Volume 6 — Arizona Reports

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

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

<p>1. Counties—Warrants—Properly Executed Prima Facie Cause op Action—Impeachment—Mere Denial op Execution Insufficient to Overcome Presumption op Legality.—County warrants, signed by the proper officers, are prima facie binding and legal. Such warrants make a prima facie cause of action. Impeachment must come from the defendant. .A mere denial of their execution unsupported by any evidence is insufficient to overcome the presumption in favor of the legality of their issue.</p> <p>2. Same—Same—Pleading—Answer—Denial op Execution—Verification—Effect of—Rev. Stats. Ariz. 1887, Par. 735, Cited.—A denial of the execution of county warrants, verified (after plaintiff had made his case and rested) under paragraph 735, supra, does not necessitate the plaintiff’s establishing'by corroborative affirmative evidence the execution and issue of the warrants and the regularity and legality of the actions of the board of supervisors in so doing, but the effect and extent of the verification is to enable the defendant to disprove by affirmative evidence the execution of the warrants, or the regularity or legality of the proceedings on which their issue was based, and that the prima facie ease already made before the verification of the answer, by the presentation of the warrants duly executed and in proper form, stands until thus destroyed.</p> <p>3. Same—Same—Evidence—County Record of Allowance of Claims and Warrants Issued—Absence of—Insufficient to Overcome Presumption op Validity of Warrants.—While the presentation of the records of the board of supervisors covering the dates on which the warrants were alleged to have been issued would have affected their validity if such records failed to show the authorization of the issue of the warrants or the allowance of the claims on which the warrants were based; nevertheless, evidence that the records of the county showed that the records of the allowance of claims and issue of warrants in this year 1884, the year of the issue of the warrants sued on, were entirely absent, and that the only record was that commencing in 1885, is insufficient to overcome the prima facie case made by the warrants declared upon.</p> <p>4. Same—Same—Statute op Limitations—When Cause op Action Accrues—Funds Available for Payment—Comp. Laws Ariz. 1877, Chap. 6, Secs. 9-11, 13, and Chap. 2, Sec. 19, and Rev. Stats. Ariz. 1887, Par. 2314, Cited and Construed.—The Compiled Laws of 1877, under authority of which these warrants were issued, provides (chap. 6, sees. 9-11, 13, supra) that the county treasurer shall, if there be money in the treasury, redeem warrants on presentation; if there be no funds, he shall indorse thereon “Not paid for want of funds,” and when there are sufficient funds to redeem such warrants he shall give notice that he is ready to redeem, and warrants shall be entitled to preference in payment in the order of presentation. Chapter 2, section 19, of the Compiled Laws of 1877, supra, provides that where a judgment be recovered against county officers as such no execution shall issue, but the judgment shall be levied and collected as other county charges and paid by the county treasurer.</p> <p>Seld, that the bar of the statute of limitations (Rev. Stats. Ariz. 1887, par. 2314) against an action on a county warrant does not commence to run until there are sufficient funds in the county treasury to pay such warrants.</p> <p>5. Same—Same—Same — Pleading — Warrants Payable out" of Particular Eund—When Available.—Where county warrants are payable out of a particular fund to be created by the county, it cannot plead the statute of limitations until it shows that that fund has been provided.</p> <p>6. Same—Same—Same—Statute Governing—Rev. Stats. Ariz. 1887, Par. 415, Inapplicable—Par. 2314 Governs—Par. 2066 Cited.— The six months’ limitation provided by paragraph 415, supra, for open account before adjustment is inapplicable to a suit on county warrants brought under the provisions of paragraph 2066, supra, for the purpose of having the board of supervisors approve the payment or exchange of such warrants from the county redemption fund thus provided. The five years’ limitation (par. 2314, supra) governs such suit, it being an action on “an instrument in writing.”</p> <p>7. Appeal and Error—Assignments of Error—General Assignments Call for no Direct Ruling.—An assignment of error that “the court erred in rendering judgment for plaintiff and against defendant, for the reason that the said judgment was contrary to the evidence in the case, and that it was contrary to the evidence as shown in the record, and against the law of the ease,” calls for no direct ruling, as it is not definite or specific, and simply raises in general terms the points already presented in the former assignments.</p>

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

<p>1. Appeal and Error—Harmless Error—Judgments—Entry Nunc pro Tunc.—The entry of a judgment wmc pro tunc is of no consequence, unless the appellant was harmed thereby, and that the record wholly fails to show.</p> <p>2. Same—Record—Must Show Error—Bill op Exceptions—Presumptions.—The reeord must, to render the objection available, affirmatively show, by a bill of exceptions or otherwise, that after the first submission of the cause had been set aside the court without hearing evidence decided the cause without subsequent submission. If the reeord is silent, the presumption in favor of the regularity of the court’s proceedings must be indulged in to aid and support the judgment.</p>

<p>1. Office and Officers—Sheriff—Official Bond—Sureties—Liability of for Trespass in Levy of Attachment on Goods of Third Person.—The taking by a sheriff upon a writ of attachment against one person of the goods of another is a breach of the condition of a sheriff’s bond, for which his sureties are liable.</p> <p>2. Same—Same—Same—Pleading—Causes of Action—Violation of Duty—Breach of Bond—Separate Causes.—In an action against the sureties upon a sheriff’s bond for violation of his official duty the cause of action is the breach of the bond, and not primarily the violation of duty.</p> <p>3. Same—Same—Same—Same—Same—Against Sheriff’for Trespass .—Against Sureties for Breach of Bond—Cumulative Remedies.—The right of action against a sheriff for trespass and the right of action against the sureties upon his official bond for breach of his official duty in committing such trespass are cumulative remedies merely, and are not alternative remedies requiring an election; and a judgment against the sheriff individually for such trespass does not extinguish the obligation of the sureties.</p>

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

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

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

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

<p>1. Judgment on Pleadings, When Proper—Motion eor Equivalent • to Demurrer to the Answer.—When any defense has been pleaded, unless the pleadings show a clear right for recovery on the part of the plaintiff, after giving due weight to the defense presented in the answer, the plaintiff is not entitled to judgment- on the pleadings; and in that sense, a motion for judgment on the pleadings is equivalent to a demurrer to the answer.</p> <p>2. Pleading—Statute of Limitations—Bev. Stats. Ariz. 1887, Par. 2328, Construed — Demurrer — Answer, When Proper.—Under paragraph 2328, supra, providing that the laws of limitation shall not be made available unless it be- specially set fortn as defense in the answer where the bar of limitations appears on the face of the pleadings it- can be pleaded by demurrer. In eases where the bar exists as< a- matter of fact, but. is not shown on the face of the complaint, and must be established by evidence aliunde, the statute must be- pleaded by way of answer. A demurrer is considered for such purpose an answer to that- extent, and thus is reconciled to the- requirements of the above statute.</p> <p>3. Same—Answer—Construction.—A pleading called an answer which has in it the elements that constitute an answer rather than a demurrer will be treated as, such although worded in part- after the manner of a plea-by demurrer.</p> <p>4. Same—Same—Statute of Limitations—Sufficiency.—Allegations contained in an answer setting up the' bar- of the'- statute of limitations, “That at all times; since the' said seventh day of October, 1893, the defendants have been within the territory of Arizona, and have- been under no disability that would suspend the- statute of limitations)” are) material allegations of fact, that entitle the defendants to support them by evidence in the trial of the case.</p> <p>5. Same—Same—Same-—Necessity for Verification — Bev. Stats. Ariz. 1887, Par. 735, Subd. 11, and Par. 1880, Cited and Construed. ■—Am unverified answer pleading the bar of the statute of limitations) to a verified complaint setting up an open account is not within the provisions-of paragraph 735, subdivision 11, or paragraph 1880, supra, requiring a verified answer, for the reason that such answer does, not deny the account or any item thereof.</p> <p>6. Judgment, on Pleadings—Statute of Limitations—Sufficiency of Answer—Bev. Stats. Ariz. 1887, Pars. 2311, 2312, Cited and Construed.—Paragraph 2311, supra, provides that' actions upon open accounts shall be commenced and prosecuted within three years after the cause of action shall have accrued, and not afterwards; and paragraph 2312, supra, provides that the limitation shall run against each item from the date of delivery, unless otherwise specifically directed. Wherei the complaint in an action upon an open account contains an itemized statement showing the dates of delivery of- the several items, and the answer alleges the entire account, including the very last item charged to be beyond the prescribed limitation of time, and sets up the bar of the statute, it is error to render judgment for the plaintiff on the pleadings.</p>

<p>1. Continuance—Amended Pleadings — Surprise — Granting Discretionary—Similar Action between Same Parties Represented by Same Attorney and Involving Much of the Evidence in the Present Case.—The refusal of the trial court to grant a continuance upon the motion of plaintiffs and appellants alleging surprise and inability to proceed with the trial in an action to quiet title to mining ground because of the filing of an amended answer setting up the location of two claims which, if established, would render plaintiffs’ location void, is discretionary, and will not be reviewed, where it appears that the parties and attorneys were identical with those in a similar action, tried but a few months before, wherein a large part of the evidence affecting the present ease was introduced.</p> <p>2. Mines and Mining—Amended Location Notice—Does not Give New Rights—-Jordan v. Duke, ante, p. 55, Followed—Evidence Admissible — Except as to Intervening Rights. — An amended location notice does not inaugurate any new rights, it having relation to the original location (Jordan v. Duke, supra, followed); and the introduction of such amended location notice is permissible, except as against the rights of parties which have accrued between the time of the original location and the amended location.</p> <p>3. Same—Same—Evidence—None that Original Location Was Invalid.—The making of an amended location is no proof that the original location was invalid.</p> <p>4. Same—Location Notice—Evidence—Prima Facie as to Acts Recited as Having Been Done.—A location certificate is under the laws of this territory prima facie evidence that the acts set out therein have been performed by the locators of the claim.</p> <p>5. Appeal and Error—Review—Evidence — Sufficiency — Must Be Grave Errors in Rulings to Reverse.—Where the evidence supports the verdict, this court will not disturb a judgment thereon, unless there be grave errors in the rulings of the trial court.</p>

<p>I. Appeal and Error—Review—Scope.—The refusal of the court to set aside the sheriff’s sale of property under foreclosure will not he reviewed on an appeal from an order distributing and awarding the surplus received at such sale.</p> <p>2. Same—Record—Failure to Preserve All Evidence—Presumptions ■—Sufficiency of Findings.—Where the record fails to preserve all the evidence it must he presumed that the evidence was sufficient to support the findings, and where the findings fully support the order of distribution made hy the cpurt helow it will he affirmed.</p>

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

<p>■1. Ejectment — Answer — Adverse Possession—Issues—Tenancy— Evidence.—Where the answer to a complaint in an action in the nature of ejectment is a plea of adverse possession, through title in defendant, adverse to plaintiff, it is error for the court to instruct the jury to bring in a verdict for defendant upon the ground that under the evidence it was apparent that at the time the action was brought defendant was a tenant of plaintiff, the issue not being between landlord and tenant, and the only evidence of tenancy being the testimony of plaintiff that at one time defendant was his tenant, but that he had never received any rent and had not asked for any rent for more than two years.</p> <p>2. Same—Ouster—Evidence—Dependant's Title Deeds—Statute op Limitations—When Adverse Holding Commenced.—Plaintiff in ejectment has a right to show the nature and time of the ouster by introducing the deeds under which defendant claims. Though the deed as dated might have been a bar to the action of plaintiff because of the statute of limitations, the date is not conclusive; the plaintiff having the right in connection therewith to have shown that he never knew of an adverse claim, and that none had been asserted until within a period not affected by the statute.</p>

<p>' 1. Assignments for Benefit of Creditors—Failure to Annex Inventory—Rev. Stats. Ariz. 1887, Pars. 22, 23, and 31, Construed— Does not Invalidate Assignment.-—A general assignment for the benefit of creditors shall he construed to pass his estate, whether particularly specified or not, and is not void for want of an inventory of the estate annexed thereto as provided hy paragraph 23, supra, paragraph 31, supra, providing that no assignment shall he void for want of such inventory or list.</p>

<p>1. Taxes and Taxation—Assessment—Power oe Board of Equalization to Change—Bev. Stats. Ariz. 1887, Pas. 2654, Construed.— Under the statute, supra, one of the powers of the board of equalization is to add to or deduct from the assessment-roll the valuation of property.</p> <p>2. Same—Same—Same—Must Proceed in Formal Manner—Notice— Time and Place oe Hearing—Time Must Be Reasonable—Waived by Appearance.—In the changing of an assessment they must proceed in a formal way, giving notice to the persons interested, naming a day when they will act in the matter, and allowing a reasonable time to appear, but the question whether five days was reasonable or not is waived by the appearance of the party in interest.</p> <p>3. Same—Same—Raising—Evidence-^Appeal and Error — Review— ' Record Must Show that Board Acted without Evidence—Otherwise Order Conclusive.'—The record must affirmatively show that the board acted without evidence; otherwise, its order in the premises is conclusive that it did act on such evidence as was necessary.</p>

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

<p>1. Mortgages—Foreclosure — Code Practice — Parties Dependant— Grantees Assuming Debt — Deficiency Judgment. — Under the code practice, where no distinction exists between actions at law and suits in equity, a mortgagee may, in a foreclosure suit, join as 9 party defendant a grantee of his mortgagor who has assumed the payment of the debt, and recover a deficiency judgment as against him.</p> <p>2. Same—Same—Supplemental Foreclosure—Fraudulent Concealment of Interest of Defendant.—The right to a supplemental foreclosure as to the interest of a party whose title was fraudulently concealed by defendants from plaintiff until after the former suit was commenced is undoubted.</p> <p>3. Same—Same—Same—Same—Mistake of Law—To Preclude Belief Facts Must Be Known—Fraud.—The doctrine that where the plaintiff has made a mistake of law the court has no jurisdiction to grant relief has reference to cases where the facts are known and no fraud or deeeit has been practiced. Where the defendants fraudulently induced a mortgagee to omit a necessary party defendant by fraudulently concealing his interest in the property until after the foreclosure suit was commenced, he is entitled to relief by a supplemental foreclosure.</p> <p>4. Same—Same—Void Deed Containing Assumption of Debt—Personal Judgment for Deficiency as against Grantee—Error.— Where a deed conveying mortgaged property and containing a covenant by the grantee to assume and pay the mortgaged indebtedness is adjudged fraudulent and void, it is error to enter a personal judgment against such grantee for the deficiency.</p>

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

<p>1. Attachment—Lew—Range Stock-—Laws 1889, Act No. 20, Sec. 9, Stjbd. 3, Construed-—Notice of Lew Must Be Recorded to Perfect Lien.—A levy of a writ of attachment upon range stock, made under the statute, supra, creates no lien until a copy of the notice required to be served on the owner, attached to the writ, has been filed with the county recorder.</p>

<p>X. Landlord and Tenant—Lease—Action por Rent—Evidence—Rescission op Lease at Date Later than Time por Which Rent Is Sought—Immaterial.—Evidence tending to show a rescission of a lease at a date later than the month for which recovery of rent is sought is immaterial.</p> <p>2. Same—Same—Same—Same—Lessee’s Acts toward Surrender of Estate Properly Excluded in Absence of Avowal of Intention to Prove Landlord’s Acquiescence Therein.—An offer of proof of the service of notice by the lessee of his intention to leave the leased premises, and also of other acts, solely upon his part, showing what he alone did towards surrendering the lease, is properly refused, upon objection, there being no avowal that these acts would be connected with any acceptance on the part of the lessor.</p> <p>3. Same—Same—Surrender — Agreement — Acts Evidencing Agreement.—The surrender of a lease is the yielding up of the estate to the landlord so that the leasehold interest becomes extinct by-mutual agreement between the parties. It is either in express words or hy operation of law, through some act which implies that they have both agreed to consider the surrender as made.</p> <p>4. Same—Same—Same—Evidence—Admissibility.—In an action for rent due upon a lease where the defense is surrender of the lease, evidence of a dissolution of partnership between the lessees and the removal of one with the knowledge of the lessor prior to the default in the rent and of a controversy between the lessor and the remaining partner about the rent, and of said partner’s desire to pay the rent and remove to a building he had been forced to construct, and of the lessor’s refusal to permit such removal, is inadmissible to prove surrender of the lease.</p> <p>5. Same—Same—Same — Jury — Instructions — Only Such as Are Pertinent to the Evidence.—It is the duty of the court in charging the jury to give only such instructions as are pertinent to the evidence.</p> <p>6. Same—Tenancy at Will—What Constitutes — Termination.—If the lessee is occupying premises under a verbal agreement with the owner that he should pay therefor one hundred dollars per month, which agreement is to continue for no definite length of time, such lessee is a tenant at will, and can terminate the lease whenever he chooses hy giving to the owner reasonable notice of such intention and paying all rent due to date of said termination.</p> <p>7. Same—Lease—Surrender—Defense—Burden of . Proof.—The burden of proving the surrender of a written lease rests upon the defendant alleging such surrender.</p>

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

<p>I. Irrigation—Appropriation — Actions — Priorities — Decree—Prorating.—In an action to determine relative rights to the use of water from a common source for irrigation, where the decree speeifies the several rights, and that one right is prior to another, it is ' error for the court to decree that in seasons of scarcity the water shall be prorated.</p> <p>2. Same—Same—Same—Same—Findings—Sufficiency of Water for All—Immaterial.—A finding in an action to determine relative rights to the use of water that up to the time of the filing of the complaint there had been sufficient water at all times in the common source for plaintiff and defendant is immaterial, as that fact furnishes no assurance that there will continue to be such sufficiency; and when the relative priorities in which the rights exist are determined, it is immaterial whether or not the stream furnishes a sufficiency for all.</p> <p>3. Costs — Irrigation — Actions — Compensation of Water Commissioner—Each Party to Pay His Own Costs—Discretion of Trial Court—Appeal and Error—Beview.—The compensation of water commissioner goes as a matter of costs. Costs are by statute placed largely in the discretion of the court, and the order that each party pay his own costs will be permitted to stand, as this court will not review the action of the lower court in the disposal of costs unless in a ease of evident and gross abuse of such discretion.</p>

<p>APPEAL from the District Court of the Fourth Judicial District in and for the county of Coconino. E. E. Sloan, Judge.</p>

<p>APPEAL from a judgment of the District Court of the ■Third Judicial District in and for the County of Maricopa. Webster Street, Judge.</p>

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

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

<p>1. Pleading—Answer—Payment—Necessity for Pleading Items— Bev. Stats. Ariz. 1887, Par. 742, Construed.—Paragraph. 742, supra, providing that where defendant desires to prove any payment, he shall file with his plea an account, stating the nature of such payment and the several items thereof, or he precluded from proving the same, does not apply to a plea to an action on a note “that the defendant fully paid said plaintiff the amount due on said note.”</p> <p>2. Statutes—Adoption—With Construction of the Courts of that State. — Where a statute has been adopted from the code of another state, by implication, it was adopted with the construction which has been theretofore placed upon it by the supreme court of that state.</p> <p>3. Appeal and Error—Record—Evidence—Presumptions—Glencross v. Evans, 4 Ariz. 222, and Scott v. Hurlet, ante, p. 85, Cited.—Where the evidence is not preserved in the record, an appellate court will presume that a state of facts was proved in the trial court authorizing the rulings and. judgment. Glencross v. Evans, and Scott v. Hurley, supra, cited.</p>

<p>1. Live-Stock Sanitary Board—Certificate of Recording Brand—■ Date of Recording—Sufficiency—Laws Ariz. 1897, Act No. 6, Secs. 49, 50, Construed.—A certificate of a cattle-brand issued by the live-stock sanitary board, under the provisions of section 49, supra, making it prima facie evidence of ownership of cattle bearing such brand in prosecutions under the statute, or under the laws of the territory in regard to the unlawful disposition of animals of the bovine kind, complies with the requirements of section 50, supra, and authenticates the date of the recording of the brand; where it recites “that the same has been recorded at 4:30 p. M. o’clock on the day, month and year below written, to wit: [designated brand for cattle]. Given under my hand and seal this 29th day of April, 1897.”</p> <p>2. Appeal and Error—Record—Review—Jury—Prejudicial Remarks not in Record — Error Predicated on.—Prejudicial remarks, of an attorney, made in an argument to the jury, not preserved in the record, will not be reviewed.</p> <p>3. Criminal Law—Larceny of Calf—Eelonious Intent—Evidence —Sufficiency.—Where the evidence showed that a stray cow and calf, both of the same color, the calf unmarked, the cow branded. “B,” which defendant knew to be the brand of the prosecuting witness, had ranged in the vicinity of defendant’s corral for some time; that on the day the larceny was committed the defendant and his employee roped and took the calf into the coi’ral and left it there, without branding, with other cattle; that the Blair cow followed it to the corral, and the next morning bellowed till the defendant’s brother and the employee turned the calf out, when it went off with the cow to the owner; that defendant testified that he did not know whose calf it was and did not look for its mother, and therefore did not brand it; that others testified the cow and calf had been around there for six or seven months, and that the cow was looking on when defendant took the calf away, it is sufficient to justify the jury in inferring a felonious intent in the taking of the calf, and a verdict of guilty will not be disturbed.</p>

<p>WRIT OF ERROR from the. District Court of the Second Judicial District in and for the County of Gila. F. M. Doan, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Loan Commission—Mandamus—To Compel City Authorities to Demand Funding—Act of Congress Approved June 25, 1890, and Laws op Ariz. 1891, Act No. 79, Approved March 19, 1901, Construed—Who May Demand Funding.—A complaint for a peremptory writ of mandamus to compel the mayor and common council of the city of Tombstone to report to the loan commissioners of the territory certain warrants held by the petitioner, and to 'demand of. said loan commissioners that they fund said indebtedness, as provided by law, is subject to demurrer as, under the act of Congress approved June 25, 1890,—it is doubtful whether it is mandatory upon the authorities of any city, unless upon the written demand of the loan commissioners, to report the bonded and outstanding indebtedness not already funded.</p>

<p>1. Statutory Construction—Literal Beading Absurdity—Beformation to Arrive at Intent of Law—Laws Ariz. 1897, Act No. 51, Sec. 4, Beformed.—"When adherence to the punctuation and wording of a statute results in manifest absurdity and inconsistency, evident mistakes, omissions, and the improper use of words may be remedied, and even the structure of sentences altered, in order to arrive at the purpose and intent of the law. Statute, supra, reformed.</p> <p>2. Corporation—Capital Stock—Shares of Stock—Defined.—Capital stock is the property of the corporation; shares of stock are the property of the individual holders thereof.</p> <p>3. Taxes and Taxation—Assessment—Shares of Bank Stock.—In an assessment which states the names of shareholders, and the correct number of shares owned by each, in a banking corporation, it is evident the intent was not to tax the capital stock, but the shares of stock owned by the individual stockholders.</p> <p>4. Same—Same—Same—All Bank Stock Assessable in Name of Bank Mere Irregularity—Laws Ariz. 1897, Act No. 51, Secs. 4, 6, Construed.—Section 4, supra, provides that the shares of national bank stock shall be entered and taxed in the names of shareholders; section 6, supra, provides that it is the duty of the officer in charge of any -banking association to file a sworn statement showing the number and amount of shares of such corporation, the names and residences of the shareholders, and the number and amount of shares owned by eaeh. It is the intent of the act, supra, that the shares of all banking associations, as well as national banks, should be listed and assessed in the names of the individual holders thereof, and, under the said statute making it the-duty of the officers of the bank to pay the taxes due on such shares and giving the bank a lien to protect it in so doing, while properly shares of bank stock should be listed and assessed in the names of the holders, an assessment in the name of the bank is a mere irregularity, and one which will not warrant the equitable interference of the court.</p> <p>5. Banks and Banking—What Constitutes a Bank—Within Laws. 1897, Act No. 51, Sec. 1.—A corporation engaged in the business of receiving money, investing it for its depositors by loaning it in their names, collecting rents, and interest due on such loans as it makes, which interest and rents are subject to check by those for whom collected; and which charges commission on its loans and also a commission on the collection of interest and rents, is. a banking association within the meaning of the statute, supra.</p> <p>6. Taxes' and Taxation—-Banks—Other Corporations — How Assessed—Double Taxation—Laws Ariz. 1897, Act No. 51, Construed and Held not to Repeal Rev. Stats. Ariz. 1887, Pars. 2630, 2633—Nor Are They Repealed by Laws Ariz. 1893, Act No. 85—Rev. Stats. U. S. 1878, Sec. 5219, Cited.—Act No. 51, supra, docs not contemplate “double taxation,” but provides that all corporations, including national banks, which otherwise would be exempt under section 5219, supra, shall bear their just burden of taxation; and, in order to effect this purpose, in the ease of banks, the shares of stock shall be assessed and taxed, and not the corporate property, while in the case of other corporations the assessment shall be upon the corporate property, and not upon the shares of stock. Thus construed, the act, supra, is 'not in conflict with, neither does it nor Act No. 85, supra, repeal, paragraphs 2630 and 2633, supra.</p>

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

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

<p>1. Criminal Law—Instructions—Reasonable Doubt.—An instruction that a doubt, to authorize an acquittal, must be a reasonable one, and it must arise from a careful and candid investigation of all the evidence in the ease, and unless the doubt is a reasonable one and does so arise, it will not be sufficient in law to. authorize a verdict of not guilty, while not entirely free from criticism, is sufficient.</p> <p>2. Same—Murder—Triau—Instructions — Burden of Proof — Mitigating Circumstances—Rev. Stats. Ariz. 1887, Penal Code, Par. 1655, Cited.—A charge that if the jury find from the evidence that the defendant fired the fatal shot, then the burden of proving the circumstances of mitigation, or that justify or excuse the homicide, devolves upon the defendant, unless the proof upon the part of the prosecution tends to show that the crime committed amounts to manslaughter, or that the defendant was justifiable or excusable, being an exact rescript of the statute, supra, is correct.</p> <p>3. Same—Same—Same—Same—Self-Defense—No Duty to Retreat. —An instruction upon the question of self-defense, that if the defendant could have withdrawn from the danger it was his duty to retreat, is error, the modern doctrine being, that when a person, being without fault, and in a place where he has a right to be, is violently assaulted, he may, without retreating, repel force by force; and if, in the reasonable exercise of his right of self-defense, his assailant is killed, he is justifiable.</p> <p>Í. Same—Same — Same — Self-Defense — Evidence — Sufficiency.— Where the defendant testified that he went to the door of his saloon, being drawn there because his brother and the deceased were at the time in the street firing at each other with revolvers, and that while standing there he was fired at by the deceased, and that lie thereupon returned the fire and hilled the deceased, there is sufficient evidence, however contradicted, to justify the court in submitting the issue of self-defense to the jury.</p> <p>■5. Same—Same—Same—Instructions—Evidence.—Instructions should not ignore any finding of fact which the jury might reasonably mahe upon the evidence before them.</p>

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

J. D. Bethune, Judge. Statement of facts:— The plaintiffs in error, Edwin Egan and Rafael Vasquez, as plaintiffs in the district court, brought an action against the Santa Rita Land and Cattle Company, Colin Cameron, Thomas Bayze, Francisco Q. Acebedo, Benjamin Acebedo, Mateo Estrada, and Julian Tanori to obtain a perpetual injunction restraining the defendants from using the water out of an irrigating ditch adverse to plaintiffs, and for the determination and adjudication…

George R. Davis, Judge. Statement of facts:— Appellant, Hale, as receiver, brought an action in the district court of Pima County against Hughes et al., appellees, to obtain judgment upon a debt against Thomas Hughes, and to foreclose a mortgage which had been executed by said Hughes to secure the debt. The defendants other than Hughes were made parties only to the foreclosure proceedings.

<p>1. University op Arizona—Regents—Employment op Instructors— Notice op Dismissal—Laws Ajriz. 1885, Act Approved March 12, Sec. 11, as Re-enacted and Revised by/Rev. Stats. Ariz. 1887, par. 2496, Construed.—Under the statute, supra, providing that the hoard of regents of the University of Arizona shall have the power to remove any officer or employee when in their judgment the interests of the university require it, the hoard has no power to enter into a contract with an instructor providing that the employment shall he terminated only upon notice for a fixed time, and no action can he maintained hy an instructor dismissed without notice for salary during the time of notice provided thereby.</p>

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

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

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

Fletcher M. Doan, Judge. Statement of facts:— Appellants and appellee, on the tenth day of March, 1897, entered into a written agreement, in which the appellants, under the name of Pringle Brothers, contracted to deliver to appellee, Hall, five thousand head of cattle for the price of twelve dollars per head, in good shipping condition, at Holbrook, Arizona, as follows: Twenty-five hundred head on the tenth day of May, fifteen hundred head on the first day of June, and one…

<p>1. Appeal and Error—Motion to Dismiss—Failure to File Papers— Not Jurisdictional—Time May Be Extended on Good Cause Shown.—A motion to dismiss a writ of error, on the ground that no abstract of the record had been filed on the first day of the term, or at all, relates to a rule of court as to the time of filing papers, which can be extended, when good reason is shown, to accommodate delinquent parties, that justice may be done.</p> <p>2. Same—Jurisdiction—Summons in Error—Directed to Sheriff— Insufficient — Rev. Stats. Ariz. 1887, Par. 856, Construed — Cadman v. Old Dominion Copper Company, 4 Ariz. 413, Followed. —In suing out a writ of error, a summons directed to the sheriff, requiring him to summon the defendant in error, is not a compliance with paragraph 856, supra, providing it shall “require the defendant in error to appear and defend such writ before the supreme .court at the next term thereof,” and insufficient to give this court jurisdiction. Cadman v. Old Dominion Copper Co., supra, followed.</p> <p>3. Same—Judgment—Affirmance—Failure to File Transcript of Record—Rev. Stats. Ariz. 1887, Par. 939, Construed—Prevents Further Review by Appeal or Writ of Error.—An affirmance of judgment, under paragraph 939, supra, providing therefor upon failure of appellant to file the transcript of the record, is such a termination of the ease as ends all proceedings for review, either by appeal or writ of error.</p> <p>■4. Same—Same—Dismissal—Failure to File Bond—Rev. Stats. Ariz. 1887, Pars. 849, 851, 937, Cited and Construed—Final—Precludes Subsequent Prosecution of Writ of Error.—Paragraph 849, supra, provides that an appeal may be taken during the term of court at which final judgment is rendered by giving notice of appeal in open court and by filing with the clerk an appeal-bond within twenty days of the end of the term. Paragraph 851, supra, provides that a writ of error may be sued out at any time within one year after final judgment is rendered. Paragraph 937, supra, provides the matters essential to the prosecution of an appeal, and that in the absence thereof the ease shall be dismissed. Where plaintiff in error had a year before filed an appeal, and upon proceedings for justification of sureties upon his appeal-bond was ordered to give an additional bond, but, disregarding the order, permitted Ms appeal to be dismissed for failure to comply with said order, and suffered a mandate to be returned to the district court, such dismissal will be held to be final and to preclude the subsequent prosecution of a writ of error.</p>

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

J. J. Hawkins, Judge. Statement of facts:— On the twenty-fifth day of October, 1883, M. E. Collins was the owner of an undivided one-half interest in the Poland mining claim and an undivided one-half interest in the Hamilton mining claim, both situated in the Big Bug Mining District, Yavapai County, Arizona. On that day he executed a mortgage to John M. Roberts to secure a debt to Roberts.

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

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

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

R. E. Sloan, Judge. Statement of facts:— The appellant, the Providence Gold Mining Company, claiming to be the owner of mining locations situated in Yavapai County, called the “Hillside,” “Yum-Yum,” and the “Francis,” made application for United States patent therefor in the land office in Prescott.

<p>1. Injunction—Dissolution—Coming in oe Sworn Answer.—-It is a general rule of equity practice that upon the coming in of an answer denying the equities of a bill, the defendant is entitled to have the injunction dissolved.</p> <p>2. Same—Same—Answer—Taken as True.—Where a motion to dissolve is heard upon the bill and answer, the responsive allegations of the latter must be taken to be true; and if the equity of the bill is sworn away the injunction may be dissolved.</p> <p>3. Same—Pleading—Answer—Not a General Denial.—A complaint in a suit to enjoin the collection of taxes alleged that the cattle upon which the taxes were levied were ranging over a mountainous country, that it was practically impossible to .count them, but that the ten thousand head returned to the assessor was a fair and just estimate of the nu. .her owned by plaintiff, and the board of equalization arbitrarily, and for the purpose of revenge, increased the number upon the assessment-roll. The answer denied that it was impossible to count the cattle, or that ten thousand head was a fair and just estimate of the number thereof, or that said number was all the cattle owned by plaintiff, and specifically denied the other allegations of the complaint. Held, that the answer is not a general denial, and therefore the doetrine that a general denial is not good in chancery is inapplicable.</p> <p>4. Same—Dissolution—Answer—Discretionary—Appeal and Error —Review.—If the dissolution of a preliminary injunction upon the coming in of a sworn answer denying the equities of the bill is not the plain duty of a court, it is an exercise of judicial discretion with which an appellate court will not interfere.</p> <p>5. Same—Pleadings—Burden of Proof—Failure to Offer Evidence —Right to Injunction.—Where in a suit for an injunction the ease is submitted on the pleadings, without evidence, and the answer is responsive to and expressly denies the material averments of the complaint, the burden of proof being on the plaintiff, and he having failed to support by proof the allegations of his complaint, the court properly refused to grant a perpetual injunction.</p>

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

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

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

<p>1. Appeal and Error—Evidence—Objections to—Not within Issues —Not Raised by General Objection—Stipulations—Waiver of Objection—Pleadings—Sufficiency—Variance.—In an injunction 'ease brought by appellee against appellant, counsel for appellant objected to the admission of certain testimony on the ground that it was “immaterial, irrelevant, and incompetent.” The question that no issue was made by the pleadings which rendered the testimony admissible was not raised. At the close of the injunction case, counsel for appellant stipulated in open court that said testimony, in so far as applicable, should be considered by the court and taken as proof in a second case brought by appellant against appellee from the judgment in which this appeal is taken. The record does not show that the court in ruling upon the objections made in the injunction case did so with reference to the state of the pleadings in this ease, and appellant, having failed to save an exception to the admission of testimony given in the former ease relating to the subject-matter of this action on the ground of insufficient allegations in the pleadings, should have, as a part of his stipulation, raised the point, and not waited until after the' court’s decision. Had the pleading been so defective as not to support a judgment, no objection or exception thereto was necessary to save the point. An inspection shows, however, that it is sufficient in this respect, no matter how great the variance between the allegations and proof may have been, as it clearly states a cause of action.</p> <p>2. Evidence—Negotiable Instrument—'Mutual Accounts—Settlement—Giving Note Prima Eacie Evidence Only.—The* giving of a note where there are mutual accounts between the maker and payee is not conclusive evidence that the maker was actually indebted to the payee in the amount mentioned therein, as a result of a complete and full settlement of mutual accounts, but only raises a presumption of this fact, which may be • overturned by competent evidence.</p> <p>3. New Trial—Grounds—Surprise—Diligence—Taking Chances on Judgment—When Available.—Surprise which is the result of no. lack of diligence, and which operates to the prejudice of the party surprised upon the trial, and prevents his obtaining evidence material and competent, is a good ground for the granting of a new trial. The party affected, however, must first have exhausted all his other remedies before he is entitled to a new trial. He will not be permitted to take his chances of obtaining a verdict or decision, and to then for the first time avail himself of the point on motion for a new trial.</p> <p>4. Same^Same—Same—Record Reviewed and Held not to Warrant New Trial..—Where the record shows that the testimony claimed to be a surprise was given at the commencement of the first trial, whiéh lasted thirteen days; that no application was made therein for a continuance to meet the testimony; that at the close of the testimony no application was made for a postponement of the second case, nor suggestion made that additional witnesses, not present, were required to meet the same; that appellant willingly entered upon the trial of the second cause under a stipulation that the proof in the first case should be the proof in the second, and allowed it to go to judgment, having lost, he will not be heard' to complain because of insufficient preparation; and an application for a new trial of the second case, upon the ground of surprise,, is properly denied.</p>

<p>APPEAL from a judgment of the District Court of the Third Judicial District in and for the County of Maricopa. Webster Street, Judge.</p>

<p>1. Claim and Delivery—Pleading—Answer Defective—Failure to Tender Issue—Possession—■’Waiver—Cured by Judgment.— Where the answer in an action of claim and delivery denied the allegation of plaintiff’s ownership, hut did not deny the allegation that he was entitled to the immediate possession of the property, and plaintiff made no attempt before or at the trial to take advantage of the defect, but, on the contrary, tried the case as though his right of possession was in issue, the defect in the answer, under these circumstances, was cured by the judgment.</p> <p>2. Same—Judgment—Right to Retain Proceeds Pending Refund of Charges-—Evidence.—Plaintiff replevied property from a railroad company, paying the freight charges. At the trial, it was admitted that the property had been sold, and that its value was four hundred and sixty dollars plus the freight charges. The judgment, in the alternative for the return of the property or for the payment of four hundred and sixty dollars, was not error, nor was plaintiff entitled to retain the proceeds until the freight charges were refunded, as the property could not be returned, and the money judgment took into consideration the freight charges.</p> <p>3. Same—Findings—Sufficiency—Title in Third Parties—Immaterial.-—Findings in an action of claim and delivery that plaintiff was not the owner nor entitled to the possession of the property are sufficient to support a judgment for defendant, and further findings, not warranted by the pleadings, that the title was in third parties are immaterial.</p> <p>4. Same—Evidence—Must Recover on Strength of His Own Title. —A plaintiff in replevin must recover upon the strength of his own title or right of possession, and, in ease he fails to establish his title or right of possession, the defendant is entitled to be restored to his possession.</p> <p>5. Same—-Same—Estoppel.—Plaintiff in replevin, to prove his title and right of possession, gave evidence of a sale of the property to him under execution against J. C. Goodwin. Defendant sought to prove title in the brothers of Goodwin. Plaintiff, to establish an estoppel against the brothers claiming title, testified that in another suit, .wherein the brothers were plaintiffs and himself defendant, plaintiffs gave a cost-bond, with J. C. Goodwin as surety, and that J. C. Goodwin, in justifying, testified that he was the owner of this property. One of the brothers denied that either of them was present, and testified that the property belonged to them continuously since prior to the time of the latter suit. The record failed to show that the cost-bond was approved, or what relation the suit in which execution was issued against Goodwin bore to the suit in whieh the cost-bond was filed, or that the brothers had any knowledge of ■ the representations, or that an advantage to the brothers or a prejudice to the plaintiff resulted therefrom. Upon the record there was no error in the court refusing to find an estoppel.</p> <p>fi. Same—Bailee—Right of Possession—Limit of Recovery—Levy v. Leatherwood, 5 Ariz. 244, Distinguished.—As against one who neither had title nor the right to the possession, a bailee may maintain replevin for the possession of the property which is the subject of the bailment, and may recover its full value from such stranger who may have unlawfully converted it, holding the amount so recovered in excess of his own interest in trust for his bailor. Levy v. Leatherwood, supra, distinguished.</p> <p>7. Same—Damages—Judgment eor "Value not within the Meaning oe Damages as Used in Bev. Stats. Ariz. 1887, Par. 202.—A judgment in claim and delivery for the value of the property taken is not a judgment for damages, as that term is used in paragraph 202, supra, which provides that “the court or jury must assess the value of the property taken, and the damages for taking and detaining the same.”</p>

<p>1. Mortgages—Foreclosure—Writ op Assistance—Purchaser without Notice—Knowledge.-—Where the purchaser at a foreclosure sale files an application for a writ of assistance against the lessee of one who had purchased pending the foreclosure proceedings, the lessee’s claim that the lessor was a purchaser for value without notice, and that he, the lessee, had no notice of purchaser’s claim, is not sustainable, where the lessor had knowledge of the suit prior to his purchase, and the lessee was present when the lessor made a tender for the redemption of the property.</p> <p>2. Same—Redemption—Tender—Validity op—Title 26, Rev. Stats. Ariz. (Secs. 19-23, Act No. 20, Laws 1889), Construed.—Where the statute, supra, provides for redemption, only by “payment to the purchaser, or for him to the officer who made the sale,” tender of the amount for which the property had been sold, to parties who were not authorized to receive the money or to act for the purchaser, does not constitute a valid and sufficient tender.</p> <p>3. Appeal and Error—Record—Presumption op Regularity and Correctness op Proceedings op Lower Court.—It will be presumed where the record on appeal from an order granting a writ of assistance is imperfect in not containing all the evidence that the lower court acted correctly upon the evidence before it.</p> <p>4. Writ op Assistance—When Proper—Mortgage — Foreclosure.— The holder of a sheriff's deed for real estate purchased under a decree of foreclosure of a mortgage and a sale of the mortgaged premises has a right to a writ of assistance to procure possession of the premises purchased, as against all persons who were parties to the foreclosure suit, and all who hold under authority given by such parties after the commencement of such suit.</p>

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

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

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

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

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

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

<p>APPEAL from a judgment of the District Court of the Third Judicial District in and for the County of Maricopa. ¡Webster Street, Judge.</p>

<p>APPEAL from a judgment of the District Court of the Third Judicial District in and for the County of Maricopa. Webster Street, Judge.</p>

<p>APPEAL from a judgment of the District Court of the Third Judicial District in and for the County of Maricopa. Webster Street, Judge.</p>

<p>WRIT OP ERROR from a judgment of the District Court of the Third Judicial District in and for the County of Maricopa. A. C. Baker, Judge.</p>

<p>APPEAL from a judgment of the District Court of the Second Judicial District in and for the County of Graham. F. M. Doan, Judge.</p>

<p>APPEAL from a judgment of the District Court of the Third Judicial District in and for the County of Maricopa. Webster- Street, Judge.</p>