Volume 7 — Idaho Reports

<p>CONSTITUTIONAI, LAW — DISEASED SHEEP-QUARANTINE.-An act of the Idaho legislature, establishing quarantine against diseased sheep, etc., passed on March 13, 1899, held not to be in contravention of section 8, article 1, nor section 2, article 4, of the constitution of the United States.</p> <p>(Syllabus by the court.)</p>

<p>APPEAL from District Court, Ada County.</p> <p>The general- rule in the code states is that payment must be specially pleaded, evidence of payment not being admissible in the absence of such plea, under the general denial; a rule geii-erally dedueible from statutory provisions requiring a special plea for matters in avoidance of the action, and for new matter in defense, the substance of which requirements is practically the same. (16 Am. & Eng. Ency. of PI. & Pr., 174, 175.) The burden of proof was on the defendant upon all issues in the case, and a nonsuit under no circumstances could be granted. (Cutter-mannv. Schroeder, 40 Kan. 507, 20 Pac. 230; Mo'hrv. Barnes,4 Colo. 350; Kapp v. Runals, 37 Wis. 135; Canfield v. Sanders, 17 Cal. 569; Edson v. Dillaye, 8 How. Pr. 273; Hubler v. Bullen, 9 Ind. 273, 68 Am. Dec. 620; McKyring v. Bull, 16 N. Y. 297, 69 Am. Dec. 696, and note; Abbott’s Trial Evidence, see. 110, p. 446; Kersey v. Garton, 77 Mo. 645; Lovelock v. Gregg, 14 Colo. 53, 23 Pac. 86; Bliss on Code Pleading, sec. 357, and note 1.)</p> <p>We contend that tbe evidenee adduced at the trial by the plaintiff was wholly insufficient to sustain the allegations of his complaint, and that the motion for nonsuit was properly granted. In order to entitle him to recover, it devolved upon plaintiff to prove nonpayment of the note set out in his complaint. That nonpayment is an essential and material allegation and must be alleged, there can be no question as shown by the following cases: Hurley v. Ryan, 119 Cal. 71, 51 Pac. 20; Ryan v. Holliday, 110 Cal. 335, 42 Pac. 891; Scroufe v. Clay, 71 Cal. 123, 11 Pac. 882; Vogel v. Walker, 3 Utah, 227, 2 Pac. 210; Davany ¶. Egganlioff, 42 Cal. 395; Hershfield v. Aiken, 3 Mont. 442; Lent v. New York Ry. Go., 130 N. Y. 504, 29 N. E. 988. Even though the burden of proving payment devolved upon the defendant, the admission of the plaintiff that the note in question had been returned to the maker, Jesse Wilson, without facts showing fraud, established a prima facie case of payment. Payment of a note is presumed from its possession by its maker. (Lawson’s Presumptive Evidence, rule 75, B; Daniel on Negotiable Instruments, sec. 1228; Greenleaf on Evidence, sec. 527; Turner v. Turner, 79 Cal. 565, 21 Pac. 959; Hollenberg v. Lane, 47 Ark. 394, 1 S. W. 687; Stevens v. Hannan, 86 Mich. 305, 24 Am. St. Rep. 125, 48 N. W. 951; M’Gee v. Prouty, 9 Met. (Mass.), 547, 43 Am. Dee. 409; Walker v. Douglass, 70 Ill. 445.)</p>

In mortgage foreclosure the jurisdiction of the court is strictly limited to ordering the mortgaged property sold in satisfaction of the lien thereon.

After the return of the defendant was before the court, it was the duty of the court to consider it; the affidavit had performed its full duty and could not be considered further in the case. A demurrer in this case may be a proper pleading if interposed before the return is made and filed, but after that is done the demurrer has no place in the case, and the return was all that the court had before it to consider.

<p>APPEAL from District Court, Elmore County.</p> <p>As this appeal so far as we know is without a precedent in this court, it is proper at the outset that we should state its purpose and the object sought to be attained thereby. It is to procure this court to examine the decree entered by the district court to ascertain if it conforms to the mandate of this court, and if it does not so conform to remand the case with appropriate directions for correcting the error. We at once concede that this appeal cannot be entertained for any other purpose than the one stated above, but that it is authorized for such purpose is abundantly supported by authority. (Krantz v. B. G. W. By. Co., 13 Utah, 1, 43 Pac. 623, 32 L. B. A. 828; Boberts v. Cooper, 20 How. 467, 480; Humphery v. Baker, 103 U. S. 736; Slate v. Levelle, 38 S. C. 216, 221, 16 S. E. 717, 17 S. E. 30; Zimmerman v. Turner, 24 Wis. 483; Mackall v. Bichareis; 116 U. S. 45, 6 Sup: Ct. Itep. 234; Aspen etc. Co. v. Billings, 150 IJ. S. 31, 14 Sup. Ct. Bep. 4; Smith v. Shoffer, •50 Md. 132; Martin v. Platt, 131 N. Y. 641, 30 N. E. 565.)</p> <p>The defendants in this appeal, J. J. and Ida McGinnes, rely not upon the transfer of Harvey Glenn, but upon actual appropriation of the waters of Cold Spring creek in the year 1887. "The defendant, Ida McGinnes, has used-the water of said creek from 1881, continuously, to the trial of this cause, except during the time that she was forcibly removed and kept out of possession of the same. The circumstances in this case do not warrant the court in saying that she abandoned the premises nor the use of the water thereon. (Welch v. Garrett, 5 Idaho, 639,. 51 Pac. 405.)</p>

The moneys in question were never a trust fund, and were never in a condition to be claimed or established as a trust fund, and the court, therefore, erred in ordering them paid in preference to the claims of the other general creditors of said bank, said moneys having been on general deposit in said bank, the relation of debtor and creditor, only, existed between said bank and these respective respondents. (See Janin v. London, etc. Bank, 92 Cal. 14, 27 Am.

The instruction referred to in the second specification of error and excepted to by the defendant, is as follows: “The rule requiring the jury to be satisfied of the defendant’s guilt beyond a reasonable doubt, in order to warrant a conviction, does not require that the jury should be satisfied beyond reasonable doubt of each link in the chain of circumstances relied upon to establish the defendant’s guilt; it is sufficient if, taking the testimony altogether, the jury are…

<p>(Extension or Mortgage — Estoppel.—The respondent corporation purchased from appellants all of the property then belonging to the appellant (the B. L. & C. Co.), and agreed to pay therefor $74,-048.68, that being the sum then due from the last-named corporation to appellant, Wells, Fargo & Co., and agreed that said purchase price was secured by two certain mortgages, executed by appellant, Burke Land and Cattle Company to Wells, Fargo & Company, on said property, and accompanied by possession of such property. Held, that although said mortgages were not originally given to secure all of said purchase price, the respondent is estop-ped from denying the validity of said mortgages as to any part of said purchase price.</p> <p>Multiplicity op Suits. — The laws of this state prohibit the splitting of causes of action and a multiplicity of suits.</p> <p>Equity — Jurisdiction.—A court of equity having obtained jurisdiction of a cause of action, for any purpose, may retain it for all purposes, and may determine all the matters in issue.</p> <p>Construction op Contract. — In the construction of a written contract, if there is room for doubt as to its true meaning, the facts and circumstances out of which such contract arose should be considered, and the contract construed in the light of such circumstances.</p> <p>Strangers. — When a person is largely indebted, and thereafter organizes a corporation, and has all of its capital stock issued to himself, except one share each to four persons, given by him to qualify them as directors, and then transfers all of his property to such corporation, and thereafter such corporation assumes the indebtedness of its creator and owner, one, a stranger, and not a •c’-cditor, of such corporation, will not be heard/ to complain thereof.</p> <p>Principal and Agent. — When a contract is entered into by an agent, the principal cannot adopt part of the contract, and repudiate part, and enforce the part adopted.</p> <p>Ultra Vires. — The doctrine of ultra vires should not be applied when it would defeat the ends of justice, or work a legal wrong.</p> <p>(Syllabus by the court.)</p>

<p>APPEAL from District Court, Bingham County.</p> <p>Was it error for the court to grant a new trial because of the alleged defect in the complaint in not stating “that the plaintiffs were the owners or entitled to the possession of the property sued for at the time of the commencement of the actions” ? {Schwartz v. Skinner, 47 Cal. 3; Ladson v. Mostowitz, 45 S. C. 388, 23 S. E. 49.) A bare allegation that at the time of the commencement of this action plaintiffs were the owners, or entitled to the possession of the property in question, would, under the circumstances of the ease, have been a mere conclusion of law. (Silsby v. Aldridge, 1 Wash. 117, 23 Pac. 836.) A complaint which alleges that plaintiff was lawfully possessed of certain chattels, that on a certain day defendant wrongfully took them and has ever since unjustly detained them, is sufficient. {Appleby v. Hollands, 8 App. Div. 375, 40 N. Y. Supp. 804; Halleck v. Mixer, 16 Cal. 574; Simmons: v. Lyons, 55 N. T. 671; Oleson v. Merrill, 20 Wis. 462, 91 Am. Dec. 428.) Inferential allegations are sufficient as against a general demurrer. (Visher v. Smith, 91 Cal. 260, 27 Pae. 650; Williams v. Ashe, 111 Cal. 180, 43 Pac. 595.) Where, in an action of detinue, the complaint alleges the wrongful taking of the property, the detention, the demand and damages for wrongfully withholding the same, an objection that it is not sufficient to support a judgment for plaintiff will not be sustained on appeal. (Greivs v. Baird, 2 Idaho, 103, 6 Pac. 116.)</p> <p>When an appeal is taken from an order granting a new trial, the court is not confined to considering the ground on which said order is made, but will review entire record, and will sustain the order granting the new trial if any reason can be found therefor in the record. (Shanhlin v. Hall, 100 Cal. 26, 34 Pae. 636; Kauffman v. Maier, 94 Cal. 269, 29 Pac. 481.) In a suit to recover personal property the complaint must show the ultimate fact that plaintiff was owner, or entitled to the possession at the time of the commencement of the action, and it is not sufficient to merely aver that he was the owner or entitled to the possession at some period prior to that time. To the same affect are the following cases: Fredericks v. Tracy, 98 Cal. 658, 33 Pac. 750; Truman v. Young, 121 Cal. 490, 53 Pac. 1073; Masterson v. Hlark (Cal.), 41 Pac. 796; Affierbach v. McGovern, 79 Cal. 268, 21 Pac. 837; Alden v. Garver, 13 Iowa, 253, 81 Am. Dec. 430.</p>

<p>Possession of Pbemises on Public Domain — Section 4556 of the Revised Statutes Construed. — An action under the provisions of section 4556, to recover possession of premises located on the public domain, is not an action of ejectment, nor subject to the rules governing actions of ejectment. In this case the record examined and held that the findings of the court sustain the judgment.</p> <p>(Syllabus by the court.)</p>

<p>Injunction — Notice of Application. — Under the provisions of section 4293 of the Revised Statutes, an injunction that enjoins the general or ordinary business of a municipal corporation cannot legally issue except on notice. The terms “general" and “ordinary," as used in said section, are comprehensive enough to include the collection of assessments made for payment of the construction of sewers. Section 4287 of the Revised Statutes defines “injunction" as being a writ or order requiring a person to refrain from a particular act. Such writ cannot be issued to restrain an act already done.</p> <p>Complaint — Relief.—Held, under the allegations and demands of the complaint, that the only relief that could be granted thereunder is a writ of injunction. When no answer is filed, and the complaint does not demand it, judgment or decree cannot be entered removing the cloud from the title to real property east thereon by reason of a tax sale, which sale the action was brought solely to restrain, without first amending the complaint, and demanding therein that relief. An action brought solely to restrain a tax sale should be dismissed when it is shown that such sale has already taken place, an injunction being the only remedy demanded in the complaint, and no other issues being raised upon which other relief can be granted to plaintiff.</p> <p>Issues Made. — In an action where the demand for an injunction is only incidental to the main purpose or object of the suit, and other relief is demanded and comes within the issues made, the relief demanded may be granted, although the necessity for an injunction has disappeared.</p> <p>(Syllabus by the court.)</p>

<p>APPEAL from District Court, Bingham County,</p> <p>cites no authorities.</p>

<p>Claims Against a County — Allowance in Part — Appeal from Boards op Commissioners. — Claimants, whose claims against the county are allowed in part, must accept or reject the action of the board of commissioners as a whole, and cannot appeal from a portion of the action of the board. Affirming fflalvins v. Ngz Perces County, 4 Idaho, 131, 36 Pac. 702, and Clyne v. Bingham, County, ante, p. 75, 60 Pae. 76.</p> <p>Same — Claim fob Services, What to Contain. — An item in a constable’s claim or account against a' county, for services in serving process in a criminal case, must specify the court in which the action is pending, name the offense, the party served, and place of service, so that the correctness of the item shall prima facie appear from the claim itself.</p> <p>Statute Construed. — Act of March 13, 1801, does not amend sections 2126 and 2136 of the Revised Statutes in so far as said sections relate to constables’ fees and mileage.</p> <p>Constables’ Fees and Mileage. — Constables are entitled to mileage at the rate of twenty cents per mile for each mile necessarily traveled in going only, from place where the court is held to serve process.</p> <p>Attorneys — Stipulation.—Briefs that are signed and filed by persons claiming to be attorneys, but who are not licensed to practice in the appellate court, will be stricken from the files on order of the court.</p> <p>Boards op Commissioners. — Boards of commissioners are not a law unto themselves, but must he guided by and obey the provisions of statutes relating to the allowance of claims against a county.</p> <p>Dismissal op Appeal. — When there is no judgment or order from which an appeal will lie shown by the transcript, the appellate court should, on its own motion, dismiss the appeal. Affirming Potter v. Tallcington, 5 Idaho, 317, 49 Pac. 14, and Clyne v. Bing-ham County, ante, p. 75, 60 Pae. 76.</p> <p>(Syllabus by the court.)</p>

<p>An original proceeding. Application for writ of habeas corpus.</p>

<p>An original proceeding. Application for writ of prohibition.</p>

An original proceeding. Application for writ of habeas corpus. It is an elementary principle of law that a conviction of manslaughter is an acquittal of murder. (9 Ency. of Law, 749; 1 McLain on Criminal Law, sec. 390; People v. Gilmore, 4 Cal. 376, 60 Am. Dee. 620.) Death caused in attempting abortion is murder, and not manslaughter. This is true under our statute, and was so at common law. (4 Blackstone’s Commentaries, 201; State v. Moore, 25 Iowa, 128, 95 Am.

Negotiable paper made in the name of one partner, when his name is not also the name of the firm, is not, as a general rule, binding on the partnership. (Am. & Eng. Ency. of Law, 1027; Collyer on Partnership, see. 483Holmes v. BuHon> 9 Yt. 252, 31 Am. Dec. 621.)

The Butcher Boy mining location notice, under which, solely, defendants claim an interest in the premises in the controversy, was void for each of the following reasons, to wit: It did not give the direction for the distance of six hundred feet from the discovery monument to the mouth of Big Canyon creek, the natural object to which it was attempted to tie the claim.

We submit that under the law and the evidence, that the plaintiff is entitled to follow the $2,000 into the hands of the defendant, receiver, and that the same be decreed to belong to the plaintiff, and that it be paid in full, and that the following authorities support our claim: Standard Oil Go. v. Hawkins, 74 Fed. 395; Frelinghuysen v. Nugent, 36 Fed. 229; Peters v. Bain, 133 U. S. 670, 10 Sup. Ct. Eep. 354; National Bank v. Insurance Go., 104 TJ.

This being an action to hold defendants as trustees of an undivided one-half of the property for plaintiffs, by the specific enforcement of the alleged prospector’s agreement, plaintiffs cannot have a decree upon a bare preponderance of the evidence, nor unless plaintiff’s case is clearly and satisfactorily proven and all doubts are cleared up. (Larkins v. Rhodes, 5 Port.

In overruling the defendant’s motion to strike out the words, “He took a shot at me’ the court said: “The object of the admission of that testimony is to show the character, disposition and action of the defendant at that time as being evilly disposed toward some one.” This remark was highly prejudicial to the defendant; it was suggestive of his guilt, and indicated prejudice on the part of the judge; it was an invasion of the province of the jury and suggested that the…

This action was instituted as one in unlawful detainer, and on the defendant setting up title, was certified to the district court. There it was tried by the lower court, entirely upon the theory that it was and is an action of ejectment. A careful reading of the complaint will show that the complaint is entirely insufficient to sustain such a proceeding, under the decisions of this court, as there is no demand alleged, no prior possession in plaintiff and no ouster.

<p>Original proceeding for writ of review.</p> <p>A writ of error is process of the appellate court, issuing it. (Knight v. Weilcsdorf, 21 Fla. 157; Guarantee Trust Go. v. Buddington, 23 Fla. 514, .2 South. 885; Lessee of Taylor v. Boyd, 3 Ohio St. 354.) An action is commenced in Idaho when the complaint is filed with the clerk of the proper court. (Idaho Eev. Stats., secs. 4068, 4138, 4139; Gold Hunter Smelting Go. v. Holleman, 3 Idaho, 99, 27 Pac. 413.) In the order sought to be reviewed, the probate court of Nez Perces county was a justice’s court, and hence not a court of record, and therefore there would be no record within the meaning of the law to be certified to the district court. (7 Ency. of PI. & Pr., p. 828, note 2; Idaho Eev. Stats., sec. 3842. But compare this with article 5, section 21, Idaho Constitution, as there is possibly a difference.) The. remedy to review any matter in the justice court is by appeal to the district court. (Idaho Rev. Stats., see. 3830, subd. 7.) A writ of error will not lie where there is a remedy by appeal. (7 Ency. of PI. & Pr., p. 852, point 3, note 3.)</p> <p>Writ of error issues only when there is not a plain, speedy and adequate remedy at law. (Rev. Stats., sec. 4978; People v. Lindsey, 1 Idaho, 400, 401.) Plaintiff should have moved to quash the writ of error issued by Judge Steele, and if refused, then appeal to this court. (People v. Lindsey, 1 Idaho, 401.)</p>

<p>APPEAL from District Court, Ada County.</p> <p>The land upon which the attempted levy of attachment was made stood, at the date of said attempted levy, on the records of the county in the name of D. F. G-udger, and was upon said date without an occupant, and that a copy of the writ of attachment together with a description of the property attached, and a notice that it was attached, or any of them, was not posted on the said premises in a conspicuous place, or posted at all, as required by section 4307, subdivision 1 of the Revised Statutes of the state of Idaho. There is no question of interpretation, or construction, presented. The statute relating to attachment is clear and unequivocal, and lays down a plain, simple and practical mode of procedure. (23 Am. & Eng. Ency. of Law, 1st ed., 298.) Courts rightly refuse to declare plain provisions of a statute merely directory. (Nock v. Bridges, 45 Miss. 245; Briggs v. Georgia, 15 Yt. 72; Bensley v. Mountain Lake Water Go., 13 Cal. 306, 73 Am. Dec. 575; Roberts v. Sandecker, 9 Cal. 262; Rudolph v. Saunders, 111 Cal. 233, 43 Pac. 619; Gow v. Marshall, 90 Cal. 567, 27 Pac. 422; Schroeder v. Tomlinson, 70 Conn. 348, 39 Atl. 484; Courtney v. Bighih Ward Bank, 154 N. Y. 691, 49 N. E. 54; Main v. Tappener, 43 Cal. 209; Wheaton v. Neville, 19 Cal. 44.)</p> <p>Did the acts performed by the sheriff constitute a valid levy of attachment? The answer to this question will depend largely upon whether the provisions of our attachment laws, relating to the manner of making a levy thereunder, are mandatory or directory. (First Nat. Bank v. Lieuallen, 4 Idaho, 431, 39 Pac. 1108; Ritter v. ScarmeTl, 11 Cal. 238, 70 Am. Dec. 775.) A sheriffs deed for land sold under execution relates back to the date of the attachment, and cuts off all subsequent, liens. (Porter v. Pico, 55 Cal. 165; Bagley v. Ward, 37 Cal. 121, 99 Am. Dee. 256, and note; Drake on Attachments, sec. 224; Sharp v. Baird, 43 Cal. 577; Harvey v. Foster, 64 Cal. 298, 30 Pac. 849; Porter v. Pico, 55 Cal. 173.)</p>

The court committed a serious error in admitting in evidence -over defendant’s objection an alleged deposition of Joseph Whitaker, the prosecuting witness. The statute never intended -that a defendant should be prosecuted upon depositions of the prosecuting witness. The deposition was inadmissible for any purpose.

cite no authorities upon the points decided. All property acquired after marriage and during the marital relations by either spouse is community property except such as is acquired by gift, bequest, devise or descent, and the rents and profits of the separate property of the wife, when by the instrument by which any separate property is acquired by the wife it is provided that the rents and profits thereof be applied to her sole and separate use.

<p>Property Dedicated to Public Use — Rules and Regulations.— When a water company undertakes the performance of a public duty, it devotes its property used for that purpose to a public use, and may make such reasonable regulations for the conduct of such business as may be necessary.</p> <p>Rights of Water Company. — Reid, that a rule reserving the right to the company to make all taps of its mains and pipes, is a reasonable one.</p> <p>Same — Laying Mains and Pipes. — Held, under its franchise, it is required to lay all mains and pipes in the streets and alleys of the city of Pocatello necessary to accomplish the purpose for whieh said franchise was granted, and, on proper demand, to tap and connect such mains or pipes with the private pipes of citizens of said city at the line of its franchise limits, to wit, the side lines of said streets and alleys.</p> <p>Same. — Held, that such connections and pipes within said limits so laid by the company, are part of the property of said company, and necessary to complete its said waterworks system, and necessary to accomplish the purposes for which said franchise was granted.</p> <p>Rights of Plumbers. — The water company has no authority to enter upon the private property of the citizen, and lay its water pipes or to dictate to the citizen who shall lay his private water pipes for him. Nor, can it refuse to connect its water pipes with the private water pipes of a citizen that are laid to the line of its franchise limits, on the ground that such private pipes were laid by a plumber not selected by it.</p> <p>Duty to Public. — Held, that the company must lay all necessary water pipes within its franchise limits, at its own expense.</p> <p>(Syllabus by the court.)</p>

Our Kevised Statutes, section 4036 et seq., prescribe the time and the circumstances under which a claim of adverse possession to realty can be maintained; and is in accordance, except as to the matter of time, with the practice and statutes of most of the other states of the Union, and a literal copy of chapter 2, title 2 of the California Code of Civil Procedure.

<p>APPEAL from District Court, Elmore County.</p> <p>An issue of fact must be tried by a jury unless a jury is waived, in which case it must be tried by the court. (Rev. Stats., sees. 4629, 4771-4778; Biggs v. Lloyd, 70 Cal. 447, 11 Pac. 831; Swasy v. Adair, 88 Cal. 179, 25 Pac. 1119; Farwell v. Murray, 104 Cal. 464, 38 Pac. 199; Meeker v. Gilbert, 3 Wash. Ter. 369, 19 Pac. 18; Connecm v. Geis, 73 Cal. 176, 2 Am. St. .Rep. 785, 14 Pae. 580; Pleyte v. Pleyte, 1 Colo. App. 70, 28 Pac. 23; and the court of District of Columbia in ILill v. Neale, 27 Wash. L. E. 235.)</p> <p>The probate court had a rule requiring the payment of such fees in advance. The probate court had a right, under the statute, section 2137 of the Bevised Statutes of Idaho, to demand the deposit of the fees in advance. Jury fees are court costs. (Section 6138 of the Bevised Statutes as amended Laws 1899, page 234, H. B. No. 84, approved February 9, 1899.) The court had a right to make such a demand. (Conneau v. Geis, 73 Cal. 176, 2 Am. St. Bep, 785, 14 Pac. 580; Bank of Lassen Go. v. Sherer, 108 Cal. 513, 41 Pae. 415; Rollins v. Notting, 53 Minn. 232, 54 N. W. 1118; Pacific v. Hophinson, 69 Mich. 10, 36 N. W. 797; Allen v. Plummer, 71 Tex. 546, 9 S. W. 672.)</p>

<p>Pleading — Allegations of Complaint. — When a claim against the county is not allowed, for the reason that it is not a charge against the county, and its form and proper presentation is not questioned, it is not necessary for the complaint to allege that the requirements of the statute, as to form of claim and proper presentation thereof, have been complied with.</p> <p>Appointment of and Compensation of Deputies — Constitutional Consteuction. — Under the provisions of section 6, article 18, of the constitution of Idaho, as it existed before amendment, where the hoard of county commissioners, upon proper application and proof, empowered the sheriff to appoint a deputy and fixed such deputy’s salary, the salary is a charge against the county.</p> <p>Same — .Repeal of Statute. — Said section was not intended to repeal section 1815 of the Revised Statutes, so far as the latter section authorizes certain county officers to appoint deputies, hut only to prohibit the salaries of such deputies from becoming a charge against the county.</p> <p>Same — Deputies’ Salames, When a Charge Against the County.— Under the provisions of section 6 of the constitution, the only deputies of county officers, whose salaries are a charge against the county, are those whom from necessity the board have authorized to be appointed, and their salaries fixed by the board.</p> <p>(Syllabus by the court.)</p>

Where the prosecution depends upon circumstantial evidence, each circumstance or fact which forms a necessary link in the chain of circumstantial evidence must be established with the same degree of proof as any other fact. (Commonwealth v. Webster, 5 Cush. 295, 52 Am. Dee. 711; People v. Phipps, 39 Cal. 326; People v. Ah Chung, 54 Cal. 403; People v. Smith, 105 Cal. 678, 39 Pac. 38; Sumner v. State, 5 Blackf. 579, 36 Am. Dee. 561; Campbell v. State, 10 Tex.

<p>Criminal Law — Verdict of Jury — Impeachment of Verdict. — The verdict of a jury in a criminal ease cannot he impeached by the affidavit of a third person, as to statements by a juror, detailing the case to which an exhibit, taken to the jury-room upon suggestion of counsel for the defendant was put by the jury.</p> <p>(Syllabus by the court.)</p>

Leave, apparently ex parte, had been given respondent to file an amended answer and cross-complaint, but he had not filed either; there being nothing before the court at that time save the complaint, appellant was entitled to dismiss her action. (Kev. Stats., see. 4354.)

The evidence of Dr. Brown that he never at any time, told the wounded man that he was going to die or that he told him of his condition and in this entire record there is nothing to show that he knew, or ever suspected, that he was in danger of dying from the effects of the wound.

Original proceeding for writ of mandate. Under the provisions of sections 4977 and 4978 of the Kevised Statutes the writ of mandate is the proper method to bring this matter to the attention of this court. (13 Ency. of PL & Pr. 535; Eev. Stats., secs. (5452, 8435.) A party confined in the penitentiary has all of his rights as a witness. (Eev.

<p>APPEAL from District Court, Bingham County.</p> <p>The paramount object of such statutes as section 7459 of the (Revised Statutes of Idaho is the removal from office of incumbents who knowingly, willfully and corruptly use their official position as a medium for extortion and wrong. (Smith v. Ling, 68 Cal. 324, 9 Pae. 171; People v. Nichols, 79 (N. Y.) 588; Gorman-v. County Commrs., 1 Idaho, 559; Triplett v. Murder? 50 Cal. 644; Smith v. Ling, 68 Cal. 324, 9 Pac. 172; Bcmlcin v. Jauman, 4 Idaho, 394, 39 Pac. 1111, 1113.) So far as shown by the record, the acts complained of operated for the benefit and not to the injury of the public. (Osborn v. Bavenscraft, 5 Idaho, 612, 51 Pae. 618.) The findings of fact do not cover all the issues and are therefore insufficient to support the decision of the court or the judgment herein. (Wilson v. Wilson, 6 Idaho, 597, 57 Pac. 708.)</p>

<p>Appeal from Judgment Removing County Officer. — Under our constitution and statutes an appeal will lie from the judgment of a district court removing a county officer.</p> <p>County Commissioner — Members of Board. — Individual members of the board of county commissioners cannot perform services for the county, and charge for them as commissioners.</p> <p>Boards Act Collectively. — Boards of commissioners are entireties, and can only act as empowered by law, and collectively.</p> <p>Same. — The board is given certain limited powers, and a single member of such board is not empowered to act alone and bind the county in any manner.</p> <p>Same. — Members of the board cannot perform duties of road overseer and draw pay therefor as commissioners.</p> <p>Ignorance of the Law. — The plea of ignorance of the law will not protect a member of the board from removal from office, when it is shown that he has repeatedly violated the plain provisions of the law.</p> <p>Power of Boards. — Boards of county commissioners are given a general supervisory power over county affairs, but they cannot, as a board or as individual members thereof, perform the duties imposed by law on any other county officer, and draw compensation as county commissioner therefor.</p> <p>Same — Appropriation to be Used by One Member.- — Board of county commissioners has no authority to appropriate money for repairing and constructing roads and bridges, and place the same at the disposal of a member of such board, and authorize him to superintend the construction of such work, and allow him compensation as a commissioner for so doing.</p> <p>Duty of County Attorney. — A county attorney may be removed from office under the provisions of section 7459 of the Revised Statutes for ineompeteney or a neglect to perform the duties imposed on him by law. Courts will not tolerate any connivance or collusion between the county attorney and the board for the unlawful appropriation of county funds.</p> <p>Approval of Official Bonds. — The board is prohibited from approving official bonds unless the sureties possess the qualifications prescribed by section 396 of the Revised Statutes.</p> <p>Allegation of Information. — When a member of the board is charged with violation or neglect of duty in the approval of official Bonds, the allegation that he acted with the board in the approval of such bonds should be clear and specific.</p> <p>Publication of Pkoceedings. — The law requires the publication of the proceedings of the board in but one newspaper in the county.</p> <p>PROOF of Intent. — Frequent violations of the plain provisions of the law are probative facts, from which the ultimate fact of fraudulent, willful, or corrupt intent, may be drawn.</p> <p>Findings of Fact — Conclusion of Law. — Findings of fact and conclusions of law should be separately stated, but when the material issues are passed upon it is not cause for reversal that an ultimate fact is placed with the conclusions of law, as it is difficult many times to distinguish between an ultimate fact and a conclusion of law.</p> <p>{Syllabus by the court.)</p>

<p>Findings — Review on Appeal. — In the absence of evidence, the findings of fact cannot be reviewed upon appeal, or their correctness questioned.</p> <p>Water Bight — Statute of Limitations. — To bar the claim of a senior appropriator of water by limitation, or lapse of time, in favor of a junior appropriator, the latter must show continuous adverse possession and use in himself, accompanied by claim of title, and such possession and use as excludes the senior appropriator from the possession and use of such water.</p> <p>Adverse Possession and Use of Waters. — A right to the use and possession of the waters of a stream may be acquired by prescription, only when accompanied by claim of title, and by such possession and use as excludes! other claimants from the use and possession thereof.</p> <p>Same. — Plaintiff appropriated, diverted and used for the irrigation of their certain lands, two hundred and twenty inches of the waters of Stockton creek, and continuously used same from the date of appropriation, May 1, 1870, to the commencement of the action, July 25, 1893; defendant appropriated one hundred and fifty inches of water from said stream, May 1, 1880, and continuously used same for irrigating his lands up to the time of the commencement of the action, -but did not deprive the plaintiffs of the possession and use of the waters claimed by him. Eeld, that plaintiff" were not bound by limitation from asserting prior rights to the use of said stream against the defendant, and that the right of the latter is subordinate to those of the plaintiff.</p> <p>Pleading and Practice — Amendment to Cross-Complaint. — It is not necessary to deny affirmative allegations' in an amendment to a cross-complaint made by a defendant, when such allegations were contained, in substance, in the original cross-complaint of the defendant, and denied by the answer of plaintiff thereto.</p> <p>(Syllabus by the court.)</p>

Under section 3961 of the Revised Statutes of Idaho, the court was authorized to direct the sheriff, and no other officer, to summon the jurors, unless the sheriff was disqualified under sections 1886 and 1887, or incapacitated under section 2085 of the Revised Statutes of Idaho. It is only in the cases mentioned in those three sections that the coroner would be authorized by law to perform any of the duties of the sheriff.

<p>Grand Larceny — Insufficiency of Evidence — Flight of Defendant. — The flight of the defendant after he had been arrested and held to answer, is not conclusive evidence of his guilt, while flight is very strong evidence of his guilt, it is open to explanation.</p> <p>Possession of the Stolen Property. — The possession of stolen property unexplained is evidence of guilt. But where a reasonable explanation is given, and there is no conflict of evidence in regard thereto, and the witness is not impeached, the jury cannot arbitrarily ignore such evidence.</p> <p>Presumption of Innocence. — Before a legal conviction can be had, the state must have established the accused person’s guilt of the "crime charged by legal evidence, and beyond a reasonable doubt; until that is done, the presumption of innocence is an absolute shield to the defendant.</p> <p>(Syllabus by the court.)</p>

<p>APPEAL from District Court, Ada County.</p> <p>The legislature cannot commit to the board this power to increase (by way of allowance for delinquency or otherwise) the amount of the tax to be paid by the people. And under the California statute this power was delegated to a state board, and not to a board in each county. (San Francisco etc. B. B. Go. v. State Board, 60 Cal. 34; New York v. Davenport, 92 N. Y. 604.) Every political subdivision of a state when it demands taxes from the people must show due authority from the state to make the demand. (Cooley on Taxation, 678.) The statutes provide for the payment of the state proportion of the delinquent tax when the property is redeemed or is disposed of. (See Laws 1899, sec. 1554, p. 267.)</p> <p>The levy of a lump sum is valid. (See State v. Bailey, 56 Kan. 81, 42 Pac. 373; State v. Baker County, 24 Or. 141, 33 Pac. 530.) The duty of the commissioners is stated as follows: “To ascertain the rate of state taxes necessary to be levied in order to secure the amount apportioned to such county,” and to levy the same. Under this authority-it is their duty to so fix the rate as to produce the full amount due the state, and in doing this they should consider possible delinquencies and cancellations. (Edwards v. People, 88 Ill. 340; Union Trust Go. v. Weter, 96 Ill. 346; S. Q. etc. P. B. Go. v. Osceola Go., 52 Iowa, 26, 2 N. W. 593; G. etc. B. B. Go. v. Baldridge, 177 Ill. 229, 52 N. E. 263; Houghton v. Austin, 47 Cal. 646; San Francisco etc. By. Go. v. State Board, 60 Cal. 12 (34).) The computation of the amount of tax to be raised and the determination of the rate per cent may be placed in the hands of other than legislative officers. (25 Am. & Eng. Ency. of Law, 182.) Neither does this construction violate the constitutional provision as to uniformity. It is the duty of the state board to equalize the tax and provide for uniformity among the counties. • (State v. Board of Commissioners, 8 Wyo. 104, 55 Pac. 451; State v. Gounty of Multnomah, 13 Or. 287, 10 Pae. 635; Burroughs on Taxation, 194, 25 Am. & Eng. Ency. of Law, and cases there cited.)</p>

<p>Appeal — County Seat 'Removal. — An appeal will lie from an order made by the district court ordering an election to determine whether a county seat shall be removed.</p> <p>Undertaking on Appeal — Dismissal of Appeal. — An undertaking on appeal which is executed and filed prior to the service of notice of appeal is insufficient, does not perfect the appeal, and in such case the appeal will be dismissed on motion.</p> <p>(Syllabus by the court.)</p>

The constitution forbids the removal of a county seat except upon petition of a majority of the qualified electors of the county, and requires a two-thirds vote of the qualified electors to carry the election therefor. For such elections the qualifications of voters as to residence is extended to ninety days. (Const., art. 18, sec. 2.) The statute requires the petition for removal to be signed by legal voters, and the signers must be legal voters at general elections.

<p>Original proceeding for writ of mandate.</p>

The supreme court of California bolds that it, section 7459, supra, as section 772 of the California code includes willful or corrupt misconduct in office.

<p>This case is similar to Panting v. Isaman, ante, p. 279, and the syllabus therein states the points decided in this ease.</p>

Brief filed in Ponting v. Isaman applies to this case. This case, following the decision in case of Ponting v. Isaman, the brief filed in that case applied to this.

The testimony of the defense, which is uneontradieted, clearly shows that at the time the alleged offense was committed the defendant was afflicted with mania a potu, or delirium tremens— m fact, was insane. Mania a potu is a species of insanity. {State v. Hurley, Houst. Cr. Rep. (Del.) 28.) Delirium tremens is fixed, settled insanity. (1 Wharton’s Criminal Law, 48; Beasley v. State, 50 Ala. 149, 20 Am.

A party moving for nonsuit must state in his motion the precise grounds on -which he relies, and a motion not complying with this rule, but stated in general terms, should be denied.

<p>Order Striking Complaint Prom Piles — Effect of — Appeal —Pinal Judgment — District Court — Mandamus. — It is the duty of the district court in a case where the complaint is stricken from the files to order a formal judgment, and have the same entered, dismissing the action so that the plaintiff may avail himself of his constitutional right to appeal. Mandamus is the proper remedy to compel the entry of a final judgment in a case where the district court strikes plaintiff’s complaint from the files and refuses to order the entry of final judgment.</p> <p>(Syllabus by the court.)</p>

<p>APPEAL from District Court Nez Perces County.</p> <p>cite no authorities upon the question passed upon by the court.</p>

<p>APPEAL from District Court, Blaine County.</p> <p>cites no authorities on the points decided by the Court.</p>

The complaint haying charged negligence only in running, managing and operating locomotive, train and cars, the right of recovery must be limited to such negligence. Under such a complaint recovery cannot be had for a loss occurring by reason of failing to fence (and there is no evidence in this case of failure to fence) a railroad track under the statutory obligation created by section 2679 of the Bevised Statutes of Idaho. {Lainiger v. Kansas City etc. B. Co., 41 Mo.

<p>Water Eight — Injunction.-—An oral contract was made under which one party acquired a right of way and constructed an irrigating ditch over the lands of another under agreement that the latter should take fifty inches of water from said ditch annually for the irrigation of said lands; after sixteen years, the successor in interest of the former commenced an action to enjoin the successor in interest of the latter from taking said fifty inches of water, claiming that said oral contract was void because not in writing. Held, that injunction does not lie in favor of plaintiff.</p> <p>Community Property. — Eeal estate conveyed to the wife during coverture is presumed to be community property in the absence of a showing to the contrary.</p> <p>Husband and Wiee. — Eeal estate occupied as a residence by husband and wife cannot he alienated or encumbered by the sole act of the husband..</p> <p>Disclaimer. — In an action against husband and wife relating to a water right appurtenant to real estate occupied by them as a residence the husband filed a disclaimer. Held, that such disclaimer does not affect the community rights of the defendants in or to the subject matter of the action, and that the wife may defend such action.</p> <p>(Syllabus by the court.)</p>

Franklin could not by sale or mortgage pass any other or greater title in the unshorn wool or sheep that he himself had; even though the buyer or mortgagee acted in the utmost good faith in the transaction. (Saltus v. Everet, 20 Wend. 267, 32 Am. Dec. 541, and note; Bussell v. Favier, 18 La. 585, 36 Am.

The contract which is sought to be specifically executed ought not only to be proved, but the terms of it should be so precise as that neither party could reasonably misunderstand them. If the contract be vague or uncertain, or the evidence to establish it be insufficient, a court of equity will not exercise its extraordinary jurisdiction to enforce it, but will leave the party to his legal remedy.

Without the averment of the facts constituting the mistake or “misapprehension,” the general expression “by mistake” will not bring the ease within the equitable jurisdiction. (2 Estee’s Pleadings, 4th ed., see. 2748 and citations; 14 Ency. of PI. & Pr. 41, 43, 44 citations.) Where a mistake is set up, the pleading should allege the circumstances which gave rise to and occasioned such mistake and show who brought it about.

<p>APPEAL from District Court, Bingham County.</p> <p>Where there is no consideration for a guaranty, the guaranty is absolutely void. (Briggs v. Latham, 36 Kan. 205, 13 Pac. 129.) Where one agrees to forbear from something that he could not legally do, the agreement is without consideration. (Clark on Contracts, 175.) The undertaking sued on provides among other things, that all proceedings to enforce the payment of the note and mortgage shall be stayed until after the trial of said cause or the dismissal thereof, and then not until after judgment in that action can plaintiff proceed upon either the note or mortgage of the undertaking, and even then he cannot proceed upon both, but use his option. This undertaking is a contract of suretyship or guaranty. (Canadian Bank of Commerce v. Coumbe, 47 Mich. 358, 11 N. W. 196; 24 Am. & Eng. Ency. of Law, 716; Brandt on Suretyship and Guaranty, 2.) Sureties are regarded as favorites of the law, and their contracts must be strictly construed; and nothing can be construed into their contracts by intendment or by implication. (Brandt on Suretyship and Guaranty, 107-109; Clark on Contracts, 595; Miller v. Stewart, 9 Wheat. 681.) Upon both law and principle nothing can be clearer than that a surety can stand strictly upon the very terms of his contract* and that any variation therefrom without his consent, whether' for his benefit or not, absolutely releases him from all obligations upon the contract. (United States v. Boyd, 15 Pet. 187; Daggett v. Humphreys, 31 Plow. 66; Smith v. United States, 2 Wall. 319; McMicken v. Webb, 6 How. 393; Scott v. Scruggs, 60 Fed. 735; Nichols v. Palmer, 48 Wis. 110, 4 N. W. 137; Sanders v. Bagwell, 33 S. C. 338, 10 S. E. 946; Couglvran v. Bigelow, 9 Utah, 360, 34 Pac. 51, and cases cited; 34 Am. & Eng. Ency. of Law, 719; Bay v. Brenner, 13 Kan. 88; Hubbard v. Ogden, 33 Kan. 358; Calvo v. Davis, 73 N. Y. 311, 39 Am. Eep. .130.)</p> <p>That plaintiff did believe he had the right so to foreclose appears from the whole record. That the mortgagors conceded such procedure legal is clearly shown by the fact that they never questioned his right to' foreclose on the ground. That such is the common method of foreclosure cannot be disputed. That the validity of such procedure has not been attacked in the lower courts is not to be denied, and that the supreme court has repeatedly recognized it is clear. (Advance Thresher Go. v. Whiteside, 3 Idaho, 64, 36 Pac. 660; Blumauer-Frank Drug Go. v. Branstetter, 4 Idaho, 557, 43 Pac. 575; O’Neill v. Whitcomb, 3 Idaho, 634, 33 Pac. 1133.) Appellants were not entitled to a nonsuit, and the ruling was correct. Suffice it here to say that appellants waived their motion by proceeding with the trial. (Chamberlain v. Woodin, 3 Idaho, 643, 33 Pac. 177.) In the construction of a written contract, if there is any room for doubt as to its true meaning, the facts and circumstances out of which such contract arose should be considered, and the contract construed in the light of such circumstances. (Burke Land and Livestock Go. v. Wells, Fargo & Go., ante, p. 43, 60 Pac. 87.)</p>

Appellant insists that under section 3, article 8 of the constitution of Idaho, a municipal corporation, in creating a bonded indebtedness must, before or at the time of creating such indebtedness, make provision for the collection of an annual tax sufficient in amount to pay the principal of said indebtedness within twenty years from the time of contracting the same; and that said tax must be levied annually, beginning with the first tax levy made after said indebtedness is…

<p>APPEAL from District Court, Blaine County.</p> <p>cites no authorities upon the point decided.</p> <p>This is an attempt on the part of appellants to obtain real property upon an alleged oral agreement. The ditch and right of way in controversy is real property. Beal property cannot be conveyed otherwise than by operation of law or a conveyance or other instrument in writing, subscribed by the party creating, granting, assigning, surrendering or declaring the same, or by his lawful agent thereto authorized by writing. (Idaho Rev. Stats., sec. 6007; McGinness v. Stanfield, 6 Idaho, 372, 55 Pac. 1020.) Where the evidence and circumstances surrounding a ease tend to prove the existence of a given fact or state of facts, and have been passed upon by a jury in a civil suit, their findings, unless set aside by the trial judge or appellate court, are conclusive upon the supreme court, and it is wholly immaterial whether that court thinks such findings are in accordance with the weight of evidence or not. {Illinois Gent. By. Go. v. Haslcins, 115 111. 300, 2 N. E. 654; McCarty v. Boise City Canal Co., 2 Idaho, 245, 10 Pac. 623; Childs v. Lauterman, 30 Cal. 553.) Where there is a conflict of evidence in a ease, and the jury give credit to the witnesses on one side rather than to those on the other, their verdict upon the issue is conclusive. {Nichols, Shepard & Co. v. Shafer, 63 Mich. 599, 30 N. W. 383; O'Connor v. Langdon, 3 Idaho, 61, 26 Pac. 659; McCarty v. Boise City, 2 Idaho, 245, 10 Pac. 623; Chamberlain v. Woodin, 2 Idaho, 642, 23 Pac. 177.)</p>

<p>Grand Larceny — Insufficient Evidence. — Evidence in this case considered, and found insufficient to warrant conviction.</p> <p>New Trial — Impeaching Verdict. — A motion for a new trial, based upon affidavits of individual jurors impeaching the verdict of a jury of which said affiants were members, cannot be sustained.</p> <p>(Syllabus by the court.)</p>

None of the land in question had passed to patent, or even to final proof, and the court properly instructed the jury that such land is not “private property.” (Shiver v. United States, 159 U. S. 491, 16 Sup. Ct.

<p>APPEAL from District Court, Fremont County.</p> <p>A county in tbis state is treated as a municipal corporation, and it is a well-known rule that a municipal corporation is subject to the same disabilities as ordinary corporations, in the absence of special statutory regulations. The supreme court of Idaho has passed upon the question of the power of corporations in Salmon River M. & S. Go. v. Dunn, 2 Idaho, 26, 3 Pac. 911, and squarely decided that a corporation organized to mine and smelt ores cannot purchase a chose in action. The court therein says: “In every contract there must be mutuality and therefore parties capable of contracting.”' .The principle of the case cited as applied to the case at bar would settle the question involved and render further discussion unnecessary. What greater right has Fremont county, a corporation, to take by execution and delivery a note such as Is involved herein, than had the plaintiff in the case cited to purchase or take the chose in action therein mentioned ? (Currier v. Railroad Go., 11 Ohio St. 28; Commonwealth v. Erie etc. Go., 2? Pa. St. 339, 6? Am. Dec. 471, and note; St. Louis v. Weber, 44 Mo. 544, 100 Am. Dee. 324; Wheeler v. Board, 39 N. J. L. 291; Fire Go. v. Commonwealth, 75 Pa. St. 291;. Darst v. Gale, 83 Ill. 136.) Counties being mere artificial persons, their powers are to be exercised through the agencies provided by law, such as the county commissioners. (Montgomery Go. v. Barber, 46 Ala. 237; House v. Los Angeles Go., 104 Cal. 73, 37 Pac. 796; Frandzen v. San Diego Go., 101 Cal. 317, 35 Pae. 897; People v. Pueblo, 2 Colo. 360; Pacific Bridge Go. v. Clackamas Go., 45 Fed. 217; 0. S. M. Go. v. Filbert Go., 73 Fed. 324; Murphey v. Napa Go., 20 Cal. 497; Keller v. Hyde, 20 Cal. 594; Lebcher v. Guster Go., 9 Mont. 315, 23 Pac. 713; Oommiercial State Bank v. Antelope Go., 48 Neb. 496, 67 N. W. 465; Lancaster Go. v. Fulton, 128 Pa. St. 48, 18 Atl. 384; Alleghany Go. v. Parrish, 93 Va. 615, 25 S. E. 882.) A board of county commissioners is confined in making contracts to the power expressly granted to it by the statute, and to the implied powers incidental and necessary to the execution of such expressed powers and the performance of the duties enjoined upon it. (7 Am. & Eng. Ency. of Law, 2d ed., 989; Smith v. Los Angeles Go., 99 Cal. 628, 34 Pac. 439; Hyde v. Kenosha Go.,' 43 Wis. 129.)</p> <p>To appellant’s plea of ultra vires respondent answers: 1. That under our law the action of the board in question was not ultra vires; 2. If such action were ultra vires, such defense could not be pleaded by these appellants, who themselves were competent; 3. If such action were ultra vires, under the facts and circumstances as shown by the record, the appellants would be estopped from pleading such defense. Contract not ultra vires. (Town v. Mappin, 14 Ill. 93, 56 Am. Dee. 501; Ag■new v. Brawl, 20 Am. & Eng. Corp. Cas. 134; Collins v. Welch, 58 Iowa, 72, 12 N. W. 121, 43 Am. Rep. Ill; Flail v. Baker, 74 Wis. 118, 42 N. W. 104, 27 Am. & Eng. Corp. Cas. 208; Qaldwell v. Wright, 25 Ill. App. 74; Shanklin v. Commonwealth, 25 Ohio St. 583, 16 Ohio St. 353, 369, 522; Scollay v. Butte County, 67 Cal. 249, 7 Pac. 661; Buffalo v. Bettinger, .76 N. Y. 393; Marshall Go. v. Hanna, 57 Iowa, 372, 10 N. W. 745.) Ultra vires is no defense to competent party. (Parsons on Contracts, 369-371; National Bank v, Whitney, 103 U. Í3. 99, 26 L. ed. 443; Bear River etc. Orchard Co. v. Hanley, 15 Utah, 506, 50 Pac. 613; Whitney Arms Co. v. Barlow, 63 N. Y. 62, 20 Am. Rep. 504.) Defendants are estopped from pleading ultra vires. (Clark on Corporations, 179-187; 2 Beach on Corporations, see. 424.)</p>

<p>Assessment of Mines. — Mines and mineral lands, the title to which is in tie private owner or claimant, and not in the United States government, are, under the revenue laws -of Idaho, subject to assessment for taxation.</p> <p>Revenue Statutes are to be Libebaiay Construed. — Revenue statutes are to be liberally construed under section 4, of the Revised Statutes of Idaho, so as to effect the object of such statutes and promote justice, while exceptions contained in such statutes are to be strictly construed.</p> <p>Statutory Construction — Taxation.—A construction of a statute to raise revenue which extends the terms of a proviso therein contained making exceptions, so as to exclude from taxation a large proportion of property in the state, and which is owned and held by private persons for their individual benefit, the title thereto not being in the United States government, tends to defeat the object of such statute (raising revenue), and does not promote justice, and, therefore, violates the provisions of section 4 of the Revised Statutes, which provides that “statutes must be liberally construed, with a view to effect their objects and to promote justice.”</p> <p>Same — Judicial Construction. — It is the policy of the revenue laws of Idaho to tax all private property the title to which is not in the United States government, and this policy should not be abridged by judicial construction.</p> <p>Exemptions From Taxation. — Courts should not, by technical or strained construction, extend the exemptions of property from taxation.</p> <p>Same. — To exempt certain private property from taxation under a statute making all private property taxable, the exemption must be in terms so specific and certain as to admit of no doubt.</p> <p>(Syllabus by the court.)</p>

The power of judges and courts over receivers and receiver-ships is statutory,and without such power conferred by statute the court or judge cannot act. (Idaho Rev. Stats., secs. 4329-4334; Sweeney v. MaheWj 6 Idaho> 455, 56 Pac. 85.) Does section 4333 of the Revised Statutes confer the power upon the judge or the court for the sale of property in the hands of a receiver?

<p>Appeal Prom Jüstége Court — Undertaking on Appeal. — On appeal from a justice court to the district court, respondent excepted to the sufficiency of the sureties; within five days thereafter, appellant filed a new undertaking on appeal, in lieu of-the original, executed by a surety company, but did not give the-respondent notice of the filing of said new undertaking, and failed to file with said new undertaking documentary evidence showing that the surety company had complied with the provisions of the act of February 23, 1899, authorizing such surety companies to execute such undertakings. Held, that such appeal to-the district court was ineffectual, and was properly dismissed by the district court on motion.</p> <p>Exceptions fob Insufficiency — Bond of Surety Company — Notice. — When an undertaking on appeal from a justice’s judgment to the district court is excepted to on the ground of insufficiency, the appellant may, in lieu of justification of sureties, file the undertaking of a surety company, but such undertaking must he accompanied with documentary evidence showing, prima facie, that such surety company has qualified to do business in Idaho, by complying with the requirements of the act of February 23, 1899, and that the execution of such undertaking has been authorized by the surety company, executed by agents or officers authorized to execute it and notice of filing such undertaking and evidence given to the respondent.</p> <p>(Syllabus by the court.)</p>

<p>Writ op Review — Hearing by Court. — Where the writ of review is asked upon the ground that the judge of the district court, had exceeded his jurisdiction in hearing and determining the-cause at chambers and the return to the writ, which return contains a copy of the court record, shows that the cause was heard, and determined by the court at a regular term thereof, the writ, will be discharged.</p> <p>(Syllabus by the court.)</p>

The court below having no jurisdiction of the case, and the appeal being upon questions of law alone, and the district court having annulled and set aside the judgment of the court below, had no power or jurisdiction to retain the case for further hearing, but should have dismissed the same and denied further proceedings in the premises.

Our statute provides, section 2497 of the Revised Statutes, that the rents and profits of the separate property of the husband or wife is community property; unless, by the instrument by which any such property is acquired by the wife, it is provided that the rents and profits thereof he applied to her sole and separate use; in which case the management and disposal of such rents and profits belong to the wife, and they are not liable for the debts of the husband.

At and long after the time of plaintiff’s purchase from Smith, the state of the law governing this right is shown by many eases in several of the western states. In Nevada, Water Go. v. Powell, 34 Cal. 109, 91 Am. Dec. 685, the court says that the first appropriator is entitled to use and enjoy the water to the full extent of his original appropriation. This has been followed in Lot) dell v. Simpson, 2 Nev. 274; Ophir Silver Min. Co. v. Carpenter, 4 Nev. 543, 97 Am.

<p>APPEAL from District Court, Bannock County.</p> <p>We contend that in the light of both principle and the overwhelming weight of authority, the record shows, no negligence on the part of the defendant. That, therefore, the verdict of the jury is not supported by the evidence. (Robinson v. 0. 8. L. By. Go., 7 Utah, 493, 27 Pac. 689; George v. Los Angeles By. Go., 126 Cal. 357, 77 Am. St. Eep. 184, 58 Pac. 819; A. T. & 8. F. Go. v. Potter, 60 Kan. 808, 72 Am. Eep. 385, 58 Pae. 471 -¡Omaha v. Bowman, 52 Neb. 293, 66 Am. St. Eep. 506, 72 N. W. 316, 40 L. E. A. 531; Bitz v. Wheeling, 45 W. Ya. 262, 31 S. E. 993, 43 L. K. A. 148; Dobbins v. Missouri etc. B. B. Go., 91 Tex. 60, 66 Am. St. Eep. 856, 41 S. W. 62, 38 L. E. A. 573.) Cooper v. Overton, 102 Tenn. 211, 73 Am. St. Eep. 864, 52 S. IV. 183, 45 L. E. A. 591, involves the drowning of a child ten years old, and is a very exhaustive review of the authorities. (Holt v. Spolcwne B. B. Go., 3 Idaho, 703, 35 Pac. 39, 4 Idaho, 443, 40 Pae. 56; Overholt v. Vietlvs, 93 Mo. 422, 3 Am. St. Eep. 557, 6 S. W. 74; Hargreaves v. Deacon, 25 Mich. 1; Bicharás v. Connell, 45 Neb. 467, 63 N. W. 915; Gillespie v. McGowan, 100 Pa. St. 144, 45 Am. Eep. 365.)</p> <p>As the evidence shows persons passing over the bridge could not be regarded as trespassers, certainly children playing there from day to day, to the knowledge of the defendant, could not be regarded as such trespassers as would prevent a recovery. (Price v. Atchinson Water Go., 58 Kan. 551, 50 Pae. 450, 62 Am. St. Eep. 625; Union Pacific By. Go. v. McDonald, 152 IT. S. 262, 14 Sup. Ct. Eep. 619; Kinchlow v. Midland Elevator Go., 57 Kan. 374, 46 Pae. 703; Bennett v. Bailroad Go., 102 IT, S, 577; Holt v. Spoka/ne etc. By. Go., 3 Idaho, 703, 35 Pae. '39; Consolidated City etc. P. By. Go. v. Carlson, 48 Pae. 635; Branson v. Lobrot, 81 Ky. 638, 50 Am. Eep. 193; Pekin v. McMahon, 154 Ill. 141, 45 Am. St. Eep. 114, 39 N. E. 484; Birge v. Gardner, 19 Conn. 507, 50 Am. Dec. 261; Earl v. Cronck, 131 N. Y. 613, 30 N. E. 864, affirming S. C., 61 Hun, 624, 16 N. Y. Supp. 770; Mackey v. Vicksburg, 64 Miss. 777, 2 South. 178; Hydraulic Works Go. v. Orr, 83 Pa. St. 332; Keefe v. Bailroad Go., 21 Minn. 207, 18 Am. Eep. 393; Spokane etc. By. Go. v. Holt, 4 Idaho, 443, 40 Pae. 56; Sioux Gity B. B. Go. v. Stout, 17 Wall. 657; Brinkley Mfg. Go. v. Cooper, 60 Ark. 545, 46 Am. St. Eep. 316, 31 S. W. 154.) The rule k that the defendant is required to allege contributory negligence on the part of the plaintiff, and prove it by a preponderance of the evidence and the burden was mot upon the plaintiff to disprove such contributory negligence. No such plea was interposed in this case. (Harrington v. Eureka Hill Min. Go., 17 Utah, 300, 53 Pac. 737; Hough v. Railway Go., 100 U. S. 313; Railroad Go. v. Horst, 93 U. S. 391; Shearman and Red-field on Negligence, sec. 109; Beach on Contributory Negligence, sec. 436, and the many eases cited.)</p>

<p>Genuineness of Signature — Evidence—-Comparison of Hand-wket-ing. — In this state, in an action involving the genuineness of a signature, only such papers as are admitted in evidence in the case for other purposes, and such as are admitted to be genuine, should, except in very exceptional eases, be admitted for the purpose of comparison. Where, as in the case at bar, the verdict is against the evidence, there being no substantial conflict in the evidence, the judgment based upon such verdict will be íeversed upon appeal.</p> <p>(Syllabus by the court.)</p>

<p>APPEAL from District Court, Ada County.</p> <p>The contention that the title of the funding act of February 7, 1899, is insufficient to support the provisions of section 3604 of the Kevised Statutes! of Idaho, authorizing the construction of bridges and other public improvements, and providing for the original issue of bonds in payment therefor, upon the theory that the issue of such bonds for the construction or repair of roads or bridges, or for -any original purpose provided for in said section, is not embraced within the scope of the act in question, is not well founded. (Sabin v. Curtis, 3 Idaho, 662, 32 Pac. 1130; Wright v. Kelly, 4 Idaho, 624, 43 Pac. 565; State v. Doherty, 3 Idaho, 384, 29 Pac. 855; 23 Am. & Eng. Eney. of Law, 234, 238; Johnson v. Harrison, 47 Minn. 578, 28 Am. St. Pep. 382, 50 N. W. 923; People v. Wands, 23 Mich. 384; Weyand v. Stover, 35 Kan. 545, 11 Pac. 355; Parkinson v. State, 14 Md. 184, 74 Am. Dec. 522; People v. Lawrence, 36 Barb. 177; Ewing v. Bernette, 11 Pet. 499; United States v. Lacker, 134 U. S. 624, 10 Sup. Ct. Kep. 625; State v. Payne, 22 Or. 335, 29 Pac. 789; Randolph v. Payne, 44 Cal. 366.)</p> <p>We insist that the title of the re-enacted statute is not sufficiently broad to support the provisions of section 3604, which in no way relate either to the funding or refunding of county indebtedness. While the language of the title of the amendatory act is plain, and not susceptible of misconstruction when considered in connection with the constitutional requirement, we are not wanting in authority directly bearing upon the subject. (Palmer v. Zumhrota Bank 72 Minn. 266, 75 N. W. 381; Orowther v. Insurance Co., 85 Fed. 41; Fidelity etc. Co. v. Shenandoah Valley R. R. Co., 86 Ya. 1, 19 Am. St. Kep. 858, 9 S. E. 759; Cannon v. Mathes, 8 Heisk. 521; Ryan v. Louisville etc. Terminal Co., 102 Tenn. I'll, 50 S. W. 744, 45 L. R. A. 309; McEldowney v. Wyatt, 44 W. Va..711, 30 S. E. 239, 45 L. R. A. 615; Dolese v. Pierce, 16 N. E. 218; Lockport v. Gaylord. 01 Ill. 379; People v. Institution, 71 Ill. 339; People v. Mellen, 33 Ill. 181; Welch v. Post. 99 Ill. 471; Railway Go. v. Lake View, 105 I1L 183.) The trial court was clearly correct in its conclusion that there were no competitive bids under the authority of Erile v. Leary, 114 Cal. 338, 46 Pac. 1; Worthington v. City of Boston, 41 Fed. 33; Brady v. Mayor of N. 7., 30 N. Y. 513; Kneeland v. Furlong, 30 Wis. 438; Fones Bros. v. Erb, 54 Ark. 645, 17 S. W. 7, 13 L. B. A. 355.</p>

Where the evidence can support only one verdict the court will direct it. (Coffin v. Hutchinson, 22 Or. 554, 30 Pac. 434.) It is proper for tbe court to direct a verdict in all cases where there is no disputed question of fact to be submitted to the jury. (Gwinn v. Gwinn, 5 Idaho, 371, 48 Pac. 303; Arimjo v. New Mexico T. Co., 3 N. Mex. 244, 5 Pae. 709.) Where there is no conflict in the evidence the court may properly direct a verdict.

<p>Nonsuit — Consent of Mortgagee to Saxe of Mortgaged Chattexs by Mortgagor — Titxe of Purchaser. — A mortgagee who consents to a sale being made of the mortgaged chattels by the mortgagor waives the lien of the mortgage as to such portions of the mortgaged property as the mortgagor may sell under such consent, and the purchaser takes title free of the mortgage lien.</p> <p>Same — Evidence.—Motion for nonsuit is properly denied where the evidence shows that the plaintiff, a purchaser of the mortgaged chattels, bought the property in controversy from the mortgagor with the consent of the mortgagee.</p> <p>Verdict — Continuing Transaction. — Several mortgages were given by B. & L. to E. S. B. Co. on different bands of sheep; the mortgagee consented in writing that the mortgagors sell the mortgaged property in lots to pay the mortgage debts. The mortgagors did, at various and sundry times, sell portions of the mortgaged chattels and accounted to the mortgagee for the proceeds of such sales; later, another mortgage was given on the remnant left out of the said bands of sheep, to the original mortgagee, by the mortgagors, to secure the balance diie on the original mortgage debts, with a small advance; later, the mortgagors sold a portion of the sheep to plaintiff, and after that the mortgagee caused the sheriff to seize the sheep sold to plaintiff under the last mortgage; plaintiff sued to recover possession or' the sheep so seized by the sheriff. On the trial letters were admitted in evidence over the objections of the defendants, in which the mortgagee advised and urged the mortgagors to sell all their sheep to meet their obligations. No showing was made that the mortgagee countermanded or recalled its consent to the two sales of said sheep by the mortgagors, and the evidence all tended to show, as did defendants’ answer, that the various mortgages and transactions thereunder were treated by the parties as a continuing transaction. A letter from the mortgagee to the mortgagors was also introduced in evidence tending to show a willingness to sales by the mortgagors. Held, that all of the letters were properly admitted in evidence, and that the evidence supported the verdict.</p> <p>Instructions to Jury. — Erroneous instructions that are favorable, not prejudicial, to the appellant, will not authorize a reversal, or the granting of a new trial. A party who requests an instruction, which the court gives, hut which conflicts with an instruction already given hy the court, will not be heard on appeal to complain that the two instructions are inconsistent.</p> <p>Motion foe New Trial — Cumulative Evidence. — A motion for a new ' trial, upon the ground of newly discovered evidence, is properly denied where such evidence is cumulative and could, with proper • diligence, have been produced at the trial.</p> <p>Jury — Challenges.—A new trial should not be granted upon the ground that an incompetent juror was drawn upon the panel, where the record shows that the complaining party accepted the trial jury without exhausting his peremptory challenges.</p> <p>(Syllabus by the court.)</p>

Because there is no sufficient allegation that it was the intent of the parties to pay and receive usurious interest. (See New England etc. Go. v. Sanford,. 16 Neb. 689, 21 N. W. 394; Anglo-American Land etc. Go. v.. Brohman, 33 Neb. 409, 50 N. W. 271; Bose v. Munford, 36-Neb. 148, 54 N. W. 129.) The law will not create a promise or make a contract in favor of a violator thereof. (See Bishop-on Contracts, sec. 216, p. 80; Nester v. Continental Brewing-Go., 161 Pa.

<p>APPEAL from District Court, Ada County.</p> <p>Section 4838 of the Revised Statutes of Idaho, among other things, provides that "the appeal is taken by filing a notice of appeal with the justice or judge and serving a copy on the adverse party.” The Encyclopedia of Pleading and Practice, which is recognized by both bench and bar as a standard work, states the rule as follows: "Where statutes require the notice of appeal to be filed, it is generally held that it must be filed before or contemporaneously with the service of the notice. Otherwise, the service of the copy of the notice of appeal is not founded upon the filed original and is consequently void.” (2 Ency. of PI. & Pr. 229; Slocum v. Slocum, 1 Idaho, 589; Graves v. Tail-mom, 8 Nev. 178; Lyon Go. v. Washoe Go., 8 Nev. 177; Johnson v. Badger Mill Go., 12 Nev. 261; Courtright v. Berkins, 2 Mont. 405; Daniels v. Daniels, 9 Colo. 133, 10 Pac. 657; Buffendeau v. Edwinson, 24 Cal. 94; Hastings v. Halleck, 10 Cal. 31; Moulton v. Ellmaker, 30 Cal. 527; People v. Ahyute, 56 Cal. 120; Erickson v. Erickson. 11 Wash. 76, 39 Pae. 241.) The phraseology of the statute admits of but one interpretation, and that is that the filing must precede the service. (Daniels v. Daniels, 9 Colo. 133, 10 Pac. 657.)</p> <p>The ease of Slocum v. Slocum, 1 Idaho, 589, is not applicable, as that decision was made npon a statute which provides for appeals from the district to the supreme court. (2d Ter. Sess. Laws, p. 134, sec. 285.) It is the settled law of this state that, to effect an appeal from a probate or justice’s court to the district court, as provided by section 4838, Revised Statutes of Idaho, three things only are requisite, to wit: The filing of a notice of appeal with the magistrate, service of a copy of the notice upon the adverse party, and filing of an undertaking within thirty days after the rendition of the judgment, and if these things are done, the appellate court has jurisdiction of the ease; and the mere order in which those things were done is immaterial. (ySalt Lake Breiving Co. v. Oilman, 2 Idaho, 195, 10 Pae. 32; Coker v. Superior Court, 58 Cal. 178; Hall v. Superior Court, 68 Cal. 25, 8 Pac. 509; Hall v. Superior Court, 71 Cal. 550, 12 Pac. 672; McCracken v. Superior Court, 86 Cal. 75, 24 Pac. 845; Moffat v. Greenwalt, 90 Cal. 371, 27 Pac. 296; Sadler v. Niesz, 5 Wash. 182, 31 Pae. 631, 1030; Knight v. Martin, 128 Cal. 245, 60 Pac. 849.) A party is not entitled to a continuance unless he shows that he used reasonable diligence to procure the testimony, and also that he used the necessary means therefor. (Tompkins v. Montgomery, 123 Cal. 222, 55 Pac. 997.) In the case at bar there was no subpoena and no commission asked for or issued. (Alvord v. United States, 1 Idaho, 587.) A mistaken advice of counsel to his client, not to prepare for trial is no ground for a continuance. (Musgrove v Perkins, 9 Cal. 212; Long v. Huggins, 72 Ga. 777.) The purely voluntary absence of a party will not justify a continuance on his behalf. (4 Eney. of PI. & Pr., pp. 542, 842; note 2; Wilkinson v. Parot, 32 Cal. 103; Gulley v. Wallceen, 80 Mich. 443, 35 N. W. 368.) Courts of review have uniformly refused to disturb a ruling on a motion for continuance, unless it is shown that the discretion of the court was abused and the ruling arbitrary. (Herron v. Jury, 1 Idaho, 165; Cox v. N. W. S. Co., 1 Idaho, 381; People v. Walter-, 1 Idaho, 388; Musgrove v. Perkins, 9 Cal. 212.)</p>

The order refusing to settle the statement was made after final judgment, and is therefore.appealable. .(Galderwood v. Peyser, 42 Cal.

<p>APPEAL from District Court, Cassia County,</p> <p>cite no authorities on the points decided by the court.</p>

<p>An original proceeding for writ of error.</p>

It is an elementary principal of law tbat want of, or failure of, consideration may be shown. (Norton on Bills and Notes, 261, 262; Howard v. Stratton, 64 Cal. 487, 2 Pac. 263; Tread-well v. Himmelmatm, 50 Cal. 9; Hale v. Aldaffer, 5 Kan. App'. 40, 47 Pac. 320, 52 Pac. 194; Russ Lumber etc. Go. v. Mus-cupidbe Land etc. Co., 120 Cal. 521, 65 Am.

The maker upon the face of a promissory note, with whatever motive or purpose he may have signed it, is bound by the contract which he signed, according to the legal effect and meaning of the words. He cannot vary that meaning by parol. (Aud v. Magruder, 10 Cal. 282.) Such maker is a principal.

<p>APPEAL from District Court, Nez Perces County.</p> <p>The law of self-defense on one’s own premises as declared by the courts of California in its leading eases. (People v. 'Williams, 36 Cal. 286; People v. Tanicin, 62 Cal. 468; 4 Deering’s Code, see. 692, note; People v. TJrias, 8 Cal. 341.) The law in reference to one’s right to the possession of property and his right to use so much force as is necessary to prevent a forcible trespass. (People v. Payne, 8 Cal. 342; People v. Flanagan, 60 Cal. 2, 44 Am. Eep. 52; People v. Scoggm, 37 Cal. 683.) The appellant, Levi Dixon, was upon his homestead, in the possession whereof he had been placed by the court, and was simply using force sufficient to maintain his possession. What he did is supported by authority of decisions in other states. (People v. Lewis, 36 Cal. 531; People v. Martin, 2 Cal. 484; People v. Ah Foy, 10 Cal. 301; People v. Ashburn, 47 Cal. ‘98.) Where the trespasser goes with the intent and with the means to commit a felony, if necessary to accomplish the end intended, the owner of the property may repel force by force. {People v. Payne, 8 Cal. 343; Whipley v. Mills, 9 Cal. 641; Hastings v. Halleck, 10 Cal. 31; Randall v. Buffington, 10 Cal. 491; Connor v. Jones, 28 Cal. 59; People v. Alameda Turnpike Go., 30 Cal. 184; People v. Honshell, 10 Cal. 187; People v. Acosta, 10 Cal. 196; Filkins v. People, 69 N. Y. 101, 25 Am. Eep. 143; Southers v. State, 18 Tex. 352; Barnes v. Martin, 15 Wis. 240, 82 Am. Dec. 670.)</p> <p>The information in this case meets all the requirements of our statutes, and under the rule as above stated is sufficient. It sufficiently informed the defendant of the charge, and enabled him to prepare for his defense, and it does not appear that any right of the defendant, substantial or otherwise, has been injured. (Eev. Stats., secs 7685, 7686, 7687, 8236; State v. Ellington, 4 Idaho, 529, 43 Pac. 60.) One is not justified in taking life to repel a mere trespass on his lands; but this instruction was more favorable to defendant than established rules of law, as it required the jury also to find that the Linkes believed that they had a legal right to go on the land, etc., before they eonld find the defendant not justified in the shooting. (Carroll v. State, 23 Ala. 28, 58 Am. Dec. 282, note 288;. Wallace v. United States, 162 TJ. S. 473, 16 Sup. Ct. Eep. 859;. Wharton’s Criminal Law, 9th ed., secs. 500, 506; People v. Flanagan, 60 Cal. 2, 44 Am. Eep. 52; People v. Dunne, 80 Cal. 34, 21 Pac. 1130; State v. Twrier, 23 Or. 38, 37 Pac. 53-55;. People v. Teixeira, 123 Cal. 297, 55 Pao. 988; People v. Hecker> 109 Cal. 451, 42 Pac. 311; Am. & Eng. Ency. of Law, 1st ed.,. p. 572.),</p>

<p>APPEAL from District Court, Cassia County.</p> <p>cites no authorities upon the matters decided by the court.</p> <p>Our first ground for dismissal is that neither the transcript nor the notice of appeal herein is signed by an attorney of this court. We urge that no person, even though he be an attorney in practice in another state, can appear as an attorney in this court without first being admitted to practice herein. (Idaho Bev. Stats., sec. 3990 et seq.; Weeks on Attorneys at Law, sec. 43, note 3; Thorn v. Lawson, 6 Tex. 240; Cobb v. Judge, 43 Mich. 289; Robb v. Smith, 4 Ill. 46.) Every court of record has the inherent power, irrespective of statute, to make rules for the transaction and regulation of its business. (8 Am. & Eng. Ency. of Law, p. 29, note 5.) In this state 'the right of courts of record to make rules is distinctly recognized by statute. (Bev. Stats., sees. 3863, 3864.) The court, equally with suitors, is bound by its rules, and they must be construed as statutes are construed. (Hanson v. McCue, 43 Cal. 178; 3 Am. & Eng. Ency. of Law, p. 31, note 3; Thompson v. Hatch, 3 Pick. 512; Treishel v. McGill, 28 Ill. App. 28.) Where the transcript fails to show a compliance with the statutes of rules of this court in the matter of appeals, the appeal will be dismissed. (Pence v. Lemp,, 4 Idaho,. 526, 43 Pac. 75; Hattabaugh v. Vollmer, 5 Idaho, 23, 46 Pae. 831; Penny v. Nez Perees Go., 4 Idaho, 642, 43 Pae* 570.) The next complaint we make in regard to the transcript is failure to comply with paragraph 5 of said rule 27, by the insertion in the transcript of the summons, affidavit of service of summons, original answer and cross-complaint, and dismissal of action and bill of exceptions in a former appeal herein, together with the remittitur of this court and what is-called a “Decree of Dismissal.-” These several documents, we-urge, are not properly a part of the transcript, and not part of the judgment-roll under section 4456 of the Revised Statutes. The notice of appeal is deficient also in not being directed to-the adverse parties, so far as the other defendants are concerned as defendants in the action. (Neppach v. Jordan, 13 Or. 246, 10 Pae. 341.)</p>

<p>APPEAL from District Court, Canyon County.</p> <p>Evidence of the flight of an accused peison is admissible only for the purpose of showing who did the killing, and not for the purpose of proving guilt. In this ease the accused admitted he did the killing, but 'claimed he did it in self-defense. Therefore, this proof was inadmissible for any purpose and instruction 41 should not have been given. (People v. Ah. Ghoy, 1 Idaho, 817.) A party may contradict his own witness. (Idaho Rev. Stats., see. 6080; 1 Green on Evidence, sec. 444; Norwood v. Eenfield, 30 Cal. 399; People v. Brilliant, 58 Cal. 217.) The rule is a party may show that his own Avitness has made statements contrary to those testified to on the stand, when the testimony given has been against the party calling the witness. (Conway v. State, 118 Ind. 482, 21 N. E. 285; Rhodes v State, 128 Ind, 189, 25 Am. St. Rep. 429, 27 N. E. 867; Schnuer v. State, 18 Ind. App. 226, 47 N. E. 843; Bravo v. Fob el, 25 Fed. 116; United States v. Ball, 44 Fed, 864.) Rule stated in State v. Brown, 54 Kan. 71, 37 Pac. 996; Torris v. People, 19 Colo. 438, 36 Pac. 153; People v. Mitchell, 94 Cal. 550, 29 Pac. 1108; State v. Steeves, 29 Or. 85, 43 Pac. 947, It is error for the court, over the objection of appellant, to allow the prosecution to put a leading question to the witness, Walter Martin, for the purpose of impeaching the appellant, and afterward to refuse to permit appellant's counsel to cross-examine said witness upon the matter of his answer. (1 Greenleaf on Evidence, sec. 435; Allen v. State, 28 Ga. 396, 73 Am. Dec. 760, and note; 2 Phillips on Evidence, 893; People v. Stock, 1 Idaho, 222.) An instruction contrary to law is ground for reversal. (People v. Long, 39 Cal. 694.) An instruction contradicting a correct instruction on a material point is ground for reversal. (State v. Webb, 6 Idaho, 428, 55 Pae. 892; People v. Valencia, 43 Cal. 552; People v. Powell, 87 Cal. 348, 25 Pae. 486; Plummer v. State, 135 Ind. 308, 34 N. E. 968; 11 Eney. of PL & Pr. 145.) The acts and conduct of the deceased alone furnish the test by which the question of self-defense is measured and determined. {People- v. Thompson, 92 Cal. 506, 28 Pac. 590; People v. Becker, 109 Cal. 451, 42 Pac. 307.) The judge should limit his instructions to the facts in the case. (Territory v. Evans, 2 Idaho, 425, 17 Pac. 139; People v. Byrnes, 30 Cal. 207; People v. Atherton, 51 Cal. 495; 2 Deering’s California Digest, p. 1528, on assumed facts; 11 Eney. of PL & Pr. 170, and notes.) An instruction that assumes a material fact is ground for reversal. (Territory v. Kay, (Ariz.), 31 Pac. 153; People v. Williams, 17 Cal. 143; People v. Hertz, 105 Cal. 660, 39 Pac. 33.)</p> <p>Appellant’s first contention is that it is incompetent to show flight as a ground for establishing guilt. (United States v. Ktintze, 3 Idaho, 480, 31 Pae. 407; People v. Plannelly, 138 Cal. 83, 60 Pac. 670; People v. Forsythe, 65 Cal. 101, 3 Pac. 403.) We admit that a party may impeach his own witness under some circumstances, such, for instance, as when he is entrapped by a hostile witness or deceived as to the testimony he will give. (39 Am. & Eng. Ency. of Law, 811.) But under no circumstances can he deliberately call a witness in his own behalf for the purpose of impeaching him. Oath of jurors. (Clark v. Commonwealth, 133 Pa. St. 555, 16 Atl. 795; People v. Whitney, 53 Cal. 430.) Self-defense. (Rev. Stats., sec. 6571; State v. Morey, 35 Or. 341, 36 Pac. 575, 36 Pac. 573, cited by appellant; People v. Bernard, 3 Idaho, 193, 10 Tac. BO.)</p>

Newly discovered evidence: The affidavits must state facts showing due diligence and why the evidence was not discovered, (People v. Ah Fan, 53 Cal. 741; State v. Davis, 6 Idaho, 159, '53 Pae. 678; Russel v. Dennison, 46 Cal. 337; People v. Miller, 33 Cal. 99; Arnald v. Slcaggs, 35 Cal. 386; Stoalces v. Monroe, 36 Cal. 383.) Insufficiency of the evidence to justify the verdict : In the motion the defendant does not attempt to specify the grounds of insufficiency.

<p>APPEAL from District Court, Fremont County</p> <p>There is absolutely no evidence to sustain the verdict, and it must be presumed to have been rendered under the influence of passion and prejudice, and should be set aside. {State v. Nesbit, 4 Idaho, 548, 43 Pac. 66; State v. Crump, 5 Idaho, 166, 47 Pac. 814; State v. Mason, 4 Idaho, 543, 43 Pac. 63.) Section 7057 of our Penal Code is in effect section 496 of the California code. The supreme court of California holds that receiving stolen property is a distinct and specific offense under that section, and that although a defendant may receive stolen property and assist in disposing of it, for the benefit of himself and the real thief, he cannot be convicted either of larceny or as an accessary after the fact, but must be tried for the offense of receiving the stolen property only. (People v. Stalcem, 40 Cal. 599; People v. Fo-gan, 98 Cal. 230, 33 Pac. 60; People v. Maxwell, 24 Cal. 14; People v. Bibolsi, 89 Cal. 492, 26 Pae. 1082; People v. Avila> 43 Cal. 196.) Since the former decision by this court in this cause heretofore cited, this court has been called upon to pass on a similar case, and has, we urge, affirmed every contention we make herein. (State v. Marquardsen, ante, p. 352, 62 Pac. 1034.) The fourth error complained of is the refusal of the court to compel Judge Cochran, county attorney, to testify as a witness on sur-rebuttal, when called by defendant. We are entitled, if we so desire, to call upon the judge of the court himself to give evidence in this regard. Section 5956 of the Revised Statutes expressly provides that “all persons except those specified in the two succeeding sections, who are in possession, of their faculties, may be witnesses.”</p> <p>The jury is the judge of the credibility of the witnesses, and the weight to be given to the evidence. A careful examination of the testimony in this case, we think, will convince the court that the jury arrived at the verdict on conflicting evidence, and on well-settled rules of this court, such verdict will not be disturbed on appeal.. Below we cite a few of the many decisions of this court establishing this principle. (Simpson v. Remington, 6 Idaho, 681, 59 Pac. 360; Bonner v. Powell, ante, p. 104, 61 Pac. 138; Sears v. Flodstrom, 5 Idaho, 314, 49 Pac. 11; Murphy v. Montandon, 4 Idaho, 320, 39 Pac. 195; United States v. Gamp, 2 Idaho, 231, 10 Pac. 226; Mow-arch G. & S. M. Go. v. McLaughlin, 1 Idaho, 618; Mootry v. Hawley, 1 Idaho, 543; People v. Lewis, 124 Cal. 551, 57 Pac. 470; People v. TJh Dong, 106 Cal. 83, 39 Pac. 12; State v. Eaverly, 4 Idaho, 484, 42 Pac. 506; Ghamberlain v. Woodin, 2 Idaho, 642, 23 Pac. 177.) A substantial conflict is in no way dependent upon the preponderance of the testimony, and even if the evidence apparently preponderates against the verdict, it would not justify this court in overturning it. (Smith v. Thomas, 121 Cal. 533, 54 Pac. 71; Meyer v. G. W. Ins. Go., 104 Cal. 381, 38 Pac. 82; Livingston v. Packing Go., 103 Cal. 258, 37 Pac. 149; Bradford v. Woodworth, 108 Cal. 684, 41 Pac. 797.) It is well established both by our statutes and a long line of decisions of this court that a judgment will not be reversed by this court for an error committed at the trial, unless some substantial right of the defendant was injured thereby. (Eev. Stats., secs. 7687, 8236; In re Marshall, 6 Idaho, 516, 56 Pac. 470; State v. Peed, 3 Idaho, 754, 35 Pac. 706; State v. Ellington, 4 Idaho, 529, 43 Pac. 60; State v. Larkins, 5 Idaho, 200, 47 Pac. 945.)</p>

<p>An original proceeding to obtain a writ of prohibition.</p> <p>The jurisdiction of the district court is limited to a review of the proceedings before the commissioners, and that the court has no jurisdiction on appeal to try tbe cause anew. (16 Ency. of PL & Pr. 1123, and cases cited.) The author says: “When the jurisdiction of an inferior court is derived from a statute prescribing the manner of procedure in an action, it may be prevented by the writ of prohibition from departing from the manner prescribed.” (Anderson v. Superior Court, 122 Cal. 216, 54 Pae. 829.) This is a special preceding for the purpose of fixing a water rate primarily for the irrigation season of the year 1901. Either party may again have it fixed for the succeeding year. The law authorizing this proceeding is found in Session Laws of 1899, pages 384 and 385, sections 26 to 29, inclusive. The authorities are numerous to the effect that the right to appeal or for writ of certiorari is not a speedy or adequate remedy in cases of this character. (Anderson v. Superior Court, 122 Cal. 216, 54 Pae. 829; Kirby v. Superior Court, 68 Cal. 604, 10 Pac. 119; Havemeyer v. Superior Court, 84 Cal. 327, 18 Am. St. Pep. 192, 24 Pae. 121; Sweet v. Hul-bert, 51 Barb. (N. Y.) 315; People v. Nichols, 18 Hun, 538; Connecticut River R. Co. v. Franhlin Co., 127 Mass. 50, 34 Am. Rep. 338.) An appeal is inadequate when the trial on appeal is de novo. (State v. Allen, 45 Mo. App. 551; 16 Ency. of PI. & Pr. 1131.)</p> <p>It was never the intention or meaning, either of the common law or of the statute, that writs of prohibition or habeas corpus should take the place of appeals. The adequacy of a remedy is not to be tested by the convenience or inconvenience of the parties to a particular case. If such a rule were to obtain, the law of appeals might as well be abrogated at once. (Will-man v. Court, 4 Idaho, 11, 35 Pac. 692; Agassiz v. Court, 99 Cal. 101, 27 Pac. 50.) In the case below, the petitioner was testing the jurisdiction of the police court by the writ, but it was said: “If the petitioner should be convicted in the police court, he will have a plain, speedy and adequate remedy at law by an appeal to the superior court.” (Strouse v. Police Court, 85 Cal. 49, 24 Pac. 747; State v. Jones, 2 Wash. 662, 26 Am. St. Rep. 897, 27 Pac. 452; State v. Court, 21 Wash. 631, 59 Pac. 505; Mines etc. v. Court, 91 Cal. 101, 27 Pae. 533; People v. Hills, 5 TJtah, 410, 16 Pae. 405; Mancello v. Belrude (Cal.), 11 Pae. 501; Witcher v. Walkins, 11 Colo. 548, 19 Pac. 541; Walker v. Court (Ariz.), 35 Pac. 983.) There can be no question but that, under the general law of the state, upon an appeal being taken, the parties would be entitled to a trial anew. (Sess. Laws, 1895, p. 50; Fisher v. Commissioners, 4 Idaho, 381, 39 Pac. 552.) There was involved a provision of the irrigation district law of California, wherein it was provided that the motion for a new trial must be made on the minutes of the courts in such matters, thereby excluding the right to make it upon a statement or bill of exceptions, and it was held that this provision of the law was void. (Cullen v. Glendora Water Co., 113 Cal. 503, 39 Pae. 769, 45 Pac. 823, 1047; City v. Hevren, 126 Cal. 226, 58 Pac. 530; Dawson v. Eustace, 148 Ill. 346, 36 N. E. 87; Chicago B. Co. v. Minnesota, 134 TJ. S. 418, 10 Sup. Ct. Rep. 462, 702.) We claim, also, that, under our constitution and laws, the fixing of rates involves a judicial investigation. The legislature cannot, as has been held by our supreme court, fix the rates; it can only prescribe the manner of having the rate fixed. In other words, both the canal company and the consumers are entitled at some time to a judicial investigation. (Wilson v. Perrault, 6 Idaho. 178, 54 Pac. 617; Wilterding v. Green, 4 Idaho, 773, 45 Pae. 134.)</p>

<p>An original proceeding by certiorari.</p> <p>cites no authorities on the points decided by the court.</p> <p>We maintain that this ease has been fully adjudicated in the-district court of the second judicial district of the state of Idaho, in and for Nez Perces county, and that the relator is-estopped from further proceedings by writ of error or otherwise to said justice of the peace by such former adjudication. The former adjudication is a finality, concluding parties and privies as to every matter received to sustain or to defeat the claim, and as to what might have been offered for that purpose! (Anderson’s Law Dictionary, 30; Cromwell v. County of Sac „ 94 D. S. 2.51-258; State ex rel. 'Siting v. Lenahan, 17 Mont. 518, 43 Pac. 712; Turnpike Joint Stock Co. v. Board of Supervisors of the Oounty of Santa Clara, 62 Cal. 40.) We further maintain that the time for the issuance of a writ of error to said justice of the peace has elapsed, and that relator is barred from that right at this time, more than one year having elapsed since the rendition of said judgment, to wit, December 29, 1899. Sections 4807, 5005 and 5006 of the Revised Statutes of the state of Idaho relating to procedure on writs of error and otherwise. (McMillan v. Walley, 6 Idaho, 36, 51 Pac. 1029-1032.)</p>

Section 4520 of the Revised Statutes of this state provides for all foreclosure proceedings. When the return of the sheriff shows a balance still due, judgment can then be docketed for such balance against the defendant or defendants personally liable for the debt, and it becomes a lien against the real estate of such judgment debtor, as in other cases on which execution may be issued. Such balance when docketed by the clerk becomes a personal judgment and not before.

<p>Writ of Review — Trustee—Deposit in Court. — Under the provisions of section 4339 of the Revised Statutes, when it is admitted by the pleading of a party, or shown upon his examination, that he has in his possession or under his control money that he is holding as trustee for others, who apply to the court for an order requiring the holder thereof to turn the same into court, the court has jurisdiction to grant such application, and to make an order requiring the money to be deposited in court.</p> <p>(Syllabus by the court.)</p>

There is no statement of facts which could constitute a cause of action.

The name in which the deposit stands on the books of the bank is known throughout every transaction connected, with such deposit as the depositor; and the moment such deposit is made, then there is established coinstanter the relation of debtor and creditor between the bank and the depositor; and if paid out by the bank without authority of the depositor the bank makes such payment at its peril, and the depositor may sue and recover such deposit from the bank.

This action is commenced under section 7459 of the Revised Statutes, which allows an individual, in certain specified instances, to file an information for removal of any officer within the jurisdiction of the district court.

<p>This ease was submitted with that Ponting v. Isaman, ante, p. 577, 65 Pae. 434, and same decision rendered as in that case.</p>

“Q. State, now, if you saw her in the drug store, when you saw her there, in whose company and all the other circumstances and facts as far as you lmow of her visit there at the drug store. Until the corpus delicti is established, the testimony sought to be elicited by the above question under consideration was improper. (United States v. Searcy, 26 Fed. 435; Taylor v. State, 101 Ind. 63; Wharton on Criminal Evidence, 633; People v. Hall, 48 Mich. 482, 42 Am.

cites no authorities upon the points passed upon by the court. The application for a new trial may be made before or after judgment; and must be made within ten days after the verdict, unless the court or judge extend the time. The record shows that the application in this case was not made until more than ninety days after the verdict.

<p>Constitutional Law — Actions at Law and in Equity — By section 1, article 5, of the constitution of Idaho, the distinction between actions at law and equitable actions has been largely, if not wholly, abrogated.</p> <p>Injunction — Statutory -Remedy. — Under section 4288 of the Revised Statutes, a temporary injunction is authorized to restrain a trespasser from removing timber which he has cut upon land claimed by the plaintiff, pending suit to establish plaintiff’s title.</p> <p>Same. — The ancient rules of chancery relating to the remedy of injunction have been greatly modified by statutes, as well as by the trend of modern decisions.</p> <p>•Same. — Injunction will issue to restrain, temporarily, an act which will result in great damage to the plaintiff, although the injury is nob irreparable, and notwithstanding that other remedies lie in behalf of plaintiff.</p> <p>(Syllabus by the court.)</p>

The nature and character of a contract are to be determined by the law of the place intended by the contracting parties; and in the absence of an expressed intention to the contrary it will be deemed that the law of the place where the contract was made was so intended. (New 'England Mortgage Security Go. v. Yader, 28 Fed. 265; Gourtois v. Garpentier, 1 Wash. C. C. 376, Fed. Cas.

In tbe case of Brown v. Bryan, 5 Idaho, 145, 51 Pae. 995, this court after full hearing decided that a power of sale in a mortgage cannot be exercised but that the mortgage must be foreclosed as provided by law. This decision is as applicable to chattel as to realty mortgages. A mortgagee cannot waive his -security and sue upon the debt. (First Nat.

It is contended by the appellant that upon the evidence of the plaintiff, the defendant’s motion for a nonsuit should have been granted. There was no dispute as to the facts and under such conditions, negligence, involving the cognate proposition of contributory negligence, becomes a question for the court. {Pool v. Southern Pac. Go., 20 Utah, 210, 58 Pae. 326; Word-law v. Railroad Co. (Cal.), 42 Pac. 1075; Abbott v. Chicago etc. Ry.

The finding of tbe trial court is that he, Kimbrough, had only constructive notice by the record. That being a purchaser in good faith, for value, without notice of the contract, he is not bound by its terms. This raises at once the question of the nature of the contract and whether its record gave constructive notice of its contents. Constructive notice of the contents of recorded instruments is purely a creature of the statute. (Kev.

<p>CONSTITUTIONAL Law. — The court will not pass upon the constitutionality of a law, unless it is absolutely necessary to a decision of the case under consideration.</p> <p>Statute — Validity.—The validity of a revenue will not be.determined where the party attacking it fails to show that he has suffered injustice from an assessment thereunder from which he complains,,</p> <p>(Syllabus by the court.)</p>

In a suit to quiet title the plaintiff must allege and prove title in himself, and if he fails he cannot recover. (See Heney v. Pesoli, 109 Cal. 53, 41 Pac. 819; Winter v. McMillan, 81 Cal. 256, 22 Am.

We contend that a sufficient legal remedy was afforded in this case by the statute providing for proceedings supplemental to execution, and that that course must be pursued. In other words, the proceedings supplemental to execution, under our practice, takes the.place of a creditor’s bill at common law. (Adams v. Hacketi, 7 Cal. 187-201; McGullogh v. dark, 41 Cal. 298-302; Bank v. Robinson, 57 Cal. 520; Rand v. Rand, 78 N. C. 12.) The complaint is entirely insufficient.

<p>Judgment — Collateral Attack — Findings — Presumptions.— Where a judgment is attacked collaterally upon the ground that no findings of fact were made, signed and filed by the judge, the validity of such judgment is to be determined from the judgment-roll, and if it appears therefrom that the court rendering it is a court of general jurisdiction, and had jurisdiction of the parties, and subject matter of the action, the law presumes that findings of fact were in their absence waived, unless the judgment-roll affirmatively shows that such findings were not waived.</p> <p>(Syllabus by the court.)</p>

<p>APPEAL from District Court, Ada County.</p> <p>It will be’seen from the agreed facts that the sole question presented for decision in this case involves the right of the inmates of the .soldiers’ home to gain a residence therein for voting purposes. Appellant insists that the votes cast at said election by the inmates of said institution are illegal and void, and invokes in his behalf the provisions of our constitution, article 6, section 3, which are as follows: “For the purpose of voting, no person shall be deemed to have gained or lost a residence by reason of his presence or absence while employed in the service of this state or of the United States, nor while engaged in the navigation of the waters of this state, or of the United States nor while a .student of any institution of learning nor while kept at any almshouse or other asylum at the public expense.” , This provision of our constitution is similar to a like one to be found in the constitutions of many states, notably New York, Michigan, Kansas, Pennsylvania and California, in all of which states, except California, it has been held that the inmates of the soldiers’ home of those states, respectively, were not entitled to vote in the precinct where the home was located. (Silvey v. Lindsay, 107 N. Y. 55, 13 N. E. 444; Lawrence v. Leidigh, 58 Kan. 594, 62 Am. St. Eep. 631, 50 Pae. 600; Wol-cott v. Holcomb, 97 Mich. 361, 56 N. W. 838, 23 L. E. A. 215; Registration in Erie, Pa., County Court, Co-op. Dig. 1899, vol. 7, p. 2039; Matter of Goodman, 146 N. Y. 284, 287, 40 N. E. 769; Matter of Garvey, 147 N. Y. 117, 41 N. E. 439.)</p> <p>Under the common-law rule no one becomes a voter merely “by reason of his presence or absence” at a particular place, independent of any constitutional provision. (Budd v. Holden, 28 Cal. 124; Devlin.v. Anderson, 38 Cal. 92; Putnam v. Johnson (1813), 10 Mass. 488; Biddle v. Wing, Cl. & H. El. Cas. 504 (an early case in Congress cited in 10 Am. & Eng. Ency. of Law, 2d ed., p. 604); Bedigo v. Grimes (1887), 113 Ind. 148, 13 N. E. 700; Schaffer v. Gilbert, 73 Md. 66, 71, 20 Atl. 434; Yanderpool v. O’Hanlon (1880), 53 Iowa, 246, 36 Am. Eep. 216, 5 N. W. 119; Paine on Elections, sec. 69; Dennis v. State of Florida (1879), 17 Fla. 389; Opinion of Justices (1843), 5 Met. (Mass.), 587; Hannon v. Grizmrd (1883), 89 N. C. 115.) Besidence in the legal sense is to be determined by the intent and act of the party. lie cannot have two homes at unce. It is a question of fact, and the intention is evidence of Ihe fact. Mere actual residence, however prolonged, will not constitute legal residence unless accompanied with the intention of making the place a home. (Paine on Elections, sec. 47; McCrary on Elections, 4th ed., see. 97; Story on Conflict of Laws, p. 44, sec. 46, subds. 7, 8,13; Darrah v. Bird, 3 Or. 229 at 233; 10 Am. & Eng. Ency. of Law, 2d ed., 598, 599.) Section 5, article 6 of the constitution, therefore, merely furnishes a rule of evidence by which their prima facie right to vote in and claim as their legal residence the precinct where the home is situated “by reason of their presence” there is taken away, but they must prove their right by other evidence, as was done in this case by evidence «showing that they had abandoned their former homes, and made the soldiers’ home their actual and permanent residence with the bona fide intent so to .do,” etc., the intent being evidence of the fact. (Fry’s Election Oase¡ (1872), 71 Pa. St. 3Ó2, 10 Am. Eep. 698, quoting Judge Xing from 1 Ashm. 126; Yanderpool v. O’Hanlon, 53 Iowa, 246, 36 Am. Eep. 216, 5 N. W. 119; Lankford v. GebhaH, 130 Mo. 633, 51 Am. St. Eep. 585, 31 S. W. 1127; Darrah v. Bird, 3 Or. 229; Wood v. Fitzgerald, 3 Or. 568; People v. Holden, 28 Cal. 124.) Plaintiff merely showing that these persons were inmates of the soldiers’ borne is no evidence to show that they were not qualified voters. Plaintiff must affirmatively show some other facts from which it could be determined affirmatively that they were illegal voters, as the presumption is that anyone who votes is a legal voter. (Darrah v. Bird, 3 Or. 229, 10 Am. & Eng. Ency. of Law, 2d ed., 835e; McCrary on Elections, 4th ed., sec. 466a; In re Green, 5 Fed. 145.) The constitution adopted by the state of Idaho in 1890 is taken from the constitution of California, and the decisions of that court upon what those provisions of the constitution meant were adopted with those provisions. This rule, that “by adopting a statute from a sister state the construction of the statute by the courts of the latter state is also adopted, is a general rule that is universally recognized.” (Flood v. McClure, 3 Idaho, 587, 32 Pac. 255; Brown v. Bryan, 5 Idaho, 145, 51 Pac. 1001; Sutherland on Statutory Construction, see. 256, 337.) And this, of course, applies to the constitution, which is but the law by the people, as the statutes are laws enacted by the legislature, and this is particularly true of election laws. (See 10 Am. & Eng. Eney. of Law, 2d ed., subd. 2, p. 588, tit. “Elections.”)</p>

<p>Piling of Objection to Record. — Under provisions of rule 17 of this court, objections to the record must be noted in writing and filed one day before the argument of the case, and unless so filed must be disregarded.</p> <p>Several Verdicts — Joint Judgment. — In a joint action against numerous defendants, where a several verdict is found, it is error to enter a joint and several judgment.</p> <p>Costs. — Under the provisions of sections 4901 and 4904 of the Revised Statutes, where the plaintiff sues for damages and recovers less than $100 be cannot recover bis costs.</p> <p>(Syllabus by the court.)</p>

There is hardly a case where judgment of default has been entered, in which grounds equally forcible for opening the same might not be presented.

The appellant admits that Harry Timmons did indorse said note before maturity, but appellant contends that Harry Tim-mons, was not the payee of such note, and that the real payee never indorsed such note, and therefore this appellant should not be bound by such an indorsement, as he did not indorse such note for the payee therein named, but only indorsed the same as an individual and not as the owner or payee of such note.

The parties to this action never were parties in any suit in which the right to the use of any of the said waters of Little Wood river was decreed to them, and even if the respondent was granted the right to the use of any of said water it can have no binding force whatever upon either of the said appellants,- as they were not parties to the action in which such a judgment was rendered.

Respondent contends that the undertaking was invalid because executed before the appeal was taken. But this contention cannot be sustained either on principle or on authority. The bond was entered into by the parties knowing the facts, i. e., that the appeal had not yet been taken, and there being no fraud in the matter the sureties would be estopped to deny the truth of the allegations in the bond.

An original proceeding for writ of mandate. Section 4 of article 18 as originally found in the constitution reads as follows: “No new county shall be established which Shall reduce any county to an area of less than four hundred square miles, nor shall a new county be formed containing an area of less than four hundred square miles.” The alleged amendment, which would be amendment 4 of the constitution, reads as follows: “No new county shall be established which (shall…

<p>APPEAL from District Court, Shoshone County.</p> <p>The court erred in denying defendant’s motion for a postponement of the trial of said cause. 1. It is commonly regarded as reversible error to deny a'continuance where the application complies with every requirement of the law and is not made merely for delay, and the evidence is material and due diligence is shown, and the opposite party refrains from making such admissions as will obviate a continuance. (Lilien-thal v, Anderson, 1 Idaho, 673; People v. Brown, 54 Cal. 243; Lord v. Dmster, 79 Cal. 477, 21 Pac. 865; Sutton v. People, 119 Ill. 250, 10 N. E. 376; Saylor v. Commonwealth, 97 Ky. 184, 30 S. W. 390; Mercer v. Lowell Nat. Bank, 29 Mich. 243.) 2. The existence of intense popular excitement and prejudice is a good ground for continuance. (Beavers v. State, 53 Ind. 530; Bishop v. State, 9 Ga. 121; Cox v. State, 64 Ga. 374, 37 Am. Sep. 76; John v. State (Tenn.), 1 Head 49; State v. Poe, 8 Lea (Tenn.), 647; State v. Wells, 61 Iowa, 629, 47 Am. Eep. 822, 17 N. W. 90.) 3. And failure to allow the accused proper time in which to prepare for trial is error. (Conley v. People, 80 Ill. 236; Metis v. State, 29 Ga. 271; State v. Lewis, 1 Bay (S. C.), 1; Newmm v. State, 22 Neb. 356, 35 N. W. 194; State v. Lewis, 74 Mo. 222.) Evidence of identity, whether of person or thing, especially in capital cases, should be as certain as the most favorable circumstances will permit. (3 Greenleaf on Evidence, sec. 30; 1 Taylor on Evidence, see. 555; Will’s Circumstantial Evidence, c. 47.) In a trial for murder it is error to admit evidence of tbe declarations of tbe deceased, made several hours before tbe murder. (People v. Carlchuff, 24 Cal. 640; Combs v. State, 75 Ind. 215; Weyrich v. People, 89 Ill. 90.) The court erred in permitting tbe counsel for the state to use tbe following language, in tbe presence and hearing of tbe jury, during the examination of the witness, Joseph Whelan: "As to what transpired there that first day of October in that store, we do not know what occurred there; there was no eye-witness so far as we know; it is known only to God Almighty, Rice and the spirit of the departed Maily. Circumstances that point to his guilt; among them was his need of money. This defendant was in financial embarrassment prior to this time. The statements which I made, I think are all borne out by the evidence already adduced.” This language was used^fering-the. discus sion of the admissibility of the-evícténce. (Long v. State, 56 Ind. 186; State v. Graham'/62 Iowa, 103; Cooley’s Blackstone’s, Commentaries, 354^Éate v. Olds, 19 Qr. 397, 24 Pac. 349.) It is both a right ¡ndK duty to give to the jury, by evidence, as complete a pi^^^as possible of all the surroundings; and this irrespective^^Htely of any question of subsequently connecting the defend^^^ith the transaction by other proofs. (Brown v. Peopl^^m Mich. 433, 97 Am. Dee. 195; Patten v. People, 18 Midp^7, 100 Am. Dec. 173; Maher v. People, 10 Mich. 226, 8j®a.m. Dee. 781.) Each fact necessary to the conclusion wught to be established must be proven by competent evid^ice beyond a reasonable doubt. (Scott v. State, 19 Tex. App. 325; People v. Anthony, 56 Cal. 397; Clare v. People, 9 Colo. 123; Commonwealth v. Webster, 5 Cush. 295, 52 Am. Dec. 711, and note.) The rule supported by the weight of authority is that, even though the evidence may fall short of establishing the plea, it may be considered by the jury with the entire evidence, in determining whether a reasonable doubt of defendant’s guilt has been raised. (People v. Fong Ah Sing, -’64 Cal. 253, 28 Pac. 233; Kaufman v. State, 49 Ind. 248; Howard v. State, 50 Ind. 190; Commonwealth v. Choate, 105 Mass. 451; State v. Reitz, 83 N. C. 634; Walters v. State, 39 Ohio St. 215; Watson v. Commonwealth, 95 Pa. St. 418; State v. Hardin, 46 Iowa, 623, 26 Am. Eep. 174; State v. Watson, 7 S. C. 63; State v. Webb, 6 Idaho, 428, 55 Pae. 892.)</p> <p>The application by appellant for a new trial was not made within ten days after the rendition of the verdict in the said canse, and that the time for making such application was nob extended by order of the court or judge. (Eev. Stats., see. 7953; State v. Smith,, 5 Idaho, 291, 48 Pac. 1060; Connor v. Southern California M. R. Co., 101 Cal. 429, 35 Pac. 990; California Imp. Co. v. Baroieau, 116 Cal. 136, 47 Pac. 1018; Burton v. Todd, 68 Cal. 485, 9 Pae. 663.) A motion is an application for a rule or order made viva voce to the court -or-judge» Making--eiiL and tiling a written application for such rule is not sufficient. "The-^attcntion of the court must be called to it and the court moved to 'grant; it. (People v. Ah Sam, 41 Cal. 645; Spencer v. Branham, w^Cal. 336, 41 Pac. 1095.) We do not believe that counsel ra^^by stipulation set at naught the statutes of this state or pD^B&e a course of procedure different from that provided by the I^Bjes. This position we believe to be supported by sound reas^^fc well as by the weight of authority. (State v. Smith, 5 291, 48 Pac. 1060; Connor v. Southern M. R. Co., 101 429, 35 Pae. 990; In re Clary’s Estate, 112 Cal. 292, 44 P^»569, see p. 570; Witter v. Andrews, 122 Cal. 1, 54 Pac. ;«6.) The affidavits for continuance presented on behalf of the tje-fendant in this ease are entirely inadequate, and do not meet the requirements of the law, and were not such as to warrant the court in granting the continuance. An affidavit for a confirm-. anee based on the absence of a material witness must contain the following: 1. That the testimony of the witness is not cumulative, and that the facts sought to he proved cannot be proved by any other witness within the process of the court. (People v. Ah Eat, 48 Cal. 61; People v. Ashnauer, 47 Cal. 98; State v. Murphy, 9 Wash. 204, 37 Pac. 420.) We submit that nowhere in the affidavits does it appear that the testimony of the witness whose presence is desired is not cumulative, or that the facts sought to be proved cannot be proved by some other witness witbin the process of the court. 2. That the testimony is material. (People v. Mutton, 40 Cal. 648.) This fact does not clearly appear from the affidavits, and the statement is not predicated on the facts required by the preceding requirements. 3. That due diligence has been used to obtain the witness or his testimony, setting forth the character of diligence, whether by exhausting process or otherwise. (People v. Ashnauer, 47 Cal. 98; People v. Winters, 125 Cal. 325, 57 Pac. 1067; State v. Graemer, 12 Wash. 217, 40 Pac. 944; State v. Lewis, 56 Kan. 374, 43 Pae. 265; State v. Cor-coran, ante, p. 220, 61 Pae. 1034; Reynolds v. Corbus, ante, p. 481, 63 Pac. 884; People v. .Weaver, 47 Cal. 106.) The jury is the judge of the credibility of the witnesses and the weight to be given to the evidence, and a verdict given on conflicting evidence on well-stated rifles of this court will not be disturbed on appeal. The evidence in this ease was not only conflicting but was amply sufficient to establish the guilt of the defendant beyond a reasonable doubt. (Simpson v. Remington, 6 Idaho, 681, 59 Pae. 360; Bonner v. Powell, ante, p. 104, 61 Pac. 138; Sears v. Flodstron, 5 Idaho, 314, 49 Pac. 11; Murphy v. .Montandon, 4 Idaho, 320, 39 Pac. 195; State v. Haverly, 4 Idaho> 484, 42 Pac. 506; Chamberlain v. Woodin, 2 Idaho, 642, 23 Pae. 177; People v. Wong Chong Suey, 110-Cal. 117, 42 Pac. 420; People v. Ross, 115 Cal. 233, 46 Pac. 1059; Smith v. Thomas, 121 Cal. 533, 54 Pac. 71; Meyer v. G. W. Ins. Co., 104 Cal. 381, 38 Pac. 82; Livingston v. Packing Co., 103 Cal. 258, 37 Pae. 149.)</p>

<p>CERTIFICATE OF PROBABLE CAUSE — DENYING SAME. — All application-for a certificate of probable cause for an appeal from an order denying a new trial is not authorized, and should be refused, where the record upon such appeal shows that the application for such new trial was made more than three years after the! judgment, and not within the time required by the statutes for making such application.</p> <p>(Syllabus by the Court.)</p>

“Equitable lien” is a phrase of expansive meaning, but we take it to mean one of two things — namely, a lien arising by operation of law — a vendor’s lien; or a Hen intended by the contracting parties, Said intention having failed for some reason to be evidenced by a formal instrument of mortgage. Plaintiffs seem studiously to avoid any claim to a vendor’s lien in terms and for obvious reasons: 1.

cites no authorities upon the point decided by the court. The main question in this case is as to whether the provisions of section 1210 of the Revised Statutes, are in conflict with the federal constitution or the laws of Congress. That is the question upon which both parties to this case desire the decision of this court.