Volume 4 — Idaho Reports

Where, in an action on a promissory note brought by an indorsee against the maker, the defendant introduces in evidence facts showing, or tending to show, or facts from which the jury might find, there was fraud in the inception of the note, the plaintiff, before he can recover, must show himself to be an innocent purchaser for value, in due course, and before maturity; and if he fail so to show, the jury must bring in a verdict for the defendant.

<p>APPEAL from District Court, Lemhi County.</p> <p>Heard on motion to set aside order dismissing appeal.</p> <p>No briefs were filed on the motion to set aside the order.</p>

<p>APPEAL from District Court, Elmore County.</p> <p>No brief found on file.</p> <p>The failure to indorse0 the order of commitment on the complaint or depositions in no manner deprives the order of its validity. {'People v. Wallace, 94 Cal. 497-499, 29 Pac. 950; People v. Wilson, 93 Cal. 379, 28 Pac. 1061.) A substantial compliance with the law is sufficient, the word “approved” being held a certification. {People v. Rodrigo, 69 Cal. 602, 11 Pac. 481.) And “subscribed and sworn to,” sufficient. {People v. Dowdigan, 67 Mich. 95, 38 N. W. 920.) Failure to attach official title will not invalidate. {City of Kingman v. Berry, 40 Kan. 628, 20 Pac. 527; Touchard v. Grow, 20 Cal. 150-159, 81 Am. Dec. 108.) The probate judge is a magistrate and has authority to commit. (Pen. Code sec. 7511.) Not having moved to quash on. the proper ground, and going to trial, all objections to the legality of the preliminary examination or right to a preliminary examination, were waived. (Washburn v. People, 10 Mich. 383; People v. Jones, 24 Mich. 215, 218; State v. Stewart, 7 W. Va. 731, 23 Am. Eep. 623; Hodgkins v. State, 36 Neb. 160, 54 N. W. 86; March v. Commonwealth (Pa.), 14 Atl. 375, 376; Davis v. State, 31 Neb. 252, 47 N. W. 854; Bailey v. State, 36 Neb. 808, 55 N. W. 241, 242; 1st Sess. Laws, sec. 4, p. 185; Mich. Stats, secs. 9550, 9551.) Motion in arrest of judgment must be founded on defects appearing on the face of the information. (People v. Johnson, 71 Cal. 392, 12 Pac. 261; People v. Gardner, 98 Cal. 128, 32 Pac. 880.) Irregularities in the finding or presentment of an information -must be reached by motion. (Pen. Code, see. 7730; 1st Sess. Laws, see. 4, p. 185.)</p>

<p>Practice — Prohibition.—Writ of prohibition does not lie to arrest the action of a district court upon a mere question of pleadings.</p> <p>(Syllabus by the court.)</p>

<p>Practice — Exceptions—Sections 4426-4430 Construed. — Exceptions taken during the trial to the rulings of tlie trial court may be settled and saved in accordance with the provisions of section 4426 of the Revised Statutes of Idaho, or they may be settled after the trial in accordance with section 4430, or in statement on motion for new trial, and when so settled and saved will be reviewed by supreme court on appeal.</p> <p>Contributory Negligence. — Where the plaintiff, in passing along a street which was blocked, by a railroad train, with an engine thereto attached, belonging to and then being operated by the defendant, passed under one of the cars of said train five times within an hour and a half, and was caught, and his leg crushed by the moving of the train in an attempt to pass under the sixth time, he is guilty of such contributory negligence as bars a recovery, and this even though the servants of the company failed to ring the bell or sound the whistle before starting.</p> <p>Persons Crossing Railroad Tracks must Use Care and Prudence. — Every person in the possession of his senses is bound to use ordinary care and prudence to protect his own person in crossing railroad tracks, and he is not relieved of such necessity, although the company is guilty of negligence, or a violation of the statute, in failing to ring the bell or sound the whistle before: starting.</p> <p>Evidence — Cars Blockading Streets. — Evidence of a railroad company blockading streets at any other time than that at which the accident is alleged to have occurred, or of custom of people-to crawl under cars so blockading streets at other times than that, at which the accident occurred, not proper, and should be excluded from the jury.</p> <p>(Syllabus by the court.)</p>

<p>Errors Court will not Notice. — On appeal this court can only notice error committed against the appellant, not those committed against the successful party.</p> <p>Decision of Trial Court on Pacts Takes the Place of Verdict of Jury. — In causes heard by the court below without a jui-y the decision of the court on questions of fact takes -the place of the verdict of the jury in jury trials, and will not be disturbed where there is a substantial conflict in the testimony, unless the decision is clearly against the weight of the testimony.</p> <p>Note Payable in Bank — Can be Sued after Banking Hours.— A note without grace, made payable in a bank, placed and remaining therein for collection until due, may be sued upon after banking hours on the evening of the day it falls due, where the opening and closing hours are well known to the maker.</p> <p>(Syllabus by the court.)</p>

<p>Power of County Commissioners — Cannot Create a County Office — Constitutional Prohibition. — The appointment of one to be and act as the legal adviser of the board of county commissioners for a period of two years, and a contract by the board with such appointee defining his duties and fixing his compensation, is the creation of a county office, and is prohibited by the constitution of this state.</p> <p>Same. — The boards of county commissioners have no authority to devolve upon an appointee of their own the duties and functions which the law has already affixed to another office.</p> <p>Orders of Commissioners Reviewable. — All orders of the boards of county commissioners are reviewable by the courts.</p> <p>Same — Commissioners must Show Necessity before Employing Counsel. — Before a board of county commissioners can employ counsel as provided in the constitution and the statutes, the necessity therefor must be apparent, and their action in making such appointment is reviewable by the courts.</p> <p>(Syllabus by the court.)</p>

The court should not have considered the motion made by defendant to dismiss, for the reason that such a motion is unknown in our practice and unwarranted by our statutes. This being a special proceeding, the rules of practice applicable to civil actions constitute the rules of practice in this case. (Bev. Stats., sees. 4955, 4956, 5005.) A motion to dismiss an action may be made after service in certain specified cases. (Bev. Stats., see. 4354.) This is not one of them.

<p>An original proceeding in this court upon petition for disbarment, petition granted and the attorney disbarred.</p>

WRIT of error to District Court for Logan County. It is admitted in this case that McFall was, during all the time for which this charge for keeping Stansbury is made against the county, under contract with Logan county to keep, maintain, etc., all of the indigent sick or otherwise dependent poor of Logan county; that he has been paid in full under said contract; that the said Stansbury was regularly, or otherwise, committed to his care as such keeper of the county hospital;…

It is a rule of pleading that a fact affirmed by one and denied by the other, the burden of proof shifts on the affirmant; otherwise he must fail.

This case involves the construction of a new and somewhat ambiguous law, viz., an amendment to section 8151 of the Revised Statutes of Idaho, found on page 20 of the Second Session Laws of Idaho. The judge does not possess the powers of the court, and can only “exercise, out of court, all the powers expressly conferred upon the judge, as contradistinguished from the court.” (Idaho Eev. Stats., sec. 3910; 13 Am. & Eng.

<p>APPEAL from District Court, Alturas County.</p> <p>The court erred in overruling the application of defendant for the appointment of an elisor, to have in charge the jury during the trial. The statute provides that an elisor may be appointed “when it appears by affidavit to the satisfaction of the court .... that both of these officers [sheriff and coroner] are disqualified or by reason of any bias, prejudice or other cause would not act promptly or impartially.” (Rev. Stats., sec. 1877.) It is a constitutional and statutory right of a defendant to have witnesses in his behalf, and he had the right to call experts to make examination, and to have the bullet placed in their hands for that purpose, so that they could testify understandingly. (Rogers’ Expert Testimony, sec. 80; citing Commonwealth v. Twitchell, 1 Brewst. (Pa.) 562; People v. Gonzales, 35 N. Y. 49, 61.) “The general rule is, that the opinions of witnesses are inadmissible.....The exception to the rule is, that, on questions' of science, skill or trade, or others of like kind, persons of skill, sometimes called experts, are permitted to give their opinions in evidence..... This is on the ground of necessity, when the facts in issue are not themselves accessible by evidence.” (City of Chicago v. McGiven, 78 111. 347, 349; Linn v. Sigsbee, 67 111. 75, 81, 82; Mayor etc. of New Yorlc v. Pentz, 24 Wend. 668, 673, 677; 1 Wharton on Evidence, see. 436; Muldowney v. Illinois Cent-. B. B., 36 Iowa, 472.) An expert accustomed to firearms could not be asked whether a certain piece of paper, found near the scene, had been used as wadding, and as such shot from a loaded gun. (Manhe v. People, 17 Hun (N. Y.), 410, 78 N. Y. 611.) “The opinion of an expert is not admissible to prove a matter of common experience and knowledge, upon which any person of ordinary intelligence is capable of arriving at a correct conclusion.” (Brown v. State, 55 Ark. 593, 18 S. W. 1051; 1 Greenleaf on Evidence, sec. 440; Milwaukee v-. Kellogg, 94 IT. S. 469; Hammond v. Woodman, 41 Me. 177, 66 Am. Dec. 228, and note.) The venue is a material allegation in the information and must be proven equally with the other material allegations. (People v. Fisher, 51 Cal. 319; People v. Bevans, 52 Cal. 470; People v. Aleck, 61 Cal. 137, 138; Strickland v. State (Tex.); 13 S. W; 865; State v. Mills, 33 W. Va. 455, 10 S. E. 808.)</p> <p>The discrimination of the blood of man from that of animals is too uncertain to be used as evidence. (Wharton & Stillé’s Medical Jurisprudence, see. 830; Dean’s Medical Jurisprudence, 220.) The analysis could not have been material under the facts of the case. {Brown v. State, 32 Tex. Cr. Rep. 119, 22 ■S. W. 601, 602.) The rule in regard to continuances is, that the affidavit must show that the testimony will be material. {Territory v. Barth (Ariz.), 15 Pae. 673; Covey v. Stote, 23 Tex. App. 388, 5 S. W. 283-285; McAdams v. State, 24 Tex. App. 86, 5 S. W. 826.) The prosecution held that it was an attempt to deceive the jury, a species of forgery, requiring the testimony of experts to expose the fraud. True, the bullets went to the jury for examination, but the court had a right to permit the jury to be enlightened by the opinion of a witness possessing superior knowledge of the facts as shown by their condition. {Pate v'. People, 8 111. 659, 660; Linn v. Sigsbee, 67 111. 75-81; 1 Greenleaf on Evidence, sec. 440, note 3;-7 Am. & Eng. Ency. of Law, 494, rule 8, Expert and Opinion Evidence; Mulldowney v. Illinois Cent. R. R., 36 Iowa, 473; Coyle v. Commonwealth, 104 Pa. St. 117-132; People v. Hall, 48 Mich. 482, 42 Am. Rep. 477, 12 N. W. 665.) It is not contended that the bill of exceptions in this case contains all the evidence, or that it was admitted that there was a failure to prove venue. {People v. Tonielli, 81 Cal. 275-279, 22 Pac. 678; People v. Marks, 72 Cal. 46, 13 Pac. 149.) May show it directly or indirectly. {Harlan v. State, 134 Ind. 339, 33 N. E. 1102; State v. Farley, 87 Iowa, 22, 58 N. W. 1089; Territory v. Ricles, 6 N Mex. 596, 30 Pae. 872; Abrigo v. State, 29 Tex. App. 143, 15 S. W. 408; People v. McGregar, 88 Cal. 140, 26 Pae. 97; People v. Ellsworth, 92 Cal. 594, 28 Pae. 604.) All the evidence not being before the court, it will be presumed that the other evidence supported the verdict. (State v. Brennan, 21 S. Dak. 384, 50 N. W. 625; Territory v. Neilson, 2 Idaho, 614, 23 Pa.c. 537; People v. Leona Sing, 77 Cal. 117, 118, 19 Pac. 254.)</p>

<p>Writ of Review — Person Beneficially Interested may Demand. — - A citizen and taxpayer beneficially interested in the orders and proceedings of a board created by law, or in the doings of a public officer, has the right to bring a proper suit to determine whether such board or officer has performed his duties as the law requires.</p> <p>State Wagon Road Commission — When Authorized to Let Contracts. — The state wagon road commission has no authority to. let the contract for the construction of a section of said road until the survey of the same has been completed according to law..</p> <p>Same — How Commission Gets Its Power. — The said board exists, only by authority of the statute, and has no power or authority except that given it by the statute. In the performance of its. duties it must be governed by the law prescribing and directing the method of its work.</p> <p>(Syllabus by the court.)</p>

<p>OPINION granting a rehearing.</p> <p>No briefs on file upon the point decided by the court.</p>

County. Except in special cases, as under the sole trader’s act, a married woman cannot by contract create a personal liability against herself in any form. The rights of married women, as io their separate property and their power over it in Idaho, depend mainly on the statutes in force in this state.

<p>On petition for a rehearing. 'Court grants a rehearing.</p> <p>The rehearing, as we understand the opinion of the court, is-confined to one single question — “whether suit on the $7,300-note was prematurely brought.” This may be regarded as a mixed question of law and fact, but as the testimony is not contradictory on this point, it is really a question of law. This note, made and dated Saturday, September 21st, and maturing one day after date, without grace, would mature, by its terms, on the twenty-second day of September, 1889, but as the 22d was Sunday and a legal holiday, payment could not be expected or legally demanded on that day, and the .note really matured on Monday, the twenty-third day of September, 1889. The evidence is not contradictory, but clear and unmistakable, that the actions on this note were commenced on Saturday, September 21, 1889, as of September 23d, and that the writs of attachment under which Burke claims his preference, the alias writ directed to the sheriff of Latah county, at least, were actually in the hands of the sheriffs for execution at 9 o’clock A. M. of September 23, 1889, at which time it is clear no-breach of the contract had occurred. (Veasie Bank v. Winn, 40 Me. 62; 3 Randolph on Commercial Paper, secs. 1037, 1062; Vandesande v. Chapman, 48 Me. 262; Greeley v. Thurston, 4 Me. 479, 16 Am. Dee. 285; Church v. Clark, 21 Pick. 310; Shed *> Brett, 1 Pick. 401,11 Am. Dec. 209, and note.)</p> <p>George Langdon testified that the alias writ of attachment was placed in his hands on the morning of September 23d; we must believe from the testimony that he is mistaken, and has mistaken this writ for the writs in the actions that were brought in Latah county, which were dismissed without any further proceedings being taken. These papers were left in the bands of the clerk of the court on the evening of the 21st of September, merely as custodian, with implicit instructions not to file or certify any of the papers until he received instructions from the plaintiff in the action, Burke, so to do. This is a very customary thing to be done and cannot be questioned for fraud. The attorney in the case was about to leave, town and simply handed the papers to the clerk with the request that when he was instructed so to do by the plaintiff, that he file them. (Beaver v. Lincoln, 21 Pick. 269.) Upon examination of this case the court will see that strangers to the original action attempt to attack the judgment collaterally upon the ground that the debt was not due at the time the proceedings to foreclose the mortgage were commenced. (Murray v. Weigh, 118 Pa. St. 159, 11 Atl. 781; Wilson v. Van Leer, 127 Pa. St. 371, 14 Am. St. Rep. 854, 17 Atl. 1097; Appeal of Bank, 83 Pa. St. 528; McLeod v. Applegate, 127 Ind. 349, 26 N. E. 830; Essig v. Lower, 120 Ind. 239, 21 N. E. 1090; McAlpine v. Bweet'zer, 76 Ind. 68.) Even if such suit had been prematurely brought, the suit brought by the plaintiffs was a collateral attack upon the judgment rendered thereon, and that such attack cannot be made upon such a judgment for mere irregularities, which would be all that the premature bringing of the suit can be said to be, we submit the following additional authorities: Craig v. Fruzier, 73 Ga. 246; Hardin v. Lee, 51 Mo. 241; Johnson v. Cage, 57 Mo. 160-165; Paine v. Mooreland, 15 Ohio, 435, 45 Am. Dec. 585; Lessees of Cochran v. Loring, 17 Ohio, 409; McDonald v. Sincox, 98 Pa. St. 619; Cooper v. Reynolds, 10 Wall. 308; Needham v. Wilson, 47 Fed. 97; Yoorhees v. BanTc of United States, 10 Pet. 449.</p> <p>The discussion of the question of “collateral attack” seems to us useless, not before the court, a needless imposition and waste of its time. This court in its original opinion, filed January 31, 1894, held under the authority of Jones v. St. Johns Irr. Co., 2 Idaho, 58, 3 Pac. 1, that “no appeal having been taken by the defendant, the' question determined against him cannot be reviewed by this court.”</p>

<p>Deputy Sheriff as Witness — Excused as Grand Juror. — The-record shows that the deputy sheriff had served process in the case on trial, and was also a witness in the case. Held, it was. within the discretion and proper for the court to excuse him from serving as a grand juror while such case was being considered by them.</p> <p>Preliminary Examination. — Under our statute a preliminary examination, as a basis upon which to find an indictment, is not necessary.</p> <p>Indictment — Depositions Head to Grand Jury. — Where depositions are read before the grand jury, and the same parties who made them personally appear and testify in the case, and the record does not show that the indictment was found, or predicated upon such depositions, held, not to be reversible error.</p> <p>Discretion of Trial Court — Wife of Deceased Allowed to be Present in Court.- — -It is entirely within the discretion of the trial court to permit the wife of deceased to remain in the courtroom during the trial, although objected to by defendant.</p> <p>Practice — Motive for Homicide. — It is not incumbent upon the prosecution to show in the first instance any motive for the homicide further than the same was developed by a proof of the circumstances of the killing. The correct practice is for the de fense to show the absence of motive, to be rebutted by proof on the part of the prosecution.</p> <p>Instructions — Exceptions.—Where the law of the case has been correctly given by the court to the jury, and, in addition thereto, gives an erroneous instruction, which is not excepted to until after the verdict is returned, held, that the exception comes too late,, and such error is not sufficient to yvarrant a reversal.</p> <p>Self-defense. — W. was unarmed, peaceably and quietly passing along a road or trail, which ran through the premises of another, and upon which he had been forbidden to travel by S., who was the-servant of the owner. S., while completely concealed, fired at and killed W., who was thirty feet away, and who was making no hostile demonstration, or even approaching the house in which S. was concealed. Held, that a plea of self-defense could not be predicated upon such a state of facts, and the court could have properly declined to-instruct upon the law of self-defense.</p> <p>(Syllabus by the court.)</p>

<p>APPEAL from District Court, Latah Comity.</p> <p>The plaintiff has twice presented his account to the board of commissioners for settlement and allowance, but they refused to allow the same, except in the sum of twenty-seven dollars and fifty-five cents leaving a balance claimed by plaintiff of $124.45. The warrant is in the hands of respondent, not accepted ot receipted for, and it is apparent that the reasons assigned in the decision are groundless. Appellant is entitled to recover. (Const., art. 18, secs. 7, 8; Acts 1890-91, pp. 175-177, 180, 181; Rev. Stats., sees. 1775, 1780.) The law imposes the duty of attending terms of the district court on the sheriff, (Rev. Stats., sec. 1871, subd. 4.) For this service and for services rendered the public in criminal proceedings, until statehood, the sheriff received a salary. The adoption of the constitution and subsequent legislation repealed sections 2120 and 2126 referred to and relied on by his honor. (Const., art. 18, secs, 7, 8;.Acts 1890-91, pp. 174, 180, 181.) The constitutional right to compensation for this service rendered by appellant for tbe benefit of respondent is self-executing. (Mills Ann. Const., sec. 227, p. 114; Cooley’s Constitutional Limitations, 101; Denver etc. R. Co. v. Atchison etc. Ry. Co., 15 Fed. 658.)</p> <p>Section 1775 of the Revised Statutes requires a claimant, whose claim is allowed in part, to receipt for the claim in full ion receiving the part allowed. By receiving the part allowed appellant waived his right to the balance. (Yavapai Co. v. O'Weil (Ariz.), 29 Pac. 430; Pulling v. Supervisors, 3 Wis. 337.) The allowance of a portion of a claim is not an acknowledgment on the part of the county of liability for. the balance. (Peoria County v. Boche, 65 Ill. 77.) There is no law authorizing the payment of appellant for services attending district court. (Rev. Stats., secs. 2120, 2145; Laws 1890-91, p. 174, et seq.; Board of Commrs. v. Bransom, 4 Colo. App. 274, 35 Pac. 750; City of Valparaiso v. Adams, 123 Ind. bbj, 24 N. E. 107; People v. Supervisors of Eldorado Co., 11 Cal. 170; StocJcton v. County of Shasta, 11 Cal. 114; Schiel v.- Cook Co., 137 Ill. 46, 27 N. E. 293; Bickwell v. Amador Co., 30 Cal. 287.)</p>

Subdivision 5 of section 2157 provides: The county auditors and treasurers shall receive three per centum on all territorial money collected in their counties” (See, also, sec. 2158.) These sections we deem sufficient to sustain our contention that the auditor should receive the amount claimed from the ■county.

ORIGINAL proceeding in Supreme Court by writ of man'date. The commission duly passed an order and resolution accepting applicant’s proposal awarding him the contract and authorizing their officers to proceed without delay to notify the plaintiff herein of the acceptance of his proposal and to proceed to the execution of said contract on the part of said commission. The secretary and president refused to execute and deliver said contract.

<p>Load Tax — County Commissioners must Levy — When Collected to be Paid into County Treasury. — Boards of county commissioners must levy a road tax on all property in the county for road purposes, which, when collected, must be turned over to the county treasurer.</p> <p>Same — Where Expended. — -Twenty-five per cent of the property road tax must be expended for road purposes in the road district where collected.</p> <p>Load Districts of Towns and Villages. — Incorporated towns and villages as separate road districts are under the exclusive jurisdiction and control of the trustees thereof.</p> <p>County Treasurers — Duty as to Road Tax. — County treasurers must hold twenty-five per cent of the property road tax levied" and collected by the county within the corporate limits of towns- and villages for their use, to be paid over on proper demand.</p> <p>County Commissioners cannot Interfere with Highways of Town. — Boards of county commissioners cannot authorize county road overseers to build, repair or in any way interfere with thet highways of an incorporated town or village.</p> <p>(Syllabus by the court.)</p>

ORIGINAL proceeding in Supreme Court for writ of mandate. Division of counties and apportionment of indebtedness is purely a legislative function. (Laramie County v. Albany County, 92 TJ.

This is an action to determine the authority of the board of commissioners of one of the counties of the state to fund its indebtedness under chapter 6 of title 13 of the Civil Code as amended by the act of the state legislature approved March 13, 1891, entitled, “An act to amend section 3602 of chapter C of title 13 of the Bevised Statutes, relating to the refunding of the bonded indebtedness of counties.” Section 15 of article f of the constitution requires that the…

<p>APPEAL from District Court, Washington Gounty.</p> <p>The duty of assessing is a ministerial duty, limited and defined by statutes, and the officer mailing a mistake or exceeding his jurisdiction is a trespasser and personally liable. (Cooley on Taxation, 789, and cases cited in note 4; Ford v. McGregor, 20 Nev. 446, 23 Pac. 508; Mason v. Johnson, 51 Cal. 612; San Francisco v. Ford, 52 Cal. 198; San Francisco v. Talbot, 63 Cal. 485.) Since property can be taxed but once for the same year and purpose, we contend that all personal property must have a situs for the purpose of taxation, and notwithstanding the fact that the court has found that some of the plaintiff’s cattle, or a number of them, had been taken to Washington county for the purpose of grazing and ranging, still we contend that the situs of plaintiff’s cattle for the purpose of taxation was in Ada county. The court has held that they were legally taxed in Ada county. The situs of property upon the range seems to be fixed by the following rules: 1. Where is the home or habitat of the property? 2. Where is the place from which the riders start out upon their rounds to rodeo and brand the stock, and to which they return when through? (Barnes v. Woodbury, 17 Nev. 381, 30 Pac. Í068; Conley v. Chedic, 7 Nev. 341; State v. Falkinburge, 15 N. J. L. 323; State v. Shaw, 21 Nev. 222, 29 Pac. 321.) Taxes illegally assessed and paid may always be recovered, if the collector understood from the payer that the taxes are regarded as illegal, and that suit will be instituted to recover them. (Shoup v. Willis, 2 Idaho, 120, •6 Pac. 124; Holmes v. School Dist., 34 Kan. 332, 8 Pac. 287; Parcher v. Marathon Co., 52 Wis. 388, 38 Am. Eep. 745, 9 N. W. 23; Winzer v. City of Burlington, 68 Iowa, 279, 27 N. W. 241; Cooley on Taxation, 568, 569.) An action will always lie to recover the payment of taxes when the same was made involuntarily and under duress. (1 Parsons on Contracts, 395; Cooley on Taxation, 567; Mowatt v. Wright, 1 Wend. 355, 19 Am. Dec. 508; Chase v. Dwinal, 7 Me. 134, 20 Am. Dec. 352.) If the illegal tax is paid to prevent a seizure and sale of the taxpayer’s property, having apparent colorable or formal authority to make such seizure and sale, and the payment is made under protest, the money so paid may be recovered back. (Cooley on Taxation, 568; Blackwell on Tax Titles, 4th ed., 187; 2 Dillon on Municipal Corporations, 938; Hilliard on Taxation, 421; Burroughs on Taxation, sec. 108; Miley v. Palmer, 14 Ala. 627.) Money paid involuntarily, or under compulsion, where the compulsion consisted of actual or threatened restraint of person or interference with property,, can only be avoided by repayment.- (Brumagim v. Tillinghast,, 18 Cal. 265, 79 Am. Dec. 176; Elston v. Chicago, 40 111. 514, 89 Am. Dee. 361; Mays v. Cincinnati, 1 Ohio St. 268; Córlelev. Maxwell, 3 Blatchf. 413, Eed. Cas. No. 3231; Radich v. Hutchins, 95 H. S. 210; Wolf v. Marshall, 52 Mo. 167; Ladd v. Southern Press Co., 53 Tex. 172.) The board of equalization had no power to strike out or reduce the plaintiff’s assess* ment. (Rev. Stats., secs. 1475, 1477, 1483; People v. Ash-bury, 44 Cal. 613; 46 Cal. 523; People v. Supervisors, 50 Cah 282; Wilson v. Supervisors, 47 Cal. 91; People v. Whylar, 41 Cal. 351.)</p> <p>The action of the assessor in such cases, being of a judicial nature, the assessment-roll, when made up and completed by him and turned over to the auditor or board of commissioners, becomes or partakes of the nature of a judgment, and it cannot be attacked or set aside in a collateral proceeding, but must be attacked directly. (Weatherford v. Town of Guilford, 62 Vt. 327, 19 Atl. 717; Meade v. Haines, 81 Mich. 261, 45 N. W. 836.) It is the duty of the taxpayer to furnish a true and correct list of his taxables to the assessor, and if he fails to do so, and any loss should result to him in consequence of such failure, his complaints on such score should meet with no favor in a court of justice. (San Francisco v. Flood, 64 Cal. 504, 2 Pac. 264,1 West Coast Rep. 567-570; Bode v. Holtz, 65 Cal. 106, 3 Pac. 495, 2 West Coast Rep. 366, 367.) The case of Swift v. City of Poughkeepsie, 37 N. Y. 511, was an action to recover money had and received under an alleged illegal levy and collection of a tax. Held, that the proper remedy was bycertiorari, since affirmed in People v. Brooklyn, 39 N. Y. 81 p People v. Albany, 40 N. Y. 165; Gibbs v. Commonwealth, 19> Pick. 298; Wright v. City of Boston, 9 Cush. 241; Osborn v. Danvers, 6 Cush. 99; Boston Water Power v. City of Boston, 9 Met. 203; Preston v. Boston, 12 Pick. 11; Howe v. City of Boston, 7 Cush. 274; Lincoln v. Worcester, 8 Cush. 55; Newburyport v. County Commissioners, 12 Met. 211. To authorize the taxing of personal property in any other county than that in which the owner resides, it must appear that the property is being, to some extent, kept or maintained in such county, and not there casually, or in transitu, or temporarily, in the ordinary course of business or commerce. (People v. Niles, 35 Cal. 286, 287, 288; People v. Home Insurance Co., 29 Cal. 533, and following; People v. Holladay, 25 Cal. 300.) The legislature of Idaho territory, at its thirteenth session, did pass an act under the provisions of which all kinds of livestock were to be assessed (as contended for cby appellant) in the county where the owner has his headquarters and principal corrals for such stock, which act was approved February 5, 1885. (See 13th Sess. Laws, p. 160.) But the provisions of that act were eliminated from the revenue laws of Idaho by the adoption by the legislature of the Revised Statutes of Idaho of 1887, under which latter statute the assessment in. controversy herein was made. (Idaho Rev. Stats., secs. 1, 4, 17, 19, pp. 61-63, general provisions; Cooley on Taxation, 2d ed., 264, 266.) Against an illegal tax the owner of personal property has a full and adequate remedy at law, and may not resort to a court of equity and through its instrumentality review and correct the assessment-roll. (Pricei v. Kramer, 4 Colo. 546, 555, and cases cited.) The remedy of appellant was before the board of equalization. (Harris v. Fremont Co., 63 Iowa, 639, 19 N. W. 826; Willcinson v. Walters, 1 Idaho, 564.) And such remedy is exclusive. (Nugent v. Bates, 51 Iowa, 77, 33 Am. Rep. 117, 50 N. W. 76; Macklot v. City of Davenport, 17 Iowa, 379; Burroughs on Taxation, secs. 102, 103, 107, 142, 173, and cases cited.) . One who has handed in no list and is overtaxed cannot pay his tax, and then recover back on showing a mistake in the assessor, a mistake not rendering the tax illegal. (Lott v. Hubbard, 44 Ala. 593.)</p>

<p>Attachment Lien — Business Day — When Act Appointed by Contbact to be Pebfoemed. — Under section 12 of the Revised Statutes an act appointed by contract to be performed on a particular day, which falls on a holiday, may be performed on the next business day. A writ of attachment levied prior to the time in which payment by the contract is to be made creates no lien.</p>

<p>Compensation of Sheriffs. — Sheriffs are not entitled to compensation for attending upon the district or any other courts of this, state.</p> <p>Minimum Compensation of County Officers. — In case the fees andi commissions received in any one year by the officers named ini section 7, article 18 of the constitution shall not amount to the? minimum compensation therein provided, they are entitled to receive from the county a sum sufficient to make their annual compensation equal to such minimum; and it is the duty of the board of commissioners to order a warrant drawn for such amount, in favor of the officers so entitled.</p> <p>Application foe Compensation must be Accompanied with Detail Statement.: — Officers applying to the board of commissioners for an allowance to make up the minimum compensation provided by the constitution should 'accompany such application with a detail statement, under oath, of all the fees and commissions earned by them during the year.</p> <p>(Syllabus by the court.)</p>

The motion in arrest of judgment must be founded on defects appearing on the face of the information. (People v. Johnson, 71 Cal. 392, 12 Pac. 261; People v. Gardner, 98 Cal. 128, 32 Pac. 880.) Not demurring, defendant waived his right to move in arrest of judgment. (People v. Swenson, 49 Cal. 390; Pen. Code, sec. 7960.) The irregularities complained of are not jurisdictional.

<p>APPEAL from District Court, Shoshone County;</p> <p>“The statute provides that fthe allowances to the claimant’s attorneys shall be regulated and fixed by the court at the time of rendering judgment in each case and entered of record as a part of the findings thereof; but in no case shall the allowance exceed fifteen per cent of the judgment recovered, except in ease of claims of less amount than $500, or where unusual services have been rendered or expenses incurred by the claimant’s attorney, in which case not to exceed twenty per cent of such judgment shall be allowed by the court.’ (1 Supplement to Rev. Stats., 2d ed., 916.) This we regard as like the tax-, able costs in actions at common law which the parties themselves cannot fix by contract. (Rev. Stats., secs. 823, 824; Taylor v. Bemiss, 110 U. S. 42, 3 Sup. Ct. Rep. 441; Stanton v. Embrey, 93 U. S. 548; In re Paschal, 10 Wall. 483.)” Where the statutes of some of the-states provide for the recovery, as costs hy the successful party, of an attorney fee of a fixed amount, this does not limit the right of the attorney to recover of his client what his services are reasonably worth. (Balsbaugh v. Frazer, 19 Pa. St. 95; Vilas v. Downer, 21 Vt. 419.) In New York, the attorney has a lien for all that may be due him from his client, though it exceed the amount taxed as costs against the unsuccessful party. (Marshall v. Meech, 51 N. Y. 140, 10 Am. Rep. 572.)</p> <p>In no ease shall the allowance exceed fifteen per cent of the judgment recovered, except in case of claims of less amount than five hundred dollars, or where unusual services have been rendered or expenses incurred by the claimant’s attorney, in which case not to exceed twenty per cent of such judgment shall be allowed. (Supplement to IJ. S. Rev. Stats. 1874-91, sec. 9, p. 916.) The government cannot be sued as a matter . of right in the legal acceptance of that term, but in justice .to the subject it sometimes permits itself, as in this case, to be sued. (De Groat v. United States, 5 Wall. 519.) By a long line of decisions of highly respected courts, contracts for a greater fee for collecting a pension have been declared against ■public policy -and therefore void. (United States v. Moyer, 15 Eed. 417; Hall ¶. Eiminer, 61 Mich. 269, 1 Am. St. Rep. 575, 28 N. W. 96; Smart v. White, 73 Me. 332, 40 Am. Rep. 356.)</p>

<p>Modification of Judgment — Interest—Costs.—Opinion on rehearing modified so as not to allow interest on the judgment for $24,350, and appellants to pay two-thirds of the costs and respondents one-third.</p>

<p>APPEAL from District Court, Bannock County.</p> <p>No one saw this bull killed, and the only evidence of neg-, ligence is the fact of the dead bull being found near the track, which we think is not sufficient in view of the fact;, that section 2680 of the Revised Statutes of Idaho has beendeelared by this court to be unconstitutional and void. (Qateril v. Union Pac. R. R. Co., 2 Idaho, 576, 21 Pae. 416.) Negligence cannot be presumed, but must be affirmatively proved by the party alleging it. (Mynning v. Detroit etc. Co., 59 Mich. 257, 26 N. W. 514; Brown v. Congress & Balter St. Ry. Co., 49 Mich. 153, 13 N. W. 494; Grand Rapid etc. R. Co. v. Judson, 34 Mich. 507; Asbach v. Chicago etc. Ry. Co., 74 Iowa, 248, 37 N. W. 183.)</p> <p>Actionable negligence is the inadvertent failure of a legally responsible person to use ordinary care, under the circumstances, in observing or performing a noncontractual duty, implied by law, which failure is the proximate -cause of injury to a person to whom the duty is due. (16 Am. & Eng. Ency. of Law, hot. p. 389.) As a rule, negligence is not presumed. But there are cases where the maxim Res ipsa loquitur is directly applicable, and from the thing done or omitted, negligence or care is presumed. (16 Am. & Eng. Ency. of Law, hot. pp. 448, 449 ; 2 Thompson on Negligence, 1227-1235, sec. 3; Cooley on Torts, 796; Shearman and Redfield on Negligence, sec. 59; Wharton on Negligence, secs. 421, 422; Bigelow on Torts, 596; Kearney v. London etc. R. Co., L. R. 6 Q. B. 759; Holbrook v. Utica etc. R. Co., 12 N. Y. 236, 64 Am. Dec. 502.) “When the plaintiff has introduced evidence of negligence sufficient as a matter of law to charge defendant with liability, or has shown such a state of facts as creates a presumption of negligence, the burden of proof shifts to the defendant.” (16 Am. & Eng. Ency. of Law, bot. p. 455; Pennsylvania Canal Co. v. Bentley, 66 Pa. St. 30; 2 Thompson on Negligence, p. 1235, sec. 8; Missouri Pac. R. Co. v. Foreman, 73 Tex. 311, 15 Am. St. Rep. 785, 11 S. W. 326; Bischoff v. Schultz, 5 N. Y. Super. Ct. Rep. 757; Giles v. Diamond State Iron Co., 7 Houst. 29, 8 Atl. 368.) “The extent of the duty of a railroad company as to stock on its track is, that the engineer shall use reasonable care, after the stock is discovered hy him, to prevent injury to it; and it is error to charge that it is negligence for a railroad company to fail to keep a lookout for stock.” (Kansas City etc. R. Co. v. Shaver (Ark.), 14 S. W. 864.)</p>

<p>Election Laws — Petition of Electors to Place Name on Official Ballot — Cannot be Placed on Ticket of any Party. — Under the election laws of Idaho, the presentation, in time prescribed by the statute, of a petition signed by the requisite number of qualified electors, entitles the petitioner to have his name placed upon the official ballot, as an “elector’s nominee” of the party designated in the petition, but not upon the regular ticket of any party.</p> <p>Same — Senator not a State Officer. — A senator is not a state of-. fleer in the sense that three hundred names are required to a petition to have his name placed upon the official ballot, under the election laws of this state.</p> <p>(Syllabus by the court.)</p>

The complaint does not state facts sufficient to constitute a cause of action. The complaint is a mere nullity; by means of it the court acquired no jurisdiction to render a judgment thereon, and the judgment for plaintiff is void. Pleading is the stating, in a logical and legal form, the facts which constitute the plaintiff’s cause of action, or the defendants’ ground of defense. (18 Am. & Eng.

<p>Contract for Sale and Delivery oe Cattle — What Vendor must Prove to Recover. — In suit on contract for refusal of purchaser to receive cattle in order to entitle vendor to recover, he must prove that he was able and willing to deliver, at the time and place agreed upon, the number of cattle agreed upon; that said cattle were the kind and quality required by the contract; and the difference in the market value of the cattle described in the contract, if any, at the time and place of delivery, and the price agreed to be paid therefor.</p> <p>(Syllabus by the court.)</p>

<p>APPEAL from District Court, Alturas County.</p> <p>The sole question presented on this appeal is whether a foreign corporation has the right under our laws to a trial in the county in which the principal place of business of such corporation is conducted. “An appeal may be taken to the supreme court .... from an order refusing to grant a change of the place of trial.” (Idaho Rev. Stats., sec. 4807, subd. 3.) The proper remedy is an appeal from the order, and the remedy is complete. (San Joaquin County v. Superior Court, 98 Cal. 602, 33 Pac. -182; Howell v. Thompson, 70 Cal. 635, 638, 11 Pac. 789; Jenkins v. Stage Co., 22 Cal. 538.) Section 2653 of the Revised Statutes accords to foreign corporations complying with the provisions of our law governing corporations “all the rights and privileges of like domestic corporations,” and declares that they shall be subject to the laws applicable to like domestic corporations. We contend that as it was held to be the right of a domestic corporation to trial in the county where its principal place of business was conducted, the same right and privilege under section 2653 just quoted inures to a foreign corporation; of a like character complying with the requirements of our law.. Provisions similar to section 2653 are to be found in other statutes, notably, Oregon: 2 Hill’s Annotated Laws, sec. 3294; Nebraska : Consolidated Stats., sec. 358; Illinois: 1 Starr & Curtis, Ann. Stats., c. 32, sec. 26; Santa Clara Female Academy v. Sullivan, 116 111. 375, 383-385, 56 Am. Eep. 776, 6 N. E. 183;. Stevens v. Pratt, 101 111. 206, 207; Barnes v. Suddard, 117 111.. 237, 7 N. E. 477.)</p> <p>There is nothing in section 2653 that requires a foreign corporation to designate its residence or principal place of business, but it must “designate some person residing in the county-in which the principal place of business of such corporation in this territory is conducted, upon whom process issued by authority of or under any law of this territory may be served.”' This is a statutory obligation, not a right. The right is one-conferred upon the people of the state to protect them; the obligation is upon the corporation to comply with the statute for the protection of the people. The case of Thomas v. Placervilleetc. Min. Co., 65 Cal. 600, 4 Pac. 641, is strictly applicable, and holds that an action against a foreign corporation may be commenced in any county the plaintiff may designate in his complaint.</p>

The trial court erred in denying the defendant’s challenge to the array or panel of jurors for that they were not drawn or summoned in the manner required by sections 3947 to 3960, inclusive, of the Eevised Statutes of Idaho. The defendant was-entitled as of right to trial by a jury selected, drawn, returned, summoned and impaneled strictly in the manner prescribed by statute. (State v. Da Rocha, 20 La. Ann. 356; State v. Morgan, 20 La.

The following is the confused state of the California decisions: Hess v. Sparks, 15 Cal. 186, holds that the interest remaining in vendor, where title has not passed, as a vendor’s lien. (Query, Is the title merged ?) Hill v. Grigsby, 32 Cal. 55, following in the line of Hess v. Sparks, though regretting' it, holds that there is a vendor’s lien where title has not passed, and dissolves an attachment.

The charge is violation of a city ordinance. Subdivision 31 of section 2230 of Revised Statutes gives authority to punish by-municipal ordinance all vagrants or other persons found in a town or village without visible means of support or some legitimate business.

The most notable of early text-writers says, in spealdng of the attorneys in the superior courts of Westminister Hall, that they were, “in… Held: that if an attorney should so far forget his professional duty as to voluntarily offer to give in testimony facts communicated by his client, without express consent of his client so to do, “a short way of preventing him would be to strike his name off the roll.” (Earl of Gholmondeley’s Case, 19 Yes. 261; People v. Parker, 56 111.…

ORIGINAL proceeding by writ of mandate. The statute is intended to provide for two things: 1. The redemption by the owner during the period of redemption at ten per cent interest while the county has simply a lien for taxes; and 2. It provides for the county selling the land back to the purchaser after it has obtained title by deed and become the owner in fact. In other words, after its lien has ripened into title.

This is an action brought for the purpose of foreclosing a lien on a certain quartz-mill and the land upon which the mill is situated in Owyhee county, Idaho, under the provisions of an act to secure liens for mechanics, laborers, materialmen and other persons.

The statute, section 4441, subdivision 3, requires the same proceedings for the settlement of a statement after the same is filed with the clerk “as are required for the settlement of bills of exception by section 4430.” Section 4430 also makes it the duty of the court, in settling the bill, to strike out all redundant and useless matter, so that the exceptions may be presented as briefly as possible, while section 4438 provides that “only the substance of the reporter’s…

<p>Appeal — Undertaking on Appeal. — An undertaking on appeal under section 4809 of the Revised Statutes of 1887, intended to apply to more than one appeal, must designate or specify each appeal and will not be construed to apply to appeals not specified therein.</p> <p>Statement on Motion foe New Trial — For What Purpose mat be Used. — A statement used on motion for a new trial and made part of the judgment-roll may be used on appeal from the judgment if not taken within sixty days after the rendition thereof for the purpose of determining whether the trial court made any errors in law during the progress of the trial.</p> <p>^Exception to Verdict — Appeal from Judgment. — An exception to the verdict on the ground of the insufficiency of the evidence to justify it cannot be reviewed on an appeal from the judgment unless the appeal is taken within sixty days after the rendition of the judgment.</p> <p>Same. — An exception that the “verdict is against law as applied to the facts proven in the case” cannot be reviewed on an appeal from the judgment taken more than sixty days after the rendition of the judgment.</p> <p>NTew Trial — Verdict Against Law — What the Statute Intends.— The statute, in authorizing a new trial on the ground that the “verdict is against law,” does not intend to include in that ground all or any of the other separate grounds enumerated in section ■4439 of the Revised Statutes of 1887.</p> <p>Townsite Occupant — Abandonment—Title.—From the facts shown in the record, held, that if appellant ever had any right to the-land in dispute, as a townsite occupant, he abandoned it long before bringing this action, and at the time of bringing it had no-title to enable him to maintain the action.</p> <p>Same. — A townsite occupant must comply with the law in regard to-improvements, occupancy, etc., and make application for deed in accordance with the law, and pay the price for such land before-he is entitled to a deed, and until he performs those acts and pays-such price he may lose the land claimed by abandonment.</p> <p>(Syllabus by the court.)</p>

“The court erred in holding that a detached portion or part of a structure can be sold under execution to enforce a mechanic’s lien; or that part only of a structure is subject to. coercive sale.” To sustain the contention would leave the reservoirs, the remainder of the canals (ten miles), the franchise and water rights not covered by plaintiffs’ lien, if not absolutely, nearly valueless; besides, when sold, the purchaser-has bought something that can be of no use to him.

One statute in force at the time this action was brought,, section 851 of the Revised Statutes, as amended, Laws of 1893,. page 12, reads as follows: “Roads laid out and recorded as highways, by order of the board of commissioners, and all roads used as such for a period of five years, provided the latter shall have been worked and kept up at the expense of the-public or located and recorded by order of the board of commissioners, are highways.” There is no highway or line…

<p>APPEAL from District Court, Bannock County.</p> <p>Appeal dismissed for want of bond. No brief on file on motion to dismiss.</p>

The .words “public prostitute” do not “necessarily and by reasonable intendment charge the plaintiff with” being a vagrant, and therefore they are not actionable per se, but special damages must be alleged and proved to warrant a recovery. At common law these words would not have been actionable per se, and they can now only be so held on the theory that they charge.an indictable crime involving moral turpitude or would subject the accused to an infamous punishment.

<p>On petition for a rehearing. Nothing new, no authorities cited.</p>

<p>Highways — Prescription—Section 851 of the Revised Statutes Construed. — A highway by prescription under section 851 of the: Revised Statutes rests upon user for a period of five years, not on the theory of a grant or dedication, but a public right founded on user and lapse of time.</p>

Am original proceeding in supreme court on petition, for writ of mandate. Petitioners set up a contract executed by them, in which it is expressly stipulated that they shall receive final payment, when they have executed their contract to the “satisfaction, approval and acceptance of said wagon road commission and the board of examiners/’ appointed to finally inspect, approve, and ■accept said division of said road.

In the body of the insurance policy sued on in this action is found the following provision: “1.

The question of consideration for giving the bond cannot be Inquired into in this action, this being a collateral attack. (1 Wade on Attachment, see. 185; Bildersee v. Aden, 62 Barb. .175; Eighth v. Benning, 15 Nev. 389; Edwards v. Pomeroy, 8 Colo. 255, 6 Pae. 829.) Cannot deny that the attachment issued, etc. (Crisman v. Matthews, 2 111. 151, 26 Am.

The statutes which abolish the distinction- in the forms of actions do not abolish the diffierences which exist in substance between actions at law and in equity, and a party seeking equitable relief must still show that he has no adequate remedy at law and that he has a proper case for the cognizance of a court of equity. (De Witt v. Hays, 2 Cal. 463, 56 Am.

Where it appears that certain jurors went privately and made an examination of the premises after motion to permit them to do it overruled, new trial will be granted. (Qarside v. Ladd Watch Case Co., 17 E. I. 691, 24 Atl. 470; People v. Fagen (Cal.), 33 Pac. 846; Ortman v. Union Pac. By. Co., 32 Kan. '419, 4 Pac. 858.) Jurors should not, during the trial, hold communication concerning the case with any person.

Attachment proceedings cannot be amended in Idaho because the only question that can be considered by the court on motion to discharge the attachment is this, Was the writ of attachment at the time of its issuance “improperly or irregularly issued?” If at that time it was “improperly or irregularly issued” it must be discharged.

The transcript not being served and filed within the time, and in the manner required by said rules, the law controlling the questions at issue, the motion to reinstate this appeal should be denied. The showing is not sufficient, and the negligence of the attorney for appellant is no sufficient reason. (Fahey v. Belcher, 3 Idaho, 355, 29 Pac. 112.) Appellant has no right now to be heard, notice of motion to dismiss having been served upon him.

The court should have granted appellant’s motion for a. continuance. A sufficient showing of diligence in the attempt, to procure the attendance of witnesses was made, and the court should not have jeopardized this man’s liberty by refusing his reasonable request for a continuance in order to procure witnesses to prove so important a fact as his absence from the place when the alleged crime was committed. (Harrington v. State, 31 Tex.

<p>APPEAL from District Court, Oneida County.</p> <p>We do not contend that a nonexpert may not give testimony as to the sanity or insanity of a man, but we do insist, and all the authorities sustain our position, that the witness must so far as he can first detail all the facts and circumstances upon which the opinion is founded in order that the jury may judge of the value of the opinion. (Eogers on Expert Evidence, 8, 9, 157; Baubien v. Qicotte, 12 Mich. 456; People v. Hopt, 9 Pac. 407, 4 Hfcah, 247; Lester v. Pittsford, 7 Yt. 158, 181; Morse -v. Crawford, 17 Yt. 499, 502, 44 Am. Dee. 349; Pidcoch v. Potter, 68 Pa. St. 342, 8 Am. Eep. 181.) The court erred in -charging the jury that if the defendant shot the deceased, then, no matter what the provocation was, and no matter what tlie surrounding circumstances, unless the shooting is justifiable •as explained, the defendant is guilty of murder, provided the jury further believed beyond a doubt that the defendant did the shooting with the premeditated design of killing deceased. 'This took the whole question of adequate provocation from the jury. A man, when overborne with intense passion, may shoot with a premeditated design to kill, and yet he is not guilty of murder. (Biggs v. State, 29 Ga. 723, 76 Am. Dec. 630; People Hurtade, 63 Cal. 288.) “The giving of instructions which •are inconsistent with or contradictory with each other is error, 'for the reason that the jury will be as likely to follow one as the ■other, and it cannot be known which they followed. In such •a case the judgment must be reversed.” (2 Thompson on Trials, 2326, and. cases cited; Illinois Cení. B. B. v. Moffitt, 67 111. 431.)</p> <p>“One not an expert may give an opinion founded on observation that a certain person is sane or insane.” (Lawson on Expert and Opinion Evidence, rule 64, subrule 4, p.'476.) “Mere •opinion, as sueh, is inadmissible; but when it is shown that the witness has had an opportunity of observing the character then his judgment or belief, formed upon such observations, is evidence for the’eonsideration of the jury.” (Gaston, J., in Clary ■v. Clary, 2 Ired. 78, cited and approved in McBae_v. Malloy, 93 N. C. 154, 160; Bladwin v. State, 12 Mo. side pp. 223-238; Reed v. State, 62 Miss. 405-408; Ciarle v. State, 12 Ohio, 483, 40 Am. Dee. 481; Hardy v. Merrill, 56 N. H. 227, 22 Am. Eep. 441; Grant v. Thompson, 4 Conn. 203, 10 Am. Dee. 119; Baedurn v. State, 12 Mo. 223.) While the law presumes ona accused of crime innocent until the contrary is proven beyond a reasonable doubt, we also contend that the law presumes him sane, and that the burden of proving insanity is upon the defendant, at least to the point of raising a doubt of his insanity; many courts go even further, and hold that the insanity must be •established beyond a reasonable doubt, while others only re-quire that the insanity shall be established by a preponderance of evidence. The question has been before this court and was exhaustively considered in the case -of People v. Walter, 1 Idaho, 386-391; Brown on Medical Jurisprudence and Insanity, see. 520; People v. Pico, 62 Cal. 50; People v. Messersmith, 61 Cal. "246; Bond v. State, 23 Ohio St. 349; State v. Jeddis, 42 Iowa, 264; State v. Jones, 64 Iowa, 349, 17 N. W. 911, 20 N. W. 470; Flake v. State, 121 Ind. 433, 16 Am. St. Hep, 408, 23 N. E. 273; Wright v. People, 4 Neb. 407; State v. Bedemeier, 71 Mo. 173, 36 Am. Bep. 462.</p>

Hnder section 2711 the company was bound to furnish water to the plaintiff free for “fire and other great necessities.” This-question and every phase of it has been clearly and distinctly settled by the supreme court of California. (Idaho Rev. Stats., see. 2711; Spring Valley Water Works v. San Francisco, 52 Cal.

It will be urged without doubt that the constitution of the state being a limitation of the legislative power only and not a grant of authority, there is no restriction upon the legislative assembly forbidding the creation of new offices, and that the right to create the office of clerk of the probate court exists. But subdivision 6 of article 18 of the constitution expressly provides that no other county offices than those named in the constitution shall be established.

This being an action for goods sold and delivered, an actual delivery must be shown — a complete relinquishment of all rights of the vendor. He cannot keep the goods and get the price also. (Atwood v. Lucas, 53 Me. 508, 89 Am. Dee. 713; Hart v. Tyler, 15 Pick. 171; Messer v. Woodman, 22 N. H. 172, 53 Am. Dec. 241; 21 Am. & Eug. Eney. of Law, 576.) Did appellant pay at the time of the making of the .contract some part of the purchase money?

<p>Impeachment of Verdict — Affidavit of Jurors. — Affidavits of jurors, under the provision of subdivision 2, section 4439 of the Kevised Statutes, cannot be received for the purpose of impeaching their verdict, unless it is a verdict obtained by a resort to the determination of chance.</p> <p>Same. — Said subdivision 2, section 4439, is not punctuated the same as the corresponding provision is punctuated in the Code of Civil Procedure of California, but the change was made by the printer, and not by the legislature or code commissioners.</p> <p>(Syllabus by the court.)</p>

<p>WRIT of error to District Court, Bannock County.</p> <p>All statutory proceedings and rights which did not exist at common law are without the guaranty of trial by jury. The right of jury trial applies only to rights and proceedings which existed at common law. (Kimball v. Connor, 3 Kan. 414; Plimpton v. Somerset, 33 Yt. 283.) Certain summary proceedings or inquisitions by the state have been held not to be within the guaranty of trial by jury. (Crandell v. James, 6 R. I. 144; Harper v. Commissioners, 23 Ga. 566; Rankin v. Jauman, unte, p. 53, 36 Pac. 501; Rupert v. Board of County Commrs., 2 Idaho, 19, 2 Pae. 718; General Custer Min. Co. ■v. Van Camp, 2 Idaho, 40, 3 Pac. 22.) The act of February 23, 1893, page 40 of the Laws of Second Session, allows each member of the board of county commissioners six dollars for each day actually and necessarily engaged in transacting county business, and if the meeting is necessary and is held, the member attending it is entitled to his per diem whether the board remains in session ten minutes or ten hours. (White v. Dallas County, 87 Iowa, 563, 54 N. W. 368.)</p> <p>The statute only allows county commissioners per diem compensation for time actually and necessarily engaged in transacting county business. Whether the nineteen days charged by plaintiff in error, J. O. Caldwell, were actually and necessarily devoted to the business of the county the district court could only ascertain by the manner in which the court inquired into it, viz., by hearing evidence relative thereto. We contend that this is proper, otherwise the right of appeal given the defendants in error as taxpayers would be ineffectual, and the object of the statute entirely defeated.</p> <p>A. W. Fisher and others appealed from an order of the county commissioners of Bannock county from an allowance of a claim to J. O. Caldwell. The judgment of the commissioners-was reversed, and the board of county commissioners and J. 0„ Caldwell bring error. Affirmed.</p> <p>This cause was taken to the district court of Bannock county by appeal from an order of the board of county commissioners of said county allowing J. O. Caldwell, a member of said board, $150.40, mileage and'per diem compensation for services as a member of said board, and was brought to this court by writ of error. In the trial of the cause in the district court two questions were submitted to the jury, and a special verdict found by them, on which verdict judgment was entered reducing the-claim from $150.40 to $90.40. The record shows that the reduction was made by refusing to allow the claim of Caldwell, defendant in error, for ten days’ services, at six dollars per day, that had been allowed by said board. It appears from the record that said board adjourned from day to day for many days, awaiting a decision of the supreme court in a case there pending in which Bannock county was interested, claiming that said board could not make the annual tax levy until said decision was made, and for that reason adjourned from day to day, as above, stated.</p>

<p>Original proceeding in supreme court by writ of mandate.</p> <p>No briefs found on file.</p>

<p>APPEAL from District Court, Alturas County.</p> <p>The clerk of the court is expressly authorized by statute to authenticate transcripts on appeal. (Idaho Eev. Stats., sec. 4821.) The rule of this court follows the statute. (Supreme Court Eule 27, p. 11.) It is true that both statute and rules provide that the authentication may be by stipulation of counsel of the respective parties, but neither the statute nor the rule compel or require counsel to stipulate. The law makes it the duty of the clerk to authenticate transcripts on appeal, and he is the only officer or person upon whom that duty is imposed. Counsel of the respective parties may, if they choose, stipulate, but they are under no restraint and may do as they please. The California authorities cited by respondents are liable to mislead, as they are based on statutes widely different from our own. We think, in the light of the statutes and authorities cited, we are authorized to say that the law in Idaho is: 1. That the judge or court cannot authenticate the transcripts used on appeal from an order; 2. That such authentication can be made by stipulation of counsel, but that counsel are under no obligation to enter into such stipulation; 3. That the only officer or person upon whom the law imposes the duty of authenticating such transcripts is the clerk of the court.</p> <p>The clerk of the court is not authorized to authenticate the papers used upon a motion. When the motion is made, presented, argued, and determined in open court, the clerk can hardly know upon what papers the parties rely; most frequently all the papers are not read, but ultimate facts are stated to appear, but from what papers they are claimed to appear the court and the respective attorneys only know. When the papers used are authenticated as those used, the clerk is the proper officer to certify that the copies in the transcript are correct copies of the originals on file in his office, and this is the extent of his authority; but this he does not do in these cases, he does not certify that the transcripts contain copies of papers on file or of which he is the legal custodian, but that they contain copies of papers used on the motions. An appellate tribunal cannot take judicial knowledge of proceedings in lower courts. It can only act upon a record of the proceedings authenticated in the mode required by law.” (Nash v. Harris, 57 Cal. 342.) The law does not impose upon the clerk the duty of certifying to the identity of papers used upon a motion. (Baiter v, Snyder, 58 Cal. 617.) By Bevised Statutes, section 4819, the record on appeal from all orders, except an order granting or refusing a new trial, is made the same, and it matters not whether the order was made before or after judgment; and section 4429 provides for a bill of exceptions to any decision whenever or wherever made, by a court or judge, or by a. tribunal other than a court, or by a judicial officer. It was the settled construction of sections 4819 and 4821 that the clerk cannot certify as to what papers were used upon the hearing ox the motion in the court below or at chambers, before we adopted those sections from California. (Walsh v. Hutchings, 60 Cal. 228; 2 Hayne on New Trial and Appeal, sec. 264, pp. 792, 793.)</p> <p>Action by the Simmons Hardware Company and another against the Alturas Commercial Company. From an order denying a motion to dissolve attachments, defendant appealed, and plaintiffs move to affirm the order for defects in the appeal record. Motion denied.</p> <p>In these cases plaintiffs issued attachments and levied upon the property of defendant on the twenty-second day of October, 1894. On the first day of November, 1894, defendant moved the court to dissolve said attachments, stating that the motion would be heard upon the papers on file in said court in said action. The court below, upon the hearing, denied the motion, and defendant appeals to this court. The clerk of the district court of the fourth judicial district, in which these cases were pending, in his certificate to the transcripts, certifies that the foregoing transcripts contain a full, true, and correct copy of all the papers used on the motions of defendant to vacate and discharge the attachments, and the motions of plaintiff to be allowed to file additional undertaking, etc. The respondent now moves this court to affirm the judgment of the court below on the grounds that there is no bill of exceptions or other sufficient certificate in the record to show that the papers presented in the transcripts were used on said motion; or that the transcripts contain all the papers used upon said motions.</p>

<p>On petition for a rehearing. Modifying the judgment of this court rendered at this term, February 23, 1895.</p>

<p>On petition for rehearing of cause decided February 8, 1895.</p> <p>No briefs filed.</p>

<p>Compensation of County Commissioners — Allowable Only when Acting as a Board. — Under section 5 of an act entitled “Concerning fees and compensation of county officers,” approved March 13, 1891, county commissioners are only entitled to the per diem and mileage therein allowed when acting as a board actually in session and transacting county business.</p> <p>How and when Boards can Act. — Boards of county commissioners are entireties, and can only act collectively and as empowered by law.</p> <p>Members Performing Services Individually must Present His Claim as any Other Person. — If a member of the board performs services for the county, whether by order of the board or on his own motion, he does so as an individual, and his claim for compensation must be presented in the same manner and take the same course as the claim of any other person.</p> <p>(Syllabus by the court.)</p>

<p>Stipulation Modifying Judgment. — A judgment may be modified by consent of parties or tbeir attorneys of record, and in such ease costs are awarded to the party in whose favor the modification is made.</p>

<p>APPEAL from District Court, Latah County.</p> <p>In this action two questions are presented for consideration: 1. Is the municipality — the county of Idaho — liable to the plaintiff? This contention is raised by the original complaint to which a demurrer was sustained. 2. If the municipality is not liable, are defendants individually liable under the facts set out for negligence in the performance of duties imposed on them by law? Liability for injuries such as are set up in this action attaches when the municipality is charged with the duty and invested with the power of keeping its highways in repair. (Buswell’s Law of Personal Injuries, sec. 167; County Commrs. v. Duckett, 20 Md. 468, 83 Am. Dee. 557.) As to the contention that the plaintiff has a right of action against the defendants, the rule is that where a duty is imposed by the statute and no remedy is prescribed, a common-law right of action accrues, as otherwise in such ease there would be a right without a remedy. (County Commrs. v. Duckett, 20 Md. 468, 83 Am. Dec. 557; Rev. Stats., sec. 18; Lehigh County v. Hoffort, 116 Pa. St. 119, 2 Am. Rep. 587, 9 Atl. 177; Dover v. Barkhoof, 44 N. Y. 113; Robinson, v. Chamberlain, 34 N. Y. 389, 90 Am. Dee. 713, and note; Bennett v. Whitney, 94 N. Y. 302; Monk v. Town of New Utrecht, 104, N. Y. 556, 11 N. E. 268; County Commrs. v. Duvall, 54 Md. 350, 39 Am. Eep. 393; Eastman v. Claclcamas County, 32 Fed. 24; Amy v. Barkholder, 11 Wall. 136, 20 L. ed. 101; St. -Joseph etc. Ins. Co. v. Leland, 90 Mo. 177, 59 Am. Eep. 9, 2 S. W. 431; Nebraska City v. Campbell, 2 Black, 590, 17 L. ed. 271; Weightman v. City of Washington, 1 Black, 39,17 L. ed. 52.)</p> <p>The rule that counties are not liable for torts in the absence of statute is universally acknowledged, and the great weight of authority is in favor of the conclusion that, even when a duty is imposed by statute, the county is not liable for failure to perform it, in the absence of express provision creating such liability. (Heigel v. Wichita County, 84 Tex. 382, 31 Am. St. Eep. 63, 19 S. W. 562; Board of Commrs. of El Baso County v. Bish, 18 Colo. 474, 33 Pac. 184; Bailey v. Lawrence County, 5 S. Dak. 393, 48 Am. St. Eep. 881, 59 N. W. 219; Board of Commrs. of Phillips County v. Churning, 4 Colo. App. 321, 35 Pae. 918; Templeton v. Linn County, 22 Or. 313, 29 Pac. 795; Bundman v. St. Charles County, 110 Mo. 594, 19 S. W. 733.) In a legal sense there can be no liability for negligence where the defendants owed the plaintiff no duty. The duty and obligations of the county commissioners are to the public alone. They receive no compensation from and owe no duty to any private individual. They act for the public in general, and are accountable to the public alone for 'their negligence, and the appropriate remedy for their neglect of duty is by public prosecution. (Garlinghouse v. Jacob, 29 N. Y. 297; Monk v. New Utrecht, 104 N. Y. 557, 11 N. E. 268.) The commissioners of Idaho county, at the time the alleged cause of action arose, were acting as public agents and had no perfect duty imposed upon them by law to keep the highways in their county in repair, and the only duty imposed upon them in this state is an imperfect duty, so far as keeping the highways of the county in repair is concerned, and only extends to the means within their possession and under their control. (Bussell’s Law of Personal Injuries, secs. 51, 52; Cooley on Torts, 379 et seq.; Nowell v. Wright, 3 Allen, 166, 80 Am. Dec. 82; Bartlett v. drozier, 17 Johns. 450, 8 Am. Dec. 428; Lynn v. Adams, 2 Inch 145.)</p>

<p>Agreement to Build Railroad — Instrument Executed to Secure Performance — Court Holds is a Bond. — V. agreed, in consideration of the conveyance to him by S. of certain lots in the town of J., to construct a railroad to J. by the first day of January, 1891, and to erect or cause to be erected and constructed a depot and certain sidetracks upon the land of S., in said town of J., on or before May 29, 1891, and to secure such performance V. and one H. executed to S. their bond conditioned for the performance of said agreement under a penalty of $6,000. The road' was not completed nor the depot and sidetracks, until June 1,. 1891. No objection was ever made by S. to the failure to complete the work within the specified time. On August 25, 1893, S. assigned the said bond to plaintiffs, who, on October 27th, brought suit to recover the said sum of $6,000, as the price of the lots so as aforesaid conveyed by S. to Y., claiming said bond to be an alternative contract for the sale of land. Held, said, action could not be sustained.</p> <p>(Syllabus by the court.)</p>

<p>Writ of Attachment — How Discharged. — Under the laws of Idaho-the only grounds upon which an attachment can be discharged are that it was improperly or irregularly issued.</p> <p>Same — Sufficiency of Affidavits to Discharge. — Where the affidavits in support of a motion to discharge an attachment only go-to the question as to whether the property levied upon is a homestead or not, they are insufficient to authorize the judge at chambers to dissolve the attachment.</p> <p>Homestead cannot be Determined in such Proceeding.- — It is not competent or proper practice to determine the homestead character-of property in such a proceeding.</p> <p>(Syllabus by the court.)</p>

This suit was brought for the purpose of restraining the defendant, board of county commissioners, from issuing and disposing of certain bonds to the amount or eighty thousand dollars, and to restrain the payment to one George B. McAuley of $3,200 as commission for the negotiation and sale of said bonds. Said bonds were proposed to be issued for the purpose of refunding the outstanding indebtedness of the county of Kootenai.

<p>APPEAL from District Court, Shoshone County.</p> <p>No briefs filed on motion to dismiss.</p>

<p>APPEAL from District Court, Shoshone County.</p> <p>No briefs on file on motion to dismiss.</p>

An action to quiet title, under our code, is simply to determine any or all adverse claims thereto. (Idaho Rev. Stats., sec. 4538.) All that is necessary to allege in a complaint to quiet title and determine conflicting claims to real estate is to allege possession and ownership or possession of ownership in the plaintiff and that the defendant claims some title adverse to that of plaintiff.

<p>APPEAL from District Court, Shoshone County.</p> <p>The regular panel must be exhausted before the court may Issue a special venire. (12 Am. & Eng. Ency. of Law, hot. p. 338.) A panel of jurors not drawn according to law is a nullity. (Clinton v. Englebroct, 13 Wall. 441.) A different construction of this act would put it in power of the district judge and sheriff to prepare a jury at any time to subserve personal ends and thus render our jury system an engine of oppression instead of an institution by aid of which to redress wrongs. (People v. Dunn, 1 Idaho, 76.) The judgment should have been one of dismissal only, especially as no one attempted to offer any testimony. When there is no evidence, nonsuit is the remedy. {Stoddard v. Vandylce, 12 Cal. 438; Copper Hill etc. ■Co. v. Spencer, 25 Cal. 26; Ensminger v. Mclntire, 23 Cal. 594; Wilson v. Southern Pac. B. B. Co., 62 Cal. 164, 172.)</p> <p>I contend that no challenge lies to the panel in a civil case. '“Challenges belong to one of two classes, viz., challenges to the array or to the polls. In', either case the challenge cannot be made until the jury box is full.” (Wait’s Practice, 103; King v. Edwards, 4 Barn. & Aid. 471; Burnshill v. Giles, 9 Bing. 13.) Even in criminal cases, where a challenge to the panel is allowed, it is not error to disallow the challenge if it is not based upon any of the grounds specified in the code. {Territory v. Evans, 2 Idaho, 651, 23 Pac. 232; People v. Darr, 61 Cal. 654; People v. Wallace, 101 Cal. 281, 35 Pac. 862.) “There is abundant authority for holding that where there is no intimation or ■charges of bad faith, the court has the power whenever the necessity arises, and there is no regular jury in attendance to impanel a jury to try a case which has been regularly set and is ready for trial, to a jury.” {Bennett v. Tintic Iron Co., 9 Utah, 291, 34 Pac. 62; Maclcey v. People, 2 Colo. 15; citing Stone v. People, 2 Scam. 326.) If the plaintiff fails to prove his case, ■and does not take a voluntary nonsuit, the defendant may either move for a nonsuit or have a judgment upon the merits. (Hayne on New Trial and Appeal, see. 114; Thompson on Trials, sees. 2245, 2267.)</p>

<p>APPEAL from District Court, Latah County.</p> <p>The court erred in holding that the attachment in the case of J. W. Lieuallen and H. J. Lestoe, copartners, doing business under the firm name and style of Lieuallen & Lestoe, plaintiffs, against Andrew Clyde, doing business under the name and style of Andrew Clyde Company, defendants, was invalid. If the attachment proceedings were regular and valid in every respect, the lien of the appellants, Lieuallen & Lestoe, would relate to the nineteenth day of November, 1892, by virtue of the lien of attachment. Whereas, the mortgage of the Palouse Bank was out of date February 15, 1893, three months later. 'On November 19, 1892, the complaint was duly filed and also •an affidavit and undertaking on attachment, and the writ was thereupon duly issued. This writ was delivered to the sheriff on that day, who filed a copy of the said writ with the auditor and recorder, together with a notice, stating that the property •described therein was attached. (Robertson v. Kinhhead, 26 Vis. 560.) Voluntary appearance waived all irregularities in the attachment. (Porter v. Pico, 55 Cal. 173; Harvey v. Foster, 64 Cal. 298, 30 Pac. 849; Hammond v. Starr, 79 Cal. 558, •21 Pac. 971.)</p>

WRIT of error to District Court, Third- District. As a condition precedent to the granting of the order discharging the plaintiffs in error as attorneys for defendant, Knott, the court should have required the defendant to pay their fees or satisfactorily secure the same.

<p>APPEAL from District Court, Latah County.</p> <p>An occupancy for a period of more than five years, together with payment of taxes, makes the title absolute under the code of Idaho. (Idaho'Kev. Stats., tit. 2, c. 2, sec. 4043, subd. 2.) Dnder the law, where real property is sold on execution and the sheriff’s deed made, the debtor remaining in possession Is ■as much a tenant at will or tenant at sufferance of the purchaser as if the deed had been made by himself. (Blood v: Light, 38 Cal. 649, 99 Am. Dec. 441; Buswell on Limitations -of Actions, sec. 306; Dobbins v. Lusch, 53 Iowa, 304, 5 N W. 205; Munson v. Plummer, 59 Iowa, 120, 12 N W. 806; Hyatt u. Wood, 4 Johns. 150, 4 Am. Dee. 258; United States, v. Chdboya, 2 Black, 593.)</p> <p>Where it appears that there has been an actual continued occupation of land, under a claim of title, exclusive of any other right, but not founded upon a written instrument, judgment or decree, the land so actually occupied, and no other, is deemed to have been held adversely. (Unger v. Mooney, 63 Cal. 586, 49 Am. Bep. 100; 1 Am. & Eng. Ency. of Law, 225.) The law presumes nothing in favor of the jurisdiction of inferior courts. (1' Cowdrey’s Justice, see. 67, and notes; Mallett v. Uncle Sam Min. Co., 1 Nev. 188, 90 Am. Dec. 484; Paul v. Beagin, 1 Nev. 357; Little v. Currie, 5 Nev. 90; Reybcrs v. McComber, 7 Pae. 838; Thómykins v. Claclcamas Co., 11 Or. 364, 4 Pac. 1210; Hughes v. Cummings, 7 Colo. 138, 203, 2 Pac. 289-928.)</p>

<p>APPEAL from District Court, Nez Perces County.</p> <p>What is actionable negligence? We answer that negligence consists of an omission to perform a duty which the party guilty of the omission is bound to perform toward1 the one injured, or it consists in the doing of some act to the injury of some other which a reasonably prudent man would not do. Definitions of negligence vary in their terms, but this Is the substance of all, which is accepted in the books and by the courts. (Bailey on Injuries, 406; Nicholson v. Erie Ry. Go., 41 N. Y. 525.) Does the law require that a man consult the public as to how he shall improve his own property? . (Ilounsell v. Smyth, 7 Com. B., N. S., 732, 97 Eng. Com. L. 729.) There is not from the beginning to the end, in the testimony of this case, a word of evidence going to show the circumstances under which the accident happened. (Layman v. City of Brooklyn, 29 Barb. 234.) To entitle the plaintiff to recover, it must appear affirmatively that the accident resulted wholly from the negligence of the defendant, and that the negligence and imprudence of the plaintiff did not contribute to the result» {Payne v. Forty-second St. etc. R. R. Go., 40 N. Y. Super. Ct. 8; Stager v. Ridge Ave. Pass. Ry. Go., 119 Pa. St. 70, 12 Atl. 821; Sorenson v. Manesha Paper and Pulp Co., 46 Wis. 338, 14 N. W. 446; Trapnell v. Red Oak Junction, 76 Iowa, 744, 39-N. W. 884.)</p> <p>The rule in these cases rests upon the general principle that the defendant owes to the whole community the duty of abstaining from the necessary doing of anything, upon his own ground or with his own property, which shall put others in peril. (BuswelPs Law of Personal Injuries, secs. 74-76, p. 98; Sioux City etc. R. R. Go. v. Stout, 17 Wall. 665; Bayes v. Michigan Cent. R. R. Co., Ill H. S. 242, 4 Sup. Ct. Bep. 369; Randall v. Baltimore etc. R. R. Co., 109 H. S. 478, 3 Sup. Ct. Bep. 322; Evensich v. G. G. & S. F. Ry. Go., 57 Tex. 126, 44 Am. Bep. 586; Keefe v. Milwaukee etc. Ry. Go., 21 Minn. 207, 18 Am. Bep. 393; Kansas Gent. R. R. Go. v. Fitz-simmons, 22 Kan. 686, 31 Am. Bep. 203, and notes; Nagel v. Missouri Pac. R. Go., 75 Mo. 653, 42 Am. Bep. 418; Beck v. Garter, 68 N Y. 83.) The appellant should have erected and maintained a fence or other suitable works to protect persons from danger on the public park that it had opened. The •omission to do so was gross negligence. (Shearman and Bed-field on Negligence, secs. 13, 14; Thompson on Negligence, sec. 1232; Addison on Torts, 49; Cooley on Torts, 647; •Sedgwick on Damages, 563; State v. Railroad Go., 52 N. H. •528; St. Louis etc. R. R. Go. v. Terhume, 50 111. 151, 99 Am. Dee. 504; Marcott v. Marquette etc. R. R. Go., 49 Mich. 99, 13 N. W. 374; Mason v. Shawneetown, 77 111. 533.) If there be a conflict of evidence as to the facts, then the question is for the jury to decide. (1 Borer on Bailroads, 476; Delaney v. Milwaukee & St. Paul Ry. Co., 33 Wis. 67; Chamberlain v. Moo din, 2 Idaho, 642, 23 Pac. 177.)</p>

Plaintiff filed complaint on twenty-fourth day of May, 1894, alleging that defendant was indebted to plaintiff in the sum of $929.53. On the same day affidavit and undertaking for attachment were made and filed.

<p>Findings of Fact — Presumptions.—When the record fails to affirmatively show that findings of fact were not waived the presumption is that they were waived.</p> <p>(Syllabus by the court.)</p>

<p>APPEAL from District Court, Idaho County. -</p> <p>In tins case no summons was ever issued as required by law, and the court was never vested with jurisdiction to hear and determine said action. This court in the case of Chase v. Hay good, '3 Idaho, 683, 34 Pac. 811, decided that after a special appearance in a justice’s or probate court, a defendant might demur or answer or both, and upon appeal to the district court raise the special appearance and save all his rights under it, so that the question of waiver drops out of this case. (Rev. Stats., secs. 4655, 4140.) All the decisions upon this statute are to the effect that it is mandatory and must be strictly complied with. (Sawyer v. Robertson, 11 Mont. 416, 38 Pac. 456; Sweeney v. Schultes, 19 Nev. 53, 6 Pac. 44;- Atchinson etc. Ry. Go. v. Nicholls, 8 Colo. 188, 6 Pao. 513; Ward v. Ward, 59 Cal. 139; State v. Woodlief, 2 Cal. 242; Lyman v. Milton, •44 Cal. 630.)</p> <p>. When it is difficult to tell which of the actions the plaintiff nhooses, the prayer may determine character of the action. (Bliss on Code Pleading, 155.) The prayer in the complaint is as on a contract, so the summons would be a demand summons and come under subdivision 4, section 4655 of the Revised Statutes. The summons is a good demand summons. {Higley v. Polloclc, 21 Nev. 198, 27 Pac. 896; Behloiv v. Short, 91 Cal. 141, 27 Pac. 546.)</p>

<p>Bight of Way- — Bailroad Entitled to Use of All op Same. — A railroad company having purchased a right of way across the land of plaintiff and obtained a deed for .the same is entitled to use the whole thereof for any of the purposes of said road, and the plaintiff having any buildings thereon, in the absence of any agreement with said company providing for the expense of removal thereof, must, if he desires such buildings, remove the sama at his own expense.</p> <p>(Syllabus by the court.)</p>

The failure of a court to act or its incorrect action can 'never authorize a nunc pro tunc entry. If a court does not. render judgment, or renders one which is imperfect or improper, it has no power to remedy any of these errors or omissions bjr treating them as clerical misprisions. (Gray v. Brignarditto, .1 Wall. 627; Hyde v. Curling, 10 Mo. 359; Gibson v. Chouteau, ■45 Mo. 171, 100 Am.

The court erred in refusing defendant’s motion to quash the information, on the ground that the defendant had not, prior to the filing of said information, had a preliminary examination before a magistrate, as required by law and was thereby deprived of a'substantial right.

Original proceeding by writ of review. • This cause coming up on certiorari the inquiry is, of course,. to be confined to a consideration of the “mere power” of the district court to appoint a receiver in a case of this nature. In brief, did the inferior court exceed its jurisdiction?

Cunningham was appointed to the office of sheriff; the bond sued on recites that he was elected. It is true that he was elected, and it is also true that he was appointed, and that the bond sued on was given by him as sheriff in pursuance of said appointment.

The only point I desire to argue is the alleged error of the-court, in holding, under section 3104 of the Eevised Statutes of Idaho, and also section 3122, as similating the affidavits of placer-locations to the affidavits of lode locations, that no one but the-locator could make the affidavit accompanying the notice of location presented for record in the office of the county recorder. This construction of the literal language of the statute is too-narrow.

Where the evidence to convict defendant upon trial for murder is circumstantial the evidence must be of a conclusive nature, and is insufficient unless they exclude every other supposition.

While possession of stolen property, or possession of property taken from a building recently burglarized is a circumstance to be considered with other circumstances tending to show guilt, it is not alone sufficient to warrant a conviction of larceny or burglary. (People v. Hurley, CO Cal. 74, 44 Am. Rep. 55; People v. Flynn, 73 Cal. 511, 15 Pac. 102; State v. Tilton, 63 Iowa, 117, 18 N W.. 716.) Improper language by the prosecuting attorney is grounds for reversal.

APPEAL for District Court, Nez Perces County. An appeal is taken by filing with the clerk of the court in which the judgment or order appealed from is entered, a notice stating the appeal from the same or some specific part thereof, and serving a similar notice on the adverse party or his attorney. The order of service is immaterial.

Where a mortgage conflicts with the terms of the note, or is uncertain, the note will govern. (Bank of San Luis Obispo v. Johnson, 53 Cal. 99; 2 Jones on Mortgages, 3ded., 1179.) The term “period of days” in the mortgage is too indefinite and uncertain. The action was undoubtedly premature, and all that plaintiffs are entitled to is judgment for the sale of so much of the land as will settle the interest not mentioned.

A party in a criminal case does not waive his rights by not insisting upon them. If the information or indictment does not state facts sufficient to constitute a public offense, the court bad no jurisdiction. (People v. Du Bell, 1 Idaho, 44.) Section 7742 of the Penal Code specifies the grounds upon which a defendant-may demur to an indictment.

The action of the court below in sustaining the demurrer to-the complaint brings up squarely the one question of law involved in this appeal, viz., whether a sheriff is entitled to demand a commission upon the amount of money paid to him upon a redemption from an execution sale, made under the provisions of sections 4491 to 4495, inclusive, of the Eevised Statutes of Idaho.

<p>APPEAL from Distict Court, Latah County. W. G. Piper, Judge.</p>

Under section 2005 of the Revised Statutes the auditor must draw warrants on the county treasurer in favor of all persons entitled thereto . . , . for all debts and demands against the county, when the amounts are fixed by law and which are not directed to be audited by some other person or tribunal.” Under sections 1530-1532, the statute makes the duty as resting upon the assessor and tax collector mandatory, and in each of these three sections the word must” has a peculiar…

WEIT of error to District Court, Nez Perces County. The district attorney has the right to accept the services of ■assistant counsel, on the trial of a criminal action. (People v. Biles, 2 Idaho, 103, 6 Pac. 120; People v. Turcott, 65 Cal. 126, 3 Pae. 461; State v. Wells, 54 Kan. 161, 37 Pac. 1007.) And the district court has no power under section 7855 of the Revised Statutes of Idaho, to order the district attorney to close the argument.

This suit having been commenced in August, 1892, the provisions of title 4, sections 5125 to 5139, inclusive, of the Revised Statutes, constitute the law, then in force, applicable to the case at bar.

<p>Original proceeding in Supreme Court.</p> <p>No brief filed.</p>

The refusal of the court to admit the testimony of Z. F. Chenoweth, the plaintiff below, who undertook to state to the jury that he was hired by George F. Hardesty, whom he recognized and knew as the deputy sheriff acting under the sheriff, Donald R. Cameron. The court held that Mr. Chenoweth could not testify to any transaction between himself and Mr. Hardesty, not having pleaded it; this was error on the part of the trial court.

<p>APPEAL from District Court, Latah County.</p> <p>No briefs were filed or authorities cited by any of the attorneys upon the point decided by the court.</p>

It is a rule of law that if an absolute sale be made without continuing or creating a debt on the part of the vendor, but he merely obtains the privilege of purchasing, the transaction is a conditional sale. (Jones on Chattel Mortgages, 2d ed., pars. 26, 27.) The complaint alleges that the bill of sale was given as security, and that possession was surrendered at the same time, hence the transaction was a pledge.

“The rule that a party coming into court asserting one cause ■of action cannot recover on another and different one is ... . essential' to the orderly administration of justice and the protection of the rights of litigants.

<p>Practice — Dismissal of Appeal. — Where the transcript fails to show a compliance with the provisions of the statute or the rules of this court in the matter of appeals, the appeal will he dismissecL</p> <p>(Syllabus by the court.) '</p>

An original proceeding in the. supreme court, to settle a bill of exceptions under section 4432 of the Revised Statutes. No briefs filed. No argument made.

The indictment is defective in that it does not charge murder. In order to charge murder in the first degree, it must necessarily allege that the killing was done unlawfully, willfully and with deliberation, premeditation and with malice aforethought. That in the absence of such allegation it is fatally defective and does not charge murder. (Idaho Eev. Stats., secs. 6560, 6562; Leonard! v. Territory, 2 Wash.

The jury found, and it is a fact, that Iiodgman transferred the notes to Yan Ness fraudulently. Nevertheless they also saw proper to find that he did not participate in the fraudulent intent. But he was a mere voluntary grantee, and that is fraudulent per se.

The only evidence offered and claimed by the prosecution to prove a conspiracy is contained in plaintiff’s exhibit “C.” How any fair-minded person can claim this to be a conspiracy is-more than we can comprehend. A careful perusal thereof shows-that the defendant was approached by Hammon with a proposition to fire the place, but that he refused to have anything to ■do with it.

There are no authorities cited in their brief, the same being a statement of the case nearly the same as in the opinion, and a recitation of the evidence given on the trial.

The affidavit and notice of sale, under which the sheriff acted in taking possession of the drug stock in controversy, was competent and sufficient authority. It'is a statutory remedy given to the mortgagee of chattels by the Revised Statutes, sections-3390 and 3391, and upon receipt of such notice and affidavit it is mandatory upon the sheriff to act.

<p>APPEAL from District Court, Ada County.</p> <p>The entire action of the court in re-referring the matter to Mr. Wyman was wholly without authority of law, and the judg* ment herein rendered is based upon findings of fact and com •elusions of law which never had any legal existence. It will be seen that the referee was authorized to report findings of fact •and conclusions of law and judgment, and that his findings were to cover all the issues. This being true, the report of the referee when made and filed stood as the decision of the court. (Idaho Rev. Stats. 1887, sec. 4420; Peabody v. Phelps, 9 Cal. .213, 225; Brady v. Brown, 20 Cal. 521; Harris v. 8. T.- 8. B. Co., 41 Cal. 394-405; Lyons v. Harris, 34 Iowa, 292, 34 N. W. 865; Thompson v. Patterson, 54 Cal. 542.) Upon this decision being rendered and filed within ten days the defendants moved the court to set aside the findings and grant a new trial. This motion was filed May 4, 1892, which motion the court had power to entertain. (Jum Capee v. Brizzolora, 19 Cal. 607; Estee’s Pleadings, sec. 4726.) Findings of the referee after filing cannot he amended or added to. (Hedley v. Beed, 2 Cal. 325; Conklin v. Morion, 40 Ind. 76.) The court under no circumstances would have power to refer said matter without the knowledge or consent of defendant. (Joshua Ilendy Mach. Works v. Pacific Co., 99 Cal. 421, 33 Pac. 1084; Shainv. Petersen, 99 Cal. 486, 33 Pac. 1085 ) Findings of the referee cannot be set aside by the mere violation of the judge.. (Walker v. Campbell, 3 Idaho, 13, 26 Pac. 123; Goodrich v. Mayer, 5 Cal. 430; Bassett v. Mining Co., 15 Nev. 298.) After a referee, appointed to hear and determine has made his report,, he is without further power except to settle a case on appeal,, and the report cannot be sent back to him. (McCready v* Farmers' Loan etc. Co., 79 Hun, 241, 29 N. Y. Supp. 361; Holmes v. Evans, 13 N. Y. Supp. 610, 37 N. Y. St. Bep. 369;, Smith v. Warner, 14 Mich. 152.)</p> <p>There seems to be but two questions involved in this appeal,, and but two discussed in appellants’ brief, viz.: 1. Was the court authorized to remand the cause to the referee to find on all the issues ? and 2. Are the findings of the referee supported by the evidence ? The order remanding the cause to the referee-does not direct him to hear any further evidence, or argument, but simply to make findings on the evidence and argument already adduced. The district courts of this state being courts of record, and of general jurisdiction, their records import absolute verity and cannot be impeached except for fraud. A judicial record cannot be contradicted by parol testimony. (In. rc. Havird, 2 Idaho, 687, 24 Pac. 542.) Affidavits cannot be received to contradict, add to or amend the record, for it imports absolute verity. (Hoffmann v. Superior Court, 79 Cal.. 475, .21 Pae. 862.) Courts of such extended jurisdiction and grave responsibility as the district court must, from the very nature of the case, be trusted- as to the fidelity of their records. (People v. Judge, 9 Cal. 21.) A finding by a referee on part' of the issues cannot stand as the findings of the court, and before judgment can be properly entered on findings they must be upon or cover the whole issue. (Idaho Bev. Stats. 1887, sec. 4420.) The appellants did not reserve any exception to the-order of reference, nor to the order remanding the cause to the-referee, and they cannot now insist that either order was error. (Joshua Hendy Mach. Works v. Pacific Go., 99 Cal. 421, 33 Pac. 1084.) The case was not referred without the consent of the defendants; but, on the contrary, it was referred by agreement. In any event, the defendants having appeared before the' referee without objection their objection at this time comes too. late. (Shain v. Peterson, 99 Cal. 486, 33 PaC. 1085.)</p>

“A mining partnership exists when, two or more persons, who own or acquire a mining claim, for the purpose of working it and extracting the mineral therefrom actually engage in working the same.” (Rev. Stats., sec. 3300.) “It is not necessary that all the co-owners in a mining claim shall engage in working a mine, together or separately.

The question presented to the court is whether the complaint states a cause of action, and whether the act on which the complaint is based is valid. We submit that the act is valid and that the complaint having been based thereon and stated a cause of action, there was error in sustaining the demurrer and giving judgment for respondent. (Sess.

The compensation of sheriffs is provided for in article 18, section 7 of our constitution.

This was an action to contest the election of John Scott, nespondent, to the office of clerk of the district court in and for Bannock county. It appears that John S. Baker was regularly nominated on the Republican ticket for said office and that John Scott was the regular nominee on the Democratic ticket for said office and that John Scott was placed on the official ballot as the nominee of the People’s party and the Taxpayers’ party.

A plaintiff voluntarily commencing proceedings in a jurisdiction in which he does not reside certainly should not complain if the laws of the place selected by him to settle his differences with others are invoked in turn by those having claims •against him. Our statute contemplates service in a suit brought in the state upon a defendant found within the state limits. (Bev.

<p>APPEAL from District Court, Ada County.</p> <p>It will be seen by reference to the pleadings that this is an action brought by the county to recover money paid out upon an order of the board of county commissioners, from which order no appeal was taken. Our statute provides that an appeal may be taken from any order, decision or action of the board while acting in their official capacity bjr any person aggrieved thereby or by any taxpayer of the county where any demand is allowed against the county, or when any order, decision or action of the board is prejudicial to the public interest. This statute is broad and comprehensive, providing for an appeal from any order, action or decision in allowing illegal or prejudicial claims; and it would make no difference, so far as the application of the principle of law here invoked is concerned, whether the claims of Mr. Gess were wholly and totally illegal or not, as it would yet be necessary to review the matter by an appeal. This statute has always been interpreted, as we understand, to provide the only remedy for a review of the action of the board of county commissioners. (Idaho Rev. Stats., sec. 1776; Picotte v. Watt, 3 Idaho, 447, 31 Pae. 805; Meller v. Board of Commrs., ante, p. 44, 35 Pac. 712; Davis v.. Commrs., 4 Mont. 292, 1 Pac. 750; Morgan v. Board of County Commrs., ante, p. 418, 39 Pac. 1118; Rogers v. Hayes, 3 Idaho, 597, 32 Pac. 259; Broivn v. Otoe County, 6 Neb. Ill; Clark v. Dayton, 6 Neb. 192; Ragoss v. Cummings, 36 Neb. 375, 54 N. W. 683; State v. Churchill, 37 Neb. 702, 56 N. W. 484; Sioux County v. Jameson, 43 Neb. 265, 61 N. W. 596; Martin v. Supervisors, 29 N. Y. 645; Brady v. Supervisors, 2 Sand. 449; Brady v. Supervisors, 10 N. Y. 260; Boutetourt Co. v. Burger, 86 Ya. 530, 10 S. E. 264; Board of Warren Co. v. Gregory, 42 Ind. 32. J It was certainly proper under the law for the county to refuse to allow Mr. G-ess’ bills in excess of the amount which was due him according to their contention. There could be no reason or necessity under the statute for the allowance of these bills upon the part of the county, and then turn around and bring a suit for the recovery of them. In other words, we insist that the county board, having passed upon these bills and the payment having been made, that under the general rule that an action will not lie to recover for amounts paid under a mutual mistake of law, applies in this case. (Painter v. Polk County, 81 Iowa, 242, 25 Am. St. Pep. 489, 47 N. W. 65; Badeau v. United States, 130 U. S. 439, 9 Sup. Ct. Pep. 579; Randall v. Lyon County, 20 Nev. 35, 14 Pac. 583; Wley v. Miller, 7 Ind. App. 529, 34 N. E. 836; La Salle Co. v. Milligan, 143 111. 321, 32 N. E. 196; Bishop on Contracts, secs. 630, 631; Cox v. Mayor, 103 N. Y. 519, 9 N. E. 48; De Graff v. Board of Commrs,,46 Minn. 319, 48 N. W. 1135; Selby v. United States, 47 Fed. 800; Brumagim v. Tillinghast, 18 Cal. 269, 271, 79 Am. Dec. 176; Garrison v. Tillinghast, 18 Cal. 404, 407; Clark v. Dutcher, 9 Cow. 674; Mackey v. Fullerton, 7 Colo. 556, 4 Pac. 1198; Brummitt v. McGuire, 107 N. C. 351, 12 S. E. 191; Knobloch v. Zschwetske, 55 N. Y. Sup. Ct. Pep. 556.)</p> <p>The appellant herein, Thomas B. Gess, was assessor and tax ■collector of Ada county during the years 1891 and 1892. That as the revenue of the county was collected by him, he paid the entire amounts so collected over to the county treasurer, and at the several meetings of the board of county commissioners, held each year, presented to the board his bills for allowance, said bills being the percentage allowed by law. That said bills were allowed and warrants issued. That the aggregate amount of said bills for the year 1891 was the sum of $6,510.24, and for the year 1892 the sum of $7,955.12. That no part of said sums has ever been returned to Ada county. That demand therefor was made in behalf of said county prior to the commencement of this action. Judgment was entered in favor of respondent for $8,465.05 and interest. Section 7 of article 18 of the constitution provides that the assessor shall receive as compensation for his services not more than $3,000 per year. Section 8 of the same article provides that all fees and commissions received by such officer in excess of the maximum compensation shall be paid to the county treasurer for the use and benefit of the county. If the contention of counsel is correct, a great injustice was certainly done the defendant in Ada County v. Eyals, decided at the January, 1895, term of this court. In that case the officer’s fees came from individuals and from the county. His maximum compensation was exceeded by reason of fees as probate judge, clerk of the probate court and superintendent of public instruction exceeding the sum of $2,000 per year, and he was compelled to return the surplus. We urge the reasoning of the court in that case applies directly to the one under consideration. (Ada Co. v. Eyals, ante, p. 365, 39 Pac. 556.) This court has already decided that in no event and under no circumstances can an assessor receive a greater compensation than is provided for by section 7, article 18, of constitution. (Guheen v. Curtis, 3 Idaho, 443, 31 Pac. 805.) The powers of the county “can only be exercised by the board of county commissioners, or by agents or officers, acting under their authoritj', or authority of law.” (Rev. Stats., sec. 1731.) One of the tenets of statutory construction is that such a construction of the statute as will lead to absurdity should never be adopted. “The idea of a county appealing from the allowance of a claim made by its own court is simply ridiculous.” (Chicot Comity v. Tilghman, 26 Ark. 461, 463.) “The county commissioners’ court cannot bind the county by 'ordering a claim to be paid which is not made a county charge by statute, and by allowing more than the statute distinctly limits, or by an allowance in the face of a statutory prohibition.” (Shirh v. Puloslci Co., 4 Dill. 209, 213, 214, Fed. Cas. No. 12,794.) “No government has ever-held itself liable to individuals for misfeasance, laches or the unauthorized exercise of power by its officers and agents.” (Gibbons v. United States, 8 Wall. 269; Meehem on Public Officers, sec. 852; People v. Supervisors of New Torlc, 1 Hill, 362; Green’s Brice’s Ultra Vires, 58; 2 Dillon on Municipal Corporations, p. 1186, note 3; Cumberland County v. Edwards, 77 111. 544; Commissioners v. Moore, 53 Ala. 25; Peoria County v. Roche, 65 111. 77.)</p> <p>The defendant was elected assessor of Ada county, Idaho, on November 10, 1890, was regularly qualified, filed his official bond, entered upon the duties of his office, and acted as such assessor and collector during the years 1891 and 1892, and until the second Monday in January, 1893. During the year 1891 the defendant, as assessor and ex-officio• tax collector of said Ada county, filed accounts against Ada county for the sum of $6,510.24 for services as such officer during the year 1891. Said accounts were allowed by the board of county commissioners of said county, and defendant, received from the auditor of said county, warrants to the amount of the above-named sum. Defendant still retains the sum of $6,510.24. During the year 1892 the defendant, as such assessor and ex-officio tax collector of said county, filed with the board of county commissioners of said county, for services rendered as such officer, bills and accounts amounting to the sum of $7,055.12, which said bills were allowed by the board, and warrants therefor issued to said assessor, which warrants were paid by the county treasurer. Demand was made upon the defendant by the plaintiff for the sum of $4,055.12 of said money so received and retained in the year 1892. Demand was also made upon said assessor for the sum of $3,510.24 of the amount received by him in the year 1891. Defendant refuses to pay over to said county any part of the money so demanded, and the county now claims that the defendant is indebted to it in the sum of $8,465.36, also for the sum of $1,059.17, interest on said sum last above mentioned from tlie time of the commencement of this action. This suit was commenced on the twenty-third day of November, 1893. Cause was tried before the court, a jury having been waived by the parties, resulting in a judgment in favor of the county for the sum of $9,525.33, with interest thereon at the rate of ten per cent per annum from the date of the judgment until paid, together with plaintiff’s costs and disbursements incurred in the action, amounting to the sum of $13.85. Judgment was rendered against the defendant March 1, A. D. 1895. From this judgment the defendant appeals to this court.</p>

<p>APPEAL from District Court, Ada County.</p> <p>This action is brought by plaintiff to recover from defendant the sum of $12,100, claimed to ■ be due on account of the burning of the Central Hotel in Boise City, in August, 1893. The defendant at that time had a contract with Boise City under the terms of which it was bound to furnish a sufficient supply of water, under sufficient pressure, for extinguishing fires in said Boise City. On August 1, 1893, a fire started in the Central Hotel in said Boise City, which, under ordinary circumstances, could easily have been extinguished; but, by reason of the defendant having rented out its water for irrigating and other purposes, there was not a sufficient supply of water in the mains of the company to use for fire purposes, and in consequence thereof, plaintiff’s said building burned, entailing a loss upon him as before stated. The only point involved in this appeal is whether or not a citizen of a municipality can sue for and recover damages sustained by reason of a failure of a person or corporation to comply with the terms of a contract made with the municipal authorities, agreeing to furnish water to the city and its inhabitants for fire purposes. We contend the contract made with a municipality for such purpose is made for the benefit of all its inhabitants. We cannot understand what binding force such a contract has, or what responsibility attaches to the person or corporation contracting to furnish the water supply, unless the resident injured by the failure to comply with the terms of the contract has the right to sue for damages sustained. On this point we refer the court to the well-considered case of Paducah Lumber Oo. v. Paducah Water Co., 89 Ky. 340, 25 Am. St. Bep. 536, 12 S. W. 554, 13 S. W. 249.</p> <p>“There is no privity of contract between a citizen or resident and the water company as will authorize him to maintain an action against it for injury or destruction of his property by tire, caused by a failure of the water company to fulfill its contract.” (Mott v. Cherryvale Water Co., 48 Kan. 12, 30 Am. St. Bep. 267, 28 Pac. 989; Howsmon v. Trenton Water Co., 119 Mo. 304, 41 Am. St. Bep. 654, 24 S. W. 784; Anderson v. Fitzgerald, 21 Fed. 294; Davis v. Clinton Water Works Co., 54 Iowa, 59, 37 Am. Bep. 185, 6 N. W. 126; Wainwright v. Queens County Water Co., 78 Hun, 146, 28 N. Y. Supp. 989; Aetna Nat. Bank v. Fourth Nat. Bank, 46 N. Y. 82, 7 Am. Bep. 314; Qarnsey v. Rogers, 47 N Y. 233, 7 Am. Bep. 440; Vrooman v. Turner, 69 N Y. 280, 25 Am. Bep. 195; Turk v. Ridge, 41 N. Y. 207; Merrill v. Green, 55 N Y. 270; Simson v. Brown, 68 N Y. 355; Becker v. Keokuk Waterworks, 79 Iowa, 419, 18 Am. St. Bep. 377, and note, 44 N. W. 694; 29 Am. & Eng. Corp. Cas. 397, and note, 381; Clark v. Des Moines, 19 Iowa, 212, 87 Am. Dec. 423; McPherson v. Foster, 43 Iowa, 57, 22 Am. Bep. 215.) No power is given to the city of Boise to make a contract of indemnity directly and expressly for the benefit of an individual taxpayer that would entitle him to sue for a breach of it; consequently, the contract in this case cannot receive •such a construction and cannot have added to it by implication a condition which was not contemplated by the parties to the contract at the time it was made, and which would have been beyond the power of the city to have entered into. (Mott v. tCherryvale etc. Co., 48 Kan. 12, 30 Am. St. Bep. 267, 28 Pac. 989.) The furnishing -of water by a city to afford protection from fire is solely a governmental duty assumed exclusively for the benefit of the public. The city is not legally bound to afford such protection to its citizens, and is not hampered by the rule of responsibility to individuals for the careless performance thereof, by its officers or agents. (Mayor of New Yorlc v. Workman, 67 Fed. 348.) “A contract between a city and a water company, whereby the latter agrees to furnish water for the extinguishment of fires, does not give a private person,, whose property is burned up through failure to furnish water, any right of action therefor against the company, since he is no party to the contract.” (House v. Houston Waterworks Go. (Tex.), 22 S. W. 277; Fitch v. Seymour Water Go., 139' Ind. 214, 47 Am. St. Rep. 258, 37 N. S. 982; Ferris v. 0 arson-Water Go., 16 Nev. 44-47, 40 Am. Rep. 485.)</p>

<p>Mandamus — When Writ will not Issue. — Writ of mandate will not issue where there is a plain, speedy, and adequate remedy at law.</p> <p>Where Writ must be Applied for. — The writ must be applied for in the first instance from the district court, unless there appears some reason which renders it indispensable that application should be made directly to the supreme court.</p> <p>Against Whom the Writ will Issue. — Where the writ is sought to compel the commissioners of a county to perform an official act, the respondents must be de facto officers of such county at the time such writ is to issue.</p> <p>Constitutionality of Legislative Act cannot be Determined in Mandamus Proceedings. — The constitutionality of an act of the legislature cannot be determined collaterally by the court in an application for a writ of mandate by a private party to enforce a private right.</p> <p>(Syllabus by the court.)</p>

<p>Prohibition — When Wbit will Issue. — The writ of prohibition is. the counterpart of the writ of mandate and subject to the same conditions. It will not issue where there is a plain, speedy, and adequate remedy at law.</p> <p>Writ will not Issue Where Issue is Only Collateral. — The constitutionality of an act of the legislature will not be passed upon in an application for writ of prohibition in a case where it is. not directly in issue and is only collateral to the questions in issue as shown by the petition.</p> <p>(Syllabus by the court.)</p>

<p>APPEAL from District Court, Latah County.</p> <p>As to the motion to dismiss because the record does not show entry of judgments. In the case of Durant v. Comegys, 3 Idaho, 67, 35 Am. St. Rep. 267, 26 Pac. 755, Mr. Justice Morgan simply decided that the alleged judgment appealed from was simply “an order for judgment only.” In the cases at bar, the judgments were actually drawn up in the form in which it was designed to be entered, signed by the judge and filed by the clerk, and nothing remained to be done except the mere ministerial duty, to be performed by the clerk, of copying it into the judgment-book. It was a judgment of the court. (Sawyer, J., in Genellee v. Reylen, 32 Cal. 160; 1 Bloch on Judgments, sec. 110.) Public officers are presumed to have performed their duty as required by law until the contrary appears. (People v. Smith, 59 Cal. 367; Rev. Stats., see. 4454 j 19 Am. & Eng. Eney. of Law, 49.)</p> <p>The specifications ot errors in the statement are not, except the first, sufficiently specific to present any question for the court’s consideration. (Wilson v. Wilson, 45 Cal. 495; Harding v. Vanderwater, 40 Cal. 78; Haggin v. Ciarle, 28 Cal. 165; Rev. Stats. 18'87, sec. 4441, par. 3.) There being no errors assigned in the brief according to paragraph 1 of rule 6, except said specifications in the statement, and the first of those being immaterial, and the others insufficient, there is no question before the court. The statement on motion for a new trial cannot be used, because it is not certified and signed by the judge. Hence the statement is insufficient and the agreed facts cannot be considered. (Schrieber v. Whitney, 60 Cal. 431; Adams v. Dohrmann, 63 Cal. 418; Gee v. Terrio, 55 Cal. 381.) The transcript does not show the entry of any judgment below, hence the appeal from the judgment should be dismissed. (Durant v. Gomegys, 3 Idaho, 67, 35 Am. St. Rep. 267, 26 Pac. 755.)</p>

The board of county commissioners of Logan county, disallowed the claim of appellant against Logan county for services as attorney for Logan county, amounting to $3,692, as shown by the itemized bills appearing in the transcript. The ■ease was tried in the district court without a jury, and judgment was entered in favor of appellant for the sum of $832, and against him for any greater amount.

<p>APPEAL from District Court, Sbosbone County.</p> <p>No brief filed on rehearing of motion to dismiss.</p>

<p>Levy of Writ of Attachment — Chattel Mortgage — Priority of Lien — Possession and Custody of Property. — Under the levy of a writ of attachment on personal property, if the custody and possession thereof is such as to enable the officer to hold the property and subject it to the order of the court issuing the writ, it is sufficient to create a lien thereon prior to a lien of a chattel mortgage executed and filed subsequent to making the levy of the writ, but prior to taking actual possession of all of the property on which said writ was levied, provided the officer proceeds with reasonable diligence to reduce all of such property to his actual possession and does so reduce it.</p> <p>(Syllabus by the court.)</p>

<p>Original proceeding by writ of review.</p> <p>In so far as the judgment purports to find D. B. Levan guilty of contempt and to assess a fine against him in the sum of $25 no complaint is laid, but we contend that that portion of the judgment purporting to assess damages to the sum of $298.25 is wholly void and that the court had no jurisdiction to render any such judgynent. In other words, that the sole power of the court in contempt proceedings is defined by our statute and is limited to a fine and imprisonment. This portion of the judgment being void, and being, as we contend, in •excess of the court’s jurisdiction, the proper way to review the -contempt proceeding is by writ of review or certiorari. (State v. Fourth Judicial Dist., 13 Mont. 34-7, 34 Pac. 39; In re Shortridge, 99 Cal. 526, 34 Pae. 227; State v. Reed, 3 Idaho, 554, 32 Pac. 202; Curtis v. Richards, 4 Idaho, 434, 40 Pac. •57; In re MacKnight, 11 Mont. 126, 28 Am. St. Rep. 451, 27 Pac. 336; Barry v. Superior Court, 91 Cal. 486, 27 Pae. 763; Cooper v. People, 13 Colo. 337, 373, 22 Pac. 790.) A writ of review will lie when there has been an excess of jurisdiction. (People v. Johnson, 30 Cal. 98; Hybernia v. Superior Court, ■56 Cal. 265; California Ry. Co. v. Central Pao. Ry. Co., 47 Cal. 628.) When the court renders judgment for a larger-amount, or in excess of its jurisdiction, it will be set aside upon a writ of review. (Will v. Sinkwibz, 39 Cal. 570; In re Warring, 50 Cal. 30; Sargeant v. Davis, 36 Cal. 552.) Section 5164 of the Revised Statutes of the state of Idaho is the source-of power in contempt proceedings. The statute in relation to-contempt is a limitation upon the power of the courts to punish for contempt. {Galland v. Galland, 44 Cal. 475, 13 Am. Rep-167; Ex parte Sweeney, 18 Nev. 74, 1 Pac. 379; Maxwell v. Rives, 11 Nev. 213; Boyd v. State, 19 Neb. 134, 26 N. W. 925;. Vanzandt v. Mining Go., 2 McCrary, 644, 48 Fed. 770; Cooley on Torts, 493.) The court has no power to impose a fine or assess damages in a contempt proceeding for the benefit of' another party, either as disbursements or counsel fees, unless, there is an express provision of the statute to that effeet{O’Rouke v. Cleveland, 49 N. J. Eq. 577, 31 Am. StRep. 719, 25 Atl. 367; Eads v. Brazelton, 22 Ark. 499,. 79 Am. Dec. 88; Ex parte Henshaw, 73 Cal. 486, 15-Pac. 110; Worden v. Searls, 121 D. S. 14, 7 Sup. Ct. Rep-814; Kirie v. Milwaukee Mfg. Go., 26 Fed. 501.) The punishment prescribed by statute is a negation of all other modes of punishment. {Ex parte Robinson, 19 Wall. 205; United States v.- A. T. & F. S. Go., 16 Fed. 863; Vanzandt v. Argentine Min.. Go., 2 McCrary, 642, 48 Fed. 770; Hawes on Jurisdiction of Courts, sec. 223.)</p> <p>This court is without jurisdiction to hear and determine the issue herein involved upon a writ of review, plaintiff having a, plain, speedy, and adequate remedy at law, by appeal, or writ of error. “The supreme court has jurisdiction to review all decisions of the district courts, or the judges thereof, upon appeal.” (Const., art. 5, see. 9.) “Where the record brought up-by writ of certiorari shows upon its face no final judgment has-been entered in the court below, and that the cause is still pending there, the writ will be quashed.” (2 Spelling’s Extraordinary Relief, sec. 1894.) We submit that the record in terms shows an order for judgment only, does not show a final judgment and does not show any entry of judgment. “A certiorari will not lie where an appeal is allowed.” (Nevada Cent. B. Co. v. District Court, 21 Nev, 409, 32 Pac. 673; 2 Spelling’s Extraordinary Relief, sec. 1937; State v. Huston, 40 La. 434, 4 South. 131; State v. Monroe, 41 La. 314, 6 South. 539.) The limitation of punishment to fine and imprisonment does not prevent those courts from requiring costs (including attorney fees necessarily incurred by the plaintiff, in overcoming the resistance. of the defendant in contempt proceedings) to be paid. (In re Childs, 22 Wall. 169; Wharton’s Criminal Pleading and Practice, sec. 972; United, States v. Patterson, 26 Eed. 509; Doubleday v. Sherman, 8 Blatchf. 45, Fed. Cas. No. 4020; Stimpson v. Putman, 41 Yt. 238.) It is within the power of the court to decree the payment of the legal expenses of the suit. Legal expenses may well be included in this provision and this includes the fees to attorneys. (Ex parte Perkins, 18 Cal. ■60, 64, 66.) Plaintiff contends that the source of power in contempt proceedings is Revised Statutes, section 5164. We would say that this is not the source of power in contempt proceedings; the power is inherent in the court. Section 5164 is a limitation upon the power of the courts to punish for contempt. (In re Robinson, 19 Wall. 205; Ex parte Sweeney, 18 Nev. 74-78, 1 Pac. 379; Gotland v. Gotland, 44 Cal. 475, 13 Am. Rep. 167; State v. Morrill, 16 Ark. 384; Johnson v. Superior Court, 63 Cal. 579; Ex parte Adams, 25 Miss. 883, 59 Am. Dec. 234; State v. Matthews, 37 N. H. 450-453; In re Shortridge, 99 Cal. 526, 37 Am. St. Rep. 78, 34 Pac. 229.)</p> <p>Writ of review by D. B. Levan against the third district court in and for Boise county (J. H. Richards, judge) and ■others. Judgment modified.</p> <p>The petitioner was cited to appear before the court for contempt in disobeying the order of the court. He pleaded not guilty. An investigation was thereupon had, and evidence taken, with the result that the petitioner was found guilty of contempt of court. It was further found that in committing said contempt the petitioner had stopped or delayed the survey of mining property which had been ordered by the court; that in so doing he had danjaged the party making the survey, namely, John Ranson et al., plaintiffs in the suit of John Ban-son et al. v. D. B. Levan et al., as follows, namely:</p> <p>Services of surveyor........................$ 20 Off</p> <p>Services of chainmen...................... 12 00'</p> <p>Services of flagmen......................... 7 00-</p> <p>For meals................................ 4 25</p> <p>Services of two witnesses..................... 5 Off</p> <p>Fees of attorneys............................ 250 00-</p> <p>Total ................................ $298 25</p> <p>The said district court thereupon proceeded to assess a fine of twenty-five dollars upon the petitioner, D. B. Levan, and entered the following judgment, to wit: “Now, therefore,.in consideration of the premises, it is ordered and adjudged by the court that the said defendant, D. B. Levan, be fined in the sum of twenty-five ($25) dollars penalty, and the costs and disbursements of plaintiffs above mentioned herein, amounting in the aggregate to the sum of two hundred ninety-eight dollars and twenty-five cents ($298.25); and it is hereby further ordered and adjudged! that the said defendant, D. B. Levan, deposit with the clerk of this court, within ten days from the date of this order, the said sum of twenty-five ($25) dollars fine, and the said sum of two-hundred ninety-eight dollars and twenty-five cents ($298.25) costs and disbursements, with the clerk as aforesaid, and this sum shall be paid over to the attorneys of record of the plaintiffs herein, on their demand; and in case said sums, respectively shall not be so deposited within ten days as aforesaid, the clerk of this court shall, without further direction, issue a special execution against the property of the said D. B. Levanfor the collection of the same, and that, in addition thereto, the the plaintiffs herein may make application to the court, or judge thereof, for an order upon said D. B. Levan to show cause why - he should not be punished for contempt in failing to make such deposit, which said judgment was signed and recorded as judgment of said court.” No findings of fact or conclusion of law were made. The defendant in said contempt proceedings presents the case to this court for review.</p>

<p>APPEAL from District Court, Bear Lake County.</p> <p>The evidence shows that the plaintiff is the owner and holder of the notes sued upon, that it purchased the same in good faith for a valuable consideration, before maturity and in the -ordinary course of business, that the plaintiff had no notice, actual or constructive, of any fraud perpetrated upon the defendants either by the payee of the note or his agents. This is all the law requires plaintiff to do. (Daniels on Negotiable Instruments, 3d ed., sees. 166, 769a, 770; Meadowcraft v. Walsh, 15 Mont. 544, 39 Pac. 914, and cases there cited; National Revere Banh v. Morse, 163 Mass. 383, 40 N. E. 180.) The plaintiff's right to recover can only be defeated by showing that he had actual notice of the facts ’which impeach the validity of the paper. (Clark v. Evans, 66 Fed. 263; King v. Doane, 139 U. S. 166, 11 Sup. Ct. Rep. 465.)</p> <p>There is no pretense made against the position that these notes and mortgage 'were without consideration and had their inception in the grossest of fraud. Plaintiff says it has “nothing whatever to do with the question of fraud.” But such fraud was proven, and upon the introduction of 'evidence the burden of proof shifted to'plaintiff to show by a preponderance of evidence that it was an innocent holder for value, in good faith, before maturity, without notice of the fraud, and in the due course of business. (Daniels on Negotiable Instruments, 166, 769, 769a, 770, 810, 815, 876; Munroe v. Cooper, 5 Pick. 412; Jordan v. Grover, 33 Pac. 889, 99 Cal. 194; Joy v. Diefendorf, 130 N. Y. 6, 27 Am. St. Rep. 484, 28 N. E. 602; Merchants’ Nat. Bank v. Haverhill Iron Works, 159 Mass. 158, 34 N. E. 93; Fawcett v. Powell, 43 Neb. 437, 61 N. W. 586; Yosburgh v. Diefendorf, 119 N. Y. 357, 16 Am. St. Rep. 836, 23 N. E. 801; Thamling v. Duffey, 14 Mont. 567, 43 Am. St. Rep. 658, 37 Pac. 363; Smith v. Sac Co., 11 Wall. 39, 20 L. ed. 102; Stewart v. Langsing, 104 U. S. 505, 26 L. ed. 866.) The testimony of officers of a bank alone is not sufficient to take the question of bona fides from the jury. There questions of bona fides and fraud were properly submitted to the jury, who duly made their findings thereon, and such findings will not be disturbed or even reviewed by this court. {Bell v. Rankin, 1 Kan. App. 209, 40 Pac. 1094.)</p>

The decision in First National Bank of 'Wamego v. Bkinner is the decision in this case, the facts being the same, and heard and submitted at the same time. Action by John P. Johnson against Joseph Linford, Jr., and others.

This cause heard with case of National Bank of Wamego v. Skinner, and this ease follows the decision in that case. Action by the Bank of Troy against Joseph Linford, Jr., and. others. Judgment for defendants. Plaintiff appeals.

A deed absolute on its face, and a separate agreement by the grantee for a reconveyance of the same tract to grantor upon payment of consideration named in the deed by a specified time, bearing same date as deed, constitute together a mortgage.

This is an action for damages for the breach of an alleged contract to furnish water for the year 1892. There was a demurrer filed and overruled. Trial had, resulting in a verdict for plaintiff for $500; from the judgment on said verdict this •appeal is taken. The complaint does not state facts sufficient to constitute a cause of action.

The theory upon which the trial court refused to allow the Jury to decide this case was that the evidence shows the stock of this company to have been of some value. Therefore the defendants, to avoid payment of the note on the ground of fraud, would have to show they made a proper offer to return the stock after discovery of the alleged fraud; and that the evidence fails to show such proper tender.

To the amended complaint defendant filed bis demurrer, being a general demurrer to each count, and containing the further objection that the water master is not joined as a party defendant. The demurrer was sustained, generally, plaintiff refused to amend, and judgment by default was taken against her for one dollar and sixty-five cents costs.

The only question arising in this case addressed to the sound discretion of the court is, Was the sheriff in error in refusing to execute a deed to the premises at the end of six months, the period allowed for redemption under the old laws of Idaho, or was he justified in refusing to execute a deed until the expiration of twelve months after the sale of said premises? This brings us to a consideration of the Session Laws of Idaho of 1895 at page 34.

Is parol evidence of a contemporaneous oral agreement showing the conditions upon which a promissory note is given admissible P Or, in other words, can' the consideration be inquired into ? The point in the case at bar is not as to the language used in the note, but only as to the conditions on which it was given to plaintiff; in other words, the consideration may be inquired into, such consideration being concurrent parol agreements.

This action was commenced in the district court to foreclose mechanic’s lien on a certain quartz-mill and its appurtenances. Held: and I have found no decisions to the contrary, that the price agreed to be paid would be the value of the articles purchased or the ■services rendered, in the absence of evidence to the contrary.

Original proceeding applying for writ of prohibition. Application for writ of prohibition. No brief filed in the matter.

<p>Judge — Habeas Corpus — Order for Care and Custody During Pendency of Proceeding- — Signature of Clerk and Seal of Court — Contempt.—The district judge at chambers has all the powers of a court in habeas corpus proceedings. Under the provisions of section 8361 of the Revised Statutes the judge may issue an order for the temporary care and custody of the person alleged to be illegally restrained of his liberty, to continue until the hearing of the application for the writ of habeas corpus. Such order need not be issued by the clerk under the seal of the court. The signature of the judge is sufficient. The statutes in regard to the writ of habeas corpus must be liberally construed with a view to effect their object and promote justice.</p> <p>(Syllabus by the court.)</p>

WRIT of error from District Court, Latah County. Section 7848: After the jury is passed for cause, both parties alternately, beginning with the people, may take their peremptory challenges. But no challenge is lost by failure to alternate if the panel is opened by the other party: and each party is entitled to a full panel before exercising a peremptory challenge.

An original proceeding by writ of review, Latah County. This cause coming up on certiorari the inquiry should be-confined to a consideration of the authority of the district court to appoint an assignee of its own motion without consideration, of the wishes of the creditors. In brief, did the court below exceed its jurisdiction? (Sess.

PEOCEEDING by writ of review. No brief filed. Application by the state of Idaho, on the relation of Clay McNamee, district attorney, for the disbarment of George W. Goode. Defendant applies for a writ of review and a writ of mandate. Writ of review denied, and writ of mandate granted. This is an application for disbarment of the defendant, and the deprivation of his rights and privileges as an attorney and •counselor at law.

Perees County. The contention by defendant is that the verdict-was against law and evidence; that the only evidence against him is his possession of the property, of which he gives, not only a probable and reasonable explanation, but one which the state had the opportunity to contradict if not true.

Counsel for respondent filed a motion in the district court to dismiss the appeal. Said motion was based upon the grounds that no notice of the time and place of the justification of appellants sureties on appeal was ever served upon respondent or his counsel. It was error in the court in dismissing the appeal after all the steps necessary to give the court jurisdiction were complete. There existed no substantial or apparent defect in the undertaking or the justification.

There was evidence both oral and documentary introduced upon behalf of the plaintiff and defendant, and, after a long' and comprehensive, as well as specific, charge to the jury, the-jury returned a verdict for the plaintiff for the possession or for the sum of $1,810, the value of the property, and for $125 damages, and judgment was entered upon this verdict in the-usual form. A notice of intention to move for a new trial was made by the defendants.

Neither the constitution nor the statutes of Idaho give •county commissioners the power or authority to employ counsel to assist the district attorney in prosecuting criminal cases or to employ counsel to prosecute criminal cases at all. The hoard of county commissioners had no authority to employ an assistant counsel in this case, and the order as set out in appellant’s notice of appeal is ultra vires and void.

Appellant liad a recorded mortgage upon the crop of wheat, which was notice to everybody that his lien was paramount. Laborers have a right, by statute, to a lien upon property of this kind (Idaho Laws 1893 p. 60), but not a preferred lien. The law of which the page referred to is a part was passed in four “chapters.” Chapter 1, page 49, covers liens on buildings, etc., and section 5 defines the cases and to what extent lienors upon buildings are preferred.

No briefs filed. This was a suit brought on two promissory notes and a mortgage executed by the said defendant Fred Sutter. Default was entered against the defendant Sutter for want of answer on December 4, 1894. Defendants Chapman, E. E. Broekhausen, and Bernard E. Broekhausen filed their answer on November 24, 1894.

The court had ordered the witnesses subpoenaed; the defendant had paid for this, and the only question to determine was the right to charge the county with their expenses. (Idaho Const.; art. 1, see. 3; Idaho Sess. Laws 1893, p. 20; De Lano v. Board of Commrs., ante, p. 83, 35 Pae. 841.) The facts summarized are as follows: December 10, 1895, order made by judge directing that certain witnesses be subpoenaed for defense.

The only question arising in this ease is, Can the separate estate of a married woman be attached in an action upon a promissory note executed by her? All persons are capable of contracting except minors, persons of unsound mind, and persons deprived of civil rights. All property of the wife owned by her before marriage, and that acquired by gift, bequest, devise or descent is her separate property.

It appears from the testimony contained in the transcript that there was no actual change of possession in this ease. 'That Cunningham, who signed the checks, made up the payrolls and generally attended to the business of mining on this ■claim before the alleged assignment, continued, according to the testimony of the plaintiff’s witnesses to perform the same acts and functions afterward.

The court erred in giving to the jury the following instructions, to wit: “You are further instructed that while one person cannot make another his debtor without the consent of the latter, or -recover for services rendered for another without a request, express or implied, yet, if one stands by and sees another doing work for him, beneficial in its nature, and overlooks it as it progresses and does not interfere to prevent or forbid it, but appropriates such labor to-his…

This is an action commenced by plaintiff, praying for the issuance of a writ of mandate directed to defendant commanding him to allow the plaintiff sufficient water from canals under defendant’s control to irrigate during the year 1896 certain lands belonging to plaintiff lying under such canals.

The first cause of action of plaintiffs is based upon a warrant issued against the general fund of the city of Moscow in the year 1892, and that a mandamus was asked to compel the city treasurer to issue a call for and to pay this warrant out of the moneys in his hands derived from taxes levied and assessed under ordinance passed and approved on August 5, 1895.

The second point on which the court granted, the nonsuit was that the location notice and record of the Magpie claim failed to sufficiently describe the locus of the claim with reference to natural objects of permanent monuments as required by section 2324 of the United States Revised Statutes and section '3102 of the Revised Statutes of Idaho. On this point the evidence shows that John Brown, the locator, was unable to read or write.