Volume 5 — Idaho Reports

<p>APPEAL from District Court, Canyon County.</p> <p>Municipal corporations are the creatures of the state, agencies of the state, over which the power of the legislature is supreme and transcendent; the state has power to amend their charters, enlarge or diminish their powers, change their boundaries, or abolish them altogether. Limitation upon legislative power must be found in the constitution of the state alone. (Cooley’s Constitutional Limitations, 228; 1 Dillon on Municipal Corporations; sec. 54; Wright v. Kelley, 4 Idaho, 624, 43 Pae. 565; Meriwether v. Garret, 102 U. S. 472.) The charter-of a municipal corporation is in no sense a contract between the state and the corporation. (1 Dillon on Municipal Corporations, sec. 54.) Under our system of government, the state legislature is intrusted with the general authority to make laws, subject only to constitutional limitations. (Cooley’s Constitutional Limitations, 104.) It is with great reluctance that courts will declare an act of the legislature unconstitutional. (Commissioners of Gherdkee Co. v. State, 36 Kan. 337, 13 Pac. 558.) In this ease there are special reasons why the court should hesitate to declare the statute in question void. The law has been in operation more than three years unquestioned. 'Many cities and towns in the state, as Caldwell has done, have revised their ordinances, and shaped themselves so as to conform to this law. In doing so they have followed the advice of this court in the case of Hampton v. Dilley, 3 Idaho, 427, 31 Pac. 807. Nowhere in our constitution is there any express provision in conflict with the law. (Const., art. 12, sec. 1.) The state loses the right to question legality of corporate existence by long acquiescence in its exercise of corporate franchises, and by its own recognition of such corporation by dealing with its officers as such officers. (Cooley’s Constitutional Limitations, 310, and cases cited; 1 Dillon on Municipal Corporations, see. 43, and eases cited in note.)</p> <p>No brief found on file.</p>

Tbe action was commenced by Blaine county against W. E. Heard for the recovery of books and papers, etc., belonging to the office of probate judge and ex-officio superintendent of public instruction of Logan county.' An alternative writ of mandate was issued, and the defendant answered alleging his election to the office of probate judge of Logan county, his qualification , and that he still filled that office, and disputing the constitutionality of the law of the third…

This is an appeal by the Great Northern Eailway Company from the judgment of the court below, rendered in an action, sounding in tort for the negligent killing of five head of horses, the property of the respondents, by a locomotive and train of freight ears owned and operated, by the appellant.

County. It is an elementary principle of law that before a general depositor of a bank can institute action for the balance of his deposit, he must make demand for it. (Idaho Kev. Held: and we think correctly, that the insolvency of the drawer of commercial paper •does not and cannot excuse presentation thereof, but only excuses due diligence in making such presentation. (5 Am. & Eng.

Plaintiff being a retail liquor dealer in the city of Kendrick, in Latah County, Idaho, contends that for the quarter ending October, A. D. 1895, he is only required by law to pay the sum of seventy-five .dollars liquor license for said qaurter; while defendant contends that plaintiff should pay the sum of $125 per quarter.

<p>No Final Judgment — Dismissal.—Where the record shows no final judgment, or other final disposition of the case in the district court," the appeal will be dismissed on motion.</p> <p>(Syllabus by the court.)</p>

This action was brought to recover the possession from the defendants of the premises described in the amended complaint, said right of possession being alleged to be based upon title in fee, in the plaintiff Andola, with damages for the withholding thereof.

The judgment of the lower court should be reversed as it is stipulated in this case that the money in question was collected by the assessor and ex-officio tax collector of Latah county for the city of Moscow, appellant herein, upon the tax levy of appellant for general revenue purposes during the fiscal year ending the first Tuesday in May, 1896.

In so far as tbe questions which the court allowed to be answered and specified, in the first nine assignments of error, called for the custom of bankers, they were improper, because the only question in this case is, whether the payments were made, and, if made, it is entirely immaterial whether they were made in the usual manner. {Neff v. Greene County Nat. Bank, 89 Mo. 581, 1 S. W. 147; Bruni v. Garza (Tex. Civ.

The last note was signed by Mr. Lieuallen alone, and there was pledged as security therefor, together with other notes, a chattel mortgage upon Mr. Lieuallen’s stock of goods. Why place a mere memorandum note in a mortgage, and how is it possible to proceed with a chattel mortgage foreclosure upon a mere memorandum while the plaintiff holds the only actual evidence of the debt?

Respondent is sheriff of Canyon county, Idaho. In April, 1895, he applied to the board of county commissioners of said county, asking to be empowered to appoint a deputy for the sheriffs office at a salary of $100 per month. The commissioners refused to authorize the appointment, and respondent appealed to the district court. The appeal was heard upon notice of appeal, or complaint and a statement of facts, stipulated by the attorneys.

Even granting defendant’s contention ' that the property in «question was not exempt from execution against the plaintiffs husband, the ruling was still error. Under a claim of ownership the plaintiff had the actual possession of the property. As far as the proof goes, it tends to show that defendant was, •and is, a naked trespasser who seized and detains the property without a shadow of justification.

Unknown to appellant or his counsel, the respondent’s attorney went into the probate court and filed an exception to the sufficiency of appellant’s sureties on appeal. When the appeal was about to come up for argument in the district court, respondent’s attorney then gave verbal notice that he had excepted to the sureties.

The snit is based upon a final decree in the case of Kirk-■o. Bartholomew, which is set forth as to certain parts of it, in the complaint, and was 'brought to enjoin the defendant Lang-ford and one Bartholomew from violating the order therein contained, distributing the waters of Baft river, to which suit, it was not denied that both respondents and appellant were parties. The case was heard upon an order to show cause why a temporary injunction should not issue.

<p>APPEAL from District Court, Bannock County.</p> <p>This action was brought to recover from the appellant Andrews and his sureties, as constable, damages for the alleged unlawful seizure under execution of two horses alleged to be exempt from execution. The court erred in permitting the respondent to testify as to his intention to use the horses seized under execution in future for the purposes of teaming. The court erred in instructing the jury that if the respondent intended to go into the teaming business, they, the jury, would be justified in finding for the respondent. Appellants insist that the exemption of the specific property, “work horses,”, from execution under the laws of this state, that the intentions which are hid away in the mind of the execution debtor can have nothing to do with it. (Calhoun v. Knight, 10 Cal. 393; Brusie v. Griffith, 34 Cal. 302, 91 Am. Dec. 696; Roberts v. 'Adams, 38 Cal. 383, 99 Am. Dec. 413; Dore v. Nunan, 62 Cal. 399; Murphy v. Hams, 77 Cal. 194, 19 Pac. 377; Hdgecomb v. His Creditors, 19 Nev. .149, 7 Pae. 533.)</p> <p>The question arises upon the construction of subsection 6, section 4480 of the Revised Statutes of Idaho. Exemption-statutes should be liberally construed with a view of affecting the object of the statute and allowing the exemptions. (Smyth on Homesteads and Exemptions, sec. 519; Thompson on Homesteads and Exemptions, sec. 731; Mallory v. Berry, 16 Kan. 293; Blliot v. Hall, 3 Idaho, 421, 35 Am. St. Pep. 285, 31 Pac. 796; Carruth v. Grassie, 11 Gray (Mass.), 211, 71 Am.. Dee. 707.) Eespondent having no other occupation and for the purpose of becoming a teamster, purchased two horses, and was negotiating for wagon and harness, using reasonable diligence under his circumstances, was and is, within the intent and meaning of the statute, entitled to the exemptions of a teamster from the day he purchased such horses and was afforded a reasonable opportunity to further equip himself for the business. Hnder such circumstances the intentions and bona fides of the party control. (Thompson on Homesteads, and Exemptions, sec. 732; Steele v. Lyford, 59 Vt. 230, 8 AtL 736; Mallory v. Berry, 16 Kan. 293; Carruth v. Grossie, 11 Gray (Mass.), 211, 71 Am. Dee. 707; Forsyth v. Bower, 51 Cal. 639; Dow v. Smith, 7 Yt. 465, 29 Am. Dee. 202; Jaquith v. Scott, 63 N .11. 5, 56 Am. Eep. 476; Berg v. Baldwin, 31 Minn. 541, 18 N. W. 821; Hiclcman v. Cruise, 72 Iowa, 528, 2 Am. St. Eep. 256, 34 N. W. 316.)</p>

<p>Construction on Canal Over Another’s Land — Liable for Damages. — One erecting o-r maintaining a canal along tbe line of another’s land is liable for any damage resulting from a want of proper care in tbe management of tbe same, or for want of proper care in its construction.</p> <p>(Syllabus by tbe court.)</p>

<p>APPEAL from District Court, Bannock County.</p> <p>In August, 1891, the defendant corporation was a judgment debtor, and was in danger of losing all its personal property by an execution sale. It had no money in its treasury, and, as a corporation, it was unable to effect a loan adequate to its needs, it had repeatedly attempted to make a loan and had failed. Among others, it applied to the First National Bank of Poca-tello. The bank, through its cashier, M. C. Senter, Esq., informed the representatives of the corporation that it would not accept the corporation as security for a dollar; but it also informed them, in substance, that if the3r individually wished to procure a loan of money they could have it; that the bank considered them responsible citizens, and would cheerfully take their individual or joint paper. It appears that these preliminary facts were laid before the corporation at what is denominated in the corporation’s minute-book a “stockholders’ ” meeting. It appears further that it was suggested that certain persons borrow money themselves and loan it to the corporation, or that certain persons volunteered to borrow money themselves and loan it to the corporation, upon the understanding that the corporation, being thereto authorized by resolution, would make and deliver its note to these private parties for the amount they loaned it, and secure the payment of said note by a chattel mortgage upon all the corporate property and effects. If the money was paid at “the special instance and request of the defendant,” he must do one of two things: show an actual request by competent evidence, or show a state of facts which in law amounted to a request, and which it was necessary to regard in order to do substantial justice between the litigants, although, before the law will imply a request, there must have been duress of person or property, or a voluntary pajonent supplemented by an express-promise to pay, ot a legal liability to pay the debt or answer for the default or miscarriage of another. (Keith v. Easton Congregational Parish, 21 Pick. (Mass.) 261; Nicholls v. Buclcman, 117 Mass. 488; Smart v. White, 88 Mo. 5G6; Kenan v. Holloway,, 16 Ala. 53, 50 Am. Dec. 1621; Wolff, v. Matthews, 39 Mo. App. 376; Hale v. Huse, 10 Gray (Mass.), 99; Reeves v. Goff, 3 N. J. L. 194; Hogg v. Longstreet, 97 Pa. St. 255.) There was no privity, no contractual relation, between the plaintiff, his assignor and the defendant corporation. There can be no recovery unless it can be shown that the money has been received by the defendant or its agent. (Coates v. Bainbridge, 5 Bing. 58, 15-Eney. Com. L. 368; Brent v. Davis, 9 Md. 217; Isom v. Johns. 2 Munf. (Va.) 272; Rush v. Good, 14 Serg. & E. (Pa.) 226; Allen v. South Boston R. Co., 150 Mass. 200, 15 Am. St. Eep. 185, 22 N. E. 917; Sterling v. Ryan, 72 Wis. 36, 7 Am. St. Eep. 818,. 37 N. W. 572; Cobb v. Curtiss, 8 Johns. 470; Allen v.- Woodward, 22 N. H. 544; Walker v. Conant, 69 Mich. 321, 13 Am. St. Eep. 391, 37 N. W. 292; Stoudt v. Hine, 45 Pa. St. 30; Westcott v. Sharp, 50 N. J. L. 392, 13 Atl. 243; National Bank v. Grand Lodge, 98 D. S. 123.) If the mortgage was valid, then, the law is clear; the plaintiff and his associates in the obligation should have foreclosed their mortgage before bringing their suit at law. (Barbieri v. Ramelli, 84 Cal. 154, 23 Pac. 1086, and eases cited. See, also, 2 Morawetz on Corporations, see. 627, on ratification of directors’ acts by the corporation.)</p> <p>The liability of the corporation need not be founded on written contract, but upon the duty the law imposes, from benefits it has received. (Morawetz on Private Corporations, secs. 526, 715, 716; Beach on Private Corporations, secs. 422, 423, 425; Clark on Contracts, 286, 287; 27 Am. & Eng. Eney. of Law, 371-374, and notes following each page; Memphis etc. R. R. Co. v. Dow, 19 Fed. 388; Sherman Center Town Co. v. Morris, 43 Kan. 282, 19 Am. St. Eep. 134, 23 Pac. 569; Seeley v. San Jose etc. Co., 59 Cal. 22; San Francisco Glass Go. v. San Francisco, 9 Cal. 453; Argenti v. San Francisco, 16 Cal. 256; Santa Cruz R. R. Go. v. Spreckels, 68 Cal. 193-199, 3 Pae. 661, 802; Topeka Primary A. U. B. Co. v. Martin, 39 Kan. 750, 18 Pac. 941; State Board of Agriculture v. Citizens' St. By., 47 Lid. 407, 17 Am. Rep. 702; Dill v. Wareman, 7 Met. (Mass.) 438; Waitz v. Ormsby Co., 1 Nev. 370; Slater Woolen Co. v. Lamb, 143 Mass. 420, 9 N. E. 823; Oneida Bank v. Ontario Bank, 21 N. Y. 490; Rider Life Baft Co. v. Roach, 97 N. Y. 378.) Where directors or stockholders of a corporation give their individual note to a bank, either directly for money or as collateral for money delivered to and used by the corporation, as between the corporation and the persons who gave the note to the bank, the relation of principal and surety exists. (Street v. Old Town Bank of Baltimore, 67 Md. 421, 10 Atl. 319.) The right to interpose the plea of the statute of limitations is waived, unless taken advantage of by demurrer or answer. (Reagan v. Justice Court,' 75 Cal. 253, 17 Pae. 195; Kelley v. Kriess, 68 Cal. 211, 9 Pac. 129; Gration v. Wiggins, 23 Cal. 16; Osment v. McElrath, 68 Cal. 466, 58 Am. Rep. 466.) If the demand be in truth barred, but the facts do not appear on the face of the complaint, the defense must be made in the answer. (Smith v. Richmond, 19 Cal. 477; Mason v. Cronise, 20 Cal. 217; Cameron v. San Francisco, 68 Cal. 390, 9 Pac. 430; Manning v. Dallas, 73 Cal. 420, 15 Pac. 34.) As to the manner of pleading the statute of limitations, see Revised Statutes of Idaho, section 4213.</p>

<p>APPEAL from District Court, Lemhi County.</p> <p>We earnestly insist that the evidence is insufficient to justify dhe finding of the jury on the stull contract. The evidence is, we think, conclusive that it was simply the understanding that Morrison should keep the mine supplied with stulls at forty-five rcents each, and not that he should deliver any specific number. There was nothing passed between me and Morrison about the number of stulls he should put in, but he put in thirty-two •stulls, and a short time afterward we were out of stulls in the mine. McDonald continuing said: “Morrison never requested ■pay for these four hundred stulls before bringing suit. He never made a statement in writing for his account against us Tor four hundred stulls.” While it may be contended that there was not a technical tender, unless the plaintiff objected to same •at the time it was made he waived all objections. (Idaho Rev. ■Stats., sec. 3231.) We think this was plainly error upon the part of the court, and, such being the case, the law presumes that it was prejudicial to the rights of the defendant, unless it affirmatively appears otherwise from the record. {Holt v. -Spokane etc. By. Co., 3 Idaho, 703, 35 Pac. 39; Bice v. Heath, ■39 Cal. 609; Cleary v. Baüroad Co., 76 Cal. 240, 18 Pac. 269.) As to the stull contract the complaint alleges the delivery of "thirty-two stulls, and asked for the value of the labor expended •on the balance of the stulls, while he still retains them. His proper action would have been for a breach of the contract for "the balance of the four hundred stulls, and his measure of dam■■ages the difference between the contract price and the actual anarket price of said stulls, and unless it is shown that he has sustained injury by reason of tbe breach upon the part of defendant he cannot recover. (Geiss v. Wyeth etc. Mfg. Go., 37 Kan. 130, 14 Pac. 4G3; York Draper Mercantile Go. v. Dusk,. 45 Kan. 18.3, 35 Pac. 646; Hill v. McKay, 94 Cal. 5, 39 Pae. 406; McGlair v. Austin, 17 Colo. 576, 31 Pac. 335.)</p> <p>Cites no authorities.</p>

<p>APPEAL from District Court, Ada County.</p> <p>For authorities cited by attorneys in this ease, see post, pp. 188-192, both inclusive, where the case was reheard.</p>

<p>This cause follows the case of Ada County v. Bullen Bridge Co., and the syllabus of that cause applies equally to this.</p> <p>APPEAL from District Court, Ada County.</p> <p>This is an action brought by Ada county praying for the cancellation of warrants Nos. 325 and 326 drawn on the current expense and redemption fund of said county in the year 1893. In many respects the questions involved in this controversy are similar to those argued in Ada County v. Bullen Bridge Co., ante, p. 79, 47 Pac. 818, and will necessitate a repetition of our argument and citation of authorities upon the first question considered by us in that ease. There was no authorization on the part of the board of commissioners permitting its members to make such contracts. The board is a body of limited jurisdiction and its jurisdiction must appear upon its records. (Finch- v. Tehama Co., 29 Cal. 453.) County commissioners cannot bind the county by contract unless they act by authority of the board. {Fletcher v. Bunlcer Co., 2 Grant (Pa.), 445; Merrill v. Berstram, 11 Rich. 269.) Contracts made with county officers will not bind the county when the officials have no power to make the contracts. (Madison Go. v. Baford, 93 Ind. 362; Orange Co. v. Riter, 90 Ind. 383; Crawford Co. v. Le Clerc, 3 Pinn. 325, 4 Chand. (Wis.) 56; Stamps v. Cass Co., 47 Mich. 386; 'Warrick v. Butterworth, 17 Ind. 129; Demson v. St. Louis, 33 Mo. 168; Rice v. Plymouth Co., 43 Iowa, 136.) No county board can order a claim paid except by statutory authority. {In re Tinsley, 90 N. Y. 231.) To charge a county for services there must be some statutory authority authorizing the same to be rendered. {People v. Supervisors, 28 How. Pr. 22.) The mode by which a county is bound to provide for repairs to bridges and approaches is statutory and any other contract is void. {Driftwood Valley T. Go. v. Board etc., 12 lad. 226.) Sectioa 1172 of tbe Revised Statutes positively prohibits the board from hearing or considering a claim not duly verified as to its correctness. The same section of the statute above cited calls for an itemization of accounts presented to the board, and it has been decided in California that a claim cannot be allowed against a county unless all the items are given. {Christie v. Sonoma Go., 60 Cal. 164.) But as a matter of fact the commissioners had in effect-audited and allowed the accounts when they made the contracts. This cannot be done. {El Dorado Go. v. Reed, 11 Cal. 130.) Municipal corporation cannot ratify an illegal act or contract. '{15 Am. & Eng. Eney. of Law, 1101; and note 1, 1102, 1103, and note 1; McPherson v. Foster, 43 Iowa, 48, 22 Am. Rep. 215; Mechera on Public Officers, 5548, and notes.)</p> <p>This was an action for equitable relief by cancellation of county warrants of Ada county. There is no equity in the bill. For authorities on the point see Ada Gounty v. Bullen Bridge Go., post, pp. 188-192, 41 Pac. 824. A county warrant issued upon an unverified account, though verification is required by statute, is not void, and a recovery may be had thereon, unless it is shown that it was issued fraudulently. {Board of Commissioners v. Sherwood, 64 Fed. 104.)</p>

If the contract between Chalmers and respondent company is construed as making it the duty of Chalmers and his associates to furnish an abstract and place a deed in escrow, yet the failure to do so did not dispense with timely performance or tender of performance on the part of the Union Mining and Milling Company. {Kelsey v. Grovdher, 162 U. S. 40-1-408, 16 Sup. Ct.

District Court, Lemhi County. The complaint alleges ownership and possession to two certain mining claims, known as the Monolith and Golden Crest. The defendant admits that the plaintiffs have been and now are in the possession of two certain quartz mining claims known as the Monolith claim and the Golden Crest claim, situated in the Mineral Iiill mining district, county of Lemhi, state of Idaho.

Various provisions of the statute and constitutional provisions would seem to erect counties into municipal corporations, and provide them with a corporate fund and the power of raising it, and invest counties with the care of highways and bridges, and provide a complete system and give them complete control over bridges and highways and a fund with which to pay damages against such counties. (Const., art. 1,. see. 14; Idaho Eev.

Original proceeding in supreme court by writ of review. Under provisions of the constitution an amendment will' carry when it is properly submitted to the people, and a majority of those voting upon the question east their ballots in its favor, regardless of tbe number of voters voting upon other questions. {City of South Bend v. Lewis, 138 Ind. 535, 37 N. E. 986.) Judge Cooley, in his work on Constitutional Limitations, sixth edition, note 1, page 747, cites a large number…

<p>APPEAL from District Court, Alturas County.</p> <p>Yenable purchased this deed of trust with funds, a large part of which belonged to Eoberts, and all of which had been money of the firm; the deed of trust became the property of the firm and was no longer capable of being foreclosed by advertisement under the power of attorney contained in it. Such foreclosure is in the nature of enforcing a penalty. It has been recognized by the decisions of this state from which we derive our practice, but it is not authorized or recognized in any statute. The statute expressly prohibits it. It pro-* vides “that there can,, be but one action for the recovery of any debt or enforcement of any penalty secured by mortgage-upon real estate or personal property/’ and that one action a suit in chancery in the form of a foreclosure bill. Under these circumstances, plaintiff asks a court of equity to set aside the result of the forfeiture which is claimed by Venable, and being enforced contrary to his duty to his partner Roberts.. Roberts and Venable stand in the relation to each other as-trustees, and cestids que trust the same as any other partners. Each was entitled at the hands of the other to honest and square dealing. (Koehler v. Blaclc Iron Go., 2 Black (U. S.),. 720; Broolcs v. Martin, 2 Wall. 82; Reed v. Wessell, 7 Mich. 139; 2 Lindley on Partnership, 303, 304, note.)</p> <p>Venable had a legal right to purchase the trust deed and to purchase the property at a sale under it; that he did this-was admitted on the trial. There was no evidence of any concealment or attempted concealment, or that Roberts was in any wise deceived. In this matter, as in all others, the rebuttal of defendant’s evidence consists in counsel’s argument alone. (Bradbury v. Barnes, 19 Cal. 120; McKenzie v. Dickinson, 4& Cal. 119; Felton v. Le Breton, 92 Cal. 458, 28 Pae. 490; 27' Am. & Eng. Ency. of Law, 264, and cases cited; Easton v. German-American Bo.nk, 127 U. S. 210, 8 Sup. Ct. Rep. 1297;. Whitney v. Fox, 166 U. S. 637, 17 Sup. Ct. Rep. 717.) It may be stated as a principle of law now well settled that in adopting the statutes of a state the construction given the-statutes by the highest courts of the state from which they were taken was adopted with them. (Railroad Go. v. Moore, 121 U. S. 558, 7 Sup. Ct. Rep. 1334; McDonald v. Eovey, 110-U. S. 619, 4 Sup. Ct. Rep. 142; United States v. Ryder, 110 U. S. 729, 4 Sup. Ct. Rep. 196.) The case of Koch v. Briggs,. 14 Cal. 261, 73 Am. Dec. 651, is the leading case upon the-question of a trust deed not being a mortgage requiring foreclosure in statutory form, and is sustained in Grant v. Burr^ 54 Cal. 298: Bateman v. Burr, 57 Cal. 480; Durkin v. Burr,. 60 Cal. 360; First Nat. Banlc v. Bell etc. Min. Go., 8 Mont. 32, 19 Pac. 403; Cooper v. Wlvitner, 3 Hill (N. Y.), 95. When tbe sale bas been made tbe interest of tbe mortgagor is wholly devested, including bis equity of redemption. (2 Washburn on Real Property, 80.) A power of sale is one species of foreclosure. (Blackwell v. Barnett, 52 Tex. 333.)</p> <p>For some years prior to September 22, 1888, George W.. Venable, George V. Bryan and George H. Roberts had been mining partners, each owning one-third in the Red Elephant and other mining properties, described in the complaint. On the said date the partners met and effected a settlement of previous accounts, which had been kept in such a manner that it was difficult to tell how much each had advanced, each had drawn, and how much each was debtor or creditor of the firm. This settlement culminated in the following agreement, to wit:</p> <p>“Whereas, the undersigned, George H. Roberts, George V. Bryan and George W. Venable are mining partners and working the Red Elephant group of mines in Mineral Hill Mining District, in Alturas County, Idaho Territory, and have been -so working said mine for some time past; and whereas, for the purpose of carrying on the work of said mine, and the payment of the debts of said partnership, said George W. Venable has advanced to said company on May 1, A. D. 1888, the sum of five thousand ($5,000) dollars, bearing interest at the rate of six per cent per annum.</p> <p>“Now, in consideration of the premises, it is mutually agreed by and between said parties that the said George W. Venable shall be paid out of the first proceeds of said mine the sum of $5,000, with the interest as aforesaid, and the same shall be so paid him as the same accrues. And the said Bryan and Roberts hereby transfer and assign to said Venable the proceeds of said mine until the said $5,000 and interest shall be fully paid.</p> <p>“And it is further agreed on the part of said Venable that said Roberts and Bryan shall each have the right to draw from the proceeds of said mine $200 per month until a further agreement is made by' and between the parties hereto. And it is further agreed that the said Roberts shall, at this time, draw the sum of $500, the same to be on account of said $200 per month, he to receipt for the same as such. Such amounts to be so drawn by said Bryan and Boberts to be charged to them against their respective interest in said mines.</p> <p>“It is further understood and agreed that after the said sum of $5,000 shall have been fully paid and liquidated, the proceeds of said mines, after deducting the monthly dividend' to be paid to said Bryan and Boberts as herein provided, shall be placed in a fund for the purpose of the future operation of said mines, to be used for the erection of machinery or otherwise, as the said parties may agree. And it is understood and agreed by and between the parties hereto in adjustment of the several amounts due from the partnership to the several members thereof, that there is due George W. Venable in addition to the said sum of $5,000 above nientioned, the sum of $5,664.18, moneys advanced by him for the use of said partnership, and it is agreed that the same shall bear interest at the rate of six per cent per annum from November 1, 1887, and that there is due George H. B-oberts from said partnership for moneys advanced by him for the use of said partnership the sum of fifteen hundred ($1,500) dollars which it is agreed shall bear interest at the rate of six per cent per annum from November 1, 1887. And this arrangement and agreement shall be -in full adjustment and settlement of all past accounts between said parties, and shall form the basis of new accounts from this date forward.</p> <p>“In witness whereof, the said parties have hereunto set their hands this 23d day of September, A. D. 1888.</p> <p>(Signed) “GEO. H. BOBEBTS.</p> <p>(Signed) “GEO. W. VENABLE.</p> <p>(Signed) “GEO. V. BBYAN.</p> <p>“Witness:</p> <p>(Signed) “LYTTLETON PBICE.”</p> <p>It will be seen by the terms of this agreement that the claim of $5,000, which is admitted to be what is termed the Stevenson claim, was to be paid out of the first proceeds of the mine after this amount was settled. It was agreed that Boberts and Bryan were each to receive $200 per month until a further agreement is made between, the parties, and after tbe said sum of $5,000 was paid and after deducting the monthly dividends to be paid to said Bryan and Boberts, the proceeds of the mine were to be placed in a fund for the future operation of said mines.</p> <p>It was also agreed that there was due the said mining partners, as follows: To George W. Venable the sum of $5,664.18, and to George H. Boberts the sum of $1,500, both of which sums were to bear interest at the rate of six per cent per annum from November 1, 1887. This agreement is dated September 22, 1888. The said mine, or a portion thereof, was then, on the 24th of September, 1888, leased to. George V. Bryan, aforesaid. ¡,</p> <p>On the twenty-fifth day of January, 1889, the said George H. Boberts gave a trust deed to Frank Taylor of Hailey, Idaho, for the benefit of the First National Bank of Hailey, party of the third part, to secure the payment of the sum of $1,500, on the twenty-fifth day of July, 1889, upon the following property, to wit: The Bed Elephant lode, the Queen Fraction lode, the Caledonia lode, the O. K. claim, and the Bed Elephant, Central, Queen Fraction and Caledonia millsites, describing the same. Said trust deed contained a power of sale, which authorized the holder of said trust deed and promissory note given said bank for said money, in ease of default of payment of the same, to sell said property at public sale, after advertising the said sale by publishing the time and place of the same, with description of the property, for three weeks in some newspaper published in the county, where said property is situated, and authorizing the holder of said note or his assigns or agent, to become the purchaser of said property.</p> <p>On the twentieth day of July, 1889, the First National Bank of Hailey sold and transferred all its interest in said note and trust deed to J. H. Moore, of the city of New York; the said Moore was the agent of the said George W. Venable, acted for, and was his agent in the purchase of said note and trust deed and all his subsequent proceedings, with relation thereto; and from first to last, acted under the direction of the said Venable in all things and had no personal interest in said trust deed nor in the purchase of the property therein described.</p> <p>On the seventeenth day of August, 1889, the trustee, Frank Taylor, after giving notice as required by the terms of said deed, exposed for sale, and sold at public auction, the property therein described and now in controversy in this cause to J. EL Moore, who was, in all the proceedings, the agent of George W. Venable, as aforesaid, and the said Frank Taylor conveyed to said Moore, on the twenty-sixth day of August, 1889, the said property.</p> <p>The sale of the mining property under trust deed was attended by W. EL Matt, who was also the agent of G. W. Venable, and under Venable’s instruction purchased the property for Venable in the name of Moore, and his fee of $100 for this service was charged to the Bed Elephant Mining Company — that is, the partnership of G. V. Bryan, G. W. Venable and G. II. Boberts, mining partners in the same property, and said fee was paid by G. V. Bryan by check, signing himself as “Supt.,” meaning superintendent of said Bed Elephant Mining Company.</p> <p>In March, 1889, a short time before G, W. Venable purchased the trust deed from the First National Bank, Venable testifies that he received $1,550 from the Bed Elephant Company, that is, from Bryan, Venable and Boberts (sent him by said G. V. Brjran), which he credited to the company on his books. The purchase of the trust deed was made by Venable through his said agent Moore, from the First National Bank of Hailey on July 20, 1889. On June 29, 1889, the said G. W. Venable charged the Bed Elephant Company with $1,000, and July 27th, seven days after purchase of trust deed, said Venable charged said company with $558.25, being in all $1,558.25, the amount Venable paid for the trust deed against Boberts.</p> <p>The evidence further shows that by direction of Venable, Moore transferred the interest so acquired from Boberts to himself and G. V. Bryan.. On the thirteenth day of February, 1890, the plaintiff in this case, having before that acquired from said Boberts aU his interest in the said Bed Elephant* Mining Company’s property, tendered to Frank Taylor, trustee as aforesaid, tbe sum of $1,900, being amount due on said trust deed with interest, and all costs and expenses attending the execution of said trust, and demanded a deed from said Taylor of the said Bed Elephant Company’s mining property. This tender was made for the purpose of redeeming said property from the sale made on the seventeenth day of August, 1889.</p>

<p>Constitutional Law. — A. substantial compliance with the provisions of sections 1 and 2, article 20, of the constitution of Idaho, in the matter of proposing 'amendments to the constitution, and submitting them to the people for ratification, is sufficient.</p> <p>Amendments to Constitution, How Proposed. — Under the provisions of section 1, article 20, of the constitution, amendments may be proposed by the legislature by joint resolution.</p> <p>Same — Legislature not Governed by Section 15, Article 3. — The power of the legislature to propose amendments to the constitution is not governed by the provisions of section 15, article 3, of the constitution.</p> <p>Title of Kesolution. — It is not essential that the subject of a proposed amendment shall be expressed in the title.</p> <p>Same. — It is sufficient if such joint resolution clearly designates the section and article of the constitution to be amended.</p> <p>When Amendment Goes into Effect. — The amendment to section 18, article 5, of the state constitution, creating the office of prosecuting attorney, does not go into full operation until the close of the term of office for which district attorneys were elected at the general election of 1894.</p> <p>Amendment not Self-executing. — Said amendment is not self-execut- , ing. It requires legislation to prescribe the duties of the prosecuting attorney,- the board of county commissioners to fix his compensation; and the qualified electors to elect such officer at the next general election.</p> <p>When Officers Take Possession of Their Offices. — The law prescribes the date on which the county officers so elected shall take possession of their offices, and that is the date said amendment goes into full operation.</p> <p>When Amendment Becomes Operative, How Determined. — In determining the time at which a constitutional amendment becomes fully operative, the intention of the people adopting it should be ascertained. This should be done from the context of the amendment, and, in ease of doubt, the court should also consider the existing conditions, and the results which would follow, if the amendment was held to have become immediately operative.</p> <p>(Syllabus by the court.)</p>

<p>Original proceeding in supreme court by writ of mandate.</p> <p>files no brief.</p> <p>files no brief.</p>

In capital cases the court has no power, without the consent of the prisoner, to discharge the jury because they have not agreed and declare they never can agree upon a' verdict. (Commonwealth v. Goolc, 6 Serg. & E. (Pa.) 577, 9 Am. Dec. 465; McCreary v. Commonwealth, 29 Pa. St. 325; O'Brian ¶. Commonwealth, 9 Bush (Ky.), 339, 15 Am. Eep. 715; People v. Cage, 48 Cal. 323, 17 Am. Eep. 436; Commonwealth v. Fitzpatrick., 121 Pa. St. 115, 6 Am.

Boards of county commissioners being courts of most limited jurisdiction, jurisdiction must affirmatively appear. It will not be presumed. (Gorman v. Board, 1 Idaho, 553, 556, 558; City of Ottawa v. Carey, 108 U. S. 110, 2 Sup. Ct. Eep. 361; Barnett v. Denison, 145 IT. S. 135, 13 Sup. Ct.

Does the constitution, while declaring one form of action necessarily do away with the former procedure, and of right is-defendant entitled to a jury in an equity case? The constitution of this state confers on district court both law and chancery jurisdiction. (Const., art. 1, sec. 7, art. 5, secs. 1, 20.) While it is not contended that the right of trial by jury is not absolute in a proper case, does the constitution necessarily change the practice of trial in equity cases?

This action was brought by Ada county for the purpose of' having certain warrants drawn on the general bridge fund of' said county in the years 1891, 1892 and 1893, declared null and void and for the cancellation of said warrants. One question presented at the very outset, of the utmost importance, and which if decided against us would settle the controversy in favor of the respondents, is the right of the county to bring suit to cancel its warrants claimed to be void.

<p>Demurrer — Equity — County Warrants — Cancellation oe. — This case was submitted with the case of Ada County v. Bullen Bridge Co., et al., ante, p. 79, with the understanding that the decision in this ease should follow the decision in that. ' For the reasons stated in the opinion in that case, the judgment of the court below is sustained in this ease.</p>

Original proceeding in supreme court to obtain a recom-mendatory decision under section 10 of article 5 of constitution. files no brief. files-no brief.

The first point we desire to discuss is the power of defendant to waive an examination upon a charge of felony. We claim that he cannot waive this right, and that the motion to quash the information should have been sustained. Section 7576 of the Eevised Statutes of Idaho expressly declares an examination -cannot be waived.

The note sued on' shows on its face that it had been altered in a material part, and the same was inadmissible under section 6030 of the Eevised Statutes of Idaho, and its admission in evidence was error.

<p>Foreclosure of Mortgage- — Pbooess Erroneous — Not Void — Amendment of. — The process or writ authorized by section 4473 of the Kevised Statutes may be amended upon a proper showing.</p> <p>(Syllabus by the court.)</p>

<p>APPEAL from District Court, Ada County.</p> <p>The evidence of an officer or notary public or subscribing witnesses is entitled to peculiar weight, and is conclusive in the absence of clear and satisfactory evidence to the contrary.' (Massay v. Huntington, 118 Til. 80, 7 N. E. 269; Buclcey v. Buclcey, 38 W. Va. 168, 18 S. E. 383.) The rule in this class of cases is, Had the contracting party sufficient mental capacity to-reasonably understand the value and effect of what he was doing? (Trirnbo v. Trimbo, 47 Minn. 389, 50 N. W. 350; Aiman v. Stout, 42 Pa. St. 114.) A man is capable of deeding his property if he is capable of transacting ordinary business, settling accounts, etc. (Frances v. Wilkinson, 147 Ill. 370, 35 N. E. 150 ; Meeker v. Meeker, 75 Ill. 260; Freeman v. Easley, 117 Ill. 317, T N E. 656.) It is not necessary that the grantor should comprehend his deed in legal form, or be able to go entirely through the matter without prompting. (Trish v. Newell, 62 111.197, 14 Am. Eep. 79; Carpenter v. Calvert, 83 Ill. 62.) Although a mind may be impaired, affected by dementia, yet if the party understands the nature of his act it is sufficient. (Pickeral v. Morris, 97 Ill. .220; Stone v. Millburn, 83 Ill. 105; Redffeld on Wills, 98-100; English v. Porter, 109 Ill. 285.) The fact that a party is physically incapable of looking after his property, or that his mind is enfeebled by age or disease, will not render him incapable of deeding his property. (Argo v. Coffin, 142 Ill. 368, 34 Am. St. Rep. 86, 32 N. E. 679; 'Whitney v. Twombly, 136 Mass. 145.) As to the weight of the physician’s testimony as against those personally acquainted with the party and the transaction,, see Rutherford v. Morris, 77 Ill. 397; Burley v. McGough, 115 Ill. 11, 3 N. E. 738. Frand or undue influence must be directly connected with the execution of the instrument. It must be a moving power at the time the instrument is executed. (Rutherford v. Morris, 77 Ill. 399; Guild v. Hull, 127 Ill. 523, 20 N. E„ 665; Reichenbach v. Ruddach, 127 Pa. St. 564, 18 Atl. 432.) Influence through affection, etc., will not avoid a deed. (Burt v. Quisenberry, 132 Ill. 385, 24 N. E. 622; Children's Aid Soc. v. Loveridge, 70 N. Y< 387; Hale v. Cole, 31 W. Ya. 576, 8 S. E. 516; Nichols v. Kerr, 20 W. Ya. 252; Coit v. Patchen, 77 N. Y. 533.) Undue influence must not be the influence of attachment, affection, etc., and must amount to force or coercion. (Goodwin v. Goodwin, 59 Cal. 561; Howe v. Howe, 99 Mass. 88; Carpenter v. Bailey, 94 Cal. 406, 29 Pae. 1102.) Undue influence must destroy the will of the grantor completely, take away his wishes and thwart his purposes, (ilíara; v. McGlin, 88 N. Y. 357.) Unequal division of the property gives rise to no inference against the validity of the deed. (Freeman v. Easley, 117 Ill. 317, 7 N. E. 657; Horn v. Pullman, 72 N. Y. 269, 276.) The grantor may favor his children one against the other. (Cleomater v. Kinster, 43 Ill. 272; Rutherford v. Morris, 77 Ill. 377; Hill v. Rash, 41 Me. 585, 66 Am. Dec. 266-267; Jaclcson v. King, 4 Cow. 207, 15 Am. Dec. 354, and note; 27 Am. & Eng. Ency. of Law, 489; Sanftey v. Jackson, 16 Tex. 584; Jenkins v~ Pye, 1 Pet. (U. S.) 241; Millican v. Millican, 24 Tex. 446; Mu-loch v. Muloch, 31 N. J. Eq. 394; Leddel ¶. Starr, 20 N. J. Eq. ' 274; Pomeroy’s Equity Jurisprudence, see. 962.) The terms “confidential relations” and “fiduciary relation” are convertible terms in legal parlance. (Robbins v. Hope, 57 Cal. 493; Guild, v. Hall, 127 111. 523, 20 N. E. 665; Brownfield v. Brownfield, 43 Ill. 148.) It will be seen by reference to the court’s instruetion, given of bis own motion, that be did not instruct tbem as to tbe burden of proof at all. We were entitled to a clear instruction upon this proposition. Tbe burden in this case was upon tbe plaintiffs. (English, v. Porter, 109 III. 285.) Indefinite, uncertain and contradictory findings will not sustain a judgment. (Gilman v. Curtis, 66 Cal. 116, 4 Pac. 1094; Learned v. Castle, 78 Cal. 454, 18 Pac. 872, 21 Pac. 11.)</p> <p>The supreme court of Idaho territory, in Mootry v. Hawley, 1 Idaho, 543, laid down tbe rule that the appellate court would not disturb a judgment or verdict, or order denying a new trial, where there is a substantial conflict of testimony; and this rule has been followed in a long line of decisions of this court. {Ainslie v. Printing Co., 1 Idaho, 64; Black v. City of Lewiston, 2 Idaho, 276, 13 Pac. 80.) A deed by one in a weak state of mind, to one who sustains confidential relations toward him, and where there is no consideration, will not be upheld, as undue influence will be presumed. (Allore v. Jewell, 94 IJ. S. 506; McFadden v. Vincent, 21 Tex. 47; McCraw v. Davis, 2 Ired. Eq. (N. C.) 618; Hale v. Brown, 11 Ala. 87; Graves v. White, 4 Baxt. (Tenn.) 38; Griffith v. Qodey, 113 IJ. S. 89, 5 Sup. Ct. Rep. 383; Conley v. Bailor, 118 TJ. S. 133, 6 Sup. Ct. Rep. 1001; Moore v. Moore, 56 Cal. 89; Keeble v. Cummins, 5 Hayw. (Tenn.) 43; Gates v. Cornett, 72 Mich. 420, 40 N. W. 740; Wilkinson v. Sherman, 45 N. J. Eq. 421, 18 Atl. 228.) Where confidential relations exist between the donor and donee, a gift obtained by the person standing in such relation is prima facie void, and the burden of proof is thrown on the donee to show that the gift was the free, voluntary and unbiased act of the donor. (8 Am. & Eng. Ency. of Law, 1310-1312, and note 2; Ford v. Uennessy, 70 Mo. 580; Todd v. Grove, 33 Md. 188; Woodbury, 141 Mass. 329, 55 Am. Rep. 479, 5 N. E. 275.) As to the question of undue influence: In re Sprat’s Will, 32 N. Y. Supp. 1092, 11 Mise. Rep. 218; In re Nolie’s Will, 32 N. Y. Supp. 226, 10 Mise. Rep. 608; In re Graf’s Will, 31 N. Y. Supp. 682, 10 Mise. Rep. 293; Smith v. Smith, 67 Yt. 443, 32 Atl. 255; Rivard v. Rivard, 109 Mich. 98, 63 Am. St. Rep. 566, 66 N. W. 681; Devlin on Deeds, sec. 84. When a foundation has been laid by evidence tending to show unsonndness of mind, the previously declared intentions of testator are admissible to show the deed is the result of imposition. {Howe v. Howe, 99 Mass. 88-91; In re Goldthorpe’s Estate, 94 Iowa, 336, 58 Am. St. Eep. 4-00, 62 N. W. 845; Garland v. Smith, 127 Mo. 567, 28 S. W. 191, 29 S. W. 836; In re Ely’s Estate, 16 Mise'. Kep. 228, 39 N. Y. Supp. 177.) Before instructions claimed to be erroneous, can be considered in this court,there must be: 1. A special and specific objection made to each instruction by number, and exception taken in the same manner, and that a general objection is insufficient; 2. That the grounds of the objection and exception must be specially and distinctly expressed. {Black v- City of Lewiston, 2 Idaho, 276, 13 Pac. 80; Griswold v. Boley, 1 Mont. 545; Gum v. Murray, 6 Mont. 10, 9 Pac. 447; Haak v. Struve, 38 Kan. 326, 16 Pac. 686; Bard v. Elston, 31 Kan. 274, 1 Pac. 565; State v. Wilgus,, 32 Kan. 126, 4 Pae. 218; McFeters v. Pierson, 15 Colo. 201, 22 Am. St. Rep. 388, 24 Pac. 1076; Cockrill v. Hall, 76 Cal. 192, 18 Pac. 318; Jacobs v. Mitchell, 2 Colo. App. 456, 31 Pae. 235.) This is a case in equity and the verdict of the jury is only advisory. {Schneider v. Brown, 85 Cal. 205, 24 Pac. 715; Sweetser v, Dobbins, 65 Cal. 529, 4 Pac. 540; Diel v. Seeunders, 8 Cal. 281; Stockman v.i Riverside L. & I. Co., 64 Cal. 57, 28 Pae. 116; Spottiswood v. Weir, 66 Cal. 525, 6 Pac. 381; Bell v. Marsh, 80 Cal. 411, 22 Pac. 170.) Where special issues are submitted to the jury in an equity case, and the court itself finds on all the issues, error in giving or refusing instructions is immaterial, as the correctness of the findings are to be tested by the evidence. {Hewlett v. Pilcher, 85 Cal. 542, 24 Pac. 781.) Where, as in this case, the child was the guiding hand and the parent the dependent, there is a presumption against the deed made by the parent to the child. {Highberger v. Stiffler, 21 Md. 338, 83 Am. Dec. 593; Silpler v. Lord, 28 Ga. 52; White v. Smith, 51 Ala. 405.) There is nothing to prevent charging mental incompetency and undue influence in the same cause of action in a complaint. {Argo v. Coffin, 142 111. 368, 34 Am. St. Rep. 86, 32 N. E. 679; Prish v. Hewell, 62 Ill. 198, 14 Am. Rep, 79.) If a person, however, has great weakness of mind, he may be able to contract, and the contract upheld, unless undue influence is used upon him; and the condition of mind is important in determining the amount of influence necessary to overcome it. (Bispham’s Principles of Equity, 230; Oahey v. Ritchie, 69 Iowa, 65, 28" N. W. 448: Harding ¶. Handy, 11 Wheat. 125; Moore v. Moore, 56 Cal. 92; Allen v. Jewell, 94 U. S. 506; Baton v. Baton, 37 N. J. L. 108, 18 Am. Eep. 716.)</p>

<p>Mortgage Lien — Homestead.—Under the law of Idaho a mortgage lien cannot he defeated by a declaration of homestead made after the mortgage lien attaches.</p> <p>Residence — Homestead—Community Property. — The only estate or interest the wife has in that portion of the community property which is occupied as a residence, and not dedicated as a homestead, is subject to the control of the husband, except as to alienation or encumbrance, as prescribed by the statutes.</p> <p>Abandonment or Change op Residence Without Consent of Wife.— A residence can be changed or abandoned at any time by the husband without the consent of the wife, and when such change or abandonment has taken place the property is again under the absolute control of the husband, unless the same has been dedicated as a homestead, as provided by law.</p> <p>Statute of' Limitations. — But one action can lie for the recovery of any debt secured by a lien upon real or personal property in this state, 'and where such action is barred by the statute of limitations as to the debt, the lien is carried with it and is likewise barred, and whatever will prevent the running of the statute upon one will prevent it upon both.</p> <p>(Syllabus by the court.)</p>

Original proceeding in. supreme court by writ of mandate. No brief filed. The record shows that when the bonds in question were issued there were-dollars in -the treasury of Alturts county, •applicable to the payment of the floating debt which the bonds were to fund. This had to be first applied, and valid bonds to be issued only for the balance. (Bannock Go. v. Bunting, 3 Idaho, 156, 37 Pac. 277; Sess.

<p>APPEAL from District Court, Cassia County.</p> <p>There must be affirmative evidence of the facts or acts of • undue influence before the declarations of testator are admissible. (Cudney v. Cudney, 68 N. Y. 148; In re Hess’ Will, 48 Minn. 504, 31 Am. St. Rep. 665, 51 N. W. 614.) In the case at bar no facts of undue influence are testified to, therefore'the alleged declarations should have been excluded. Declarations made after the execution of the will are inadmissible. {Leslie v. McMurtry, 60 Ark. 301, 30 S. W. 33; Mason v. Williams, 53 Hun, 398, 6 N. Y. Supp. 479.) Even if admissible and true, the facts, the declarations in evidence, do not -amount to undue influence. (In re Jaclcson, 26 Wis. 104; In re McKenna., 4 N. Y. Supp. 458; Trost v. Dingier, 118 Pa. St. 259, 4 Am. St. Rep. 593, 12 Atl. 296.) The capacha of testator at the time of making the will is the sole question to be determined in deciding upon the validity of a will on that •ground. (Kinne v. Kinne, 9 Conn. 102, 21 Am. Dee. 732; Kerr v. Lunsford, 31 W. Va. 659, 8 S. E. 498.) Undue influence is a fact for the court or jury to determine, not for opinion testimony. (O'Connor v. Madesin, 98 Mich. 183, 57 N. W. 105; In re Blood, 62 Yt. 359, 19 Atl. 770; Stackhouse v. Horton, 15 N. J. Eq. 202.) The subscribing witness cannot testify to capacity from what he has seen since its execution. (Williams v. Spencer', 150’Mass. 346, 15 Am. St. Rep. 206, 23-N. E. 105; CJvrisman v. Chrisman, 16 Or. 127, 18 Pac. 12; Loughney v. Loughney, 87 Wis. 92, 58 N. W. 250.) When findings are contradictory on a material point a judgment cannot be sustained. (Manly v. Howlett, 55 Cal. 94; Reese v. Cochran, 52 Cal. 495.) When the findings are inconsistent a new trial should be granted. (Shoemaker v. Railroad, 30-Kan. 359, 2 Pae. 517; Kerns v. McKean, 65 Cal. 411, 4 Pac. 404; Learned v. Castle, 78 Cal. 454, 18 Pac. 872,21 Pac. 11;- McBride v. Railroad, 3 Wyo. 247, 21 Pac. 687; Chicago etc. R. R. v. Townsdin, 38 Kan. 78, 15 Pac. 889; Aultman v. Mickey, 41 Kan. 348, 21 Pac. 254; Deatherage v. Henderson, 43 Kan. 684, 23 Pac. 1052; Sloss v. Allman, 64 Cal. 47, 30 Pac. 574; Union Pacific R. R. v. Sternbergh, 54 Kan. 410, 38 Pac. 486; Ilewson v. Saffin, 7 Ohio (pt. 2), 232.) The true test as to whether special findings are inconsistent either in themselves or with a general verdict is whether they would authorize a different judgment as well as the judgment which is entered. (Loewenberg v. Rosenthal, 18 Or. 178, 22 Pac. 601.^</p> <p>We call the court’s attention to what is meant by the term “undue influence.” (Black’s Law Dictionary, 1200; Haydock v. Haydock, 34 N. J. Eq. 570, 38 Am. Eep. 385; Pomeroy’s Equity Jurisprudence, 951; Eice on Probate Law, 229 et seq.) It is the rule that the evidence of a subscribing witness is entitled to great weight. (Massey v. Huntington, 118 Ill. 80, 7 N. E. 269; Buckey v. Buckey, 38 W. Ya. 168, 18 S. E. 383.) Findings must be construed together. (Polack v. McGrath, 38 Cal. 666.) Where a question arises as to the construction of findings, they must all be read together to ascertain the exact shade of meaning intended. (Kimball v. Lohmas, 31 Cal. 154; Milliard v. Hathway, 27 Cal. 119; Schultz v. McLean, 93 Cal. 329, 28 Pac. 1053; Tage v. Alberts, 2 Idaho, 271, 13 Pac. 19; Mott v. Bwing, 90 Cal. 231, 27 Pae. 194; Winterbwrn v. Chambers, 91 Cal. 170, 27 Pac. 658.) Appellant contends that if a person cherishes an insane delusion, or is under undue influence, he cannot make a will. This is an erroneous view of the law. These matters will avoid a will when made, or it may not be a valid will when made, but the document is a will for all that. (Eice on Probate Law and Practice, 209, 210, 218, and cases cited.)</p>

file no' brief on the points decided by the court. The'transcript shows no proof that notice was given to the district attorney or other counsel for the prosecution, of the time when the statement, assignment of errors or bill of exceptions on motion for a new trial would be presented for settlement. (Eev.

The appellant was indicted by information of the district attorney' presumptively for the crime of murder in the first degree. He was found guilty of murder in the second degree. He moved for a new trial, which yas overruled, from which order he appeals to this court and he also appeals from the judgment.

Had the assessor of Latah county the right to let the contract to publish the delinquent tax list under the law of 1890-91 on page 337? We maintain that it was the sole duty of the assessor to let the contract of printing the county delinquent tax list. (Idaho Sess. Laws 1890-91, p. 337; Randal v. Yuba Go., 30 Cal. 593; Eastman v. Linn, 36 Minn.

<p>APPEAL from District Court, Latah County.</p> <p>Respondent Willows, on August 11, 1894, executed his promissory note to the appellant Rosenstien for $341.97, due one day after date, and on the same day executed a chattel mortgage upon the crop of wheat to be grown in 1895 upon certain real estate described therein. On or about the tenth day of October, 1895, Rosenstien took possession under the mortgage of a portion of the wheat, for the reason, as he claims, it was not being properly cared for, and that his security was becoming worthless. The defendant Rosenstien sets up by way of separate answer the fact that he held a mortgage upon the grain which was unpaid. The plaintiff Willows admits the execution of the mortgage, and also admits that sixty-two dollars was due thereon. The verdict and the judgment in this cause should be vacated, for the reason that upon the pleadings and upon the testimony the action of trover will not lie. Defendant Rosenstien held a mortgage upon the grain which was unsatisfied. This is admitted both in the pleadings and by the plaintiff Willows. Willows admits there was $201.99 due oil this mortgage, and he had delivered $140 worth of grain to Bosenstien prior to the time the wheat was taken possession of. There being an account due and unpaid upon the mortgage and note there could be no conversion by the mortgagee. (Heyland v. Badger, 35 Cal. 404.) Section 4523 of the Stab? utes of Idaho provides in substance that a mortgage of real property shall not be deemed a conveyance, whatever its terms, so as to enable the mortgagee to recover possession without foreclosure. This section applies only to real estate mortgages. (Fogarty v. Sawyer, 17 Cal. 592.) A mortgagor cannot maintain trover against the mortgagee after default in the conditions of the mortgage. (Jones on Chattel Mortgages, secs. 435, 437.) A mortgagee cannot be charged with wrongful conversion upon taking possession after default any more than he could after an alleged conversion where he was put into possession by the mortgagor. (Jones on Chattel Mortgages, secs. 702, 703.) Bosenstien had the right after condition broken to take possession of the property covered by the mortgage. The instrument in question provides, in substance, that if default shall be made in the payment of the money, or said first party does not take proper care of the property, or if said second party shall at any time deem himself insecure, it shall be lawful for said second party, or his agent, to take said property wherever it may be found and sell or dispose of the same. {First Nat. Banlc v. Wilbur, 16 Colo. 316, 26 Pac. 777; Jones v. Annis, 47 Kan. 478, 28 Pac. 156.) The property was being destroyed and his security was becoming worthless. {Huebner v. Koeblce, 42 Wis. 319; Cline v. Libbey, 46. Wis. 123, 32 Am. Bep. 700, 49 N. W. 832; Botsford v. Murphy, 47 Mich. 536, 537, 11 N. W. 375, 376; Werner v. Bergman, 28 Kan. 60, 42 Am. Bep. 1521.) Having a mortgage upon the grain for $341.97, and having expended $133 for threshing the grain, and paid for heading and other work thirty-eight dollars, he took possession of the grain to prevent his security from being lost, and hauled it to the nearest warehouse at his own expense, stored it as wheat received from Willows, and there it remained without sale or any realization of assets. He never used the wheat for any purpose. His only purpose in hauling the grain in was to prevent it being damaged. The foregoing facts are practically uncontradieted, and we insist that they do not constitute conversion, and that therefore the evidence does not sustain the verdict and judgment as is alleged in specification of error. (Jones v. Annis, 47 Kan. 478, 28 Pac. 156; Jones on Chattel Mortgages, secs. 429-431, 702; Byrnes v. Hatch, 77 Cal. 244, 19 Pae. 482.) The next error we call attention to is in the instruction with reference to the payment of the $341.97 note which the mortgage was given to secure. By this instruction the court states that if the $341.97 was included in the new note for $1,215 given by Willows and Hedrick, and if the $1,215 note had been paid, that the mortgagee had no lien. In the pleadings it is admitted by Willows that the mortgage was held to secure a balance of sixty dollars due from Willows to Eosenstien which arose out of an indebtedness in addition to the note. Admitting that the $341.97 note was included in the $1,215 note, it would not be payment. (Edwards on Bills and Notes, 3d ed., see. 752.)</p> <p>In order for contradictory instructions to be ground for reversal, the exception thereto must be upon the ground that they are contradictory. (Black v. City of Lewiston, 2 Idaho, 276, 13 Pac. 80; Yoalcum v. Mattasch, 26 S. W. 129 (131); Sierra Union Water & Min. Go. v. Baker, 70 Cal. 572, 8 Pac. >305, 11 Pac. 654.) There must be grounds stated in the exception to the oral charge of the court or they will be disregarded. (Cases supra, on same point; Jones v. Osgood, 6 N. T. 233; 2 Ency. of PI. & Pr., p. 948, eases.) The proposition that a chattel mortgage passes title and right to possession to the mortgagee as at common law, the statutes of Idaho, however, have expressly provided that a mortgage transfers no title, notwithstanding an agreement to the contrary. The lien of a mortgage is special, etc. (Idaho Eev. Stats., sec. 3352.) Contracts of mortgage are subject to the provisions of title 12, chapter 1 of the Eevised Statutes of Idaho. (Idaho Eev. Stats., sec. 3330.) A mortgage is a lien. (Idaho Eev. Stats., sec. 3355.) Notwithstanding an agreement to the contrary, a lien, or contract for a lien, transfers no title to the property subject to the lien. (Idaho Eev. Stats., sec. 3333.) In the event the mortgagee of chattels takes possession thereof under the mortgage, but does not sell, he is liable to the mortgagor as for ■a conversion. (Bowery v. Hoover, 97 Iowa, 581, 66 N. W. 772; Miller v. McElwain, 52 Kan. 91, 34 Pac. 396.) We further contend that under the laws of those states in which the chattel mortgage is only security, and does not transfer the title, as in Idaho, that the mortgagor of chattels is the legal and equitable owner thereof, both before and after a default, and is entitled to the possession thereof, and that this right to the thing, and ownership of the thing, remains in the mortgagor until after he has been foreclosed thereof in the manner provided by statute. (Sanford, v. Duluth etc. Elevator Go., 2 N. Dak. 6, 48 N. W. 434; Everett v. Buchanan, 2 Dak. 249, 6 N. W. 439, 8 N. W. 31.) The note of August 11, 1894, by Willows to Rosenstien, was not given for a. debt of Willows, but for a debt of the firm of Willows & Hedrick. It was afterward included in the $652 note given by the firm; and was again put into and formed part of the $1,215 note executed by the firm. The said last note was thereafter paid, thus paying the $341.97 note. (Everett v. Buchanan, 2 Dak. 249, 6 N. W. 439, 8 N. W. 31; Hartman v. Binggenberg, 119 Ind. 72, 21 N. E. 465; Idaho Rev. Stats., sec. 3332.)</p>

<p>Laches — Rules of Court — Piling Teansckipt. — Tlxe filing of a typewritten copy of a transcript in a civil case, without complying with the provisions of paragraph 10 of rule 27 of this court, by depositing with the clerk funds sufficient to pay the expenses of printing the same or making arrangements with the clerk therefor, will not avail.</p> <p>(Syllabus by the court.)</p>

The complaint alleges that appellant is indebted for meats ■sold and furnished to him.

The agreed facts show that defendant is clerk of the district «court in and for Idaho county; that plaintiffs were preparing an appeal from the district court in Idaho county to this court; that instead of requesting the derk to prepare for them their transcript on appeal, the plaintiffs, through their attorney, prepared it for the clerk; and presented it to the clerk for certification; he demanded twenty cents a folio for certifying the same; plaintiffs demanded that he…

The court erred in granting the order for writ of assistance, for the reason that the amended complaint was never served on. the defendants, Henry McGregor and .7. B. West, through whom defendant, Thyrza C. McGregor, claims equity of redemption, and therefore the right'to hold possession.

This is an action in detinue brought by the plaintiff Dobbins against the defendant Mounee, sheriff of Nez Perces county, Idaho, claiming that on the twenty-eighth day of August, 189-1, the plaintiff was the owner of, and is now the owner of, and up to the twenty-eighth day of August was in the possession of and is now entitled to the immediate possession of four hundred bushels of wheat and twenty-two sacks of barley, and certain farm, farmed by plain till and owned by one…

Did the court err in striking out defendant’s answer? The •admitted rule is, that a verified answer containing an affirmative defense should not be stricken out. (Smith v. Homer, 15 Mise.

<p>APPEAL from District Court, Ada County.</p> <p>The first proposition raised by the answer, although not urged upon the trial, is that this action is barred by section 4054, subdivision 1, of the Eevised Statutes of the state of Idaho, which provides: “That an action upon a liability created by statute is barred within three jrears.” It is a universal and a well-established rule that a statute of limitation must be strictly construed. (Tynan v. Walker, 35 Cal. 634, 95 Am. Dec. 152.) The section of our statute above cited refers to liability created by statute. The liability in this case and upon which this action is brought is not a statutory liability, but is a liability created and positively fixed by our constitution and is upon an instrument in writing. (Idaho Const., art. 18, secs. 7, 8; Placer Go. v. Dickerson, 45 Cal. 12; Victor Silver Min. Go. v. Crockwell, 3 Utah, 152, 1 Pae. 470, 1 West Coast Pep. 428. It follows, then, that if the statute of limitations runs at all against this claim, which we greatly doubt, it is governed by the provisions of section 4052 and would run five years. The next question that arises in this case is as to the eonclusiveness of a judgment against the principal as against the sureties. It is admitted in this case that the proceedings and allegations in regard to the suit, judgment, etc., set up in the-complaint herein are true, but defendants contend that the judgment is not admissible as against the sureties. We contend not only that the judgment is admissible but is prima facie evidence as against these defendants. (Stephens m Shafer, 48 Wis. 54, 3 N. W. 835, 33 Am. Eep. 793, and numerous cases therein cited.) The great weight of authority bears us out in our contention that each of the bondsmen are individually liable for the entire and full amount. They cannot take advantage of their failure to qualify in the full amount of the bond to defeat not only the object and purpose of the bond, but the intention of the sureties themselves at the time of the execution of the bond. (Tevis v. Randall, 6 Cal. 632, 65 Am. Dec. 547; People v. Edwards, 9 Cal. 286; People v-JIuson, 78 Cal. 154, 20 Pac. 369; Kincannon v. Carroll, 0 Yerg. 11, 30 Am. Dec. 391; People v. Edwards, 29 Cal. 429.) But regardless of the fact that the great weight of authority bears out in our contention, we think the proposition has been settled beyond question by our statute and a decision of our own supreme court. (Idaho Eev. Stats., sec. 405; People v. Slocum, 1 Idaho, 62.)</p> <p>The first question presented by the demurrer to the answer is that the present action is barred by the statute of limitations. We contend that this is a liability arising under the statute and is controlled by subdivision 1, section 4054, which reads as follows: “Within three years an action upon a liability created by statute other than a penalty or forfeiture.” 'The principle for which we contend is that the cause of action here is based upon the proposition that if Thomas B. Gess had secured certain money while he was in office, it was his duty te pay back the money, and that this was a duty or an obligation arising under and by. reason of the provisions of the law. 'The bond is but the guaranty; it does not give rise to the cause of action, nor does it extend the time in which an action may be brought. It is simply a guaranty for the liability when it does arise and so long as it exists. (Board v. Van-Slyck, 53 Kan. '633, 35 Pac. 399; Ryus v. Gruble, 31 Kan. 767, 3 Pae. 518.) The statute of limitation is as applicable to actions like the one at bar brought by the state as to those-brought by private persons; and public officers and their bondsmen cannot be harassed by suits brought after the statutory period of limitation has expired. (People v. Van Ness, 76-Cal. 131, 18 Pac. 139; Spencer v. Perry, 18 Mich. 394.) Thu test as to whether the liability is one created by statute is said to be whether, independent of the statute, the law imposes an. obligation to do that which the statute requires to be done, and whether, independent of the statute, the right of action exists-for a breach of the duty or obligation imposed by the state. (Wood on Limitations of Actions, see. 39; State v. Baker County, 34 Or. 146, 33 Pac. 530.) The moneys sued for were-not received by said Thomas B. Gess in his official capacity, or as money which by law he was permitted to receive, but were-voluntarily paid to him after he had fully accounted for and paid over the moneys received by him as assessor and tax collector. In the action against the principal it was expressly held that Mr. Gess was paid the money in violation of the statute or constitution, and that the money was not received or paid over to him in accordance with the statute, and that, this money did not come into his hands in pursuance of the-statute or law. (Ada County v. Gess, 4 Idaho, 611, 43 Pac. 71.) The engagement or obligation of the sureties cannot be-extended beyond the strict terms of the bond. (Orman v. City of Pueblo, 8 Colo. 393, 6 Pac. 931; Taylor v. Parker, 43' Wis. 78; Miller v. Stewart, 9 Wheat. 680; United States Boyd, 15 Pet. 187.) The breach must be predicated upon some official misconduct. (Orman v. City of Pueblo, 8 Colo. 393, 6 Pac. 931; Ward v. Stahl, 81 N. Y. 403; Brandt on Suretyship and Guaranty, sec. 538; State v. Anthony, 30 Mo. App. 638; People v. Pennock, 60 N. Y. 635, 636.) In matters-of official bonds a judgment against the principal is in no way evidence against the sureties. Where sureties agree in general terms that an officer will faithfuly perform his duty, they are entitled to be heard and have their day in court, and any judgment rendered against a principal in an action to which they were not parties is not even evidence against them. (Pico v. Webster, 14 Cal. 202, 73 Am. Dee. 647; Rodini v. Lytle, 17 Mont. 448, 43 Pac. 502; Irwin v. Backus, 25 Cal. 223, 85 Am. Dec. 125; Douglas v. Howland, 24 Wend. 35; Carmichael v. •Governor, 3 How. (Miss.) 236; Lucas v. Governor, 6 Ala. 826; ■Jackson v. Griswold, 4 Hill, 522; Thomas v. Ilubbell, 15 N. Y. 405, 60 Am. Dec. 619; Lartigue v. Baldwin, 5 Mart. (La.) 193; Moss v. McCullough, 5 Hill (N. Y.), 131; Brandt on Suretyship and Guaranty, secs. 630, 636; Karmack v. Commonwealth, 5 Binn. 184; Pioneer Sav. etc. Co. v. BaHsch, 51 Minn. 474, 38 Am. St. Bep. 511, 53 N. W. 764; Governor v. •Shelby, 2 Blackf. 26.)</p>

When the attaching creditor redeemed the property he could only sell under his attachment. (Code, see. 3389.) When a statute gives a right or a remedy which did not exist at common law, and provides a specific method of enforcing it, the mode of procedure provided by the statute must be strictly pursued. (S3 Am. & Eng. Ency. of Law, 402; People v. Gray croft, 2 Cal. 243, 56 Am.

says: I am the real party in interest in the matter of this appeal. That the first time I learned that such appeal had been taken was on March 9, 1896, when I received by mail the brief of ■appellant and the transcript and too late to prepare, print and serve a brief herein within the time for serving such brief provided in the rules of this court.

This case involves the validity of a voluntary conveyance by one brother to another, with the alleged intention of hindering, delaying and defrauding creditors. Such conveyances have always been regarded with disfavor by the courts, and statutes against them have received a liberal construction. In suits instituted for the purpose of impeaching transactions on the ground of fraud, specific facts must be alleged, and in what the fraud consists and how it has been effected.

<p>Original proceeding in supreme court. Petition for habeas corpus.</p> <p>The decision of this case depends entirely upon the provisions of the constitution and laws of this state, and the following are the provisions of the constitution to be construed by the court as throwing light on the question and showing the intention of the legislature in regard to Boise City charter. Article 11, section 3: “No charter of incorporation shall be granted, extended, changed or amended by special law, except for such municipal .... as are or may be under the control of the state. The above provision gives the legislature the right to pass a special law for a municipal corporation.” (Carpenter v. People, 5 Pac. 838.) Article 13, section 1: “Cities and towns heretofore incorporated may become organized under such general laws whenever a majority of the electors at a general election shall so determine, under such provision therefor as may be made by the legislature.” Article 31, section 1: “That no inconvenience may arise from a change of the territorial government to a permanent state government it is declared that all writs .... and rights of individuals and bodies corporate shall continue as if no change had taken place in this government.” The charter of Boise City, which authorizes the city council to license gambling, was in full force and effect when the constitution was adopted; it has not expired by its own limitation, and if repealed at all, it must be by virtue of tbe gambling law passed by the last legislature. The ordinance under which the license was issued in this ease was passed under the old charter, and at the time of its passage it was not in conflict with any provision of the constitution, any state law or the city charter, and as an indication of the intention of the legislature, they, by a law four days the junior of the gambling law, again recognized the right of the city council to license gambling. (I refer to the amendment of the charter of Boise City.) As to what effect the amendment of the charter of Boise City had on ordinances passed under the old charter I refer the court to Chamberlain v. City of Evansville, 77 Ind. 543; In re Hall, 10 Neb. 537, 7 N. W. 387, a case in point. Therefore the only question in this ease is, Did the gambling law, being a general law, repeal the provision of the city charter in conflict with it? We believe that under the authorities this question must, be answered in the negative. (See Wood v. Board of Gommrs., 58 Cal. 561; State v. Ciarle, 54 Mo. 17, 14 Am. Rep. 471; Davis v. State, 3 Tex. App. 435; Cunningham v. People, 1 Colo. App. 155, 37 Pac. 949; Territory v. McPherson, 6 Dak. 37, 50 N. W. 351; State v. Morristoion, 33 N. J. L. 57; Mullin v. Noe, 3 Ired. 493; People ex rel Dean v. Gommrs. Grand Co. 6 Colo. 303.)</p> <p>No brief filed.</p>

This is an appeal from the judgment and decree of foreclosure and sale of a real estate mortgage, entered in the above-entitled action. Notice of appeal was filed and served only by defendants, Bell Hoffman and Boss Hoffman, her husband.

This case is an application for a writ of mandate commanding Montie B. Gwinn, mayor of the city of Caldwell, to sign as mayor a certain warrant drawn on the general fund of tbe city of Caldwell fqr the sum of $140 payable to John C. Rice, respondent, on account of a claim allowed him by the board of councilmen of s.aid city for services alleged to have been rendered and for costs advanced by him in the ease of G. M. Says, district attorney, plaintiff v. A. K. Steunenberg et…

<p>Moetsage to Secure Future Advances — Foreclosure of Same.— K., desirous of starting a newspaper in Boise, requested a loan, to be repaid in one year, with interest. A subscription was gotten up, and $5,500 subscribed. A mortgage was executed to secure the repayment of the same. But $3,050 of said sum was paid by the subscribers. Held, under the evidence, that said mortgage was given to secure future advances, with full knowledge on tie part of the mortgagor that the loan to him of said entire sum of $5,500 was contingent upon the collection of the same from said subscribers,</p> <p>(Syllabus by the court.)</p>

<p>APPEAL from- District Court, Canyon County.</p> <p>This action was brought in the district court of Canyon county, Idaho, by the plaintiff, who was a citizen and taxpayer of said county, for the purpose of enjoining the defendants from issuing the negotiable coupon bonds of said county for the purpose of taking up and paying certain warrants, which it is claimed are illegal. That the sale of said bonds and the application and appropriation of the proceeds thereof for the purpose aforesaid will be illegal, unauthorized by the act of the legislature of the state of Idaho, and in violation of the constitution of said state, and injurious to the financial credit of said county and to the interests of this plaintiff as a citizen and taxpayer of said county, and to the interests of all other taxpayers and citizens thereof. The three items for bridges and all the warrants issued for rabbit scalps do not belong ta the "ordinary and necessary expenses” of Canyon county,, authorized by the general laws of the state within the purview of article 3, section 3, constitution of the state, having been issued without a previous vote of the people, are void. (Bannock County v. Bunting, 4 Idaho, 156, 37 Pac. 277; County of Ada v. Bullan Bridge Go., ante, p. 79, 47 Pac. 818.) That the plaintiff may maintain this action is supported by* Dillon on Municipal Corporations, second edition, sections 731-734. (Andrews v. Pratt, 44 Cal. 309; Catron v. Board of Commrs., 5 N. Mex. 203, 21 Pac. 60; Crampton v. Zdbrislcie,. 101 IT. S. 601; Bhakespear v. Smith, 77 Cal. 638, 11 Am. Sfc-Bep. 327, 20 Pac. 294; Osterhout v. Bigney, 98 N. Y. 22;, Colburn v. Mayor, 17 Am. Law Beg. 191; Littler v. Jayne, 124 Ill. 123, 132, 16 N. E. 374; Bayle v. City of New Orleans,. 23 Fed. 843.)</p> <p>The act of the commissioners of Canyon county, respondents, cannot now be attacked, for the reason that the only remedy provided for by law was by an appeal from the decision of the board and the time for an appeal has long since-expired and had expired prior to the commencement of this, action. (See Bev. Stats., secs. 1776, 1777.) The court had no jurisdiction to entertain this suit in equity, for the reason that the plaintiff, and all parties interested, had a plain, speedy, and adequate remedy at law, in the form of an appeal' from the action of the board in accordance with said section. When such a remedy is provided by law, the plaintiff has no. standing in a court of equity. The court has no jurisdiction of the ease. (Picotte v. Watt, 3 Idaho, 447, 31 Pac. 805; Rogers v. Hayes, 3 Idaho, 597, 32 Pac. 259.) In the former-case, decided by this court December 26, 1892, tbe court uses this language: “The statutory remedy being complete and adequate, the plaintiff must resort to it; and having shown no reason for not doing so, arising from any act of defendants, he is precluded from invoking the aid of equity.” (Morgan v. Board of Commrs., 4 Idaho, 418, 39 Pac. 1119. See, also, County of Ada v. Bullen Bridge Co., ante, p. 188, 47 Pac. 825; WiTkerson v. Walters, 1 Idaho, 564; Hazard v. Cole, 1 Idaho, 301.)</p>

The supreme court of Idaho has said: It seems to be well settled that the court will take judicial knowledge of the journal of a legislative body to determine whether the act of a legislature is constitutionally passed and for the purpose of determining what has been done by the legislature.” (Burk-hart v. Reed, 2 Idaho, 503, 22 Pac. 1.) The following decisions by our supreme court are to the same effect: Glough v. Gurtis, 2 Idaho, 522, 22 Pac. 8; Blaine County v. Heard,…

<p>APPEAL from District Court, Latali County.</p> <p>The court had no jurisdiction to hear the motion to set aside the sale herein on the grounds upon which the same was based, for the reason that the motion to set aside the sale was' based on the pretended fact that a part of the premises described therein constituted a homestead, and that the court has no 'jurisdiction to determine the homestead character of premises on affidavits. The fact of whether or not the premises constitute a homestead is to be determined upon a trial the same as any other question of fact, and we deny the authority of the court to determine such a question in this summary manner. It is a question of property, and a party has no greater right to insist that such a question shall be tried upon affidavits than he has to insist whether a debt is or is not secured by mortgage or whether certain lands shall be subject to a lien of any kind. The constitution of Idaho provides but one way of trying issues of fact, and that manner of trial applies to all such issues. (Idaho Const., art. 5, see. 1.) The question of determining the homestead character of property upon affidavits has been decided adversely to respondents in Mason v. Lieuallen,. 4 Idaho, 415, 39 Pae. 1117. The regularity of the sale is sought to be attacked by Lucinda Jameson, a stranger to the record, and we submit this cannot be done. {Kelly v. Dunlap, 7 Cal. 160 (162).) The proceedings in this matter are clearly shown to be by motion. We think that it is well settled that one who is not a party to a proceeding cannot make a motion therein. {Estate of Aveline, 53 Cal. 259; Ollis v. Kirkpatrick, 3 Idaho, 247, 28 Pac. 435.) .</p> <p>■Where the sale has been made upon execution, and the execution creditor or his assigns becomes the purchaser, and where no deed has been executed and the property purchased has not been transferred by the purchaser to a third person, a motion made in the case in which the sale was made is proper practice. Courts will gladly rectify a wrong, and when a wrong has been committed all they desire is a chance to rectify the wrong, whether it be brought to the court’s attention under the title of a motion or by a bill in equity. (Freeman on Executions, 2d ed., sec. 308 et seq.; San Francisco v. Pirley, 21 Cal. 57; Reynolds v. Harris, 14 Cal. 668, 76 Am. Dec. 459; Bryan v. Berry, 8 Cal. 130; Day v. Graham, 1 Gilm. (Ill.) 435; Boles v. Johnston, 23 Cal. 226, 83 Am. Dee. 111.) A creditor having an inferior lien upon property, upon which another creditor has a lien as well as upon other property, may undoubtedly have the assets of a debtor marshaled so as to prevent the one having a first lien exhausting the property upon which the second lien exists, but when that portion of the premises is embraced in a homestead declaration upon which the party holding the inferior lien has no lien, such creditor has no right to marshal the assets so as to in any manner affect the homestead. The party holding the superior lien, which lien is upon homestead premises in connection with other property, has no right to sell the homestead premises first, and especially is this true when the execution debtor, as in this case, requests it sold otherwise. This being true, the party holding an inferior lien cannot have the homestead sold first. (1 Wait’s Actions and Defenses, 352; Freeman on Executions, 2d ed., sec. 440; McLaughlin v. Hart, 46 Cal. 638; Story’s Equity Jurisprudence, secs. 560, 642; Brown v. Gozará, 68 Ill. 178; McArthur v. Martin, 23 Minn. 74; Colby v. Crocker, 17 Kan. 527.)</p>

The main contention of appellants is that the contract made on April 19, 1894, by the respondent and B. I. Towle representing appellants, and upon which this action is brought, is wholly without consideration, and that respondent in securing said contract violated his duty as trustee for the Newport Mill Company and took unconscionable advantage of appellants who were, as the first preferred creditors of said Newport Mill Company, beneficiaries of said trust, which it was…

APPEAL irom District Court, Latab County. The client may change his attorney when he becomes satisfied that it is for the interest of the estate that he is managing, or when he is confident that it would be for his own interest to do so, in case the attorney is acting for the client m an individual capacity.

The court should not have allowed the respondent any costs' whatever. The direction of this court was that the costs were to abide the result of the trial in the district court. The trial resulted in a verdict for the appellants, and the respondents are entitled to recover no costs. (Thiessen v. Biggs, ante, p. 21,, 46 Pae. 829; Griffith v. Montandon, 4 Idaho, 75, 35 Pac. 704.) files no brief.

Original proceeding by writ of review. The Bank of Genesee was, on November 27, 1895, duly adjudged an insolvent debtor. On January 23, 1896, the plaintiff herein-was elected assignee of said insolvent, and on April 23, 1896, was confirmed as such assignee and duly qualified on April 29, 1896.

<p>APPEAL from District Court, Nez Perces County.</p> <p>The action was originally brought by Fred N. Hallett as plaintiff in his own name, for money alleged to have been advanced by himself. The defendant answered, denying all the allegations of this first complaint. On the 26th of November, 1895, plaintiff Fred N. Hallett filed a motion that he be allowed to file an amended complaint, making M. B. Hallett plaintiff instead of himself, which the court allowed and the defendant assigns error thereon. No showing whatever was made to justify the dropping of Fred N. Hallett, who had brought the action, and the substituting of M. B. Hallett as plaintiff, in his stead. No affidavits were filed in support of the motion. The complaint on file was for money advanced' by Fred N. Hallett. A new complaint, to recover for money advanced by M. E. Hallett, was substituted. The appellant is still subject to an action for any money advanced by Fred N. Hallett. The termination of this suit will not adjudicate any rights existing between Fred N. Hallett and the appellant. The allowance of the filing of a new complaint, changing the cause of action was an error. It was certainly error to allow the substitution of a new plaintiff. The following eases, most of them decided under statutes containing the same provision found in the code of this state, are decisive upon that point: I)libbers v. Qoux, 51 Cal. 153; Leaird v. Moore, 27 Ala. 326; Tarver v. Smith, 38 Ala. 135; Taylor v. Taylor, 43 Ala. 650; Crescent Furniture Co. v. Raddatz, 28 Mo. App. 210 '¡Ma/rslC River Lodge v. Brooks, 61 Me. 585.</p> <p>In reply to appellant’s first assignment of error “that the court erred in allowing plaintiff to file an amended complaint substituting M. B. Hallett instead of himself,” the second amended complaint shows upon its face to be for the identical claim originally sued on, the same amount, the same allegations, the same parties, except change of plaintiff; hence there is no change of cause of action as to changing or substituting one plaintiff to another. We cite: Wells v. Stomback, 59 Iowa, 376, 13 N. W. 339; Harper v. Hendricks, 49 Kan. 718, 31 Pac. 734; Cockrill v. Clyma, 98 Cal. 123, 32 Pac. 888; Hestres v. Brennan, 37 Cal. 385.</p>

Make no argument nor cite any authorities upon the point decided by the court. Where the contract is for the sale of unascertained goods-the contract is executory, and no property is thereby transferred. Where the goods which are the subject matter of a contract of sale are part of a specific stock from which they have not been separated, no property passes until separation.

This is an action brought by the state of Idaho against Thomas Fitzpatrick to foreclose a mortgage which was given to secure the payment of a loan of school money made by the state to said Fitzpatrick, and evidenced by a certain promissory note executed and delivered to plaintiff by said Fitzpatrick. To said note are attached five coupon interest notes for the sum of $140 each. No testimony was offered by defendant.

<p>APPEAL from District Court, Latah County.</p> <p>• Tbe nonservice of the amended complaint on defendants, Henry McGregor, J. B. West et al., through whom this appellant holds possession. Appellant’s husband, Henry McGregor, being the principal mortgagor, was a necessary party to the suit, and whenever the complaint was amended in matter of substance, a copy of such amended complaint should have been served upon him as required by statute, and without such service the judgment is absolutely void. (Code, secs. 4176, 4228.) The above sections of our code are the same as those of California, and in several instances they have been construed by the supreme court of that state. The last case of that court directly passing upon the question is Reinhart v. Lugo, 86 Cal. 399, 21 Am. St. Bep. 52, and note, 24 Pac. 1089; Thompson v. Johnson, 60 Cal. 292.) The appellant’s list of authorities in the latter case contains a large number of cases in point from other states. {McGary v. Pedrorena,- 58 Cal. 92; Rider v. Spinlcs, 53 Cal. 294; Schuttler v. King, 12 Mont. 149, 30 Pac. 28; Barber v. Briscoe, 8 Mont. 214, 19 Pae. 590; Shaw v, Bryant, 66 Hun, 627, 20 N. Y. Supp. 785; Kittson v. Gentry (Tex.), 22 S. W. 70; 1 Am. & Eng. Ency. of PI. & Pr. 645.) A writ' of assistance will never he granted where there is the least doubt as to whether the applicant is entitled to the same. (2 Am. & Eng. Ency. of PI. & Pr. 979, 980, notes; San Jose v. Fulton, 45 Cal. 316.) And a question of the insufficiency of service to give the court jurisdiction of the parties will be inquired into on a motion of this' kind. (Steinbach v. Leese, 27 Cal. 295.) Statutory provisions for service of summons by publication must be strictly pursued. {People v. Kuber, 20 Cal. 82.)</p> <p>. The amendment did not change the original complaint or add a new cause of action, but only so shaped the complaint that the facts of the execution of the mortgage, as alleged in the original complaint, might be proved and the evidence of it put in legal form. The amendment related wholly to the evidence by which the execution of the mortgage should be established, and the defaulting defendants had no interest whatever in this, as they were not disputing the facts, and it was a question wholly between the appellant and respondent. (Banbury v. Arnold, 91 Cal. 606, 27 Pae. 934, 935, 936; Keys v. Phelan, 19 Cal. 128; Hutchinson v. Ainsworth, 73 Cal. 452, 2 Am. St. Eep. 823, 15 Pac. 82; Idaho Code, sees. 4176, 4200; Newmark v. Chapman, 53 Cal. 557; Frisbie v. Fogarty, 34 Cal. 11.) The right of redemption had already expired as to all the defendants. West was among the defaulting defendants and was bound by the decree. (Wilder v. Campbell, 4 Idaho, 695, 43 Pae. 677; Barnitz v. Beverly, 163 TJ. S. 118, 16 Sup. Ct. Eep. 1042; State v. Gilliam, 18 Mont. 94, 44 Pae. 394, 45 Pae. 661; Hardy v. Herrioit, 11 Wash. 460, 39 Pae. 958.) Whether or not the defendant, Henry McGregor, was ever served with summons is a matter which does not concern the appellant, as she has not shown or attempted to show in any way that she acquired any right from the defendant, Henry McGregor, which would be a defense to the writ of assistance, and set up none in her answer. (McCray v. Pedrorena, 58 Cal. 91, 94; New-mark v. Chapman, 53 Cal. 557; Frisbie v. Fogarty, 34 Cal. 11.)</p>

The defendant, William L. Boise, was prosecuted for and convicted of a violation of what is known as the “Anti-gambling Law,” passed at the fourth session of the Idaho legislature, and approved March 8, 1897, before a justice of the peace of Nez Perees county, and a fine of $200 was imposed against him. The case was tried before the justice, a jury having been waived by both parties.

The motion of respondent is _to dismiss the appeal. It is based on the “ground that the undertaking on appeal .... is insufficient and void for uncertainty.” The condition portion of the bond is as follows: “Now, therefore, in consideration of the premises and of such appeal from said judgment and from said order, we, the undersigned residents of the county of Nez Perees, in the state of Idaho, do hereby jointly and severally undertake and promise on the part of appellant…

The constitution of the state, section 6 of article 18, provides what county officers may be elected or appointed; section 7 provides what compensation such officers may receive, and section 8 provides that such compensation shall be paid by fees or commissions, or both, except in the event of the fees and commissions falling below the minimum compensation provided by law.

It was error to allow respondent seventy cents per cubic yard for the removal of hard-pan. The specifications for grading contained in the contract provide as follows: Grading shall include earth, loose rock and solid rock. Loose rock shall include all detached masses of rock or boulders measuring not less than one cubic foot and less than one cubic yard, and all slate and shale in place which can be removed without blasting, although blasting may occasionally be resorted to.

<p>APPEAL from District Court, Latah County.</p> <p>Section 1556 of the Revised Statutes of Idaho, provides as follows: "Such deeds, duly acknowledged or provided [errata says "proved”], is [except as against actual fraud] conclusive evidence of the regularity of all other proceedings from the assessment by the assessor inclusive up to the execution of the deed.” And yet in the face of these express provisions, with the tax deeds introduced reciting particularly each and every Step required by the statute, and reciting particularly the matters contained in the tax certificates, upon which they were respectively based, and with no evidence whatever to impeach, annul, vitiate or overcome the recitations therein contained, the court renders a judgment for the plaintiffs. The Deering’s Political Code of California, sections 3786 and 3787, are the same as the sections referred to in the Idaho Code, supra, and the supreme court of that state in Rollins v. Wright, 93 Cal. 397, 29 Pac. 58, and De Triville v. Small, 98 U. S. 595, has construed these sections.</p> <p>As to the question of the effect of a tax deed as evidence under the statute, we cite a case decided by the supreme court of the United States arising originally under the statutes of the state of Oregon, which are similar to ours in this respect, which we think entirely disposes of the question: Marx v. Hawthorn, 148 U. S. 172, 13 Sup. Ct. Rep. 508.</p>

Original proceeding by writ of review. The court’s action was without jurisdiction. After the appeal was taken and perfected the court had lost all jurisdiction.

The conveyance from Francis Wilcox to appellant was legitimate and even favored in the eye of the law. Even if considered as a voluntary conveyance, without consideration, it was not necessarily fraudulent on that account, even as to existing creditors, and the property is not liable for debts by him afterward contracted. (Bull v. Bray, 89 Cal. 286, 26 Pae. 873; Beck v. Brummagin, 31 Cal. 440, 89 Am.

<p>APPEAL from District Court, Bingham County.</p> <p>The defendant company was organized in Idaho in 1884, and is in form a corporation; that is to say, it is'one of a large class of companies existing in southern Idaho, where agricultural lands are artificially irrigated, organized not for profit, but for the purpose of controlling and distributing water for irrigation purposes. In such corporations the stockholders are farmers living along the line of the canal who never expect to receive any dividend, but by virtue of their stock are entitled to the use of a fixed amount of the water controlled by the company. No water is sold except indirectly by the sale of stock, and no water is rented unless perchance there be a temporary inability to sell the stock, resulting in a temporary surplus of water. It is what is known as the “Utah” or “Neighborhood” plan of water distribution. Practically the only means the defendant, as one of these companies, has of maintaining itself, paying a water-master, making the necessary repairs, etc., is the dues or assessments exacted from its stockholders, and the practice has always been to levy assessments, such as may be necessary, pro rate upon the shares of stock, to be paid sometimes in labor and sometimes in cash. These assessments or dues are collected in the manner provided by law for the collection of assessments upon stock of ordinary-corporations for profit. In February, 1895, such an assessment was, in the ordinary course of the business of the defendant, levied by its board for the purpose of raising money to pay its accrued and accruing expenses. Of this assessment the plaintiff, L. E, Hall, complains, and to enjoin the collection of which this suit is brought. The court’s reasoning is a little difficult of apprehension. Apparently it concludes that merely because defendant’s officers failed to file the certificate of its adoption of the 1887 law, the provisions of that law are in no way applicable to defendant, even though it actually elected to continue its existence thereunder, and as a matter of fact has continued its existence thereunder for nearly ten years. And what seems wholly incomprehensible is that in one paragraph of its brief conclusions of law, the court finds that the defendant did not adopt the law of 1887 so as to be bound by it, and in the very next paragraph it concludes that defendant has adopted the most important section of the law as amended by the later act. Can we then adopt the vital part without filing the certificate, but be unable to adopt the less important portion in the same manner? The provision of section 2650 as to the certificate is directory, only. The amendatory act respondent misconstrues; the intent of the amendment, Revised Statutes, section 2609, both originally and as amended, does not pertain to the liability of the stockholder to the corporation, or the assessments made by the corporation voluntarily for maintenance expenses, but defines the personal and individual liability of the stockholder to the creditor. If the statute fixes a personal liability, and provides that it may be enforced by assessment, then, in a sense, a personal liability is involved in the assessment. But if the statute as it now stands provides that certain assessments may be voluntarily made upon paid-up stock, and the stock sold to pay the same, but the stockholder shall not be individually liable for the assessment, then there is no individual liability. The liability of the stockholder is thus no more "personal” or “individual” than that of a purchaser of mortgaged premises; the premises alone are liable. (Worcester Turnpike Go. v. Willard, 5 Mass. 80, 4 Am. Dee. 39; Andover Turnpike Go. v. Gould, 6 Mass. 40, 4 Am. Dec. 80; Sparks v. Lower Payette Ditch Go., 3 Idaho, 306, 29 Pac. 134.) The court should look beyond the mere form of the defendant’s organization and be governed by the actual fact and purpose. While we speak of the “stockholders” and “stock,” “members” and “certificates of membership,” would, in the premises, be more exact terms. The certificate entitles the member to certain privileges, mainly the use of water, for which he in turn has agreed to pay certain dues to be estimated by the directors upon the basis of the expenses of the company. As in any organization or association of such nature, no profit is expected and the member pays for the privilege or benefit. And under the general rule applicable to such organizations memberships or stock may be forfeited for nonpayment of dues. (Beach on Corporations, c. 29.) And assessments may be imposed by by-laws. (Idaho Sess. Laws, 1890-91, p. 173.)</p> <p>The undisputed facts show that the defendant corporation was originally organized in 1884 and the only power given the trustees or directors to levy assessments was calls upon subscribed stock, the par value of which had not been paid. (Idaho Bev. Stats. 1874-75, p. 621, sec. 10.) There was a liability in favor of creditors against the stock of corporations organized under the foregoing law, but the directors had no power to enforce such liability by assessment. This liability could only be enforced at the suit of a creditor against the stockholders of the corporation, individually. (Bev. Stats., supra, p. 623, sec. 16; Sparks v. Lower Payette Pitch Go., 3 Idaho, 306, 29 Pac. 134.) The defendant corporation has never adopted title 4 of the Civil Code of Idaho. (Idaho Rev. Stats., sec. 2650.) If the defendant failed to adopt title 4 of the Civil Code, then it continued to operate under the Laws of 1874-75, supra. Under the common law the only liability of a stockholder of a corporation was to the corporation, for the amount unpaid on his stock. (Beach on Private Corporations, secs. 115, 143; Boone on Private Corporations, sec. 126; Terry v. Little, 101 U. S. 216.) The Laws of 1890-91, supra, simply re-enacts the common law as to the limit of liability, and the remedy against the stockholder and the limit of liability of a stockholder has been reached when the par or face value of his stock has been fully paid. (Litimer v. Citizens' State Bank, 102 Iowa, 162, 71 N. W. 225; Addison v. Pacific Coast Milling Co., 79 Fed. 459; Scott v. Windham, 73 Miss. 76, 16 South, 206.)</p>

<p>APPEAL from District Court, Latah County.</p> <p>The court below having dissolved an entire attachment where two separate and distinct causes of attachment are separately and distinctly stated in the affidavit therefor, upon the traverse of one only committed a palpable error. (Drake an Attachment, sec. 101.) And if the defendant leaves one of the causes uncontested, it will sustain the attachment though all the others be nutrue. (1 Wade on Attachments, p. 136, sec. 64; Keith v. Stetter, 25 Kan. *100.) The case at bar is stronger than the Kansas case. There, there were three grounds for one of the causes of attachment, one of the grounds was untraversed, and the holding was as above shown. Here there are two separate and distinct causes of attachment, separately and distinctly stated, predicated on distinct grounds. This point needs no> further comment. The error of the lower court is very palpable. A discussion of the second question in this case leads to a careful review of three of the decisions of this court, viz.: Willman v. Freid-man, 3 Idaho, 734, 35 Pac. 37; Simmons Hardware Co. v. Alturas Commercial Co., 4 Idaho, 334, 39 Pac. 550; Wooddy v. Jamieson, 4 Idaho, 448, 40 Pac. 61; Parberry v. Woodson Sheep Co., 18 Mont. 317, 45 Pac. 278.</p> <p>■Sections 4321 and 4322 of the Eevised Statutes of Idaho make special provisions for testing whether or not the writ has been improperly or irregularly issued, and then in section 4323 it is stated: “If upon such application it satisfactorily appears that the writ of attachment was improperly or irregularly issued, it must be discharged." It cannot be amended because it is jurisdictional and the writ must therefore be discharged. California bas a similar statute, and in Winters v. Pearson, 72 Cal. 553, 14 Pae. 304, it is held that an affidavit for attachment cannot be amended. The affidavit not being true in regard to one of the causes of action sued on was void, and could not sustain the attachment as to any part of the sum for which it was issued. Where the affidavit shows the ground of such attachment to be that the debt has not been secured, it is not competent to show by additional affidavits that the claim was originally secured, but such security did not exist at the time of the commencement of the action. The plaintiff who invokes the benefit of the writ must strictly comply with the requirements of the statute. If he includes a debt for which there are grounds of attachment with a debt for which there are none, he does it at his peril. We deem it unnecessary to produce any other authority to sustain this opinion than the able opinion in Willman v. Freidman, 3 Idaho, 734, 35 Pac. 37. (Smith Drug Co. v. Casper Drug Co., 5 Wyo. 510, 40 Pac. 213, 979.)</p>

<p>Original proceeding by mandamus.</p> <p>The question to be presented upon this petition is whether or not this court will, by its writ of mandate, compel said judge to fix a time and place convenient to himself for the hearing of said appeal, as provided in section 1777 of the Revised Statutes, and the act of March 6, 1895. Section 1776 of said act provides that where an appeal, such as that under consideration, is taken, no act or proceeding of the board of county commissioners shall be valid, until after the expiration of the time allowed for appeal or until such appeal, if taken, shall be finally determined. It will appear from the petition that the proceedings proposed to be instituted for tbe purpose of determining the validity of the bonds involves a bonded indebtedness of $280,000; that according to the information given the commissioners in the opinion filed on October 13th, upward of $100,000 of this bonded indebtedness is invalid. I think it will also be conceded that if the bond issue is illegal, the commissioners are entitled to institute the proper proceedings to determine the question of their validity without being delayed. In matters of this kind it sometimes occurs that appeals are taken for the purpose of delaying action where financial benefits might result from such delay; and sometimes such appeals, while ostensibly in the name of a private citizen, are taken in the interests of the bondholders, where their interests might be seriously affected in the event of an investigation as to the vab'dity of the bonds. The act of the legislature, approved March 6, 1895, Session Laws, page 50, was evidently intended to provide a speedy remedy for determining the bona fides of such appeals, and the duty was imposed upon the judge of hearing such appeals in .a summary manner, without waiting for the regular terms of court.</p> <p>Mandate. (Rev. Stats., sec. 4976.) Discretion not subject to mandate. (Ex parte McKissich, 107 Ala. 493, 18 South. 140; State v. Judges First Circuit Ct. Appeals, 47 La. Ann. 1516, 18 South. 510.) Does not lie to review proceedings until after final judgment. (Walsh v. St. Clair Circuit Judge, 107 Mich. 26, 64 N. W. 1045.) Must show clear legal right. (State v. 'La Grave, 22 Nev. 417, 41 Pac. 115; Am. & Eng. Eney, of Law, 95, and note; Uoole v. Kinkead, 16 Nev. 217.) See extreme case against discretion. (Wood v. Strother, 76 Cal. 545, 9 Am. St. Rep. 249, 18 Pac. 766; Ex parte Davenport, 6 Pet. 661; Ex parte Denver etc. B. B. Co., 101 IT. S. 711, 720, refused.) Although delay might forfeit lands. (Ex parte Parker, 120 U. S. 737, 7 Sup. Ct. Rep. 767; Am. & Eng. Ency. of Law, 108, note 2, p. 109, note 1; Barksdale v. Cobb, 16 Ga. 13; High on Extraordinary Legal Remedies, secs. 171, 176, 156; TmdalVs Petition, 11 Allen (Mass.), 474.) Not to correct errors if court acts within its jurisdiction. (Am. & Eng. Ency. of Law, 119, note 3.) Even if it bears oppressively on relator. (State v. Mayer, 10 Mo. App. 540; also Denver etc. B. B. Go. Case, 101 TJ. S. 720.) In this ease the court says: “This writ has never been extended so far nor ever used to control the discretion of a court of record of inferior jurisdiction acting within the scope of its jurisdiction.”</p>

Original proceeding in Supreme Court. files no brief. Plaintiff, by his petition, asks this court to grant him a writ •of mandate requiring the state board of medical examiners of this state, appointed under the provisions of an act entitled “An act to regulate the practice of medicine and surgery, and the itinerant vending of drugs, nostrums, ointments, appliances, or other remedies within the state of Idaho; and providing penalties for the violation of this act/’ approved…

<p>APPEAL from District Court, Ada County.</p> <p>The evidence was insufficient to justify the verdict. There is no evidence that respondent’s application for insurance was ever accepted by appellant. On the contrary, the evidence shows that the application was rejected the day it was received. At the time respondent made application for insurance he took and accepted from the soliciting agent a receipt stating that said “application for insurance” was to be “subject to approval by C. H. Colby, manager,” and that the money and premium note were “all to be returned if policy is not issued.” C. H. Colby, appellant’s manager for Colorado;, Htah and Idaho, with headquarters at Denver, upon receipt of respondent’s application, immediately, on the date the application was received, to:' wit, July 20, 1893, notified respondent “by letter,” wherein he “declined to write” the insurance because the “hazard was too great,” that 'die preferred not to write it.” Eespondent denies that he “received any such letter,” but as Colby inclosed the' letter in a “return envelope” and “paid the postage thereon,” and deposited the same in “the Hnited States mail box in the Masonic Temple” in Denver, and “never received it back,” the presumption is that respondent received it in due course of mail. {Dunlop v. United States, 165 H. S. 486, 17 Sup. Ct. Eep. 375.) An application for insurance is not a contract, but a mere offer or proposal which may be rejected. The receipt reciting that respondent had made “application for insurance,” that such application was “subject to approval,” and that premium was “to be returned if policy is not issued,” was a mere proposal to appellant, that was to become a contract only when accepted. The contract, to have been binding from the date of the application, must have been a completed contract; one that left nothing to be done, nothing to be referred, nothing to be passed upon or determined before it should take effect. {Alabama Gold Life Ins. Go. v. Mayes, 61 Ala. 163; Haden v. Farmers’ etc. Fire Assn., 80 Va. 683, 691, 693; Piclcett v. German Fire Ins. Go., 39 Kan. 697, 18 Pae. 903; O’Brien v. New Zealand Ins. Go., 108 Cal. 227, 41 Pac. 298; Winchell v. Iowa State Ins. Go., 103 Iowa, 180, 72 N. W. 503; Insurance Go. v. Johnson, 23 Pa. St. 72, 75.)</p> <p>Admitting that said Hays was not the agent of the company, or that he exceeded his authority, the company accepted the benefit of his acts by receiving the note and money paid for premium, and still retains the same and is now, as a matter of law, estopped to deny liability. (Mechem on Agency, secs. 148, 153, 155; Gray v. National Ben. Assn., Ill Ind. 531, 11 N. E. 477; German Fire Ins. Go. v. Columbia Encaustic Tile Go., 15 Ind. App. 623, 43 N. E. 41; Myers ¶. New York Mut. Life Ins. Go., 32 Hun, 321; Southern Life Ins. Go. v. McGain, 96 H. S. 84.) We admit that an application for insurance made to a mere soliciting agent, whose authority is limited to taking applications and forwarding them to the company to be finally acted upon for approval or rejection, is only a proposal and not a contract, but in this ease we contend that the application was approved and accepted by the company and became a binding contract of insurance prior to the loss by fire, and the jury so found by special verdict.</p>

<p>Demurrer — Constitutional Law — County Indebtedness — County Courthouse Site. — A board of county commissioners can, under the constitution and laws of Idaho, purchase real estate necessary for the use of the county, without submitting the question of making such purchase to the voters, when they can do so out of the revenue for the year and not encroach upon such part of said fund as is required to pay the indebtedness created during the year for ordinary and necessary expenses. The purchase of a site upon which to build a county courthouse is not an ordinary and necessary expense.</p> <p>(Syllabus by the court.")</p>

<p>Appeal — Notice op Appeal — Seevice op Notice. — W. appealed from a. joint judgment against her and G., but failed to serve notice of appeal on G. Tbe respondent moved to dismiss appeal. Held, that G. was an adverse party to W. on the appeal, and that notice of appeal should have been served on G.</p> <p>Certificate op Transcript — Cost op Procuring. — Appellant’s attorney presented to the attorney for respondent a transcript on appeal for certification, and the attorney for respondent refused to certify the transcript, or to point out any errors therein. Held,. that the appellant should recover the cost of procuring a certification of the transcript from the respondent.</p> <p>(Syllabus by the court.)</p>

On February 6, 1896, the board of Blaine county commissioners, by their order did allow and order paid its chairman, I. T. Osborn the sum of sixty-three dollars and fifty cents for moneys advanced the county. From said order J. W. Bavens-eraft, H. E. Miller and H. B. Plughoff, as taxpayers, appealed on the ground that the order was illegal and prejudicial to the public interest. Two assignments are made why the evidence does not support the decision: 1.

Is tbe state board of examiners vested with judicial discretion? We submit that this board is clothed with judicial discretion and is part and parcel of the executive department of the state. Article 4 of the constitution is entitled “executive department” and defines the duties of the executive branch of the state government.

On the sixth day of March, 1893, Notwithstanding the lengthy rhetoric of appellant’s brief, resistance to the respondent’s claim is fractious in the extreme, and this appeal is wholly without merit. The gist of the matter is: 1. That when Bannock county was created, old Bingham county was burdened* with a heavy debt, which Bannock county had assisted in creating, and a portion of which she was equitably bound to pay; 2.

The court erred in refusing to grant a nonsuit. The plaintiff not only failed to prove the cause of action declared upon, but utterly denied that he had such a cause of action. He attempts to prove a claim against Maize individually for the whole sum which, in his complaint, he declares was due him from Maize and C-. W. Yenable and Susie .Venable, jointly. All his evidence as to the sole liability of Maize was inadmissible.

<p>APPEAL from District Court, Bingham County.</p> <p>Evidence of abandonment and forfeiture is admissible under the general issue, and these need not be specially pleaded. (Bell v. Brown, 22 Cal. 671; 5 Morr. Min. Rep. 240.) This ditch was noi; constructed and consequently not used until 1879, some thirteen years subsequent to the passage of the mining act of Congress of July 26, 1866, United States Revised Statutes, sections 2339 and 2340, and hence cases are not in point which hold that said act operated as a grant of right of way for such ditches used prior to the date of its passage. Sections 2339 and 2340 of the United States Revised Statutes do not confer absolutely upon those owning the right of way for ditches over land situated like this, but such right is subject in its enjoyment to the -local customs, laws and decisions as much as the right to the use of the water itself. (Jennison v. Kirk, 98 U. S. 453; 4 Morr. Min. Rep. 504.) Such local customs are not judicially noticed, but must be alleged and proved by the party relying thereon. (Gould on Waters, sec. 240, p. 469; Smith v. Hawkins, 110 Cal. 122, 42 Pac. 453.)</p> <p>We maintain that the right of way acquired as this was is a right received by grant; that is, such a right is granted to all upon compliance with certain conditions, and with these conditions plaintiff and his predecessors complied. (Smith v. Hawhins, 110 Cal. 122, 42 Pac. 453.) That even though the right were acquired by prescription or in any other manner mere nonuser does not forfeit. (Washburn on Easements, p. 720, par. 5 et seq.) That it never applies when the period of such nonuser is less than the statutory period of limitation, and is open to explanation and to be controlled by evidence that the owner of the easement did not intend to abandon it while omitting to use it. (Wimer v. Simmons, 27 Or. 1, 50 Am. St. Eep. 685, 39 Pac. 6 (nonuser for fourteen years); Utt v. Frey, 106 Cal. 392, 39 Pae. 807; Beaver Broolc etc. Co. v. St. Yrain Bes. Co., 6 Colo. App. 130, 40 Pac. 1066; Gassert v. Foyes, 18 Mont. 216, 44 Pac. 959; Smith v. Hope Min. Co., 18 Mont. 432, 45 Pac. 632; Moon v. Rollins, 36 Cal. 333, 95 Am. Dee. 181.)</p>

<p>APPEAL from District Court, Oneida County.</p> <p>This is a criminal action in which the defendant is charged by the district attorney’s information with bringing sheep into Idaho without first having complied with the provisions of what is commonly known as the “Scab Law/’ passed at the fourth session of the Idaho legislature, and approved March 12, 1897. (See Sess. Laws, 1897, p. 115.) If the “Scab Law” defines the acts complained of as a penal offense, then the provisions of the law are repugnant to the constitution of the United States. Respondent may say the general language of the act and of the section by implication defines as a crime such acts as are complained of. But criminal statutes are construed most strictly against the state; nothing is implied. (Sutherland’s Statutory Construction, pars. 208, 347; Clark’s Criminal Law, p. 28.) The plain language of the law is meaningless, or the influences which brought forth this legislation were more ingenious than ingenuous. The requirement is clearly repugnant to the constitution. (Cooley’s Constitutional Limitations, 5th ed., p. 21 and note, pp. 490-492 and notes; Ward v. Maryland, 12 Wall. 418; Minnesota v. Barber, 136 U. S. 313, 10 Sup. Ct. Rep. 862; In re Watson, 15 Fed. 511, and note.) For expressions, mainly of the court of last resort, upon the questions involved in this cause, we cite for special consideration the following decisions: Gibbons v. Ogden, 9 Wheat. 1; Henderson v. Wickham,, 92 U. S. 259; Welton v. Missouri, 91 ,U- S. 275; Railroad v. Ilusen, 95 U.'S. 465; Brown v. Houston, 114 U. S. 622, 5 Sup. Ct. Rep. 1091; Minnesota v. Barber, 136 U. S. 313, 10 Sup. Ct. Rep. 862; Brimmer v. Reb-man, 138 U. S. 78, 10 Sup. Ct. Rep. 213; Voight v. Wright, 141 U. S. 62, 11 Sup. Ct. Rep. 855; Schmidt v. People, 18 Colo. 78, 31 Pac. 498; Farris v. Henderson, 1 Okla. 384, 33 Pac. 380, 382. A statute may, upon its face, apply equally to the people of all the states, and yet be a regulation of interstate commerce which a state may not establish. A burden imposed by a state upon interstate commerce is not to bei sustained simply because the statute imposing it applied alike to the people of all states, including the people of the state enacting such statute. (Robbins v. Shelby Co. Taxing Hist., 120 U. S. 489, 497, 7 Sup. Ct. Rep. 592; State Freight Tax Case, 15 Wall, 232 (146).)</p> <p>The state legislature is the sole judge as to the expediency of making police regulations interfering with the rights of persons and property when such regulations are not prohibited by the constitution. (Varick v. Smith, 5 Paige, 136; Cooley’s Constitutional Limitations, 704-707; Potter’s Dwarris on Statutes, 455.) The law in question is- what is commonly known as a quarantine, sanitary or inspection law, and comes under what is termed the police power of the state. (Potter’s Dwarris ’on Statutes, 444; Mayor of New 7orle v. Lord, 17 Wend. 285; Mayor etc. v. Miln, 11 Pet. 102; 2 Kent’s Commentaries, 338; Russell v. Mayor of New York, 2 Denio, 461; Cooley’s Constitutional Limitations, 706.) It has been held that state laws establishing quarantine and health laws of every description, even to the extent of destroying private property when infected with disease or otherwise dangerous, fall within the proper bounds of state police. (Cooley’s Constitutional Limitations, 706; Gibbons v. Ogden, 9 Wheat. 1; Cisco v. Roberts, 36 N. Y. 292; Benedict v. Vanderbilt, 25 How. Pr. 209; Vanderbilt v. Adams, 7 Cow. 348; Cooley v. Board of Wardens12 How. 299; Owners “James Gray” v. Owners “John Frazer,” 21 How. 184; Wilson v. McNamee, 102 H. S. 572; Gilman v. Philadelphia, 3 Wall. 713-731.) In support of the law in question, we cite the court to the following cases: Kimmish v. Ball, 129 H. S. 2Í7, 9 Sup. Ct. Eep. 277; Smith v. Alabama, 124 H. S. 465, 8 Sup. Ct. Rep. 564; Morgan’s Steamship Co. v. Louisiana Board of Health, 118 H. S. 455, 6 Sup. Ct. Rep. 1114; Nashville etc. Ry. Co. v. Alabama, 128 H. S. 96, 9 Sup. Ct. Rep. 28; Patterson v. Kentucky, 97 H. S. 501; Pembina Consolidated etc. Milling Co. v. Pennsylvania, 125 H. S. 181, 8 Sup. Ct. Rep. 737; Fix parte Maier, 103 Cal. 476, 42 Am. St. Rep. 129, 37 Pac. 402; Slaughter-House Cases, 16 Wall. 36; Paul v. Virginia, 8 Wall. 168.</p>

<p>Mortgage — Defective Acknowledgment — Mat be Reformed. — If the acknowledgment of a married woman to a deed or other instrument is eorreetly made, but defectively certified, such certificate of acknowledgment may be reformed by judgment of the district court, under the provisions of title 6, chapter 3, of the Civil Code, so as to make the certificate correctly state the acknowledgment.</p> <p>Civil Procedure — To Set Aside an Erroneous Judgment not bt Motion. — An erroneous judgment cannot be set aside on motion or application made more than six months after judgment; and. when, on motion to set aside a judgment, it appears that the court had jurisdiction of the subject matter of the action, and of the person of the defendant, the motion should be denied, however erroneous the judgment may be, the remedy of the aggrieved party being by appeal, and not by motion.</p> <p>Presumptions as to Findings of Trial Court. — In the absence of showing to the contrary, it will be presumed that the trial court made all necessary findings of fact, or that such findings were waived. '</p> <p>(Syllabus by the court.)</p>

<p>APPEAL from District Court, Bannock County.</p> <p>The tax deed, the law makes prima facie evidence that the property was assessed as required by law. (Idaho Rev. Stats., sec. 1555; Ward v. Huggins, 7 Wash. 617, 32 Pac. 740, 1015, 36 Pac. 285; Haarem v. High, 97 Cal. 32 Pac. 518; Smith v. Hobbs, 49 Kan. 800, 31 Pac. 687; Rollins v. Wright, 93 Cal. 395, 29 Pac. 58.) City lots, where they are contiguous and belonging to the same person, may be assessed together and the aggregate value placed thereon by the assessor, and such an assessment is not objectionable. (People v. Morse, 43 Cal. 534; People v. Gulverwell, 44 Cal. 620.) The tax deed is prima facie evidence of the regularity of all the steps necessary under the tax laws to give good title by tax sale, and there is no evidence contradicting it. We therefore insist that the judgment of the district court should be reversed with direction to the count below to enter judgment for appellant according to the prayer of the answer to the complaint in intervention.</p> <p>That the court was justified in holding that the mortgage sued on by the plaintiff was void there can be no question. The property mortgaged, or attempted to be mortgaged, was the separate property of the wife, or it was community property occupied as a homestead, and in either case the mortgage, to be valid, must have been acknowledged in the manner required by section 2956 of the Revised Statutes. (See sections 2498-2505 and 2921.) In other words, in the conveyance of, or an encumbrance, on, the real property of a married woman, or that part of the community property occupied as a homestead, to be effectual, it must be made to appear that the married woman was made acquainted with the contents thereof on an examination without the hearing of her husband. (See Rev. Stats., secs. 2498, 2921; Danglarde v. Elias, 80 Cal. 65, 22 Pac. 69, and cases there cited.) A party depending on a tax deed for title must show that the statute has been complied with. (Gwynn v. Dierssen, 101 Cal. 565, 36 Pac. 103; Gates v. Lind-ley, 104 Cal. 453, 38 Pac. 312; Hearst v. Egglestone, 55 Cal. 365; Weyse v. Crawford, 85 Cal. 199, 24 Pac. 735; Shipman v. Forbes, 97 Cal. 574, 32 Pac. 599.) This assessment is void for the reason that no separate valuation was placed on the lots 17 and 18, but a lumping valuation of $175 placed on both. {Terrill v. Grones, 18 Cal. 149; Gadwalder v. Nash, 73 Cal. 50, 14 Pae. 385.)</p>

<p>Criminal Practice — Preliminary Examination's. — Under the provisions of the constitution and the statutes of this state, before a defendant can be informed against for a criminal offense, such' criminal must either have had a preliminary examination upon such charge, or have waived the same, and while the failure to aver such examination or its waiver in the information is not ground to support a motion to quash the information, we think •such averment the better practice.</p> <p>Same — Motion to Qtjash — When Should be Allowed. — Where, in support of a motion to quash an information, defendant files an affidavit wherein he states positively that he hs never had an examination upon the charge preferred in the information, it is the duty of the prosecution to refute such affidavit by the production of the depositions taken upon the preliminary examination, or other competent proof, and, failing to do so, the motion to quash should be allowed.</p> <p>Allegations in Information — Witen Held Sufficient.- — Where the information alleges one 0. to be the owner1 of the stolen property, and the proofs show that he was in possession of the property as the agent of the real owner, with full power to sell or otherwise dispose of the same, held, sufficient to uphold the allegation in the information.</p> <p>(Syllabus by the court.J</p>

<p>APPEAL from District Court, Ada County.</p> <p>When a judge has been attorney and counsel for either party in the action or proceeding, he is disqualified to act except in the arrangement of the calendar, the regulation of the order of business, and the power of transferring the cause to another county. (Idaho Rev. Stats., sec. 3900.) When the judge is disqualified, the transfer must be made, on application therefor. This requirement is unqualified. The court has no discretion. (Idaho Rev. Stats., see. 4126.) The disqualification of the court is conceded. Defendants first informally suggested it, and the court declined to proceed in the cause. The court made a formal declaration of the fact. The trial judge knew better than anyone else whether or not he was disqualified. (Table Mountain etc. Min. Go. v. Waller’s Defeat etc. Min. Co., 4 Nev. 222, 97 Am. Dec. 526; Miller v. McCord, 70 Cal. 646, 11 Pae. 798; Slaven v. Wheeler, 58 Tex. 23; East Rome Town Go. v. Cothran, 81 Ga. 368, 8 S. E. 737; Curtis v. Wilcox, 74 Mich. 69, 41 N. W. 863; Newcome v. Light, 58 Tex. 141, 44 Am. Rep. 604; Moses v. Julian, 45 N. H. 52, 84 Am. Dee. 123.) Where a judge is disqualified he has no authority to retain the ease in his court for nonaetion. The law imposes on bim a single duty in regard to it, and that is to order the case to be transferred. Other .than the duties imposed by the code, he has no discretion in the case. (Livermore■ •v. Brundage, 64 Cal. 299, 30 Pae. 848; Krumdick v. Grump, 98 Cal. 117, 32 Pac. 800.) The affidavit filed by defendants tending to show the convenience of witnesses raises no issue whatever and should not have been entertained by the court. Acts of a judge, involving the exercise of judicial discretion, in a case where he is disqualified from acting, are not voidable, only, but void. {Frevert v. Swift, 19 Nev. 363, 11 Pac. 273.)</p> <p>As a matter of law, the statute does not disqualify the judge unless he has been the attorney for one of the parties in that action. The statute is as follows: “Sec. 3900. A judge cannot act as such in any of the following cases: .... 3. When he has been attorney or counsel for either party in the action or proceeding.” The language is “in the action or proceeding,” and it is submitted that these words admit of but one interpretation. The employment must have been in the action, and not as to some matter prior to it, and where the statute works-a disqualification when the judge has been employed in the action or proceeding, it means where he has been one of the attorneys in the judicial action or judicial proceeding then pending before him. It is intended to prevent the attorney who. brought the action, or who appeared for the defense, from trying the cause. If there are other matters that ought to work a disqualification than those mentioned in the statute, the argument, should be addressed to the legislature. The language here-used must be strained and warped out of its plain and usual significance before any warrant can be found for the construction contended for by appellants. (Gleghorn v. Cleghorn, 66. Cal. 309, 5 Pac. 516; Miller v. McCord, 70 Cal. 646, 11 Pac. 798.) Does this appeal present upon the merits any ground for the interference by this court ? Have the appellants any equity ?' Have they suffered any loss, or damage, or injury, or deprivation, by reason of the order of the lower court? Appellants do-not ask to have the cause transferred to Elmore county because of the convenience of witnesses or on account of local prejudice: in this county. As to these matters they make no complaint. They merely ask that Judge Stewart do not try the cause. This is the relief prayed for in this motion. Yet the very order appealed from gave them all they ask when it calls in Judge Stockslager to try this ease. If it is the purpose and intention of the law in granting change of venue in such cases to simply see that the litigants had an impartial judge, the purpose of the law in this case was fully satisfied, and the appellants are in this court without any possible injury from any view in which you may look at the controversy. We think that the cases below, as the facts appear in this case, fully sustain our position and lay down the correct principle of law. {Page v. Carroll, 61 Cal. 216; Upton v. Upton3 94 Cal. 26, 29 Pac. 411.)</p>

Where an instrument does not express the entire agreement, and does not appear to do it, parol evidence is competent to show the omitted part, whether contemporaneous or antecedent, if it does not conflict with the instrument.

cites no authorities upon the points decided by the court. Section 3 of article 18 of the constitution of Idaho provides: “Where any part of a county is stricken off and attached to another county, the part stricken off shall be held to pay its ratable proportion of all the existing liabilities of the county from which it is taken.” The common-law rule that new counties are not allowed or entitled to any part of the surplus of the old county, or any interest in rights of…

The right to costs is statutory, and while in this state a liberal construction obtains, a liberal construction does not mean a doing away of the statute. A substantial compliance therewith ought to be imposed in all cases.

The deed from Slater to Curtis is dated February 4, 1869, and is recorded in book 3 of Deeds, at page 432, Ada county records.

<p>.Appeal in Ceiminal Action. — The right of the state to appeal from any decision in favor of a defendant in a criminal ease is statutory, and does not exist in any class of cases unless expressly given by statute.</p> <p>Section 9 op Aeticle 5 oe Constitution Consteued. — Section 9, article 5 of the constitution, which provides that: “The supreme court shall have jurisdiction- to review, upon appeal, any decision of the district courts, or the judges thereof,” does not give the state the right to appeal from a judgment in favor of the defendant in a criminal action.</p> <p>Eight op State to Appeal. — The defendant was tried upon a criminal complaint charging a misdemeanor in the probate court of Ada Go. convicted and sentenced to pay a fine, from which judgment of conviction he appealed to the district court, which last-named court sustained a demurrer to the complaint and rendered judgment in favor of the defendant, dismissing the action; the state appealed from the judgment of the district court. Held, that the appeal by the state was not authorized by law, and that the appeal should be dismissed.</p> <p>(Syllabus by the court.)</p>

<p>Attachment — Dereliction oe Sheriff.- — In an action by an attaching creditor against the sheriff and his sureties upon his bond, it appears that the sheriff attached upward of $6,<50O of property of the debtor (the claim of the attaching creditors being some $1,600), that the sheriff disposed of the property attached, made no return upon his process, nor ever accounted to the creditor for, any of the proceeds of the sale of the property. Held, that, upon such showing plaintiffs were entitled to judgment.</p> <p>Perishable Property — How to be Determined and How Sold. — A sheriff hasi no right to assume to sell attached property as perishable without an order of the court, which order must be predicated' upon a sworn statement by the sheriff showing the character of the property claimed to be perishable, and the amount thereof.</p> <p>(Syllabus by the court.)</p>

The statute, under and by reason of which the plaintiff asserts title to one-half the property in question, reads as follows : “Upon the dissolution of the community by the death of either the husband or the wife, one-half of the common property shall go to the survivor and the other half to the descendants of the deceased husband or wife; the whole, however, is subject to payment of the debts of the deceased.

The deed in question was and is void, and no matter what the reasons prompting Nelly to make the transfer may have been, or how puré his motives or honest his intentions, the deed'cannot be allowed to stand and his creditors to go unpaid. Section 3022 then cannot apply, and there was no necessity to allege or prove fraudulent intent.

The court erred in overruling the demurrer. There was a misjoinder of parties and a misjoinder of causes of action; there were joined a suit to declare conveyances void, a suit in ejectment, a suit to quiet title, and a suit in mandamus, and a suit to compel a conveyance; nor did the suits affect all the parties alike, nor in fact did some of the suits affect some of the parties at all.

There is no showing of merits or answer tendered. In order to open or vacate a default he must show to the court a good defense to the action. (6 Am. & Eng.

The certificate of acknowledgment is not in substantial compliance with sections 2931, 2922 and 2958' of the code. (Central Land Go. v. Laidley, 32 W. Ya. 134, 25 Am. St. Bep. 797, 9 S. E. 61; 1 Am. & Eng. Ency. of Law, 2d ed., 546, 514, and notes, 512 and note 2; Berry v. Donly, 26 Tex. 746; 1 Am. & Eng. Ency. of Law, 1st ed., 149, and note 2; Tolman v. Smith, 74 Cal. 345, 16 Pac. 189; Leonis v. Lazza/rovich, 55 Cal. 55; note to Jordan v. Gorey, 52 Am.

The evidence in the case at bar shows that the plaintiff does: not represent all the subcontractors who would have an equitable-interest in this property, and this fact is also disclosed by the-bill of equity. This entire matter, therefore, would in its very nature be an equitable proceeding, and a bill in equity is the-only proper method for determining such matters as arose in this case.

Original proceeding for writ of mandate. The moneys arising from the general revenues of the state constitute the general fund. All bills or accounts against the state are payable out of the general fund, except those claims or accounts which the statute directs must be paid out of specific appropriations. The bill is to be paid out of the treasury, hence out of the general fund. (Secs. 232, 1685.) Section 1685 is an appropriation within the meaning of the constitution.

The contract alleged in the first cause of action is void as being against public policy. Defendant was a public officer, and the claim is for “services” in “procuring a continuance” of defendant in a position of great public trust. However potent plaintiff’s influence, as Democratic national committeeman for Idaho, may have been, and however much it may have cost him, such influence is “not a commodity for which money can be demanded.” (Elkhart Go.

No authorities cited upon the point decided. It is a well-established rule in this state that the court will not disturb a verdict or judgment or order denying a new trial, upon the point of the insufficiency of the evidence, where there is a substantial conflict of testimony.

Original proceeding' to procure a decision of this court recommending the legislature to pay the claim. No brief filed. No brief filed.

As a general rule, no final judgment can be amended after the term at which it was rendered. The law does not authorize the correction of judicial errors under the pretense of correcting clerical errors. To entitle a party to an order amending a judgment he must establish that the entry as made does not conform to tvhat the court intended it to be when it was ordered.

The court erred in matters of law governing this case — in refusing defendant’s instructions as follows: “To find the defendant guilty under the information, the jury must believe from the evidence to a moral certainty and beyond a reasonable doubt, that the defendant at the time he took the said mare took her with the felonious intent to convert her permanently to his own use.” “If the jury believe from the evidence that the defendant took the animal as alleged in the…

<p>APPEAL from District Court, Ada County.</p> <p>An action to establish a right to the possession of a right of way over which to divert water cannot be maintained exclusive of the fight to divert water, especially as against one who has such right to divert. {Smith v. Hawkins, 110 Cal. 122, 42 Pac. 453.) There is only one way, so far as this controversy is concerned, to acquire the right to the possession of a right of way. over the public domain and that is as follows: “Whenever, by priority of possession, rights to the use of water for . . . agricultural .... purposes, have vested and accrued; .... the right of way for the construction of ... . canals .... is acknowledged and confirmed.” (17. S. Rev. Stats., sec. 2339.)</p> <p>Possessory rights to ditches and possessory rights to water may each have an existence independent of the other. That a person may convey a water right, reserving the ditch, or convey a ditch independent of the right to the use of the water accustomed to flow therein, is, we think, clearly within reason. A ditch is itself land. (Kinney on Irrigation, see. 224, and cases cited in note; Reed v. Spicer, 27 Cal. 58.) Interest in water ditch is real estate, and can only be transferred by deed, prescription or condemnation. (Burnham v. Freeman, 11 Colo. 601, 19 Pac. 761; Smith v. O’Hara, 41 Cal. 371.) For a case recognizing ownership of ditch in one person and ownership of watqp running therein in another, see ' Clifford v. Larrien (Ariz.), 11 Pac. 397. A ditch constructed on unoccupied public lands of the United States is held by grant, and the owner of such ditch does not forfeit his right thereto merely by nonuser. (Welch v. Garrett, ante, p. 639, 51 Pac. 405.)</p>