Volume 8 — Arizona Reports

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

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

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

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

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

<p>1. Criminal Law—Attempt to Bob Mails—Indictment—Intent-Sufficiency—Defect of Form—Cured by "Verdict—Bev. Stats. U. S., Sec. 5473, and Bev. Stats. Ariz. 1887, Par. 1467, Cited and Construed.—Section 5473, supra, provides that “Any person who shall attempt to rob the mail by assaulting the person having custody thereof, by shooting at him ... or threatening him with dangerous weapons, and shall not effect such robbery, shall be punishable,” etc. Paragraph 1467, supra, provides: “No indictment or information is insufficient, nor can the trial, judgment, or other proceedings thereon, be affected, by reason of any defect or imperfection in matter of form, which does not tend to the prejudice of the substantial rights of the defendant upon its merits.” The indictment charged that defendant “did unlawfully, willfully, and feloniously attempt to rob the United States mail, ... by then and there assaulting [the custodian] with a dangerous weapon and threatening to kill [said custodian].” The court instructed the jury that the attempt must have been made with an intent to steal, before they could find the defendant guilty. Seld, that although the indictment might have been held insufficient on demurrer in not alleging the intent with sufficient clearness, yet such insufficiency was a defect of form within paragraph 1467, and cured by verdict.</p>

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

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

<p>1. Criminal Law—Corporation—Officer Falsifying Books—Indictment — Sufficiency — Duplicity •—• Bev. Stats. Ariz. 1887, Pen. Code, Par. 881, Cited.—Under paragraph 881, supra, providing for the punishment of any officer of a corporation who, with intent to defraud said corporation or its stockholders, destroys, alters, mutilates, or falsifies any of the books, papers, writing, or securities of said corporation, an indictment charging that defendant did ‘ ' alter, mutilate, and falsify and cause to be altered, mutilated, and falsified a book in writing” belonging to said corporation, and then setting out the one alteration complained of, is good, it being unnecessary to state the name of the person whom the defendant eaused to alter the record. While it may have been unnecessary to have charged, the offense as having been done -and eaused to be done by the defendant, the language used, taken in connection with its context, is not open to the objection that two offenses are therein charged.</p> <p>2. Same—Trial—Charge to Jury—Setting Out Whole Statute— Specific Charge—Rev. Stats. Ariz. 1887, Pen. Code, Par. 881, Cited.—Upon the trial of a defendant, president of a corporation, charged with falsifying its records in violation of paragraph 881, supra, an instruction to the jury setting out the entire statute is not erroneous where the court elsewhere in its charge specifically stated to the jury the precise charge made against the defendant in the indictment.</p> <p>3. Same—Evidence—Admissibility—Other Acts—Good Faith — Motive—Rev. Stats. Ariz. 1887, Pen. Code, Par. 881, Cited.—Upon the trial of a defendant charged with having falsified the records of the corporation, of which he was an officer, in violation of paragraph 881, supra, evidence of alterations and erasures in part of the record other than charged in the indictment is admissible as bearing upon the good faith of defendant and tending to establish the motive on his part for the commission of the offense charged.</p> <p>4. Same—Same—Impeachment—Harmless Error—Snead v. Tietjen, 3 Ariz. 195, Followed.—While it may have been erroneous for the court to have sustained objections to questions asked by defendant's counsel, seeking to lay the foundation for impeachment, as to prior conversations by the witness, sueh error is harmless where the record fails to disclose that defendant offered any impeaching testimony as to such prior conversations.</p>

<p>1. Limitations — Injuries to Person—Pleading—Amendment—New Cause of Action—Departure—Rev. Stats. Ariz. 1887, Par. 2309, Cited.—The Revised Statutes of Arizona of 1887 (par. 2309) provide that actions for injuries done to the person 'of another shall be commenced and prosecuted within one year after the cause of action shall have accrued. Plaintiff, on behalf of his minor son, brought an action against defendant to recover damages for personal injury. More than a year after the injury, plaintiff amended his complaint, making the action one for his own benefit. Held, that the amended complaint was sueh a departure from the original complaint as to state a new and different cause of action, and, being filed more than one year after the injury was received, from which it was alleged the damages arose, was barred by the statute, supra.</p> <p>2. Same—Defense—How Raised—Demurrer—Contained in Answer— Rev. Stats. Ariz. 1887, Pars. 734, 2328, Construed.—The Revised Statutes of Arizona of 1887 (par. 2328) provide that “the laws of limitation of this territory shall not be made available to any person in any suit in any of the courts of this territory, unless such be specially set forth as a defense in his answer.” Paragraph 734, supra, provides that “the defendant in his answer may plead as many several matters, whether of law or fact, as may be necessary for his defense. ’ ’ Held, that the only purpose of the former statute is to compel defendant to specially plead the statute of limitations; that it does not prohibit the pleading of the statute by demurrer under the authority of the latter statute.</p>

<p>1. Bailroads—Injuries to Persons on Track—Evidence—Negligence —Contributory Negligence—Questions for the Jury.—Plaintiff and other employees of a reduction works had been accustomed for many years to go along the tracks in the yard of the defendant company. It was not shown that the defendant had given any consent to this use of its right of way,' except such implied consent as might be inferred from its suffering this use to be made without objection. Plaintiff, entering upon defendant’s right of way, walked along between the tracks passing a switch, where, standing immediately over the frog, was an engine, with one car coupled in front and two behind. When about one hundred and fifty feet north of the engine and cars, plaintiff glanced back and saw that they were standing still. After he had proceeded about one hundred and fifty feet farther, he was knocked down by the car attached to the rear of the engine, while the engine was making what is known as a “flying switch." The wind at the time was blowing from the power-house of the reduction works, and plaintiff stated that he heard no bell and did not notice the noise of an approaching train, but distinctly remembered hearing the noise from the gas-engine at the reduction works. Defendant’s rules prohibited the use of the flying switch when it was possible to avoid it, and when it was necessary to use it great caution was required. Making a flying switch requires a very rapid movement of the engine. Plaintiff was an old railroad man, and familiar with the method of making the flying switch. After these facts had been proved, defendant moved to instruct the jury to bring in a verdict for defendant, which motion was overruled. 'Reid, that regardless of the question as to whether plaintiff was upon the right of way as a licensee or a mere trespasser, the questions of defendant’s negligence and of plaintiff’s contributory negligence were both for the jury.</p> <p>2. Appeal and Error—Cross-Appeal—Assignment of Cross-Error Necessary.—Objections by appellee cannot be considered without an assignment of cross-error unless the error complained of appears upon the face of the record.</p>

<p>1. Action to Quiet Title—Pleading—Proof—Variance—Rev. Stats. Ariz. 1887, Par. 3132, Construed.—In an action under paragraph 3132, supra, providing that “An action to determine and quiet the title of real property may- be brought by any one having or claiming an interest therein, whether in or out of possession of the same, against another who claims an estate or interest adverse to him,” where plaintiff alleged that he was the owner in fee of certain property, proof of an equitable title in plaintiff does not constitute such a variance as to preclude a recovery.</p> <p>2. Same—Execution Sale—Purchaser—Acquires Equitable Title-May Maintain Action to Quiet Title—Rev. Stats. Ariz. 1887, Par. 3132, Construed.—Where defendant purchased certain property at a foreclosure sale, receiving a sheriff’s certificate, but no deed, and went into possession, and subsequently his interest was sold on execution, the purchaser acquires all the equitable title of defendant, and plaintiff as assignee can maintain an action against defendant to quiet title, under paragraph 3132, supra.</p> <p>3. Internal Revenue—Stamp-Tax—Sheriff’s Certificate—Assignment—Stamp not Required—Act Congress, June 13,1898, Construed.-—-As the act of Congress, supra, does not require a sheriff’s certificate of sale to be stamped, the assignment of such instrument is also free from the duty, as it is only where the original instrument is subject to the duty that assignments are required to be stamped.</p> <p>4. Execution—Levy—Sheriff’s Sale—Sale of Realty—Validity— Innocent Purchaser—Laws of Ariz. 1889, Act. No. 20, Construed.—Act No. 20, supra, provides that an execution “must require the officer serving the same, if the judgment be against the property of the judgment debtor, to satisfy the judgment . . . out of the personal property of such debtor, and if sufficient personal property cannot be found, then out of the debtor’s real property.” Held, that as against an innocent purchaser of realty claiming under an execution sale, a judgment debtor who failed to call the sheriff’s attention to personalty, and to require him to satisfy the execution out of it, cannot question the validity of the sheriff’s sale, because not complying with the act supra.</p>

<p>1. Pleading and Practice—Complaint—Cause of Action—Contract— Quantum Meruit—Counts—Election—Commissions — Broker— Kev. Stats. Ariz. 1901, Pars. 1280, 1289, 1291, Construed.—-Paragraph 1280, supra, provides that "The complaint may contain several different causes of action.” Paragraph 1289, supra, provides that "The .complaint shall set forth ... a concise statement of the causes of action . . . and shall also state the nature of the relief he demands.” Paragraph 1291, supra, provides that "Only such causes of action may be joined as are capable of the same character of relief.” While in a general way, under the statutes, supra, a plaintiff who has but one cause of action will not be permitted to plead it as though he possessed two or more distinct demands, yet in a suit to recover broker’s commission it is proper to deny a motion to compel plaintiff to elect between his counts before going to trial, the first being on an express contract, the second on a quantum meruit, this being a case in which the plaintiff is entitled to frame his pleading to meet the possible proofs whieh will for the first time fully appear on the trial.</p> <p>2. Same—Two Counts on Same Cause of Action—Finding—Effect.— Where plaintiff brought suit to recover a broker’s commission, and his complaint contained two counts,—one on an express contract, and the other on a quantum meruit,—a finding of the court in favor of the plaintiff on the first count was tantamount to a finding against him on the seeond.</p> <p>3. Practice—Prayer for Joint and Several Judgment—Entering Separate Judgments for Proportionate Amount—Not Error Prejudicial to Defendant.—Where plaintiff brought suit to recover broker’s commission against five defendants jointly, and prayed for a joint and several judgment for ten thousand dollars, the court committed no error prejudicial to defendants in entering a separate judgment against each defendant for two thousand dollars.</p> <p>4. Appeal, and Error—Finding—Sufficiency of Evidence—Review— Barter v. Pima County, 2 Ariz. 88, 11 Pac. 62; Jordan v. Duke, 4 Ariz. 278, 53 Pac. 197; Webber v. Kastner, 5 Ariz. 324, 53 Pac. 207; Jordan v. Schuerman, 6 Ariz. 79, 53 Pac. 579, Followed.— A finding by the court below will not be disturbed if there is any evidence fairly tending to support it.</p>

<p>1. Trover and Conversion — Pleading—Evidence—Variance—Public Lands—Fences on—Fixtures.—In an action for the conversion of firewood, a complaint alleging its ownership by plaintiff, its conversion and sale by defendant, and his refusal on demand to pay therefor is not supported by evidence that plaintiff built a wood and brush fence upon public lands to none of which he had title; that, by mistake of fact, he built part of the fence upon ground other than he had intended; that shortly thereafter defendant took up the adjoining tract of land on which said fence stood and claimed that part of the fence which stood thereon; that thereafter plaintiff discovered Ms mistake, and built a wire fence ninety feet south of the fence in controversy, and that thereupon defendant detached said fence and sold the wood composing the same; that plaintiff demanded the wood, which defendant refused to surrender but claims as his own.</p> <p>2. Same — Demand — Pleading — Proof—Variance.—Where the complaint alleges the conversion and sale of property and a demand for payment for the same, evidence that plaintiff demanded the property which defendant refused and claimed the material as his own, is incompetent and immaterial and fails to support the pleading.</p> <p>3. Fixtures—Trover and Conversion—Public Lands—Fence on.— A fence placed on government land by mistake passes with the land to a subsequent purchaser from the government, and the original owner thereof cannot maintain an action against the purchaser for conversion in removing and selling the fence, as the doetrine of trade fixtures and right of removal thereof does not apply.</p>

<p>1. Ejectment—Defense—Adverse Possession — Statement of Limitation—Where Plaintiff Claims Under Deeds from Defendant —Rev. Stats. Ariz. 1887, Pars. 2297, 2299, Cited.—Under paragraph 2297, supra, providing that adverse possession must be either under title or color of title to set up the three-year bar, and paragraph 2299, supra, providing among other things that adverse possession must be under a deed duly registered to set up the five-year bar, a defendant in ejectment is precluded from setting up adverse possession for either period as against his own deed to plaintiff, upon which deed plaintiff declared solely.</p> <p>2. Same—Same—Same—Same—Five-Year Limitation — Payment of Taxes—Rev. Stats. Ariz. 1887, Par. 2299, Construed.—Under paragraph 2299, supra, providing that any one paying taxes on the property and doing certain other things may set up adverse possession for five years as a defense to an action to recover said property, evidence of payment of taxes prior to the particular years set up in the defense is irrelevant and immaterial.</p> <p>3. Same—Issues—Instructions to Jury—Misleading.—Plaintiff in ejectment declared solely upon his conveyances from the defendant, which on their face vested in him title and right of possession. The defendant set up in his answer two defenses,—one that the deed relied on by plaintiff was a mortgage, the other that the action of the plaintiff had been barred by the statute of limitations. The latter defense not being open under the pleadings and evidence, and the only issue being whether deed from defendant to plaintiff was intended as an absolute conveyance or as a mortgage, it was erroneous and misleading to instruct that the verdict must be for the defendant, even if plaintiff is shown to have the legal title, if defendant had the right to the possession of the property at the commencement of the action, as, under the issues, the defendant could not be found to have had the right to possession unless he had the legal title.</p> <p>4. Statutory Construction — Statute Copied — Interpretation of Statute by Former State—Presumably Adopted.—Having copied verbatim the statute of another state, the legislature is presumed to have adopted with it the interpretation of it as given by the supreme court of the state.</p>

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

<p>1. Appeal and Error—Intervention—Bight op Appeal—Only Applies to Parties to Suit—Person Denied Permission to Intervene not a Party—Bev. Stats. Ariz. 1887, Tit. XIV, Chap. 2, and Tit. XV, Chap. 20, Construed—Spicer v. Simms, 6 Ariz. 347, 57 Pac. 610, Cited.—An appeal does not lie from an order denying a motion for leave to intervene, the petitioner not being a party to the suit, as the right of appeal granted by the statutes, supra, extends only to parties.</p> <p>2. Same—Same—Petition to Intervene—Merely Motion—Denial op —Not Appealable.—The petition for leave to intervene is only a motion in the cause to which it relates, and not an independent suit which is appealable.</p>

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

<p>ERROR to the District Court of the Second Judicial District in and for the County of Pinal. E. M. Doan, Judge.</p> <p>The facts are stated in the opinion.</p>

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

<p>1. Death by Wrongful Act—Eight of Action—Non-Eesident Aliens May Maintain—Eev. Stats. Ariz. 1887, Pars. 2145, 2149, 2150, Construed.—Non-resident aliens may institute and maintain an action for injuries resulting in death caused by wrongful act, under paragraph 2145, supra, providing that “An action for actual damages on account of injuries causing the death of any person may be brought in the following cases . . . ”: paragraph 2149, supra, providing that “The action shall be for the sole and exclusive benefit of the surviving husband, wife, children and parents of the person whose death shall have been so caused”; and paragraph 2150, supra, providing that “The action may be brought by all parties entitled thereto, or by any one or more of them for the benefit of all.”</p>

<p>1. Constitutional Law—Criminal Law—Forest Reserves—Private Use—Rules and Regulations of Secretary of Interior—Infraction of—Not Criminal—Act of Congress, June 4, 1897, 30 Stats. 33, Unconstitutional—Act of Congress, June 4, 1888, 25 Stats. 166, Amending Rev. Stats. U. S. Sec. 5388, Cited.—The act of Congress of June 4, 1897, supra, providing that the secretary of the interior may make rules and regulations to regulate the occupancy and use of forest reservations and to preserve the forests thereon, and further providing that any violation of such rules and regulations shall be punished as is provided for in the act of Congress of June 4, 1888, amending section 5388 of the Revised Statutes of the United States, is an unconstitutional delegation of legislative power to the secretary of the interior in so far as it authorizes him by rule or regulation to specify acts the performance of which shall constitute crime.</p> <p>2. Same—Same—Same—Sameh-Same—Crime—What Constitutes.— It is not enough that the government may have the ownership of the forest reserves, and that its unauthorized use for sheep-grazing be a trespass. There being no offenses against the government at common law, special statutory enactment making the use an offense must be had before a regulation of a department officer can make such use a criminal aet; and such a statutory enactment is not to be found in a statute which gives such official the right to make regulations for use, and provides for a punishment for the infraction thereof, unless such use, except as allowed by the regulations, is in terms prohibited.</p>

<p>1. Criminal Law—Larceny—Degrees—Jury—Verdict—Must Specify Degree—Rev. Stats. Ariz. 1901, Pen. Code, Secs. 443, 444, 445, 972, 974, Construed.—Section 443, supra, divides larceny into two degrees, and sections 444 and 445, supra, define each. Section 972 of the Penal Code, supra, provides that “Whenever a crime is distinguished into degrees, the jury, if they convict the defendant, must find the degree of the crime of which he is guilty.” Section 974, supra, provides that “The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged or of an attempt to commit the offense.” Defendant was tried under an indictment charging him with the crime of grand larceny, in the taking of property in value in excess of fifty dollars. The jury brought in a verdict of “guilty as charged in the indictment.” Held, that a judgment based on said verdict was unwarranted, as, under statute supra, the jury must by their verdict find the degree of the crime, where the crime is divided into degrees.</p> <p>Davis, J., dissenting.</p>

<p>1. Courts—Jurisdiction—Amount in Controversy.—Where in good faith suit was commenced for an amount within the jurisdiction of the court, and at defendant’s instance allegations were stricken , from the complaint, thereby reducing the amount in controversy to a sum less than the statutory amount, it was error for the court to dismiss the action on the ground that the amount in controversy was below the jurisdictional limit.</p> <p>2. Written Instrument — Construction — Parol Evidence — When Proper in Aid op.—While it is elementary that the terms of a written instrument cannot be varied by oral proof regarding the same or the intent of the parties, and it is the province of the court to construe such instrument without further proof, where there is no doubt as to the meaning of the language of the instrument, it is also well established that where there is doubt as to what is the meaning of the words used, the 'eourt may and should receive proof of the circumstances out of which the written agreement grew and which surrounded its adoption, for the purpose of ascertaining the subject-matter thereof from the standpoint of the parties in relation thereto.</p> <p>3. Order—Eor Payment op Money—Construction.—An employee of defendant gave an order on it as follows: “Please pay to B. Co. the amount due them for my monthly purchases from money due from” defendant, and said order was accepted by defendant. Held, that the meaning of said order is not so clear that it referred only to the amount of money due at the time as to justify the court in striking out allegations in the complaint tending to show that the order was understood by the parties as a continuing order.</p>

<p>ERROR to the District Court of the Third Judicial District in and for the County of Yuma. Webster Street, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>1. Pleadings—Harmless Error—Levy v. Leatherwood, 5 Ariz. 244, 52 Pao. 359, Cited.—No prejudicial error was committed by tlie court in overruling a demurrer to defendant’s plea in abatement and a motion to strike, where it subsequently overruled the plea and denied the motion.</p> <p>2. Brokers — Commissions — Statute oe Frauds — Contracts. — An agreement by a purchaser to pay an agent the sum claimed to be due from the seller as commission for procuring a purchaser, not being in writing, is void under the statute of frauds.</p> <p>3. Contracts-—-Past Consideration. — Services rendered in the past, without express or implied request of the person benefited by them, will not support a subsequent oral promise to pay for them.</p> <p>4. Brokers—Commission—Contracts—Consideration.—An agreement entered into at the time of purchase after the services were rendered between the purchaser, the seller, and an agent claiming commissions for procuring for the seller a purchaser, that the purchaser and seller would pay. the commissions, is not supported by a valid consideration as against the purchaser.</p> <p>5. Same—Same—Same—Written—Cannot Be Yaried by Parol Testimony—Adams v. O’Connor, 6 Ariz. 404, 59 Pac. 105; Burmister v. Empire Gold etc. Co., ante, p. 158, 71 Pac. 961, Cited.—An agreement providing that defendant should pay plaintiff a certain commission on any sale “made through him, or to pay the same percentage on any sale made through a certain bond or agreement made to Robert Hennigan of this date on certain mining properties in said agreement in Ures District, state of Sonora, Mexico,’’ will not sustain an action for commission on a sale made through plaintiff of mines situated in the district of Arispe.</p>

<p>1. Appeal and Error—Findings—Supported by Evidence—Will not Be Disturbed—Review.—Where there is any evidence fairly tending to support the findings of the trial court as to the facts, such findings will not be disturbed by the appellate court.</p> <p>2. Same—Evidence — Immaterial—Trial without Jury — Harmless Error.—It is not ground for a reversal of a judgment that a trial court, sitting without a jury, admitted evidence which was immaterial, unless it appears that the determination of the court, in some degree at least, was based on such evidence.</p> <p>3. Same — Same — Rebuttal — Matter Covered in Examination in Chief.—Error cannot be predicated upon the refusal of the court to receive testimony offered by plaintiff in rebuttal, where the record shows not only that no ruling was made by the court excluding any answer to any specific question, but that the whole matter was explained by plaintiff in his examination in chief.</p> <p>4. Same—Same—Impeachment—Failure to Lay Foundation.—In an action brought to establish the title of plaintiff to a one-half interest in a certain mining claim, the wife of plaintiff testified to conversations she had heard between plaintiff and defendant. A witness for the defendant testified to a conversation which he had with plaintiff, which tended to show that plaintiff knew witness had a bond and lease on the mining claim in question, whieh he had obtained from the defendant, and that plaintiff made no claim to the property. Plaintiff then offered to prove by his wife that defendant’s witness came to her after he had taken a bond on the claim and wanted to buy it. This was excluded. Held, that such testimony was only competent as tending to impeach defendant’s witness, and, no foundation for such impeachment having been laid, the testimony was properly excluded.</p>

<p>1. Brokers — Option Contract — Expiration — Subsequent Sale.—Where the owner of an interest in a mine agreed to give plaintiff a certain commission for selling same, and a prospective purchaser was secured, who took an option on the interest for a certain period, the owner depositing a deed in escrow, but the owner died before the expiration of the option, and the deed, on the failure of the purchaser to make payment, was returned to his administrator, who subsequently sold the interest to the same purchaser at the same price but on different terms, the administrator was not liable to plaintiff for the commission agreed on in the contract with decedent.</p>

<p>1. Public Lands—Timber—Removal—Mining Purposes—Interior Department — Rules and Regulations — Scope — Act op Congress, June 3, 1878, 20 Stats. 88, 1 Stop. Rev. Stats. U. S. 166, (XT. S. Comp. Stats. 1901, p. 1528,) Construed.—Congress, by act supra, having provided for the taking of timber from public mineral lands for mining purposes, subject to such regulations' as the secretary of the interior may prescribe; held, that the secretary may prescribe rules and regulations concerning the removal of timber, and while his interpretation of the intent of the act is entitled to weight, yet he has no power to enlarge or restrict the purposes for which timber may be used.</p> <p>2. Same—Same—Same—Same—Roasting Ores—Smelting.—The taking of timber from public mineral lands for the purpose of “roasting” ores at the mine, by which “roasting” the ores are not fused, but the volatile substances are driven off in vapor, gases, etc., and the ores more readily and economically smelted thereafter, is a taking for “mining purposes” within the purview of statute, supra.</p>

<p>1. Appeal and Error—Judgment—Default—Rev. Stats. Ariz. 1901, Par. 1473, Construed.—Paragraph 1493, supra, providing that “an appeal or writ of error may be taken to the supreme court from any final judgment of the district court, rendered in civil' cases . . . which the supreme court has jurisdiction to review, ’' does not authorize an appeal or writ of error by a defendant against whom there has been entered a judgment by default.</p> <p>2. Same—Same—Same—Process—Service by Publication—Motion— to Set Aside—-Fob New Trial—Jurisdiction—Bev. Stats. Ariz. 1901, Pars. 1342, 1480, Cited.—Paragraph 1342, supra, provides that "Where any defendant shall appear specially in any court in this territory for the sole and only purpose of objecting to the jurisdiction of the court, whether said objection be sustained or denied, such appearance shall not be held to be a general appearance or to give the court jurisdiction.” Paragraph 1480, supra, provides that "In cases in which judgment has been rendered on service by publication, where the defendant has not appeared in person or by an attorney of his own selection, a new trial may be granted by the court, upon the application of the defendant, for good cause shown, supported by affidavit filed within one year after rendition of such judgment. ’ ’ Where judgment by default has been rendered on service of process by publication, defendants not having appeared, their remedy is to appear .specially under paragraph 1342, supra, or to move for a new trial as provided in paragraph 1480, supra, and not by writ of error, the supreme court having no jurisdiction in such case.</p>

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

<p>1. Judgment—Record—Evidence—Sufficiency—Willard v. Carrigan 8 Ariz. 70, 68 Pac. 538 Cited.—To enable the appellate court to affirm a judgment of the lower court in favor of a plaintiff therein, the record must disclose some positive, affirmative evidence in support thereof.</p> <p>2. Same—Same—Same—Same—Descriptions—Finding.—In an action in ejectment, where the only affirmative evidence in support of plaintiff’s allegation of title was documentary, showing that plaintiff was the owner of a certain strip of land, it is insufficient to support a judgment in his favor, the description of the land in controversy being given in the eomplaint from local objects, and no evidence being introduced showing that the land described in the complaint was the same as that described in the documentary evidence.</p>

<p>1. Trusts — To Defraud Creditors — Evidence — Burden of Proof.— Where a plaintiff seeks to show that property is held in trust in fraud of creditors, the burden is upon him to establish that fact by full, clear, and convincing evidence.</p> <p>2. Same — Option to Purchase — Title — Remains in Vendor until Payment.—Evidence that a purchaser at an execution sale agreed with the judgment debtor that on payment to him of the purchase price, with interest thereon, he would reeonvey the same, and that the judgment debtor paid part of the purchase priee, but failed to pay the balance, does not create any trust in favor of the judgment debtor, but a mere option to purchase, and the title to the property remains in the vendor until the payment of the purchase priee.</p> <p>3. Appeal and Error—Findings—Evidence—Sufficiency—Review.— Sufficient evidence appearing in the record to support the findings of the lower court, they will not be disturbed on appeal.</p> <p>4. Execution — Sale — Purchaser — Acquires Debtor’s Title — No More.—A purchaser under judicial sale acquires just such title as the execution debtor had at the time of such sale, and if the execution debtor was not the owner of the property at the time of the sale, the purchaser acquires no title thereto.</p> <p>5. Equity—Specific Performance—Right to—Dependent upon Performance of all Conditions Precedent.—The right to specific performance is dependent upon full performance by a vendee, or any one in his right, of all conditions precedent required from him.</p> <p>6. Execution—Sale—Sheriff’s Deed—Stands on Same Footing as Would Debtor’s.—Where a judgment debtor could not have executed a deed conveying certain property which he had contracted to purchase, without full payment and full performance of the purchase agreement on his part, the sheriff’s deed to said premises, based upon sale under execution against such debtor, could convey no title thereto.</p>

<p>1. Taxes and Taxation—Illegal Assessment—Appeal—Remedy.— Prior to the revision of 1901 the statutes gave no right of appeal ■ from the board of equalization, nor was any other legal remedy afforded by the statutes for the correction of any illegal or fraudulent assessment of property.</p> <p>2. Same—Valuation—Excess—Equity — Injunction — When Will not Lie.—Mere errors or excess in the valuation, or hardship or injustice of the law, or any grievance which can be remedied by a suit at law, either before or after payment of taxes, will not justify a court of equity to interpose by injunction to stay collection of a tax.</p> <p>3. Pleading—Fraud—Allegation — Sufficiency.—To characterize an act as c ‘ fraudulent ’ ’ does not, in legal effect, charge it as fraudulent, unless some circumstance or fact be charged which shows in what the fraud consists and how it has been effected.</p> <p>4. Taxes and Taxation—Board of Equalization-—Powers—Discretion.—The revenue laws in conferring upon boards of equalization power to equalize assessments, and to add to and increase the same, confer a wide discretion upon said boards, which discretion must however be a sound one, exercised in good faith, and not arbitrarily and capriciously.</p> <p>5. Same—Same—Erroneous Judgment—Equity Will not Believe.— Whenever it appears that an assessor or board of equalization has exercised discretion and judgment in assessing property, no matter how erroneous such judgment may be, a court of equity will not disturb the action of such assessor or board.</p> <p>6. Same—Same—Discretion—Failure to Exercise—Arbitrary Action—Equity Will Grant Belief.—If an excessive valuation of property be made without the exercise of judgment as to the true value of such property, and be made arbitrarily, and for purposes of oppression, such arbitrary action constitutes fraud, against which a court of equity will grant relief.</p> <p>7. Same—Taxing Officers—Fraudulent Intent and Purpose—Not Just Ground of Complaint without Overvaluation.—A fraudulent purpose and intent on the part of the taxing officers is not enough alone to justify the interposition of a court of equity, but there must also be an overvaluation to constitute a just ground of complaint.</p> <p>8. Same—Pleadings—Complaint—Sufficiency—Fraud.—A charge in a complaint that the board of equalization did, without inquiry or evidence, arbitrarily raise the assessment of plaintiff’s property, and that they did this with the design and purpose of forcing plaintiff to pay an unequal and unfair portion of taxes, without the additional charge of excessive, valuation, is an insufficient allegation of legal fraud.</p> <p>9. Same—Action to Bestrain Collection—Pleadings—Complaint— Overvaluation—Allegations—Sufficiency.—In an action to restrain the collection of taxes, there is in effect a charge of overvaluation, where the complaint states that the board of equalization arbitrarily and without inquiry raised the assessments of the improvements on plaintiff’s mines in the amount of sixty thousand dollars in excess of the full cash value thereof.</p> <p>10. Same—Same—Same—Same—Same—Same—Same.—In an action to restrain the collection of taxes, there is not an unequivocal allegation that there was an overvaluation by the board, where the complaint states that the board of equalization, for the purpose of placing an unfair burden on plaintiff, raised the valuation of the .patented mining claims'owned by it, to the exclusion of other like property in the eounty; that the board heard no evidence concerning the cash value of the property, but arbitrarily fixed the value thereof, with the intent to discriminate against it; and that on plaintiff’s information and belief the valuation by the board on the mining claims was, "according to any just method of arriving at the cash value of such property, grossly excessive."</p> <p>11. Same—Same—Same—Same—Same—Same—Same.—In an action to restrain the collection of taxes, there is not an unequivocal allegation that there was an overvaluation by the board, where the complaint states that the board of equalization adopted the general rule of assessing merchandise at seventy-five per cent of the invoice price thereof; that the board was informed that the invoice price of all plaintiff’s merchandise was about two hundred and twenty thousand dollars, and proof of the same was offered; and the board assessed the merchandise in the sum of $293,875.</p> <p>• 12. Same—Same—Overvaluation—Findings—Sufficiency.—In an action to restrain the collection of taxes on the ground of overvaluation, the court’s finding that the board of equalization arbitrarily increased the valuation of plaintiff’s property for the purpose of imposing an unjust burden of taxation is incomplete, in that it fails to find the true cash value of the property and the taxes due thereon.</p> <p>13. Same—Same—Same—Relief.—In redressing a wrongful overvaluation of property for taxation the court should find the true cash value of the property, and enjoin the collection of only so much of the taxes assessed as were based on the valuation in excess of the true cash value, although the assessed valuation of other like property is below the true cash value thereof.</p> <p>14. Findings—Sufficiency—To Sustain Judgment.—The findings of the court must cover sufficient of the issues raised by the pleadings to sustain the judgment.</p>

<p>1. Conveyance — Deed — Yerbal Agreement op Surrender. — Where premises were conveyed in consideration of the execution of certain notes the title to the property vested in the grantees, and a mere subsequent verbal agreement for the surrender of the notes and the deed, not carried into effect by the actual surrender of the deed, does not operate to revest the title in the grantor.</p> <p>2. Action to Quiet Title—Evidence—Mortgage—Foreclosure—Necessary Parties.—In an action to quiet title evidence that plaintiff was the holder of a sheriff’s deed upon foreclosure sale is insufficient to support a judgment in his favor as against defendants in possession and claiming title under a deed executed and recorded prior to the institution of the foreclosure proceedings, where it appears from the record in the foreclosure suit that defendants were not made parties therein. They being indispensable parties, were not bound by the foreclosure.</p>

<p>1. Justice of the Peace—Pees—Criminal Cases—Local and Special Legislation—Constitutional Law—Harrison Act (24 Stats. 170,—Organic Act, Bev. Stats. 1901, Par. 63) Cited—Bev. Stats. 1901, Pen. Code, Sec. 1183, Held Void.—The "Harrison Act,” supra, provides that "The legislatures of the territories of the United States . . . shall not pass local or special laws . . . regulating the jurisdiction and duties of justices of the peace.” Section 1183, supra, reads: "No justice of the peace . . . residing and holding his court at the county seat . . . shall receive or collect from the county any fees or compensation in any criminal case .unless the warrant of arrest was issued in such case by and with the advice of the district attorney.” Held, that when, as in this instance, the object aimed at by the statute is broad enough to cover the class excluded as well as the class included within its operation, mere convenience or expediency is not sufficient to form the basis of classification, and therefore the latter act, supra, is special and local legislation, and void, because in conflict with the provisions of the “Harrison Act,” supra.</p> <p>2. Courts—Judicial Notice—County Seats—Not Necessarily Largest Towns.—The court takes judicial notice of the fact that all the county seats of the territory are not situated in the largest towns and centers of population.</p>

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

<p>1. Appeal and Error—Bond—Time of Filing—Jurisdiction.—Where the record discloses that an appeal-bond was not filed within twenty days after the term at which judgment was rendered, the supreme court has no jurisdiction, and the appeal must be dismissed, even, though the defect was not ealled to the court’s attention until on rehearing.</p>

<p>1. Prohibition—When Issued—Not to Correct Error—To Prevent Usurpation of Jurisdiction—Appeal.—Prohibition will not issue to prevent the enforcement of a judgment of a district court in condemnation proceedings, the right of eminent domain existing, and the court having jurisdiction of the kdt, because of an erroneous ruling upon the sufficiency of the complaint not affecting the question of jurisdiction, as the function of the writ is to prevent a usurpation of jurisdiction, and not to secure the correction of errors, which may be remedied by an appeal.</p> <p>2. Same—Same—Remedy—Ineffectual—Will not Issue.—A writ of prohibition will not issue where it appears that the court has already done the thing sought to be prevented, and the remedy would therefore be ineffectual.</p>

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

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

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

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

<p>1. Criminal Law — Bape — Evidence — Testimony of Prosecutrix— Sufficient to Convict—Curby v. Territory, 4 Ariz. 371, 42 Pag. 953, Followed.—Bape is not one of the offenses which requires corroborative evidence, and a conviction thereof may be had upon the testimony of the victim alone.</p> <p>2. Same — Same — Same — Complaint — Corroboration.-—In a prosecution for rape, it is always competent for the prosecution to show as a part of its case that complaint was made recently after the commission of the outrage, and this fact is treated as a circumstance corroborative of the complainant’s testimony.</p> <p>3. Same—S4.ME—Same—Same—Lapse of Time Between Act and Complaint—Affects Weight but not Admissibility—Surrounding Circumstances—Must Be Considered.—Lapse of time between the commission of the crime of rape and complaint by the prosecutrix affects the weight but not the admissibility of evidence of complaint having been made; and in considering what weight should be given to such testimony, regard should be taken of the surrounding circumstances, such as intimidation by threats, or lack of opportunity.</p> <p>4. Same—Same—Charge to Jury.—In a prosecution for rape the court charged that the prosecution relied upon the testimony of the prosecutrix alone; that the uncorroborated testimony of the prosecutrix, unsustained by other evidence, or by facts and circumstances corroborating it, should be viewed with great caution; that in considering her testimony the jury may take into consideration the facts and circumstances surrounding the place where the alleged offense is charged to have been committed,—all the facts and circumstances at the time and immediately after the alleged offense was committed,—in determining the weight of her testimony and the reasonableness thereof. Seld, that such instruction was neither unfavorable nor prejudicial to the defendant.</p> <p>5. Same—Same—Same—Witnesses—Credibility—Bight of Jury to Disregard Testimony.—In a prosecution for rape it was not error for the court to eharge the jury: “If you believe that any witness has willfully testified falsely as to any material fact in the ease, you are at liberty to disregard the entire testimony of such witness, except in so far as it may be corroborated by the other evidence in the case. ’ ’</p> <p>6. Appeal and Error—Criminal Law—Rape—Conflict in Evidence— Verdict—Will not Be Disturbed—Territory v. Miramontez, 4 Ariz. 179, 36 Pac. 35; Anderson v. Territory, 6 Ariz. 185, 56 Pac. 717; Dickson v. Territory, 6 Ariz. 199, 56 Pac. 971, Followed.—Where there is a substantial conflict in the evidence between the prosecutrix and the defendant and his accomplice in a prosecution for rape, and no attaek was made upon the credibility of prosecutrix aside from those contradictions, and no motive for perjury shown, the verdict will not be disturbed on appeal.</p> <p>7. Criminal Law—Rape—Juror—Prejudice.—Where, after the trial and conviction of defendant for rape, one of the jurors stated in a street conversation that “he liked to sit on such cases as a juryman, and that he liked to send such fellows as that over the road,” and the said juror on his examination on his voir dire had sworn that he knew nothing whatever of the case, and was absolutely without bias or prejudice in the matter, there is nothing to warrant the conclusion that the verdict was influenced by bias or prejudice.</p>

<p>1. Criminal Law — Bape—Principal—Accessory—Indictment—Sotpiciency—Bev. Stats. Ariz. 1901, Penal Code, Secs. 27, 230, 845, Cited.—Section. 230 of the Penal Code, supra, defines rape to be , “an act of sexual intercourse, accomplished with a female, not the wife of the perpetrator, under either of the following circumstances,” among which the first is “where the female is under the age of seventeen years.” Section 27, supra, makes all persons concerned in the commission o'f a crime, whether they direetly commit the act or aid and abet in its commission, principals. Sec tion 845, supra, provides that “The distinction between an accessory before the fact and a principal,’ and principals in the first and second degree is abrogated; . . . and all persons concerned in the commission of a felony . . . shall hereafter be prosecuted, tried and punished as principals, and no other facts need be alleged in an indictment against such accessory than are required in an indictment against his principal.” In a prosecution for rape an indictment charging that defendant made an assault on one S, “and did aid, abet, and assist one W. T. to unlawfully and feloniously ravish and carnally know her, the said S., and to unlawfully and feloniously accomplish an act of sexual intercourse with said S., she not being his wife,” fails to allege that W. T. in fact committed the crime of rape, and therefore charges no substantive offense punishable by the laws of this territory.</p>

<p>1: Water and Water-Bights—Irrigation—Canal—Trespass—Breaking Headgates—Bemedy—Equity—Injunction—Pleading—Complaint—Sufficiency.—In an action by an irrigation company to restrain defendants from entering upon its canal, interfering with the headgates therein, and interfering in the operation and management of its said canal and headgates, a complaint alleging ownership and possession of an irrigating ditch in plaintiff, which was used to convey water to plaintiff's stockholders and water-right holders, who were appropriators thereof, and had contracted with plaintiff for the carriage and delivery of all the water flowing in said canal; that plaintiff owned and maintained headgates for delivery of said water; that none of defendants were stockholders or water-right owners, nor had any contractual relations with plaintiff, nor any right, title, or interest in or to the canal, or waters flowing therein; that defendants had agreed to enter upon the canal and break the headgates, for the purpose of diverting water for their own use; that defendants had actually entered upon the canal, broken the headgates, and threatened to continue so to do; that the threatened acts of defendants would result in irreparable damage to plaintiff, against which it - had no adequate remedy at law, sets forth all necessary facts to entitle plaintiff to the relief prayed.</p> <p>2. Equity—Practice—Pleading—Cross-Bill—Nature—Must Be Germane to Original Bill.—A cross-bill in equity must be germane to the original bill, and must not bring in new issues which would constitute the subject of an independent suit.</p> <p>3. Same—Same—Same—Same—Water and Water-Eights—Irrigation —Action to Restrain Interference in Operation of Canal— Cross-Bill to Determine Priorities—Demurrable.—In an action by an irrigation company brought for the purpose of restraining defendants from breaking the headgates and interfering with the management of plaintiff's canal, a cross-bill setting up that defendants were prior appropriators of water, and owners thereof, and praying that all parties claiming water should be made parties to the suit, with the view to the full adjudication of their respective rights to water, is demurrable as not germane to the original bill.</p> <p>4. Water and Water-Eights — Irrigation — Judgment—Restraining Interference in Operation of Canal—Evidence—Sufficiency— Equity.—Evidence tending to prove that plaintiff owned and had been in undisputed possession and control for many years of a canal; that defendants had no proprietary interest therein, or contract relations with plaintiff, nor authority to enter upon the canal for any purpose; that prior to the commencement of this action the defendants, by mutual agreement, had entered upon said canal, broken various headgates therein, and taken therefrom water to which they claimed they were entitled by reason of former use and appropriation; that a repetition of said acts was threatened, involving injury and vexatious consequences to plaintiff company, which was then engaged in carrying water only for its stockholders and water-right owners is sufficient to sustain a judgment perpetually enjoining defendants from in any wise entering upon the canal of plaintiff or interfering with the headgates, or in any manner obstructing the plaintiff in the free and uninterrupted use and operation of its canal.</p>

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

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

<p>1. Conveyance — Action to Set Aside — Fraud — Pleading—Allegations—Sueeiciency—Mines and Mining.—In an action to set aside a conveyance of plaintiff’s one-third interest in a mining claim, the complaint alleged specific fraudulent acts on the part of plaintiff’s co-owners, and that defendant, the purchaser, was a party to and cognizant of all the fraudulent acts, misrepresentations, and deceit done, said, and practiced upon said plaintiff by his co-owners and parties interested therein, and that by reason of suet fraudulent act plaintiff was induced to make the conveyance. Held, that the complaint stated a cause of .action against the purchaser, and his demurrer thereto was properly overruled.</p> <p>2. Appeal and Error—Assignments op Error—Findings op Fact— Mere Expressions op Court’s Opinion not Reviewable.—-Error predicated upon alleged findings which are mere expressions taken from the trial court’s opinion, and not the findings of faet, which were signed by the judge and became the basis of the judgment, will not be reviewed.</p> <p>3. Partnership — Joint Ventures — Sale op Property — Fraud — Secret Propits—Liability op Partners—Mines and Mining.— Defendants, co-owners of a mining claim, with plaintiff, represented that defendant L. • was to purchase the claims in controversy for eight thousand dollars, and, relying upon representations, plaintiff conveyed his interest to defendant L. for $2,666. As a matter of fact, L. had transferred to defendants, plaintiff’s co-owners, in addition to their proportionate share of the eight thousand dollars, twenty thousand dollars of the capital stoek of a corporation organized to operate the mine. Held, that the relations of 'plaintiff and his co-owners were of such mutual and confidential nature as required of them full disclosure of all the facts pertaining to the consideration for the sale, and that equity requires that plaintiff should receive his proportionate share of the capital stoek issued to his co-owners.</p> <p>4. Same — Same — Same — Same — Same—Liability op Purchaser— Mines and Mining.—Plaintiff was induced by his co-owners to convey his one-third interest in certain mining property, they representing to him that the entire property was to be sold for eight thousand dollars, whereas in faet, by a secret agreement with the purchaser, they were to receive, in addition to their share of the purchase price, twenty thousand dollars in capital stoek of a corporation to be organized to work said property. While defendant purchaser had knowledge of the fraud practiced upon plaintiff by his co-owners in misrepresenting the purchase price, he did not participate in the deception, nor did their concealment enable him to get the property at any better price, or benefit him in any wise. Held, that the relation of defendant purchaser to plaintiff was different from that of the co-owners, and a judgment against him for a proportionate share of the stock issued was unwarranted.</p>

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

<p>1. Negligence—What Constitutes—Essential Ingredient.—An essential ingredient to any conception of negligence is that it involves the violation of some legal duty—a duty to take care of the person or. property of another.</p> <p>2. Same—Reasonable Care.—Where a person, proceeding in a lawful business, exercises reasonable care, the law does not make him an insurer against the consequences of his actions which reasonable care and foresight could not have prevented.</p> <p>3. Same—Electricty—Wiring—Insulation—Must be Sueeicient to Protect prom Current Carried prom Dependant’s Plant—But not to Protect prom Electricity Having Its Origin in the Clouds or Atmosphere.—Where plaintiff’s house was destroyed by fire during a violent electrical storm, and plaintiff brought suit against defendant and electric light company, making the gravamen of his action the negligence of defendant in failing to properly insulate the wire which “it placed through the window casement of plaintiff’s house’’ for the purpose of conveying to lights in said house, the current generated by said defendant, the eourt erred in submitting to the jury any question as to the defendant’s liability for a failure to insulate these wires against electricity having its origin in the clouds or atmosphere.</p>

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

<p>APPEAL from the District Court of the First Judicial District in and for the County of Santa Cruz. George R. Davis, Judge.</p>

<p>APPEAL from the District Court of the Third Judicial District in and for the County of Maricopa. Edward Kent, Judge.</p>

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

<p>1. Public Highways—Private Boads — What Constitutes — Bev. Stats. 1901, Pars. 614, 3956, 3972, 3990, 3998, Cited.—Paragraph 3956, supra, provides that all roads and highways located as public highways by order of the board of supervisors, and all roads in publie use which have been recorded as public highways, shall be public highways, and all roads in publie use not coming within the foregoing provisions are declared vacated. Paragraph 3972, supra, confers authority upon the board of supervisors to lay out publie and private roads in the manner therein prescribed. Held, that publie highways are such only as come within the express provisions of the statute declaring them to be such, while private ways are such as are laid out by authority of law, and roads established without authority for the convenience of individuals are without a legal status either as publie highways or private ways.</p> <p>2. Criminal Haw—Malicious Injury to Private Eoad—Bev. Stats. Ariz., Pen. Code^ Sec. 524, Construed.—Section 524, supra, makes it punishable to maliciously injure any publie highway, or “private way laid oat by authority of law,” but does not make it a criminal offense to commit an injury to a private way not laid out by authority of law.</p> <p>3. Same—Same—Indictment—Sufficiency—Bev. Stats. Ariz., Pen. Code, Sec. 544, Cited—Cist of Offense.—An indictment under section 524, supra, for maliciously injuring a private way laid out by authority of law, is fatally defective, the allegation that defendant did maliciously ‘ ‘ dig up a private way laid out by authority of law” being merely descriptive, and failing to aver facts showing that the way was laid out by authority of law or directly to aver that the way was so laid out by authority of law; the malicious digging up of a private way becoming a criminal offense only when such way is laid out by authority of law.</p>

<p>1. Mandamus to District Attorney — Quo Warranto — Kev. Stats. 1901, Par. 3794, Construed.—While the statute, supra, authorizing quo warranto does not make it mandatory upon a district attorney to institute such action unless he has reason to believe a franchise is being usurped, nevertheless it is his duty, whenever facts are laid before him from which he can reasonably conclude that a franchise is being usurped, to institute such proceedings, and if he fails his action can be reviewed upon an application for mandamus.</p> <p>2. Same—Same—Same—Pleading—Sufficiency of Petition.—A petition for writ of mandamus to compel a district attorney to institute quo warranto proceedings is insufficient where it appears that all that was presented to him was a verified complaint, possibly sufficient as a pleading in quo warranto, which did not contain allegations sufficient to show that the franchise was being usurped. The application for writ of mandamus must show that facts were laid before him from which he could have had reason to believe that such franchise was being usurped.</p>

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

<p>1. Ejectment — Unoccupied Land — Possessory Bight—Bev. Stats. Ariz. 1887, Par. 2222 (Amended by Act No. 79, p. 97, Laws 1893, and Incorporated in Bev. Stats. Ariz. 1901 as Par. 3525), Construed and Held to Apply only to Unoccupied Government Land.—The statute, supra, providing that all persons settling upon public land with the view of acquiring title thereto shall be protected in the peaceable possession to the extent of one hundred and sixty acres, gives to settlers the right to hold solely by possession where the land is unoccupied government land, and has no application to unoccupied land in private ownership.</p> <p>2. Water and Water-Bights — Streams — Surface—Underground— Appropriation — Percolating Waters—Bev. Stats. Ariz. 1887, Par. 3199, Sec. 1, Par. 3201, Sec. 3, and Laws 1893, Act No. 86, p. 135, Cited and Construed.—Under the statutes, supra, relating to the appropriation of water for beneficial purposes, the water of all streams flowing in a well-defined channel, whether on the surface or underground, is subject to appropriation. Percolating waters are the property of the owner of the soil.</p> <p>3. Same — Same — Underground—Evidence—Burden of Proof.—The burden of proving that underground waters flow in a natural channel between well-defined banks rests upon the person asserting it.</p> <p>4. Appeal and Error—Evidence—Weight of Evidence—Will not be Disturbed.—Where the burden of proof to establish a given fact is upon a party, unless the evidence is such as to prove clearly and conclusively the fact for which it was offered, the finding of the trial court against the establishment of such fact will not be disturbed on appeal.</p> <p>5. Interest—Bate on Judgment—Bev. Stats. 1901, Par. 2774, Cited. —The legal rate of interest upon judgments under the statute, supra, is six per cent per annum.</p>

<p>1. Elections—Contest—Evidence—Ballots—Regularly Preserved— Admissibility.—Where ballots are preserved in strict accordance with statutory requirements (Rev. Stats. 1901, chap. 10) they are admissible without further proof, and furnish the primary and controlling evidence of the number of votes east for the respective candidates.</p> <p>2. Same—Same—Evidence—Irregularly Preserved—Admissibility— Burden of Proof as to Identity—Rev. Stats. Ariz. 1901, Pars. 2389, 2395, Directory.—The statute, supra, requiring that the ballots should be strung, placed in a sealed envelope, indorsed by each member of the election board writing his name across the seal, delivered by some member of the board to the clerk of the board of supervisors, and by him to the county treasurer, is not mandatory, but directory. Where ballots have been irregularly preserved, to render them admissible the burden is upon the party offering them to show that they are the identical ballots east. The proof must be clear and satisfactory, but the mere faet that they might have been tampered with will not warrant rejection.</p> <p>3. Same — Same — Same—Preservation—Question of Fact—Appeal and Error—Review.—The question of the preservation of ballots in their integrity is one of fact to be determined by the trial judge, and a finding thereon will not be disturbed unless not supported by the evidence.</p> <p>4. Same — Appeal and Error — Bill of Exceptions — Record. — An assignment of error that the trial court erred in refusing to strike out ballots as evidence on the ground that they did not purport to be official ballots cannot be considered where the ballots are expressly excluded from the bill of exceptions and the record does not disclose whether the ballots were or were not official.</p>

<p>1. Elections — Change op Polling-Place — Bev. Stats. Abiz. 1901, Pass. 2305, 2306, Held Mandatory.—Paragraph 2305, supra, provides that the hoard of supervisors must at least fifteen days prior to an election designate the place within each precinct where it shall he held. Paragraph 2306, supra, provides that if it cannot he held at the place designated, the justice of the peace or the election hoard must two days before the election designate the place hy written notice. These provisions are mandatory. The action of an election hoard in holding an election at a ranch house instead of at the schoolhouse designated hy the. supervisors, without any attempt to comply with the requirements of the law relative to a change of the polling-place, and without any necessity or sufficient reason appearing to justify it, renders the election held there invalid, and the votes east in that preeinet cannot he counted.</p>

<p>1. Bonds—Evidence.—In an action against the principal and co-obligors on the bond of a United States marshal, the trial court properly refused to receive as proof of the liability of the sureties the pleadings, record, and judgment in an action in the court of claims, wherein the United States had secured judgment against the marshal, there being nothing contained therein tending to show that the items for which the judgment had been rendered against the marshal were for items chargeable against him during the life of the bond.</p> <p>2. Same — Pleading — Evidence. — Where the complaint against the sureties on a United States marshal's bond alleged that the United States obtained judgment against the marshal for a certain amount advanced by the government to him during the life of the bond, and that this had not been paid, and prayed judgment for this amount, the plaintiff was limited in the proof properly adducible by it as against the defendants to such proof as would establish a judgment as pleaded in the complaint, and no evidence of liability under the bond independent of the judgment was admissible.</p>

<p>1. Embezzlement—Indictment—Sufficiency—Agent of Corporation —Trust Belation—Eev. Stats. Ariz. 1901, Pen. Code, Sec. 458, Cited.—Section 458, supra, provides that any officer, sérvant, or agent of a corporation who fraudulently appropriates to any use or purpose not in the execution of his trust any property in his possession or under his control by virtue of his trust shall be guilty of embezzlement. An indictment under said section, which charges that defendant, while aeting as manager of the P. corporation, was intrusted by the S. corporation with a cheek, the proceeds of which he embezzled, but which, while averring the cheek was intrusted to him by virtue of his employment, does not allege what, if any, interest the P. corporation had in it, or that he received it for or on account of the P. corporation, but expressly avers that it was the property of the S. corporation, and that it was received by him in the name and on account of the S. corporation, is subject to demurrer, in not being direct and certain in setting out the trust relation under which the property was misappropriated.</p>

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

<p>1. Criminal Law — Obtaining Money by False Pretenses — What Constitutes.—Where an interpreter knowing of a custom of a county board of supervisors to pay fees for acting as interpreter in criminal cases before justices of the peaee, knowingly and designedly obtained from the county compensation by means of false pretenses that he had rendered such service, he is guilty of obtaining money under false pretenses, and absence of statutory authority for the payment of such compensation constitutes no defense.</p>

<p>1. Revenue Laws—Merchandise Defined—Placer Gold—Rev. Stats. U. S., Sec. 2766 (U. S. Comp. Stats. 1901, p. 1861), Construed.— The definition of the word “merchandise” given in the statute, supra,—‘ ‘ The word merchandise, as used in. this title, may include goods, wares, and chattels of every description capable of being imported,”—is sufficiently broad to include placer gold.</p> <p>2. Same—Forfeiture of Goods—Petition—Sufficiency—Rev. Stats. U. S., Sec. 2851 et seq. (U. S. Comp. Stats. 1901, p. 1901), and 1 Supp. Rev. Stats. TJ. S., p. 745 et seq., Cited.—Under the statutes, supra, providing that all merchandise imported into the country must be invoiced, which invoice shall be produced to the consul, and requiring that a declaration shall be filed with the collector of the port at the time of entry, an information for the forfeiture of goods imported into the country without authority of law, alleging that goods were imported without being invoiced or entered with any collector of customs, and without declaration to the proper revenue officer, and that some person fraudulently brought into the country from a foreign country goods which should have been invoiced, declared, and entered according to the law, with intent to defraud the government, is sufficient.</p> <p>3. Same—Non-Dutiable Goods—Must be Invoiced—Rev. Stats. U. S., Par. 2851, Construed.—The statute, supra, providing a fee of two dollars and fifty cents “for every verification of an invoice and certificate before a consul or commercial agent,” applies to non-dutiable as well as to dutiable goods.</p> <p>4. Same—Importation of Non-Dutiable Goods Without Invoicing and Payment of Fees—Fraudulent—Rev. Stats. U. S., Sec. 2851 (U. S. Comp. Stats. 1901, p. 1901), Cited.—Under the statute, supra, providing that consuls shall be entitled to a fee of two dollars and fifty cents for every verification of an invoice and certificate, the fee belongs to the United States, and the importation of non-dutiable goods without being invoiced or entered, and without declaration being made, is an act injurious to the government and fraudulent.</p> <p>5. Same—Same—Liability—Forfeiture—Fraudulent Intent—Immaterial—Act Congress June 22, 1874, e. 391, Par. 16, 18 Stats. 189, and Act Congress June 10, 1890, c. 407, Sec. 29, 26 Stats. 141 (U. S. Comp. Stats. 1901, p. 1897), Construed.—The act of June 10, 1890, supra, having repealed the act of June 22, 1874, supra, which provided that in all actions to declare the forfeiture of merchandise by reason of a violation of the revenue laws, the court should submit the question whether the acts were done with intent to defraud the government, to the jury the intent of the person violating the revenue laws is immaterial.</p>

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

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

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

<p>1. Judgment—Action to Set Aside—Sickness of Attorney—Showing—Sufficiency.—In an action to set aside a judgment of foreclosure complainants alleged that they were non-residents of Arizona, that they relied exclusively upon their attorney for information as to. what .occurred in the local courts, and that they were ignorant of the entry of the said judgment until two years thereafter; that their attorney at the date of the entry of judgment was sick and not in a condition of mind and body to properly attend to their business, and did not know of the entry of judgment; that shortly after the entry thereof he died. The name of the attorney appeared both in the answer and the agreed statement of facts, and the transcript of the minute entries shows his presence in court in their behalf on the day when the case was submitted, and also on the day when the judgment was rendered. There was no evidence to sustain the allegations respecting the attorney’s incapacity, his ignorance of the fact of judgment, ot concerning the time of his death. Held, that no sufficient showing was made to entitle complainants to have the judgment set aside.</p> <p>2. Same—Same—Equity—When Will Interfere.—Courts of equity will not interfere to grant relief against a judgment unless it appears that the party complaining could not avail himself of his defense in the action, or that he was prevented from doing so by fraud, accident, or mistake, without fault or negligence on his part.</p> <p>3. Appeal and Error—Assignments of Error—Must Relate Solely to the Case Appealed..—On appeal in an action to set aside a judgment assignments of error alleged to have been committed in the trial of the action sought to be set aside cannot be considered.</p>

<p>APPEAL from a judgment of the District Court of the Fourth Judicial District. R. E. Sloan, Judge.</p> <p>On Rehearing.</p>

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

<p>1. Public Lands — Townsites — Trustee—Occupants—Claimants— Town Lots—Purchase Price—Bev. Stats. IT. S., Sec. 2387 (U. S. Comp. Stats. 1901, p. 1457), Cited—Bev. Stats. Ariz. 1901, Pars. 4075, 4076, 4077, 4079, 4080, 4085, 4093, 4094, Construed.—Section 2387, supra, provides that the judge of the county court may enter at the proper land-office land occupied as a townsite of an unincorporated town, in trust for the “oecupants” thereof, leaving the execution of the trust to such regulation as may be prescribed by the legislature of the state or territory. Paragraphs 4075, 4076, 4077, 4079, 4080, 4085, 4093, and 4094, which provide the method of executing the trust, and require the payment by the “claimant” to the trustee of the purchase price of five dollars per lot before he is entitled to a deed, do not distinguish between “occupants” and “claimants.” Payment by both actual oecupants and those who merely claim the right to possession is requisite under the statute. An oeeupant, to be entitled to his deed, must be a claimant, file his statement, and pay to the trustee the purchase price.</p>

<p>1. Water and Water-Rights—Corporations—Canal Company—Articles—Purpose—Public Agency.—Where a corporation was organized “to carry on . . . the business of supplying a portion” of a valley “with water for irrigation . . . and to this end and for this purpose to purchase, construct, build or dig such canals, ditches or flumes as may be necessary to convey water ... to such point or points as may be necessary," its articles do not express that its purpose was to serve its shareholders as a carrier of water and not the publie generally. A purpose to become a public agency might reasonably be inferred from the language used.</p> <p>2. Same—Canal—Carrier—Public Agency.—A corporation was organized in 1875 to carry on and conduct the business of supplying a portion of Salt River Valley with water for irrigation purposes. From the date of its organization until 1880 it supplied any and all landowners under the flow of its canal who applied for such service, indiscriminately. The incorporators of the company, as well as later stockholders, regarded the ownership of a share of stock as carrying with it the right to have delivered, upon any lands the owner might designate from year to year, water sufficient to irrigate one hundred and sixty acres of land. After 1880 and until 1885 the company distinguished between its shareholders and other consumers of water in fixing its rates of toll for service. Subsequent to 1885 the company furnished water to its shareholders and to the lessees of shares of stock, whether appropriates or not, upon any land or lands which such shareholders or lessees might designate, and declined to furnish water to persons not shareholders or the lessees of so-called water-right deeds. Held, that the corporation from the time of its organization has been a public agency as a carrier of water.</p> <p>3. Same—Water—Public—Flowing in Canal of Carrier—Subject to Appropriation.—Water diverted and carried in the canal of a corporation acting as a publie agency as a carrier of water is publie property until actually used by appropriators, and is subject to appropriation to the same extent and in the same manner as when it flowed in the channel of the river.</p> <p>4. Same—Appropriation—What Constitutes—Ownership op Means op Diversion—Unnecessary.—Under the Arizona statutes, an appropriator of water for irrigation is one who makes an application of publie water on land he owns or possesses. To perfect such an appropriation two things are essential—the ownership or possession of land, and the application thereon of publie water to a beneficial use. No statute, either territorial or congressional, makes the ownership of the means of diversion essential to perfect the right of appropriation.</p> <p>5. Same—Canal Company—Not Owner or Possessor op Land—Not Appropriator.—A canal company organized for the purpose of the diversion and carriage of water for irrigation, and not being the owner, of arable and irrigable land, is not an appropriator of water even though it does divert and carry water.</p> <p>6. Same—Appropriators—Who Are—Priority.—Where a company not the owner of arable and irrigable land was organized for the purpose of the diversion and carriage of water for irrigation, all persons owning lands under the flow of its canal, which have been irrigated by means of water furnished by such canal, become appropriators and possessed of rights of appropriation in the order of their priority.</p> <p>7. Same—Appropriation—Abandonment—What Constitutes.—Abandonment of the right to water gained by appropriation is a matter of intent as such intent may be evidenced by the declaration of the party or as may be fairly inferred from his acts.</p> <p>8. Same—Same—How Lost.—The right of appropriation may be lost by abandonment, or it .may be lost to another by adverse user on the part of the other, continued for the period of the statute of limitations, and in no other way.</p> <p>9. Same—Same—Abandonment—Discontinuance of Use of Certain Ditch—Does not Necessarily Constitute.—The discontinuance of the use of a ditch rendered useless as a carrier of water by reason of increased diversions from the stream does not constitute an abandonment of the right of appropriation by an appropriator of water for purposes of irrigation, where it appears that he thereafter continued the use of water by means of another ditch.</p> <p>10. Same—Corporations—Canal Company—Contract for Service of Water.—Where a canal company, organized to divert and carry water as a carrier of public water for irrigation, required a user of water, at the beginning of each irrigating season, and as a condition upon which he could receive water, to sign a contract stipulating, in effect, that his use of water from the company’s canal for such season should give him no right or claim to the use of water for the future, and that he waived thereby any and all right which he might have by virtue of any statute, custom, or law, to the use of water from the canal after the expiration of the period of time limited by the contract,—such contract is of no effect in lessening the liability of the canal company or the rights of the user as an appropriator of water.</p> <p>11. Same—Water-Eights—Corporations — Canal Company — Quasi-Public Servant — Duty — Service.—A canal company diverting water from a stream for the purpose of supplying owners and possessors of arable and irrigable land is a quasi-publie servant; and to the extent that it has diverted and carried water from a stream, and to the extent to which the water has been applied by appropriators for the necessary irrigation of their lands, may not arbitrarily discontinue its service in whole or in part, but must continue this service so long as it is required by said appropriators and the water is available from the common source.</p> <p>12. Same—Canal Companies—Contracts to Furnish Water.—If applications for water be made during any season to a canal company acting as a carrier in excess of the capacity of the canal the company has the right and it is its duty to limit the eontraets for the season to its capacity and to those appropriators possessing the older rights of appropriation.</p>

<p>1. Water and Water-Eights — Appropriation—Abandonment—New Appropriation.—Where an appropriator of water was the owner of land and of a share of stock in a canal company representing a water-right privilege therein, and thereafter sold the land and stock to one S., and later repurchased the land without the stock, and after such repurchase obtained water from the canal company by renting other water-rights or shares of stock representing them, by such sale and repurchase he abandoned his first appropriation and his subsequent irrigation of the same land by means of water obtained from the company’s canal then and thereby initiated a new right of appropriation.</p>

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

<p>APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Cochise. George R. Davis, Judge.</p> <p>On rehearing. For former opinion, see ante, p. 221.</p>

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

<p>1. Sale—Contract—Powers—Interpretation—Not Coupled with an Interest—Revocable at Will.—Where the owner of certain mining claims, for a consideration of one dollar, and money and labor theretofore expended, and of labor thereafter to be expended on said claims, sold them to plaintiff on condition that he should pay, whenever he could sell the mines, forty-five thousand dollars, and in addition thereto one eighth of whatever was received in excess thereof, the agreement also providing that the parties were to aid each other in the negotiation and sale, and the owner agreeing to execute any deeds necessary to convey a good title to any purchaser, the agreement conveyed no title to or estate in the mines to plaintiff, but was merely a power of attorney to sell, not coupled with an interest and revocable at the will of the owner.</p> <p>2. Same—Same—Construction.—The intention of the parties to a contract must govern, as the intention is evidenced by a consideration of the entire instrument. Particular words may not be isolatedly considered, but the whole contract must be brought into view and interpreted with reference to the nature of the obligations between the parties, and the intention which they have manifested in forming them.</p> <p>3. Powers—When Irrevocable—Trickey v. Crowe, ante, p. 176, 71 Pac. 965, Followed.—The interest which will render a power of attorney irrevocable must be in the subject of the power, and not pertain to the power itself.</p>