Volume 8 — Idaho Reports

' APPEAL from District Court, Bannock County. The complaint shows upon its face that both causes of action are and were barred by the statute of limitations, and had so been barred for over a year prior to the filing of the complaint. (Idaho Rev. Stats., secs. 4053, 4060.) The statute of limitation runs as well against a municipal corporation as against an individual. (In re Opening of Beck Street, 19 Mise. Rep. 571, 44 N. Y. Supp. 1087; In re Opening of Fox Street, 19 Mise.

<p>APPEAL from District Court, Bingham County.</p> <p>The Utah statutes, like ours, requires that summons shall state the sum or amount for which judgment will be taken upon a money demand in case default is made, but the summons in this case fails to specify such amount, but only that “judgment will be entered according to the prayer of the complaint.” To establish that this is a fatal jurisdictional defect scarcely requires citation of authority. But see Idaho Bev. Stats., see. 4140, subd. 4; Dyas v. Keaton, 3 Mont. 498; Ward v. Ward, 59 Cal. 139; Atchinson etc. F. B. Go. v. Nicholls, 8 Colo. 189, 6 Pac. 512. The affidavit for attachment does not purport to be made on behalf of or by the plaintiff. It is false, in that it asserts that the demand has accrued, whereas the verified complaint states and shows that it had not then accrued. It is further false in that it avers the defendant to have been a nonresident, whereas the verified complaint and the proof show that defendant is a Utah corporation. It is further false in that the debt was not then due. If an affidavit for attachment is false, the court acquires no jurisdiction to issue the writ. (Murphy v. Montandon, 3 Idaho, 325, 35 Am. St. Rep. 279, 29 Pac. 851; Vollmer v. Spencer, 5 Idaho, 557, 51 Pac, 609.) The judgment is not signed by the judge; purports to be by default, and is for more than the amount specified in the summons. It is not, therefore, supported by the prior proceedings, and must fall. (State v. Woodlief, 2 Cal. 242.) It is conceded on behalf of the intervener that these judgments, like any others, may be attacked for jurisdictional defects; these are the very grounds upon which we attack them, and yet counsel retort that the matters therein referred to have been adjudicated, and cannot therefore be inquired into jurisdiction or no jurisdiction. We attack the jurisdiction first, and then, believing that it has been overturned by the record herein made, show by the testimony that there was nothing due to either MeCorniek & Co. or to its assignee, the intervener herein, for which to foreclose and acquire title to the stock in question. (See the recent case of Eureka Merc. Co. v. California Ins. Co., 130 Cal. 153, 62 Pae. 393; Freeman on Judgments, 3d ed., secs. 561, 563, 565, 566; 12 Eney. PI. & Pr. 216 et seq. See, also, Leland v. Isenbeck, 1 Idaho, 469; Strode v. Strode, 6 Idaho, 67, 96 Am. St. Rep. 249, 52 Pac. 161.) Additional authorities to effect that a judgment in a foreign jurisdiction is not conclusive: Beach on Receivers, par. 450; Bust v. Waterworks Co., 70 Fed. 420; Smith on Receivers, par. 237; High on Receivers, sec. 47a; also see. 349; Reynolds v. Stockton, 140 U. S. 254, 11 Sup. Ct. Rep. 773, 35 L. ed. 466; Pendleton v. Bussell, 144 U. S. 640, 12 Sup. Ct. Rep. 743, 36 L. ed. 574.</p> <p>The appellant was appointed receiver of this corporation by a court of this state. He had no extraterritorial jurisdiction. ITe was appointed receiver by a court of this state simply to collect and preserve the property of the corporation within its jurisdiction, and to distribute it as the court might direct. By his appointment the corporation was not dissolved, and a party outside the state where he was appointed was not bound to make him a party defendant to a suit instituted to recover judgment against the corporation. This is elementary. (Thum v. Pingree, 21 Utah, 348, 61 Pac. 18.) There being no receiver appointed in the state of Utah, our contention is that any property which may be found within the state of Utah is subject to attachment, levy and sale, the title to which passes to the purchaser as against a receiver in a foreign jurisdiction. It is perfectly clear under the authorities that insolvent laws have no force outside of the state in which the receiver is appointed. Property attached in any other state before reduced to possession by a receiver or trustee will be held by such prior levy. This includes the capital stock of a corporation, on debts and dioses in action. (Moran v. Strug es, 154 U. S. 256, 14 Sup. Ct. Eep. 1019; Reynolds v. Adden, 136 U. S. 348, 10 Sup. Ct. Eep. 843; Rhown v. Pearce, 110 111. 350, 51 Am. Eep. 691; Story on Conflict of Laws, 414; High on Eeeeivers, secs. 47, 239, 244 (a).) It is well settled that the judgment of a court having general jurisdiction of the subject matter involved in the judgment cannot be successfully attacked in a collateral proceeding, because of an imperfect or defective complaint in the action in which it was rendered. If the facts stated in the complaint are hot sufficient to entitle the plaintiff to the relief demanded therein and awarded by the judgment, the action of the court in deciding otherwise and rendering its judgment in accordance with the prayer of the complaint can be nothing more than an error. (In re James, 99 Cal. 374, 37 Am. St. 60, 33 Pae. 1122; Rowe v. Palmer, 29 Kan. 337; Frankfurth v. Anderson, 61 Wis. 107, 20 N. W. 662; Matthews v. Dens-more, 109 U. S. 216,'3 Sup. Ct. Eep. 126; Vanfleet’s Collateral Attack, see. 61.) The next objection is to the jurisdiction of the court. The statutes of Utah, at the time the summons in question was served, contained the requirement that in an action arising on a contract for the recovery of money or damages only, the summons shall contain a notice that unless the defendant so appears and answers the plaintiff will take judgment for the sum demanded in the complaint, stating it. The summons served by the plaintiff upon the defendant, C. Bunting & Co., Bankers, in the suit now under consideration, instead of naming the amount, contained this clause: “And you will please take notice that unless you do so appear and answer said complaint within said time, that judgment will be entered against you according to the prayer of the complaint, a copy of which is herewith served upon you.” Was the variance fatal, and did it deprive the court of jurisdiction? The supreme court of Utah has passed upon this very question, holding that the variance is immaterial and does not deprive the court of jurisdiction. (Miller v. Zeigler, 3 Utah, 17, 5 Pae. 518; Keybers v. McComber, 67 Cal. 395, 7 Pac. 838; Holland v. Adair, 55 Mo. 49; Highley v. Pollock, 21 Nev. 198, 27 Pac. 895; Behlow v. Shorb, 91 Cal. 141, 27 Pac. 546; Clark v. ■Palmer, 90 Cal. 504, 27 Pac. 375; McCoun v. New York C. By. Co., 50 N. T. 176; Brown v. Baton, 37 How. Pr. 385; Schuttler v. King, 12 Mont. 149, 30 Pae. 25; Burkhardt v. Haycox, 19 Colo. 339, 35 Pae. 730.) When the court has jurisdiction of the subject matter of the suit, and by personal service of the summons has jurisdiction of the person of the defendant, the entry of judgment by default upon a summons which is merely irregular in not fully stating the cause of action, but which is regular in other respects, is voidable but not void. (People v. Dodge, 104 Cal. 487, 38 Pae. 203; Dore v. Dougherty, 72 Cal. 232, 1 Am. St. Bep. 48, 13 Pae. 621; Wood-bury v. Maguire, 42 Iowa, 339; Dougherty v. McManus, 36 Iowa, 657; Gray v. Wolf, 77 Iowa, 630, 42 N. W. 504; Dun-ham v. Wilfong, 69 Mo. 355; Semple v. Glenn, 91 Ala. 245, 24 Am. St. Bep. 894, 6 South. 46, 9 South. 265; Hull v. Webb, 78 111. App. 617.) Also devoid of merit is the next objection, that the judgment rendered is not signed. (13 Am. & Eng. Ency. of Law, 2d ed., 1047; 1 Black on Judgments, secs. 261, 267, 270.) The rights of a purchaser at an execution sale cannot be affected by defects or informalities in the return. (Clark v. Lockwood, 21 Cal. 220; Brook v. Booney, 11 6a. 423, 56 Am. Dec. 430; Holman v. Gill, 107 111. 467; Mills v. Lom-' lard, 32 Minn. 259. See, also, cases cited in 21 Am. Dig. 1875.) That a valid service of summons^was made npon the defendant company by service upon Flowers, its secretary and director, wall he apparent from an examination of the following eases: Garaghan v. Exporters' etc. Oil Go., 57 Hun, 588, 11 N. Y. Supp. 172; Parker v. Bethel Hotel Go., 96 Tenn. 252, 34 S. W. 209, 31 L. R. A. 706; City of Fort Scott v. Schulenberg, 22 Kan. 452; Persons v. Buffalo City Mills, 51 N. Y. Supp. 645, 29 App. Div. 45; Friendenberg v. Lee Construction Go., 27 Mise. Rep. 651, 58 N. Y. Supp. 391; Wamsley v. Horton & Go., 23 N. Y. Supp. 85, 68 Hun, 549; Warner v. Callender, 20 Ohio St. 190; Richmond etc. Ry. Go. v. New York etc. Ry. Go., 95 Ya. 386, 28 S. E. 573; Evans v. Eillingworth Mfg. Go., 20 Conn. 447; Ry Go. v. Brown, 17 Wall. 445; Lewis v. Glenn, 84 Ya. 941, 6 S. E. 866.</p>

<p>Appeal — Undertaking—Sufficiency.—Where two appeals are taken and only one undertaking given, without reciting to which appeal it applies, the same is void for uncertainty,</p>

<p>APPEAL from District Court, Cassia County.</p>

<p>APPEAL from District Court, Idaho County.</p> <p>The depositions taken at the preliminary examination and the certificate of the magistrate made at the time do not comply with sections 7571 and 7576 of the Revised Statutes in this: The deposition of T. W. Nickel does not state the “business or profession” of the witness and does not state “his place of residence.” The depositions do not state the ground on which “a question put to the witness was overruled.” (State v. Braithwaite, 3 Idaho, 119, 27 Pac. 731; State v. Farris, 5 Idaho, 666, 51 Pac. 772; State v. Ciarle, 4 Idaho, 7, 35 Pac.. 711.) The acts of a justice of the peace performed while out of his precinct are void; and this is true whether they are judicial in their character, quasi judicial or merely ministerial. (Wilcox v. Johnson, 34 Kan. 655, 9 Pac. 612; Phillips v. Thrall, 26 Kan. 780; 12 Am. & Eng. Ency. of Law, 404, and note 5 thereto.) The complaint before the magistrate did not charge the crime of murder and therefore did not give the magistrate jurisdiction to hold a preliminary examination, and conferred no jurisdiction on the prosecutor to file an information. (Rev. Stats., sees. 7516, 7571; Miller v. United States, 8 Okla. 315, 57 Pac. 836.) To allow a witness to illustrate to the jury evidence he obtained from an inspection of the body of the deceased in the absence of the defendant is to allow the witness to place his own construction upon the evidence and demonstrate to the jury 'his individual theory of the ease. (People v. Bush, 68 Cal. 623, 10 Pac. 169, and ease there cited.) The court erred in overruling defendant’s objection to the following questions propounded by the state to the witness Herbert Leach and in permitting the witness to answer each: “What cabin?” “What did he do?” “Describe how he tore it down.” “Who drove it after it was hooked on to the cabin?” “Did he do anything else with any other property around there?” This class of evidence tended to prejudice the jury against the defendant, was not a part of the res gestae, tended to establish the commission of another and separate offense, viz., arson. That the offense here proven was participated in by the witness and was directed against the property of a person other than the deceased. (Underhill on Criminal Evidence, secs. 86, 87; People v. Jones, 31 Cal. 571; 1 Greenleaf on Evidence, secs. 51, 52; Boseoe’s Criminal Evidence, 7th ed., 80, and note; People v. Baird, 104 Cal. 462, 38 Pac. 310; State v. Raynolds, 5 Kan. App. 515, 47 Pac. 574.)</p> <p>This court has held that technicalities or defects in the preliminary examination of the defendant will not render it invalid unless they actually prejudice the defendant or tend to his prejudice in respect to some substantial right. (State v. Clark, 4 Idaho, 7, 35 Pac. 710; People v. Sehorn, 116 Cal. 503, 48 Pac. 495; People v. Rodrigo, 69 Cal. 601, 11 Pac. 481.) There is no question but that the magistrate had a perfect right by leave of the court to amend his certificate so as to make it state the actual facts in regard to the taking of the depositions and to put it in such a form as the statute required. (State v. Geary, 58 Kan. 502, 49 Pac. 596; People v. Lane, 101 Cal. 513, 36 Pac. 16; Ex parte Keil, 85 Cal. 310, 24 Pae. 742.) “The limit of the county is the limit of jurisdiction in matters of preliminary examinations.” (State v. Griffin, 4 Idaho, 462, 40 Pac. 58.) It will hardly be contended that should the county attorney by inadvertence or mistake omit from the information when it was filed the name of a witness then known to him, the name can never thereafter be properly indorsed upon the information and that the state would be deprived of tbe testimony he would give had his name been so indorsed. But in such case the court unquestionably has the power in the exercise of a proper discretion, to permit such name to be indorsed and the witness to testify. (State v. Calder, 23 Mont. 504, 59 Pac. 903; State v. Sclmepel, 23 Mont. 523, 59 Pae. 927; People v. Jocelyn, 29 Cal. 564.) It is often permissible upon the trial of a defendant to show the commission by him of another and separate crime where such crime has been committed in point of time close to the one for which he is being tried and tends to throw some light upon the offense for which he is being tried. (People v. Walters, 98 Cal. 138, 32 Pac. $64; People v. Cunningham, 66 Cal. 668, 4 Pae. 1144, 6 Pac. 700, 846; People v. McGilver, 67 Cal. 55, 7 Pac. 49.)</p>

The assignment of the cost-bill by the respondents to their attorney Goode was without prejudice to any setoff or other defense belonging to the appellant and existing at the time of, or before notice of, the assignment. (Idaho Bev. Stats., sec. 4091; Haskins v. Jordan, 123 Cal. 157, 55 Pac. 786; Porter & Allen v. 'Liscom, 22 Cal. 431, 83 Am.

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

<p>Sufficiency of Evidence to Support Verdict and Judgment. — In an action for personal damages, where the evidence wholly fails to support the verdict of a jury and judgment of the court entered thereon, it must be reversed. •</p> <p>Damages .— Responsibility of Employer — Fellow-servant.—Where the evidence shows that the acts complained of, resulting in the injury, were attributable to a fellow-servant, the employer cannot be held to respond in damages for such injury.</p> <p>(Syllabus by the court.)</p>

<p>APPEAL from District Court, Bannock County.</p> <p>Notice of intention to move for a new trial was filed and served March 20, 1901. Time within which to prepare and serve statement on motion for new trial was extended by stipulation until April 16, 1901. Statement was served on attorney for respondent, April 6, 1901. There is nothing in the transcript to show that any amendments were ever proposed to said statement except the inference that might be drawn from .the statement of the court and affidavits. But admitting for the sake of argument that amendments were proposed and served, service was actually made on the 19th, as of the sixteenth day of April, 1901. The affidavit of W. T. Reeves shows that the amendments were agreed to, in which ease, under subdivision 3 of section 4441 of the Revised Statutes of Idaho, he was not compelled to file them within any given time, and he had a right to take his time in filing the statement. The transcript itself shows that respondent was responsible for the delay, in that he did not file his objection before the day the statement was to be settled, and there is nothing to show the objections were served upon counsel for appellant. If counsel’s contention in this case be sustained, one could agree to the amendments, and thus throw counsel for appellant off his guard, and thereby cause him to let the ten days expire, and then come forward, as counsel did in this case, and file objections to its settlement on the day set for that purpose. (Stonesifer v. Kilburn, 94 Cal. 33, 29 Pac. 332.) The judge, as shown by his order, considered the showing sufficient and settled the statement, which was a matter within his sound discretion, and his ruling in that regard will not be disturbed in this court, unless it clearly appears that the judge was guilty of gross abuse of discretion, which certainly does not appear in this case. (Bamba, v. Siller, 121 Cal. 414, 53 Pac. 935; Wheeler v. Karnes, 125 Cal. 51, 57 Pae. 893.) In case of doubt the court should solve the doubt in favor of appellant, so that the full merits of the litigation may be presented. (Buell v. Kmerich, 85 Cal. 116, 24 Pae. 644; Wolff v. Canadian Pao. By. Co., 89 Cal. 322, 26 Pac. 332; Grady v. Donahoo, 108 Cal. 211, 41 Pac. 41; PLarbaugh v. Honey Lake Val. etc. Co., 109 Cal. 70, 41 Pac. 792.)</p> <p>It has been universally held in California, where the opposing party has been served with a proposed statement, to which amendments have been proposed and served, that unless the ■ proposed statement and amendments are presented to the judge or the clerk for the judge, within the time allowed by law (ten days) for settlement, the omission is fatal to the settlement of such statement, or to a motion for a new trial, and such statement should be disregarded on appeal. (Henry v. Merguire, 106 Cal. 142, 39 Pae. 599-601; Wills v. Bhen Kong, 70 Cal. 548, 11 Pac. 780; Bunnell v. Stockton, 83 Cal. 319, 23 Pae. 301.) “If the statute absolutely fixes the time within which an act must be done, it is peremptory. The act cannot be one at any other time, unless during the existence of such prescribed time it has been extended by an order of court, made for that purpose, under authority of law.” This language was used in the ease of Tegambo v. Mining Co., 57 ■ Cal. 503, in relation to the time in which a bill of exceptions might be taken under the statute, and is therefore applicable here. To hold that a statement may be settled when no steps were taken until after the expiration of the ten days, the time for doing so not having been extended, and respondent objecting thereto, would be judicial abrogation of the statutes.” {Henry v. Merguire, 106 Cal. 143, 39 Pac. 600, 601; Connor v. Southern Cal. Mortar Co., 101 Cal. 439, 35 Pac. 990; Lyndon v. Piper, 5 Idaho, 541, 51 Pac. 101; Steffy v. Elser, 6 Idaho, 338, 55 Pac. 339; Withers v. Kemper, 35 Mont. 433, 65 Pac. 433; Wheeler v. Karnes, 135 Cal. 51, 57 Pac. 893; Rev. Stats., sec. 4818.)</p>

APPEAL fróm District Court, Kootenai County. Foreign corporations complying with the provisions of section 2653 of the Bevised Statutes of Idaho have all the rights end privileges of like domestic corporations, and are subject to the laws of this state applicable to like domestic corporations. (Idaho Bev. Stats., sec. 2653; Easley v. New Zealand, Ins.

<p>Same brief and authorities as preceding ease.</p> <p>Same brief and authorities as preceding ease.</p>

The statutes of Idaho provide that no estate or interest in real estate except for leases for one year or less can be created, granted, assigned, surrendered or declared, except by an instrument in writing. (Idaho Stats., sec. 6007.) In this state by statute the equity rule prevails that part performance of an oral contract, for the sale of real estate, removes the bar.

<p>Verdict — Substantial Conflict in Evidence. — When there is a substantial conflict in the evidence, the appellate court will not disturb the verdict of the jury.</p> <p>Mining District Recorder. — Under the provisions of section 3103 of the Revised Statutes, a county recorder may appoint a deputy recorder at any place in his county where he may deem it necessary, and at all places ten miles distant from an existing office, when ten or more mining locators interested petition for the appointment of a deputy, and upon the failure of the recorder to appoint a deputy within ten days after receiving such petition, the resident miners of such district may appoint, temporarily, a recorder of such district.</p> <p>District Recorder — Appointment oe Deputy. — A district recorder appointed by the resident miners has no authority to appoint a deputy, and the person so appointed has no authority to administer oaths.</p> <p>Affidavit to Location Notice. — An affidavit to a mining location notice must be sworn to before an officer authorized by law to administer oaths.</p> <p>De Facto Officer. — There can be no officer de facto where there is no office.</p> <p>State and Federal Statutes.' — The provisions of section 3104 of the Revised Statutes, and amendments thereto, requiring an affidavit to be attached to a mining claim location notice, is not in contravention of the provisions of section 2322 of the Revised Statutes of the United States.</p> <p>(Syllabus by the court.)</p>

“A question which suggests to the witness the answer which the examining party desires is denominated a leading or suggestive question.” (Idaho Rev. Stats., see. 6077.) The denial of each allegation controverted must be specific.

We urge that Mr. Halveston’s testimony was proper, and the objections thereto were not well taken. Plaintiffs deposition shows that he regarded Pierce as his agent in this whole matter; he states in answer to the second interrogatory of his deposition that he received the note and mortgage in question from Pierce and gave him as consideration therefor the sum of $1500.

<p>Criminal Law — Application for New Trial — Time of Making the Same. — An application for a new trial, in a criminal action, ¡must be made within ten days after verdict, or within such time as the trail court, or judge thereof, may within such ten days grant, and an application made thereafter must be denied.</p> <p>Same — Jurisdiction—Appeal.—District courts have no jurisdiction to grant an application for a new trial made four years after verdict in a criminal action, and an appeal from an order denying such application will be dismissed on the ground of want of jurisdiction in the appellate court to reverse such order.</p> <p>(Syllabus by the court.)</p>

This action is brought in the name of Boise'City, as plaintiff.

<p>Employment of Physician by County — Individual Members of Boaed not Authoeized. — An individual member of the board of county commissioners cannot employ a physician to care for smallpox patients at expense of the county.</p> <p>(Syllabus by the court.)</p>

<p>APPEAL from District Court, Nez Perces County.</p> <p>There can be no rescission of a contract of sale for a breach of a warranty when there is no fraud. '(Pierce v. Wilson, 34 Ala. 596; Foster v. Gressett, 29 Ala. 393; Bien v. Bea/r River etc. Water Min. Go., 20 Cal. 602, 81 Am. Dec. 132; Soper v. Sevens, 14 Me. 133; Fairis■ v. Ware, 60 Me. 482; Perkins v. Bailey, 89 Mass. 61, 96 Am. Dec. 689; Hoopes v. Strasburger, 37 Md. 390, 11 Am. Eep. 538; Poor v. Woodburn, 25 Yt. 234; Mauchan v. Boys, 52 N. H. 232; Kinney v. Kierman, 2 Lans. 492; Haitze v. Collins, 46 Pa. St. 268; Short v. Stevenson, 63 Pa. St. 95; Downer v. Smith, 32 Yt. 1, 76 Am. Dec. 148; Gates v. Bliss, 43 Yt. 299; 1 Wheaton on Contracts, sec. 282; Milli-Icen v. Shillings, 89 Me. 180, 36 Atl. 17; Rogers v. Hanson, 35 Iowa, 283; Wright v. Howell, 35 Iowa, 288; McCormick Harvesting Machine Co. v. Cochran, 64 Mich. 636, 31 N. W. 561.) When a seller fails to remedy defects in a contract requiring it, the contract of sale for the breach of the warranty may be rescinded. (Seiberling v. Brauer, 24 Neb. 510, 39 N. W. 591; McCormick Mach. Co. v. Knoll, 57 Neb. 790, 78 N. W. 394; 'Aultman-Taylor Co. v. Fraizer, 5 Kan. App. 202, 47 Pac. 156; Pitts Sons Mfg. Co. v. Spitznogle, 54 Iowa, 36, 6 N. W. 71.) To be able to claim the contract remedy, Mr. Murphy must perform the precedent conditions and give notice of defects. (Seiberling & Go. v. Rodman, 14 Ind. App. 460, 43 N. E. 38; Spring-field Engine Co. v. Kennedy, 7 Ind. App. 502, 34 N. E. 856.) If one party to a contract refuses to be bound the other can take advantage of the refusal and rescind the contract. (Allen v. Webb, 24 N. H. 278; Drake v. Goree, 22 Ala. 409; Graves v. White, 87 N. Y. 463; Lewis v. White, 16 Ohio St., 444; Preble v. Bottom, 27 Yt. 249; Allen v. Webb, 24 N. H. 278; Webb v. Stone, 24 N. H. 282.) The purchaser has a right to try and test machinery where it is provided that notice of defects must be given. (Seiberling & Co. v. Rodman, 14 Ind. App. 460, 43 N. E. 38; Springfield Engine Co. v. Kennedy, 7 Ind. App. 502, 34 N. E. 856; Malsby v. Young, 104 Ga. 205, 30 S. E. 854.)</p> <p>A court of equity will not interfere “to decree the cancellation of a written instrument unless some special circumstance is shown to exist establishing the necessity of a resort to equity to prevent irreparable injury.” (Ada County v. Bullen Bridge Co., 5 Idaho, 79, 47 Pac. 818, 36 L. E. A. 367.) There is an inadequate remedy at law for all the ills that appellant is “heir to” by virtue of an alleged wrong of the company. Therefore, equity will not interfere. (Ada County v. Gess, 4 Idaho, 611, 43 Pae. 71; Morgan v. Kootenai County, 4 Idaho,. 418, 39 Pae. 1118; Rogers v. Hays, 3 Idaho, 597, 82 Pae. 259; Pomeroy’s Equity Jurisprudence, sec. 914; Story’s Equity, sec. 700a; Lewis v. Tobias, 10 Cal. 573, 18 Ency. of PI. & Pr., pp. 805m, 806, cases 807, note 2; Smith v. Sparrow, 13 Cal. 596; Idaho Rev. Stats., see. 4928.) Appellant made no offer to surrender the property, no attempt so to do, and never expressed a desire so to do, until after the foreclosure proceedings had been instituted. This is too late. There is no charge that the foreclosure proceedings were fraudulently instituted. The six day period of possession had passed. (Cowen v. Harrington, 5 Idaho, 329, 48 Pae. 1059; 18 Ency. of PL & Pr., pp. 835-837.) Thera is no showing that Russell & Co. are insolvent, nor that the company is threatening to dispose of the notes, nor that appellant has no adequate legal remedy. This is fatal. (18 Ency. of Pl. & Pr., p. 67; Story’s Equity, sec. 700a; Kahn v, Walton, 46 Ohio St. 195, 20 N. E- 203; Springport v. Bank, 75 N. Y. 399; Salmon v. Hoffman, 2 Cal. 138, 56 Am. Dec. 322.) There is no fraud alleged in the sale. (18 Ency. of Pl. & Pr., pp. 813, 814.) There is no allegation that within six days’ possession any notice whatever was given of any defects. That time is limited by the contract. Failure to give notice within that time made the retention of the property “conclusive evidence of the warranty being fulfilled, to the full satisfaction of- the undersigned — appellant—who agrees thereafter to make no further claim on Russell & Co., under warranty.” (Humphries v. Carvalho, 16 East, 45; Blphriclc v~ Barnes, 49 L. J. C. P. 698, 5 C. P. Davison, 321; Wayers Heater Co. v. Mansfield., 48 Vt. 378; Butler ¶. School District, 149 Pa. St. 351, 24 Atl. 308; Spickier v. Marsh, 36 Md. 222; Delamaier v. Chappel, 48 Md. 244; Prairie Farmer Co. v. Taylor, 69 111. 440, 18 Am. Rep. 621; Aultman v. Theirer, 34 Iowa, 272; Lynch v. Williford, 57 Minn. 377,, 59 N. W. 311 (where the purchaser did an act which disabled him from performance); Benjamin on Sales, sec. 595.) “The special remedy usually allowed in such contracts is tire privilege of returning the article, if it proves not to be as warranted, and receiving back the price paid. A failure to exercise the privilege within the time limited .... operates as a waiver of the special remedy, and limits the vendee to his ordinary remedy at law, etc.” (Birdsall v. Carter, 11 Neb. 143, 7 N. W. 751; Harrisburg Car Mfg. Co. v. Sloan, 120 Ind. 156, 21 N. E. 1088; Brown v. Bussell, 105 Ind. 46, 4 N. E. 428.) Phelps & Bigelow Windmill Co. v. Piercy, 41 Kan. 763, 21 Pac. 793, holds: “If a certain time is fixed by the contract within which it may be rescinded, failure to rescind within that time waives the right.” (Huerculese etc. v. Dodsworth, 57 Fed. 566; Stultz v. Coal Co., 131 Pa. St. 131, 18 Atl. 267; Wendall v. Osborne, 63 Iowa, 99, 18 N. W. 709, 710.) The original complaint was purely equitable; the amended complaint seeks to add thereto damages for breach of the very contract which appellant says does not exist. He elected to rescind. (Baumgartner v. Volmer, 5 Idaho, 340, 49 Pae. 729; 21 Ency. of PL & Pr., subject “Theory of Case,” p. 649; 18 Ency. of Pl. & Pr., p. 791, note 2; Alvarez v. Brannan, 7 Cal. 504, 68 Am. Dec. 274; Loaiza v. Superior Court, 85 Cal. 30, 20 Am. St. Rep. 197, 24 Pac. 707; Groppengiesser v. Lake, 103 Cal. 43, 36 Pae. 1036; Adams v. Beed, 11 Utah, 480, 40 Pac. 720; Pomeroy’s Rights and Remedies, secs. 568-573, inclusive — especially section 573, relating to election, where express contract is involved.)</p>

This action being one in wjiich an answer was filed, would require the court to determine upon and to render a judgment upon all the issues within the pleadings. (Idaho Bev.

The issue has nothing to do with the prayer for relief; it is made by the affirmance and denial of some fact or facts, or by the denial of some legal proposition which is implied in the statement of facts.

An indictment should be direct and certain as to the offense •charged and the particular circumstances when they are neces.sary to constitute a complete defense. (People v. Saviers, 14 Cal. 29.) The indictment should set forth the facts and circumstances of the alleged offense, so that the accused may be prepared for his defense. (People v. Hood, 6 Cal. 236; People -v. Wallace, 9 Cal. 30.) Defendant’s motion for bill of particulars should have been allowed.

<p>Mandamus. — Not tbe proper remedy when, it appears that the purpose is to acquire a right to occupy or use the property of another,</p> <p>(Syllabus by the court.)</p>

<p>Habeas Corpus — Criminar Law — -Demurrer—New Information.— Application for a writ of habeas corpus will be denied where it appears from tbe petition therefor that the defendant is confined in the penitentiary under a judgment of conviction upon a new information filed by the prosecuting attorney, under an order of ■court sustaining a demurrer to the former information and granting leave to file a new information, as such order is, in effect, a ■compliance with the provisions of sections 7745, 7746, 7747 of the ‘Devised Statutes.</p> <p>(Syllabus by the court.)</p>

<p>APPEAL from District Court, Nez Perces County.</p> <p>The appellant contends that the evidence is insufficient to warrant a conviction. That the proof showed nothing but a bare possession of recently stolen property which was explained by defendant, and there was no contradiction except the prosecuting witness. The cases relied on by appellant are: State v. Seymour, 7 Idaho, 257, 61 Pac. 1033; State v. Marquardsen, t Idaho, 352, 62 Pac. 1034.)</p> <p>Appellant relies upon the eases of State v. Marquardsen, and State v. Seymour. In the Marquardsen case it is true the defendant, as in this ease, explained his possession by stating that he had purchased the stock in question. But his statement in this regard was strongly corroborated by the testimony of the witness McCullough, and in turn McCullough’s testimony was ■corroborated by that of another witness. We do not believe that this court would be warranted in extending the doctrine in the cases above cited so as to cover the case at bar; if so, then all any man who is arrested and put on trial for stealing livestock, unless he is actually caught in the act of taking the property, will have to do is to go on the stand and swear that h.e purchased the stock, which he is accused of stealing, from ■some unknown stranger passing through the country, and be set at liberty. In other words, if he is willing to add perjury to his crime of theft, he can go unpunished. We think the safer rule is found in the opinions of this court in the cases of State v. Haverly, 4 Idaho, 484, 42 Pae. 506; Gox v. Northwestern Stage Go., 1 Idaho, 383; Simpson v. Remington, 6 Idaho, 681, 59 Pae. 360; Chamberlain v. Woodin, 2 Idaho, 642, 23 Pae. 177; Bonner v. Powell, 7 Idaho, 104, 61 Pae. 138; Murphy v. Montandon, 4 Idaho, 320, 39 Pae. 195; United States v. Gamp, 2 Idaho, 231, 10 Pae. 226; Monarch G. & 8. M. Go. v. McLaughlin, 1 Idaho, 618; Mootry v. Hawley, 1 Idaho, 543. These cases are in line with the great weight of authority. (People v. Lewis, 124 Cal. 551, 57 Pae. 470; People v. Un Long, 106 Cal. 83, 39 Pae. 12; People v. Ross, 115 Cal. 233, 46 Pae. 1059; People v. Wong Chong Buey, 110 Cal. 117, 42 Pae. 420; Smith v. Thomas, 121 Cal. 533, 54 Pac. 71; Frankfort v. Goleman, 19 Ind. App. 368, 65 Am. St. Eep. 412, 49 N. E. 474; Singleton v. Hill, 91 Wis. 51> 51 Am. St. Eep. 868, 64 N. W. 588; Beardsley v. Morrison, 18 Utah, 478, 56 Pae. 303, 72 Am. St. Eep. 795, and note; Edwards v. Reid, 39 Neb.. 645, 42 Am. St. Eep. 607, 58 N. W. 202; Savannah Railway Go. v. Flannagan, 82 6a. 579, 9 S. E. 471, 14 Am. St. Eep. 183, note p. 188.)</p>

<p>MOTION to place cause on calendar.</p>

“Battery” is an offense against the laws of the state of Idaho, and is defined at section 6729 of the Revised Statutes. Charters of municipal corporations are special grants of power from the sovereign authority, and must be strictly construed. Whatever power is not expressly given, or as the necessary means to the execution of expressly given powers, is withheld. (Douglas v. Mayor of Placerville, 18 Cal. 644; Beatty v. Knowles, 4 Pet. 168; Pennsylvania Ry.

We claim, as our second ground of error relied upon, error in refusing a new trial upon the ground of insufficiency of evidence. As our first point made in this contention, we urge that the injury sustained by tbe plaintiff, Johanna Hoehnan, was not due to the negligence of defendants’ servants, but was due and brought about by the negligence and carelessness of plaintiff herself.

<p>Usury — Corrupt Intent. — Where a note provides for interest' at ten per cent per annum, both before and after judgment, and it does not appear that there was a corrupt intent on the part of the lender to receive an unlawful rate of interest, it is not an usurious contract.</p> <p>Chattel Mortgage — Mortgage Lien — Fixtures.—Where machinery is- purchased for use in a permanent building under a contract that the machinery shall remain the property of the seller, or where, after such machinery is placed in such building a chattel mortgage is given by the purchaser to the seller upon such machinery, a real estate mortgage of prior date to the purchaser of such machinery is not a lien upon such machinery, and the mortgagor has a right of action to foreclose his chattel mortgage.</p> <p>(Syllabus by the court.)</p>

The sufficiency of the affirmative defenses was passed upon hy this court in case of Warren v. Stoddart, 6 Idaho, 692, 59 Pac. 543. There is no conflict in the evidence relating to those defenses. The deed which was the sole consideration for the note is in evidence, together with the records of the corporate board of grantor, and from these it appears that the deed was not authorized by resolution of the board.

<p>Contract — Specific Performance — Railway Company — Building Switch. — Where a contract under which a railway company enters and obtains a right of way provides that it shall place its fences at the edge of the pit ground, on both sides of its track, and that it shall construct a switch or sidetrack on the land granted for the right of way, specific performance will be decreed, and cannot be defeated on the ground that it is impracticable to compel specific performance.</p> <p>Contract — Implied Promise — Acceptance — Estoppel. — Where a party to contract accepts it, acts under it, and obtains all of the benefits that were intended to be granted by it, he is estopped from objecting to the same on the ground that he did not sign it, as the law implies a promise on his part to perform the conditions of such contract from his act of accepting it.</p> <p>Implication from Promise to do a Thins. — Where a party agrees to do a certain thing, and does' not specify how it shall be done, the law implies a promise on his part to do it in the usual manner, and that it shall be complete and effectual for the use to which the same kind of thing is generally applied.</p> <p>Alteration of Contract — Effect on Innocent Party. — The alteration of a contract by adding words thereto without the knowledge or consent of the obligor, after its delivery, while ground for rescission at the option of the obligor, does not affect its rights, and he may have the contract enforced as originally made by him.</p> <p>(Syllabus by the court.)</p>

<p>Constitution ai. Law. — By constitution, section 2, article 7, which, %-fter authorizing the legislature to provide revenue for state purposes by the levy of taxes, also provides that the legislature may impose a license tax upon persons and upon corporations doing business in the state, the license tax so imposed is not restricted to the single purpose of raising revenue for state purposes.</p> <p>Same — License Taxes — Poweb to Levy. — By constitution, article 7, section 6, providing that the legislature shall not levy taxes upon the inhabitants or property in any county, city, town or municipal corporation for county, town or municipal purposes, but it may, by law, vest in the corporate authorities thereof, respectively, power to assess and collect taxes for such purposes, applies only to taxation proper and not to license taxes.</p> <p>Life Insurance Companies — License.—A license authorizing a life insurance company to transact business in this state does not authorize it to engage in the business of loaning money.</p> <p>(Syllabus by the court.)</p>

<p>APPEAL from District Court, Lemhi County.</p> <p>The right to enter upon and locate the unoccupied mineral lands of the United States, and maintain the possession thereof, is confined to those who are citizens or have declared their intention of becoming citizens. (U. S. Bev. Stats., sec. 2319; Anthony v. Jillson, 83 Cal. 296, 23 Pae. 419; Lee Loon v. Tesh, 68 Cal. 43, 6 Pac. 97, 8 Pae. 621; Bohanon v. Howe, 2 Idaho, 453, 17 Pac. 582; Rosenthal v. Ives, 2 Idaho, 265, 12 Pac. 904; Rogers v. Shannon, 52 Cal. 99; Collins v. Townsend, 58 Cal. 608; Estate of Doris, 93 Cal. 611, 29 Pac. 244; Smith v. McDonald, 42 Cal. 487; Pioche v. Paul, 22 Cal. 106; Vassault v„ Austin, 36 Cal. 691.)</p> <p>Appellant claims that the complaint should allege: 1. That plaintiff is a citizen of the United States; 2. That the court should have so found, basing this claim upon the decisions of the supreme court of the state of Idaho in Rosenthal v. Ives, 2 Idaho, 265, 12 Pae. 904, and Bohanon v. Howe, 2 Idaho, 453, 17 Pac. 582. In Harris v. Kellogg, 117 Cal. 484, 49 Pac. 708, it is held that the rule stated in Rosenthal v. Ives and Bohanon v. Howe applies only to cases brought under said section 2326, and that there is no reason why the rule should be applied to other causes, citing Bohanon v. Howe, with disapproval.</p>

<p>APPEAL from the District Court, Canyon County.</p> <p>The court erred in sustaining the defendant Dunbar’s motions to quash and set aside the summons, and strike the complaint from the files, upon the grounds that said summons was issued, and said complaint was filed on Sunday. There is no statute prohibiting any ministerial act on Sunday in Idaho. {In re Worthington, 7 Biss. (U. S.) 457, Fed. Cas. No. 18,051; 20 Ency. of PI. & Pr. 1197; Kiger v. Coats (1862), 18 Ind. 153, 81 Am. Dec. 351; Hadley v. Musselman (1885), 104 Ind. 459, 3 N. E. 122; Reid v. State (1875), 53 Ala. 402, 25 Am. Rep. 627; Hanover Fire Ins. Co. v. Shrader & Rogers, 89 Tex. 35, reported in 30 L. R. A. 499, 59 Am. St. Rep. 25, 32 S. W. 872, 33 S. W. 112; State v Cal. Min. Co. (1878), 13 Nev. 215; Kelley v. Van'Austin, 17 Cal. 565.) Was the summons void because tested on Sunday; and, if so, did the defendant, William C. Dunbar, appear generally when he moved to quash and set aside the summons and strike the complaint from the file? (Whitney v. Blaclcburn, 17 Or. 564, 11 Am. St. Rep. 857, 21 Pac. 874.) The issuance of a summons does not come within the prohibitions of section 3866 of the Revised Statutes of Idaho. It is only judicial business that cannot be transacted on Sunday or other holiday. The issuance of a summons in this state is purely a ministerial act. (20 Ency. •of PI. & Pr. 1105; Evans v. Etheridge (1887), 96 N. C. 42, 1 S. E. 633; Glendenning v. McNutt, 1 Idaho, 592; Clough v. Shepherd, 31 N. H. 495; Glenn v. Eddy, 51 N. J. L. 255, 14 N. J. Eq. 339; Dupuy v. Shear, 29 Cal. 240.)</p>

<p>APPEAL' from District Court, Boise County.</p> <p>“The judgment is against law, because it is against the admissions of the pleadings.” (Traverso v. Tate, 82 Cal. 170, 22 Pac. 1082; White v. Douglas, 71 Cal. 115, 11 Pae. 860.) The following authorities will be found to support the , principle that findings contrary to or outside of the admitted facts in the pleadings cannot stand and that it is error to so find: Reinhart v. Lugo, 75 Cal. 639, 18- Pac. 112; Gregory v. Nelson, 41 Cal. 278; Bilvy v. Neary, 59 Cal. 97; Tracy v. Craig, 55 Cal. 91; Bradbury v. Cronise, 46 Cal. 287; McDonald v. Association, 51 Cal. 210; 8 Ency. of PI. & Pr. 945.</p> <p>The plaintiffs and their predecessors in interest have used the waters of Elk creek claimed by them adversely to the defendants and their grantors, for ten years under the finding of the court; and the defendants and their grantors recognize the right. It has been held in California, under the statute identical with our statute, that an adverse possession and user of water for five yeais continuously and uninterruptedly, with the knowledge of and to the injury of the true owner, will bar his right thereto. (Union Water Go. v. Crary, 25 Cal. 509, 85 Am. Dec. 145; Davis v. Gale, 32 Cal. 35, 91 Am. Dec. 554; Evans v. Boss (Cal.), 8 Pac. 88; Gox v. Clough, 70 Cal. 345, 11 Pac. 732; Gallaher v. Montecito Valley Water Co., 101 Cal. 242, 35 Pac. 770; Works on Irrigation, 49.)</p>

The only question involved in this case is whether or not the cattle were delivered to the appellant at the time they were purchased or bargained for. If they were, the judgment of the lower court should be sustained; if not, it should be reversed. Delivery is used in many different senses, and the result is a confusion as to the various terms applied to it.

The theory of the judge of the court below, in arriving at a conclusion in this case, seems to have been that a water right attaches to a particular piece of land upon which such water was used, and that the Ethell brothers having actually used most of their water upon lands now owned by plaintiff Wilson, that such lands must have the benefit of the appropriation. This theory, we urge, cannot fee maintained, and is neither founded upon law or upon reason.

It is only where the insufficiency of the location certificate in its failure to mention natural objects or permanent landmarks is apparent upon its face that the court may reject it. (Dillon v. Bayliss, 11 Mont. 171, 27 Pac. 725; Darger v. Le Sieur, 8 Utah, 160, 30 Pac. 363; Hammer v. Garfield M. & M. Go., 130 U. S. 291, 9 Sup. Ct. Bep. 548, 32 L. ed., 964; Bus-sell v. Chumasero, 4 Mont. 309, 1 Pac. 713; Clearwater Short Line By.

<p>Constitutional Law — Each Act but One Subject. — Under the provisions of section 16, article 3 of the constitution of Idaho, each act must embrace but one subject and matters properly connected therewith.</p> <p>Same — Two Diverse Subjects in Title oe Act. — Under said provision of the constitution if the title of an act indicates, and the act itself actually embraces, two or more subjects, diverse in their nature and having no necessary connection, such act is 'Unconstitutional and void.</p> <p>Same — Generality oe Title. — The generality of a title to a bill is no objection to it so long as it is not made a cover to legislation incongruous in itself, and by no fair intendment can be considered as having a necessary or proper connection with it.</p> <p>Provisions That may be United. — If the provisions of an act all relate directly or indirectly to the same subject, have a natural connection therewith, and are not foreign to the subject expressed in the title, they may be united in one act.</p> <p>Conflict Must be Palpable. — The objection should be grave, and the conflict between the constitution and statute palpable before the judiciary should hold a legislative enactment uncon-, stitutional upon the sole ground that it embraces more than one subject.</p> <p>Numerous Provisions of Same Act. — However numerous the provisions of an act may be, if they can be, by fair intendment, considered as falling within the subject matter legislated upon In such act or necessary as ends and means to the attainment of such subject, the act will not be in conflict with said constitutional provision.</p> <p>Entire Statutory Law Upon One General Subject. — Said constitutional provision was not intended to prevent the incorporation into a single act of the entire statutory law upon one general subject.</p> <p>Constitutional Law — Title and Subject. — The following title held to contain but one general subject, and also held that the act treats of but one general subject. Said title is as follows: “To amend sections 2, 11, 22 and 26 of an act entitled ‘An act to provide for the organization and government of irrigation districts, and to provide for the acquisition of water and other property, and for the distribution of water thereby for irrigation purposes, and for other and similar purposes,’ approved March 6, 1899; and to amend section 9 of chapter 1, and section 16 of chapter 2 of an act entitled ‘An act to provide for a state engineer, defining his duties, and regulating his compensation, and to provide for the acceptance by the state of Idaho from the United States of certain lands; and to provide for the reclamation, occupation and disposal of the same,’ approved March 2, 1899, and to provide for the acquisition of right of way for the construction of canals or reservoirs or other irrigation works over or upon the lands of the state of Idaho.”</p> <p>Same — Provisions Germane. — Held, that said act has but one general subject, object or purpose, and that is the reclamation 'and irrigation of desert or arid lands in the state, and that all of the provisions of said act are germane to that general subject and have a necessary connection therewith.</p> <p>Two Acts may be Amended by One Bill. — If two separate bills are passed by the legislature on the same general subject, and with differently worded titles, said acts may be amended by one bill, with a proper title.</p> <p>Assessments According to Benefits. — Due Process of Law.— While the original district irrigation law provides for an assessment, by acreage, and fails to provide a means by which the benefits received may be adjudicated, the amendatory act fully provides the method and means by which such benefits may be adjudicated, and is not in conflict with the provisions of the Fourteenth amendment to the constitution of the United States, which prohibits the taking of private property without due process of law under the guise of taxation or otherwise.</p> <p>(Syllabus by the court.)</p>

A private individual, in a purely collateral manner, seeks to have the court pass upon the question as to whether a municipal corporation was legally constituted — a question that lies between the corporators and the state. The state may raise the question by quo warranto, or other direct proceeding, but it is no concern of private individuals. .

<p>APPEAL from District Court, Shoshone County.</p> <p>If the order determined all the questions in issue, and did not adjourn the matter for further consideration, it is a final decree. (Richmond v. Atwood, 52 Fed. 10, 17 L. R. A. 615.) When a bill seeks no other relief, an order vacating an injunction is appealable; and where the order operates to dismiss the bill it is a final disposition of the case. (Helm v. Gilroy, 20 Or. 517, 26 Pac. 851; Pentecost v. Magahee, 5 111. 326.)</p> <p>“Where the time has passed wherein a receivership or an injunction would be of avail, the court will not award it.” (Chicago Horseshoe Co. v. Lewis, 156 Ind. 232, 59 N. E. 466; State v. Board of Gornmrs., 153 Ind. 302, 54 N. E. 809; In re Manning, 139 N. Y. 446, 34 N. E. 931.) Appeal from an order denying an injunction pendente lite will be dismissed, when the issuance of such injunction would be a vain and frivolous act. (Poster v. Smith, 115 Cal. 611, 47 Pae. 591; Herring v. Pugh, 125 N. C. 437, 34 S. E. 538; State v. Otero, 52 La. Ann. 1, 26 South. 812.)</p>

Not only the appellant, but the whole community of Idaho county were wronged by the sheriff serving the venire in this case on Sunday — the common law forbids it; the statute forbids it. (Rev. Stats., secs. 12, 3866; State v. Ricketts, 74 N. 0. 193; 24 Am. & Eng. Ency. of Law, 574 et seq.; Lempe v. Manning, 38 Wis. 673; Gladwin v. Lewis, 6 Conn. 49, 16 Am.

cites no authorities upon the point decided by the court. We contend that Mrs. McDonald cannot maintain this action because her complaint shows that she was not a sole trader. (Idaho Eev. Stats., see. 5858.)

cite no authorities upon point decided. Section 4807, paragraph 3 of the Revised Statutes of the state of Idaho enumerates the orders from which an appeal may be taken to the supreme court; all other orders can be reviewed only on an appeal from a final judgment, and after an exception was taken. This court has passed upon the question which is presented by this motion for dismissal.

The covenant to repair is a general covenant, and as binding on the respondents on the facts shown, because under that covenant they must rebuild if the loss by fire was caused by human agency, either on the part of themselves or servants or of a stranger. (Polack v. Pioche, 35 Cal. 416, 95 Am. Dec. 115, and note; citations under 2 Notes on Cal.

<p>APPEAL from District Court, Nez Perces County.</p> <p>To constitute an obligation enforceable in law, the rights and liabilities given and imposed must be definite and certain. (Clark on Contracts, 10; Lawson on Contracts, sec. 10.) Because the act of the legislature under which the undertaking was given, viz., the act entitled, “An act to provide a form for undertakings in civil and criminal actions,” approved February 14, 1899 (Laws 1899, p. 235), is invalid and unconstitutional, in that said act seeks to revise and amend various sections of the Eevised Statutes, but does not set forth or publish at full length, or at all, the sections thereby sought to be revised or amended. (Idaho Const., art. 3, sec. 18; Black on Interpretation of Laws, p. 361, sec. 134; Cooley’s Constitutional Limitations, 180, 181; Sutherland on Statutory Construction, secs. 131, 132.) The act is further invalid in that all of the subject thereof is not expressed in the title. (Idaho Const., art. 3, sec. 16.) Appellants plead that after the appeal reached the district court the issues were changed, and respondent’s claim enlarged without the knowledge or consent of appellants; that respondent substituted a new complaint in which another and new cause of action was added and stated upon a promissory note for $125, which was not embraced in the original complaint, and which formed no part of the issues in the probate court. This is a good defense, and has almost invariably been upheld by the highest courts of this country. (Brandt on Suretyship and Guaranty, sec. 397; ■Sage v. Strong, 40 Wis. 575; Willis v. Crocker, 1 Pick. (Mass.) 204; Langley v. Adams, 40 Me. 125; Irwin v. Sanders, 5 Yerg. (Tenn.) 287; Bean v. Parker, 17 Mass. 591.) Any material change in the issues on appeal without their consent discharges the sureties. (Post v. Shafer, 63 Mich. 85, 29 N. W. 519; Taylor v. Dansby, 42 Mich. 82, 3 N. W. 267; Shriner v. Highihue, 7 Blackf. (Ind.) 238; Curry v. Barclay, 3 Ala. 484; Hub-bell v. Bissell, 2 Allen (Mass.), 196; Hill v. Hunnewell, 1 Pick. (Mass.) 192.)</p> <p>There is no defense stating that the judgment appealed from to the district court was not stayed. The sureties gave the bond on the condition that the judgment be stayed, which was done, and therefore, after having enjoyed the fruits of the contract they cannot be heard now to complain that their own contract is void for uncertainty. Section 798 of the Code of Civil Procedure of California is identical with section 4842 of the Revised Statutes of Idaho, and was construed fully in the case of Pieper v. Peers, 98 Cal. 42, 32 Pac. 700; Babbitt v. Finn, 101 IJ. S. 715, 25 L. ed. 820; Corden v. Third Nat. Bank, 56 Fed. 792-796; 1 Ency. of PL & Pr. 1019, citing cases. Appellants insist that the act of the .legislature, as expressed in Session Laws of 1899, page 235, is void, because of defective title, and of not setting out the statute which it purports to amend or revise. This contention is untenable on either ground. First, the requisite as to the title of an act as found in the constitution of Idaho, article 3, section 16, is plainly intended to prevent fraud, or interpolation of subjects foreign to, and not consonant or consistent with, the matter provided and specified in the title of an act into the act itself. (See the late ease of Ek v. St. Paul Permanent Loan Co., 84 Minn. 245, 87 N. W. 844.)</p>

cite no authorities upon the points decided. Motion to dismiss. In an action brought under the provisions of sections 1776, 1777, 1778 and 1779 of the Revised Statutes, as amended by the act of February 14, 1899, the law does not permit a party against whom judgment is entered in the district court to move for a new trial; he must seek his remedy by appeal.

<p>Eight op Way pob Ditch — Settles on Public Land. — Where a citizen settles upon a part of the unsurveyed public land of the United States, and has peaceable possession thereof, and constructs a ditch across the same, he secures the right of way therefor, although such land, when surveyed, is found to be within the grant to the Northern Pacific Eailroad Company.</p> <p>Title to Eight op Way. — The purchaser of land from a railway company does not thereby acquire title to a ditch which was constructed prior to the survey of such land.</p> <p>(Syllabus by the court.)</p>

The rules of pleading, as we understand them, will not permit a party to shift his position, and.by amendment allege a different cause of action, particularly after argument on demurrer to the original pleading. (2 Black on Judgments, 632; Ogden v. Moore, 95 Mich. 290, 54 N. W. 899; Freeman v. Michigan State Bank, Harr. (Mich.) 311; Metropolitan Nat. Bank v. St. Louis ■ Dispatch Go., 38 Fed. 57; Winter v. Quarrels, 43 Ala. 692.) Admission of original pleadings in evidence.

The evidence does not show any transfer to the respondent. It shows that the respondent paid the note. The respondent was not a party to the note and not liable therefor contractually. (Wilson v. Wilson, 6 Idaho, 597, 57 Pac. 708; People’s etc. Bank v. Craig, 63 Ohio St. 374, 81 Am.

OEIG-INAL proceeding for writ of habeas corpus. The law is void in its creation of the offices as it provides for the appointment of a member thereof by the governor alone. (Const., art. 2, sec. 1, art. 4, sec. 6; Clayton v. Territory of Utah, 132 U. S. 632, 10 Sup. Ct. Eep. 190, 33 L. ed. 455.) The provision at the latter part of section 1 of the medical laws of 1899 is in conflict with the constitution.

The court erred in overruling defendant’s objection to the introduction of any evidence by plaintiff because the complaint did not state a cause of action or cause of suit, and on the further ground that plaintiffs have mistaken their remedy, the action being one at law for a specific sum of money, but it is based upon a benefit certificate which does not call for any specific amount beyond the extent of one assessment on the membership of defendant.

<p>Actions on Usurious Contracts. — The provisions of section 1266 of the Revised Statutes of 18S7, include only actions between the lender or his assignee, as plaintiff, and the borrower, as defendant-</p> <p>Plea on Usury a Personal Right. — No one but a party to a contract can avail himself of the defense of usury.</p> <p>Same. — The grantee of a mortgagor, who assumes the payment of the mortgage cannot set up the defense of usury.</p> <p>To What Actions Provisions Applicable. — The provisions of said section 1266 do not do away with usury as a defense', but they impose a specific duty on the court whenever it ascertains in an action on a contract that an illegal rate of interest has been charged, but do not apply to the action of a stranger to compel the cancellation of the usurious contract.</p> <p>(Syllabus by the court.)</p>

It is practically impossible to find an authority directly in point upon this question, but the principles enunciated by many of the cases would seem to control. In the case below it was held that a party being compelled to sacrifice his property by sale is not an element of damage. (Savings Bank v. Ashbury, 117 Cal. 96, 48 Pac. 1081.) So it has been held that the loss of a crop by reason of án employee quitting work is remote damages. (Macy v. Peach, 21 Kan.

The instrument by which said conveyance was made was set out in full by the defendants in their answer, which showed said instrument to be a deed from the plaintiff to defendants for said property, absolute on its face, and as plaintiff failed to file the affidavit denying the execution of said instrument as provided for in section 4201, Revised Statutes of Idaho, he admitted the genuineness and due execution of the said instrument he is precluded further from showing…

ORIGINAL proceeding for writ of mandate. Section 8425 of the Revised Statutes of Idaho of 1887 reads as follows: “When the governor of this territory, in the exercise of authority conferred by section 2, article 4, of the constitution of the United States, or by the laws of this territory, demands from the executive authority of any state or territory of the United States, or of any foreign government, the surrender to the authorities of this territory of a fugitive from…

<p>APPEAL from District Court, Idaho County.</p> <p>The court erred in overruling defendant Green’s motion to quash the service of summons upon him for the reason that it appeared by positive affidavit that no copy of complaint was ever served upon him, and that no other defendant was ever served in the county in which he was served. (Bev. Stats., sees. 1873, 4143; Baker v. Bucher, 100 Cal. 214, 34 Pae. 654, 849.) The return in this case was questioned by a direct attack and not collaterally. (Norton v. Atchison etc. B. Go., 97 Cal. 388, 33 Am. St. Bep. 198, 30 Pac.' 585, 32 Pac. 452; Ainslie v. Idaho World Printing Go., 1 Idaho, 641; Wilson v. Gross & Go., 33 Cal. 69; Lander v. Beers, 48 Cal. 547.) Where service is made by publication, it must be made "at least once a week” and "must not be less than one month.” (Bev. Stats., see. 1146.) The word "month” means a "calendar month.” (Bev. Stats., see. 16, subsec. 4; McGinn v. State, 46 Neb. 427, 50 Am. St. Bep. 621, 65 N. W. 46; Sappington v. Lenz, 53 Mo. App. 44; B. M. Derby & Go. v. City of Modesto, 104 Cal. 515, 38 Pac. 902; Hill v. Faison, 27 Tex. 428. See Guaranty etc. Safe Deposit Go. v. Buddington, 27 Fla. 215, 9 South. 246, 12 L. B. A. 770, where the supreme court of Florida held that four months did not intervene between the second day of May and the first day of September.)</p> <p>The first error relied on by appellant is the ruling of the court overruling motion to set aside service on Green, and seems to be the only objection Mr. Green has. It appears to us that a mere recital of the facts carries conviction as to the correctness of his honor’s ruling. The sheriff had made a certificate, positive in terms, that he served a copy of complaint. Mr. Ailshie, the attorney who drafted Green’s affidavit, stated that Green had been served with what purported to be a copy of complaint, and he has never contradicted it, and when the court asked him to produce it, he refused to do so. Justice cannot thus be thwarted and does not countenance finesse of character; when the rule contended for by appellant prevails, procedure will be a farce, and the failure to dot an "i” or cross a "t” would be fatal, because it would not be a “copy.” In Shoup v. Daughey, 33 Cal. 505, 513, the court says in regard to the summons, "and on comparing the publication with the original contained in the case, certain discrepancies appear..... It is sufficient answer to this objection to say that the differences noted are purely literal, and quite microscopic at that. In sense and meaning the original summons and the published version of it are identical, and that is enough.” (Norton v. Atchison etc. B. B. Co., 97 Cal. 388, 33 Am. St. Rep. 198, 30 Pac. 585, 32 Pac. 452; Beay v. Benter, 95 Cal. 206, 30 Pac. 208.) The publication in this case was five successive times— the first on the 18th of July, 1901, and the last on the 15th of August, 1901, and were in a weekly newspaper. Service was complete in one month. (Brown v. Harper, 6 Idaho, 654, 59 Pac. 179; Savings etc. Soc. v. Thompson, 32 Cal. 347; State ex rel. Boyd v. Superior Court of Pierce Co., 6 Wash. 352, 33 Pae. 827, 829; Foster v. Vehmeyer, 133 Cal. 459, 65 Pae. 974, 975.)</p>

The demurrer to the complaint should have been sustained because: An action for damages by a private individual against a municipal corporation for an injury sustained by a defect in a highway cannot be maintained, in the absence of a statute expressly declaring such liability. (ArTcadelphia v. Windham, 49 Ark. 139, 4 Am. St. Eep. 32, 4 S. W. 450; Ft.

That the prior appropriator has the first right to the use of the waters of a stream has been so often decided that it is so generally understood by everyone to be the law that it seems unnecessary to cite any cases upon the subject. (Hillman v. Hardwick, 3 Idaho, 255, 28 Pac. 438, and eases cited.) Appropriation of water, waste of water, necessary proof, findings and review. (Milllieiser v. Long, 10 N. Mex. 99, 61 Pac. Ill; Irrigation Ditch Co. v. Buffalo Creek Irr.

The facts are stated in the opinion. We believe that it is the law of this state that where the administrator unjustly and for his sole benefit delays the administration of the estate to the injury, damage and annoyance of the other heirs that he should be charged with interest upon the estate from the time it is in condition to be closed up until it is finally distributed.. {In re Moore’s Estate, 72 Cal. 359, 13 Pac. 880; Walls v. Walker, 37 Cal. 429, 99 Am.

The mortgages in question appearing to have been executed by N. H. Clark and his wife, Evlyn R. Clark, were and are in no sense the mortgages of the husband, N. H. Clark, for the reason that his name does not appear in the recital at the beginning of the instrument, but only at the end of it. (1 Devlin on Deeds, 2d ed., secs. 194, 196-201a; Agricultural Bank of Mississippi v. Bice, 4 How. 225; Bachelor v. Brereton, 112 H. S. 396, 404, 5 Sup. Ct. Bep. 180; 9 Am. & Eng.

The facts are fully stated in the opinion. The procedure by the board of county commissioners in opening a new road is in its nature partly legislative and partly judicial, and was adopted by the legislatures of this and sister states, not particularly as a safeguard for the protection of the rights of the individual, but to secure to the public a fair and intelligent use of the power delegated, having in mind the fact that county commissioners are generally men of practical…

The facts are sufficiently stated in the opinion. One who represents another as the owner of personal property, and such representations are communicated to an officer, who relies and acts on them in making a levy, the party making the representations and declarations will be estopped to claim the property. (Mitchell v. Reed, 9 Cal. 204, 70 Am. Dec. 647; Horn v. Gole, 51 N. H. 287, 12 Am. Rep.

Facts are fully stated in the opinion. A court of equity, having acquired jurisdiction for one purpose, will retain it for all. Especially is this true in states under the reformed procedure. Hence, in suits for specific performance it is perfectly proper for a court of equity to grant legal and equitable reliefs, either alone or ancillary to one another. The court therefore erred in refusing to admeasure damages.

<p>APPEAL from District Court, Nez Perees County.</p> <p>The state constitution provides, in article 8, section 3, that no city shall incur any indebtedness beyond its income without the assent of two-thirds of the qualified electors thereof. The term “qualified electors” is defined in article 6, section 2, of the constitution, and being a taxpayer is not made one of the qualifications of an elector. It thus appears that when the proposition to issue bonds was submitted to only such of the qualified electors as were taxpayers, the provision of the constitution that said questions should be submitted to all of the qualified electors was not complied with. (Idaho Sess. Laws 1899, p. 53; Idaho Const., art. 6, see. 2, art. 8, see. 3.) Under the general election law of the state, no tax qualification is required. (Idaho Sess. Laws 1899, p. 45.) The act of the legislature of 1899, amending section 20 of the charter of the city of Lewis-ton, is unconstitutional, for the reason that it provides a special and local law for conducting elections and designating the place of voting. (Idaho Const., art. 3, sec. 19.) The act of the legislature approved March 6, 1899, provides for the holding and conducting of special elections therein provided, and by reason of said provisions, it contravenes the state constitution prohibiting the passage of special or local laws, providing for elections. (Idaho Const., art. 3, sec. 19; Idaho Sess. Laws' 1899, pp. 39, 66.) Upon an examination of the act of the legislature, under which the elections were sought to be held, it will be seen that there are provisions relative to the assessment and collection of taxes, and the same being an act amending the charter of the city of Lewiston, is a special or local law, relative to the same. (Idaho Const., art. 3, see. 19.)</p> <p>The question raised is whether or not the act of March 6, 1899, amending section 20 of the charter of the city of Lewis-ton contravenes article 8, section 3, of the state constitution, in defining a qualified elector. (Act of the legislature, approved Feb. 2, 1899; act of March 6, 1899.) While we do not believe that either of the above-mentioned acts can be so construed as defining a qualified elector, or even if such a construction be placed on the acts, neither of them contravenes any provisions of the state constitution, for the reason that section 4 of article 6 of the state constitution provides that the legislature may prescribe the qualifications, limitations and conditions for the right of suffrage additional to those prescribed in said article. Section 20 of article 1 of the state constitution expressly provides that in all elections creating an indebtedness, a property qualification is required, and we apprehend that there is no question but that both of the elections shown by the record in this case were for the purpose of creating an indebtedness. (Idaho S'ess. Laws 1899, pp. 40, 593; Idaho Const., art. 1, see. 20, art. 6, see. 4.) The special act of the legislature of Idaho territory (now state), incorporating the city of Lewiston, provides the manner of conducting elections' within the city, and upon examination of the record in this case, it will be seen that the respondents followed the provisions of its charter in holding both of the elections. (Idaho Sess. Laws 1899, p. 593; Special and Local Laws of Idaho, secs. 559-669.) Our constitution, in requiring a property qualification, does not specify the character of the property required, and we do not believe there is a single provision in our constitution which makes a distinction in the character of property that a person must own in order to entitle him to participate in an election where a property qualification is required. The act of the legislature of March 6, 1899, expressly provides that the city can borrow money and issue therefor its negotiable coupon bonds not to exceed, at any time, in the aggregate, fifteen per cent of all the taxable property. (Idaho Const., art. 1, sec. 20; Idaho Sess. Laws 1899, p. 591.)</p>

<p>Wbit of Review — Void Oedeb. — Writ of review will lie to review an order disbarring an attorney from practice made without application and without notice to such attorney, who has no opportunity to be heard as such order is void for want of jurisdiction.</p> <p>(Syllabus by the court.)</p>

<p>Writ op Review — Void Order. — Writ of review will lie to review an order suspending an attorney from practice made without application and without notice to such attorney, who has no opportunity to he heard, as such order is void for want of jurisdiction.</p> <p>(Syllabus by the court.)</p>

<p>Water Rights — Change op Point op Diversion. — Where the point of diversion of water is fixed by decree, and thereafter in another suit wherein the parties to the first decree are parties, with many others, and in the latter suit the water awarded to the parties to the first decree is scaled down, and the point of diversion thereof is not changed, such point cannot be changed if others are injured thereby.</p> <p>(Syllabus by the court.)</p>

The facts are fully stated in the opinion. Section 3900 of the Bevised Statutes of Idaho, reads as follows: “A judge cannot act as such in any of the following cases: 1. In an action or proceeding to which he is a party, or in which he is interested; 2. When he is related to either party by consanguinity or affinity within the third degree, computed according to the rules of law; 3. When he has been attorney or counsel for either party in the action or proceeding.

The affidavit for attachment states facts having a legal tendency to make out a! proper ease in aR its parts for the issuanee of attachment process. It recites that defendants are indebted to plaintiff in a certain sum, the probative facts showing a contract for the direct payment of money, and that the payment of the same had not been secured. The lower court had authority to determine whether the affidavit conformed to the requirements of the statute.

<p>ORIGINAL proceeding in Supreme Court for writ of mandate.</p> <p>Mandamus proper remedy. (Gaines v. Bugg, 148 U. S. 228, 13 Sup. Ct. Rep. 611, 37 L. ed. 432; United, States v. Camón, 184 U. S. 572, 22 Sup. Ct. Rep. 505; State v. Morrell, 77 Utah, 8, 53 Pae. 610; In re Christenson’s Estate, 23 Utah, 209, 63 Pac. 896; Soule v. Dawes, 14 Cal. 248.) "Where facts are before the supreme court, it can render or order judgment. (Ollis ¶. Kirhpatrick, 3 Idaho, 247, 28 Pae. 435; Burlce etc. L. Co. v. IVeils, Fargo & Co., 7 Idaho, 42, 60 Pae. 87; Idaho Gold etc. Co. v. U. M. & M. Co., 5 Idaho, 107, 47 Pae. 97; Hall x. Blackman, ante, p. 272, 68 Pae. 19.)</p> <p>While the prerogative features of the writ of mandate have been almost eliminated in this country, it is still regarded as an extraordinary remedy. (High on Extraordinary Remedies, 7.) “Wherever an express remedy is afforded by statute, plain and specific in its nature, and fully adequate to redress the grievance complained of, mandamus will not lie. (High on Extraordinary Remedies, 22, and note, 1.) Mandamus will never lie to review action of the court judicial in its nature, but the remedy, if error has been committed, is by appeal. (People v. Pratt, 28 Dal. 166, 87 Am. Dec. 110; People ex rel. Polhemus v. Pratt, 28 Cal. 166, 87 Am. Dec. 110.) Nor to review action of court which is judicial and discretionary. {Arberry v. Beavers, 6 Tex. 457, 55 Am. Dee. 791.) Mandamus does not lie when other effectual remedy exists, but is to be invoked only in cases of the last necessity. (Beading v. Connecticut, 11 Pa. St. 196, 51 Am. Dec. 534.)</p>

Facts' are fully stated in the opinion. The first question under the testimony, is, Does this table, constructed as is shown by the testimony and situate as shown, constitute such an attractive, alluring and dangerous instrument as' renders the owner liable to trespassers for any injury they may receive from playing with such instrument? {McEachern v. Boston etc. B. Go., 150 Mass. 515, 23 N. E. 231; Gurley v. Missouri Pac.

.The facts are stated in the opinion. This is primarily an action to declare a contract of hiring null and void, and, incidentally, to enjoin carrying out the same, under subdivision 1 of section 4388 of the Revised Statutes of 1887. The remedy adopted by the plaintiff was the proper one. If the hoard, in exercising judicial functions, had exceeded its jurisdiction, a writ reviewing such action would have been the appropriate remedy.

<p>Elections — Official Ballot — Duties of County Auditor. — Under the election laws of Idaho, the duties of county auditor in preparing official ballots for county and state elections are purely ministerial, and it is the duty of such auditor to place upon said official ballot the names of candidates for state and judicial district offices made by 'the different political parties, and certified to such auditors by the Secretary of State.</p> <p>Court Auditors — Official Ballot — Prohibition.—The writ of prohibition will not issue to restrain the county auditor of a county from placing upon the official ballot the name of a candidate for district judge, who has been nominated in regular convention of a political party, and whose nomination has been duly certified to the Secretary of State, and by said Secretary of State to such county auditor.</p> <p>(Syllabus by the court.)</p>

<p>Gambling — Playing Game of Cards — Misdemeanor.—Under the provisions of the act approved February 6, 1899, one who engages in a game of cards by playing therein, in which game money, property, or other thing of value is won or lost, is guilty of a misdemeanor.</p> <p>Statutory Law — Misdemeanor.—The act approved February 6, 1899. making gambling a misdemeanor, provides the minimum punishment therefor, while the maximum punishment is provided in section 6313 of the Revised Statutes.</p> <p>Jurisdiction — Justice of the Peace — Misdemeanor.—Justices of the peace have jurisdiction of offenses arising under the act of February 6, 1899, prohibiting gambling.</p> <p>(Syllabus by the court.)</p>

<p>Constitutional Law — Bearing Arms, Void Statute. — The act of the territorial legislature, approved February 4, 1889, which prohibits private persons from carrying deadly weapons within the limits or confines of any city, town, or village in Idaho, contravenes the provisions of the second amendment to the federal constitution and the provisions of section 11, article 1, of the constitution of Idaho, and is void.</p> <p>Police Regulations — Firearms—Carrying Concealed Weapons.— While it is, undoubtedly, within the power of the legislature to prohibit the carrying of concealed deadly weapons, and such reglation is a proper exercise of police power, yet the legislature does not possess the power to prohibit the carrying of fire-anus, as the right to do so is guaranteed to the citizen both by eur federal and state constitutions.</p> <p>(Syllabus by the court.)</p>

<p>APPEAL from District Court, Kootenai County.</p> <p>The facts are stated in the opinion.</p> <p>It has been repeatedly held that when the killing of stock by a locomotive is fully explained by uncontradicted testimony, though of the employees only, showing that the striking of the animal could not have been prevented by any effort of the employees of the railroad company, the presumption of negligence arising, under the statute of Georgia, from the accident is rebutted, and a verdict for plaintiff is contrary to and unsupported by the evidence, and will not be sustained. (Georgia etc. Go. v. Wilhoit, 78 Ga. 714, 3 S. E. 69.8; Georgia etc. Co. v. Wall, 80 Ga. 202, 7 S. E. 639; Moyie v. Wrightsville etc. Co., 83 Ga. 669, 10 S. E. 441; Western etc. B. Co. v. Trimmier, 84 Ga. 112, 10 S. E. 503; Western By. Co. of Alabama v. Lazarus, 88 Ala,. 453, 6 South. 877,40 Am. & Eng. R.R. Cas. 177; Peoria etc. B. Co. v. Champ, 75 111. 577; C. B. & Q. B. B. Co. v. Bradfield, 63 111. 220; Alabama etc. B. Co. v. Moody, 90 Ala.. 46, 8 South. 57, 45 Am. & Eng. R. R. Cas. 524; New Orleans etc. B. Co. v. Bourgeois, 66 Miss. 3, 14 Am. St. Rep. 534, 5 South. 629 — note on p. 309 of 38 Am. & Eng. R. R. Cas.) Where there is no evidence to establish the material issues of the complaint, the court, on motion of the defendant, ought to instruct the jury to return a verdict for the defendant. (Haner v. N. P; By. Co., 7 Idaho, 305, 62 Pac. 1029; Spokane etc. B. Co. v. Holt, 4 Idaho, 443, 40 Pae. 56; Gwin v. Gwin, 5 Idaho, 271, 48 Pac. 295; Johnson v. Fraser, 2 Idaho, 404, 18 Pae. 48; Dang el v. Levy, 1 Idaho, 722.) It is the settled law of this court that where instructions are inconsistent or contradictory the judgment should be reversed. (Holt v. Spokane etc. B. Co., 3 Idaho, 703, .35 Pac. 39, 42; Giffen v. City of Lewiston, 6 Idaho, 231, 55 Pac. 545.)</p>

The written agreement which is found in the answer does not appear to contain a single sentence, phrase or word that needs explanation, and the testimony in this case was not offered for the purpose of explaining the written contract, but to set up a collateral agreement. In the instructions the court uses the term “the contract” just as he used it in the former, evidently considering the written instrument and the alleged collateral agreement as constituting one contract.

The facts are fully stated in the opinion. It was error for the court to permit the county attorney to indorse the names of witnesses upon the information after the jury had been sworn to try the case. A number of said witnesses were sworn and testified against the defendant. The law provides that the names of witnesses be indorsed upon the information before trial. It cannot be done after the jury is sworn to try the case.

The facts are fully stated in the opinion. The first five specifications of particulars wherein the evidence is insufficient, briefly stated, are as follows: 1. No evidence of employment; 2. No request to perform service; 3. No knowledge by defendants that services were being performed in their behalf; 4. No knowledge by defendants that plaintiff was working for them in a particular employment for which he claimed wages; 5.

<p>Election Daw — CeetietcAte of Declabation. — The provisions of section 24 of an act approved February 2, 1899, commonly called the “Australian Ballot Law” (5th Sess. Laws 1S99, p. 37), prescribing that declinations of persons nominated for public office shall be filed with the proper officer at least thirty days before election, are mandatory, and a nominee desiring to take advantage of such provisions must file his declination with the proper officer at least thirty days before the day of election. '</p> <p>(Syllabus by the court.)</p>

The facts are fully stated in the opinion. The court erred in refusing to give to the jury the following instructions: “If the jury believe from the evidence that the defendant had no felonious intent to steal the property at the time he took it, then you must acquit, even if you believe he subsequently conceived the intent to appropriate it.” {State v. Sines, 5 Idaho, 789, 51 Pac. 984; People v. Morino, 85 Cal. 515, 24 Pac. 892; Martinez v. State, 16 Tex.

A house or other building, which, from its size, or the materials of which it was constructed, or the manner in which it was affixed to the land, could not be removed without practically destroying it, would not, I conceive, become a mere chattel by means of any agreement which could be made concerning it.” (Ford v. Gobi, 20 N. Y. 344; Hoyle v. Railroad Go., 54 N. Y. 315, 13 Am.

The facts are fully stated in the opinion. The court erred in sustaining the demurrer to the original complaint. The complaint alleged the corporate existence of the defendant. The court sustained a general demurrer to the complaint on the ground that it did not continue and allege that one-fourth of the capital stock of defendant had been subscribed, as provided in section 2614 of the Revised Statutes.

We maintain that the death of the wife, especially after action brought and an injunction bond given, as in this case, did not have any such miraculous effect as to make a mortgage valid that was void in her lifetime. Mortgages are not made valid by the death of parties who should have joined in their execution. We maintain further that under said statute either of the spouses could-take advantage of the failure of the other to join in the execution of the mortgage.

<p>APPEAL from District Court, Kootenai County.</p> <p>The essential elements which constitute a ■ Iona fide purchaser are three, to wit: 1. The payment of a valuable consideration; 2. The absence of notice of the rights of another party; 3. And the presence of good faith. (2 Pomeroy’s Equity Jurisprudence, see. 745.) Under the statutes of Idaho no parol agreement to convey land can be enforced, and where there is a written agreement, any valid extension of the time mentioned in said agreement must also be in writing, otherwise the same objection applies to the extension of time. (Idaho Eev. Peats., sec. 6009, subd. 5; Platt v.-Butcher, 112 Cal. 634, 44 Pae. 1060; Waterman on Specific Performance, sec. 487.) The new contract, if it can be called a contract, in which it was verbally agreed that plaintiff might have the land within thirty days, if he paid the money, was void under the statute of frauds, because not in writing. There can be no question of part performance under this second contract, because the plaintiff paid nothing upon it, and possession of the land was not given to him under this new contract. A parol sale of land without delivery of possession is void, though part of the price was paid, and it is immaterial that the contract was a renewal of one under which possession had been delivered to the purchaser, the former contract having been mutually abandoned. (Pomero3'’s Equity Jurisprudence, see. 1409; Maxfield v. West, 6 Utah, 327, 23 Pac. 754.)</p> <p>The contention of the respondent is that the transaction described in the complaint was a sale. Under the terms of the transaction, the respondent took possession of the property. Defendant Wells admits delivery of possession in his answer. Again the terms of the alleged bond are: “Witnesseth, that the party of the first part [appellant] .... has bargained and sold unto the said party of the second part,” etc. By the terms of the instrument then, the transaction was a ££bargain and sale”; and delivery of possession is admitted by the answer as pleaded in the complaint. The transaction was not an agreement to sell; it was a “sale,” and was followed by an'immediate delivery of the possession of the premises, a possession open and notorious in its character, and under which respondent at once leased a portion of the premises and received the rents therefor. What remained to complete the transaction? To vest title in the respondent, free of all conditions? Simply the pajunent of $350, and as security for the sum, the appellant, Wells, was to hold the deed until the money was paid. This makes of the instrument in question a mortgage, and, as we view the original acts of the parties, and read the contents of the document itself, it is impossible to make anything else out of it. (3 Pomeroy’s Equity Jurisprudence, secs. 1192, note 2, 1193, note 1; 1195; 1188, note 1 giving view of California courts, 1191; 1 Jones on Mortgages, sees. 20, 60.) The right to redeem: If it be conceded that the instrument upon which this action is based is in equity a mortgage, then the respondent could not be deprived of, nor waive his right to pay the debt and clear his title. (2 Jones on Mortgages, secs. 1038, 1039; 3 Pomeroy’s Equity Jurisprudence, secs. 1193, 1219.) Appellant contends that respondent lost his right of redemption by giving up the bond. We have already shown that respondent could not waive his right to redeem; nor did he intend to. Equity abhors a forfeiture, nor will it be allowed, especially under the mistake testified to by respondent. Indeed, the extension of time by Wells to Castleberry was, if anything, a waiver of the forfeiture, could it be held that a forfeiture was possible under the contract. (1 Pomeroy’s Equity Jurisprudence, secs. 381, 382, 433, 451, 455, 456; Steele v. Branch, 40 Cal. 6.)</p>

<p>APPEAL from District Court, Shoshone County.</p> <p>The record does not show the grounds upon which a new trial was granted. The granting of a new trial is largely a matter of discretion with the judge of the trial court, but as this court bas held, this does not give to the" trial court the power to grant a new trial, except upon one of the grounds provided by statute. In this ease whether the new trial was granted on the ground that the evidence was not sufficient to support the verdict, or upon some other ground, we are not advised. No reason for setting aside the former verdict and for granting a new trial is set forth in the record. This court has heretofore held that where the record does not show the grounds upon which a new trial was granted, and no error warranting a new trial is apparent upon the record, the order granting a new trial will be reversed. (Lowe v, Loyiq, 5 Idabo, 122, A7 Pac. 93 j SwcctseT %. MeTlicJc, 5 Idabo, 783, 51 Pae. 985.) Section AMI of the Bevised Statutes of Idabo, paragraph 3, provides: "When the notice designates as the ground of the motion errors in law occurring at the trial and excepted to by the moving party, or deemed excepted to, the statement shall specify the particular errors upon which the party will rely. If no such specifications be made the statement shall be disregarded on the hearing of the motion.” Defendants, following the very language of this section in their statement on motion for new trial, set forth fifty-seven errors of law upon which they rely to secure a new trial. Defendants rely upon the particular errors set forth, and this court will decide these matters only. All exceptions taken by defendants below are deemed waived if not specified or pointed out in their statement on motion for new trial. (People v. Page, 1 Idaho, 102; Purdy v. Steele, 1 Idaho, 216; Bohnert v. Bohnert', 95 Cal. 444, 30 Pac. 590; Fiebaugh v. Masterson, 1 Idaho, 135.) Section 4441 of the Revised Statutes of Idaho must be strictly complied with as to the specifications of error, else the statement will be disregarded. (Partridge v. San Francisco, 27 Cal. 415; Hidden v. Jordan, 28 Cal. 302; Fleming v. ATlecTc, 67 Cal. 226, 7 Pae. 659.) Where the errors of law upon which a motion for a new trial was made are not specified in the statement, it will be presumed that they were disregarded by the court on the hearing of the motion. (Pico v. Cohn, 67 Cal. 258, 7 Pac. 680.) The attorneys for both parties agreed that the jury be .permitted to use liquor in moderation, and the court ordered that under the directions of the officers such privileges be granted. There is no probability that the privilege was ever abused. (State v. Reed, 3 Idaho, 754, 35 Pae. 706.) The jurors cannot be heard to impeach their own verdict by affidavits that they or any of their number violated their oaths or disregarded the mandates of the court as to their conduct while considering the case. No affidavit of the jurors alleging misconduct of the jury can be legally considered. (People v. Baker, 1 Cal. 405; Amsby v. Dickhouse, 4 Cal. 103; Casio v. Gill, 5 Cal. 41; People v. Wyman, 15 Cal. 70; Turner v. Tuolumne etc. Co., 25 Cal. 400; Polhemus v. Heiman, 50 Cal. 438.) The affidavit of a juror may be used to sustain a verdict against an attack, but it cannot be used to impeach it, except within the limitations of the statute. (Wilson v. Berryman, 5 Cal. 45, 63 Am. Dec. 78; People v. Hunt, 59 Cal. 432.) That the granting of a new trial is not merely a matter of discretion, within the broad rule claimed by respondents, is determined by the constitution of Idaho as well as by the statute law of this state. Section 9 of article 5 of the constitution of Idaho provides that the supreme court shall have jurisdiction to review upon appeal any decision of the district court, or the judges thereof. No discrimination is made as between the questions that may be reviewed on appeal; no special dignity is given to any class of appealable orders or judgments over another; no different rule of determination is stated. The spirit of the constitution admits that the supreme court shall be as ready and apt to correct an error in one class or character of judgment as they are in another. If this is entirely a matter of discretion with the court below as to whether or not a new trial will be granted, and the verdict of a jury set aside, when the procuring of that verdict is the result of a long and expensive trial that may perhaps have exhausted the ability of the litigant to the extent that he would never be able again, either because of the departure of the witnesses or destruction of the means of evidence, or other circumstances readily imagined, to present his ease the second time, he would thus be made the victim of the capricious order of the court, setting aside the verdict of the jury thus obtained at such labor and expense, which would result in depriving him of his right. If this is a matter resting alone in the discretion or caprice of the judge who tries the case, as to whether the solemn determination of a jury, the verdict and judgment shall be sot aside merely because the thirteenth juror did not agree with the legally constituted panel, why should the statute have provided in express terms that we had the right to review in the supreme court the action of the court in granting the new trial? If no specifications as required by the statute are made, the statement shall be disregarded. The statement must contain so much of the evidence or reference thereto as may be necessary to supply the particular points thus specified and no more. The provisions in relation to the insufficiency of the evidence are as formal as those in relation to errors of law, and the requirement will be strictly enforced. (Doherty v. Enterprise Min. Co., 50 Cal. 187; Rider v. Edgar, 54 Cal. 130; Presión v. Eearst, 54 Cal. 596; Lewis v. Kelton, 58 Cal. 303; Hayne on. New Trial and Appeal, sec. 150.) It is necessary to point out the specifications of “facts” as distinguished front conclusions of law on the one hand, and mere evidence on the other. General expressions of disapproval of the verdict are not such specr fications as the statute requires. (Hayne on New Trial and Appeal, see. 150; Treat v. Forsythe, 40 Cal. 488.) Nor must the specifications be directed at mere conclusions of law. If they run merely to legal propositions they must be disregarded. (Moyse v. Griffith, 35 Cal. 557, 558.)</p> <p>It is the duty of the trial court to grant the new trial whenever he is not satisfied with the verdict if tried by a jury, or with the findings, if tried by the court, and the rule as to conflict of evidence does not apply to the trial court. “The judge should set aside the verdict whenever he is not satisfied with it upon the evidence, and his order in that regard will not be disturbed on appeal if the evidence is substantially conflicting.” (Curtiss v. Starr, 85 Cal. 376, 24 Pae. 806; Eiclcey v. Davis, 39 Cal. 569; Sherman v. Mitchell, 46 Cal. 580.) Where the evidence is conflicting upon the principal questions of fact, and the trial court sets aside the findings and grants a new trial, the appellate court must presume that the court changed its opinion as to the effect of the evidence favorable to the contention of the party against whom the finding had teen made, and will not undertake to disturb the decision of the trial court. (Condee v. Gyger, 126 Cal. 546, 59 Pac. 26; Churchill v. Flournoy, 127 Cal. 355, 59 Pae. 791-793; Byxbee v. Dewey, 128 Cal. 322, 60 Pac. 847.) This court has already decided that in cases of appeals from an order grauting a new trial the action of the lower court will not be interfered with unless the record shows an abuse of discretion on the part of the lower court. (Jachsha v. Gilbert, 4 Idaho, 738, 44 Pac. 555; Brossard v. Morgan, 6 Idaho, 479, 56 Pae. 163, and authorities cited.)</p>

<p>Guardian ad Litem — Nonresident of the State may be Appointed. In application for admission of will to probate, a nonresident maybe appointed guardian ad litem for minor heirs.</p> <p>Written Demand for a Jury Trial in Probate Court in Contested Will Oases Sufficient for Trial in District Court. — Where written demand is made in probate court for a jury trial in a case involving the contest of a will, and such demand is filed in' tbe district court, it is sufficient to authorize the district court in ordering a jury trial in that court, without further notice, a» required by section 4095 of the Revised Statutes.</p> <p>Conflicting Evidence. — Where it appears from the record that a substantial conflict in the evidence exists on the material issues involved in the controversy, this court will not reverse the judgment of the trial court.</p> <p>Juror Disqualified if He has an Unqualified Opinion.; — If it appears, on the examination of a juror, on his voir dire, that he has an unqualified opinion on any material issue involved, a challenge for that reason is properly sustained.</p> <p>Juror Qualified if He has no Opinion on the Merits and no Bias or Prejudice. — If it appears, from the examination of a juror on his voir dire, that he has no fixed opinion as to the merits of the controversy, and has no prejudice for or against any party to the controversy, a challenge for cause should be overruled.</p> <p>(Syllabus by the court.)</p>

Same attorneys appear and same briefs apply in above cases as in State v. Keller, post, p. 699, 70 Pae. 1051. Lewis Simpson, Ed. Hill, and Charles R. Reed were separately convicted of the offense of driving sheep into the state, and appeal.

The facts are stated in the opinion. The errors upon which the appellant relies for a reversal of the judgment (to all of which it may be here stated, once for… Held: ranged and herded in said Box Elder county, Dtah, between the ninth day of March, 1901, and the eleventh day of April, 1901, etc.” The date upon which he drove said sheep into the state of Idaho is alleged to he April 11, 1901. What was necessary for the state to prove in order to establish the corpus delicti?

The motion of defendant for affirmance of the judgment of the justice court should have been denied. It was made upon the ground that the appeal was taken upon both law and fact, which was a proper appeal. The case was decided upon facts raised by the pleadings, alleged in the complaint and .admitted in the answer, and the appeal was properly taken upon both law and fact.

Pacts fully set forth in opinion. All the authorities cited by appellant bearing upon the points decided by the court are cited in the opinion.

<p>APPEAL from District Court, Custer County.</p> <p>The facts are stated in the opinion.</p> <p>This money in the bank was the money of the county. (State v. Timm, 6 Idaho, 323, 55 Pac. 858; First Nat. Bank of Pocatello v. 0. Bunting & Go., 7 Idaho, 27, 59 Pac. 929.) The court decided that question in the ease above cited. The county has recovered judgment from the bank for the amount of $12,241.02 {First Nat. Bank of Pocatello v. G. Bunting & Go., 7 Idaho, 27, 59 Pac. 929), but this plaintiff has received but a small portion of that pioney. The cheeks given by the treasurer to the plaintiff were not the checks of J. P. Spalding; they were the cheeks of the county drawn on its own money by its authorized officer and agent. The debts which they were drawn to pay were not the debts of the officer, but the debts of the county. {Carpenter v. Farnsworth, 106 Mass. 561.) The warrants for which these cheeks were given were left with George E. Keyes, as agent, for collection. The counsel for the defendant contends that the treasurer had no authority to pay anything but cash; plaintiff contends that his agent had no authority to accept anything but cash, and if anything else was accepted, which as between the principals would extinguish the debt, the agent had no authority to accept such payment for his principal. {Taylor v. Robinson, 14 Cal. 396; Bohart v. Ob erne, 36 Kan. 284, 13 Pac. 388.)</p> <p>cites no authorities on the points decided, and refers to authorities cited in Chambers v. Custer County, post, p. 724, 71 Pac. 113.</p>

This is an appeal from an order of the board of county commissioners of Custer county, disallowing claims of the plaintiff for county warrants which have been issued and canceled but' never paid, the treasurer having given checks on C. Bunting & Co., at Blackfoot, but which were not paid owing to the failure of the bank. The county board disallowed the claim and an appeal was taken to the district court.

The facts are stated in the opinion. The point made by the defendant in this action is that although some of the states have held that if a laborer has a team, or any other person which to him is exempt on account of the party making a living for himself, or for himself and family, that a lien will sometimes be sustained for the work of the team as well as that of the laborer.

The general question is whether the attachment lieins acquired by appellants in their suits against Harris or the attempted pledge of said stock by Harris to the Mapleton Bank has the preference of priority.

<p>APPEAL from District Court, Bear Lake County.</p> <p>Erom the pleadings and from the evidence introduced by plaintiff, it seems to us perfectly clear that the question of priority of appropriation was squarely before the court to be decided and determined, and that no other construction can legally be placed upon the pleadings and the evidence. Such being the fact, it became the imperative duty of the court to determine the priority of the parties. The rule in this court is well settled that if is the duty of the trial court in a case of this character to determine the priorities of the respective parties to the waters in question. (Kirk v. Bartholomew, 3 Idaho, 367, 29 Pac. 40; Geertson v. Barrack, 3 Idaho, 344, 29 Pac. 42.) We submit that no person can obtain a vested right to any particular quantity of water by merely contributing to the expense of constructing a ditch or canal for diverting the same. A valid appropriation can only be made for some useful or beneficial purpose and the amount or quantity, which may lawfully be appropriated is governed and controlled by the necessities of the person making the appropriation and his ability and opportunity to put' the water to a beneficial use. (Idaho, Rev. Stats. 1887, sec. 3156; Gonant v. Jones, 3 Idaho, 606, 32 Pae. 250; Simmons v. Winters, 21 Or. 35, 28 Am. St. Rep. 727, 27 Pae. 7; Nichols v. McIntosh, 19 Colo. 22, 34 Pae. 278.)</p> <p>Did the court err in not admitting Defendant Larocco’s Exhibits Nos. 1 and 4 in evidence? We reiterate our objections here to the admissibility of the above-named exhibits. After these books were inspected by the court, our objection was sustained. We also call the court's attention to the following authorities herewith cited by us in support of our contentions asking the court to bear in mind this fact that these books are not the property of a party to this action; that the alleged entries do not represent the interest of a party to this action, but are merely the private memorandum of a third party. Our own statutes, in our opinion, settle conclusively the question of the admissibility of the exhibits referred to. Section 5996 of the Revised Statutes of 1887 reads as follows: The entries and writings of a decedent, made at or near the time of the transaction, and in a position to know the facts stated therein, may be read as prima facie evidence of the facts stated therein, in the following cases: 1. When the entry was made against the interest of the person making it; 3. When it was made in a professional capacity, and in the ordinary course of professional conduct; 3. When it was made in the performance of a duty specially enjoined by law. (Greenleaf on Evidence, 14th ed., secs. 117-130; Hay v. Peterson, 6 Wyo. 419, 45 Pae. 1073, 34 L. R. A. 581, and notes; Hall v. Ohambersburg Woolen Go., 187 Pa. St. 18, 65 Am. St. Rep. 563, 40 Atl. 986, 53 L. R. A. 689, and notes on pp. 710, 711.)</p>

Pacts are fully stated in the opinion. We desire to call the court’s attention to the fact that the verdict is against the law.

<p>Premiums for Making Loans — Usury—Payments.—Premiums exacted for making loans and retained, or secured by mortgage, are unlawful interest, when, added to tbe rate provided by tbe contract of indebtedness, they make a rate greater than tbe statutes authorize, and payments upon sueb premiums, and all payments, whether upon interest or principal, must be applied to reducing . the principal of the debt.</p> <p>Usurious Contract — Attempt to Purge Same — Third Parties. — Two usurious loans were made, secured by trust deeds; tbe debtor made another loan from a third party and gave the latter a mortgage upon the property named in the trust deeds; afterward the debtor and creditor came together and made an agreement for the purpose of removing the usurious character of the trust deeds and debts secured by them; payments were made by the debtor on interest and principal, added to the premiums retained in the first instance by the creditor, reduced the principal of the two debts to a small amount, for which the trial court gave judgment of foreclosure. Held, that the trust deeds only secured the principal of the debts, and that the subsequent agreement did not extend the liens of the trust deeds, especially as against the junior mortgagee, and that the judgment should be affirmed.</p> <p>(Syllabus by the court.)</p>

<p>Appeal from District Court, Blaiue County.</p> <p>The facts are stated in the opinion.</p> <p>The law of this case is summed up by Chief Justice Taney in Bruce v. United States, 17 How. 437, 15 L. ed. 127, and in these words: “When. Bruce received his second commission, if any money or property which he received during his former term of office still remained in his hands^ he was bound to apply and account for it under the appointment which he then received. . , . It was so much money in his hands to be disbursed and applied under his second appointment.” In the case at bar, not only was there no evidence against the legal presumption-that the sheriff was holding the money to be paid over to the party entitled to it at the time he entered upon his second term, but the evidence showed official acts in the way of answers, declarations and returns by the sheriff which estopped Mm and his sureties to deny the fact. (Boone County v. Jones, 54 Iowa, 699, 37 Am. Bep. 229, 2 N. W. 987, 7 N. W. 155; Balcer v. Preston, 1 Gilm. 235; State v. Grammar, 29 Ind. 530; Morley v. Town of Metamoria, 78 111.. 394, 20 Am. Bep. 266; City of Chicago v. Gage, 95 111. 593, 35 Am. Bep. 182; Ingram v. McCombs, 17 Mo. 558; Watts v. Colquit, 66 Ga. 492; State v. Paul, 21 Mo. 51; State v. McCormiclc, 50 Mo. 568; State v. Moses, 18 S. C. 366.) A clerk of court neglecting to deposit his official moneys in the bank,.as required by law, or to pay out in proper cases under orders of the court, is guilty of a continuing default, for which (without demand by the parties in interest) he and the sureties on his second and additional official bond are liable, although the moneys were received before the execution of such bond.” (Murfree on Sheriffs, sec. 943.) “The liability of a surety on the official bond of the sheriff is dependent, not on the time when the fund which formed the subject of the default came to the hands of the principal, but upon the time when the default itself occurred.” (Yoalcley v. King, 10 Lea (Tenn.), 67; State v. Wall, 9 N. C. 20; Wentz v. Ledoux, 24 La. Ann. 131; Murfree on Official Bonds, sec. 219; Bruce v. United States, 17 How. 437, 443, 4 MyePs Fed. Dec., sec. 522; Kelly v. State, 25 Ohio St. 567.) The case at bar is one of those that sometimes reach the supreme court, which never ought to, from the fact that the trial court should not have allowed it. The jury should have been plainly told what their verdict must be, or the verdict should have been at once set aside, and judgment ordered by the court. There was not a particle of evidence that tended to show that the plaintiffs were not entitled to recover, while there was an abundance of evidence to show plaintiffs were entitled to recover. When, under the evidence, there is no issue of fact for the jury to find, the case need not be submitted to them. (Work Bros. & Go. v. Kinney, 7 Idaho, 460, 63 Pae. 596; Coffin v. Hutchinson, 22 Or. 554, 30 Pac. 424; Gwin v. Gwin, 5 Idaho, 271, 48 Pac. 295; Arimjo v. New Mexico etc. Co., 3 N. Mex. 427, 5 Pac. 710; Martin v. Ward, 69 Cal. 129, 10 Pac. 276; McCormick v; Holmes, 41 Kan. 265, 21 Pac. 108; Clancy v. Reis, 5 Wash. 371, 31 Pac. 971; Gildusleeve v. Atkinson, 6 N. Mex. 250, 27 Pac. 477; Commissioners etc. v. Clank, 94 H. S. 278, 24 I.. ed. 5§; Corning v. Troy Factory, 44 N. Y. 577; Nichols v. Goldsmith, 7 Wend. 160; Grand Trunk Ry. Co. v. Nichol, 18 Mich. 170; Story v. Brennan, 15 N. Y. 524, 69 Am. Dee. 629.)</p> <p>Upon the question of the plea of estoppel, the offhand way-in which counsel disposes of it has induced its examination! many times to try and find whether the stupidity was in the argument or in me in not being able to see the difference in the two actions, which counsel attempts to point out. In the light of the former opinions of this court, the argument referred to is astonishing. They deal with every fact involved here: the wrongful sale of all the goods; the conversion and the time of it; the return of the execution nulla bona, and the date of it; and every conceivable thing which in this case the court would have to consider and find to grant him the relief asked for. If tins court were to give Mm the decision he asks, wherein would its opinion be changed in any particular from the opiMon in the other case, except to say that the wrongful conversion was in 1889 instead of 1888, as heretofore decided? The estoppel rests upon the fact that plaintiffs pleaded and proved and recovered upon the same misconduct charged here, but committed at a different date from that which they seek to establish to enable them to recover here. The court will not overlook the fact that Kinney is defendant in both cases. Of course, if they are not entitled to judgment against Kinney in both, they are not entitled to judgment against his sureties in both. If the estoppel is good as to Kinney, it is equally good as to his sureties. Would it not be competent and a perfect estoppel for Kinney to declare: You recovered from me once on this transaction on identically the same allegations and proofs of my acts you accuse me of here. You said then I committed them in 1888. You cannot be heard to deny that my offense was committed in 1888, nor permitted to assert that it was in fact committed in 1889, or any other year than 1888, for the purpose of pursuing me to another judgment for the same misdoing.</p>

APPEAL, from District Court, Idaho County. cites no authorities not found in the opinion of the court. 'At the time of the adoption of the constitution of this state the words “town” and “village” were used as sj'nonjmous terms.

<p>Pleadings — Corporations—Merger—Liability.—1. A denial of an allegation in the complaint, which is sufficient under the rule, is not objectionable because it ends with the words, “other than as hereinafter set forth,” even if the pleader does not thereafter refer to it. 2. When it is alleged in the complaint that the obligations of a corporation organized in the state of West Virginia were assumed by reason of the absorption of it3 property by a, corporation organized in Connecticut, both empowered to do business in the state of Idaho, and the further allegation that there was >a merger of the West Virginia corporation, all of which ia denied by the answer, and there is no proof of such merger, the Connecticut corporation cannot be held to respond. 3. Where one corporation buys the stock and property of another corporation, and assumes the payment of enumerated debts and the complaint does not allege fraud on the part of either tbe seller or buyer, the purchasing corporation cannot be held liable for a check issued eight months prior to such sale by the grantor in the transaction, unless it be enumerated in the schedule of debts assumed. 4. The fact that A. B. was the general manager of a corporation, and owned a large quantity of stock therein, and thereafter another corporation was organized, which purchased all or nearly all of the stock and property of the former corporation, he becoming general manager of the new corporation, and owning a large quantity of its stock, is not sufficient to hold the new corporation for the debts of the former; and this is especially true where it is shown that the bank check sued on was given more than eight months prior to the organization of the new company, where there is neither an allegation nor proof of fraud in the transfer.</p> <p>(Syllabus by the court.)</p>