Volume 5 — Arizona Reports

<p>1. Trial—Jury—Direction of Verdict—Test of Eight to.—In this jurisdiction the court may, in a proper case, direct a verdict; but, to authorize such action, the evidence and the reasonable inferences to he drawn therefrom must he insufficient to support a verdict in favor of the party having the onus of proof, so that if such a verdict is returned the court would feel compelled to set it aside.</p> <p>2. Eoads and Highways — Eights and Duties of Users — Ordinary Care—Negligence — Evidence—Direction of Verdict.—The right of a pedestrian and a horseman to use the public highway being equal, and both alike being under reciprocal obligations to exercise ordinary care,—the one to avoid doing injury, the other to avoid being injured,—it is error for the court to direct a verdict for the defendant where the evidence is, that the plaintiff was walking in the highway; that he had just passed over the ground where the road was soft and covered with straw, which deadened the noise of a horseman who rapidly approached from behind, riding at a furious gait, and, without any warning or attempt to turn to either side or cheek his horse, rode over and seriously injured plaintiff.</p> <p>3. Ordinary Care—Defined—Negligence—What Constitutes—Relative to Existing Circumstances.—Ordinary care is that degree of precaution which ordinarily prudent persons would exercise under like circumstances. The failure to exercise such care is negligence. Negligence is therefore never absolute or intrinsic, but is always relative to the existing circumstances.</p>

<p>1. Constitutional Law—Taxes and Taxation—Revenue Act, Rev. Stats. Ariz. 1887, Tit. 56, Valid—Harrison Act, 1st Stop. Rev. Stats. TJ. S., p. 503—Special Legislation Regulating Practice in Courts op Justice.—The revenue law of the territory providing that judgment may he entered in the district court for delinquent taxes, without the service of summons or notice thereof upon the owners of property on which the taxes are delinquent other than by publication, is valid and not in conflict with the provision of the Harrison Act, supra, providing that the territorial legislature shall pass no local or special act regulating the practice in courts of justice.</p> <p>2. Same—Same—Courts—Special Procedure to Collect Taxes.—The territory, through its legislature, can avail itself of the judicial power as the means by which it will collect the taxes; and in such proceedings it may prescribe such procedure as may best avail for that purpose, irrespective of the mode of procedure provided for the determination of controversies between individuals.</p> <p>3. Appeal and Error—Bill op Exceptions—Statement op Pacts— Evidence—Improper Admission op Parol.—Where the facts are not presented by the bill of exceptions, nor by a statement of facts in the record, error in admitting parol evidence as to facts which could only be established by the records of the board of supervisors cannot be considered.</p>

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

<p>1. Action—Parties—Beal Party in Interest—Assignees eor Collection Only—Eev. Stats. Ariz. 1887, Pars. 680, 681, Secs. 32, 33, and Laws 1893, Act No. 22, p.. 16, Amendatory Thereto, Construed.—The statute, supra, amending paragraph 680, supra, provides: “Every action shall be prosecuted in the name of the real party in interest; provided, an executor or an administrator, or a trustee of an express trust, or a person expressly authorized by statute, may sue without joining with Mm the person for whose benefit the action is brought. A person with whom or in whose name a contract for the benefit of another is made, and the assignee of any chose in action is a trustee of an express trust, within the meaning of this section.” Under this statute the assignee of an account for the purpose of collection only, as the holder of the legal title, can sue for and recover the whole amount thereof.</p> <p>Hawkins, J., dissents on the ground of failure of proof.</p>

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

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

APPEAL frcxn a judgment of the District Court of the Fourth Judicial District in and for the County of Mohave. John J. Hawkins, Judge. The facts are stated in the opinion.

<p>1. Ejectment—Bight to Maintain—Evidence of Transfer of Title by Plaintiff before Suit Piled.—Where the evidence of plaintiff in ah action of ejectment discloses that he had sold the property several months before suit was filed, and there is no evidence of a retransfer to or of present right of possession in plaintiff, judgment should be entered for defendant.</p>

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

R. E. Sloan, Judge. Statement of facts:—■ The appellee (hereinafter called the “plaintiff”) was injured in a collision between a work-train and a regular passenger-train on the railroad of appellant (hereinafter called the “defendant”) on August 24, 1890. At the time of the injury the plaintiff was in the employment of the defendant in the capacity of section foreman.

Joseph D. Bethune, Judge. Statement of facts:— This is an action upon the official bond of Manley S. Snyder, late tax-collector of Pima County, and his sureties. Manley 5. Snyder, the principal on the face of the bond, purports to be bound in the sum of twenty-five thousand dollars, and each of the ten sureties in the sum of five thousand dollars respectively.

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

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

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

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

Owen T. Rouse, Judge. Statement of facts:— John D. Walker died intestate in Napa County, California, about the second day of September, 1891, and at the time of his death was a resident of Pinal County, Arizona. On September 18, 1891, A. J. Doran was duly appointed administrator of Walker’s estate by the probate court of Pinal County, and duly qualified as such.

A. C. Baker, Judge. Statement of facts:—■ This is an action brought by the appellee, A. J. Peters, to recover of the appellant, the Consolidated Canal Company, the sum of five thousand dollars damages for the loss and destruetion of appellee’s crop of grain on section 17, township 1 south, range 5 east, in Maricopa County, for the crop-raising season of 1893.

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

Joseph D. Bethune, Acting Judge. Statement of facts:—■ The appellee, the Bashford-Burmister Company, commenced an action in September, 1893, in the district court of Yavapai County, against the Seven Stars Gold-Mining Company, to recover something over five thousand dollars.

<p>1. Brokers—Bead Estate Agent—Action for Commission—Evidence —Financial Besponsibility of Purchaser. — In an action to recover commission for services in selling real estate, it is error to exclude evidence of the financial responsibility of the buyer. Before a broker can be said to have earned a commission it must be shown that he produced a purchaser who was ready and willing to make the purchase on terms satisfactory to his employer.</p> <p>2. Same—Same—Contract—Construction. — A contract authorizing a real estate agent to negotiate for the sale of property “and to receipt for a deposit on such sale, . . . the price to be $5,000 lor such lower figure as you may agree to accept,” is Hot to be construed as requiring a sale for cash alone.</p> <p>3. Contracts—Construction.—Where a contract admits of two constructions, one of which nullifies the contract and the other upholds it, the former must be discarded and the latter adopted where it appears that the contract is reasonable and effects no injury to either party.</p> <p>4. Same—Same—Implications—Conformity to Usage.—Stipulations which are necessary to make a contract reasonable and conformable to usage are implied with respect to matters concerning which the contract manifests no contrary intention.</p> <p>5. Brokers—Beal Estate Agent—Action for Commission—Evidence —Quantum Meruit—Necessity for Written Contract.—In an action by a real estate agent for commission, it is error to exclude evidence of a written contract for such commission though the trial court offered to allow the plaintiff to prove the value of his services in selling the lots in question. To entitle the broker to recover commissions for effecting a sale of real estate, it is indispensable that he should show that he was employed by the owner to make the sale, and this employment must be in writing.</p>

<p>1. Office and Officers—County Treasurer—Duties—Salary as Ex Officio Tax-Collector—Laws 1889, Act No. 47; Laws 1891, Act No. 52; Laws 1893, Act No. 87, Sec. 4; Laws 1895, Act No. 51, Cited and Construed.—Act No. 47, Laws 1889, supra, and Act No. 52, Laws 1891, supra, made treasurers in all counties ex officio tax-collectors, and Act No. 87, Laws 1893, section 4, supra, fixed the salaries of treasurers, and provided “that no county treasurer shall receive any compensation other than in .this section provided.” In 1895, the counties were reclassified, Laws 1895, Act No. 51, supra, and the annual salary of the treasurers of' counties of each class as fixed therein were declared to he in full for services, except where otherwise provided. Upon putting Graham County into another class, the county treasurer thereof must continue to perform the same services theretofore required of him as ex officio tax-collector, and he cannot collect any other salary than that expressly prescribed by statute. .</p>

<p>APPEAL from a judgment of the District Court of the Third Judicial District in and for the County of Maricopa. A. C. Baker, Judge.</p> <p>Statement of facts:— '</p> <p>This was an action in the nature of a creditors’ hill in equity, asking that certain real estate and personal property claimed to be owned by defendant Laura E. Warren be subjected to levy and sale, to satisfy a judgment obtained by appellants in the district court of Maricopa County on the ninth day of March, 1893, against the appellee M. Y. Warren. The judgment obtained in Maricopa County was upon a judgment alleged to have been recovered in El Paso County, Colorado, against M. Y. Warren, on the ninth day of July, 1892. The complaint alleges, in substance: That, for a long time prior to the obtaining of this Colorado judgment, M. Y. Warren was engaged in large livestock business in Colorado and other states and territories in his own name, and represented to all persons with whom he transacted business that the assets of his business belonged to himself, and, from the manner of transacting his business, was enabled to, and did, obtain credit in many thousand dollars. That his wife, L. E. Warren, during all this time did not own, or pretend to own, any property whatsoever. The kind and character of property alleged to be owned by M. Y. Warren, with an estimate of his wealth, is set out in the complaint. At the time the indebtedness for which the judgments were obtained was contracted, and upon the faith of such possessions and representations, said Warren was permitted to contract such indebtedness. That a short time before the obtaining of the Colorado judgment, and after contracting the indebtedness, M. Y. Warren sold his property, and converted it into money, for the purpose of hindering, delaying, and defrauding his creditors, particularly Hall Bros., and went to Arizona with his wife; and, very soon thereafter, L. E. Warren, wife of said M. Y. Warren, purchased the Webb ranch and other property in Maricopa County, paying a large sum therefor in money, which she falsely pretended was her own separate property. That the money paid for said farm and property was not money which belonged to L. E. Warren, and was not her sole and separate funds, nor the proceeds of her sole and separate property, but was the sole and separate property of M. Y. Warren, or property acquired after the marriage of the Warrens other than by gift, devise, or descent to either of them. That the farm, etc., purchased in Maricopa County was either their common property or the sole and separate property of M. Y. Warren; and he unjustly refused to apply the same to the satisfaction of the Hall judgment. That at the time of the intermarriage of the Warrens, which was about thirty years prior to the commencing of this action, L. E. Warren had no property at all, and since her marriage had acquired no property by gift, devise, or descent, and had at all times lived with her husband. That M. Y. Warren, after selling his property as stated, placed the proceeds thereof in the hands of, and under the control of, his wife, with the intent and only purpose of hindering, delaying, and defrauding his creditors, and particularly Hall Bros. That such disposition of his property did hinder, delay, and embarrass them in collecting their debt. That they knew of no property in the name of M. V. Warren to make their debt. That whatever possession or control L. B. Warren exercised over the property described in the complaint was as agent or trustee for the benefit of M. Y. Warren, and was in fraud of the rights of Hall Bros. The value is alleged, and that the Warrens were making efforts to sell the said property for the purpose of further hindering, delaying, and defrauding their creditors, particularly Hall Bros. That the false claim of L. E. Warren to be owner of said property was a serious obstruction to the levy and sale of the same for the purpose of satisfying Hall Bros.’ execution, and if such obstruction was permitted to continue, it would render their judgment ineffectual. Plaintiffs ask to be permitted to examine the Warrens as to their property, etc.; that the obstruction or claim of L. E. Warren to the property be removed, and she be declared a trustee holding such property for the benefit of M. Y. Warren; and that she surrender the same, and it be sold to satisfy the judgment against M. Y. Warren, ete.; for an injunction and general relief.</p> <p>The Warrens in answering deny generally and specifically all the material allegations of the complaint, and allege, in substance, that they were married in Missouri in 1859, when M. Y. Warren was the owner of no property; that, at the time of the marriage L. E. Warren owned property devised to her by her mother of the value of three thousand dollars; that the property was changed into money, and was her sole and separate property; that afterwards, in 1871, said money was invested in cattle by her in the state of Colorado; that in 1883 the investment made by her with the profits was of the value of about forty thousand dollars; that in said year 1883 she sold her property, and the proceeds, consisting of notes, amounted to forty thousand dollars; that the notes were not paid when due, and the property was returned to L. E. Warren, who afterwards, in 1887, sold the same for forty thousand dollars, receiving notes therefor, and ever since, the same, and the proceeds thereof, have been in her absolute control, and she claimed the same as her sole and separate property; that at the times of such sales the Warrens were free from debt; and M. Y. Warren was not indebted to Hall Bros, or to any one; that in 1890 they came to Arizona, and, with the sole and separate property of L. E. Warren, she purchased the land described in her answer for seventy-five hundred dollars and one thousand dollars worth of cattle and horses, and that the same was her sole and separate property; that there was no community property, and M. Y. Warren had no separate property. Much testimony was introduced by the plaintiffs showing how M. Y. Warren conducted business in Missouri, Colorado, and other places, which tended tó carry out the allegations of the complaint; and by the Warrens showing that L. E. Warren received an estate in Missouri, by inheritance, years ago, both from her mother and grandmother, the proceeds of which were invested as alleged in the answer of the Warrens. The court below found the issues on the merits in favor of the Warrens, and the Halls appeal.</p>

A. C. Baker, Judge. Statement of facts:— The suit was filed on date of June 18, 1896. The defendant interposed a demurrer to the complaint.

<p>1. National Banks—Taxes and Taxation—Shares—Bev. Stats. IT. S., Sec. 5219, Cited and Construed—Territorial Act (Laws Ariz. 1898, Act No. 85, Approved April 13, 1893), in Conformity Therewith, Valid.—The power to tax national bank associations as fixed by section 5219, supra, is confined and limited to the shares of such associations, and such shares may be included in the valuation of the personal property of the owners and holders of such shares. The same taxes may be imposed on such shares as are imposed by the authority of the state on other personal property. The limitations on the power to tax such shares are: 1. “That the taxation shall not be at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such state,” and 2. “That the shares of any national banking'association, owned by non-residents of any state, shall be taxed in the city or town where the bank is located, and not elsewhere.” The statute of Arizona, supra, providing for the taxation of shares of national bank stock complies strictly with said act of Congress.</p> <p>2. Same—Same—Same—Failure to Tax Shares of Building and Loan Associations—Individual Money-Lenders—Does Not Affect Validity of Tax.—The failure of the Bevenue Act of Arizona to provide for taxing’the shares of building and loan associations and of money of private citizens loaning money does not make the tax in question illegal.</p> <p>3. Same—Same—Same—Assessment as Personalty—Valid—Laws Ariz. 1893, Act No. 85, Approved April 13, 1893, Cited and Construed.—The assessment of shares of national bank stock as personal property, substantially in conformity with the law for the assessment of other personal property, is valid, though the act of April 13, 1893, specially prescribed a mode for the assessment of such shares, the purpose of such latter act being to provide a mode of ascertaining the ownership of such property, to the end that it might be assessed.</p> <p>Baker, C. J., dissenting.</p>

Owen T. Rouse, Judge. Statement of facts:— On the eighteenth day of March, 1895, Noyes B. Allyn made application before the United States land office at Tucson for a patent for the Mohawk mining claim, situated in Pinal County, Arizona. Within the time allowed by law, the appellees filed in the land office their adverse claim to a portion of the ground, asserting it to be a part of the New Year mining claim, which was owned by them.

<p>1. Public Lands— Pre-emption — Patent — Cancellation — Known Minerals—Mines and Mining—Eev. Stats. TT. S. Sec. 2258, Construed.—Under section 2258, supra, tlie existence of salines or minerals must be known at the time of entry to defeat a patent acquired under the Pre-emption Act. A suit to cancel a patent issued under a pre-emption cash entry cannot be sustained where the evidence fails to show that any known mineral deposit of any value existed on the land in question at the date of entry, though it does appear that the land contains some mineral which has proven unprofitable to work.</p> <p>2. Same—Same—Same—Same—Pleading—In Bar—Laches.—A plea in bar of the lapse of time from the entry of the land to the time of the institution of a suit by the United States to cancel a pre-emption patent, showing that suit was commenced twelve years after the cause of action accrued, and that during that time innocent purchasers acquired interests in the land, should be sustained.</p>

A. C. Baker, Judge. Statement of facts:—■ On July 5, 1892, the appellee, Daniel Noonan, filed his complaint in the district court of Maricopa County against the appellant 'W. T. Gray as sheriff of said county, on the official bond of said Gray, and against the other appellants as his sureties on said bond. Two separate causes of action were set up in said complaint.

<p>1. Criminal Law—Murder—Evidence—Dying Declarations—Foundation-—Sufficiency.-—Testimony that decedent passed witness’s house, one hundred and fifty feet from decedent’s home, five or ten minutes before witness heard shots in that direction, and that immediately witness opened the door and heard decedent at witness’s gate calling him; that decedent came to witness’s house and sank down on the ground apparently badly wounded; that witness assisted decedent to lie down and called for help; that decedent ex- , claimed at the time, “I am shot through and through,” “I am full of blood and can’t live ten minutes”; that decedent then made a statement-as to how the shooting occurred, and immediately after-wards became unconscious and so remained until he died, an hour and a half later, coupled with other testimony showing that defendant and decedent’s wife were at decedent’s home, occupying suspicious' relations, at the time he entered, is sufficient foundation for the introduction of such dying declarations.</p> <p>2. Same—Same—Same—Same-—Same—Must Be Made under Sense of Impending Death.—It is essential to the admissibility of dying declarations, and is a preliminary fact, to be proven by the party offering them in evidence, that they be made under a sense of impending death; but it is not necessary that they should be stated at the time to be so made. It is enough if it satisfactorily appears in any mode that they were made under that sanction. The length of time which elapsed between the declaration and death furnishes no rule for the admission or rejection of the testimony, though it may serve as evidence as to deceased’s belief that his dissolution was or was not impending.</p> <p>3! Same—Same—Evidence—Instructions—Defendant Trespasser.— An instruction, based upon evidence tending to show that at the time of the shooting defendant was at deceased’s house occupying suspicious relations with deceased’s wife, using the expressions “a trespass” and “a trespasser” with reference to the conduct of the defendant, and with reference to the defendant being at the house, is proper.</p> <p>Hawkins, J., dissenting.</p>

Owen T. Rouse, Judge. Statement of facts:— This action was commenced by appellees, plaintiffs below, in the district court of Graham County, Arizona, by complaint filed March 8, 1895, asking that the title to certain lands therein described, amounting to one hundred and twenty aeres, be adjudged to appellees, alleging that appellant and her co-defendants claimed an interest therein adverse to appellees.

<p>1. Criminal Law—Libel—Kev. Stats. Ariz. 1887, Penal Code, Pars. 405, 1818, 1833, Cited and Construed—Judgment—Imprisonment Till Payment oe Pine — Void — Illegal Imprisonment — New Trial—Dismissal,—Paragraph 405, supra, provides: “Every person who willfully, and with a malicious intent to injure another, publishes or procures to be published any libel, is punishable by a fine not exceeding five thousand dollars or imprisonment in the territorial prison not exceeding one year.” Paragraph 1833, supra, provides that if the judgment be a fine, the fine can be collected by an execution issued upon such judgment, as on a judgment in a civil case. Paragraph 1818, supra, provides: “A judgment that the defendant pay a fine, may also direct that he be imprisoned until the fine be satisfied, specifying the extent of the imprisonment, which must not exceed one day for-every dollar of the fine.” Under the statutes a judgment upon conviction for criminal libel that the defendant “be fined in the sum of one thousand dollars, and that he be delivered or remanded to the custody of the sheriff of the county of Pima, territory of Arizona, until said fine is paid,” is void, and it appearing that defendant under said judgment has been compelled to perform a pdrt of said illegal judgment, he cannot be tried again, and the case will be dismissed.</p>

<p>1. Appeal and Error—Review—Preponderance op the Evidence— Rev. Stats. Ariz. 1887, Par. 834, as Amended by Laws 1893, No. 21, Approved March 22, 1893.—Under the statute, supra, providing that “upon the general ground that the evidence does not sustain the judgment or the verdict, the court shall review the sufficiency of the evidence in the ease to maintain the judgment or verdict without more particularly specified in the motion,” where all the testimony is set out in the statement of facts, this court on appeal from order overruling motion for new trial will review the evidence, and where the preponderance is decidedly against the judgment it will he reversed and a new trial ordered.</p> <p>Baker, C. J., dissenting.</p>

Joseph D. Bethune, Judge. Statement of facts:— This was an action of forcible entry and detainer, commenced before the justice of the peace of Tucson Precinct, appealed to the district court. On the 17th of August, 1894, Sullivan was indebted to the appellees in the sum of $1,361. To evidence and secure this debt, appellees had the promissory note of appellant and a mortgage on the real estate in controversy.

<p>1. Bonds—Funding Act—Act Congress June 6, 1896, Sec. 1, Being 29 Stats. 262, Construed—January 1, 1897, not Limit upon Sale.—The act of Congress, supra, approved June 6, 1896, authorizing the funding of all outstanding obligations of the territory of Arizona, and the counties, municipalities, and school districts thereof, until January 1, 1897, authorizes the funding of all obligations which existed and were outstanding prior to January 1, 1897. Said date is not a limitation upon the sale and disposition of bonds for funding purposes.</p> <p>2. Same—Same—Same—“Issue” Defined.—The term “issue,” as used in the Funding Act, means the arbitrary date fixed as the beginning of the term for which bonds are to run, without reference to the precise time when convenience or the state of the market may permit of their sale and delivery.</p> <p>3. Same—Same—Board of Loan Commissioners—Continuous Body— Change of Personnel—Does not Affect Bonds “Issued.”—The board of loan commissioners is by law made a continuous body, and a change m the personnel of the board, occurring after the execution of bonds and their delivery to the treasurer, cannot affect the validity of these completed acts.</p> <p>4. Same—Same—Negotiation—Power of Successors in Office to Negotiate Bonds Issued by Predecessors.—Bonds signed by the proper officers at their date can be negotiated and sold by their successors in office when there existed authority in the former to issue bonds at the time of signing, and when the authority was continued to the time of delivery.</p> <p>5. Same—-Same — ÍSiegotiation— Bonds Issued—Form—Execution — Sufficiency.—Under existing law, the loan commissioners and the territorial treasurer have power and authority to sell and dispose of bonds to fund outstanding obligations of the territory which accrued prior to January 1, 1897, and no new issue of bonds is needed for that purpose; those now in the hands of the territorial treasurer, and signed by the former territorial officials, being in all respects as to form and execution as provided by law.</p>

<p>1. Appeal and Error—Assignment of Error—Sufficiency—“Contentions”—Laws 1897, Act No. 71, Approved March 18, 1897, Cited ■—Rules of Court Cited—Error Apparent on Face of Record.— The aet, supra, provides that the brief of appellant shall contain a distinct enumeration in the form of propositions of the several errors relied on, and all errors not assigned in the printed brief shall be deemed to have been waived. The rules of this court, supra, likewise provide that all assignments of error must distinctly specify each ground of error relied upon. What are termed “contentions” in the brief of counsel for appellants do not meet the provisions of said statute or rule, and, no error being apparent on the face of . the record, the judgment of the court below is affirmed.</p>

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

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

<p>1. Office and Officers—Court Commissioners not County officers —Fees and Salary—Habeas Corpus—Eev. Stats. Ariz. 1887, Pars. 647, 1967, 577, Construed.—A court commissioner, appointed pursuant to paragraph 6-47, supra, whose compensation is fixed by paragraph 1967, supra, at four dollars for each day employed, and fifty cents for each order, is not a county officer, and therefore Is not within the provisions of paragraph 577, supra, relating to salaries and fees of county officers, providing “no fee or compensation . . . must be charged ... by any officer . . . for services rendered upon habeas corpus.’’</p> <p>2. Same—County Officers — Fees —■ Salary — Habeas Corpus—Eev. Stats. Ariz. 1887,' Par. 577, Construed—Benefit of Petitioner.— Paragraph 577, supra, is a provision for the benefit of those who may apply for the writ of habeas corpus, and is not intended to be an immunity of the county from paying county officers for such services.</p>

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

1. Appeal and Error—Review—Conflict of Evidence—Criminal Law —Assault with Intent to Commit Murder—Defense—Voluntary Drunkenness—Instructions.—Where the defense to a prosecution for assault with intent to commit murder is voluntary drunkenness, and the jury, being correctly instructed that such drunkenness, if proved, may be considered for the purpose of determining whether the accused at the time of the alleged offense was capable of forming the specific intent necessary to…

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

<p>1. Taxes and Taxation—Evidence—Becitals in Tax-Deeds—Daws 1893, Act No. 84, Secs. 20 and 22, Cited—Prima Facie Evidence— Filing Affidavit—Notice of Intention to Apply for Tax-Deed —Service on Owner.—Becitals in a tax-deed that the plaintiff and grantee has filed with the treasurer an affidavit showing that notice was served upon Katzenstein (the person owing said taxes) as is by law in such cases required, are only prima facie evidence, under section 22, supra, that an affidavit was filed, but are no evidence of the contents of the affidavit or the notice, or that the notice was served upon the owner of the property, as is required by section 20, supra.</p> <p>2. Same—Tax-Deeds—Service of Notice of Intention to Apply for —Must Be on Owner.—The person to whom land is taxed is not the proper person upon whom to serve notice of intention to apply for a tax-deed when the statute requires it to be served upon the owner of the land.</p> <p>3. Same—Evidence—Becitals in Tax-Deeds-—Must Becite Substance of Affidavit and Notice.—Becitals in a tax-deed, to dispense with supplemental evidence, that notice had been served, should recite the substance of the affidavit, and the affidavit should show the contents of the notice.</p> <p>4. Same—Tax-Deeds—Judgment—Against Holder—Failure to Adjudge Befund of Money Paid—Laws 1893, Act No. 84, Sec. 26, Construed—Appeal and Error—Modification.-—Where the judgment in favor of a successful claimant of land sold under tax-deed fails to provide for payment to tlie holder of the tax-deed of the moneys expended by him, as provided in section 26, supra, it will ion appeal, if there is no other error, be modified to that extent.</p> <p>5. Witnesses—Bees—Mortgage—Rev. Stats. Ariz. 1887, Par. 1982, Construed—Voluntary Witnesses—Subpoena—Duty to Attend Outside County.—The fee-bill for attendance and mileage of witnesses, paragraph, 1982, supra, applies only to witnesses who come in response to subpoena. Witnesses served without the county are not required to attend beyond the limits of the county where they reside, nor to obey a subpoena for attendance outside of their own county, and in attending court out of their own county their attendance is voluntary, and they are not entitled either to per diem or mileage.</p> <p>6. Same — Same — Same — Party — Husband or Wipe — Community Property.—A party to a suit is not entitled to witness-fees, nor is a husband or wife entitled to fees while attending court as a witness for each other as parties in a suit involving the property of either not shown to be other than community property.</p>

<p>APPLICATION for a Writ of Error Coram Nobis. Dismissed.</p>

<p>1. Pleading—Demurrer—Separate Answers—Judgment on Pleading. —In an action of ejectment it is error for the trial court, upon sustaining a demurrer to a separate defense of an answer, to grant a motion by plaintiff for judgment on the pleadings, where there still remains a plea of “not guilty” and a plea of the statute of limitations.</p> <p>2. Same—Answer—Sufficiency — Heal Property — Oral Executory Contract to Convey Land Partly Executed—Statute of Frauds —Possession—Improvements.—An answer to a complaint in ejectment states facts sufficient to constitute a good defense where it alleges a part performance of an oral executory contract for a deed to the land described, taking it out of the statute of frauds, and that the party making the defense has been in the notorious and exclusive possession of the property under the contract, and in pursuance of the same has made lasting and valuable improvements thereon.</p>

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

<p>1. Criminal Law—Appeal and Error—Laws 1897, Act No. 71, Does not Apply to Appeals in Criminal Cases.—Act No. 71, supra, “relating to appeals and writs of error from the district and circuit courts of the territory of Arizona to the supreme court,” has no relation to appeals in criminal eases.</p> <p>2. Same—Same—Same—Practice—Change in—Murder—Review upon Imperfect Record—Rev. Stats. Ariz. 1887, Penal Code, Par. 1880, Cited.-—An appeal in a criminal ease being erroneously taken under act No. 71, supra, this being the first session of the supreme court after the passage of the act, and paragraph 1880, supra, providing that the appellate court in criminal cases shall look into the record, and that the appeal shall not be dismissed if sufficient matter be contained in the record to enable the court to decide the cause on its merits, this court will not dismiss the appeal, or examine only into the indictment and judgment, where the charge is murder.</p> <p>3. Same—Grand Jury—Charge.—A charge to the grand jury, calling their attention to a recent jail-breaking in which a citizen had lost his life, and asking that they investigate all of the circumstances pertaining thereto, and to make an early report, but containing no reference to the defendant, subsequently indicted by such grand jury for the murder of the citizen, is not error.</p> <p>4. Same—Trial—Shackling Prisoner—Harmless Error.—The shackling of a lawless, desperate character upon his first arraignment for murder is not reversible error where the record shows that the arraignment was set aside and fails to show that he was so shackled at the second arraignment or at any subsequent time during the trial.</p> <p>5. Same—Indictment—Setting Aside—Appeal and Error—Becord— Insufficiency—Bev. Stats. Ariz. 1887, Penal Code, Pars. 1513, 1387, Construed.—Paragraph 1513, supra, provides: “The indictment must be sot aside by the court in which the defendant is arraigned upon his motion in either of the following eases: . . . (4) When the defendant had not been held to answer before the finding of the indictment on any ground which had been good ground for challenge, either to the panel or to any individual juror [grand juror].” Paragraph 1387, supra, provides: “A challenge to an individual grand juror may be interposed if a state of mind exists upon his part in reference to the case or to either party which satisfies the court, in the exercise of a sound discretion, that he cannot act impartially and without prejudice to the substantial rights of the party challenging.” This right can only be exercised, after the indictment, by the defendant, when he had not been held to answer before the impaneling of the grand jury, and was not present at the impaneling. Where the record shows that defendant was present at the impaneling of the grand jury, and does not show that he was not then charged with the crime of murder, he cannot complain of the overruling of his motion to set aside the indictment.</p> <p>6. Same—Same—Same—Motion—Must Be Supported by Affidavits or Record.—Motions to set aside an indictment, unsupported by affidavit, and not showing the nature or character of the evidence upon which they are based, are insufficient. They must be based upon some facts appearing from the record or otherwise produced before the court.</p> <p>7. Same — Change of Yenue — Prejudice — Showing — Territory v. Barth, 2 Ariz. 319, Followed.—It is not error' for the trial court to refuse a motion for a change of venue supported by the affidavits of defendant, his co-defendants, and five others, including his two counsel, tending to show a prejudice in the county which would preclude a fair trial, where the same was met by affidavits of eighty-four citizens, including nineteen grand jurors, who found the indictment, denying the existence of such prejudice. Territory v. Barth, supra, followed.</p> <p>8. Same—Murder— Instructions—Premeditation and Deliberation—• Evidence.—Where the evidence showed that defendant and others broke jail, and in the scuffle the jailer made an outcry, and one Lee Norris came to his assistance, but, on seeing defendant armed with a shot-gun, turned to flee, when defendant shot him in the back, it is not error for the court to refuse to instruct the jury that, under the evidence in the case, no deliberation or premeditation relating to the killing of Lee Norris has been proven by the prosecution, and therefore the defendant cannot lawfully be found guilty of murder in the first degree. It was the duty of the court, under proper instructions, to submit to the jury the question of nremeditation and deliberation.</p>

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

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

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

<p>1. Evidence—United States Treasury Transcript—Rev. Stats. U. S., Sec. 886, Construed—United States v. Ellis, 2 Ariz. 253, and United States v. Drachman, 4 Ariz. 297, Followed.—A transcript, duly certified as provided by section 886, supra, showing the transaction connected with the bid of Drachman, his failure to comply with the terms of his proposal, the subsequent purchases by the quartermaster’s department of hay, and the amounts paid for the same, and containing copies of Drachman’s bid, the bond sued upon, and the correspondence between the chief quartermaster and Drachman relating thereto, is properly admitted in evidence in a suit by the United States against Draehman’s bondsman to recover damages for his failure to cumply with his bid. United States v. Ellis, and United States v. Drachman, supra, followed.</p> <p>2. Same—Same—Same—Prima Facie Case^—Supplemental Proof.—• A treasury transcript, certified under section 886, supra, providing, “and the court trying the cause shall be authorized to grant judgment and award execution accordingly,” is not to be construed as authorizing judgment in favor of the government unless such transcript in itself makes a prima facie ease which is not overcome by defendant’s evidence. If such transcript fails to make such prima facie case, it must be supplemented by such competent evidence as will entitle the government to a recovery under the well-settled rules of law governing the action.</p> <p>3. Bond—Contract—Sales—Breach—Measure of Damages—Failure to Supply Article Contracted to Be Furnished—Surstituted Article — Evidence — Necessity for Proof that Article Contracted for Could not Be Obtained.—Where the treasury transcript shows a proposal to supply gramma hay at a certain price and a failure so to do and purchases by the government of other kinds of hay at various prices, the government cannot recover, in an action against a surety upon the bond to secure the performance of such proposal providing for the payment to the United States of the difference in money between the amount of the bid of said bidder and the amount for which the proper officer of the United States may contract with another to furnish “said supplies,” the difference between the proposal and the price actually paid for other kinds of hay, without first proving that grama hay of suitable quality and quantity was not obtainable in the market at the time.</p> <p>4. Samé — Same — Same — Same — Same—Evidence—Admissibility— Proof that Article Could Be Obtained in Open Market.—In an action on a bond conditioned to pay the difference between the price at which a certain article was proposed to be furnished and the price at whieh such article could be purchased from another, where the evidence of plaintiff shows the purchase of a substituted article, it is error to exclude evidence that the article contracted to be supplied could have been purchased in the open market at the time and place it was contracted to be delivered.</p>

<p>1. Pleading—Open Account—Verified under Eev. Stats. Ariz. 1887, Par. 1880—Answer—Sufficiency—Judgment on Pleadings.—In an action for balance of an unpaid account, defendant answered with a general denial, and set up a counterclaim alleging mutual accounts and a balance due Mm. To the counterclaim, and made a part thereof, was attached a verified account showing various items of indebtedness constituting the same. To tMs counterclaim plaintiff filed a verified reply, admitting that there were such mutual accounts, but alleging that the same had been settled, and that a balance thereon was found due plaintiff, which was agreed to by defendant, and that thereafter defendant had made payments on such balance, reducing it to the amount claimed by plaintiff in his complaint, which was still due and unpaid. Under the pleadings, defendant’s motion for judgment on the pleading, on the ground that there was no sufficient denial under oath, as required by paragraph 1880, supra, of the verified account pleaded in said counterclaim, was properly denied.</p> <p>2. Pleading—Open Account—Account Stated—Complaint—Reply—• Repugnancy — Construction — Evidence.—Where plaintiff’s complaint is for a balance due upon an open account, and defendant counterclaims upon mutual accounts, and plaintiff in reply thereto sets up an account stated and a balance due thereon, the same as pleaded in the original account, it is not error to permit plaintiff to testify as to an account stated, the complaint and reply not being repugnant, and therefore to be construed together.</p>

<p>1. Executions—Levy—Sufficiency—Recitals in Notice and Certificate of Sale—Interest Conveyed.—A sale to a judgment creditor of an interest in a mining claim owned by the judgment debtor is valid and sufficient to pass the title of the judgment debtor held at the time of .the levy of the execution, though the sheriff in making the levy recited that he levied on the right, title, and interest owned by defendant on January 15, 1891, eight months prior to the date of the judgment and execution, it sufficiently appearing that in the notice of sale given under the levy that the sheriff had levied upon the interest which defendant had on January 15, 1891, “or now has,” and in the certificate of sale that, under and by virtue of a certain execution, etc., he is required to satisfy the judgment “out of the real property belonging to the said defendant on the fifteenth day of January, 1891, or át any time thereafter,” and it further reciting that he had levied on all of the interest of said defendant in said mining claim.</p> <p>R. Same — Sale — Duplicate Certificate of Sale Filed under Laws of 1889, Act No. 20, Sec. 19, Subd. 3, Need not be Recorded —Filing Constructive Notice.—A duplicate of a certificate of sale of real estate under execution filed, as provided by statute, supra. in the office of the county recorder, is not required to be recorded and the filing thereof is made constructive notice of such sale to subsequent purchasers.</p> <p>3. Conveyances—Innocent Purchasers—Evidence—State of Record Title.—Where an indorser of a sheriff’s certificate of sale quitclaims his interest in the property conveyed thereby, and the grantee testifies positively that nothing was said in the negotiations for the deed that gave him an intimation that the same interest had been theretofore conveyed to plaintiff by the indorsee hy an unrecorded deed, he will be held to be an innocent purchaser for value, the indorsee’s recollection being at fault as to what was said upon that subject at the time of the transaction, and it appearing that no sheriff’s deed had been made, though the time for redemption had long since expired.</p> <p>4. Appeal and Error—Conflict of Evidence—When Reversed.—This court cannot disturb a finding not supported by the weight of the evidence, unless the preponderance of evidence against the finding be so marked that no reasonable view of the testimony can be taken which will support it.</p>

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

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

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

<p>1. Summons — Service — Defects — Waived by Answer—Rev. Stats. Ariz. 1887, Par. 721, Cited.—Defects in the manner of the service of summons are waived and cured by answer and appearance in the trial court, under the statute, supra, providing that “the filing of an answer shall constitute an appearance of the defendant, so as to dispense with the necessity for the issuance or service of summons upon him.”</p> <p>2. Evidence — Judicial Notice — Attorneys at Law — Officers of Court.—Under our statute a lawyer may be an attorney and officer of the district court, and yet not be a member of the bar of the supreme court; and this court cannot take judicial notice of the officers of the district court.</p> <p>3. Same — Presumptions — Becitals of Judgment — Attorneys at Law.—Where the record shows that an answer was filed below signed by attorneys for defendant, and the judgment recites that the defendant entered his appearance by filing his answer, the presumption is, that such attorneys were duly qualified and authorized attorneys of said court.</p>

APPEAL ffom a judgment of the District Court of the Second Judicial District in and for the County of Graham. Owen T. Bouse, Judge. The facts are stated in the opinion.

WRIT OF ERROR from a- judgment of the District Court of the Fourth Judicial District in and for the County of Coconino. Owen T. Rouse, Judge. The facts are stated in the opinion.

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

<p>1. OFFICE AND OFFICERS'—SUPERVISORS—ACTION FOR COMPENSATION-Complaint—Insufficiency—Laws 1889, Act No. 15, Sec. 1, Construed.—In an action for compensation for services rendered as a member of the board of supervisors, a complaint which alleges that “plaintiff rendered services in his attending and acting at regular, adjourned, and lawfully called special sessions of said board” is subject to a general demurrer, it not being alleged therein that any county business was transacted upon the days for which compensation is sought, and the statute, supra, providing for compensation “five dollars per day for each day’s actual attendance at the sitting of said board at which sitting any county business is transacted.”</p> <p>2. Same—Same—Same—Complaint Alleging Usurpation of Office— Failure to Allege Transaction of Business by De Jure Board —Presumptions.—When the complaint for compensation for services as a member of the board of supervisors shows that during the time the services were alleged to have been rendered he and the other members of the lawful board were excluded from office by certain usurpers, and fails to allege that the business of the county was transacted by the de jure board, it will be presumed to have been transacted by the de facto board.</p> <p>3. Same—Same—Voluntary Payments for Benefit of County—Not ^Recoverable.—No recovery can be had on account of a voluntary payment made by a member of the board of supervisors on account of costs and expenses in a suit by the county where there is no showing that plaintiff was authorized to make the payments and expenditures, nor that they were subsequently ratified.</p> <p>4. Same—Same—Voluntary Expenditure in Attendance upon Suit by County—Not Recoverable.—Voluntary expenditures for travel, board, and lodging while attending a hearing on a suit by the county, made by a member of the board of supervisors, are not recoverable, no showing being made that plaintiff was authorized or requested by the county to be present.</p>

<p>1. Counties—Division of—Indebtedness—Act of February 19, 1891, and Act of March 12, 1885, Cited—Bonds—In Aid of Prescott and Arizona Railway Company, Issued by Yavapai County, Valid by Act of Congress Approved June 6, 1896.—The act of February 19, 1891, supra, created the county of Coconino out of the county of Yavapai, and provided that one third of the indebtedness of the latter should be assumed and paid by the former by means of bonds, which the county of Yavapai was authorized to accept and dispose of for its own benefit. A portion of the indebtedness assumed by the county of Coconino, and for which bonds were issued, was on account of bonds issued by Yavapai County in aid of the Prescott and Arizona Railway Company, under act of March 12, 1885, supra. In an action brought by Coconino County to recover the amount paid on account of such railway aid bonds, a demurrer to the complaint was properly sustained, said railway aid bonds having been validated by the act of Congress approved June 6, 1896, supra.</p> <p>2. Same—Same—Same—Pleading—Sufficiency of Complaint.—In an action by the county of Coconino against the county of Yavapai to recover a portion of indebtedness assumed under the County Division Act, represented by railway aid bonds alleged to be void, a demurrer to the complaint is properly sustained, it alleging that many of the bonds, covering the amount sought to be recovered, executed and delivered by Coconino County to Yavapai County, had been sold and delivered to sundry persons, and the remainder funded under the Territorial Funding Act before the suit was brought, and failing to show that said railway aid bonds were not still an outstanding and a subsisting indebtedness against Yavapai County. Said Coconino County being a portion of Yavapai County at the time the bonds were issued, must be held to bear its portion of the burden.</p>

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

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

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

<p>1, Appeal and Error—Assignments of Error—Statutes and Bules Mandatory—Assignments Must Be Specific.—The statutes and rules of this court on the subject of assignments of error are imperative, and must be observed. It is our duty to examine into such alleged errors, and only such, as are distinctly pointed out in the record.</p> <p>2. Banks and Banking—-National Banks — Interest — Eev. Stats. IT. S. 1878, Secs. 5197, 5198; Eev. Stats. Ariz. 1887, Pars. 2161, 2162, Cited and Construed-—May Charge Any Bate Agreed upon. —Section 5197, supra, provides that national banks may charge interest at the rate allowed by the territory where that bank is located, and no more, and that where no rate is fixed by such laws the rate shall be seven per cent. Section 5198, supra, provides that the charging a rate of interest greater than is allowed by the preceding section, when knowingly done, shall be deemed a forfeiture of the entire interest agreed to be paid. ‘ Paragraph 2161, supra, provides that when there is no express agreement fixing a different rate seven per cent shall be allowed. Paragraph 2162, supra, provides that the parties may agree in writing for the payment of any rate of interest whatever on money due or to become due on any contract. Under these statutes a national bank in Arizona is privileged to charge and collect any rate of interest which may be agreed upon, and is as free to act in this regard as a're banks organized under local laws or as individuals living in the territory.</p> <p>3. Pleading—Counterclaim — Verification — Sufficiency of Unverified Denial—Except as to Matters Required by Rev. Stats. Ariz. 1887, Par. 735, to Be Denied under Oath.—An unverified general denial to a verified counterclaim is sufficient to put the defendant on proof, except as to any matter therein pleaded, which, by statute, supra, is required to be denied under oath.</p> <p>4. Same—Same—Same—Verified Allegation of Assignment in Writing Admitted by Failure to Deny under Oath—Rev. Stats. Ariz. 1887, Par. 735, Subd. 5, Construed.—An allegation in a verified counterclaim that a note therein set up was assigned by the plaintiff to the defendant by an instrument in writing is admitted, under statute, supra, by failure to verify the denial thereof.</p> <p>5. Choses in Action — Non-Negotixble Instrument — Assignor as Surety—When Held—Due Diligence—Rev. Stats. Ariz. 1887, Pars. 123, 124, Cited.—While our statutes recognize the right of an assignee to hold the indorser of a non-negotiable chose in action as surety for the payment of the same, no recovery is authorized, without it be shown that the assignee has used due diligence to collect the same. Statute, supra, cited.</p> <p>6. Pleading — Counterclaim — Sufficiency. — A counterclaim, to be good, must contain every allegation which would be needed in a complaint founded on the same cause of action!</p> <p>7. Same—Same—Same—Against Assignee of Non-Negotiable Note— Must Allege Diligence in Collecting—Where It Appears that there Was Security It Must Allege an Attempt to Enforce Same and Failure.—Where a counterclaim only alleges that plaintiff assigned to defendant a non-negotiable promissory note, past due, and that at the time of the assignment the makers were insolvent, and were still insolvent, and that the same had not been paid, it fails to state a cause of action. No allegation is made that due diligence was used, as is required by statute, or that any effort was made to collect the same, which omission is doubly fatal, for the reason that it appears on the face of the note that it was secured by chattel mortgage. With this appearing, the mere allegation of the insolvency of the maker was not sufficient to charge the indorser as surety without an allegation of the exercise of due diligence to collect the same and to enforce the security, and a failure after such effort to collect.</p> <p>8. Pleadings—Judgment on—Denial—Sufficiency — Pacts Pleaded Insufficient to Support Judgment.—A motion for judgment upon a verified counterclaim because there is no verified reply thereto is properly denied where it appears that there is an unverified general denial which puts in issue some of the allegations thereof, and "where it further appears that, had no reply been filed, the facts pleaded were not sufficient to support a judgment therein.</p>