Volume 6 — Idaho Reports

If a deed absolute upon its face be in truth a mortgage, the title still remains in the mortgagor; no right of possession is .given the mortgagee under such a deed — it still is a Ren.

<p>Attachment Levy. — The provisions of the statute in regard to the levy of a writ of attachment must be substantially complied with in order to create a lien under the attachment.</p> <p>Notice of Levy — Sufficiency of Description. — The notice of the levy of attachment required by the statute to be filed in the county recorder’s office, must describe the property sufficiently to identify the property so that a purchaser can tell from the notice itself what property he is buying.</p> <p>Same — jPaeol .Evidence. — Parol evidence is not admissible to cure a description in a notice of levy and attachment wEen the description is vague and uncertain.</p> <p>(Syllabus by lEe court.)</p>

<p>Appropriation or Water — First in Time, First in Eight. — In case of conflict between the appropriators of water in a given stream, that appropriation that is first in time, is first in right. The decision in Hillman v. Hardmeh, 3 Idaho, 255, 28 Pac. 438, cited and approved.</p> <p>(Syllabus by the court.)</p>

The court erred in holding that as a matter of law the appellant, F. M; Langford, was not entitled to tax against the respondents the seventy-five dollars fees actually expended by him for the typewritten copy of the court reporter’s stenographic report of the testimony at the hearing. The court erred in holding as a matter of law that witnesses are not entitled to mileage beyond the county line of the county where the cause is tried.

Section 4229 of the Revised Statutes in effect prolongs the term for a period of six months after its actual adjournment for the purposes of the statutory remedy, and as a bill in equity would not lie during the term, so it will not lie until the expiration of the six months provided by the statute, and this in obedience to the well-known rule that equity will not take jurisdiction where there is a speedy, complete and adequate remedy at law, but when that remedy has ceased…

An original proceeding by writ of mandate. The statutes bearing upon the question are Revised Statutes, section 232, Revised Statutes, section Í640, Special and Local Laws, sections 32-45. (1st Sess. Laws, 14.) The only question that is before the court is upon the construction of the statutes referred to. It is an undeniable rule in the construction of statutes that the legislative intent must govern.

<p>An original proceeding by mandamus.</p> <p>Section 209 of the Revised Statutes provides that whenever any person has received moneys, or has collected moneys belonging to the state and fails to account therefor, or who fails to pay into the treasury any money belonging to the state, upon being required to do so by the auditor, within twenty days after such requisition, the auditor must state an account with, such person charging twenty-five per cent damages and interest at ten per cent. Mandamus is the proper remedy in this case. (State v. Stanton, 14 Utah, 180, 46 Pac. 1109; State v. Roderick, 23 Neb. 505, 37 N. W. 77.) Section 190 of the Revised Statutes makes the secretary the legal custodian of the laws and journals. Section 19, article 4 of the constitution fixes, among other things, the salary of the Secretary of State at $1,800 per annum, and provides that the compensations enumerated shall be in full for all services by said officers respectively rendered in any official capacity or employment whatever ' during their respective terms of office. Subdivision 7, section 191 of the Revised Statutes makes it the official duty of the secretary to furnish on demand to any person paying the fees therefor a certified copy of all or any part of any law or record in his office. Since it is the secretary’s duty to make copies of the laws and journals when requested,' we conclude that it is an “official duty,” and since he is entitled to certain fees therefor, and has received them, and has not paid them into the state treasury, his delinquency is fixed, since the constitution provides that “no officer shall receive for the performance of any official duty any fee for his own use,” but all fees must be paid into the state treasury. We contend that the defendant, so far as it relates to any of the matters of his office, has no “private or personal capacity.” He is Secretary of State both during and after office hours, including nights and Sundays. (Ring v. Devlim, 68 Wis. 384, 32 N. W. 121; Mecbem on Public Officers, secs. 839, 840; State ex ret. Frontier Co. v. Kelley, 30 Neb. 574, 46 N. W. 714; Ada County v. Ryals, 4 Idaho, 365, 39 Pac. 556; State v. McFetridge, 84 Wis. 473, 501, 51 N. W. 1, 998; State v. Leidtke, 12 Neb. 171, 10 N. W. 703.) Defendant denies certifying'to the laws but on succeeding page 196 of the 1897 Laws appears his official certificate, with seal and signature, of which this court must take judicial notice. Having made this certificate, he was entitled to the full amount of the fee for copying the laws. (See Potter v. TalMngton, 5 Idaho, 316, 49 Pac. 14; Yates v. National Home, 103 H. S. 674; Banks v. State, 60 Md. 305; Lucas v. Allen, 80 Ky. 681; People v. Township, 11 Mich. 221.)</p> <p>The real question and the all-important one raised by the demurrer to the answer in this ease is: Was the defendant, as Secretary of State, required by law to perform the services which were, concededly, performed by him in this case? Were the services performed by the defendant, as and in the manner as set forth in his answer, performed by him in his official capacity ? In this case the contract to publish the laws and journals was let to the Sentinel Printing Company, and, by the terms of their contract, they were to transcribe, compile, publish and bind the • same, in consideration of the sum of $2,000. It was immaterial as' to hdw or from whom the “copy” was obtained or through whom it was obtained, so that it was procured complete and in form to be set up by the printer; since the records of the office of Secretary of State are open to the public, this copy could as well be procured by one as another, and it did not require this copy to be certified to answer the purpose sought in supplying the printer therewith. The fact should not be lost sight of that this “publishing” was being done for, on behalf of and at the request of the state, and was incidental to procuring to be published such laws and journals. The furnishing of this copy to the printer or publisher, at his request was not an act in any sense sufficient, inasmuch as it was not a duty required by law of any official, in an instance like this, where the laws and journals are being published by and for the state. We submit therefore that the defendant, as Secretary of State, not being required by law to perform these services, and the services being such as could have been performed with equal facility and utility by a private individual, that the services so performed by the defendant were wholly unofficial and that the compensation received therefor was in no sense an official compensation or “fee” required by the constitution to be turned into the state treasury. As cases and authorities upon the point that an officer is entitled to extra compensation for services performed by him, which services are extraofficial and not required of him by virtue of his office, we cite the following: 19 Am. & Eng. Ency. of Law, 530, note 4; Love v. Baehr, 47 Cal. 364; Curtis v. Sacramento etc., 13 Cal. 290; Evans v. Trenton, 24 N. J. L. 764; Burroughs v. Board, 29 Kan. 196; McBride v. City of Grand Bapids, 47 Mich. 236, 10 N. W. 353; Niles v. Muzzy, 33 Mich. 61, 20 Am. Bep. 670.</p>

<p>APPEAL from District Court, Ada County.</p> <p>Have the courts jurisdiction of this action ? That is to say, has the plaintiff a right to call upon the courts to enforce this obligation according to the intent and purposes of the legislature notwithstanding the provision for the appointment of the accountants to compute the amount of it? (Custer Co. v. Yellowstone Co., 6 Mont. 39, 9 Pac. 586; Grant County v. Lake County, 17 Or. 453, 21 Pac. 447; Brewster v. Harwich, 4 Mass. 278; Forrest County v. Langlade County, 78 Wis. 605, 45 N. W. 598; Contra Posta County ¶. Alameda County, 26 Cal. 642; Rogers v. Hayes, 3 Idaho, 597, 32 Pac. 259; Nevada v. Board of Ormsby Co., It Nev. 392; Morrow Co. v. Hendryx, 14 Or. 397, 12 Pac. 806; Nez Perees Co. v. Latah Co., 3 Idaho, 413, 31 Pae. 800; People v. Hester, 6 Cal. 679; People v. Supervisors Eldorado Co., 8 Cal. 58; Morgan v. Beloit, 7 Wall. 613.) A coupon is an express contract for the direct payment to bearer of a certain sum of money at a certain time, and generally at a certain place. In this instance it was payable in the city of New York. It is a specific contract complete in itself, negotiable in form and possessing every attribute of commercial paper. When overdue, being an absolute promise to pay a certain sum of money on the date named, it bears interest from the date of its maturity. (5 Thompson on Corporations, 6107; 6108, 6111-6114; note on coupons, etc., 64 Am. Dec. 428; Clarh v. Iowa City, 20 Wall. 583-589; Morris Canal Co. v. Fisher, 1 Stock. Ch. 667, 64 Am. Dec. 428; Welsh v. First Div. etc'. R. It., 25 Minn. 320; 2 Parsons on Bills and Notes, 115, 393; Gel-pche v. Dubuque, 1 Wall. 206; Thompson v. Lee County, 3 Wall. 327; City of Aurora v. West, 7 Wall. 82. See brief of plaintiff in error in this case on p. 43; Town of Genoa v. Woodruff, 92 U. S. 502; Mercer Co. v. Hacheti, 1 Wall. 83; Knox Co. v. Aspinwall, 24 How. 376; White v. Vermont etc. R. R., 21 How. 575; McCoy v. Washington County, 7 Am. Law Reg. 193, 3 Wall. Jr. 381, Eed. Cas. No. 8731; 3 Story on Bills, 336; Hollingsworth v. Detroit, 3 McLean, 472, Fed. Cas. No. 6613; Delafield v. Stevens, 2 Hill, 177; Williams v. Sherman, 7 Wend. 112; Amy v. Dubuque, 98 H. S. 470; Koshkonong v. Burton, 104 U. S. 668; Pana v. Bowler, 107 TJ. S. 529, 2 Sup. Ct. Bep. 704; Holden v. Freedmamfs etc. Co., 100 TJ. S. 72; Lawton v. South Carolina R. Co., 2 S. C. 248. See Statutes •of Minnesota, Wisconsin and Pennsylvania on interest.) Interest on coupons after maturity. The law, as construed by the highest court of the state, at the time of the issue of the bonds •enters into and forms a part of the contract, between the corporation and the bondholder. (15 Am. & Eng. Ency. of Law, 1269, note 7; Alcott v. Supervisors, 16 Wall. 386; Douglas v. Pike County, 101 IT. S. 677; Anderson v. Santa Ana Township, 116 TJ. S. 633, 6 Sup. Ct. Bep. 413.) Bonds and coupons like these by universal usage and consent have all the qualities of commercial paper. (Mercer Co. v. Hackett, 1 Wall. 83; Knox Co. v. Aspinwall, 24 How. 376; White v. Vermont etc. R. R. Co., 21 How. 575; McCoy v. Washington Co., 7 Am. Law Beg. 193, 3 Wall. Jr. 381, Fed. Cas. No. 8731; City of Aurora v. West, 7 Wall. 82.)</p> <p>In this case, although it may be shown by the evidence that the accountants may have made some mistake in their accounting, and even though it may be admitted that the court, upon a proper complaint, might have jurisdiction to correct such error, no relief therefor can be had in this ease, because there is no allegation of mistake or allegation of facts showing that any mistake has been made. On the contrary all the allegations of error and wrong are distinctly charged as intentional and fraudulent. (Bliss on Code Pleading, 2d ed., sees. 159-162; Pomeroy on Bemedies, 2d ed., secs. 84, 553, 554, 559; Rome Exchange Bank v. Names, 5 Abb. Ct. App. Dee. 83; Hunt v. Daniel, 6 J. J. Marsh. 399; McMichael v. Kilmer, 76 N. Y. 36; Dudley v. Scranton, 57 N. Y. 424.) This power of the legislature to create, divide, consolidate at pleasure, or abolish at pleasure, counties and other municipal corporations, carries with it the power on division to provide in the legislative discretion for the division of its properties and liabilities, and such power of the legislature is final and conclusive as to such division, and, if no division is provided for, it must be assumed that the legislature concluded that none should be made. (Windham v. Portland, 4 Mass. 384; Hampshire v. Franklin, 16 Mass. 76.) The legislature itself designated accountants or agents to carry out the legislative will in so far as ascertaining amounts and working out the mere matter of detail. If, then, this agency of the legislature make a mistake or fail to carry out the legislative purpose, it is submitted that within the general principles of the doctrines laid down in preceding cases the mistake is to be corrected by the legislature itself, and this is distinctly declared in the case of Orange County v. Los Angeles County, 114 Cal. 390, 46 Pac. 173. (Los Angeles Co. v. Orange Co., 97 Cal. 329, 32 Pac. 316; Tulare Co. v. Kings Co., 117 Cal. 195, 49 Pac. 8; Sedwick Co. ¶. Bunker, 16 Kan. 498.)</p>

Affidavit and order for publication are not part of tbe judgment-roll. (Rev. Stats., see. 4456; McOanley v. Folton, 44 Dal. 355; In re Newman, 75 Cal. 315, 7 Am. St. Rep. 146, 16 ¡Pac. 887; Hahn v. Kelly, 34 Cal. 391, 94 Am. Dec. 743, and iiote; People v. Temple, 103 Cal. 447, 37 Pae. 414.) The affi■davit to obtain service is not a jurisdictional fact. (Dore v. ¡Dougherty, 73 Cal. 333, 1 Am.

<p>APPEAL from District Court, Shoshone County.</p> <p>The sole question to be decided here is whether or not the-board of county commissioners of Shoshone county had the authority to make the order appealed from. The right of a. county to employ counsel is expressly conferred by the constitution and laws of Idaho. Article 18, section 6, of the constitution, reads, inter alia, as follows: “The county commissioners may employ counsel when necessary.” Subdivision 13 of section 1759 of the Revised Statutes of Idaho (1887), defining-the duties of county commissioners, gives them power “to direct and control the prosecution and defense of all suits to which the county is a party in interest, and employ counsel to conduct the same, with or without the district attorney as they may direct. (Meller v. Board of Commrs., 4 Idaho, 44, 35 Pac. 712; Hampton v. Board of Commrs., 4 Idaho, 6-16, 43 Pac. 324;. Bavenscraft v. Board of Commrs., 5 Idaho, 178, 47 Pae. 942.) Under provisions almost identical with our own, this same question, and even the same phases thereof, have been decided by the supreme court of California in exactly the same way as in this court. (Smith v. Mayor etc., 13 Cal. 531; Hornblower -a. Duden, 35 Cal. 664; Scollay v. Butte Co., 67 Cal. 249, 7 Pae. 661; Lassen Co. v. Shinn, 88 Cal. 510, 26 Pac. 365; Modoc Co., v. Spencer, 103 Cal. 498, 37 Pac. 483; Hunt v. Broderick, 104 Cal. 313, 37 Pac. 1040; Power v. May, 114 Cal. 207, 46 Pac. 6; Merriam v. Barnum, 116 Cal. 619, 48 Pac. 727; Lamberson. v. Jefferds, 118 Cal. 363, 50 Pac. 403.)</p> <p>cites no authorities on the point decided not cited by attorneys for appellant.</p>

The court erred in granting the peremptory writ of mandate. (Merrill on Mandamus, sec. 67, p. 77.) It is contrary to the policy of the law that mandamus should issue, where its sole purpose and effect is to release the party seeking it from the consequence of his own mistake and omission. (14 Am. & Eng. Ency. of Law, 105; Klokke, v. Stanley, 109 111. 192; 3 Es-tee’s Pleading and Practice, Boone’s ed., sec. 5416, and note; State v. Railroad Co., 42 La.

<p>Original proceeding for writ of habeas corpus.</p> <p>The facts being fully set forth in the opinion, the following authorities are cited: Idaho Rev. Stats., secs. 7666, 7667, 8212,-8213; 4 Deering’s Code, secs. 940, 942, 1382, 1383; Idaho Const., art. 1, sec. 8; Ex parte Bull, 42 Cal. 196; Ex parte Ciarle, 54 Cal. 412; 1 Bishop’s New Criminal Procedure, see. 870.</p> <p>No brief filed.</p>

<p>JobisdictioN — Indians Receiving Allotments of Land in Severalty abe Citizens. — Under the provisions of section 6 of the act of Congress, February 8, 1897, providing for- the allotment of land® to Indians, Indians of the Nez Perces tribe who have received and accepted allotments of land, and patents therefor, under the provisions of said act, are entitled to institute or defend actions in the state courts.</p> <p>(Syllabus by the court.)</p>

<p>APPEAL from District Court, Latah County.</p> <p>The court erred in sustaining plaintiff’s complaint as to the reformation of the mortgage sued upon or in admitting any evidence in reference thereto. The complaint must not only set. forth a mutual mistake, but must point out with clearness and precision all the attendant circumstances wherein the mistake-lies, the original agreement, and that the mistake was not through the negligence of plaintiff. (Lewis v. Lewis, 5 Or. 169,. 147; Stephens v. Murtón, 6 Or. 193; Barfield v. Price, 40 Cal. 635, and cases cited; Wright v. Shafter, 48 Cal. 275.) Further,, it has been held that a mortgage misdescribing the -property must be corrected before foreclosure proceedings are begun., (Davis v. Cox,6 Ind. 481; Sibert v. McAvoy, 15 Ill. 106; French v. Griffin, 18 N. J. Eq. 279.) The court refused to grant defendants a jury trial; the constitution of this state guarantees a jury for the trial of every issue of fact in a civil action, the-distinction between law and equity being abolished. (State-Const., art. 1, sec. 7: art. 5, sec. 1; North Carolina Const., 1875, art. 4, sec. 1; Proffatt on Jury Trial, see. 89; Taylor v. Person,. 2 Hawk. (N. C.) 298; Faulk v. Faullc, 23 Tex. 653; Brown v.. Burke, 22 Ga. 574.) The decree is insufficient compared with the decree in the case of Vermont Loan etc. Co. v. McGregor„ 5 Idaho, 320, 51 Pac. 102. No reformation of an instrument can be had as against a feme covert, especially when such reformation is for the purpose of compelling her to convey more-property than the instrument already conveys. (Montana, Nat. Bank v. Schmidt, 6 Mont. 609, 13 Pac. 382; 14 Am. "& Eng. Ency. of Law, 632, 635, 636, note 1; Leonid v. Lazzarovich, 55 Cal. 52; Barrett v. Tewksbury, 9 Cal. 14; Éeis v. Lawrence, 63 Cal. 129, 49 Am. Kep. 83, and note; Cox v. Woods, 67 Cal. 317, 7 Pae. 722.) The evi-denee stands uncontradicted, “that at the time of executing this mortgage Mrs. Hollingsworth knew nothing of its contents, no one read or explained the same to her, and that, when she signed this instrument her husband was present, in. fact directed ber where and how to sign.” (Rev. Stats., secs. 2921, 2922, 2956; 1 Am. & Eng. Ency. of Law, 2d ed., 512,. 514 et seq., 519; 14 Am. & Eng. Ency. of Law, 629; Hutchinson v. Ainsworth, 63 Cal. 286; Beck v. Soward, 76 Cal. 527, 18 Pac. 650; Bollinger v. Manning, 79 Cal. 7, 21 Pac. 841;. Leonis v. Lazzarovich, 55 Cal. 52.)</p> <p>The second alleged error is that a suit to reform and foreclose cannot be enforced in the same action. The question has been so often decided adverse to appellants that we are astonished that the court’s attention is not called to some of these-decisions. The court’s attention is respectfully called to Bliss, on Code Pleading, sections 166-172. (Hutchinson v. Ainsworth, 73 Cal. 452, 2 Am. St. Rep. 823, 15 Pae. 82.) Clerical mistakes affecting the description in a conveyance by a married woman may be corrected, and by such correction the object and policy of the statute as to the conveyance of the separate property of a married woman are not controverted. (Jones on Mortgages, 3d ed., sec. 99; Hamer v. Medsker, 60 Ind. 413; Carper-v. Hunger, 62 Ind. 481; Hayford v. Kocher, 65 Cal. 389, 4 Pac.. 350; Savings etc. Society v. Meeks, 66 Cal. 371, 5 Pac. 624.) The acknowledgment of the mortgage is attacked. If the certificate of the officer substantially complies with the law it must, be taken as a correct statement and cannot be impeached except for fraud, duress or mistake. (Banning v. Banning, 80 Cal. 271,-13 Am. St. Rep. 156, 22 Pac. 210; Jones on Mortgages, sec. 538.) The certificate of the officer taking an acknowledgment is required to be a substantial compliance with: the form prescribed in the statute, section 2960. (Northwestern Bank v. Bauch, 5 Idaho, 750, 51 Pae. 764.)</p>

<p>On petition for rehearing.</p>

No brief filed. cites no authorities upon the point on which the court dismissed the appeal, to wit, for the want of an undertaking on appeal.

<p>■JURISDICTION — Transfer of Cause to United States Ciecuit Court — Circuit Court Remands to State Court — Equitable Estoppel to Question Jurisdiction. — The circuit court of the United States, to which a cause has been transferred or removed from a state court, is the sole judge as to whether the cause was properly removed or not, and its order remanding the case hack to the state court is binding upon the parties, and should be respected by the state courts. After the lapse of more than six years from the making of an order by the United States circuit ■court, to which a cause had been removed from a state court, remanding said cause back to the state court, and after an appeal from said judgment by the defendant on a record absolutely silent as to any question of- jurisdiction on the part of the state courts, the said judgment was affirmed by the state supreme court, after which said defendant filed a petition for a writ of review, on the ground that the state courts had no jurisdiction. Held, that the petitioner is estopped from questioning the jurisdiction of the state courts, and the writ demanded should be denied.</p> <p>(Syllabus By the court.)</p>

<p>APPEAL from District Court, Idaho County.</p> <p>cites no authorities on the point decided by the court.</p> <p>files no brief.</p>

Inasmuch as the contract sued upon is usurious, the respondents could recover no interest; therefore the action could not be brought until the maturity of the principal note; as the nonpayment of interest is no default whatever, the court could have no jurisdiction of the subject matter, and the judgment would be null and void. In the case at bar the action is brought some two years before a cause of action arose under the contract.

<p>Syllabus in this ease same as in Vermont Loan etc. Co. v. Tetzlaff, decided at this term, ante, p. 105.</p>

<p>Criminal Law — Continuance Over Term. — Where an application for a continuance of the trial over the term is based upon the absence of witnesses, and the state offers to admit that if present the witnesses would testify as set forth in the affidavit upon which the application for a continuance is based, it is not error in the trial court to refuse the continuance. (Territory v. Guttvrie, 2 Idaho, 398.)</p> <p>Same — Change op Venue. — The granting of a change of venue in a criminal ease is largely in the discretion of the trial court, and where such application is based solely upon the affidavit of the defendant, the action of the trial court in refusing a change of venue will not be interfered with.</p> <p>Same — Information—Describes Deceased as John Doe. — Where the information for murder described the deceased as one John Doe, whose true name was unknown to the district attorney who filed the indictment, and on the trial it was proven that the name of the deceased was John L. Decker, there was no material variance. (Idaho Rev. Stats., sec. 7683.)</p> <p>When Questions will not be Considered. — Where the record shows no evidence in the court below upon the question of the insanity of the defendant, this court will not entertain or consider that question.</p> <p>(Syllabus by the court.)</p>

<p>APPEAL from District Court, Shoshone County.</p> <p>The writ of mandamus does not lie in any case where a doubt arises as to the duty of the person sought to be made to perform. It lies in a ease free of doubt and when there is no other remedy. (Harpending v. Haight, 39 Oal. 189, 2 Am. Rep. 432; Fulton v. Hanna, 40 Cal. 278; People v. Supervisors, 28 Cal. 429; Williams v. Smith, 6 Cal. 91; Goodwin v. Glazer, 10 Cal. 33; Fo-garty v. Sparks, 22 Cal. 143; People v.' Olds, 3 Cal. 167, 58 Am. Dee. 398, Middleton v. Low, 30 Cal. 596; Hewill v. Lane, 53 Cal. 213.) The court will refuse the writ, if, upon granting it the object could not be accomplished. (People v. Tremain, 17 TIow. Pr. 142; People v. Supervisors, 21 How. Pr. 335; affirmed in 22 How. Pr. 276.) The petitioner had a complete remedy by an appeal from the decree of the probate court, entered July 26, 1897, affirming the sale to Hanly. (Idaho Rev. Stats., sec. 4831.) In Grignon v. Astor, 2 How. (H. S.) 319, it was held that if the court — the probate court — had jurisdiction over the subject, errors and irregularities in the procedure wore the subject of correction by appeal only. (Comstock v. Crawford, 3 Wall. 402.)</p> <p>An objection to the sufficiency or form of the petition and affidavit should have been taken by motion or demurrer, where the defect, if any, might have been remedied by amendment. Objections to the form of action brought cannot be taken for the first time on appeal; unless taken on the trial they áre considered waived. (People v. McLean, 80 N. Y. 254.) Or that the suit should have been brought in equity instead of at law. (8 Ency. of PI. & Pr. 177.) The act of the probate judge, assuming to act as the probate court, in deliberately changing the name of the purchaser in whom the sale was orally announced by the court to have been confirffied, was an excess of jurisdiction and void. (2. Lawson’s Rights, Remedies and Practice, sec. 953, and cases cited.) A defense in mandamus proceeding must exist in favor of the defendant. He cannot set up pretended rights existing in strangers based upon his own illegal and void actions, by way of defense. (Merrill on Mandamus, sees. 53, 54, 55 et seq.; p. ‘59; Williams v. Clayton, 6 Utah, 86, 21 Pac. 398; People v. Mayor of New York, 10 Wend. 393-397; People v. Fleming, 4 Denio, 137, 2 N. Y. 484.) An action for damages for failure to perform a ministerial duty is not an adequate remedy in law. (High on Extraordinary Legal Eeme-dies, 35; Merrill on Mandamus, sec. 53; Fremont v. Grippen, 10 Cal. 212, 70 Am. Dec. 711; Adriance v. Supervisors of New 'York, 12 How. Pr. 224; Buck v. City of Lockport, 6 Lans. 251, 43 How. Pr. 361; Merrill on Mandamus, secs. 85, 86; High on Extraordinary Legal Eemedies, see. 96; State v. Le Feme, 25 Neb. 223, 41 N. W. 184; Moore v. Muse, 47 Tex. 214.) A want of jurisdiction in a court rendering a judgment may be shown collaterally whenever any benefit or protection is sought under the judgment. (1 Black on Judgments, sees. 170, 218, 250, 275, 633; Putnam v. Plan, 3 Wend. 202, 20 Am. Dec. 686; Fitz~ hugh v. Custer, 4 Tex. 391, 51 Am. Dee. 728; Thoureine v. Rodrigues, 24 Tex. 468; Hill v. City Cab Co., 79 Cal. 188, 21 Pae. 728; Tyson v. Belcher, 102 N. C. 112, 9 S. E. 634.)</p>

Testimony shows the deed to have been a mortgage. If the paper can be permitted to stand at. all, and as we have not asked its cancellation, we suppose it must stand. If a partner attempts to defraud his copartner, and any other person conspires with him in that attempt, then anything they may accomplish is void, as the law does not permit a third person to conspire with a partner against a copartner.

<p>Setting Aside Default — What Must be Shown — Discretion of Trial Court. — The discretion, of the trial court in refusing to set aside a default judgment will not be disturbed unless it is shown that such discretion has been abused. An application by the defendant to set aside a default judgment after the term at which such judgment was rendered must be supported by evidence showing mistake, inadvertence, surprise or excusable neglect on his part, and accompanied by an affidavit of merits showing facts which constitute a defense to the plaintiff's action.</p> <p>(Syllabus by the court.)</p>

Pease, contends that no judgment should have been rendered against her upon said promissory note in said suit; citing the case of Derriham v. Rowley, decided by the supreme court of the state of Idaho, on the 9th of April, 1896, and reported in 4 Idaho, 753, 44 Pae. 643 (14 Am. & Eng.

Appellant’s position is that the courts of this state have no jurisdiction to inquire into the question whether or not the jurisdiction of the superior court of the state of Washington for Spokane county, in the action of appellant against said George W. Goode, has been fraudulently obtained.

An original proceeding to review order of district ¡jndge. The First National Bank (at the date of the citation and the time for appearing therein) had not filed its claim, nor was it entitled to file its claim until such time as an agreement.or sale of the mortgaged property was made, unless it elected to place with the assignee its security. (Eev.

A judgment absolutely void on its face may be attacked anywhere directly or collaterally, either by parties or strangers. {■Joyce v. McAvoy, 31 Cal. 274, 89 Am. Dec. 172, and note; Forbes v. Hyde, 31 Cal. 342.) A judgment void on its face is one that appears to be void by inspection of the judgment-roll, and it is only such judgment that can be attacked either directly or collaterally, without reference to the lapse of time.

This being an action in ejectment, the plaintiff must recover on the strength of its own title, and not on the weakness of that of the defendant.. This proposition I take to be fundamental. The adjudication of the rights of the parties herein must depend upon the construction which will be placed by this court upon the act of Congress of March 2, 1867, known as the “Townsite Act,” and particularly upon the construction to be given to the following section of said act.

<p>County Commissioners — No Authority to Kefund Tax — Court wn.ii not Pass on Validity of Law Unless Necessary. — Boards of county commissioners have no authority to refund a tax that has been paid, whether the tax was illegal or not. Boards of commissioners are not clothed with judicial functions, and are not authorized to pass upon the validity of a statute. Courts will not pass upon the validity of a statute in any case unless necessary to a decision of the case under consideration. (Syllabus by the court.)</p>

The plaintiffs had a right to have the questions of fact raised by the pleadings tried by a jury. (Idaho Const., art. 5, sec. 1; Idaho Itev. Stats., sec. 4383, subd. 1.) This was a jury case, and all questions of fact should have been presented to them for their decision, including, when pleaded, any questions of election of remedies. It was an action for money as damages, there was no waiver of jury, and no reference. (Idaho Rev. Stats., sec. 4369; Yager v. Exchange Nat.

In cases of circumstantial evidence the rule is, that not only must the proof be consistent with the prisoners guilt, but must be consistent with every other rational conclusion. (People v. Strong, 30 Cal. 151; People v. Schuler, 28 Cal. 490; 1 Green-leaf on Evidence, 12th ed., sec. 34; 1 Starkie on Evidence, 181, 182.) Evidence of a prior crime can have no legitimate place in the investigation of the commission of a subsequent crime by the same person.

<p>Writ of Mandate — Water for Irrigation — Maximum Bate for — Constitution Law — Power of Legislature. — Under tbe provisions, of section 6, article 15, state constitution, the legislature is prohibited from fixing reasonable maximum rates to be charged for water under sale or rental. Said section commands the legislature.to provide, by law, the manner in which such rates may be established, and by necessary implication prohibits the legislature from, fixing such rates.</p> <p>(Syllabus by the court.)</p>

<p>Original proceedings for writ of mandate and writ of prohibition.</p> <p>No brief filed.</p> <p>No brief found on file. .</p>

Therefore the law required performance within a reasonable time (19 Am. & Eng. Ency. of Law, 1990), and the contract cannot be contradicted by evidence that the parties agreed on a specific time. (Cocker v. Franklin Ilemp Flax Mfg. Co., 3 Sum. 530, Fed. Cas. No. 2932, per Story, J., and cases cited; 19 Am. & Eng.

Admitting that the complaint failed to set forth the fact that the notes and mortgage had been fully paid and satisfied,” even then the complaint would be sufficient with the allegation of tender, for whenever a mortgagor tenders to the mortgagee the full amount due under the mortgage, and the mortgagee refuses to accept t|ie same, the lien of the mortgage is thereby discharged and the mortgagor has his statutory remedy for penalty.

Where it is that an action is pending or has been tried in the same court as the case on trial, and either of the parties rely on the records of the other case, the court will not nor cannot take judicial notice of such record unless the same is offered in evidence. (Downing v. Howlett, 6 Colo. App. 291, 40 Pac. 505; Myers v. Stale, 46 Ohio St. 473, 15 Am.

The court made and signed findings of fact, conclusions of law and decree, finding for the defendant and permitting the said instrument to stand against a creditor and supplying the defect in the certificate of acknowledgment by extraneous evidence. The declaration was absolutely void.

No brief filed. Before the filing and service of the notice of appeal in this-cause, which was filed and served December 14, 1897, defendant filed and served its general appearance. By a general appearance defendant gave the court immediate jurisdiction over its person (Code, sec. 4892], and thereby cured any defect in the-service of summons upon it.

<p>Ageucy — Loaning Money — Interest — Commission — Usury.—M. applied to plaintiff by a written application, wherein be appointed plaintiff bis agent for tbe purpose, to procure for bim a loan of $600 for a period of five years, with interest at tbe rate of eight per cent per annum, payable annually. For his services in procuring said loan plaintiff charged M. a commission lof ten per cent upon the sum so procured and loaned, M. and his wife giving to plaintiff their notes and mortgage to secure said sum. Held, that such charge for commission, in the absence of any proof showing that plaintiff was acting as the agent of party from whom said loan was procured, or that such party was interested in or received any part of the commission so charged, the same did not come within the provision of title 7, chapter 10, Revised Statutes of Idaho, and was not usurious.</p> <p>(Syllabus by the court.)</p>

<p>APPEAL from District Court, Nez Perces County.</p> <p>Same brief as in Cornwell v. McCoy.</p> <p>Same brief as in case of Cornwell v. McCoy.</p>

' All new matter in an answer is deemed controverted, and plaintiff can, on the trial, introduce evidence, either in denial or confession and avoidance of the new matter. Hence, a judgment cannot be rendered based on facts alleged in the answer without a trial.

<p>Deed to Minino Property — Consideration—Cancellation or Deed. — Where g. executed and delivered to E. a deed of a one-fourth interest in certain mining property for the consideration of E. paying certain indebtedness contracted by E. and S. in working of such property as copartners, and also a certain note and mortgage executed by S. and the release of S. from any and all liability upon such indebtedness, and it was understood and agreed by^ and between said parties that said deed was not to become operative or to pass title until such payment had been made by E., held, that on the refusal of E. to make said payments or comply with said conditions, S. was entitled to have such deed canceled.</p> <p>Appeal — Statement on Motion for New Trial. — Under section 4818, Revised Statutes of Idaho, providing that any statement used on motibn for a new trial may be considered on an appeal from a final judgment, what purports to be a statement on motion for new trial cannot be considered, it not appearing that any motion for a newi trial wa.s made.</p> <p>(Syllabus by the court.)</p>

At common law a city was not liable for personal injuries resulting from the condition of a street or sidewalk. Held: that it was hable for injuries occasioned by an omission on its part to repair or remove a sidewalk constructed without its authority, which had been for a sufficient length of time to charge it with notice in so defective a condition as to be dangerous for travel. (Saulsbury v. Ithaca, 94 N. Y. 27, 46 Am.

The contract on which plaintiff bases his action is void, as-being contrary to the public policy of this state, which prohibits sheriffs from giving credit for fees and requires them to collect all fees in advance; that as the contract is void, it cannot be a basis on which to predicate this action. Section 2126 of the code, as amended in 1890 (Sess. Laws, p. 175), fixes the plaintiff’s compensation. (Eev.

Devised Statutes of Idaho, section 3364, entitles a mortgagor, etc., to bring an action for the penalty whenever the mortgage has been satisfied, and the mortgagee refuses to cancel the same ■of record on demand.

As the witnesses were material and necessary, and tbe trial set and commenced, and no dispute of these facts, the court erred in refusing to allow their fees. (Griffith v. Montandon, 4 Idaho, 75, 35 Pac. 704.) The claim that is resisted here is for witness fees for witnesses that never were sworn.

Usury must be pleaded and must be established by evidence beyond a reasonable doubt.

APPEAI; from District Court, Kootenai County. Where one copy of a contract which is to be executed in duplicate has been signed by the parties, but is left with the attorney of one party to have a duplicate executed, there is not a sufficient delivery of the instrument to constitute a contract. (Lamar Milling etc. Co. v. Craddock, 5 Colo.

The demurrer to the amended complaint should have been, sustained because there is no breach of the bond, or the official duty of said defendant Woodin alleged.

The writ of certiorari or writ of review is tbe proper remedy. (See Orr v. Board of Equalization, 3 Idaho, 190, 28 Pac. 416; Bunn v. Sharp, 4 Idaho, 98, 35 Pae. 842; Maxwell v. Board of Supervisors, 53 Cal. 391.) The making of the contract between the city and the said Thomas K. Muir & Co. is not, and was not, authorized by any law relating thereto, and is in excess of its authority.

The district courts and the supreme court of this state take judicial notice of their own records. (Idaho Eev. Stats., sec. 5950; Cal. Code Civ. Proe., sec. 1875.) Courts will take judicial notice whatever is established by law. (People v. Biting, 99 Cal. 577, 34 Pac. 237.) Matters of which the courts take judicial notice are uniform and fixed, and do not depend upon uncertain testimony.

All the code states have, in substance, the same provision found in our Idaho Code, subdivision 2, section 4168, requiring the complaint to contain “a statement of the facts constituting the cause of action, in ordinary and concise language.” And these states — some by special demurrer on the ground of uncertainty, and others by motion to make more definite and certain — all provide a way of requiring the pleader to comply with this provision.

The defendant below, having complied with the provisions of section 2653 of the Revised Statutes of Idaho, as approved by the decision of this court in the case of Easley v. New Zealand Ins.

An original proceeding under section 10 of article 5 of the (constitution. No briefs filed. Plaintiff sold and delivered to the state certain goods — necessary furniture for the use of the state legislature.

It is a universal rule urged by the defendant’s counsel, and admitted by the plaintiff, that no action exists in favor of the wife for an injury done her by her husband, however grievous. Held: cannot sue for wages, but her remedy is in tort for the damages done her. (Nelson on Divorce and Separation, sec. 1023; Robbins v. Potter, 98 Mass. 532; Blossom v. Barnett, 37 N. Y. 434, 97 Am. Dec. 747; Cooper v. Cooper, 147 Mass. 370, 9 Am.

The money belonging, as it did, to the state, and being deposited in the bank by the treasurer, made it a trust fund and gave the state, as the true owner, the right to recover the amount from the bank assets, regardless of the fact that it had mingled with other funds, and that such amount of money had not been kept on hand. (Wolffe v. State, 79 Ala. 201, 58 Am. Rep. 590; Van Alen v. American Nat.

Section 8384 gives to -coroners the authority to issue warrants of arrest. Coroners holding inquests exercise judicial functions. The coroner’s court is a court of record, of which the coroner is judge. (People v. Devine, 44 Cal. 458; 4 Am. & Eng. Ency. of Law, 176, and cases cited; County of Northampton v. Innes, 26 Pa. St. 157; Pueblo County Commrs.„ v. Marshall, 11 Colo. 84, 16 Pac. 838; Alleghany Co. v. Shaw,. 34 Pa.

•We claim that a tax upon personal property is a lien upon the property assessed while it remains in the county where it is assessed; that the respondent should have paid the tax under protest and then sued to recover it back; that the bondsmen are not liable for the acts of appellant Pettingill in seizing the property assessed. Bevenue laws should be given a fair and liberal construction to effect the end for which they were intended.

<p>APPEAL from District Court, Blaine County.</p> <p>Eespondent could have anticipated the pledge, since the duress ceased, by telegraphing McCornick of the duress. She did nothing; thereby she exercised her option in favor of Mc-Cornick, and unless McCornick had actual notice of the duress or fraud, he took a good pledge, if on the faith of it he parted with value. The complaint fails to charge McCornick with notice, and shows he parted with value. McCornick obtained a good and valid pledge, and when she says she made no effort at any time between the time when the duress ended and July 28, 1896, a period of over twenty months, the conclusion is irresistible that McCornick had a perfect pledge. Our code seems to cover the whole ground as to him. (Section 3023 says, title 6, chapter 5, “Unlawful Transfers”; section 3414, title 12, chapter 5, “Pledge”; Clark on Contracts, 363, 770; Norton on Bills and Notes, 248, 249; Newmark on Sales, sees. 197-205; Deputy v. Stapleford, 19 Cal. 302; Connecticut L. Ins. Co. v. McCormick, 45 Cal. 580; Muir v. Jones, 28 Or. 646, 31 Pac. 646; Gruber v. Baker, 20 Nev. 453, 23 Pac. 858; Braxton v. Bell, 92 Ya. 229, 23 S. E. 289; Boss v. Bicholson, 3 Kan. Ap. 239, 45 Pac. 97; Dunn v. Dunn, 114 Cal. 210, 64 Pac. 5.)</p> <p>A married woman cannot dispose of her separate property without certain formalities which were omitted in' this case. It is true that transfer of corporate stock is excepted from this general provision of statute, but it appears that here there was no transfer, nor was there, indeed, any disposition of the stock made by the wife at all. It was her separate property. She had no voice in its disposal. Her husband used it for his own purposes and if it be said to be with her consent, extorted from her under duress, it was not with the formality provided by law for her protection. (Idaho Bev. Stats., see. 2498; Dernham v. Rowley, 4 Idaho, 153, 44 Pac. 643.)</p>

cites no authorities on point decided. files no brief. This appeal is not taken from a final Judgment, nor is it authorized by any of the subdivisions of section 4807 of the Revised Statutes of Idaho, as amended by the Session Laws of 1895, page 143, and should therefore be dismissed. (Thomas v. Thomas, 10 Colo.

<p>APPEAL from District Court, Blaine County.</p> <p>In a suit brought to recover a statutory penalty the parties, or either of them, have an absolute right to a trial by jury. (Bievens v. Home Sav. Assn., 5 Idaho, 739, 51 Pac. 779-781, Stufflebeam v. Montgomery, 26 Idaho, 125, 26 Pae. 125.) The party in whose favor judgment is rendered must within five days after the verdict, or notice of the decision of the court or referee, file with the clerk of the court and serve upon the adverse party or his attorney a copy of the memorandum of his costs. (Sess. Acts 1895, p. 7, see. 4912.) "Where a special verdict is rendered, if the case is reserved for argument or further consideration there must be an order reversing it. (Revi Stats., secs. 4400-4396, 4397.)</p> <p>This action was for the purpose of removing obstructions in the highway, and was an action in equity; and the verdict of the jury was only advisory to the court, and the cost-bill was filed and served as soon as the court made its decision adopting the findings of the jury, and was in time. (Learned v. Castle, 67 Cal. 41, 7 Pac. 34; Couriwrighi v. Bear River etc. M. Co., 30 Cal. 573.) Prior to the time of the court’s making its decision, the filing of a cost-bill would have been premature, and the party filing might have been the losing party if the court saw fit to reject the findings of the jury. (See Sullivan v. Royer, 72 Cal. 248, 1 Am. St. Eep. 51, 13 Pac. 655.)</p>

<p>Estate of Decedent — -Nonresident Foreigners. — A nonresident foreigner cannot take real estate by succession under tbe provisions of section 5715 of the Revised Statutes, unless he appears and claims succession within five years after the death of decedent.</p> <p>Right of Succession. — If succession is not claimed within said period of time, real estate owned by deceased escheats to the state to be disposed of as provided by section 5716 of the Revised Statutes.</p> <p>Escheat. — Title by escheat passes to the state by operation of law.</p> <p>Taxes — State Exempt. — Lands belonging to the state are exempt from taxation, and no title can be acquired to the same by a tax deed.</p> <p>(Syllabus by the court.)</p>

This suit was instituted for the purpose of establishing the respective priorities of right to the use or the waters of Cold Spring creek in Elmore county. The judgment should not be upheld, inasmuch as it is in violation of the plain provisions of the statutes of this state enacted in 1881 (Laws 11th Sess., p. 267), and continued in force in the Bevised Statutes, sections 3155, 3159 and 3165.

Where the title to real property passes by the agreement and consent of the parties, by deed absolute’ in form, expressing a valuable consideration, in the absence of fraud, mistake or a fiduciary- relation, a trust cannot be grafted into the transaction or the terms of the deed overcome by parol testimony; the transaction comes within the statutes of fraud- (Perry on Trusts, par. 83; Flint v. Sheldon, 13 Mass. 443, 448, 7 Am.

<p>Rape — Insufficiency of Evidence. — Where improper and prejudicial evidence is introduced by the state, a judgment against the defendant must he set aside, and the cause remanded.</p> <p>Same — Substantiae Conflict in Evidence. — Where there is a substantial conflict in the material evidence, and there has been improper and prejudicial evidence introduced by the state, this court will not undertake to determine whether the conflicting evidence is sufficient to establish the guilt of the defendant beyond a reasonable doubt.</p> <p>Cross-Examination of Defendant. — Under the provisions of section 6082 of the Revised Statutes, after the examination of a witness has been concluded, on both sides, the witness may be recalled by leave of court, for further examination.</p> <p>Impeachment.- — Under the facts of this case, it was error to compel the defendant to answer questions concerning an alleged attempt to debauch a child, which matter was not connected in the remotest degree with the crime for which the defendant was being tried.</p> <p>Same. — The credibility of a witness may be impeached by proof- that he has made statements relevant to the issues out of court, corn-trary to what he has testified to on the trial.</p> <p>Same. — Under the provisions of section 6082 of the Revised Statutes, a witness may be impeached: 1. By contradictory evidence; 2. By evidence that his general reputation for truth, honesty or integrity is had; but cannot be impeached by evidence of particular wrongful acts, except that it may be shown by the examination of the witness, or the record of the judgment, that the witness has been convicted of a felony.</p> <p>INSTRUCTIONS — Reasonable Doi bt. — It was not error for the court to refuse to instruct the jury, that however slight the “reasonable doubt” might be if fairly based on the evidence, the defendant must be acquitted.</p> <p>(Syllabus by the court.)</p>

The appellant contends that Boise City, a municipal corporation, derives its powers and authority under and by virtue of a special charter, and that there is no provision therein granting to Boise City or the officers thereof authority, or making it the duty of said city, to construct and maintain this artificial channel.

A payment upon a collateral is not a payment on the debt. (Endlich on Building Associations, 2d ed., sec. 4-Tt; Philadelphia Mer. Loan Assn. v. Moore, 41' Pa. St. 233.) There is nothing unfair or illegal about the contract.

<p>APPEAL from District Court, Bannock County.</p> <p>Not only has the creation, organization and existence of Blaine county been repeatedly recognized and declared by the judiciary, but its recognition by the other co-ordinate departments of the state government has been no less unequivocal and explicit. The legislative department, by an act approved March 9, 1895, to provide for the annexation of a part of Blaine county to Custer county (Laws 1885, p. 141), a statute unimpeaehed and unimpeachable here, recognized Blaine county as one of the existing counties of the state, with the organization, duties and liabilities attendant upon such public quasi corporations. Eor nearly four years all these obligations and duties, involving the administration of justice, the levy of taxes, the collection and payment of the county’s portion of the state revenue, the support of the common schools, the building and improvement of roads and bridges, the support of paupers and the various other governmental functions that our statutes impose upon the political subdivisions of the state, have been imposed upon and performed by Blaine county. (Speir v. Board of Commissioners, 88 Fed. 762; People v. Maynard, 15 Mich. 463; State v. City of Des Moines, 96 Iowa, 521, 59 Am. St. Eep. 381, 65 N. W. 818, 822, 824; State v. Leatherman, 38 Ark. 81; Iiumsey v. People, 19 N. Y. 41; Panning v. Carpenter, 20 N. Y. 447; Yan Yalkenburgh v. Milwaukee, 43 Wis. 582.) In construing statutes and the constitution, the rule is almost universal to adhere to the doctrine of stare de-cisis. (Evans v. Job, 8 Nev. 34; Multnomah County v. Sliker, 10 Or. 66; Shreve v. Cheesman, 69 Fed. 791; Black on Interpretation of Laws, 34; People v. Supervisors of Benzine Co., .34 Mich. 211; People v. Treasurer of Benzine Co., 41 Mich. 6; Kneeland v. Milivaukee, 15 Wis. 522.) It is a principle of law that where a county has a de facto existence (and this fact is alleged in the complaint herein), that recognition and long acquiescence in the existence of the county estops the state from denying its de jure existence. Every branch of the government of the state has recognized Blaine as a county of Idaho: The legislature by three separate acts; the judicial ¡w many decisions and opinions besides those above mentioned. {Bingham Co. v. Bannock Co., 5 Idaho, 627, 51 Pac. 769; Blaine Co. v. Lincoln Co., ante, p. 57, 52 Pac. 165; Blaine Co. v. Smith, 5 Idaho, 255, 48 Pac. 286; Osborn v. Bavens-craft, 5 Idaho, 612, 51 Pac. 618; Bavenscraft 'v. Board of Commrs., 5 Idaho, 178, 47 Pac. 943.)</p> <p>It is undoubtedly true that mere irregularities in an organization under a valid law may possibly be cured by delay, but unconstitutionality never can. If an act is unconstitutional in its incipiency, it is null and void. It never can be made valid; each day of delay was only a fresh usurpation. (19 Am. & Eng. Ency. of Law, “Quo Warranto,” p. 672; People v. Stanford, 77 Cal. 360, 18 Pac. 85, 19 Pac. 693; People v. Beclamation District No. 186, 121 Cal. 522, 50 Pac. 1069, 53 Pac. 1085; Commonwealth v. Allen, 128 Mass. 310; State v. Crow Wing Co. Commrs., 66 Minn. 519, 68 N. W. 767, 69 N. W. 925, 73 N. W. 631, 35 L. E. A. 745; Attorney General v. Marr, 55 Mich. 445, 21 N. W. 883; St. Louis etc. B. B. Co. v. Belleville, 122 111. 383, 12 N. E. 680; United States v. Insley, 130 IT. S. 263, 9 Sup. Ct. Eep. 485; United States v. Beebe, 127 U. S. 338, 8 Sup. Ct. Eep. 1083.) To constitute res judi-cata there must have been a judgment of the exact issue by a court of competent jurisdiction upon the exact point involved in certain eases sought to be estopped. It must have been upon an issue found; that point must have been necessary to the decision. It must be between the same parties; in other words, to constitute an estoppel here a suit must have been between the state of Idaho on one side, as represented by its attorney general, and the county of Blaine on the other, and the question must have been involved as to the constitutionality of the creation of Blaine county, and the court must have decided that, and that must have been necessary to the decision. {Johnson v. Powers, 139 IT. S. 157, 11 Sup. Ct. Eep. 525; Bedon v. Davie, 144 IT. S. 143, 12 Sup. Ct. Eep. 665; Wixson v. Devine, 67 Cal. 341, 7 Pae. 776.)</p>

It was conceded that this deed passed the title of Anderson to the premises, and the only questions are whether the unacknowledged and unrecorded indorsements on the note and mortgage are effective to prevent the bar of the statute of limitations as against a subsequent intervening bona fide purchaser without actual notice, and also whether the said in-dorsements extended the note for five years and four months or only for five years. (Eev.

The court erred in overruling the demurrer of the defendant to the indictment. The indictment in this cause is insufficient and defective in the following particulars: (a) It is indefinite and uncertain as to the time of the alleged robbery, in that it alleges it to have been “on or about the twenty-sixth day of October, A. D. 1897.” The averment as to the time of the commission of an offense must be- of a date certain prior to the filing of the indictment.

The contention of appellant is that these facts raise three main questions and justify the following conclusions, to wit: 1. That the writing and transaction set forth in the complaint is a pure and simply guaranty; 2. That it is a collateral undertaking to pay the debt of another, without extinguishing the principal debt, and is within the statutes of fraud; and that it cannot be varied, altered, modified or explained in parol; 3.

<p>APPEAL from District Court, Lincoln County.</p> <p>There is neither testimony nor evidence in the case that the-steer and bull were killed in consequence of the carelessness or negligence of anyone. That they were killed by the cars of the appellant raises no presumption of negligence on the part of the defendant or any one of its servants or agents. As this question has so frequently been passed upon by this court, we will rest with citing some of the cases, and ask the court’s consideration of them, to wit: Cateril v. TJ. P. By. Co., 2 Idaho, 576, 21 Pac. 416; Holt v. SpoTcane etc. By. Co., 4 Idaho, 443, 40 Pac. 56; King v. Oregon etc. B. Co., ante, p. 306, 55 Pae. 665; Lindsay v. By. Co., 27 Vt. 643; Plattes v. C. etc. B. Co., 35 Iowa, 191; Brown v. H. etc. B. Co., 33 Mo. 309; Scott v. Bailway Co., 4 Jones (N. C.), 432.</p> <p>We think the case of Kedly v. Oregon Short Line etc. B. B. Co., 4 Idaho, 190, 38 Pac. 404, settles the contention in this case. The facts in that case are almost identical with the facts in this case, and the court says in concluding the opinion: “We think sufficient was shown by plaintiff to put the defendant to its proof. In fact, we do not even see, in the absence of an eye-witness, how more could be proved by plaintiff, and the only eye-witnesses were the employees of defendant.” Section 2680 of the Revised Statutes of Idaho provides as follows: “Every railroad company operating any line of railroad within this state that maims or kills any .... cow, heifer, bull, ox, steer, or calf, or any other domestic animals, by running any engine or cars over or against any such animal, is liable to the owner of such animal for damages sustained by such owner by reason thereof, unless the injury occurred through the neglect or fault of the owner.”</p>

Admitting, for the sake of argument, that at the time the declaration of homestead was filed that the said defendant. Clemens was using the premises as a hotel, still we claim that under our statute it was subject to homestead.

Under the evidence and peculiar circumstances of this case, as shown by the evidence, it is as reasonable to infer, or believe, that the horse had gone upon the right of way anywhere along the right of way, outside of plaintiffs land, as from it; and further, as a matter of law, as the plaintiff himself had no fence on any side of his own land, there was no legal obligation or duty on the part of the defendant to have a fence on the side abutting plaintiffs land; that a…

Origina] proceeding by certiorari. The jurisdiction exercised by courts of equity in administering relief by the extraordinary remedy of a receiver pendente lite is a branch of the general preventive jurisdiction, being intended to prevent injury to the thing in controversy and to preserve it for the security of all parties in interest, to be dis-. posed of as the court may finally direct.

cite no authorities upon the question decided by the court. The record in this case properly consists of the complaint, demurrer, order overruling demurrer, answer, decision, judgment and the stipulation as to testimony. The appeal is from the judgment, and substantially without statement or bill of exceptions. The stipulation as to the evidence is insufficient upon which to predicate or assign any error.

When the constitution declares the amount to be paid an officer, it is an appropriation made by law.

The demurrer of Croghan as to a misjoinder of parties plaintiff should have been sustained. The corporation, which had no right of action in itself, and whose affairs were entirely in the hands of a receiver was joined as plaintiff with Allan, as receiver. It requires no argument to show that this was clearly a misjoinder; that it is a fatal error. (Stephen on Pleading, 3d American ed., 26; 17 Am. & Eng. Encv. of Law, 607; Dias v. Phillips, 59 Cal. 293; Tell ¶.

The record is defective in the following particulars, many of which are substantial and fatal, viz.: The summons does not specify with any degree of certainty what action would be taken if the defendant defaulted. (Bev.

In this cause there is no necessity for a new trial, as the decree is subject to the control of the court, and may be changed or altered by the court if he shall deem it necessary to correct it, to make it conform to the facts and the law. (Idaho Rev. Stats., sec. 4229; McMillian v. Woolley, ante, p. 36, 51 Pac. 1029, 1032.) Where an erroneous judgment or decree has been entered, the proper practice is to make a motion to correct or modify the erroneous judgment or decree.

Can a recovery be had by a county where its regularly authorized officers have, through mistake of law and not through fraud, deception or any unlawful means, settled or allowed an account to an officer, which he was not entitled to receive? {Painter v. Polk Co., 81 Iowa, 242, 25 Am. St. Rep. 489, 47 N. W. 65; Badeau v. United States, 130 IT. S. 439, 9 Sup. Ct.

<p>APPEAL from District Court, Cassia County.</p> <p>No brief filed.</p>

The sole and only question is, Can the lands of the plaintiff, the successor in .interest of Francis Wilcox, be deprived, without his consent or the consent of his predecessor in interest, of the waters which had been regularly appropriated to them ‘and uninterruptedly used upon them for a period of at least' fourteen years ?

<p>Divorce — Pleadings—Decree.—Where, in an action for divorce, the cross-complaint of defendant fails to set up a ground of divorce a decree in favor of defendant upon such cross-complaint will be set aside.</p> <p>(Syllabus by the court.)</p>

As the common law, where the defendant was not permitted to testify in his own behalf, the testimony of the prosecutrix alone was sufficient to sustain a conviction for rape. But under statutes making the accused a competent witness, when he avails himself of his right to testify, and explicitly denies the commission of the offense, the uncorroborated testimony of the prosecutrix is not sufficient to sustain a conviction. (7 Am. & Eng.

Whenever the defendant seeks affirmative relief against .any party relating to or depending upon the contract or transaction upon which the action is brought, or affecting the property to which the action relates, he may, in addition to his answer, file at the same time, or by permission of the court subsequently, a cross-complaint. The cross-complaint must be served upon the parties affected thereby, and such parties may demur or answer thereto as to the original complaint.

As between the different- mortgagees litigating here, it is entirely immaterial as to whether these mortgages were fraudulent as to attaching creditors or not. Such a mortgage permitting the mortgagor to remain and sell the goods is not void between the parties, but may be enforced at any time by the mortgagee. (Bank of Ukiah v. Moore, 106 Cal. 673, 39 Pac. 1071; People’s Sav. Bank v. Bates, ISO TF. S. 556, 7 Sup. Ct. Bep. 679; Tregear v. Miwanda W. Go., 76 Cal. 538, 9 Am.

<p>An original proceeding in supreme court for writ of habeas corpus.</p> <p>The county attorney has no authority to file an information except when the defendant has had a preliminary examination as required by law, and has been regularly committed by a magistrate. (Const., art. 1, see. 8; First Sess. Laws, 186.) The object of requiring a preliminary examination in a criminal case is, primarily, for the benefit of the accused, and to protect him from being restrained of his liberty unless he consents thereto, until the state has made a prima facie ease against him. This is a right given to everjune accused of crime. (State v. Lar-kins, 5 Idaho, 200, 47 Pae. 945.)</p> <p>No brief filed.</p>

Appellant claims that when an appeal is perfected from such an order or judgment as the one appealed from, all proceedings in the cause are stayed until the determination of such appeal.

The counterclaim arose out of the same transaction set forth In the plaintiff’s complaint. It is a cause arising on contract and existed at the commencement of the action. It is also a cause of action in favor of defendant, William Hunt, and against the plaintiff. The court may determine any controversy between the parties before it, when it can be done without prejudice to the rights of others. (Rev. Stats., sec. 4113; First Nat.

These were negotiable notes, and being indorsed and delivered to the plaintiff before their maturity, for a valuable consideration, the debt was at the time of the filing of the petition of insolvency held and owned by a nonresident of the state of Idaho, and the insolvency laws of Idaho could have no extraterritorial effect, and were, and are, no bar to this debt; and the fact that they were held as collateral security does not change this rule.

District Court, Latah County. Idaho Code, section 3465, provides how negotiable instruments may be transferred; those made payable to a person named or his order are payable to the written order of the payee; there can be but one construction of this section of the code, relative to the transfer of negotiable paper in Idaho, and that is, that the title does not pass to such paper made to order, except upon the written order of the payee. (Smalley v. Wight,. 44 Me. 442, 69 Am.

The complaint shows an attempted sale of personal property without a change of possession, and is, therefore, absolutely fraudulent and void. (Idaho Rev. Stats., see. 3021; Earlcness v. Smith, 5 Idaho, 321, 28 Pae. 423, construing said section; Lawrence v. Burnham,, 4 Nev. 361, 97 Am. Dec. 540; Eallett v..

An original proceeding supreme court. Section 7 of article 18 of the constitution provides that the salaries of county officers shall be “a fixed annual salary.” The legislature might perhaps have been nearer the constitutional requirement had it provided that the salaries be fixed annually. It would then have had an annually fixed salary, which it now has not.

The statement is the authority for the justice to enter judgment, and -his sole authority. Any defects in it are jurisdictional and fatal. Nothing can be presumed in favor of the jurisdiction of courts or magistrates having special or limited jurisdiction. The record should show that the judgment was within the limits of their jurisdiction. (Henry v. Estes, 127 Mass. 474; Hendrick v. Whittemore, 105 Mass. 23, 27; Tucker v. Harris, 13 Ga. 1, 5S Am.

<p>Usury — Judgment Upon Stipulation. — Plaintiff brought action upon a usurious contract; .judgment was entered upon stipulation of parties in favor of plaintiff, as prayed in complaint, from which defendant appealed; held, that the judgment so entered, being in contravention of the usury laws of the state, the same was erroneous. The general rule, that where judgment is entered upon the agreement and consent of parties appeal will not lie, does not apply to a case where such agreement and judgment is in contravention of the positive provisions of a statute.</p> <p>(Syllabus by the court.)</p>

A person cannot sue in his own right and also in a representative capacity in the same action.

The evidence of Mrs. Eliza Spence was incompetent and inadmissible to impeach the certificate of acknowledgment. The certificate of acknowledgment was in due and regular form. (Northvjestern etc. Bank v. Rauch, 5 Idaho, 753, 51 Pae. 764; Bunn,ell & Eno Inv.

Before tbe formation of the corporation, the title to the herd of sheep, the other personal property and the lease of the ranch for a term of fiye years, was in Redman, Beckman and Clow according to the finding of fact. The agreement by them was to transfer the title to the corporation. Clow performed his part of the agreement, and the others intended to do the same. The corporation took possession of the property. This of itself places the title in the corporation.

<p>Mining Ditches — Appropriation of Water for Mining Purposes— Priority. — Plaintiffs’ predecessors in interest located and appropriated one hundred and twenty-five inches of the waters of Elk creek, in 1863, and utilized the same for purposes of plaeer mining. In December, 1863, the predecessors in interest of defendants located and appropriated all the surplus or available water in Elk creek and tributaries (Deer creek included), and used the same for mining purposes through a ditch constructed during 1864. During the year 1865, plaintiffs’ predecessors constructed another ditch, with a capacity of five hundred inches of water, and connected the same with the first-named ditch by a flume across Elk creek, and also enlarged the first-mentioned ditch to a capacity of five hundred inches. Held, that, as against defendants, plaintiffs could only claim priority for one hundred and twenty-five inches of the water of Elk creek. The finding of the lower court against the claim of appellants for damages held to be sustained by the evidence.</p> <p>(Syllabus by the court.)</p>

<p>Trust — Evidence.—One who takes title to real estate, purchased with funds of another, and for the benefit of the latter, holds as trustee, and parol evidence is admissible to establish such trust.</p> <p>(Syllabus by the court.)</p>

The court committed a serious error in admitting in evidence over defendant’s objection, an alleged deposition of one M. Wells. The deposition was not shown to have been taken in the preliminary examination of defendant upon said charge or in any other judicial proceeding and so far as appears upon its face it may have been taken ex parte. It was not certified or authenticated as required by law and was clearly inadmissible.

<p>Original proceeding in Supreme Court.</p> <p>Plaintiffs by tbeir -counsel were entitled to notice of the petition or motion asking this court for the order which they have obtained without notice. (Bev. Stats., secs. 4882, 4892-4894.) Certainly in this case no order, if any, should be made that can be construed into anything more than an authorization to settle the statement leaving with the lower court all discretionary powers arising from the delays of defendants and the conditions of the case. (Hayne on New Trial and Appeal, sec. 165; Boggs v. Olark, 37 Cal. 236 (less than two months); Ghábot v. Tucker, 39 Cal. 434; Hopkins v. Western Pac. B. B. Go., 44 Cal. 389.)</p> <p>files no brief.</p>

We have never heard the subject matter of the act of 189$ questioned as to any of its provisions. This act provides two-methods of issuance of bonds. Which method is to be pursued depends, not wholly On mind of board of county commissioners,, but depends rather on what use, effect and object is to be accomplished with the bonds.

<p>Notice to Dismiss Appeal — Service op Notice op Appeal. — Admission of service of notice of appeal by one defendant within the time required by law for service of notice is equivalent to service.</p> <p>Same — Voluntary Appearance — Jurisdiction.—Admission of due service of notice of appeal is a waiver of irregular service, and when a party voluntarily appears in court he will be subject to thei same jurisdiction as if brought in by regular process.</p> <p>Same — Service op Statement. — Co-respondents cannot take advantage of failure of appellant to serve statement on motion for a new trial on one of their co-respondents, such co-respondent having failed to do so.</p> <p>Undertaking on Appeal. — When the clerk certifies that a sufficient undertaking on appeal in due form of law has been filed, the appeal will not be dismissed on motion, unless a certified copy of such undertaking is presented and it is thus shown that the undertaking is not in due form of law.</p> <p>Certificate to Transcript. — Certificate of counsel for respective parties to transcript to the effect that the transcript is correct and contains all of the evidence, held sufficient.</p> <p>Acknowledgment op Married Woman. — The acknowledgment of a married woman must be taken in substantial compliance with the provisions of section 2956 of the Revised Statutes.</p> <p>Disposition op Community Property. — Under the provisions of section 2505, the husband has the management and control of the community property, with like absolute power of disposition (other than testamentary;, as he has of his separate property, but such power of disposition does not extend to the homestead or to that part of the common property occupied or used by the husband and wife as a residence.</p> <p>Same — SIGNATURE of Wife. — Tlie wife’s signature is not necessary to an instrument by which the husband conveys or encumbers that part of the community property of which he has absolute power of disposition.</p> <p>Findings. — The finding of facts must respond to all of the material issues.</p> <p>Partnership. — Held under facts of this case no partnership existed.</p> <p>Subrogation. — When, a person, being under obligation to do so, or is interested in so doing, pays the debts of another, he may be sub-rogated to all the rights, securities or remedies of the creditor whom he satisfies.</p> <p>;Same. — When one voluntarily, and as a mere volunteer, having no interests to protect, pays the debts of another, the payment operates as an extinguishment of the claim and doctrine of subrogation does not apply.</p> <p>(Syllabus by the court.)</p>

<p>Original proceeding npon application for writ of habeas corpus.</p> <p>file no brief.</p> <p>files no brief.</p>

<p>APPEAL from District Court, Bear Lake County.</p> <p>The evidence is wholly insufficient to sustain the verdict. (Bozeman v. State, 34 Tex. Cr. Rep. 503, 31 S. W. 389; State v. Biggs, 93 Iowa, 125, 61 N. W. 417; People v. Brown 47 Cal. 447; Blannett v. State, 8 Ohio Cir. Ct. Rep. 322; People v. Fleming, 94 Cal. 308, 29 Pac. 647; Stienkie v. State 33 Tex. Cr. Rep. 65, 24 S. W. 909, 25 S. W. 287; Fields, v. State (Tex.), 24 S. W. 907; Toulei v. State, 100 Ala. 72, 14 South. 403; Simmer v. State, 28 Eeb. 814, 45 N. W. 53; Commonwealth v. Merrill, 14 Gray, 415, 77 Am. Dec. 336; 5 Criminal Defenses, 887; People v. Boyal, 53 Cal. 62.)</p> <p>No brief filed.</p>

Said act was not passed by the legislature of the state of Idaho, as provided and required by the constitution of the state of Idaho. (Cohn v. Kingsley, 5 Idaho, 416, 49 Pac. 985; Ex parte Ah Fem, 53 Cal. 246; State v. Carr, 6 Or. 133 425; Trim-ble v. State 27 Ark. 355; State v. Melville, 11 E. I. 417; Const., art.-1, sec. 13; art. 17, sec. 1; leek v. Anderson, 57 Cal. 251, 40 Am. Rep. 115.) The title of this act is sufficient.

<p>APPEAL from District Court, Latab County.</p> <p>We contend that we have a purchase money mortgage, which under the common law and our statutes, is given preference over all other claims or liens on the land, even over dower, homestead or community property rights. (See Idaho Rev. Stats., sec. 3336; Smith on Homesteads and Exemptions, secs. 215, 216, 221; 4 Kent’s Commentaries, 38, 39; 1 Jones on Mortgages, sees. 464, 466, 467; 28 Am. & Eng. Ency. of Law, 166-174; 19 Am. & Eng. Ency. of Law, 580, 581, and footnote 2.)</p> <p>cites no authorities upon the point decided by the court.</p>

<p>Original proceeding for writ of prohibition.</p> <p>No brief filed.</p> <p>No brief filed.</p>

Simply because the juror, Marion Butler, was a client of the defendant’s attorney was no proper ground of challenge. (Idaho .Rev. Stats., see. 7834, sub. 2.) The statute concerning rape is unconstitutional and void. {Cohn v. Kingsley, 5 Idaho, 416, 49 Pac. 985; State of Idaho v. Baker, ante, p. 496, ••56 Pac. 81.) Appellant assigns as error that the court erred in excusing the juror Marion Butler.

It is claimed that this is only a proceeding supplementary to execution and a continuation of the action at law. The Idaho statutes (Rev. Stats., secs. 4504-4511), cover proceedings supplementary to execution.

<p>APPEAL from District Court, Idaho County.</p> <p>The court below erred in granting permission to file a complaint and issue a summons making the Lewiston National Bank a party defendant, because the proceeding was statutory, and no authority to file such additional complaint is given by statute. (Rev. Stats., secs. 5068-5070.) A judgment cannot be founded on an amended complaint filed without authority. (Fox v. Cosby, 2 Call (Va.), 1.)</p> <p>No brief filed.</p> <p>refuses to file brief.</p>

<p>Removal op Public Officer. — A proceeding for tbe removal of an officer under section 7459 of the Revised Statutes, is not required to be brought by indictment or information by the public prosecutor: Rankin v. Jauman, 4 Idaho, 53, 394, 36 Pac. 503, 39 Pac. Ill, affirmed.</p> <p>(Syllabus by the court.)</p>

<p>APPEAL from District Court, Shoshone County.</p> <p>Same attorneys and same briefs as in case of Hays v. Simmons, ante, p. 651.</p>

The default of John E. Harper in this cause was improperly-entered. The service of the summons was not complete until one month after service on John E. Harper on March 21, 1898, and Harper had forty days after that to answer, or all of April 80th. (Rev. Stats., sec. 4146; Abrahams v. Mitchell, 8 Abb. Pr. 123; Fiske v. Anderson, 12 Abb. Pr. 8; Brooklyn Trust Go. v. Buhmer, 49 N. Y. 84; Market Nat. Bank v. Pacific Nat. Bank, 89 N. Y. 397; Tomlinson v. Tan Techien, 6 How.

<p>Original proceeding in supreme court. Application for writ of habeas corpus.</p> <p>The judgment in this case is void, for the reason that in addition to the punishment provided by law for the offense, he was sentenced to seventeen years at hard labor. A judgment in excess of that provided by law is absolutely void. (Ex parte Cox, 3 Idaho, 530, 32 Pac. 197; Ex parte Yarbrough, 110 IT. S. 651, 4 Sup. Ct. Eep. 152; People v. Liscomb, 60 N. Y. 559, 19 Am. Eep. 211; Ex parte Bernert, 62 Cal. 524; Ex parte Lange, 18 Wall. 163; Ex parte Wilson, 114 U. S. 417, 5 Sup. Ct. Eep. 935; Ex parte Page, 49 Mo. 291; Ex parte Nielsen> 131 U. S. 176, 9 Sup. Ct. Eep. 672.)</p> <p>Under provisions of section 3961 the court may, for good cause, discharge regularly drawn and summoned jurors, and order open venire for jurors to try the cause at the term for which juros were regularly drawn. (Simmons ¶. Cunningham, 4 Idaho, 426, 39 Pac. 1109.) To the same effect are the following authorities: People v. Durrani, 116 Cal. 179, 48 Pac. 75; Babcoclc v. People, 13 Colo. 515, 22 Pac. 817; Chartz v. Territory (Ariz.), 32 Pac. 166; Maclcy v. People, 2 Colo. 13; State v. King, 9 Mont. 445, 24 Pac.’ 265. We think the provision of the statute directing the ordering of the grand jury by the court, although it contains the word “must/’ is simply directory to the court, and if for any reason it is not done, the other provision of the statute may be followed. (State v. Krug, 12 Wash. 288, 41 Pae. 127; Weeks v. State, 31 Miss. 490; Johnson v. State, 33 Miss. 363; State v. Smith, 67 Me. 328.) The errors claimed, even if they existed, were not jurisdictional, and mere errors and irregularities will not be inquired into on a hearing of this kind. Errors, in summoning a grand jury will not be considered on habeas corpus. (In re Betts, 36 Neb. 282, 54 N. W. 524; Ex parte Warris, 28 Fla. 371, 9 South. 718; Ex parte Springer, 1 Utah, 214.) The grand jury was at least a de facto body, and its acts cannot be questioned here. (State v. Noyes, 87 Wis. 3-40, 41 Am. St. Rep. 45, 58 N. W. 386, 27 L. R. A. 776; State v. Marsh, 13 Kan. 596; Sage v. State, 127 Ind. 15, 26 N. E. 667; In re Gannon, 69 Cal. 541, 11 Pae. 240; State v. Belvel, 89 Iowa, 405, 56 N. W. 545; People v. Beigel, 120 Mich. 78, 78 N. W. 1017; Ex parte Twohig, 13 Nev. 302; State v. Petrea, 92 N. Y. 128.) Assuming that the judgment is erroneous as to the provision for hard labor, still it can only be corrected upon a writ of error, and in no event is the defendant entitled to a release under a writ of habeas corpus. {United States v. Fridgeon, 153 TJ. S. 631, 14 Sup. Ct. Rep. 746; Ex parte Bond, 9 S. C. 80, 30 Am. Rep. 20; Church on Habeas Corpus, see. 372.) It is held that, although the court might have rendered an erroneous judgment, such as imposing hard labor, when not allowed, or rendered a severer sentence than allowed, still these things must be corrected by an appeal or writ of error, and cannot be considered on a writ of habeas corpus. {In re Graham, 74 Wis. 450, 17 Am. St. Rep. 174, 43 N. W. 148; Sennotfs Cas}e, 146 Mass. 489, 4 Am. St. Rep. 344, 16 N. E. 448; Ex parte Ryan, 17 Nev. 139, 28 Pac. 1040; In re Swan, 150 H. S. 637, 14 Sup. Ct. Rep. 225; Ex parte Gibson, 89 Ala. 174, 7 South. 833; Church on Habeas Corpus, see. 372; In re Paschal, 56 Kan. 123, 42 Pae. 373; Ex parte Max, 44 Cal. 579; State v. Sloan, 65 Wis. 647, 27 N. W. 616; People v. Jacobs, 66 N. Y. 8; Ex parte Gibson, 31 Cal. 628, 91 Am. Dee. 546; People v. Lis-comb, 60 N. Y. 559, 19 Am. Rep. 211; People v. Kelley, 97 N. Y. 213; Eisner v. Shrigley, 80 Iowa, 30, 45 N. W. 393; Ex parte Lange, 18 Wall. 163; In re Graham, 138 H. S. 461, 11 Sup. Ct. Rep. 363; In re Taylor, 7 S. Dak. 382, 58 Am. St. Rep. 843, 64 N. W. 253; Ex parte Arras, 78 Cal. 304, 20 Pae. 683.)</p>

Original proceeding by writ of review. Certiorari is the remedy to review appointments of receivers. {Sweeny v. Mayhew, ante, p. 455, 56 Pac. 85, cases cited.) The appointment having been made without notice after appearance is void. (Idaho Eev. Stats., see. 4892; Larsen v. Winder, 14 Wash. 109, 53 Am.

The sale of personalty must not only be accompanied by immediate delivery, but must also be followed by an actual and continued change of possession, to be valid against a subsequent purchaser in good faith.

We are aware that such a suit has been before this court in the case of Stevens v. Home Sav. etc. Assn., 5 Idaho, .739, 51 Pae. 779. But there was no demurrer to the complaint in that case, and of course it is not decisive of the points raised by this appeal.

<p>APPEAL from District Court, Bannock County.</p> <p>Section 4470 of tbe Bevised Statutes, provides that a party may have ‘an execution issued upon a judgment at any time within five years after tbe entry thereof. We believe it is fatal to tbe complaint when it fails to allege either that an execution was issued and returned or that tbe defendant, Tanaker, was insolvent, and that these facts were made known to the court by affidavit or complaint before it made the order of February 5, 1895, allowing this suit. (See Yordcrmark v. 'Wilhinson 147 Ind. 56, 46 N. E. 336, and cases cited.) Chapter 2, title 9 of the Bevised Statutes, under which this suit was brought, is a substitute for a creditor’s bill in the old chancery practice. (See Adams v. Haskett, 7 Cal. 201; Pacific Bank v. Robinson, 57 Cal. 532, 40 Am. Rep. 120, and note; McCullough v. Ciarle, 41 Cal. 298; Swift v. Arents, 4 Cal. 390; 24 Am. & Eng. Eney. of Law, 601.)</p> <p>This action is brought under section 4309 of the Revised Statutes relative to the issuance and services of attachment and not under the provisions supplemental to execution. Under, said section 4309 the garnishee is directly liable to the plaintiff for the amounts of any credits, property or debts in his possession belonging to the attachment debtor until the attachment is disposed of and the judgment is satisfied, and gives the plaintiff a right to sue ’the garnishee at any time whether the attachment debtor is solvent or insolvent. (Roberts v. Landecker, 9 Cal. 262; Eerrlich v. Kaufmann, 99 Cal. 271, 37 Am. St. Rep. 50, 33 Pac. 857.)</p>

This case having been adjudicated in the probate court as to the ownership of the property involved, the decision of the district court reversing that unappealed adjudication is a read-judieation of a former adjudication and is ex necessitate wrong.

<p>APPEAL from District Court, Elmore County.</p> <p>To support a motion for a new trial upon the ground of newly discovered evidence, the affidavits filed in support of the motion must show that the evidence is “newly discovered,” and that it could not, with reasonable diligence, have been produced at the trial; that such evidence is not cumulative merely; that it is not merely impeaching in character; that reasonable diligence was used in preparing for the trial; and the “newly discovered evidence” must be such as to render a different result probable on retrial. (Turner v. Morrison, 11 Cal. 21; Schell-house v. Ball, 29 Cal. 608; Ferrer v. Home Mut. Ins. Go., 47 Cal. 430; Heath v. Scott, 65 Cal. 548, 4 Pac. 557, and authorities there cited; Outcalt v. Johnston, 9 Colo. App. 519, 49 Pac. 1058; Hayne on New Trial and Appeal, sec. 92; Pincus v. Puget Sound Brewing Co., 18 Wash.' 108, 50 Pac. 930; Harralson v. Barrett, 99 Cal. 607, 34 Pac. 342; People v. Mc-Curdy, 68 Cal. 576, 10 Pac. 207; Chapin v. Goodell, 2 Colo. 608.) Evidence which merely multiplies witnesses to any one or more of those facts before' investigated, or only adds other circumstances of the same general character, is cumulative, and not ground for a new trial. (Hayne on New Trial and Appeal, sec. 90; Knuffke v. Knuffe, 8 Kan. App. 857, 56 Pac. 326; Marshall v. Mathers, 103 Ind. 458, 3 N. E. 121; Klopenstine v. Hays, 20 Utah, 45, 57 Pae. 712; Alabama Midland By. Co. v. Johnson, 123 Ala. 197, 26 South. 160.)</p> <p>We might content ourselves in the first instance by resting this appeal upon the well-established rule, so often indorsed by this court, which is to the effect that a motion for a new trial on the ground of the insufficiency of the evidence to justify the decision of the court and newly discovered evidence, is addressed to the sound legal discretion of the court below, and that on an appeal from an order granting a new trial, the appellate court will not reverse the order, unless it appear that there has been a manifest abuse of discretion. It is exceedingly seldom that an appellate court will disturb the action of the lower court, when such court has manifested its dissatisfaction with its own decision by granting a new trial. It is presumed that the court has become dissatisfied with the fairness of the trial or the justice of its decision, and an appellate court will not disturb its ruling. (Pico v. Cohn, 67 Cal. 258, 7 Pac. 680; Pac. Bol-ling M. Co. v. Telegraph Co., 79 Cal. 340, 21 Pae. 840; Brechen-ridge v. Crolcer, 68 Cal. 403, 9 Pac. 426; Phelps v. Mining Co., 39 Cal. 410; Pierce v. Schaden, 55 Cal. 406; Brossard v. Morgan, ante, p. 479, 56 Pae. 163.) Casual examination of the record of this case will show that this newly discovered evidence is not cumulative. The test is, Does the newly discovered evidence go to a different point in the establishing of the ultimate proposition? (Kenezleber v. Wahl, 92 Cal. 202, 28 Pac. 225.) The fact that the testimony may tend to prove the same issue upon which proof was offered on the trial is not enough to make it cumulative, and whether or not it is cumulative is to be determined from its kind and character rather than from its effect. (Winfield etc. Assn. v. McMullen, 59 Kan. 493, 53 Pac. 481; 1 Greenleaf on Evidence, sec. 2; Flannigan v. Newberg, 1 Idaho, 78.) The court might have very properly granted a new trial, solely on the ground that the evidence was insufficient to warrant the decision, in that no discovery of mineral was proven as to the Hot Springs claim. There was no evidence whatever tending to prove a discovery and this was necessary. (Lindley on Mines, sec. 437; Beins v. Murray, 22 Land Dec. 409.)</p>

Plaintiff having alleged title by written assignment from the payee to Simmons and the same being denied, in order to recover he must prove the title he has alleged. (14 Am. & Eng. Ency. of PL & Pr. 504, note B.) Does the evidence sustain the finding of the court that the sum of $1,000 was a reasonable attorney’s fee for the foreclosure of this mortgage?

<p>Rape — Uncorroborated Testimony of Prosecutrix. — While a conviction, for rape may be properly had upon the uncorroborated' testimony of a prosecutrix, this would only be warranted when ithe reputation of the prosecutrix for chastity is unimpeached, and when the facts and circumstances surrounding the commission of the offense are corroboration and not contradictory of the statements of the prosecutrix.</p> <p>Same — Instructions—Prejudicial Error. — In a prosecution for rape, an instruction) which virtually instructs the jury that they may find corroboration of the testimony of the prosecutrix in her own statements is misleading and amounts to prejudicial error.</p> <p>(Syllabus by the court.)</p>

<p>Notice op Intention to Move for a New Trial — Time for Piling.. An appeal from an order denying a new trial will be dismissed when it is shown that the notice of intention to move for a new trial was not filed and served upon the adverse party within ten days after the verdict as required by statute.</p> <p>Commingling Causes of Action in Same County — Demurrer— Motion to Strike. — The commingling of several causes of action in one count of the complaint is prohibited by the code, but such commingling is not ground for demurrers, the remedy in such case being by motion to elect, and strike out.</p> <p>Check — Presumptions.—The law presumes that the drawer of a cheek has funds in the hands of the drawee to satisfy the check.</p> <p>Allegations op Complaint — Presentment of Checks. — A complaint, seeking judgment upon certain checks, averred facts showing that the payee received the checks in a county adjoining the one in which the drawer was doing business, sixteen days before the drawer failed and became insolvent, but did not allege presentment or any fact excusing presentment, or any fact showing reasonable effort to present such checks. Held, on general demurrer that said complaint did not state a cause of action.</p> <p>(Syllabus by the court.)</p>

<p>APPEAL from District Court, Canyon County.</p> <p>When the complaint states a cause of action, and the answer fails to raise any material issue, judgment should be rendered on the pleadings. The test as to whether an answer presents any material issue is found in the question whether a complete cause of action remains without reference to the portions which may be denied by the answer. {Gay v. Winter, 34 Cal. 153; Wallace v. Baisley, 22 Or. 572, 30 Pac. 432; Alvord v. United States, 1 Idaho, 585; Sweeney v. Schlessinger, 18 Mont. 326, 45 Pae. 213; Whitwell v. Thomas, 9 Cal. 496; Leffingwell v. Qriffing, 31 Cal. 231.) In the first paragraph of the answer the defendant denies that he is indebted to the plaintiffs in the sum of $235.70, or in any other sum or sums whatever or at all, for goods, wares and merchandise sold and delivered to him by plaintiffs between the first day of January, 1893, and the first day of January, 1895, or at any other time or times whatsoever or at all. This denial, so far as it makes any reference to the allegation of sale and delivery, is in the conjunctive, and hence is evasive and not sufficient to raise an issue. {Smith v. Doe, 15 Cal. 101; Blanlcman v. Vallejo, 15 Cal. 239; Kuhland v, Sedgwick, 17 Cal. 123; Rode Springs Go. v. Salt Lake Sanitarium Assn., 7 Utah, 158, 25 Pae. 742.) The true rule is that such a denial of indebtedness admits the facts from which indebtedness results. {Lightner v. Menzel, 35 Cal. 452; Levison v. Schwartz, 22 Cal. 229; Taylor v. Sheio, 39 Cal. 536, 2 Am. Eep. 478; Landers v. Bolton, 26 Cal. 393, at page 417; Kinney v. Osborne, 14 Cal. 112.) Nor should it be forgotten that at one time Weissman was Shea’s manager, and; there was no apparent change in the ownership of'the store, and no knowledge in the community of change of ownership. Under such circumstances, defendant’s failure to notify those dealing with Weissman that he was not responsible is a ratification of the actions of Weiss-man done in his name. {Philadelphia etc. R. Co. v. Cowell, 28 Pa. St. 329, 70 Am. Dec. 128; Reyn v. O’Hagen, 60 Mich. 157, 26 N. W. 861; Saveliand v. Green, 40 Wis. 438.)</p> <p>The testimony is strongly favorable to defendant, and even were there a substantial conflict in the testimony the court would not be justified in disturbing the judgment, or order denying a new trial, if no rule of law has been violated. {Mooiry‘ v. Hawley, 1 Idaho, 543; Monarch etc. Co. v. Me-Laughlin, 1 Idaho, 617; Ainslie v. Idaho World Printing Go., 1 Idaho, 641.) Taking the complaint in its most favorable light, the allegation is of a sale and delivery made in the ordinary course of business adopted by wholesale merchants of taking orders for and delivering goods, and in that sense the expression of the complaint “sold and delivered” constitutes but one act. The word “sold” as used in the complaint and in the course of business above indicated includes a delivery, just as the words “made and executed” or “executed” with reference to a deed imply delivery. (Le Mesnager v. Hamilton, 101 Cal. 533, 40 Am. St. Eep. 81, 35 Pac. 1054; ETbring v. Mullen, 4 Idaho, 199, 38 Pac. 404; Johnson v. Manning, 3 Idaho, 352, 29 Pac. 101; Alspaugh v. Reid, ante, p. 223, 55 Pac. 300.)</p>

<p>APPEAL from District Court, Oneida County.</p> <p>Respondent contends that he should have collected at the rate-of three dollars and fifty cents per poll, and seeks to compel appellant to .account at that rate, or for $338 more than he collected. By the provisions of the act of March 9, 1895, “all unpaid taxes are delinquent” on the first Monday in January in each year. (3d Sess. Laws, p. 119.) Theretofore the delinquency occurred on the second Monday of December. (Rev. Stats., 1523.) The fifty cents added to the poll tax is clearly a penalty for delinquency, and it was clearly the intention of the legislature that delinquency on both poll and property tax should occur simultaneously. Such was obviously the intention and the motive of the amendment of 1889. (See 15th Sess. Laws, p. 3.)</p> <p>This matter is brought to this court by appeal, instead of writ of error. The appeal should therefore be dismissed. (Rupert v. Alturas County, 2 Idaho, 19, 2 Pac. 718; Nez Perces County v. Latah, County, 3 Idaho, 413, 31 Pac. 800.) Under the statute (Rev. Stats., sec. 1771), it was the duty of the commissioners to charge the appellant with the additional sum. We have in this state two modes of raising revenue for general state and county purposes; one by means of a property tax and the other by means of a poll tax. It might be more convenient for the officer and to property owners, to have them become delinquent at the same time, bnt this was a matter wholly within the discretion of the legislature. The poll tax and the property tax do not necessarily have anything to do, with each other.</p>

There is no law creating or recognizing the office of deputy clerk and ex-officio auditor and recorder, as one of the offices of a county in this state. In section 6, article 18 of the constitution) after enumerating the various county offices, there appears the following: “No other county offices shall be established.” It follows, as a matter of course, that there shall be no county officers, except those chosen to fill the offices as provided by the constitution.

The findings show that the alleged lien of Mr. Winchell is based upon the fact that he furnished wood or cordwood to the Union company while it was in possession of the mines. This wood was furnished subsequent to July 10, 1895, the date the Union company ousted plaintiff, and prior to January 14, 1896, the date the lien was filed. Consequently all rights herein are to be determined by the lien law of 1893 as amended in 1895.

A married woman in Idaho who is over the age of eighteen years and of sound mind has the power, capacity and competency to make a valid olographic will; that is to say, she is not disqualified in the premises simply by reason of her cover-ture. Our statutes relating to olographic wills, as well as to the property rights of married women, may be traced primarily to the civil law, as introduced by Spanish and Mexican settlers on the coast, and in the south.

The act governing the proceedings of the defendants in endeavoring to submit to -the legal voters of Boise City, the proposition of funding the outstanding indebtedness of said city by the issue and sale of municipal funding bonds recites certain steps t-o be taken by the defendants. (Sess.

<p>APPEAL from District Court, Lincoln County.</p> <p>The provisions of the state constitution and of the statutes directly involved in a consideration of this case are: Const., see. 12, art. 7; Rev. Stats., secs. 1475, 1483, as amended by Laws 1899, p. 454, and sees. 1484, 1485 — the latter as amended and re-enacted by Laws 1899, p. 261. If it was the intention of the board to limit its action to directing the assessor to so add property to the number, amount or quantity previously assessed by him, it should have been made to appear. (People v. Reynolds, 28 Cal. 107, 115.) The statute, having specified what they may do, necessarily excludes every other power. The court cannot add to or take from the words of the statute. (Extract from opinion in Orr v. State Board of Equalization, -3 Idaho, 190, 28 Pac. 416.) No presumption of jurisdiction or regularity of proceedings are indulged in favor of courts and tribunals of inferior or limited jurisdiction, and all special boards and tribunals which are created by law and clothed with judicial functions of a limited and special character; and all persons who claim any right or benefit under their judgments must show their jurisdiction affirmatively. (Hahn v. Kelly, 34 Cal. 392, 409, 94 Am. Dec. 742, and note; State v. Officer, 4 Or. 180, 183; Rhode v. Davis, 2 Ind. 53; Johnson v. Eureka Go., 12 Nev. 28; Rosenthal v. Madison P. R. Go., 10 Ind. 359; Fayette Go. v. Chitwood, 8 Ind. 504; Plummer v. Waterville, 32 Me. 566; Northcut v. Lemery, 8 Or. 322.)</p> <p>We fail to recognize any departure from the provisions of the law taken as a whole, both by its express terms and implications. In one place (Rev. Stats., see. 1483, as amended by Laws 1899, p. 454) it says: “It may direct the assessor to make the required entries,” while, section 1484 of the Revised Statutes, speaks in direct and mandatory terms and says: “The clerk must enter upon the assessment book all changes and corrections made by the board”; while section 1503 of the Revised Statutes, requires the clerk under oath to vouch for the correctness of the record of the proceedings. That the order in the case at bar was directed to the assessor is to be presumed from the fact that in every case where the board of equalization as shown by the record directed its orders to anyone, it was to the assessor. (Fowler v. Russel, 45 Kan. 435, 35 Pae. 871; Allison Ranch Min. Co. v. Nevada Co., 104 Cal. 161, 37 Pae. 875.) The jurisdiction of the board to act in the matter of increasing an assessment is complete after giving to the person assessed the notice prescribed by that section and the board may give such notice on its own motion. (Allison Ranch Min. Co. v. Nevada Co., 104 Cal. 161, 37 Pac. 875; Farmers’ etc. Bank v. Board of Equalization, 97 Cal. 318, 33 Pac. 313.) The presumption in all proceedings relating to taxes is in favor of regularity. (Chamberlam v. City of St. Ignace, 93 Mich. 333, 53 N. W. 634.) Certiorari is not the proper remedy to reach errors and irregularities of inferior tribunals in determining questions of fact. Unless a statute confers the power of reviewing determinations of inferior tribunals upon questions of fact, such determinations are conclusive and cannot be reversed on certiorari. (3 Wait’s Actions and Defenses, p. 134, sec. 1; Andrews v. Andrews, 14 N. J. L. 141; Starr v. Trustees of Rochester, 6 Wend. 564; State v. Senft, 3 Hill (S. C.), 367; Ex parte Nightingale, 11 Pick. (Mass.) 168; Willimson v. Carman, 1 Gill & J. (Md.) 196; Mauser v. State, 33 Wis. 678.) Mere errors and irregularities which do not affect the jurisdiction are not reached by this proceeding. (Wait’s Actions and Defenses, p. 137, sec. 4; Bazior v. Lasch, 28 Wis. 270; Idaho Bev. Stats., 4960.)</p>

The evidence shows that he plaintiff owns three hundred and twenty acres, and that there is only about seventy inches of water supplied by the springs. And even if he had not actual acreage sufficient to cover the entire seventy inches, he would have the right to increase his acreage from year to year, which the evidence all shows they were doing. (Oonant v. Jones, 3 Idaho, 606, 32 Pac. 250; Hindman v. Bizor, 21 Or; 112, 27 Pac. 13; Simmons v. Winters, 21 Or. 35, 28 Am.

If the sections of the statute in regard to voting are mandatory, then there is no question under the record in this case that the judgment of the lower court should be reversed; but should this court hold that the said sections of the said laws were simply directory, then and in that event we contend that the said malconduct of the said judges of election in said Poca-tello precinct No. 2 was so rank and reckless as to give their returns no standing whatever, and thus it…

The only right of a second mortgagee is the right of redemption, and he must either pay or tender the amount due or he will not be heard to complain in a court of equity.

<p>Writ of Mandate — Custody of Prisoner — Criminal Law — Ex Post Pacto Law — Changing Place of Execution — Judgment.— The provision of section 159 of the Eevised Statutes of 1887 ia intended as and is a general saving clause to penal statutes, amendatory and otherwise, and continues in force a statute as it existed as to all offenses committed prior to repeal, and a person convicted of an offense and sentenced to death prior to repeal must be punished under the law as it existed at the time of the commission of the offense. Act of February 18, 1899 (Session Laws 1899, p. 340), amending certain sections of the Eevised Statutes of 1887, regulating the time, place and manner of in-flieting the death penalty, construed with section 159 of the Revised Statutes, is not applicable to past offenses and is prospective only in its operation.</p> <p>(Syllabus by the court.)</p>

<p>Taxation — Assessor—Board of Equalization — Bailroad Property. — Property of a railroad company, other than “rolling stoek” outside of the “right of way” “railroad track” as defined by the statute of this state, is assessable by the local assessor, and. not by the state board of equalization.</p> <p>(Syllabus by the court.)</p>

<p>APPEAL from District Court of Ada County.</p> <p>This action was brought in compliance with sections 935, 968, and 969 of the Revised Statutes of Idaho, .which said section 968 was, on the fifteenth day of March, 1899, amended by our legislature. (Idaho Rev. Stats., isecs. 968, 969; Sess. Laws 1899, pl. 405.) The above statutes require all persons who run water across any public road, street, or highway in this state, to construct a ditch of sufficient size to carry all such water, and must build and keep in repair, at the expense of such person, a good, substantial bridge over such ditch. An interpretation was placed upon said sections 968 and 969 by this court. (City of Lewiston v. Booth, 2 Idaho, 692, 34 Pac. 809; Town of Olay v. Hart, 25 Mise. Bep>. 110, 55 N. T. Supp. 43; Siuffiebeam v. Montgomery, 3 Idaho, 20, 26 Pac. 125.) The universal rule, as we understand it, is that anything which menaces, endangers or puts in jeopardy citizens passing along the public highway is a public nuisance. (Idaho Bev. Stats., see. 3620, 4529; Angel on Highways, 227; Parker v. Macon, 39 Ga. 725, 729, 99 Am. Dee. 486; State v. St. Louis Board of Health, 16 Mo. App. 8; Bond v. Smith, 44 Hun, 219, 222; Wood on Nuisances, 1; 2 McClain on Criminal Law, 1169; State v. Louisville etc. Go., 86 Ind. 114; Waterford Township Go. v. People, 9 Barb. 161.) It is a, nuisance at common law for a person to maintain an obstruction in a public highway. (Charter of Boise City, sec. 5, subds. 8, 14.) Every state, city or town has jurisdiction over, and authority to compel persons to remove and abate nuisances maintained or placed upon the streets or elsewhere, as such authority comes within the exercise of police powers, which are necessary to the safety of the public. (Theilan?v. Porter, 14 Lea, 622, 52 Am. Bep. 173; Kansas City v. McAleer, 31 Mo. App. 333, 336; Manhattan Mfg. etc. Go. v. Van Kensen, 23 N. J. L. 251; Kennedy v. Phelps, 10 La. Ann. 227; Mayor and Council of Monroe v. Gerspach, 33 La. Ann. 1011, 2 Dillon on Municipal Corporations, 782; Springfield v. Connecticut River etc. Go., 4 Cush. 63; Easton etc. Co. v. Greenwich Twp., 25 N. J. Eq. 563; Stearns Go. v. St. Cloud etc. Go., 36 Minn. 425, 32 N. W. 91; State v. Atkinson, 24 Vt. 448.) The defendant can acquire no right by prescription to continue a public nuisance. (Drew v. Hicks (Cal.), 35 Pac. 563; People v. Gold Run etc. Go., 66 Cal. 152, 56 Am. Bep. 80, 'and note, 4 Pac. 1152; Bowen v. Wendt, 103 Cal. 236, 37 Pae. 149; Wright v. Moore, 38 Ala. 593, 82 Am. Dec. 731; Mills v. Hall, 9 Wend. 513; Pettis v. Johnson, 56 Ind. 139; Boston Rolling Mills v. Cambridge, 117 Mass. 396; State v. Franklin Falls Go., 49 N. H. 240, 6 Am. Bep. 513.)</p> <p>At the time when respondent’s ditch was constructed, the land over which it ran was part of the public domain, and Congress, by its acts, recognized, acknowledged, and confirmed the rights of owners of canals and ditches constructed on the public lands. (Act of Congress, July 26, 1866, 14 Stat. at L. 261.) As to the canal of defendant: So far as it ran through the land of the United States it was an unequivocal grant of the right of way, if it was no more. As the plaintiff’s right commenced subsequent to this statute, it took the title subject to this right of way, and cannot now disturb it. (Broder v. Natoma Water & Mining Go., 101 U. S. 274, citing Atchinson v. Peterson, 20 Wall. 507; Basey v. Gallagher, 20 Wall. 670; Forbes v. Gracey, 94 U. S. 630.) “When a city has acquired the fee and control of its streets, in trust for the public, subject to the previous grant and dedication of a right of way for an irrigating and milling ditch, it must repair and render them passable, as the public necessity and convenience require, without interfering with the rightful and accustomed use of the ditch.” (City of Denver v. Mullen, 7 Colo. 345, 3 Pae. 693.) If a highway be located over watercourses, either natural or artificial, the public cannot shut up these courses, but may make the road over them by the aid of bridges. (Perley v. Chandler, 6 Mass. 453-457, 4. Am. Dec. 159. To the same effect: Lowell v. Proprietors of Lodes and Canals, 104 Mass. 18-28.) A canal company is not bound by the principles of the common law, independent of its charter, to erect or maintain a bridge over the canal where a highway is laid out over the same after its construction. (Morris Canal Co. v. State, 24 N J. L. 62; Town of Providence v. Dyerville Mfg. Co., 13 B. I. 45; Angelí on Highways, sec. 57.)</p>

It is true tliat our supreme court has suggested in the case of StocTcey v. Bowrd of County Commrs., ante, p. 542, 57 Pac. 312, that an appeal would lie from these orders, the same as in other cases.

<p>Practice — Injunction—Damages.—In a ease when a perpetual injunction is prayed for, and also damages, the court must try the issue raised as to the injunction, and, on demand of either party, submit the question of damages to a jury and thereafter enter the proper judgment.</p> <p>¡Same — Causes Cannot be Tried Piece-meal. — It is error to try the issue as to the injunction, enter judgment thereon, and continue the question of damages to a subsequent term of the court. Causes cannot thus be tried piece-meal'.</p> <p>Same — Evidence.—All who are neither parties to a judgment nor the privies to such parties are not bound by such judgment.</p> <p>Court Must Grant any Relief Embraced Within the Issues.— Under the provisions of section 4353 of the Revised Statutes, when an answer is filed, the court may grant any relief consistent with the ease and embraced within the issues.</p> <p>Water Right — Ditch.—One may own a ditch, without owning a water right and may protect it from injury.</p> <p>(Syllabus by the court.)</p>