Volume 9 — Arizona Reports

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

<p>ORIGINAL PETITION for Writ of Mandamus.</p> <p>Tlie facts are stated in tlie opinion.</p>

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

<p>1. Deeds — Descriptions — Courses and Distances — Controlled by Monuments. — "Where a deed conveying a part of a town lot described the part conveyed as being one hundred and twenty-four feet square, and a deed conveying an adjoining part of the same •lot, while describing it as having a frontage that would have included a part of the land conveyed by the first deed, also stated that it began at a certain corner and ran to the corner of the part first conveyed, the monuments thus designated controlled the courses and distances, and no part of the land conveyed by the first deed was included in the second.</p>

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

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

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

<p>1. Findings — Fact Mingled with Conclusions or Law — Not Reason eob Revebsal. — While the finding that ‘ ‘ the plaintiff and its predecessors and grantors in interest . . . have been, and the plaintiff still is, the owner and entitled to the possession of the lands and premises,” appears in the findings as a conclusion of law, it is a statement of an ultimate fact, and not 'a mere conclusion of law, and ownership being one of the ultimate facts to be found under the issues, the fact that the finding appears among the conclusions of law is not a sufficient reason for reversing the judgment.</p> <p>2. Same — Sufficiency—On Issue of Ownership. — A finding that plaintiff and its predecessors in interest, since a certain date, have been, and that plaintiff still is, the owner and entitled to possession of lands, is sufficient in an action to recover land to sustain a judgment for plaintiff on the issue of ownership.</p> <p>3. Statutes of Limitations — Construction—Retroactive Operation —Intent of Legislature — Must Clearly Appear. — New statutes of limitations upon causes of action existing at the time the statutes go into effect will not be given a retroactive effect unless it clearly appears that the legislature so intended.</p> <p>4. Same — Same—Rev. Stats. Ariz. 1901, pars. 2938, 2974, 4243, Construed. — Paragraph 2974, supra, provides: “No one of the provisions of this title shall be so construed as to revive any claim which is barred by pre-existing laws; and all claims against whieh limitations under said laws had commenced to run, shall be- barred by the lapse of time whieh would have barred them had those laws continued in force.” Paragraph 4243, supra, provides: “When a limitation or period of time prescribed in any act herein repealed for acquiring a right or barring a remedy or for any purpose has begun to run before this act takes effect and the same or any .limitation is prescribed in any act passed at this session of the legislature the time which has already run shall be deemed part of the time prescribed as such limitation by any act passed at this session of the legislature. ’' Held, that these paragraphs obviously refer to the repeal of existing statutes and the enactment of new statutes upon the same subject, and have no bearing upon new legislation where none previously existed, as in the ease of paragraph 2938, supra, which forms a part of the same act, and for the first time provides a limitation on actions for the recovery of lands adversely held by another.</p> <p>5. Statute of Limitations — Not Retroactive — Rev. Stats. Ariz. 1901, par. 2938, Construed. — Paragraph 2938, supra, providing that actions to recover lands in the adverse possession of another shall be begun within ten years next after the accrual of the right of aetion, being the first statutory enactment limiting actions for the recovery of real property against persons holding adversely, and having no retroactive force, has no application to an action begun before the section took effect, and while no statute of limitations as to such actions was in force.</p>

<p>1. Judgment — Default—New Trial — Appeal—Discretion of Trial Court — Beview.—Upon appeal from a denial of a motion rendered in the absence of plaintiff's attorney to set aside a judgment and for a new trial upon the ground of the illness of said attorney, the appellate court, recognizing that such matters must rest largely in the sound discretion of the trial court, should not disturb its ruling, unless it clearly appears that such discretion has been abused.</p> <p>2. Same — Same—Same—Motion—Affidavit of Merits. — An affidavit of merits is a prerequisite to the granting of a motion to set aside a judgment by default and to grant a new trial for absence of counsel when the cause was called for trial, in order that injustice may not be done in granting a new trial where no valid cause of action or defense exists.</p> <p>3. Same — Same.—Motion to Set Aside — Affidavit of Merits — Sufficiency. — When a motion for new trial after judgment by default, in favor of defendants on their cross-complaint, recites that "plaintiff has stated the facts of its case fully and fairly to its counsel and is advised by them that it has a good defense to said actions,” and is signed by the attorney of record below and in this court, and attached thereto is an affidavit of the former attorney stating that he is the attorney for plaintiff, that the default was caused by illness and inability to. be present at the time set for trial, and "that all the facts stated in the foregoing motion for a new trial are true in substance and fact,” such affidavit is not sufficient in that it fails to state that the plaintiff has a substantial and meritorious defense, or in what such defense consists.</p> <p>4. Same — Same—Same—Same—Should Be Signed by Party. — An affidavit of merits upon a motion to set aside a judgment by default should preferably be made by the moving party, and if made by the attorney a valid reason why it is not made by the party should be stated.</p> <p>5. Same — Same—Same—Same—Pleadings.—Unverified pleadings from which a court can determine whether a defense is properly pleaded, but from which it cannot determine whether such defense is substantial and meritorious, will not supply the want of a sufficient • affidavit of merits.</p>

<p>1. Appeal and Error — Assignments of Error — Sufficiency — 'Rev. Stats. Ariz. 1901, par. 1586, and Supreme Court Rule 7, Construed. — Under paragraph 1586, supra, providing that the brief of appellant “must plainly state the errors complained of by him,” and rule 7, supra, providing that assignments of errors must distinctly specify each ground of error relied on, general and indefinite assignments of error are insufficient, and will not be considered.</p> <p>2. Same — Evidence—Conflict—Finding—Will not Be Disturbed.— Where findings of the trial court are based upon substantially conflicting evidence, such findings will not be disturbed on appeal.</p>

<p>1. Trial — Evidence—Exclusion—Motion to Strike Out — Necessity Eor. — Where plaintiff sues on two counts, and after his evidence is closed elects as to the count on which to go to the jury, in order to effect the exclusion from the jury of evidence material only to the abandoned count, or to avail himself of an adverse ruling thereon, defendant should have moved to strike such evidence from the record following plaintiff’s election.</p> <p>2. Evidence — Written Instrument — Explanation by Parol. — Plaintiff, a broker, suing for compensation for services in making a sale, introduced a memorandum of terms of sale containing a phrase, “Will give 5 days to accept above deal.” Defendant contended the memorandum represented a new agreement made between the parties on April 28, 1902, definite and certain in its terms, whereby plaintiff was given an option to purchase defendant’s property at any time within five days from the date thereof, and that this agreement superseded all previous contracts, and that as plaintiff had not purchased the property himself nor produced a purchaser within the five days he could have no claim against the defendant. Plaintiff claimed that he had been commissioned to sell the property prior to the making of this memorandum; that the terms had been modified several times; that the memorandum was but one such modification; and that the time restriction therein merely related to the particular terms of sale therein contained, but did not limit the plaintiff’s right to present a purchaser. Neld, that the court committed no error in admitting parol evidence to explain the memorandum.</p> <p>3. Appeal and Error — Instructions—Error in — Must Be Urged upon Motion for New Trial. — Error in an instruction which might have been' good ground for a new trial below will not be reviewed on appeal, unless the same shall have first been presented to such court by motion for a new trial.</p>

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

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

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

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

<p>ORIGINAL PETITION for a Writ of Habeas Corpus.</p> <p>Statement of facts:—</p> <p>The New York Foundling Hospital, a corporation, filed its petition in this court, praying for a writ of habeas corpus to be directed to one John C. Gatti, commanding said Gatti to produce the body of William Norton, an infant, and to make return by what right he holds said infant in his possession and under his custody and control. In its application for the writ, petitioner alleged that it is a corporation organized and existing under the laws of the state of New York; that under and by virtue of its charter it is duly authorized and empowered to receive, and keep under its care, charge, custody, and management, children of the age of two years and under, found in the city of New York, abandoned or deserted, and left in the crib or other receptacle of petitioner for foundlings; that by virtue of its charter it found and received; and took under its care, charge, custody, and management, the child named in the petition; that on or about • the first day of October, 190.4, in the exercise of its care, charge, custody, and management of said child, it placed said child in the home of a certain' person in the town of Clifton, Graham County, Arizona, to be held and cared for by said person in said home temporarily, and at all times subject to the supervision of the petitioner and its officers and agents; ■that on or about the second day of October, 1904, the respondent unlawfully, and by means of force and violence, took possession of said child from the person to whom it was intrusted by the petitioner, and has ever since retained possession of the same, and the said child is now in the custody and under the control of the said respondent, without the consent or license of the petitioner,' and against its desire, intention, and protest.</p> <p>In response to the writ issued under said petition, the respondent, as directed, produced the said child in court, and made return to the writ as follows: A motion to quash the writ was made upon the ground that the petition failed to disclose that the petitioner has any legal right to maintain the action, for the reason that the charter under which it was organized gives it no right of guardianship over the children committed to its care and custody; that its authority is limited to the reception in its institution of infants of the age of two years or under, found in the city of New York, who have been abandoned or deserted, and such as are surrendered to it under the provisions of its charter, and to keep within said institution said infants during their minority, and that said charter does not confer upon said institution the right to make any such disposition of said children as was made by the petitioner, as set forth in its petition; and that by making such disposition the said petitioner has lost such power, right, and authority as may have been conferred upon it by the charter of the state of New York to retain the custody and control of said infant. The respondent, by way of plea in abatement, set up that the petitioner had no right to maintain the action, for the reason that it appears upon the face of the petition that the petitioner is a foreign corporation, and had not filed a copy of its articles of incorporation or charter, or the appointment of an agent resident within the territory upon whom process may be served, as provided in chapter 10 of the Revised Statutes and the amendments thereto. By way of further return, respondent alleged that letters of guardianship of the person of the child named in the petition were granted to the respondent by the probate court of Graham County, Arizona, and that said respondent, under and by virtue of said letters of guardianship, has duly qualified as such guardian by taking the oath and giving the bond required by law and the order of said court, and that thereupon respondent became, was, and now is the legally appointed and acting guardian of said child; that upon the hearing of the application for said letters of guardianship the petitioner appeared, an'd from the order of said court appointing respondent guardian as aforesaid it has taken an appeal to the district court of the second judicial district of the territory of Arizona. The respondent further made return that the child charged in the petition to be unlawfully in the custody and control of respondent is a white, Caucasian child, of the. Anglo-Saxon race; that the petitioner on or about the first day of October, 1904, brought the said child to the territory of Arizona, and abandoned him to the keeping of a Mexican Indian, whose name is unknown to the respondent, and who was and is financially unable properly to feed, clothe, shelter, maintain, and educate said child, and is otherwise, by reason of his race, mode of living, habits, and education, entirely unfit to have such care, control, and education of said child; that the said person to whom petitioner abandoned said child voluntarily surrendered said child to certain persons who thereupon placed said child in the care, custody, and control of respondent; that respondent is a fit person to have the care, custody, and control of said child, and that it will he to the best interest of said child that he be permitted to remain within the care, custody, and control of respondent, whose purpose and intention it is to rear, maintain, educate, and provide for said child, in all things, as though he were his own.</p> <p>The motion to quash the writ was denied, and the plea in abatement was overruled. The petitioner’s motion to strike was denied, and its demurrer to the return overruled-</p> <p>Application for writs in sixteen other cases, involving the custody of sixteen other children, were brought by the petitioner. The petitions in those cases were similar to that filed in the case against John O. Gatti. The return in each of those cases was likewise similar to the return made in the Gatti case. In response to the writs, the children were all produced in court. By stipulation entered into between the counsel for the petitioner and the counsel for the several respondents, it was agreed that the proof adduced in the trial of the application for the writ of habeas corpus in the case of John C. Gatti, the pleadings, and the testimony taken, should be taken, applied to, and considered by the court as filed, taken, and applied in each of the other cases for writs of habeas corpus brought by the petitioner, and that each of said cases should abide the result of the determination of the casé of John C. Gatti. The ease was thereupon tried upon the issues of fact raised by the petition, the return, and an amended traverse to the return filed by the petitioner.</p> <p>The testimony was heard in open court, before the full bench, and, in accordance with the stipulation, was permitted to embrace all the facts deemed relevant and material to all the cases before the court. The testimony and evidence show the following facts:—</p> <p>The New York Foundling Hospital is a corporation organized and existing under the laws of the state of New York, for the purpose of caring for abandoned and deserted, infants found in the city of New York, and such as may be voluntarily surrendered to it, of the age of two years or under; the act amending its charter providing that it should be under the care, management, and control of the religious order known as the “Sisters of Charity.” While the act amending the charter of the hospital does not in terms authorize the institution so to do, it is shown that it has been, from the organization of the hospital, the practice of its managers to place infants of suitable age in homes within and without the state of New York, to be eared for, reared, supported, and educated in such homes by the persons to whom they are given, and that it so places some four hundred and fifty children each year, and that the hospital authorities retain the right to visit such homes and to maintain a supervision over said children until they become of age. The evidence does not disclose the nature or extent of this supervision, nor the method by which it is exercised.</p> <p>During the summer of 1904 the hospital authorities received a letter from a priest temporarily in charge of the parish of Clifton and Morenci, requesting that a certain number of children be sent from the institution to Clifton and Morenci, to be placed within the homes of certain of his parishioners, who were represented by said priest to be of the Spanish race, but to be persons who spoke the English language; that it was the desire of these people that only children of fair complexion be sent. In response to the application, and upon the representations made by the priest, forty children were sent by the petitioner, under the charge of Sister Anna Michella and two other sisters of charity, ■and an agent by the name of Swayne, consigned to the persons whose names had been previously supplied by the priest. These children were of the Caucasian race, and, as requested by the said priest, chosen from among those in the institution who were fairest and lightest in complexion. They were all children of unusual beauty and attractiveness. Their ages were from eighteen months to five years. To the clothing of each child was attached a tag, giving the band number of each child, the name of the person to whom consigned, and the name and date of birth of the child. To each person to whom a child was assigned was sent a letter, signed by the sister superior, requesting that the consignee, within a week after the reception of the child, fill out a blank which was inclosed, containing the name of the child, the name of the foster parents in full, the business occupation and the post-office address of such foster parents, and forward the same to the hospital authorities. The letter also requested that the person to whom each child was assigned should write yearly, about the 1st of May, how the child was progressing, and giving other items of interest. On the evening of October 1, 1904, the children, in charge of said sisters and agent, arrived in Clifton in a special car. It having become a matter of notoriety in Clifton that a number of children were to arrive, to be distributed to Mexican families, a crowd • of Mexicans gathered at the station on the arrival of the train, together with a few American women of good families; the latter being attracted by curiosity and a desire to see the children, who, they supposed, were Mexicans. The children consigned to. the persons in Clifton were taken from the car by those in charge of them, the Americans present assisting in taking them out. The latter were told by the agent that no disposition of the children to the Mexican families would be made that night, and, on being asked by one of the American women, he said that in the morning an opportunity would be given her to make an application for one of the children. Upon the arrival of the train, the priest came into the car, and Sister Anna Michella then asked him what sort of people they were to whom the children were to be allotted. He thereupon said that they were all good American citizens, moral, and had no children of their own, and that the homes were all that could be wished for. Having noticed that some of the people were not as fair in color as she had hoped for and expected, the sister asked him if there would be any half-' breeds among them, and he said, “No.” She asked him how the people lived, and he replied that they lived in' frame houses. She then stated to him that it was the rule of the home that the children were only placed out on trial until such time as. the homes could be visited by the sisters, and that, if it were found that any of the homes were not as expected, the children would be removed. The children to be left at Clifton were taken to the priest’s house, and fifteen of them, under the supervision of the priest, were turned over that night to the persons to whom they were consigned. No visit to or examination of the homes of these people was made at any time, either by the- agent, Swayne, the sisters in charge, or any one, on behalf of the petitioner. They relied entirely upon the statement of the priest.</p> <p>The evidence establishes, without contradiction, that the persons to whom the children were given, as assigned, both in Clifton and Morenci, were wholly unfit to be intrusted with them; that they were, with possibly one or two exceptions, of the lowest class of half-breed Mexican Indians; that they were impecunious, illiterate, unacquainted with the English language, vicious, and, in several instances, prostitutes and persons of notoriously bad character; that their homes were of the crudest sort, being for the most part built of adobe, with dirt floors and roofs; that many of them had children of their own, whom they were unable properly to support. Sister Anna Michella, who was intrusted with the matter of carrying out the instructions of the hospital authorities, was so struck by the unfitness of these people that in three instances she refused to allow the children to be delivered, and in other instances, as testified to by a witness, gave them up “with tears streaming from her eyes”; and from her own testimony it appears'that she was not satisfied with the people to whom they were to be delivered, but that she felt that she could not override the authority of the priest.</p> <p>On the morning of the 2d of October, it became generally known to the American residents of Clifton that the children had been distributed the night before to these people. Much indignation was immediately aroused and an informal conference of citizens was held to discuss the matter of the distribution of the children which had been made. A committee was appointed to go to Morenci and ascertain from the priest and the agent, Swayne, their purposes, and to inform them as to the feeling excited among the Americans over the distribution of these white children to these half-breed Indian families. This committee was composed of one Jeff Dunagan, a deputy sheriff, and one Thomas Simpson. The. committee left Clifton about one o’clock in the afternoon, and arrived in Morenci shortly after two o’clock in the afternoon. They immediately went to see Mr. Mills, the superintendent of the copper company operating at that place, — one of the leading citizens of the town, — and, in company with hiip, went in search of the agent, Swayne, whom they found at the hotel. Dunagan then stated to the agent the feeling which had been aroused in Clifton, their purpose in visiting Morenci, and asked him what he would do in the matter. Both Dunagan and Simpson testified that in response to their inquiries the agent, Swayne, said that he knew his business, and did not propose to be dictated to by the people; that the children “had been placed, and would stay placed.” The testimony of Swayne qualifies the statements of Dunagan and Simpson as to what was said by him on that occasion. But whatever may have been the precise reply made by Swayne, it is not disputed that Dunagan and Simpson telephoned the information to the people in Clifton that they had seen Swayne, and that his reply was that he would not do anything; that the children had been placed, and would stay placed. Upon the receipt in Clifton of this information so telephoned, a meeting of the citizens was held, and a committee of twenty-five persons was named to collect the children from the people to whom they had been consigned, and to bring them to the principal hotel of the place. The members of the committee then visited the various homes of the persons having possession of the children, and stated to the latter that they had been sent by the American residents to take the children from their possession. In each instance the children, without protest, were voluntarily surrendered, and were thereupon taken to the hotel.</p> <p>Upon the arrival of the train in Clifton, all the children were neatly clad, cleanly in appearance, and gave every evidence of careful nursing and proper attention. When the children weré obtained from these people, they were in a filthy condition, covered with vermin, and, with two or three exceptions, ill and nauseated from the effects of coarse Mexican beans, chilis, watermelons, and other improper food which had been fed them, and in some instances from the effects of beer and whisky that had been given them to drink. Upon the arrival of the children at the hotel, certain good women of the place took charge of them, nursed them, and secured medical care and attention for them. On the next day the children were given to the several respondents in these cases, who have since had them in their care, custody, and control.</p> <p>The agent, Swayne, and the priest on the night of October 2d returned with Dunagan and Simpson to Clifton, arriving there in the early morning. Citizens to the number of two or three hundred had assembled, and were waiting for their return. At this meeting much excitement was manifested, but no act of violence was done at that or any other time- Some threats, however, of a general' character, were made by certain persons against the agent, Swayne. Both Swayne and the priest made a statement of their position at this meeting. Swayne at that time was apprehensive that he might receive bodily harm. In his statement at the meeting he said that the children were placed temporarily in charge of the people to whom they had been consigned, but the understanding was that the sisters were to remain for a matter of two or three weeks, and, if it were found by them that any of the children were placed in improper homes, they would be taken from such homes and replaced. He protested against the taking of the children by the American residents, and neither by his consent, nor that of the sisters, were the children either taken from the homes in which they had been placed or given to the respondents. On the next day other meetings were held, at which both the priest and Swayne were present. The Clifton children were not given up to the sisters or the agent by the people who had taken them in charge, for the reason that they feared, if so returned, the children might be again placed in equally unfit homes of Mexican Indians elsewhere. In Morenci, after the distribution of the children, and after the facts had become known, the same indignation was aroused among the American citizens, and much the same course was pursued as in Clifton. Mr. Mills, in company with others, called upon the sisters and upon the agent, Swayne, and remonstrated with them against permitting the children to remain with the people to whom they had been distributed. As a result of these remonstrances, and a statement by Mr. Mills, that the American residents of Morenei would not suffer the children so to remain, the priest and the agent, Swayne, visited the homes of the Mexicans having the children, and obtained a surrender of them, and brought them to the hotel; and these children, with the exception of three, who were turned over, at the request of Dunagan, to be distributed among American residents, were subsequently taken back by the sisters and the agent to the East, and there placed in homes. It is shown by the testimony of Sister Anna and the agent, Swayne, that they would not have given the three Morenci children to Dunagan, except that they then believed that the people of Morenci would not permit any of the children to be taken away by them.</p> <p>It is clearly established by the proof in the case, and it is not disputed, that each of the respondents is a fit and proper person to have the care, custody, and control of the children; that they are people of sufficient means properly to care for and educate the children, and that they are fit persons, by reason of their character, standing, and age, to have and maintain such care, custody, and control; that, without exception, they have become attached to the children, and the children have become attached to them; and that each desires to retain the particular child which he has, in order that he may rear the same as one of his own household.</p> <p>On the 16th of October, applications were made by the respondents to the probate court of Graham County, Arizona, for letters of guardianship of the person of the child which each possessed. Hearings were had, at which this petitioner was represented by counsel, and in each instance letters of guardianship were granted in accordance with said application, and- each, of said respondents duly qualified as such guardian. Thereupon this petitioner took an appeal from the order granting said letters of guardianship in each case to the district court of Graham County. Pending said appeals these petitions were filed, and in response to the writs the children were brought before this court.</p>

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

<p>1. Criminal Law — Statutes — Construction — Criminal — Common-Law Rule — Abolished in Arizona — Rev. Stats. Ariz. 1901, sec. 5, Construed. — The common-law rule that penal statutes must be strictly construed and nothing be left to implication has been abolished in Arizona by section 5, supra, which provides that “The rule of the common law that penal statutes are to be strictly construed has no application to this code. All its provisions are to be construed according to the fair import of their terms, with a view to effect its object and to promote justice.”</p> <p>2. Criminal Law — Grand Larceny — Colt—Subject of — Irrespective op Value — Rev. Stats. Ariz. 1901, sec. 444, as Amended by Act No. 18, Laws 1903, Construed — Martinez v. Territory, 5 Ariz. 55, 44 Pac. 1089, Distinguished. — Under section 444, supra, as amended, making it grand larceny to steal a horse, mare, gelding, etc., the term “mare” is sufficiently comprehensive to include within its meaning property described in an indictment as “one certain animal of the horse species, — to wit, a female colt about one year old,” and the property so described is therefore the subject of grand larceny, irrespective of its value.</p> <p>3. Appeal and Error — Conflict of Evidence — Finding—Conclusive i — Dickson v. Territory, 6 Ariz. 199, 56 Pac. 971, Cited. — Where in a prosecution for grand larceny the intent being a material element of the offense charged, the evidence was such that the jury could have reasonably inferred that the taking was with a felonious intent, their finding will not be disturbed on appeal.</p> <p>4. Evidence — Expert Testimony — Animals—Relationship—Identifying Colt as Belonging to Certain Mare. — In a prosecution for grand larceny it is not error for the court to permit horsemen of experience to state that a colt belonged to a certain mare, their testimony being based upon their experience as stockmen and personal observation of the conduct of the two particular animals toward each other.</p>

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

<p>1. Verdict — Damages—Excessive—Remedy—Remittitur—Rev. Stats. Ariz. 1901, pars. 1389, 1450, 1455, Cited — Southern Pacific Co. v. Tomlinson, 4 Ariz. 126, 33 Pac. 710, Distinguished. — Under paragraph 1389, supra, providing that “in all cases, both at law and in equity, either party shall have the right to submit all issues of fact to a jury” where the court deems excessive a verdict for damages which are in their nature incapable of exact ascertainment, as for injured feelings, and is satisfied that such excessive verdict was due to the influence of passion and prejudice, it was not within the province of the court to substitute its own estimate of the damages for that which it had rejected by ordering a remittitur, but the question of the proper sum to be awarded was one of fact, which should have been submitted to the determination of another jury.</p>

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

<p>1. Justices of the Peace — Jurisdiction — Qualification — Porcible Entry and Detainer — Injunction—Bev. Stats. Ariz. 1901, pars. 2058, 2672, Construed. — Under paragraph 2672, supra, providing that “Any justice of the peace of the precinct where the property is situated shall have jurisdiction to hear and determine any ease arising under this title. If there be no justice of the peace within ■ the precinct, then the nearest justice of the peace shall have jurisdiction,” and paragraph 2058, supra, .providing that “If there be no justice of the peace qualified to try the suit in the proper precinct, the suit may be commenced before the nearest justice of the peace of the county who is not disqualified to try the same,” a complaint in an action to enjoin a judgment in forcible entry and detainer rendered by a justice of a precinct other than that wherein the property was situated, for want of jurisdiction, is insufficient where it fails to allege that the justice within the preeinet was qualified to try the suit.</p> <p>2. Injunction — Pleading ■ — -Against Enforcement of Judgment — Complaint — Sufficiency.—A complaint in an action to enjoin tlie enforcement of a judgment in forcible entry and detainer which fails to show whether or not an appeal has been taken from the judgment or any facts which would constitute ground for the granting of equitable relief is demurrable.</p>

<p>1. Landlord and Tenant — Homestead—Lien on Crop — Rev. Stats. Aeiz. 1901, par. 2695, Construed.. — Paragraph 2695, supra, providing that every landlord shall have a lien upon the crops grown or growing upon the homestead premises for rent, is explicit in its terms, and a landlord has no lien on crops grown on land which is not a homestead.</p>

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

<p>1. Criminal Law — Indictment—Grand Jury — Bev. Stats. Ariz. 1901, Pen. Code, secs. 792, 862, 873, Cited and Construed. — Section 873 of the Penal Code, supra, provides that a judgment sustaining a demurrer to an indictment shall bar another prosecution, unless the' court directs the case to be submitted to the same or another grand jury. Section 792, supra, makes the existence of bias and prejudice on the part of a grand juror grounds of challenge. Another section authorizes the interposition of a challenge to the panel of the grand jury after it has been drawn and has appeared, and at the time of the examination of the jurors as to their qualifications. Subdivision 4 of section 862, supra, provides that an indictment may be set aside, upon motion, when defendant has not been held to answer before the finding of the indictment, on any ground which would have been good ground for challenge either to the panel or to an individual grand juror. Held, that defendant, against whom a second indictment has been returned under section 873, supra, by the same grand jury that had returned a former indictment, is not entitled to a dismissal of such indictment under section 862, supra, because he has had no opportunity to challenge the grand jury for bias under section 792, supra, arising out of their former consideration of his offense, as no such right of challenge exists.</p> <p>2. Embezzlement — -Evidence — Indictment — Bev. Stats. Ariz. 1901, Pen. Code, sec. 460, Construed. — Under section 460, supra, declaring every person intrusted with property for the use of another, who fraudulently appropriates it to any purpose not in the due execution of his trust, guilty of embezzlement, an indictment for embezzlement need only allege, and the evidence need only show, that defendant was intrusted with the property for the use of another, and fraudulently appropriated it to some purpose not in the due execution of his trust, and it is unnecessary to allege or show the particular use or purpose for which the money was intrusted to defendant.</p> <p>3. Same — Same—Admissibility.—When an indictment charged the embezzlement of money deposited in bank under an arrangement by which defendant was entitled to draw the same by check, the cheek by which defendant drew the money which he embezzled was admissible in evidence.</p> <p>4. Criminal Law — Evidence—Privileged Communication — Secondary Evidence. — The contents of a letter written by defendant while in jail, to Ms wife, under a rule of which he bad knowledge, that it would be opened and examined by the jailer, is not a privileged communication; and although the wife will not be permitted to testify thereto, and cannot be compelled to produce the letter, yet the sheriff, who read the letter, may testify to its contents after the-necessary foundation is laid. The fact that the letter could not be secured from the wife, nor the wife be permitted to 'offer it in evidence, authorized the establishment of its contents by secondary evidence.</p> <p>5. Criminal Law — Embezzlement—Perfection of Trust. — The mere-placing of money in bank, subject to defendant’s order, to be used for certain purposes, does not perfect in defendant a trust, within the meaning of the law of embezzlement, but such trust is complete only when he draws the money from the bank pursuant to his-authority.</p> <p>6. Same — Same—Evidence—Held Sufficient. — Held, that the evidence was sufficient to sustain a conviction of embezzlement by defendant of money belonging to his wife and deposited in bank subject to his order.</p>

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

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

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

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

<p>ERROR to the District Court of the First Judicial District in and for the County of Santa Cruz. George R. Davis, Judge.</p> <p>The facts are stated in the opinion.</p>

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

<p>1. Criminal Law — Murder—Trial—Jury—Peremptory Challenges— Severance — Eev. Stats. Ariz. 1901, Pen. Code, secs. 903, 910, 913, 918, 925, Comp. Laws 1877, secs. 714, 726, Cited and Construed.— Under section 726, supra, declaring that a challenge to an individual juror is either peremptory or for cause; section 910, supra, stating the causes for which challenges to individual jurors may be made, and using the term "challenge to an individual juror” as synonymous with "challenge for cause”; section 913, supra, declaring that challenges to individual jurors shall be tried by the court; section 918, supra, providing that challenges to the panel or to the individual juror shall be oral, and shall be entered on the minutes of the court, together with the court's decision thereon; and section 714, supra, as amended, providing that when several defendants are tried together, they are not allowed to sever their challenges, but must join therein, "except a challenge to an individual juror,” two defendants jointly indicted for murder in the first degree, having made no application for severance, as they might have done, under section 925, supra, were only entitled to the number of peremptory challenges each would have been entitled to if separately tried.</p>

<p>1. Bonds — Judgment against Principal — In Suit where Sureties not Parties — Pleading — Breach — Sufficiency. — Where suit was brought against sureties on the official bond of a United States marshal, an allegation that a judgment was recovered against the principal was insufficient to show a breach of the bond, the recovery of the judgment not being the breach, but only the evidence thereof.</p> <p>2. Same — Breach—Pleading—Complaint—Sufficiency.—Where an action was brought against the sureties on the bond of a United States marshal, an allegation that during the life of the bond there was a sum of money in the principal’s hands, the same being the balance which had come into his hands by reason of advances and payments made to him by plaintiff from time to time as marshal, and that he afterwards refused to pay over the same is insufficient to show a breach of the bond, because not alleging that the money was improperly retained.</p>

<p>1. Equity — Jurisdiction—Person—-Land in Foreign State. — A court of equity, having acquired jurisdiction over the person, of the defendant, has jurisdiction to enter any decree which may concern or affect lands situated in a foreign state to the same extent and as fully as though these were situated within the state where the court has its situs.</p> <p>2. Vendor and Purchaser — Fraud—Complaint—Sufficiency — Equitable Belief. — A complaint setting forth that defendants under a contract to purchase of plaintiffs obtained possession of certain mining claims situate in Mexico, and removed the monuments set up by plaintiffs and set them up in another direction, so as to exelude a large body of ore, and then located for themselves a claim where plaintiffs’ claims had been, states facts constituting such fraud and misconduct as to entitle plaintiffs to relief in equity, by declaring defendants trustees of the property covered by the original locations, to require them to convey an interest in said property to plaintiffs, and to enjoin them from selling, encumbering, or otherwise disposing of the same.</p> <p>3. Same — Adverse Possession — Fraud.—Defendants, in possession under a contract of purchase of mining ground, cannot obtain title thereto by an act of actual fraud made possible by the possession thus gained and hold the same adversely to plaintiffs.</p> <p>4. Same — Contract — Purchasing Mining Claim — Vendee’s Failure to Sign — Immaterial—Where Part Payment Made and Possession Taken. — Where defendants make part payment and enter into possession of a mining claim under a contract signed by plaintiffs, they are hound thereby, and the fact that defendants did not sign the contract is immaterial.</p>

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

<p>1. Appeal and Error — Abstracts—Briefs—Failure to File — Dismissal. — Failure of the plaintiff in error to file abstracts and briefs as required by the rules is ground for dismissal of a writ of error.</p> <p>2. Same — Parties—Personal Bepresentatives. — Failure to make the personal representatives of the defendant (who is deceased) in the judgment sought to be reviewed parties to. the suit is ground for the dismissal of the writ.</p>

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

<p>1. Change of Venue — Application for — Notice—Rev. Stats. Ariz. 1901, par. 1381, Construed. — An application for a change of venne is properly denied where the party applying has failed to give five days' notice to opposite party, as required by paragraph 1381, supra.</p> <p>2. Same — Same—Must Be Made When — Rev. Stats. Ariz. 1901, tit. 17, chap. IX, Construed. — After a cause has been tried and is ready for argument, an application for a change of venue is too late.</p> <p>.3. Trial — Nonsuit—Voluntary—Does not Affect Defendant's Right to Judgment on Cross-Complaint — Rev. Stats. Ariz. 1901, par. 1396, Construed. — Paragraph 1396, supra, providing that "at any time before the jury have retired the plaintiff may take a nonsuit, but he shall not thereby prejudice the right of the adverse party to be heard on his own claim for affirmative relief. When the case is tried by the judge, such nonsuit may be taken at any time before the decision is announced,'' means that, whether the ease is tried to a jury or by the judge, the taking of the nonsuit by the plaintiff shall not prevent a defendant from being heard and obtaining judgment upon his cross-complaint.</p> <p>A Cross-Complaint — Sufficiency — Waiver of Defects. — Where a cross-complaint contains sufficient allegations of fact to support the judgment, and there was no fundamental defeet therein, all others were waived by plaintiff in error by withdrawing his demurrer, filing an answer and raising an issue of fact, and introducing evidence in support thereof, without objecting to the sufficiency of the cross-complaint.</p> <p>5. Judgment — Entered in May Term as of October Term — Harmless Error. — Where the court erroneously treated the October term as being open and existing simultaneously with tbe May term, and entered judgment in tbe May term as of tbe October term, tbe error was harmless, plaintiff in error not being thereby denied any of his rights.</p>

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

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

<p>1. Mines and Mining — Locations—Boundaries — Decree — Inconsistent with Findings. — A decree placing the northwest corner of a patented mining claim only five hundred and fifty-five feet from the southwest corner is not sustained by the findings of the court making the claim a rectangular parallelogram with the opposite end-line six hundred feet long.</p> <p>2. Boundaries — Surveys—Monuments—Courses and Distances. — In ascertaining boundaries, where monuments are definitely established, these control courses and distances. Where these are not definitely established and identified, then courses and distances must be followed, unless they be irreconcilable, in wbicb case courses prevail over distances.</p>

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

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

<p>1. Acknowledgment — Validity—Laws Ariz. 1903, p. 56, No. 37, Construed. — Where a power of attorney was executed in Massachusetts in 1902, and the form of acknowledgment was sufficient under the laws of that state, the defect in form under our statutes became cured by the provisions of the aet, supra.</p> <p>2. Same — Same—Chapter 120 or the Public Statutes op Massachusetts op 1882, chapter 253 (p. 243) op the Statutes op Massachusetts op 1894, and the Revised Laws op Massachusetts (p. 1225) Construed. — Where the form of acknowledgment used was sanctioned by chapter 120, supra, and in 1894 the legislature adopted another form, but provided that “either the form of acknowledgment now in use in this state or the following may be used,” chapter 253, supra, and the Revised Laws of Massachusetts (p. 1225, supra) provided that “any conveyance or other written instrument might be acknowledged in any form and manner theretofore lawfully used,” such form is proper.</p> <p>3. Evidence — Title—Letters—Admissibility.—Letters from plaintiff’s grantor, the holder of the legal title, acknowledging that another of plaintiff’s grantors had an equitable interest in certain mining property, were admissible in evidence to establish the ownership in said grantor of an equitable interest in said property.</p> <p>4. Deeds — Construction—Interest Conveyed. — A deed reading “does bargain, sell, release, and forever quitclaim unto tbe party of the seeond part ... all bis right, title, and interest, being an undivided one half of tbe following mentioned and described mining claims,,r is in fact a conveyance of tbe whole interest owned by tbe grantor,, and is not limited to a conveyance of a half-interest only.</p> <p>5. Same — Same—Notice—Innocent Purchaser. — Where defendant, a subsequent purchaser, claims title under a deed purporting to convey an undivided one-half interest in certain mining ground, the declaration in a prior deed to plaintiff by the common grantor that he conveys ‘ ‘ all his right, title, and interest, being an undivided one-half interest ’ ’ in said property, imports notice to the defendant that there is an outstanding undivided one-half interest at the time of his. purchase, and he is not, therefore, an innocent purchaser.</p>

<p>3- Criminal Law — Grand Larceny — Evidence — Sufficiency.—Evidence reviewed and held sufficient to sustain a conviction for grand larceny.</p>

<p>1. Appeal and Error — Criminal Law — Appeal—No Appearance En- ■ tered — May not Be Dismissed. — In a criminal case, where appeal has been taten, and no appearance entered by counsel for appellant, although such practice is reprehensible, the appeal may not be dismissed, but must be considered.</p>

<p>1. Appeal and Errob — Evidence—Conducting—Verdict Based on— Will not Be Disturbed. — Where the evidence is conflicting, and there is substantial evidence to support the verdiet, it will not be disturbed on appeal.</p> <p>2. Criminal Law — Larceny—Venue—Prood—Sufficiency.—Before a verdiet of guilty can be allowed to stand, on an indictment charging a theft of a cow in P. County, there must be some proof adduced whieh will connect the defendant with the commission of the crime in that county. Such proof is not made by evidence whieh shows that the animal was accustomed to range in P. County, was seen there at a certain time, and months afterward was found in defendant’s possession in another county, and that when so found he falsely claimed her as his own.</p>

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

<p>1. Corporations — Pleading — Intervention — Complaint — Insufficiency. — Suit having been brought by a corporation against one of its officers to compel him to transfer to it certain property which he had purchased with the company’s funds and taken the title in his own name, and defendant later having obtained control of the corporation and taken steps to have said suit dismissed, minority stockholders seeking to intervene and prosecute the action to judgment are bound to allege such facts as would support an independent suit brought by them in that behalf and facts showing that the action of the officers would result in loss or detriment to the company, or that the company’s interest would suffer if the action was dismissed, or that some fraud upon their rights was being perpetrated, and it is not sufficient to allege tliat the defendant had obtained control of the company, and that the present officers are acting in “collusion” with him for the purpose of “defrauding” the company, and were attempting to dismiss the suit, to the irreparable injury and damage of the interveners and others similarly situated.</p> <p>2. Practice — Intervention — Dismissal oe at Term Subsequent to Piling — Discretionary.—Where there is no statute limiting the time within which a motion to dismiss a complaint in intervention may be made, and the order granting the interveners leave to intervene was made ex parte, it was clearly within the sound discretion of the court to entertain a motion to dismiss such complaint, though made several months after leave had been granted and at a subsequent term.</p>

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

<p>1. Mines and Mining — Statutes—Relocation—Rev. Stats. Ariz. 1901, par. 3241, Valid. — The statute, supra, relating to relocation of mining ground is not in conflict with the statutes of the United States.</p> <p>2. Same — Relocation—Location Notice — Rev. Stats. Ariz. 1901, par. 3241, Construed. — Under paragraph 3241, supra, providing what work shall be done in relocating an abandoned or forfeited claim, and that the “location notice shall state if the whole or any part of the new location is located as abandoned property else it shall be void,” the reloeator must, in order to have his location certificate valid, recite in such certificate that he locates such claim in whole or in part as forfeited or abandoned ground.</p> <p>3. Same — Forfeiture—Abandonment.—There is clear distinction in law between the loss of the possessory title to a mining claim by forfeiture and its loss by abandonment; one being occasioned after the lapse of the statutory period by a failure to perform those acts by which mining claims are held, or to comply with the requirements of mining regulations, and is complete when some one enters with intent to relocate; and the other is occasioned by the voluntary act of relinquishing possession of the claim with the intention not to return and occupy it, whereby the property forthwith reverts to its original status as part of the public domain.</p> <p>4. Same — Location Notice — Evidence—Rev. Stats. Ariz. 1901, par. 3241, Cited. — Under the statute, supra, where a reloeator’s right is based upon the loss of the possessory right acquired by the former locator, a location certificate which fails to state that the claim is located as forfeited or abandoned property is void, and such certificate is properly excluded from evidence in an action to quiet the title.</p> <p>5. Same — Same—Relocation as Forfeited or Abandoned Ground Admits Validity op Former Location — Estoppel.—If a claim be relocated as a forfeited or abandoned claim, such relocation admits the validity of the prior location and estops the reloeator from proving its invalidity.</p> <p>6. Same — Same—Evidencie—Burden of Proof — Abandoned or Forfeited Claim — Invalidity of Prior Location. — Whether one claims mining ground by virtue of relocating it as forfeited or abandoned ground, or by virtue of location upon a claim hold previously under an invalid location, in either case the burden of proof is on the claimant to prove that the ground was forfeited or abandoned or that the prior location was invalid.</p> <p>7. Same — Action to Quiet Title — Relocation — Evidence — Sufficiency — Rev. Stats Ariz. 1901, par. 3241, Cited. — Where it appeared from the evidence that there ha'd been a prior location, of which the plaintiffs had knowledge, and that the plaintiffs had not located the ground as abandoned ground under the statute, supra, it was incumbent upon the plaintiffs to establish by proof that the prior location was invalid, and in the absence of such proof the complaint was properly dismissed.</p>

<p>1. Mines and Mining — Mining Claim — Relocation—Abandoned Claim . — Location Notice — Insufficiency—Rev. Stats. Ariz. 1901, par. 3241, Construed — Cunningham v. Pirrung, ante, p. 288, 80 Pac. 329, Followed. — Where a prior location was valid, it was a bar to the subsequent location by plaintiff, unless the latter was made as a relocation of abandoned or forfeited ground, and in that event the location certificate was insufficient to support such location, as it did not state "if the whole or any part of the new location is located as abandoned property.”</p> <p>2. Same — Location—Discovery or Vein — Bev. Stats. U. S., sec. 2320, Construed. — Where a location of a mining claim was made in 1894, evidence that there was gold and silver rock upon the claim was sufficient to show the existence of the vein or lode and a compliance with the requirements of the statute, supra, providing that no location shall be made "until the discovery of the vein or lode within the limits of the claim located,” such compliance being all that was necessary in 1894, the statute now in force in Arizona relating to the discovery of mineral not having then been enacted.</p> <p>3. Appeal and Error — Binding op Pact — Presumption—Supported by Evidence — Evidence not Preserved in Becord. — Where the evidence has not been preserved in the record, it will be presumed on appeal that it was sufficient to support a finding of fact.</p> <p>4. Evidence — Location Notice — Certipied Copy — Bev. Stats. Ariz. 1901, par. 1150, Construed. — A certified copy of a duly recorded location notice is to be received in evidence with like effect as if the original had been produced, under the statute, supra.</p>

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

George R. Davis, Judge. Statement of facts:— The United States brought this action on the official bond of Albert J. Griswold as postmaster, to recover for the value of a registered package containing money intrusted to Griswold as postmaster, and' thereafter stolen from him.

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

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

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

<p>1. Bankruptcy — Involuntary .— Petition — Informal—Jurisdiction-Collateral Attack. — The Bankruptcy Act provides that petitioning creditors must have provable claims amounting in the aggregate to the sum of five hundred dollars before they may institute bankruptcy proceedings against a debtor. The form prescribed by the supreme court for a creditors’ petition requires, in addition to the general allegation; that the petitioners have provable claims to the amount of five hundred dollars against the defendant debtor, and a statement setting forth with particularity the nature and amount of each of such claims. Held, where a petition sets forth that the petitioning creditors have provable claims amounting to five hundred dollars, but omits to state the nature and amount of each claim, that such omission does not render a judgment based thereon void for want of jurisdiction and open to collateral attack.</p> <p>2. Same — Petition—'Verification—Not Jurisdictional. — A defect in a verification by' reason that it may not have been made by the proper parties, is a formal matter, and not jurisdictional.</p> <p>3. Same — Jurisdiction—Subpcena.—Where a subpcena issued in bankruptcy proceedings was served on a member of a firm, and in effect notified him that a petition in bankruptcy had been filed by the petitioning creditors, and that it prayed for an adjudication of bankruptcy against the firm, whatever informality there may have been in the form of the subpcena, it nevertheless contained sufficient to put the member of the firm served upon notice of the proceeding.</p> <p>A Same — Jurisdiction—Service upon Partner — Over-Partnership— Act Congress July 1, 1898, chap. 541, sec. 5, subd. o, 30 Stats. 547 (U. S. Comp. Stats. 1901, p. 3424), Construed. — Under section 5, subdivision c, supra, providing that “the court of bankruptcy which has jurisdiction of one of the partners may have jurisdiction of all the partners and of the administration of the partnership and individual property,” a subpoena served on a partner gives the-court jurisdiction to administer the partnership property.</p> <p>5. Appeal and Error — Assignments of Error — Not Argued in Brief —Waived.—Assignments of error not argued by counsel in brief ■wiU not be 'considered.</p> <p>6. Same — Bindings—Evidence—Sufficiency—Review.—Where the evidence is sufficient to sustain a finding of fact, such finding will not. be disturbed on appeal.</p>

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

Richard E. Sloan, Judge. On appeal to the United States Supreme Court. Statement of facts:— On April 11, 1901, George O. Marrs filed in the United States Land Office at Prescott his application for a patent to the Copper Link mining claim. George A. Treadwell and F. C. Beckwith filed an adverse to such application, and within the time prescribed by law brought this action in support of such adverse.

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

<p>APPEAL from the District Court of the First Judicial District in and for the County of Cochise. F. M. Doan, Judge.</p>

<p>APPEAL from the District Court of the First Judicial District in and for the County of Cochise. F. M. Doan, Judge.</p>

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

<p>APPEAL from the District Court of the First Judicial District in and for the County of Cochise. P. M. Doan, Judge.</p>

<p>APPEAL from the District Court of the First Judicial District in and for the County of Cochise. P. M. Doan, Judge.</p>

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

<p>APPEAL from the District Court of the First Judicial District in and for the County of Cochise. F. M. Doan, Judge.</p>

<p>1. Mortgage — Equitable Mortgage — How Created — Intent. — To ereate an equitable mortgage or lien upon property for the payment of a debt, an intention to ereate sueb must be manifest, as distinguished from an intention to apply to the payment of the debt the proceeds from the sale of the property.</p> <p>2. Same. — An agreement construed, and held not to disclose an intention to create an equitable mortgage or lien upon property.</p> <p>(Syllabus by the court.)</p>

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

<p>1. Taxes and Taxation — Curative Legislation — Laws 1903, p. 148, No. 92, sec. 105, Construed. — The purpose of the curative portion of the act, supra, is to prevent a person from escaping the payment of taxes due from him by reason of acts or omissions on the part of taxing officials, where such acts or omissions are mere irregularities, and are of such a nature that the legislature might by prior statute have dispensed with them. Such a law is within the legislative discretion, and is a valid exercise of its powers.</p> <p>2. Same — Assessment-Boll—Certifying—Bev. Stats. Ariz. 1901, par. 3864, and Laws 1903, Act No. 92, sec. 105, Construed. — The requirement of paragraph 3864, supra, that the assessor shall attach his certificate to the assessment-roll is directory, and his omission to comply with sueh requirement does not invalidate the assessm«nt, unless the taxpayer is in fact prejudiced thereby. It is an irregularity merely, such as is covered and cured by the provisions of section 105, supra.</p> <p>3. Appeal and Error — Record—Evidence—Not Incorporated in Record — Review—Taxes and Taxation — Assessment-Roll.—Alleged error in the failure of the assessor to comply with requirements of the law in making up assessment-rolls will not be reviewed where the assessment-roll is not before the appellate court and the record as preserved does not diselose whether or not the contention is well founded.</p> <p>4. Taxes and Taxation — Evidence—Officers—Duties—Presumption of Performance. — In the absence of evidence to the contrary, in an action to collect delinquent taxes, the legal presumption attaches that officers intrusted with the duties of properly returning and certifying the delinquent lists and equalizing the assessment duly performed sueh duties.</p> <p>5. Same — Tax-Sale—Redemption—Laws 1903, p. 148, No. 92, Construed. — Under the statute, supra, providing that execution shall issue- upon the judgment against the real estate named in the judgment, and directing the sheriff to sell the property to pay the judgment, “the same as the sheriff might do under ordinary execution,” a sale thereunder would be governed by and follow the general statute.</p> <p>6. Same — Constitutional Law — Special Legislation — Tax-Sales— Redemption — Rev. Stats. Ariz. 1901, sec. 63, “Harrison Act,” Cited — Laws 1903, Act No. 92, Construed and Held Constitutional — Hughes v. Lazard, 5 Ariz. 4, 43 Pac. 422, Followed.— While act No. 92, supra, does not provide that there shall be" no redemption from tax-sale, yet, even if it did, it would not be in conflict with the provision of the “Harrison Act,” supra, prohibiting the passage of any local or special law regulating practice in courts of justice.</p> <p>7. Same — Due 'Process of Law — Retrospective Legislation — Laws 1903, Act No. 92, Construed. — The legislature possessing the power to validate retrospectively any proceeding that it might have authorized in advance, act No. 92, supra, which provides a remedy and procedure for the collection of taxes already due, does not deprive a person of property without due process of law, in violation of the fourteenth amendment of the constitution of the United States.</p> <p>8. Statutes — Laws 1903, p. 148, No. 92, not Void for Uncertainty. —The statute, supra, is not void for uncertainty.</p>

Original Petition for Writ of Certiorari. Demurrer to the. amended application for the writ, sustained. The facts are stated in the opinion.

<p>APPLICATION for a Writ of Mandamus. Demurrer sustained.</p> <p>On appeal to the United States Supreme Court.</p> <p>The facts are stated in the opinion.</p>

Eugene A. Tucker, Judge. Statement of facts:— Sacarías Ruval was indicted for the larceny of a gelding. The indictment was dismissed on the ground that the law defining the offense had been repealed. The territory has appealed. Reversed.

Edward Kent, Judge. Statement of facts:— A. L. Henshaw and others, minority shareholders of The Salt River Valley Canal Company, brought suit against that company and others to obtain certain equitable relief. To the complaint defendants interposed a demurrer. The demurrer was sustained, and judgment entered thereon. From this judgment plaintiffs have appealed. Reversed.

<p>1. Mines and Mining — Adverse Possession — Evidence. — Actual, visible, and continuous possession of a mine may not be held to have been initiated and maintained by one who sinks deeper by six or ten feet a shaft of unstated depth already existing thereon, and thereafter does no other act upon the property for a period of seven years, in the absence of proof that this act would naturally attract attention of the owner should he visit the premises.</p> <p>2. Same — Sufficiency.—Hostile acts relied upon to initiate adverse possession to real estate must be such as to carry with them a presumption that they would be observed by the owner, were he to visit the premises;</p> <p>3. Statutes — Interpretation.—When prior to its adoption a statute has received an interpretation by the court of last resort of the state from which it was adopted, such interpretation is adopted with the statute. »</p> <p>4. Quieting Title — Possession.—An action to quiet title does not lose its equitable features by reason of the fact that by statute its procedure has been somewhat modified and its scope enlarged, so as to permit it to be pursued by a plaintiff out of possession.</p> <p>5. Equity — Laches.—Where an equitable action is brought within the statutory time for the analogous action at law, if it does not so appear on the face of the bill, the defendant must show by his answer that extraordinary circumstances exist which require the application of the doctrine of laches.</p> <p>6. Quieting Title — Laches.—In a suit to quiet title, plaintiff is not guilty of laches as against a defendant who has been in possession for less than three years, where the only grounds for urging laches are that the plaintiff has failed to pay his taxes, or list his property for taxation, for a period of eleven years, and that the defendant, holding a void tax-deed to the property in question, has paid the taxes during the eleven years, and has within three years expended seven hundred and eighty dollars in improvements.</p> <p>(Syllabus by the Court.)</p>

<p>1. Waters — Municipal Corporations — Grant op Franchise — Implied Contracts. — There cannot- be an implied contract in a grant of franchise by a municipality that it will do nothing to impair or destroy the value thereof, or that it will not enter into competition with the grantee. Such a restraint can be imposed only by express provision.</p> <p>2. Same — Operation of Waterworks — Judicial Beview. — The question whether the construction and operation by a city of a system of waterworks, determined upon in a lawful manner, would be an economical and wise enterprise is not a matter for judicial inquiry.</p> <p>3. Municipal Corporations — Issue of Bonds — Election—Collateral Attack. — An election to determine whether municipal bonds shall be issued having been held lawfully and the return thereof, lawful on its face, showing the proposition to have prevailed by the lawful majority, the return cannot be attacked collaterally for errors or fraud in the conduct of the election or in the registration preceding it.</p> <p>(Syllabus by the Court.)</p>

<p>1. Railroads — Public Lands — Grant of Right of Way. — Legal title to a right of way sought by a railroad company under the grant of the act of Congress of March 3, 1875, (chap. 152, 18 Stats. 482; IT. S. Comp. Stats. 1901, p. 1568,) vests upon the approval by the secretary of the interior of- the profile of its road, and not prior thereto.</p> <p>2., Same — Rival Claimants — Approval of Profile. — When rival aspirants for the same right of way under the aet of Congress of March 3, 1875, (chap. 152, 18 Stats. 482; IT. S. Comp. Stats. 1901, p. 1568,) file profiles covering it, a duty devolves upon the secretary of the interior to determine from the facts which company has superior claim to the approval of its profile and to give his approval aeordingly.</p> <p>3. Same — Contest in Interior Department.- — While a contest is pending before the secretary of the interior between rival railroad companies seeking approval of conflicting profiles of their roads under the act of Congress of March 3, 1875, (chap. 152, sec. 4,-18 Stats. 483; U. S. Comp. Stats. 1901, p. 1569,) courts should not assume jurisdiction to determine the ultimate right of possession of the right of way in controversy.</p> <p>4. Same — Injunction.—Pending determination of such a contest, a court ought, in the interest of the public as well as in the interest of the company showing the greater immediate equity, upon application of the company interested, by appropriate temporary orders, to protect it in the construction of its road.</p> <p>5. Same — Change of Location.; — -A railroad company which has obtained approval, under the act of Congress of March 3, 1875, (chap. 152, sec. 4, 18 Stats. 483; U. S. Comp. Stats. 1901, p. 1569,) of a profile of its road, may change a portion of its location, provided such change does not interfere with intervening rights.</p> <p>6. Same. — A rival company which is not misled by the acts of a company so changing or seeking to change its location, and which has not acquired intervening rights, may not be heard to complain of such change.</p> <p>(Syllabus by the Court.)</p>