deadly Weapon—Sufficiency of Indictment for Former Crime to Constitute Good Indictment for Latter.—Where appellant was tried under an indictment for assault with intent to commit murder, and the crime of assault with a ' 'deadly weapon was charged therein under the general designation of a “felony,” and the kind of instrument or weapon with which the assault was made was therein fully described, and the mode in which it was used, so that, as a matter of law, said weapon, as described and used, was a deadly weapon, such indictment charges the appellant with the crime of sissault with a deadly weapon as fully as if the pleader has added thereto the particular name of the offense, by setting it out in the indictment in the exact language of the statute.</p> <p>2. Same—Same—Assault with Intent to Commit Murder—Assault with Deadly Weapon—Latter not Part of Former Offense— When Latter Offense Fully Charged in Indictment eor Former Conviction for Latter Will Be Sustained.—Though the crime of assault with a deadly weapon is not a part of the crime of assault to commit murder, if in the indictment charging the last-mentioned offense the former is fully charged, a conviction for the former offense thereunder would be valid.</p> <p>3. Jury — Instruction — Ambiguity — In Special Instruction—Correctness Tested by All Instructions.—The instructions in a ease must all be considered together; and if, when considered together, they present the law of the case, the verdict will not be disturbed, even though the phraseology of an individual instruction may be confusing. ¡</p> <p>i. Same—Same—Necessity for Bequest.—In the absence of a request for an instruction defining a deadly weapon, the court is not compelled to give such instruction.</p>

<p>APPEAL from a judgment of the District Court of the Third Judicial District in and for the County of Maricopa. A. C. Baker, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Contract—Pleading—Failure to Perform Conditions—Must Be Raised by Answer—Admission by Failure to Plead.—In an action upon a contract, the complaint alleging performance of all its conditions, and the answer being a special denial, to avail himself of a breach of a certain condition, the defendant should have denied in his answer that the same had been fulfilled, or specially ■ pleaded the same as matter of defense; otherwise, the allegation of the complaint, not being controverted, will be taken as admitted.</p> <p>2. Same—Conditions — Performance — Waiver — Fact for Jury.— Whether a contract has been performed or its performance waived, is usually a question of fact for the jury.</p> <p>3. Appeal and Error—Record—Bill of Exceptions—Must Contain All Evidence or Proof Presumed.—Where the bill of exceptions does not purport to give all the evidence, proof sufficient to support the judgment will be presumed to have been supplied.</p> <p>4. Same—Question First Raised on Appeal.—A question not specially pleaded in the court below, nor raised in either the motion for a new trial or in arrest of judgment, cannot now be raised for the first time in this court.</p>

<p>1. Public Lands—Ejectment—Eight to Maintain—Beceiver’s Duplicate Beceipt op Entry—Bev. Stats. Ariz. 1887, Par. 3138, Construed.—A receiver’s duplicate receipt of a homestead filing upon land, made after contest and cancellation of the entry of a prior occupant, is not sufficient evidence of title and right to possession in the holder thereof to maintain an action of ejectment against such prior occupant. Statute, supra, construed.</p> <p>Bouse, J., dissents.</p>

<p>APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Pima. Richard E. Sloan, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Appeal and Error—Bill op Exceptions—Failure to File in Due Time—Laws Ariz. 1893, Act 9, Cited.—An objection that a bill of exceptions was not presented during the term, under act 9 of the Laws of 1893, the cause having been tried more than ten days before the end of the term, is well taken, and this court cannot consider the bill of exceptions on appeal, though settled and signed by the trial judge.</p> <p>2. Same — Jurisdiction — Motion to Dismiss — Fundamental Error Considered in Absence op Bill of Exceptions—Where a proper notice of appeal and bond have been given, a motion to dismiss cannot be sustained. In the absence of a bill of exceptions, the only error which can be considered is such as may go to the foundation of the action.</p> <p>3. Stock and Stockholders—Sale of Stock by Corporation—Failure to Transfer on Corporate Books—Damages'—Measure op.—The buyer of capital stock from a corporation, having paid the contract price for the stock, in an action for damages for failure to deliver or transfer the stock on its corporate books, is entitled to recover the value of the stock at the time of the refusal of defendant to deliver the same, or its value at the time of its conversion, with legal interest from that time.</p> <p>4. Pleading—Damages—Gross Amount—Evidence—Admissibility.— In actions sounding wholly in damages, where there is but a single cause of action, it is unnecessary to state in the complaint specifically the different elements of damage. It is enough to claim so much gross damages. Under the general allegation, the plaintiff may prove and recover those damages which necessarily result from the act complained of.</p> <p>5. Same—Complaint—Showing Sale op Stock by Corporation for Assessment—Presumptions.—Allegations in a complaint against a corporation for damages for failure to deliver shares of stock sold by it to plaintiff, showing that the stock was sold by it for an assessment, does not render the complaint bad on demurrer, as it cannot be presumed that the capital stock was all paid up or that the corporation was not authorized to sell the stock.</p> <p>Bouse, J., dissenting.</p>

<p>PETITION for a Writ of Prohibition.</p> <p>The facts are stated in the opinion.</p>

<p>1. School Lands—Action for Possession—Evidence.—In an action to recover the possession of school lands, it is necessary for the plaintiff to show an actual possession and ouster.</p>

<p>1. Eminent Domain—Bight of Defendant to Compensation Paid in under Bev. Stats. Ariz. 1887, Par. 1778, Pending Appeal.—The statute, supra, provides in substance that a plaintiff who succeeds in condemning property may, pending an appeal, obtain possession of the same upon paying into court for the defendant the amount of compensation, as determined by the jury, which the defendant is entitled to have paid over to him upon filing the proper receipt and an abandonment of defenses 1o the action other than as to the amount of compensation. When the latter have been done, and the plaintiff has been let into possession, it is made mandatory upon the court to order the payment of the money, and the court below exceeded its authority in directing the money paid in by plaintiff be retained by the clerk pesding the appeal, and in denying the order prayed by defendant, he having complied with the statute.</p>

<p>APPEAL from a judgment of the District Court of the Fourth Judicial District in and for the County of Yavapai. John J. Hawkins, Judge:</p>

<p>APPEAL from a- judgment of the District Court of the Fourth Judicial District in and for the County of Yavapai. Owen T. Ronse, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment oE the District Court of the Third Judicial District in and for the County of Maricopa. A. C. Baker, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Attorney and Client—Stipulation as to Evidence—Authority.— It is competent for an attorney of the administrator of the estate of a deceased policy-holder to stipulate as to the truth of facts showing that certain answers made by deceased to questions propounded in the application for such policy and warranted to be true were in fact false.</p> <p>2. Life Insurance—Physician Defined.—To be one’s physician means to attend upon him or to consult with him in a professional capacity about one’s state of health.</p> <p>3. Same—Policy—Answer — Warranties — Falsity Avoids Policy.— Statements made by deceased in answer to questions contained in his application for a policy of life insurance wherein he represented that he had not consulted any physician for sickness since childhood, and did not remember the name or address of any physician attending him, by him “warranted to be true,” and “offered to the company as a consideration of the contract,” under the stipulation of the parties and the evidence in the ease, shown to be false, constitute a breach of deceased’s warranty and avoid the policy.</p> <p>4. Same—Same—Defense—Breach of Warranty of Truth of Answers—Knowledge of Applicant of Falsity Immaterial.—It is a good defense to an action on a policy of life insurance to show '.hat answers made a part of tti policy and warranted by the applicant to be true were in fact untrue, without showing that the applicant knew or believed them to be untrue.</p> <p>5. Same—Same—Same—Proof of Knowledge of Falsity Necessary When Answers are Bepresentations—Moulor v. Insurance Co., Ill U. S. 335, é Sup. Ct. Bep. 436, Distinguished.—When the words used in a contract of insurance are plain and constitute a strict warranty, of the truth of the answers to questions therein contained, the rule in Moulor v. Insurance Co., supra, that there was doubt of the meaning of the contract, and that it was therefore proper to consider the statements of the applicant as “representations” and warranties only to the extent that they were made in good faith and were true as far as the insured knew, is inapplicable.</p> <p>Bouse, J., dissenting.</p> <p>6. Contracts—Construction—Bule of Confined to Cases of Doubt. —The term “rule of construction” is confined by general usage to rules for the interpretation of written documents in matter on which, in the absence of a rule to aid, there might be a doubt.</p>

<p>1. Evidence—Irrelevant and Immaterial—Prejudicial.—The admission of evidence irrelevant and immaterial to the issues, and sufficient to prejudice the jury against the appellants, requires a reversal of the judgment.</p> <p>2. Jury — Instructions — Submitting Question oe Law to Jury — Mines and Mining.—An instruction containing the expression that if the mining ground was “not in the actual possession of one entitled thereto” at the time appellants located the same, then they wgre entitled to recover, submits a question of law to the jury, and is error.</p>

<p>APPEAL from a judgment of the District Court of the Third Judicial District in and for the County of Maricopa. A. C. Baker, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Criminal Law—Conspiracy to Commit Misdemeanor—Rev. Stats. Ariz. 1887, Pen. Code, Pars. 266, 1654, Cited—Agreement—Overt Act.-—In a charge of conspiracy tie corrupt agreement is usually the gravamen of the offense, but in a trial for conspiracy to commit a misdemeanor, under the statutes (pars. 266, 1654, supra), it is necessary to prove the corrupt agreement and one or more of the criminal acts charged before it becomes a conspiracy.</p> <p>2. Same—Same—Evidence—Declarations of Co-Conspirator—Foundation.—Conspiracy should be first established pri/ma facie before the acts and declarations of a co-cunspirator can be admitted in evidence against another.</p> <p>3. Same—Same—Killing Cattle—Rev. Stats. Ariz. 1887, Pen. Code, Par. 973, as Amended, Laws 1889, p. 21—Evidence—Whether Defendant Butcher Material—Statute Creating Misdemeanor Strictly Construed.—In a prosecution for conspiracy to commit a misdemeanor by killing cattle for sale, defendants being persons not engaged as butchers, and not retaining in their possession the hides for twenty-one days as required by statute, supra, the fact as to whether defendants were butchers is material, and must be proved. The overt act charged is a statutory -misdemeanor, and such statutes are strictly construed.</p> <p>4. Same—Same—Evidence—Proof of Overt Act by Two Persons Insufficient.—Mere proof of the commission of a misdemeanor by two or more persons is insufficient to sustain a conviction for conspiracy to commit such misdemeanor.</p>

<p>1. Justice of Peace—Change of Venue — Jurisdiction — Necessity fob Piling of Transcript—Bev. Stats. Ariz. 1887, Par. 1408, 1409, Construed.—Where a change of venue is granted in a justice’s court, and an order of transfer made, as is required by paragraph 1408, supra, the jurisdiction of the justice granting the order ceases, and the jurisdiction of the justice to whom the ease is sent attaches by operation of ltr,r; but the latter cannot proceed to exercise the jurisdiction until tí o officially certified transcript of the docket entries in the case provided for by paragraph 1409, supra, is filed. A judgment rendered by the latter before the receipt of the transcript is a nullity,</p> <p>2. Same—Mandamus—To Compel Transmission of Transcript Required by Rev. Stats. Ariz. 1887, í'ar. 1409.—Mandamus will lie to compel a justice to make out and transmit the transcript required by paragraph 1409, supra.</p> <p>3. Same—Special Appearance—Does not Waive Error in Proceeding without Transcript—Answer to Merits after Objection Overruled.—A defendant does not waive the illegality in a justice, to whom a case is transferred, proceeding to trial and judgment in the absence of a transcript of the proceedings in the former court, by appearing specially and objectú g thereto, nor by answering and defending after his objection was overruled.</p> <p>4. Injunction—Restraining Levy of Execution Based on Yoid Judgment.—Injunction will lie to restrain the levy of an execution upon a judgment rendered by a justice of the peace to whom a cause has been transferred prior t-< receipt by Mm of a transcript, required by paragraph 1409, sup it’, of proceedings in the court from which the case came.</p>

<p>APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Pima. R. E. Sloan, Judge.</p>

<p>APPEAL from the District Court of the Fourth Judicial District in and for the Coun;y of Yavapai. Edmund W» [Wells, Judge.</p>

<p>APPEAL from the District Court of the First Judicial District in and for the County of Pima. R. E. Sloan, Judge.</p>

<p>APPEAL from the District Court of the First Judicial District in and for the County of Coehise. R. E. Sloan, Judge.</p>

<p>APPEAL from a judgment of the District Court of the Third Judicial District iu arid for the County of Maricopa. K. E. Sloan,- Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. 'Action—Dismissal—Cross-Bill—Rev. Stats. Ariz. 1887, Tit. 62, Cited.—Where plaintiff has dismissed his complaint, filed under the provisions of the statute, supra, for possession of the office of the clerk of the board of supervisors, the trial court did not err in refusing to dismiss the action on plaintiff’s motion and in proceeding with the trial to judgment on defendant’s answer or cross-complaint, the cross-complaint containing facts which constituted a, cause of action against plaintiff for usurpation of said office, he having in the mean time, and after filing suit, taken possession of the office before the right thereto could be heard on his own complaint.</p> <p>2. County Officers—Clerk of Board of Supervisors—Election—Rev. Stats. Ariz. 1887, Par. 390, Cited—Holds Office at Pleasure of Board—Rev. Stats. Ariz. 1887, Par. 3049, Cited.—The clerk of the board of supervisors is elected by the board of supervisors. Par. 390, supra, cited. The office is held at the will of the board. They can remove one and appoint one at pleasure. Par. 3049, supra, cited. •</p> <p>3. Same—Board of Supervisors—Qualification of Members—Right to Office—Power of Board to Determine—Jurisdiction of District Court—Rev. Stats. Ariz. 1887, Tit. 62, Cited.—Members of a board of supervisors have no authority to pass upon the question of a co-member’s title to or qualifications for the office. Those questions can only be determined by the district court in proceedings instituted therein for that purpose. Statute, supra, cited.</p> <p>4. Same—Same—Vacancy—How Filled—Rev. Stats. Ariz. 1887, Par. 388, Cited.—A vacancy caused by the resignation of a member of the board of supervisors can only be filled by an election by the remaining supervisors and the proba.1 e judge. Statute, supra, cited.</p> <p>5. Courts'—Duty-—Peace—Should Pei ¡serve where Breach Threatened in Regard to Matters with; .-; Their Jurisdiction and Control.—The judiciary, having jurisdiction of a matter, should use the authority vested in it to pren?nt continuance of acts which tend to impair the credit of the county and constitute a breach of the peace.</p>

<p>1. Criminal Law — Unlawful Branding — Bev. Stats. Áriz. 1887, Penal Code, Bar. 969—Indictment—Insufficiency—Failure to Allege Intent to Convert.—An indictment for branding the calf of another, under the statute, supro, is demurrable, it failing to state one of the essential elements of the offense to punish which the said statute was enacted,—to wit, the intention of defendant to convert the animal branded to his own use.</p>

<p>1. Officers—Salary—De Facto Officer’s Eight to—In Absence of De Jure Officer—Behan v. Davis, 3 Ariz. 399, 31 Pac. 521, Followed.—An officer de facto is entitled to tlie salary of the office for the performance of the duties thereof, there being no de jura officer. Behan v. Davis, supra, fe J lowed.</p>

<p>APPEAL from a judgment of the District Court- of the Second Judicial District. Owen T. Rouse, Judge.</p> <p>The facts are stated in the op inion.</p>

<p>APPEAL from a judgment of the District Court of the Third Judicial District in and for the County of MaricopaR. E. Sloan, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Appeal and Error—County—Appeal-Bond.—Counties may appeal without filing appeal-bond.</p> <p>•"2. Same — Bill of Exceptions — Necessity for — Motion for New-Trial.—Where a motion for a new trial is not embodied in a bill of exceptions this court can only consider errors upon the face of the record.</p> <p>3. Same—Error Apparent on the Pace of Becord—Judgment Overruling Demurrer.—A judgment overruling a demurrer is a part of the record, and does not have to be excepted to or embodied in a bill of exceptions before it can be reviewed.</p> <p>4. Office and Officers — County Tax-Collector — Eees — Executing Tax Certificates — Acknowledgments — County Charge—Statutory Eees—Bevenue Act.—A tax-collector cannot maintain an action against the county for fees for executing tax-certificates to the territory, nor for money paid for acknowledgments to tax-deeds to the territory. He accepts his office with the law as written in the statutes, and can get such fees only by the mode set out 'in the Revenue Act.</p>

J. D. Bethune, Judge. Statement of facts by Rouse, J. Appellant filed a complaint October 20, 1894, for a mandamus to compel appellee, as clerk of tbe board of supervisors, to place appellant’s name on tbe ballots to be voted at tbe general election in 1894, as a candidate for tbe office of supervisor of Pima County.

J. D. Bethune, Judge. Statement of facts by Hawkins, J. Appellant was indicted, tried, and convicted of the crime of unlawfully cutting and removing from the public lands of the United States “five cords of mesquite cordwood” for a purpose other than for the use of the navy of the- United States, said public lands of the United States being non-mineral.

<p>1. Water and Water-Eights—Common Law—Inapplicability.—The common law has no application whatever to the use of water and can furnish no aid in the adjustment of water-rights in this territory.</p> <p>-2. Same—Same—Eiparian Eights—Eiipudiated by Eev. Stats. Ariz. 1887, Par. 3198.—The common-law doctrine of a riparian right is expressly repudiated by statute, sv'rra.</p> <p>.3. Same—Diversion—Eight to Have Water Delivered in Biver at Head op Ditoh.—Appellees, prior appropriators of water for irrigation and milling purposes, ¡ire not entitled to an injunction restraining appellants, subsequent ¡ ppropriators for power purposes, from diverting water appropriated by appellees further up the stream, except for mechanical purposes, and compelling appellants, after such use, to return it to the natural channel above the appellees’ point of diversion, where it appears that appellants are returning such water to appellees’ ditch above the point of any use by appellees.</p> <p>4. Same—Appropriation—Delivery at Certain Point—Damage.—A person entitled to the use of a certain quantity of water is not entitled to receive such water at one place instead of another, provided his rights are in no way affected.</p> <p>■5. Same—Same—Interference—Remedies—Damages—Injunction.— Improper use of water by appellants, or failure to deliver back the proper amount, affords an action at law for damages, and not ground for an injunction.</p>

<p>APPEAL from a judgment oí the District Court of the First Judicial District in and for the County of Pima. J. D. ¡Bethune, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Pima. R. E. Sloan, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the District Court of the Fourth Judicial District in and for the County of Coconino. E. W. Wells, Judge.</p> <p>The facts are stated in the opinion.</p>

for the County of Cochise. J. D. Bethune, Judge. Statement of facts by Rouse, J. On May 18, 1894, an indictment was returned, accusing Joseph Curby of the crime of tape, committed January 14, 1894, on Laura Curby. To the indictment defendant demurred. The demurrer was overruled, and defendant entered a plea of not guilty. The trial was had May 24, 1894.

J. D. Bethune, Judge. Statement of facts by Kouse, J. Plaintiff instituted proceedings against defendant in the district court.