Volume 9 — Idaho Reports

<p>APPEAL from District Court, Custer County.</p> <p>The first point presenting itself for' consideration is the right to oppose the motion tó dissolve an injunction by affidavits. If an injunction be granted' without notice, the defendant, at any time before the trial, may ’apply to the judge who granted the injunction, or to the court in which the action is brought, 'to dissolve or modify the same. The application may he made upon the complaint, and the affidavit on which the injunction was granted, or.the answer, or upon affidavit on the papt of the defendant, with or without the answer. If the, application be made upon affidavits on the part of the defendant, it must be upon reasonable notice to the plaintiff, and in that case, but not otherwise, the plaintiff may oppose the same by affidavits or other evidence in addition to those on which the injunction was granted. (Bev. Stats., secs. 4295, 4297; Hiller v. Collins, 63 Cal. 235; Falkingburg v. Lucy, 35 Cal. 60, 95 Am. Dec. 76; Hicks v. Compton, 18 Cal. 206.) If the defendants move to vacate and dissolve the injunction on the complaint alone, then for the purposes of the motion all the allegations of the complaint are true. (Farish v. Coon, 40 Cal.' 33.) Where grave questions are involved, and the dissolution of injunction may occasion serious damage, the injunction should never be dissolved. (Patterson v. Board of Supervisors, 50 Cal. 344; Gilpin v. Sierra Nevada etc. Min. Co., 2 Idaho, 696, 23 Pac. 547, 1014.)</p> <p>The rule seems to be almost, if not quite, universal, that the granting or refusing to grant, dissolving or refusing to .dissolve; preliminary injunctions is left to the discretion of the district courts, and the higher courts will not interfere unless it is fully convinced that the district court has abused its discretion. (De Godey v. Godey, 39 Cal. 167; McGreery v. Brown, 42 Cal. 461; Rogers v. Lamant, 45 Cal. 184; Patterson v. Board, of Commrs., 50 Cal. 344; Callet v. Central Pac. R. Co., 52 Cal. 65; Payne v. McKinley, 54 Cal. 532; Parrot v'. Floyd, 54 Cal. 534; White v. Numan, 60 Cal. 406.)</p>

<p>APPEAL from District Court, Lincoln County.</p> <p>The facts are set out in the opinion.</p> <p>Can an action be maintained against the state in the district court? Plaintiff seeks to condemn for an alleged public use lands belonging to the state of Idaho and1 granted to said state by act of Congress of July 3, 1890, for the support of commons schools. The first objection is that the action is brought against the state, and it nowhere appears, in the constitution or the statutes, that the state has given its consent to be sued in the district court of the state. “A state is not liable to suit in its own courts or those of the United States or of any other state without its expressed consent”; and its consent must be given either by its constitution or by its legislative enactments.' (23 Am. & Eng. Ency. of Law, 1st ed., 83, and notes; Cooley’s Constitutional “Limitations, 17, and note; Raüroad Go. v. Tennessee, 101 U. S. 337, 25 L. ed. 960; Railroad Go. v. Alabama■, 101 U. S. 832, 25 L. ed. 937; In re Substitution for Senate Bill, 21 Colo. 69, 39 Pac. 1088; People v. Niles, 56 Cal. 401; Sawyer v. Colgan, 102 Cal. 292, '36 Pac. 580; Alpin v. Board of Supervisors, 73 Mich. 182, 16 Am. St. Rep. 576; Galbes v. Girard, 46 Fed. 500; Lanford v. King, 1 Mont. 33, 38; Firl v. Guthburt, 2 Mont. 593, 598; Orleans Nav. Go. v. Schooner Amelia, 7 Mart. (La.), 571, 12 Am. Dec. 516, and note; New York v. Dennisno, 84 N. Y. 272; Beers v. Arkansas, 20 How. (U. S.) 527, 5 L. ed. 991; Ex parte Bunn, 8 S. C. 207, 231.) Sections 16 and 36 in every township having been granted by Congress to the state for the support of common schools, the same are dedicated for that object. Every disposition inconsistent with such dedication is expressly prohibited. {Ham, v. Missouri, 18 How. (U. S.) 126, 15 L. ed. 334, 336.) The use in the complaint is not a public use. We look in vain in section 5210 of the Revised Statutes, which enumerates the uses in behalf of which the right of eminent domain may be exercised to find therein the use for which plaintiif seeks to condemn this land. There is no provision in this section whereby the fee, or any easement, in lands may be acquired by an exercise of the right of eminent domain for the laying of pipes or conduits, for the construction of canals, flumes of ditches for the purpose of conveying water to a manufacturing plant, or for providing a site upon which a manufacturing plant-may be built. A plant for the manufacturing of electricity is a manufacturing plant or factory. {Lamborn v. Bell, 18 Colo. 346, 32 Pac. 989.) The right of eminent domain can only be exercised by virtue of legislative enactment, and unless so authorized the power is latent and potential merely. (1 Lewis on Eminent Domain, 2d ed., sec. 237, and notes on pp. 562, 563; 7 Am. & Eng. Ency. of PI. & Pr. 467, 468, par. 2, and note; Matter of Thomson, 86 Hun, 405, 33 N. Y. Supp. 467; Matter of Poughkeepsie Bridge Co., 108 N. Y. 483, 15 N. E. 601.) When property is taken for public use, the owner is entitled to its market value for the use to which it may be most advantageously applied and for which it would sell for the highest price in the market. (King v. Minneapolis Union By. Co., 32 Minn. 224, 20 N. W. 135; 2 Lewis on Eminent Domain, 2d ed., secs. 478, 479, and notes; Seattle etc.-By. Co. v. Murphine, 4 Wash. 448, 30 Pac. 720 (see last column, p. 722); San Diego Land etc. Co. v. Neale, 78 Cal. 63, 20 Pac. 372; Boom Co. v. Patterson, 98 H. S. 403, 25 L. ed., 206 (see p. 208, bottom first column); 6 Am.- & Eng. Ency. of Law, p. 567, par. 4, and note, and p. 569, par. 2, and note.)</p> <p>We do not question the principle of law that a state cannot be sued without its consent. Condemnation proceedings are, however, not necessarily suits in the ordinary acceptation of that term, since they are frequently conducted before special tribunals without resort to the courts. (7 Ency. of PI. & Pr. 467.) Conceding that these proceedings are equivalent to a suit, under our practice we find that the statute has directly authorized the state to be brought into court. Section 5212 of the Revised Statutes provides: “The private property which may be taken under this title includes: .... 2. Lands belonging to this territory .... not appropriated to some public use.” The word “territory” was, by act of the legislature, changed to “state,” and this act has been held valid by this court. (Gilbert v. Moody, 3 Idaho, 3, 25 Pae. 1092.) The proceedings must, under section 5215 of the Revised Statutes, be brought in the district court, and by section 5228, the provisions of the code relative to civil actions are made applicable and constitute the rules of practice. If there is no special statutory provision for service of summons on the state, then service may be made on the governor and attorney general. . (State v. Steele, 57 Tex. 200; State v. Coolc, '57 Tex. 205; Commonwealth v. Railway .Co., 3 Cush. 25, 47; Chisholm-v. Georgia, 2 Dali. 419, 469.) The statutes cited give as specific authority to make the state a party to these proceedings as could possibly be given. The statute was passed before our admission to statehood. The territory had power to pass this act. (Oury v. Goodwin, 3 Ariz. 255, 26 Pac. 377.) Can school lands be.taken under the power of eminent domain ? Eminent domain is a paramount governmental power. Though the taldng may be by an agent of the state in charge of the public use, the act is none the less an act of the state in the exercise of its sovereign power. “The right of eminent domain belongs to every independent government. It is an incident of sovereignty and requires o no constitutional recognition.” (United States v. Jones, 109 IJ. S. 513, 3 Sup. Ct. Eep. 346; Gilmer v. Lime Point, 18 Cal. 229; Moran v. Ross, 79 Cal. 159, 21 Pac. 547.) “The power of eminent domain is one of the inalienable incidents of sovereignty which, treated simply as a question of power, may be exercised in favor of public uses over any and all private and even public property.” (Southern Pac. Ry. v. Railway Co., Ill Cal. 221, 43 Pac. 602; Lewis on Eminent Domain, sec. 2; Parmalee v. Railroad Co., 7 Barb. 559 (624); Brimmer v. Boston, 103 Mass. 19.) It has been held that the state could exercise the right of eminent domain over the lands of the United States. (United States v. Chicago, 7 How. 185 (194); United States v. Bridge Co., 6 McLean, 517, Eed. Cas. No. 16,114.) This being the case, the United States could not, by the terms of its grant to the state, take away the power of eminent domain. (See, also, Indiana Cent. Ry. v. Indiana, 3 Ind. 421.) Is the use for which the lands are sought a public use? Section 14, article 1, of the state constitution, which is self-executing, covers this point fully. Section 5210 provides that the right may be exercised in favor of “steam and horse railroads.” This will include" electric railroads. (Oregon Ry. Co. v. Ogden, 7 Utah, 207, 26 Pac. 288.) The question of public use was not submitted to the jury, but was found on by the court. There is no specification of the insufficiency of the evidence on this point to sustain the finding and the question is not before this court. It was not necessary to allege in the complaint the refusal of’ the land board to grant ns the right of way desired, and therefore no proof was necessary. Even if it had been, the fact that the board is not authorized by law to make such grant would be a sufficient- refusal. (Batch v. County Commrs., 103 Mass. 106.) All of the testimony as to the value, on the part of appellant, was incompetent and should have been stricken out. (San Diego Co. v. Neale, 88 Cal. 50, 25 Pac. 977.)</p>

<p>APPEAL from District Court, Ada County.</p> <p>The facts are fully stated in the opinion.</p> <p>The court should not order injunction to issue without an adequate undertaking in form required by law. The original bond is a part of the record. It is for only $250, and did not have attached the affidavit required by section 3749 of the Code of Civil Procedure of 1901, stating that the sureties were either householders or freeholders. This matter was called to the attention of the court in the motion to dissolve. The court ordered the modified injunction without requiring any undertaking whatever. The undisputed testimony, showed a probable loss of more than $2,500. We respectfully submit that under the provisions of section 3749, above mentioned, an undertaking without this affidavit is a nullity. Also, that it was the duty of the court, upon making the order appealed from in this case, to require a bond in sufficient amount to' protect the defendants. This case stands as if there were no undertaking whatever. It is necessary that bond be given. (McCracken v. Harris, 54 Cal. 81; Schacht v. Odell, 52 Cal. 448.) We are unable to find any authority holding that, the destruction of annual crops is sufficient ground for injunction without insolvency. (Fulton Irr. Ditch Co. v. Twombly, 6 Colo. App. 554, 42 Pac. 254.) The loss of crops could have been compensated in damages at the end of the season. Equitable relief can only be invoked when there is no adequate legal remedy. Where realty is damaged by the destruction of trees or permanent improvements, the measure of damages is the difference between the value of the real estate with and without the improvements or trees destroyed; but in case of destruction of crops we find that they are valued wholly separate and independent from the real estate. (Shotwell v. Dodge, 8 Wash. 337, 36 Pac. 254; Gause v. Perkins, 3 Jones Eq. (N. C.) 177, 69 Am. Dec. 728.) Neither defendants in the case nor the court can say what land, if any, of the plaintiffs is being irreparably injured. “It is a general rule of equity plead’ings that in a suit for an injunction the plaintiff’s bill must allege that he has some interest or title which it is the duty of the court to protect; and so it has been held that, in a suit to restrain a nuisance, the plaintiff must aver that he was the owner of the premises affected by the nuisance at the time when the case complained of was commenced.” (14 Ency. of PI. & Pr. 1143; Stone v. Bumpus, 40 Cal. 428; Denner v. Chicago etc. Ry. Co., 57 Wis. 218, 15 N. W. 158.) “Mandatory preliminary injunctions are seldom granted and only in a particular class of cases; and obviously, alleged nuisances ought not, in ordinary cases, to be abated by preliminary injunctions.” (Stewart v. Superior Court, 100 Cal. 543, 35 Pac. 156, 563; Gardner v. Stroever, 81 Cal. 150, 22 Pac. 483; Delger v. Johnson, 44 Cal. 182; Hagen v. Beth, 118 Cal. 330, 50 Pae. 425.)</p> <p>Tbe order complained of was not granted until tbe court had carefully considered and balanced the inconveniences likely to be incurred by the respective parties through the granting or withholding of the injunction. The issuance, dissolution or continuance of a preliminary injunction is a matter within the sound discretion of the court that issues the injunction, and it is the settled rule in such cases that the appellate court will not interfere with the exercise of that discretion, except in a ease of palpable error or abuse of discretion. (Washington etc. Go. v. Ooeur d’Alene etc. Go., 2 Idaho, 439, 17 Pac. 143; White v. Hunan, 60 Cal. 406; Parrott v. Floyd, 54 Cal. 534; 10 Ency. of PL & Pr. 983.) This is specially true where the court examines the premises in person, as the court on appeal cannot tell what he saw. The court that grants a preliminary injunction may, in its sound discretion, modify it at any time before the final hearing. (Hobbs v. Canal Co., 66 Cal. 161,4 Pac. 1147; 10 Ency. of PL & Pr. 1093.) Counsel insist that the "court should not order an injunction to issue without an adequate undertaking in form prescribed by law.” It is then insisted that the words "house” or "free” having been omitted from the affidavit made by the sureties and attached to the undertaking, render the undertaking a nullity. Counsel seem to overlook the provisions of section 3387, under which this undertaking was given. Appellants have never excepted to the sufficiency of the undertaking filed herein. It is true appellants in their motion to quash, filed July 1, 1903, among other things, set forth "that plaintiffs have not filed a bond herein in compliance with the law, and the sureties thereon have failed to justify or qualify according to law.” This is in no sense an exception to the sufficiency of the sureties. (Schact v. Odell, 53 Cal. 448.) An injunction should not be absolutely dissolved for a failure to require the statutory bond. The proper order would be that a bond be executed within a reasonable time, or the injunction be discharged in default thereof. (Jones v. Swing, 56 Ala. 360; New v. Wright, 44' 'Miss. 303; Palmer v. Sllegood, 4 Del. Ch. 53.) A defect in an injunction bond does not operate to dismiss the injunction suit. (Massey v. Mann, 17 Iowa, 137; Alexander v. Chiseling 5 Gill, 138; Manley v. Leggett, 17 N. Y. Supp. 68, 62 Hun, 562.) Counsel contend that it does not appear that, the plaintiffs have not an adequate remedy at law. Where equity can give relief, the complainant will not be compelled to speculate upon the chances of his obtaining relief at law. This doctrine has been applied in numberless instances. (16 Am. 6 Eng. Ency. of Law, 355; Staples v. Rossi, 7 Idaho, 618, 65 Pae. 67.) In actions for diversion of water, where there is a clear violation of an established right and a threatened continuance of such violation, it is not necessary to show actual damages or a present use of the water in order to authorize a court to issue an injunction or make it perpetual. (Mott v. Ewing, 90 Cal. 231, 27 Pae. 194; Conlcling v. Pacific Imp. Co., 87 Cal. 296, 25 Pac. 399; Lux v. Haggin, 60 Cal. 278, 10 Pac. 674; Moore v. C. L. W. W., 68 Cal. 151, 8 Pac. 816.)</p>

The offense of usury consists in taking unlawful interest. The contract to take or accept was never a crime. (McClure v. Williams, 7 Vt. 210; Webb on Usury, sec. 481; 27 Am. & Eng. Ency. of Law, 940.) The contract declares only the intent. Taking the money is committing the crime. Between them is the tempus poenitentiae. If the lender repents, although it be from fear, and stops after the first, the last will never come, and therefore he retreats in time.

<p>Misconduct of Pbosecutob — Imputing Other Crimes, ro Defendant —Admission of Evidence — Prejudicial Error — Duty op Pbosecutob. — Where an assistant prosecutor asks the son of the accused, on cross-examination, if he had not stated to A. that he suspected his father of having committed a similar offense with other girls, one a member of his family, and that sueli conduct on the part of the accused caused the death of witness’ another, and that if at such conversation witness did not cry> and say, “I can’t go against my father, even if he is guilty,” and repeatedly asks substantially the same questions, such conduct of the prosecutor is reversible error. Such questions are improper cross-examination, and should not be allowed under the guise of impeaching the witness. It is- the duty of the prosecutor to see that á defendant has a fair trial, and that nothing but competent evidence is submitted to the jury; andi above all things he should guard against anything that would prejudice the minds of the jurors, and tend to hinder them from considering only the evidence introduced. He should never seek by any artifice to warp the minds of the jurors by inference and insinuations.</p> <p>(Syllabus by the court.)</p>

<p>APPEAL from District Court, Boise County.</p> <p>The facts are stated in the opinion.</p> <p>The mortgage in question covered the stock in trade of a wood dealer, permitted him to remain in possession with power to .sell the mortgaged stock, and contained no provision that the proceeds and profits of the sale of said mortgaged property should he applied in payment of the mortgage debt, and is therefore void as to creditors. (Lewiston Nat. Banlc v. Martin, 2 Idaho, 734, 23 Pac. 920; Harbison v. Tufts, 1 Colo. App. 140,,27 Pac. 1014; Lyon v. Council Bluffs 8av. Banlc, 29 Eed. 666; Aiken v. Pascall, 19 Or. 493, 24 Pac. 1039; Wilson v. VoigM, 9 Colo. 614, 13 Pac. 726; Roberts v. Johnson, 5 Colo.. App. 406, 39 Pac. 596; Brasher v. Christophe, 10 Colo. App. 284, 15 Pae. 408; Rochelean v. Boyle, 11 Mont. 451, 29 Pac. 872; Byrd v. Forbes, 3 Wash. Ter. 318, 13 Pac. 715.) The power to sell will be implied from the terms of the instrument' and character of the mortgaged property. (Brasher v. Christr ophe, supra; Harbison v. Tufts, supra; Collins v. Myers, 16 Ohio, 547; Roden v. Norton, 128 Ala. 129, 29 South. 637; Hedges v. Polhemus, 9 Mise. Eep. 680, 30 N. Y. Supp. 556; Robbins v. Parker, 44 Mass. 117; Simpson v. Mitchell, 16 Tenn. 417; Davenport v. Foulke, 68 Ind. 382, 34 Am. Eep. 265; Mobley v. Letts, 61 Ind. 11; Benedict v. Renfro, 75 Ala. 121, 51 Am. Eep. 431; Perry v. Shenandoah Nat. Bank, 27 Gratt. 755; Sommerville v. Horton, 4 Yerg. 541, 26 Am. Dec. 245.) The fact that a mortgage was taken for a larger amount than was due, from one known by the mortgagee to be in failing circumstances, and pressed by his creditors, is conclusive evidence of fraud. (Butts v. Peacock, 23 Wis. 359; Bailey v. Burton, 8 Wend. 339; Divver v. McLaughlin, 2 Wend. 596, 20 Am. Dec. 655; Cheatham v. Hawkins, 80 N. C. 161; Wallach v. Wylie, 28 Kan. 138.) Defendants pleaded and proved an estoppel. Under the plainest principles of equitable estoppel, the mortgagees should not be allowed to enforce this mortgage. (Lick v. Munro, 8 Idaho, 510, 69 Pac. 285.) A much wider latitude of inquiry is permissible in cases involving a charge of fraud than those where no such element exists or is alleged. (Murch v. Swensen, 40 Minn. 421, 42 N. W. 290; Walter v. Gam ant, 13 Pa. St. 515, 53 Am. Dee. 491; Stewart v. Severance, 43 Mo. 322, 97 Am. Dec. 392; Bump on Fraudulent Conveyances, 588, 589.)</p> <p>We need not cite authorities to the effect that the mortgagees were not affected by the fact that the mortgagor sold part of the wood) or that he contemplated fraud against his creditors. The mortgagees must have consented to such sale, or had knowledge of such fraudulent intent. There is no evidence of either such knowledge or consent. (Jones on Chattel Mortgages, 4th ed., secs. 335-343.) The law of Missouri as determined by the courts, is identical with the law of this state. Yet it is there held that the mortgage is not void as to creditors, unless it appears from a consideration of the whole instrument, that it was necessarily the intention of the parties that the mortgagor should continue to sell; and that such intention must appear either by express terms or by necessary implication. (Jones on Chattel Mortgages, sec. 397; Weber v. Armstrong, 70 Mo. 217.) The intent of the statutes providing for the recording of mortgages on personal property was to do away with the necessity of any delivery of the property, and to enable mortgagors to hold possession until default. For this purpose registration is required as giving, perhaps, even greater notoriety to the transaction than delivery and retention of possession. Registration thus becomes a substitute, as well for delivery as for retaining possession of the property. (Jones on Chattel Mortgages, 4th ed., 211; Lewiston ■ Nat. Bank v. Martin, 2 Idaho, 734, 23 Pae. 920.) A mortgagee’s title cannot be defeated by the subsequent acts or declarations of the mortgagor, impeaching it as void against his creditors. (Toms v. Whit-more, 6 Wyo. 220, 44 Pac. 57, 58; Jones on Chattel Mortgages, sec. 342.)</p>

The facts are fully stated in the opinion. Where the relation of debtor and creditor exists and conveys anees are made, or property is delivered by the debtor to th® creditor, the legal presumption is that the relation continues and that the transfers were made as further security for th® debt. (Hickok v. Lewe, 10 Cal. 207; Marshall v. Thompson„ 39 Minn. 137, 39 N. W. 309; Simpson v. First Nat.

<p>Sale of Personal Property — Delivery and Possession. — 1. A transfer of personal property is attacked as fraudulent under section 3021 of tlie Eevised Statutes of 1887 on the grounds that it was not “accompanied hy an immediate delivery and followed by an actual and continued change of possession of the things transferred.” Evidence examined, and held, sufficient to support a verdict and judgment upholding such transfer. 2. The determination as to what constitutes “immediate delivery” and “actual possession” is purely a question of fact, to be determined by the jury from all the evidence in each particular case. 3, Where, after examination of the evidence on appeal, the appellate court would hesitate before either saying there is or there is not sufficient evidence to sustain the verdict, the judgment will not be disturbed.</p> <p>(Syllabus by the court.)</p>

<p>• APPEAL from District Court, Nez Perce County. Honor-. ableiC. L. McDonald, Judge, pro tern. .</p> <p>Suit by L. E. Marchand to foreclose a chattel mortgage; defendant answered and filed counterclaim, and prayed for affirmative relief. Judgment and decree of foreclosure entered in favor of plaintiff. Defendant moved for a new trial and from the judgment and order denying his motion, appeals.</p> <p>cites no authorities on the points decided not contained in the opinion.</p> <p>cite no authorities.</p>

<p>Receiver — Corporation—Suit of Stockholder — Courts of Equity.</p> <p>1. On certiorari to review the appointment of a receiver of a corporation, the only question to be considered is the jurisdiction of the court or judge to make such appointment.</p> <p>2. Held, under the application in this ease for the appointment of a receiver that the judge had jurisdiction to appoint one pendente lite under the provisions of subdivision 6 of section 4329, Revised Statutes.</p> <p>3. As far as possible courts of equity should adapt their practice to the existing conditions of the business world and apply their jurisdiction to the changed conditions and cases arising thereunder, and should not too strictly adhere to forms and rules established under different circumstances and decline to administer justice and enforce rights for which there is no other remedy.</p> <p>(Syllabus by the court.)</p>

Honorable A. E. Mayhew, Judge. Defendant was convicted of the crime of murder in the first degree and appealed from order overruling motion for new trial, and judgment. At the time of this homicide the deceased and the appellant were both in the employ of the Standard Mining Company, a corporation operating in Shoshone county, the former as timekeeper and the latter as a miner working underground.

<p>Justice’s Precinct — Election Precinct — Election of Justice of Peace. ■</p> <p>1. Subdivision 2, section 1759, Revised Statutes of 1887, and section 11, page 61, Session Laws of 1891, require the board of county commissioners to divide their county into justice’s precincts.</p> <p>2. Subdivision 3 of said section 1759 requires such board to establish election precincts in their county and while a justice’s precinct may include one or more election precincts, an election precinct cannot include more than one justice’s precinct.</p> <p>3. In a county where the board has failed, in terms, to establish justice’s precincts, but have designated all precincts established as election precincts, and such precincts are treated as justice’s precincts, and two justices of the peace and one constable are elected therein, such precincts will be held to be justice’s precincts as well as election precincts.</p> <p>(Syllabus by the court.)</p>

ACTION by TJniversalist General Convention, a religious (corporation, against Edmund Pearcy et al. Keeeiver appointed, m limine by Edgar C. Steele, district judge o£ the second district. Defendants apply for writ of ■certiorari to review order making said appointment. The facts are stated in the opinion. The court exceeded its jurisdiction in making the appointment of the receiver.

<p>'Verdict of Jurt — Conflict 'of Evidence.</p> <p>1. Where there is a substantial conflict in the evidence the' verdict of the jury will not.be disturbed.</p> <p>(Syllabus by the court.)</p>

Hon-' orable Edgar C. Steele, Judge. Action to foreclose a laborer’s lien. Judgment for plaintiff. The court cites the same authorities on the point decided in the opinion as cited by appellants. cite, no authorities upon the point decided.

<p>Ferry Franchise — Voluntary Transfer — -By Whom Authority can be Questioned — Issues of Wife’s Separate Property.</p> <p>1. A ferry franchise may be voluntarily ti’ansferred the same as any other incorporeal hereditament.</p> <p>2. The franchise granting power retains the same control over the franchise in the hands of the assignee as it does while it is still exercised by the original grantee.</p> <p>3. The franchise granting power alone can question the right of the assignee of such franchise to exercise its rights and privileges.</p> <p>4. Under section 4479, Revised Statutes, the issue and profit arising from the investment of the separate property of the wife is not liable upon execution against her husband.</p> <p>(Syllabus by the court.)</p>

<p>APPEAL from District. Court of Bingham County. Honorable J. C. Eich, Judge.</p> <p>Motion to dismiss appeal.</p> <p>cites no authorities on the point decided by the court.</p> <p>Eespondent contends that this appeal is open to dismissal for the following reasons: 1. So-called statement on motion for new trial has never been filed and is not a part of the records of the court where the cause was originally tried nor part of the record in this cause. (Idaho Code Civ. Proc., secs. 3.519, 3546.) 2. So-called statement has never been settled, allowed, signed or certified to by the judge of the court who tried this cause or the judge before whom the motion for a new trial was made. (Idaho Code Civ. Proc., secs. 3519, 3526; Meinert v. Snow, 2 Idaho, 112, 27 Pae. 677; Hyde v. Hdrkness, 1 Idaho, 623; Stejfy v. Esler, 6 Idaho, 225, 55 Pac. 239; Machado v. Kinney, 135 Cal. 354, 67 Pac. 331.) 3. As far as the- record shows, statement was never used on motion for a new trial and is not part of judgment-roll. (Idaho Code Civ. Proc., see. 3528.) 4.- So-called statement does not designate the grounds of the motion nor any errors relied upon, nor has said statement any specifications of error attached thereto. (Idaho Code' Civ. Proc., sec. 3526.) 5. Record on appeal does not show any filing of intention to move for new trial or motion for new trial. (Purdy v. Steele, 1 Idaho, 216; Penny v. Nez Perce County, 4 Idaho, 642, 43 Pac. 570.) 6. Copy of notice of appeal has never been served. Notice of appeal herein being served December 8, 1902, same being filed December 9, 1902. Notice of appeal not filed is no notice. (Slocum v. Slocum, 1 Idaho, 589.)</p>

Honorable George H. Stewart, Judge. From a modified judgment in favor of plaintiffs, defendant, appeals. The facts are stated in the opinion. If that which is found on page 8 of the transcript on second appeal and which is denominated “modified judgment and decree” constitutes a judgment in any sense as the same is defined in our statute (Code Civ.

ORDER on motion to discharge attachment. The facts are stated in the opinion. • The affidavit of Mark Means and James Hayes clearly shows that at the time of the sale the property was delivered to respondent, and that he, respondent, has had possession thereof ever since, and that appellants have not at any time thereafter been in, or claimed possession thereof. This affidavit is uncontradicted. If appellants did not retain possession, how could there be a pledge?

JUDGMENT for respondent, from which appellant appeals. Affirmed. Honorable George H. Stewart, Judge. The facts are fully stated in the opinion. cites no authorities upon the point decided by the court not cited in the opinion..

Honorable Kirtland I. Perky, Judge. Prom a judgment on the pleadings in favor of the plaintiff as prayed for in the complaint, defendants appeal.

<p>Action to Quiet Title — Application for Patent — Adverse Claim — ■ Suit in Support Thereof — Supplemental Complaint.</p> <p>1. Jones and others, plaintiffs, commenced an'action against the Pacific Dredging Company, a corporation, and one McNutt, to quiet their possession and title to certain placer mining ground. During the pending of the action the Pacific Dredging Company made application for a United States patent to said ground, and in opposition to such application Jones and others filed an adverse claim in the proper United States land office, and also filed a supplemental complaint in this action which showed the relationship of this suit to said application for patent and adverse claim. Held, that this suit may stand as a suit brought under the provisions of section 2326, Revised Statutes of the United States, in support of said adverse claim.</p> <p>2. The following allegation held to be a sufficient allegation of the incorporation of defendant under the facts of this case, to wit: “That the defendant, the Pacific Dredging Company, is a corporation, organized and existing by virtue of the law and doing business in Lemhi county.”</p> <p>(Syllabus by the court.)</p>

<p>Irrigation District Officers — Contest—What Court has Jurisdiction. — Where an election has been held as provided by law for the election of district officers for the irrigation district, a contest may be had involving the right of the person to whom the certificate is issued to hold such office. Jurisdiction to try and determine such question is lodged in the district courts of the state.</p> <p>(Syllabus by the court.)</p>

Honorable George H. Stewart, Judge. Application to appoint an administrator. Action of probate court on appeal to the district court. The facts are fully stated in the opinion. This proceeding was heard in the trial court on an agreed statement of facts, and those facts and records are all here in the record on appeal.

<p>Appeal from Pinal Judgment — Appeal from Order Overruling Motion for New Trial — Statement Must Specify Insufficiency of Evidence. — A motion will be sustained to dismiss an appeal from a final judgment not taken within one year from the date thereof. A motion will be sustained to disregard a statement on motion for a new trial when such statement does not specify wherein the evidence is insufficient to support the judgment. When motion to strike out statement on motion for new trial is sustained, the appeal from the order denying the new trial will be dismissed.</p> <p>(Syllabus by the court.)</p>

<p>APPEAL from District Court of Bear Lake County Honorable J. C. Rich, Judge.</p> <p>Action to recover on promissory notes and account against D. C. Stuart and James S. Holland, alleged to have been partners as Stuart & Holland. Judgment in favor of defendant. Stuart and plaintiff appeals.</p> <p>The facts are fully stated in the opinion.</p> <p>“Partnership, although often called a contract, is in truth thé result of a contract; the relations which subsist between persons who have so agreed that the profits of a business inure to them as co-owners. Whether an agreement creates a partnership or not depends upon the real intention of the parties to it. If the agreement is not in writing, the intention of the parties must be ascertained from their words or conduct. If an agreement is in writing its true construction must be determined, but it is the legal rather than the declared intention that controls. If the parties intended to do those things which the law declares constitutes a contract, then the parties are partners, and an express stipulation that the}' do not intend to form a partnership is of no avail. It simply shows that they have mistaken the legal effect of the agreement which they intend to make." (George on Partnership, Hornbook series, pp. 30-32; Id., pp. 50-53; Id., paragraph head, pp. 58-62; 17 Am. & Eng. Ency. of Law, pp. 840-842; McDonald v. McLeod, 3 Colo. App. 344, 33 Pac. 285; Lindley on Partnership, p. 12; Dow v. Dempsey, 21 Wash. 86, 57 Pac. 355; Quin v. Quin et al., 81 Cal. 4, 22 Pae. 264-,. Bloomfield v. Buchanan, 13 Or. 108, 8 Pac. 915; Kayser v. Mangham-, 8 Colo. 232, 6 Pac. 805; Heise v. Barth, 40 Md. 259.)</p> <p>' It is claimed that there is evidence in the record showing that there was a partnership between the defendants. If so, there is a direct conflict of the evidence, in which case the findings of facts of the trial court, “That there was no partnership," cannot be reviewed or disturbed by this court. If there is no conflict, then all of the evidence is to the effect that there was no partnership and supports the findings of the trial court. (Sabin v. BurTce, 4 Idaho, 28, 37 Pac. 352; Bonner v. Powell, 7 Idaho, 104, 61 Pac. 138; Sears v. Flodstrom, 5 Idaho-, 314, 49 Pac. 11; Murphy v. Montamden, 4 Idaho, 320, 39 Pac. 195; Simpson v. Remington, 6 Idaho, 681, 59 Pac. 360; Commercial Bank v. Lieuallen, 5 Idaho, 47, 46 Pac. 1020.) Under the contract Stuart and Holland may have been joint agents; this does not mean they were partners, but that they could only act together and not alone. (Mechero, on Agency, 76, 77; Moore v. Ewing, Cox, 144, 1 Am. Dee. 195; Wilder v. Ranney, 95 N. Y. 7; Brennan ¶. Willson, 71 N. Y. 502; Hawley v. Keeler, 53 N. Y. 114.) At most Stuart and Holland were only joint' owners of the commission received for their labor. Joint ownership of property or money does not make the owners partners. (Wheeler v. Lack, 37 Or. 238, 61 Pac. 849; Cogswell v. Wilson, 11 Or. 371, 4 Pac. 1130; Flower v. Barnekoff, 20 Or. 132, 11 L. E. A. 149, 25 Pac. 370; Berthold v. Goldsmith, 24 How. 536, 16 L. ed. 762.)</p>

Honorable Lyttleton Price, Judge. ■ Action to recover damages for destruction of dams and for' an injunction. Judgment for defendants. The facts are stated in the opinion. . The proposition that we wish to urge is,, that the court erred in permitting the defendants to file an amended answer herein, and upon which this cause was tried.

<p>Appeal from Judgment — Notice of Appeal — Record must Contain Notice. — Where an appeal is taken from the judgment, the record must contain the notice of appeal. It is not sufficient for the clerk to certify that such notice was filed.</p> <p>(Syllabus by the court.)</p>

E. T. Morgan, Judge. From an order made by the district judge granting a temporary injunction defendant appeals. No brief filed on point de-' cided. No brief filed.

Honorable Edgar C. Steele, Judge. Action to recover for damages alleged to have been caused by defendant’s sheep.

Honorable Edgar C. Steele, Judge. Appeal dismissed on ground of failure to serve notice of appeal on certain of defendants. It is certainly the rule that all- adverse parties must be served with a notice of the appeal, and that eodefendamts axe generally considered adverse parties within the meaning of this rule. However, there is one well-defined exception to this rule, viz., that defaulting parties do not have to be served with notice.

Honorable E. C. Steele, Judge. Action by plaintiff against the city of Genesee for damages sustained on account of personal injuries received from falling on a defective sidewalk within the corporate limits of the city-judgment for plaintiff and defendant appeals. The facts are stated in the opinion. Nearly, if not all, the authorities in the brief of appellant are cited in the opinion.

Edgar C. Steele, District Judge. ... Judgment for defendant, from which, and an order overruling a motion for new trial, he appeals. The notice of intention to move for a' new trial, and referred to, is sufficient, both as to form and substance, as required by our statute, section 4441, Revised Statutes, when based upon the minutes of our court, and the same was filed and served.

R. T. Morgan, Judge. files no brief on the motion to dismiss. No service of the notice of appeal was ever made upon the defendant Carl Drews, and he is in no sense a party to this appeal. Respondents contend that notice of appeal should have been served upon the defendant Carl Drews, and that he should have been brought into the supreme court. This not having been done, the appeal should be dismissed, because this court has not jurisdiction of the parties to the cause.

<p>Nonsuit — ¡When Granted — Amendments to Pleadings — Evidence—. Comment on by Judge — Offer of Compromise — Exhibits—Introduction on Cross-examination.</p> <p>1. It is reversible error to grant a nonsuit where plaintiff has made a prima facie case.</p> <p>2. Under sections 4228 and 4229, Revised Statutes, great liberality must be exercised in allowance of amendments to pleadings.</p> <p>3. Trial judges should make no comment in the presence of the jury upon the weight of evidence or credibility of witnesses.</p> <p>4. The law favors settlements and compromises of controversies, and evidence of offers or overtures to compromise should not be admitted against a party making such offer or overture.</p> <p>5. The practice of allowing a party to identify and introduce exhibits on cross-examination of his adversary’s witness, should only be allowed where the exhibit contradicts something the witness has testified to upon his examination in chief or is intimately connected with something about which he has testified in chief.</p> <p>(Syllabus by the court.)</p>

Honorable Edgar C. Steele, Judge. Action on promissory note. Judgment for plaintiff. While the statute has not mapped out a definite mode of procedure in judgments of forfeiture upon usurious contracts, courts must necessarily base such judgments upon the pleadings ,or the evidence in the case, and such judgment and the judgment in favor of the plaintiff and against the defendant should not be inconsistent with each other.

Honorable Edgar C. Steele, Judge. Action to recover for water furnished the -village of Grange-ville on contract. Judgment for respondent. The. .facts are stated in the opinion.

<p>APPEAL from the District Court of Latah County. Honorable Edgar C. Steele, Judge.</p> <p>Judgment on motion overruling motion to set aside writ of assistance from which appellant appeals.</p> <p>The facts are stated in the opinion.</p> <p>Counsel for respondent moves the court to dismiss the appeal on the ground that the appeal should have been taken from the order granting the writ of assistance, instead of moving to set the writ aside and then appealing from the order denying the motion, and cites Davis v. Donner, 82 Cal. 35, 22 Pac. 879, in support of his contention. This case would he exactly in point had Smiley been a party defendant in the action. The statement in this case says: “The defendant John Donner moved to set aside the writ upon affidavits of himself and wife that a portion of the property was her separate estate. His wife, Sarah Donner, was not a party to the action, nor to the motion, excepting by her affidavit in aid of the motion of John Donner!” The appeal is by the defendants in the action. The court held that .the “defendants” should have appealed from the order granting the writ and not made a motion to set the writ aside and then appealed from the order denying it, which as the court said “would be a mere negative action of the court declining to disturb its first decision.” Appellant contends that this case is not applicable to the case at bar.. In the case at bar Smiley was not a defendant, and had no notice of any proceedings against him until after the writ of assistance had been granted. The ease of People y. Grant, 45 Cal. 97, is exactly in point. (The Mayor and Common Council of the City of San Jose v. Robert J. Fulton, 45 Cal. 316.) The first assignment of error is where the court made an order for the publication of the summons in the foreclosure proceedings. This order was made upon the affidavit of one of the attorneys for the plaintiff, and is as follows, to wit:</p> <p>• “AFFIDAVIT FOR PUBLICATION OF SUMMONS.</p> <p>“Edwin T. Coman, being first duly sworn upon oath, deposes and says, that he is agent and one of the attorneys for the plaintiff in the above-entitled action; that due and diligent search has been made for the defendants Pauline E. Maupin, Thomas M. Morgan, Rachel Morgan, C. F. Adams and the Security Savings and Trust Company of Portland, Oregon, a corporation, and that said defendants .cannot be found within the state of Idaho. ' EDWIN T. COMAN.</p> <p>“Subscribed and sworn to, etc.”</p> <p>. This affidavit did not give the court authority to make an order for the publication of the summons, and consequently the court never gained jurisdiction over these defendants. (Idaho Rev. Stats., sec. 4145; Strode v. Strode, 6 Idaho, 67, 96 Am. St. Rep. 249, 52 Pac. 161; Jordcm v. Giblin, 12 Cal. 100; Swain & Marsh v. Chase, 12 Cal. 283; Braly v. Seaman, 30 Cal. 611; Ricketson v. Richardson, 26 Cal. .149; State ex rel. Boyd v. Superior Court, 6 Wash. 352, 33 Pac. 827; Reinhart ¶. Lugo, 86 Cal. 395, 21 Am. St. Rep. 52, 24 Pac. 1089; Black on Judgments, see. 232; Columbia Co. v. Warner Co., 138 Cal. 445, 71 Pac. 498.) When a sheriff makes his return on a summons and certifies that some of the defendants have not been found or served, it is necessary to procure an alias summons to serve upon said defendants should they afterward be found, or for publication of said summons by order of the court. (Idaho Rev. Stats., sec. 4141.) The fifth and sixth assignments of error raise the question of the validity of the writ of assistance, and the error of the court in not setting the same aside. (Goodenow v. Ewer, 16 Cal. 461, 76 Am. Dec. 540; Burton v. Lies, 21 Cal. 88; Harlam v. Rackerby, 24 Cal. 561; Mayor of San Jose v. Fulton, 45 Cal. 316; Vermont Loan & Trust Co. v. McGregor, 5 Idaho, 510, 51 Pae. 104, 106.)</p> <p>This is an appeal from an order refusing to set aside an order for a writ of assistance. The order that a writ of assistance issue was a special order made after final judgment, and therefore appealable. This order was made on the twelfth day of May, 1903, but no appeal is taken from that order. But the appeal herein is prosecuted from the refusal of the court to grant the motion of Smiley to set aside the order granting the writ of assistance. This we claim is not appealable. (Mavis v. Manner, 82 Cal. 35, 22 Pac. 879; Henley v. Hastings, 3 Cal. 341; California etc. R. R. Co. v. Southern Pac. R. R. Co., 65 Cal. 295, 4 Pac. 13.) The respondents move this court to dismiss the appeal upon the ground that this court has no jurisdiction for the reason that no notice of appeal was served either upon A. L. Mills or Pauline E. Maupin or Samuel Geer or Thomas M. Morgan or Rachel Morgan or M. J. Shields Company, a corporation, or C. F. Adams or the Surety Savings and Trust Company, of Portland, ■ Oregon, a corporation. ■ All of these were parties to the action in the lower court and were adverse parties within the meaning of the statute. The question of jurisdiction may he raised for the first time in this court. (Rev. Stats., sec. 4178; Aram v. Edwards (Idaho), 74 Pae. 961.) It is clearly apparent from the record'that all of the above parties would be affected by a modification or reversal of the judgment rendered by the lower court in this action. (Tttiman et al. v. Alamance Min. Co., ante, p. 240, 74 Pac. 529; Baker v. Drews, et al., ante, p. 276, 74 Pae. 1130.)</p> <p>APPEAL from the District Court of the Second Judicial District, in and for the County of Latah. Honorable E. C. Steele, Judge.</p> <p>From an order denying a motion to vacate and set aside a writ of assistance defendant appeals.</p>

<p>APPEAL from District Court of Idaho County. Honorable Edgar C. Steele, Judge.</p> <p>Judgment for plaintiff from which minor heirs by their guardian appeal's.</p> <p>cites no authorities in his brief, simply giving an epitome of the facts as alleged in the complaint, all of which the court has copied in the opinion.</p> <p>The sole question suggested by appellants for review by this court is whether the district court had jurisdiction of the subject matter of the action. The question of jurisdiction was not raised in the court below. The appellants, minor children, were served with process, appeared both by general guardian and guardian ad litem duly appointed by the court. Answer was filed by guardian ad litem, putting in issue every allegation of the plaintiff’s complaint. The appellants, by the answer of their general guardian, consented to and prayed for the decree rendered in this action. The decree of the court herein, however, was supported by proof of every allegation of plaintiff’s complaint had upon the issues tendered by the answer of their guardian ad litem. Thus the interests of the appellants were guarded by all the ample means within the command of a court of general equity jurisdiction. The respondents maintain that the district court not only had ample power under its general equity jurisdiction to try and dispose of the issues herein, but that the probate court was without power to settle and dispose of the. complex issues made by the pleadings in the case at' bar, involving as they did questions of trust estate, partnership accounting and partition. “The jurisdiction of the probate court over testamentary and probate matters is not exclusive. Most of its general powers belong peculiarly and originally to the court of chancery, which still retáins its jurisdiction.” “The district court may take jurisdiction of the settlement of an, estate when there are peculiar circumstances of embarrassment to its administration and when the assuming jurisdiction would prevent waste, delay and expense, and thus conclude by one action and decree a protracted and vexatious litigation.” (Declc v. GerTce, 12 Cal. 433, 73 Am. Dec. 555.) Where partnership real estate was held in the name of the deceased, a suit by surviving partner to obtain a decree vesting the property in the partnership was held within the jurisdiction of the district court. (Gray v. Palmer, 9 Cal. 616; Haverstick v. Tridel, 51 Cal. 431-434; Trotter v. Mutual Reserve Fund Life Assn., 9 S. Dak. 596, 62 Am. St. Eep. 887, 70 N. W. 843; Burns v. Smith, 21 Mont. 251, 69 Am. St. Eep. 653, 53 Pac. 742.) "Though the settlement of estates of decedents is committed to' probate courts by statute, equity has jurisdiction whenever its aid is required and the powers of the probate court are not sufficient to deal with the question at issue.” (Bailey v. Bailey, 67 Yt. 494, 48 Am. St. Eep. 826, 32 Atl. 470; Harvey v. PennypacJcer, 4 Del. Ch. 445, cited in note, 15 Ency. of PI. & Pr. 1060.)</p>

<p>ACTION by the state of Idaho upon the relation of Theodore Turner, state auditor and secretary of the state board of deposits, against Henry N. Coffin, state treasurer, upon application for writ of mandate requiring the treasurer to deposit certain of the public funds within a designated state depository.</p> <p>This is a hearing on the return to an alternative writ' of mandate in an original proceeding in this court. The proceed-; ing involves the validity of an act of the legislature of the state . of Idaho, entitled “An act to provide for the care and keeping of moneys in the custody of the treasurer of the state of Idaho and prescribing penalties,” approved the fourth day of March, 1903. (Seventh Sess. Laws, p. 375.) The defendant attacks the validity of the law and assigns the following reasons why the writ heretofore issued should not be made peremptory: Because by the constitution he is the legal custodian of all state funds, and should he comply with the direction of the board he would be liable personally on his official bond in ease of a loss of such public funds; that the order does not indicate from which of said funds he shall transmit said money; that the board; is not authorized to be created by the constitution; that the defendant is not a member of said board; that he is the custodian, of the public school fund, and that if he transmits said fund it would be contrary to law, as it would be a loaning of said money; that the act takes the funds from his custody without his consent, contrary to the.provisions of law; and, finally, that the act contravenes the constitution in this, that the subject matter of the act is not expressed in the title, that no money can be drawn from the treasury except in pursuance of an appropriation and that it interferes with his custody of the public school fund. In discussing the legal objections to the act urged by the defendant, Ms contention that he is the “constitutional custodian of all the funds of this state,” and as such has “control” thereof and “cannot be interfered with by any statutory enactment,” will be considered first, for, obviously, if the legislature can neither control the public funds nor provide for their care and keeping, then an inquiry into the sufficiency of the title to an act wherein it attempts to do so becomes unnecessary. But the state treasurer is not “the constitutional custodian of all funds,” nor of any fund except “the public school fund,” and the “control” of that fund is vested in the legislature. (Idaho Const., art. 9, sec. 3.) And the statement of counsel that “the responsibility of the treasurer is not a statutory responsiMlity” is likewise erroneous. His custody of the public moneys arises from his statutory duty “to receive and keep all moneys belonging to the state not required to be received and kept by some other person.” (Idaho Bev. Stats. 1887, sec. 230, subd. 1.) The framers of the constitution recognized that “the control” of the public moneys was in the legislature, for they expressly provided that the state treasurer shoxdd “perform such duties as may be prescribed by law.” (Idaho Const., art. 4, sec. 1.) And the legislature, after defining his duties, provided that he must “discharge such other duties as may be imposed upon him by law.” (Idaho Bev. Stats., 1887, sec. 230, subd. 12;) The question whether the state is the owner of'the public funds in the hands of its treasxirer, or whether the legal title thereto is in the treasurer, must be determined by the statutes defining the rights, duties and liabilities of the treasurer. The citation to the statutes and constitution prescribing the duties and liabilities of the state treasurer are given herewith: Idaho Bev. Stats. 1887, sec. 230, subd. 12; sec. 6975; Idaho Const., art. 7, sec. 10; State v. Mc-Fetridge, 84 Wis. 473, 54 N. W. 1, 998, 20 L. B. A. 223; City of Healdsburg v. Mulligan, 113 Cal. 205, 45 Pac. 337, 33 L. B. A. 463; City of Livingston v. Woods, 20 Mont. 99, 49 Pac. 437-440; State v. Copeland, 96 Tenn. 296, 54 Am. St. Eep. 824, 34 S. W. 427, 428, 31 L. E. A. 844; In re House Resolution, 12 Colo. 397, 21 Pae. 486. In pursuance of the constitutional direction that the treasurer shall “perform such duties as may be prescribed by law,” and the statutory authority that he must “discharge such other duties as may be imposed upon him by law,” the legislature enacted the law in controversy. With the expediency of this law this court has nothing to do. The treasurer is also under statutory bond to “faithfully perform such additional duties as may be imposed on him by any law of the state.” (Idaho Eev. Stats. 1887, sec. 396.) And one of the “additional duties imposed on him” is the duty under the act in controversy, upon receiving the-statutory notice that a bank has been designated as a state depository, “to forthwith transmit to such depository the amount of money allotted to it.” (Seventh Sess. Laws, p. 373, sec. 11.) This “duty” is mandatory upon him. It is a ministerial and not a discretionary duty; and “if the treasurer properly performs the duty thus laid upon him, he will not be responsible for any loss that may occur by reason of the making of such deposits.” (Seventh Sess. Laws, p. 373, sec. 11; City of New Haven v. Fresenius, 75 Conn. 145, 52 Atl. 823, 825.) It will be readily seen from the above constitutional and statutory provisions and the decisions herein cited that the “control” of the public funds is in the state, and their “custody” in the treasurer under the direction of the state. The distinction between “custody” and “control” is well stated in People v. Burr, 41 How. Pr. 293; cited in 8 Ency. of Law, 2d ed., 532. To control means to check, restrain, govern, direct, regulate. (7 Ency. of Law, 2d ed., 457; State v. Bobleter, 83 Minn. 479, 86 N W. 461, 462; State v. Hill, 47 Neb. 546, 66 N. W. 541.) It is next contended that the act herein is void, because the subject matter thereof is- not expressed in the title as required by the constitution, in this: That the title provides for the “care and keeping of moneys in the custody of the treasurer of the state of Idaho,” while in the body of the act there is created a hoard of deposits, who, by the terms thereof, are authorized to designate banks as state depositories upon their complying with certain conditions, one of which is the payment of interest to the state. (Diana Shooting Club v. Lamoreaux, 114 Wis. 44, 91 Am. St. Eep. '898, 89 -N. W. 880, 882, 883; Martin v. Taylor, 4 N. Dak. 278, 60 N W. 392, 395, 396, 25 L. E: A. 838; State v. Sloan, 66 Ark. 575, '74'Am. St. Eep. 106) 53' S. W. 47; City of Seattle v., Barto, 31. Wash. 141, 71 Pae. 735; State v. Sharpless, 31 Wash. 191, 96-'Am. St. Eep. 893, 71 Pae. 737; Hopkins v. Scott, 38 Neb. ■ 661, 57 N. W. 391; Seay ¶. Bank of Rome, 66 Ga. 609; Spratley ■v: Board of County Commrs., 56 Kan. 272, 43 Pac. 232-235; 'Colquitt v. Simpson, 72 Ga. 501, 510, 511.) Defendant for a third ground of defense urges that the depositing of the public school fund in a designated depository is a “loan” of the same in' contravention of the constitution. The Nebraska cases cited to sustain this point have, however, as the supreme court of South Dakota says in Allibone v. Ames, 9 S. Dak. 74, 68 N. W. 165, 166, 33 L. E. A. 585, “been overruled in a recent decision •by the supreme court of that state,” citing State v. Hill, 47 Neb. 546, 66 N. W. 541. (State v. McFetridge, 84 Wis. 473, 54 N. W. 1, 998, 20 L. E. A. 223; Nebraska v. First Nat. Bank, 88 Fed. 947; Bardsley v. Sternberg, 18 Wash. 612, 52 Pae. 251-255; Hunt v. Hopley, 120 Iowa, 695, 95 N. W. 205.) Defendant says that the bond of the treasurer “charges him with the safekeeping of the state moneys.” Also that “it charges him with the duty of paying over the state moneys at the end of his term,” and cites United States ■v. Prescott, 3 How. 578, 11 L. ed. 734, as holding that his bond is violated when he fails to comply with these conditions, and that said decision has been ■ “reaffirmed time and again.” In the first place, the bond of the treasurer, under our statute, -does not charge him with the “safekeeping” of the state moneys, nor does it obligate him “to pay over” said moneys at the end of his term, nor does the statute require him to “safely keep” the state moneys. ' (See Idaho Eev. Stats. 1887, sec. 230, subd. 1; also Idaho Eev. Stats. 1887, see. 396.) While it is true that in United States v. Prescott; it was held under the bond in that case that Prescott was an insurer of the public funds, it is not true that said decision has been “reaffirmed time and again.” To the contrary, as the supreme court of Wyoming says in State v. Gramm, 7 Wyo. 329, ■52 Pac. 540, 40 L. E. A. 698, “the doctrine announced in such comprehensive terms by the Prescott case has, however, been considerably modified in a later case in the same court, to wit, ■United States v. Thomas, 15 Wall. 337, 21 L. ed. 89.” (State v. •Copeland, 96 Tenn. 296, 54 Am. St. Eep. 824, 34 S. W. 427, 31 L. E. A. 844; City of Uealdsbwg v. Mulligan, 113 Cal. 205, 45 Pac. 337, 33 L. E. A. 463; City of Livingston v. Woods, 20 Mont. 99, 49 Pae. 437; State v. Gramm, 7 Wyo. 329,-52 Pac. -•533, 40 L. E. A. 698.)</p> <p>■ Defendant alleges the fact to be that the act mentioned in ■the application for a writ of mandate herein, “An act for the ■care and keeping of moneys in the custody of the treasurer of the state of Idaho, and prescribing penalties,” is unconstitutional and void and for the following reasons: 1. It is in contravention of section 16 of article 3 of the constitution of the state of Idaho, which provides that “Every act shall embrace but one subject and matters properly connected therewith, which ■subject shall be expressed in tbe title.” 2. It is in contravention of section 13 of article 7 of the constitution of the state •of Idaho, which provides that “No money shall be drawn from the treasury but in pursuance of appropriations made by law.” '3. It is in contravention of the constitution of the state of Idaho, in that it assumes to abrogate the constitutional functions of the state treasurer as the custodian of the state moneys' and to release him from responsibility therefor. 4. It is in 'contravention of the constitution of the state of Idaho, in that it assumes to invest such state board of deposits with power to usurp to itself functions imposed by the constitution upon • other boards, and to restrict the constitutional powers and functions of boards created by said constitution, and to restrict the constitutional functions of this defendant, and to usurp powers and functions with which this defendant is invested by said constitution. 5. It is in contravention of section 3 of article 9 of the constitution of the state of Idaho, which provides that the public school fund of the state shall not be “used or appropriated except as herein provided,” and that “the state treasurer shall be the custodian o^ this fund.” 6. It is in contravention of section 11 of article 9 of the constitution of the state of Idaho, which prescribes that “the permanent educational funds, other than the funds arising from the disposition of university lands belonging to the state, shall be loaned on first mortgage or improved farm lands within the state, or on state or United States bonds. “Whatever authority the law-making power possesses, the constitution will not permit legislature or citizens to be misled by embodying in any statute provisions which are not indicated by its title, to which all have a right to look for guidance in their searches after the law.” {N orthwestern Mfg. Go. v. Chambers, 58 Mich. 381, 55 Am. Eep. 693, 25 N. W. 372.) It seems from a careful comparison of the title to the act in question with the body of the act, wherein its purpose is revealed, that the title is clearly misleading. One of the purposes of section 16, article 3 of our constitution is to prevent the insertion of important provisions in the body of an act of which no intimation is given in the title. Could the legislature or the people have any knowledge or conception of the purposes of this act (excluding section 10) from a perusal, or even from the most critical study, of its title? If not, then they were misled as to the contents and purposes of this act, and the act would therefore fail to meet the requirements of our constitution. We cite, as particularly in point on this phase of the question, Davies v. Board of Supervisors of Saganaw Co., 89 Mich. 295, 50 N. W¡ 862; Commonwealth v. Brown, 91 Ya. 762, 21 N. E. 357, 28 L. B. A. 110; Pioneer Irr. Dist. v. Bradbury, 8 Idaho, 310, 101 Am; St. Eep. 201, 68 Pae. 295; People v. Commissioners of Highways, 53 Barb. 70 '■(cited with approval in Callaghan v. Judge of Superior Court, 59 Mich. 610, 26 N. W. 806); Astor v. New Yorle Arcade By. Co-., 113.N. Y.,93, 20 N. E. 594, 2 L. E. A. 789; State v. Young, 47 Ind. .150; Henderson v. London etc. Ins. Co., 135 Ind. 23,. 41 Am, St.-Eep. 410, 34 N E. 565, 20 L. E. A. 827; People v. Hall, 8 Colo. 485, 9 Pac. 34; People v. Paries, 58 Cal. 624; Commissioners-of Rio Grande Co. v. Whelen,-28 Coló. 435, 65 Pac. 38; Lamwr Canal Co. v. Amity L. & I. Co., 26 Colo. 370, 77 Am. St, Rep. 261, 58 Pac. 600; City of Enterprise v. Smith, 62 Kan. 815, 62 Pac. 324; State v. Stone, 24 Nev. 308, 53 Pac. 497; Elk v. St. Paul Perm. Loan Co., 84 Minn. 245, 87 N. W. 844; State v. Power, 63 Neb. 496, 88 N. W. 769; Weigel v. City of Hastings, 29 Neb. 379, 45 N. W. 694; Thomas v. Wabash etc. Ry. Co., 40 Fed. 126, 7 L. R. A. 145; People v. Mellen, 32 111. 182; Lockport v. Gaylord, 61 111. 276; People v. Wright, 70 111. 388; People v. Deaconesses, 71 111. 229; Middle-port v. Aetna etc. Ins. Co., 82 111. 565; People v. Hazlewood, 116 111. 327, 6 N. E. 480; Leach v. People, 122 111. 421, 12 N. E. 726; Dolese v. Pierce, 124 111. 140, 16 N. E. 218; Dorsey’s Appeal, 72 Pa. St. 192; Moses v. Mayor, 52 Ala. 198; Davis v. State, 7 Md. 160, 61 Am. Dec. 331; Brieswick v. Mayor, 51 Ga. 639, 21 Am. Rep. 240; McWherter v. Price, 11 Ind. 201; Grubbs v. State, 24 Ind. 295; Coutieri v. Mayor, 44 N. J. L. 58; Grover v. Trustees, 45 N. J. L. 399; State v. Steelman, 66 N. J. L. 518, 49 Atl. 978; Ryerson v. Utley, 16 Mich. 269; People v. Denahy, 20 Mich. 349; Anderson v. Hill, 54 Mich. 477, 20 N. E. 549; Durkee v. City• of Janesville, 26 Wis. 697; White v. City of Lincoln, 5 Neb. 505; State v. Silver, 9 Nev. 227; Town of Fishkill v. Fishkill etc. Road Co., 22 Barb. 634; People v. Allen, 42 N. Y. 404; People v. Fleming, 7 Colo. 230, 3 Pae. 70; Lacy v. Palmer, 93 Va. 159, 57 Am. St. Rep. 795, 24 S. E. 930, 31 L. R. A. 825; Commonwealth v. Hudusko (1900), 10 Pa. Dist. Rep. 230; State v. Craig (Tenn. 1901), 64 S. W. 326; Equitable Guarantee etc. Co. v'. Donohoe, 3 Penne. (Del) 191, 49 Atl. 372.) “In all the states having such a restrictive provision in which the question has arisen, except Ohio and California under her former constitution, the command has been held to be mandatory.” (Sutherland on Statutory Construction, sec. 80.) “The title cannot be enlarged by construction when too narrow'to cover all thé provisions in the enacting part, nor can the purview be contracted by construction to fit the title.” (Sutherland on Statutory Construction, sec. 87, citing the following: Howland Coal & iron Works v. Brown, 13 Bush, 681; In re Paul, 'Hi N.. Y. 497 ■,-Matter of'Sackett etc. Streets, 74 N. Y. 95; State v. Clinton, 27 La. Ann. 40.) This.defendant further contends that the office of state treasurer, of this-state of Idaho is a constitutional office declared to be and made'such by the constitution of Idaho, and that this defendant, H. 1ST. .Coffin, as treasurer of this, state, is a constitutional officer of -the state of Idaho, and by virtue of such status possesses constitutional rights, obligations, powers and functions. (Idaho Const., art. 4, secs. 1, 19.) What are the constitutional rights obligations, powers and functions of the treasurer of this state ? 3. He is the constitutional custodian of all funds belonging to the state of Idaho; 2. He has the power of disbursing such funds, in paying warrants legally drawn upon the state treasury; 3. He possesses such control of the state funds as is implied by his status as constitutional custodian thereof; 4. He is responsible for .the safekeeping of such funds as such custodian; 5. He cannot be relieved of such responsibility and liability by statutory enactment only; 6. Such responsibility and liability cannot be transferred to another, or be replaced by a bond or collateral security, except where the funds in the custody of the treasurer are loaned in the manner provided by our constitution; 7. The state treasurer is the fiscal agent of the state under the constitution, and his functions as such agent cannot be restricted, interfered with or abrogated by any statutory enactment merely, nor can they be transferred to or assumed by any other officer or board deriving its authority from statute only. As to the custodianship of the state treasurer, section 7, article 7 of our state constitution declares that “All taxes levied for state purposes shall be paid into the state treasury,” and section 13 of the same article provides that “No money shall be withdrawn from the treasury except by legislative appropriation.” We cannot conceive of custody in the absence of and disconnected with possession and control. (Roe v. Doe, 32 G-a. 49.) What does custody mean? What are the duties of a custodian in the ordinary and usual sense of that term ? Can we separate custody from possession and control? (State v. Taylor, 7 S. Dak. 533, 534, 64 N. W. 548.) The only section of the act in question which comes properly under the title is ' section 10. It is not contended that this section is obnoxious to ■ ' -any constitutional provision, and it might therefore possibly be •held that it should stand, and, together with the repealing section, constitute a piece of valid legislation. The difficulty is in determining whether the good and bad parts of the statute are capable of being separated within the meaning of this rule. If a statute attempts to accomplish two or more objects, and is void in one, it may still be in every respect complete and .valid •as to the other. But if its purpose is to accomplish a single ■object only, and some of its provisions are void, the whole must ■fall. (Warren v. Charlestown, 2 Gray, 84; Commonwealth v. Potts, 79 Pa. St. 164; Lathrop v. Mills, 19 Cal. 514; Jones- v. Jones, 104 N. Y. 234, 10 N E. 269; Black v. Trower, 79 Ya. 123; Trademark Cases, 100 IJ. S. 82, 25 L. ed. 550; Darby v. City of Wilmington, 76 N C. 133; State v. Goodwin, 123 N C. 697, 31 S. E. 221; Eckhart v. State, 5 W. Ya. 515; State v. Sinks, 42 Ohio St. 345; People ex rel. v. Cooper, 83 111. 595; Uinze v. People, 92 111. 406, 424; State v. Pugh, 43 Ohio'St. 98, 1 N E. 439; Bader v. Township of Union, 39 N J. L. 509; Flanagan v. Plainfield, 44 N J. L. 118, 124; State v. Commissioners, 38 N J. L. 320; Childs v. Shower, 18 Iowa, 261; Central etc. B. B. Co. v. Atchison etc. B. B. Co., 28 Kan. .453; Moore v. New Orleans, 32 La. Ann. 726.)</p>

Honorable E. C. Steele, Judge. Action to foreclose a miner’s lien. Judgment for plaintiff foreclosing lien and for attorneys’ fees. Defendants appeal from the judgment and from an order denying their motion for a new trial. The facts aTe fully stated in the opinion. cite no authorities upon th& points decided not found in the opinion of the court. All the eases cited in respondent’s brief on the question decided by the court are found in the opinion.

<p>ORIGINAL application in the supreme court praying for an order directing the husband to pay a certain sum of money to petitioner to pay the costs and expenses of preparing and perfecting her appeal and'for attorneys’ fees in the prosecution of the same.</p> <p>This is a motion prosecuted by appellant, who is the wifq of the respondent,- requiring the respondent to pay to the apt pellant the sum of money sufficient to enable her to pay for the. printing of the transcript and brief, and the costs necessary for. filing her ease in the supreme court, as well as stenographers’; fees for writing the brief and transcript, and for the payment of $250 attorneys’ fees to enable appellant to employ an attorney to prosecute her ease in the supreme court. {Pleyte v. Pleyte, 15 Colo. 125, 25 Pac. 25; Lake v. Lake, 17 Nev. 230, 30 Pac. 878; Bohnert v. Bohnert, 91 Cal. 428, 27 Pac. 732; Larkin v. Larkin, 71 Cal. 330, 12 Pac. 227; Ex parte Winter, 71 Cal. 291, 11 Pac. 630; People v. District Court, 21 Colo. 251, 40 Pac. 460; Bose v. Bose, 109 Cal. 544, 42 Pac. 452; Wolff v. Wolff (Cal), 37 Pac. 858.)</p> <p>This matter comes before the court on an original application of the plaintiff and appellant herein for an order compelling. the defendant to pay to her money to be used in defraying the expenses of appealing to this court from an order made by the district .court of the second judicial district of the state •of Idaho, refusing to grant to her a divorce from the defendant herein. The respondent herein has moved to dismiss the 'said application on the ground that this court has not jurisdiction to consider the same. It is shown by the affidavit of the attorney for the' defendant herein that prior to the filing of the notice of appeal in this matter the plaintiff made an application to the judge of the district court above mentioned for an order allowing her money to defray the expenses of an appeal herein; that prior to the filing of the notice of appeal herein, the judge of said court made an order allowing the plaintiff herein the sum of seventy-five dollars ($75) to be used for said purpose. We are of the opinion that the question of suit money, even for expenses of an appeal to the supreme court, is one strictly within the sole jurisdiction of the trial court. (Idaho Rev. Stats., see. 4297.) Section 2472 of the Revised Statutes provides that “while an action for divorce is pending, the court may, in its discretion require the husband to pay any money necessary to enable the wife to ... . prosecute or defend the action.” The dourt it has.reference to here is the district court, and when it states “while the suit is pending,” in our judgment this means pending in the supreme court as well as in the district court. Some courts, under special constitutional provisions, have held that the appellate court is the proper place to apply for money to defray the costs of an appeal in a case of this character. The soundness of this doctrine is disputed by other courts. We will rest this matter with your honors by referring solely to the decisions of the supreme court of California on the subject, believing that they are founded on sound logic and on the law. (Reilly v. Reilly, 60 Cal. 624; Bohnert v. Bohnert, 91 Cal. 428, 27 Pac. 752.)</p>

ORIGINAL application for writ of review denied. The facts are stated in the opinion. upon a petition for a rehearing, cites the following authorities: 1., That the judgment of the district court complained of by-plaintiff, is void for want of jurisdiction over the person of the plaintiff. “The court cannot act upon persons who are not. legally before it, upon one who is not a party to the suit, upon a plaintiff who has not invoked its arbitrament, or upon a defendant who has…

<p>APPEAL from District Court of Latah County. Honorable Edgar C. Steele, Judge.</p> <p>Action to recover for the conversion of certain wheat. Judgment for the plaintiffs.</p> <p>cite no authorities on the points decided by the court.</p> <p>In this action respondents have filed motions to dismiss the appeals both from the judgment and from the order denying a new trial and based upon the several grounds designated in the motion. We will first consider the motion to dismiss the appeal from the judgment, which we contend is well taken, should and will be sustained by this honorable court. Subdivision 1, section 4807, Eevised Statutes of Idaho-, provides that appeals from judgments must be taken within one year after the entry of the judgment. (Marchand v. RonagTim, ante, p. 95,'72 Pac. 731; Robson et al. v. Colson, ante, p. 215, 72 Pac. 951.)</p>

<p>Costs on Appeal from Probate and Justice’s Court. — Where an action is commenced in probate or justice’s court, judgment in favor of plaintiff and defendant appeals to the district court, even though the judgment of the lower court be reduced, it is sufficient to carry costs against defendant.</p> <p>(Syllabus by the court.)</p>

<p>APPEAL from the District Court, Kootenai County. A. E. Mayhew, Judge.</p> <p>Action by Joseph Axtell against the Northern Pacific Bailway Company. Judgment for plaintiff. Defendant appeals.</p> <p>cite no authorities that are not cited in the opinion.</p> <p>cites no authorities.</p>

Honorable A. E. Mayhew, Judge. Judgment on order sustaining motion to dissolve injunction, from which appellant appeals. The facts are fully set forth in the opinion.

<p>APPEAL from tbe District Court of the Fourth Judicial District, Elmore County. Honorable Lyttleton Price, Judge.</p> <p>Claim was presented by the village of Mountainhome against the county of Elmore for twenty-five per cent of the road taxes collected against property situated within the corporate limits of the village, and the claim was disallowed by the board of commissioners, from which order the village appealed to the district court. Judgment rendered and entered in the district court in favor of the village, from which judgment the county appealed to this court.</p> <p>The facts are stated in the opinion.</p> <p>There are two questions involved in this appeal: 1. That is, that all claims that were not filed and presented to the board within one year after they accrued are barred under section 1605, Political Code of 1901. (See Nelson v. Merced County, 122 Cal. 644, 55 Pac. 421.) 2. That the claim of 1898 is barred by the statute of limitations. (Code Civ. Proc., sec. 3132.) The court found that said road taxes were collected by the county in January of each year for the preceding year. All taxes collected more than three years prior to the date of presentation to the board are barred by the statute. We contend that this is an action based “upon a liability created by statute, ■other than a penalty or forfeiture.” If they have any claim at all, it is under section 1145, Political Code, and section 870, Revised Statutes of Idaho. The statute began to run at the next quarterly meeting after the taxes were collected. (Pol. Code, sec. 1640. See, also, Board of County Commrs. v. Van Blyck, 52- Kan. 622, 35 Pac. 299; People ex rel. Dunn v.- Van Ness, 76 Cal. 121, 18 Pae. 139.) That it is an action upon a liability created by statute, see Higby v. Calaveras County, 18 Cal. 176. “The obligation of a county to pay its proportion of state tax is a liability created by statute.” (State v. Baker County, 24 Or. 141, 33 Pac. 530; Bannock County v. Bell, 8 Idaho, 1, 101 Am. St. Rep. 140, 65 Pac. 710; Canyon County ¶. Ada County, 5 Idaho, 686, 51 Pac. 748.) .</p> <p>Appellant claims: 1. That all the claims are barred by section 1605, Political Code; 2. That the claim of 1898 is barred by •section 3132, Code of Civil Procedure. That these claims are not the kind of claims referred to in section 1605 is clearly shown in Genesee v. Latah Co., 4 Idaho, 141, 36 Pac. 701, and by all the subsequent- cases cited by appellant, so the judgment of the lower court must be affirmed so far as it affects the bills-for 1899 and 1900. Is the claim for 1898 barred by section 3132? Let us first examine the nature of this claim in the light of the decision in Genesee v. Latah Co., supra. “The county treasurer must hold the said twenty-five per cent of the property road tax so levied and collected as money had and received for the nse of said town or village, to be paid to said town or village, on proper demand.” Then this money is held in the nature of an express trust. (1 Pomeroy’s Equity Jurisprudence, sec. 155, and note 2; 2 Pomeroy’s Equity Jurisprudence, secs. 1010-1014.) Again, this is not a matter as to private actions or in the nature of a private action, but as to a governmental function — the keeping up of the highways. That in express trusts the státute does not begin to run till a disavowal of the trust by demand and refusal, see Peterson v. Taylor (Cal.), 33 Pae. 436; Wright v. Boss, 36 Cal. 414 (see pp. 415, 419, 421, and especially pp. 432, 433); 19 Am. & Eng. Ency. of Law, 187; Fremont Co. v. Brandon, 6 Idaho, 482, 56 Pae. 264; Elmore County v. Alturas Co., 4 Idaho, 145, 95 Am. St. Rep. 53, 37 Pae. 349; Taylor v. United States, 14 Ct. of Cl. 339; Harrison v. United States, 20 Ct. of Cl. 175; Miller v. Board of Supervisors, 68 Miss. 88, 8 South. 269.</p>

<p>Sheep — Herding and Grazing — Distinguished from Driving.</p> <p>1. Under section 1210, Revised Statutes, which, provides that “It is not lawful for any person owning or having charge of sheep to herd the same, or permit them to be herded on the land or possessory claims of other persons, or to herd the same or permit them to graze within two miles of the dwelling-house of the owner or owners of such possessory claim,” it is not unlawful to drive sheep through the state or from one place to another, or from one range to another within the state, even though in so doing they pass within two miles of the dwelling-house of a settler.</p> <p>2. Driving sheep from one range to another is not “herding” them, nor is the occasional eating of grass as they go or while stopped for needed rest “grazing,” as contemplated by the lawmakers when enacting the above statute.</p> <p>3. Evidence examined and held insufficient to support the judg_ ment in this ease.</p> <p>(Syllabus by the court.)</p>

<p>Real Estate — Contract -of Sale — Declaration' of Homestead— Head of.Family.</p> <p>1.-Under the provisions of section 3071, Revised Statutes, a declaration of homestead must contain a statement showing that. , the person .making it. is the head of a family. It is, a sufficient compliance therewith if such declaration contains a statement of ' '' the probative facts from which the ultimate act may be judicially : ‘ inferred tha£ the person making -such declaration is the head of a. LV.family..., I.:'-'-' .... ..... : . ' •</p> <p>2. If a homestead declaration contains a statement of the facts in substantial compliance with the provisions of said section 3071, it is sufficient.</p> <p>3. The property selected as a homestead can only he aban-, doned by a declaration of abandonment or by a grant or conveyance thereof properly executed and acknowledged by the husband and wife, if the claimant is married, as provided by section 3041,, Revised Statutes.</p> <p>(Syllabus by the court.)</p>

ORIGINAL application for writ of prohibition. The act of March 16, 1903, the funding bond act, contravenes the constitution in three respects: It exceeds when added to the other expenditures authorized, the tax levies provided for the years of 1903 and 1904; it increases the debts and liabilities of the state beyond the limit fixed by section 1, article 8 of the constitution; it provides money for building a bridge and a wagon road authorized by local and special laws,…

<p>Eight of Heir — Decree of Distribution — Power of Heir to Dispose of Property in Expectancy — Witness—Qualification of.</p> <p>1. A will giving to tlie wife a life estate and the son all property after her death, empowers the son to transfer by written instrument to Ms mother and her heirs and assigns forever property to heeome his after the death of the mother.</p> <p>2. A decree of distribution by the probate court will not defeat an action of one who was not an heir and was not a party to any of the proceedings in that court when it was settling the estate of a deceased person; he not being a party to the proceedings could not appeal from the order of that court.</p> <p>3. Section 5957 of the Eevised Statutes of Idaho precludes evidence of conversations with the deceased relating to the disposition of her property.</p> <p>(Syllabus by the court.)</p>

<p>APPEAL from District Court in and for Bannock County. Honorable Alfred Budge, Judge.</p> <p>Plaintiff filed his claim with the board of commissioners of Bannock county for board furnished prisoners under contract with the sheriff and the commissioners rejected the claim. Plaintiff appealed to the district court, where he obtained a judgment for the amount claimed. From the judgment of the district court the county appealed.</p> <p>This is an action upon an appeal from an order of the board of county commissioners of Bannock county, made at their January meeting, 1903, disallowing the claim of Joseph Mombert for $377.10, for meals furnished the prisoners in the Bannock county jail as set out in the claim of said Mombert, said claim being disallowed for the reason that the same was not a proper county charge, the sheriff of Bannock county having theretofore filed his bill for the board of said prisoners for the same time included in the bill of said Mombert. An appeal from the order of said board disallowing said bill was duly taken to the district court of the fifth judicial district, and upon a trial of said cause in said court the order of said board was reversed and canceled and said board was ordered and directed to allow said claim and cause a warrant of Bannock county to be issued and delivered to said Mombert in payment of said bill, which said judgment of the district court was duly entered May 13, 1903, from which judgment Bannock county now appeals to this court. The claim of Mombert is the complaint in this action and sets up an express contract with Martin D. Bice, sheriff of Bannock county, for the furnishing of meals to the prisoners in the Bannock county jail at the express and agreed price of fifteen cents per meal, and said claim further alleges that said Martin D. Bice has not paid said amount of said claim ($377.10), or any part thereof. Said claim nowhere alleges wherein Bannock county authorized or contracted with said Mombert to furnish said meals at said price, or any price, or made any contract in relation to the same with said Mombert, or authorized anyone else to make such contract with said Mombert, either as the agent of said county or otherwise, and we respectfully submit that under such a showing upon the face of said claim the court should not have permitted, over the objection of the defendant, any evidence, other than the. appeal and the records in said cause, to be received, which sought to bind Bannock county to pay Mombert for said meals. (Board of County Commissioners of Atchison Co. v. Tomlinson,' 9 Kan. 168.) Plaintiffs contention is, and the court in its conclusions of law found, that the sheriff of Bannock county is the agent of said county in procuring said meals and board for; prisoners confined in the county jail, and that the county is. primarily liable to the plaintiff for the payment thereof. Under our laws we believe that the feeding of the prisoners and the-furnishing of necessary food is as much an official duty of the sheriff as any other duty enjoined by law, and we do not think the county commissioners have any right to interfere with him in such duty except in a supervisory manner to see that he performs this duty properly and to allow him a reasonable compensation for the same. (1 Session Laws, Idaho Ter. 1864, p. 596, see. 3; Idaho New Pen. Code, sec. 5885; Sess. Laws 1899, p. 118, subsec. 20; Sess. Laws 1891, p. 177, subsec. 20; New Idaho Pol. Code, par. 2, sec. 1764, said section having first been passed at the fifth session, Laws 1899, p. 406.) This identical question has been decided under similar statutes to those of Idaho by the supreme court of Kansas. (Hendriclcs v. Board of County Commissioners of Chautauqua Co., 35 Kan. 483, 11 Pae. 450.) Plaintiff cannot recover on quantum yieruit or implied contract. (Hampton v. Board of County Commissioners of Logan Co., 4 Idaho, 646, 43 Pac. 324; Argenti d. San Francisco, 16 Cal. 255; 15 Am. & Eng. Ency. of Law, 1084; Board of Commissioners v. Seawall, 3 Okla. 281, 41 Pac. 592-594.) Persons contracting with snch artificial creations of the law as municipal corporations and public officers are charged with notice of the character and constitution of the entity with which they deal. They know the law and know what are valid acts of such artificial persons. They contract at their peril. (Murphy v. Napa Co., 20 Cal. 497; Sharp v. Contra Costa Co., 34 Cal. 284; Branahan v. Mayor etc. of San Jose, 24 Cal. 585; Kelly, Sheriff, v. Multnomah Co., 18 Or. 356, 22 Pac. 1110; Roberts v. Commissioners of Pottawatomie Co., 10 Kan. 32.)</p> <p>It is not contended by appellant that the ex-sheriff ever paid respondent for the board in question, or that Bannock county has ever paid any person for it. ' It is conceded that the claim made by the ex-sheriff against the county for this board was not accompanied by a voucher showing payment or any voucher. It therefore follows that the ex-sheriff has never presented a valid or legal claim to the board of county commissioners for the board in question, and as a matter of fact he never will, because he has never paid for such board, and therefore cannot present a legal claim for it. This being true, can Bannock county escape liability to the person who actually furnished the board, when the Political Code, section 1786, says that the value of such board is a proper county charge. The order made by the county commissioners on the sixteenth day of January, 1902, allowing the ex-sheriff forty-five cents per day for board for each prisoner confined in the county jail, regardless of what such board cost, is absolutely void. The county commissioners had no right to arbitrarily fix the amount to be allowed for the board of each prisoner without reference to what the actual expense of such keeping might be, nor in advance of the time when such expenses were incurred. (People v. Board of Supervisors, 45'App. Div. 42, 60 N. Y. Supp. 1126; Board of Commissioners v. Barnes, 123 Ind. 403, 24 N. E. 137; Libby v. Board of Commissioners, 38 Minn. 448, 38 N. W. 205; Board of Commissioners v. Fullen, 118 Ind. 158, 20 N. E. 771; Fremont Co. v. Brandon, 6 Idaho* 482, 54 Pac. 264; Dunbar v. Board of Commissioners, 5 Idaho, 407, 49 Pac. 409; People v. Board of Supervisors, 45 App. Div. 42, 60 N. Y. Supp. 1122; People v. Board of Town Auditors, 156 N. Y. 689, 50 N. E. 1120; Ada County v. Gess, 4 Idaho, 611, 43 Pac. 71; Neville v. Solans County, 29 Cal. 251.) The contract is between the county and the person performing the service. The services are rendered to the county^ and if a county charge, may he collected by the person performing such service. (Jolly v. Woodward, 4 Idaho, 496, 42 Pac. 512; Peldenheimer v. County of Woodbury, 56 Iowa, 379, 9 N. W. 315; Miller v. County of Dickenson, 68 Iowa, 102, 26 N. W. 31.)</p>

<p>Appeal eeom Judgment — When will be Dismissed.</p> <p>1. When it is shown that all the questions involved in the appeal from the judgment have been decided on an appeal from an order overruling a motion for a new trial, such appeal will be dismissed.</p>

. APPEAL from. District Court of Ada County. Honorable George H. Stewart, Judge. , Defendant was convicted of murder in the first degree, and judgment of death entered against him. The facts are fully set forth in the opinion.

Honorable J. M. Stevens, Judge. Action in claim and delivery. Demurrer to the complaint was sustained and Judgment entered for the defendant and plaintiff appealed. The facts are stated in the opinion. Is the plaintiff, under the terms of the mortgage and the allegations of the complaint, entitled to the possession of this property as against the defendant?

Honorable Joseph C. Rich, Judge. Action to set aside judgment and sheriff’s deed. Judgment for defendants.

Honorable J. M. Stevens, Judge. Action by plaintiff against the village of St. Anthony for damages sustained by reason of the defective condition of a street. Judgment for plaintiff and defendant appealed.

Honorable George H. Stewart, Judge. Judgment for the defendant from which plaintiff appeals. Judgment modified; each party to pay his own costs.

<p>Written Instrument — Pap.ol Evidence — When Admissible.</p> <p>1. Under the facts and circumstances of this case, held, that parol evidence is admissible to show that at the time of the execution of the written instrument one of the conditions specified therein had been previously complied with and fully satisfied.</p> <p>2. Further, held, that the admission of intrinsic evidence showing that a condition named in the written instrument had been met by the party upon whom such condition was imposed is not a violation of the general rule which excludes parol evidence tending to vary or contradict the terms of a written contract.</p> <p>(Syllabus by the court.)</p>

Honorable Kirtland I. Perky, Judge. Action by Adin M. Hall and others against Wm. H. Black-man and others. From a judgment in favor of Blackman plaintiff Hall appeals. cites no authorities. We believe no one will care to assert that the jurisdiction: of this court at this time in this case extends any further than, to ascertain if the lower court properly carried into effect the directions contained in the mandate to it.

<p>APPEAL from tbe District Court of Canyon County. Honorable George H. Stewart, Judge.</p> <p>Action to condemn right of way for' a public road. Judgment for defendant.</p> <p>The facts are stated in the opinion.</p> <p>In the case at bar the defendant Toole had the right to question the sufficiency of the petition for the highway described in the complaint or the regularity of any proceeding thereunder at any time prior to the final action of the board on the viewer’s report, and if aggrieved by the action taken, could have ap- ' pealed to the district court. This, however, the defendant failed to do. He appeared and objected, but did not appeal. In the absence of an appeal the action of the commissioners upon the viewer’s report became conclusive, and had the force and effect of a final judgment against the defendant. (Fisher v. Hobbs, 42 Ind. 276; Gonatvay v. Ascherman et al., 94 Ind. 187; Sowle v. Cosner, 56 Ind. 276; Dillman v. Groolcs, 91 Ind. 158; Green v. Elliott et al., 86 Ind. 53; Forsythe et al. v. Er enter et al., 100 Ind. 27; Town of Cicero et al. v. Williamson et al., 91 Ind. 541.) When a petition is presented to a board of commissioners, sufficient in-form and substance to invoke its jurisdiction in a matter where it has general jurisdiction of the subject matter, its judgment declaring the petition sufficient cannot be collaterally attacked, although the petition may have been bad. (Mullilcin v. Gity of Bloomington, 72 Ind. 161; Stoddard v. Johnson, 75 Ind. 20; Muncey v. Joest, 74 Ind. 409; Argo v. Barthand, 80 Ind. 63; Goolman v. Fleming, 82 Ind. 117.) The failure of petitioners, invoking the assistance of an inferior judicial tribunal, to aver in their petition all such facts as the statute declares such petition shall contain, does not invalidate the proceedings where there are allegations sufficient to show that the tribunal has a general jurisdiction over the subject matter. (Goolman v. Fleming, supra; Corey v. Swagger, 74 Ind. 211; Elliott on Roads and Streets, 2d ed., sec. 287.)</p> <p>It is a familiar doctrine of law that in the exercise of the right of eminent domain, the course established by law must be substantially complied with in all essential particulars. “The right to appropriate private property to public use lies dormant in the state until legislative action is had, pointing out the occasions, the modes, conditions and agencies for its appropriation.....These provisions must be regarded as in the nature of conditions precedent, which are not only to be observed and complied with before the right of the property owner is disturbed, but the party claiming authority under the. adverse proceedings must show affirmatively such compliance.” (Cooley’s Constitutional Limitations, 6th ed., p. 648; Idaho Const., art. 1, see. 14; Godchmx v. Carpenter, 19 Nev. 415, 14 Pae. 140; Stanford v. Worn, 27 Cal. 172; Sharpe v. Spier, 4 Hill, 86.) Boards of county commissioners in the matter of laying out public highways have only the powers specifically conferred.by the statute, and can exercise those powers only in the manner pointed out by the statute. (Gorman v. County Commissioners, 1 Idaho, 655; County of Modoc v. Spencer, 103 Cal. 498, 37 Pac. 483; Damrell v. San Joaquim, Co., 40 Cal. 154, Hentzler v. Bradbury, 5 Kan. App. 1, 47 Pac. 330; Kimball v. Alameda County, 46 Cal. 19; Siskiyou Co. v. Gamlich, 110 Cal. 94, 42 Pae. 468; Commissioners of Waubensee Co. v. Muhlenbacker, 18 Kan. 129; Sherman v. Buick, 32 Cal. 242, 91 Am. Dec. 577; Smithers v. Fitch, 82 Cal. 153, 22 Pac. 935; Thatcher v. Crisman, 6 Colo. App. 49, 39 Pac. 887.) As stated above, our statute requires as the first step in the laying out of a highway the filing of a petition with the board of county commissioners. Our statute in this respect is similar to that of a great many states. It has been uniformly held where the statute makes this requirement, or a similar one, that a petition containing substantially the statement of facts required by the statute is necessary to give the board jurisdiction of the subject matter and that without it the board has no power to act. (In re Grove St, 61 Cal. 438; State v. Myer, 20 Or. 442, 26 Pac. 308; Howard v. Board of Commerce, 25 Neb. 229, 41 N. W. 185; Sime v. Spencer, 30 Or. 340, 47 Pae. 919; Craft v. De Soto Co., 79 Miss. 618, 31 South. 204; Thatcher v. Crisman, 6 Colo. App. 49, 39 Pac. 887; Matter of Commrs. of Washington Park, 52 N. T. 131; Shell v. Poulson, 23 Wash. 535, 63 Pac. 204; Curtis v. Pocahontas Co., 72 Iowa, 151, 33 N. W. 616; Cowing v. Ripley, 76 Mich. 650, 43 N. W. 648; Ruhland v. Supervisors, 55 Wis. 664, 13 N. W. 877; Morris v. Salle, 14 Ky. Law Rep. 117, 19 S. W. 527.) The true rule is that the matters which appear on the face of the record must be sufficient to confer jurisdiction according to the terms of the statute, and no resolution or determination of the board could make them different from what they really are. (Mulligan v. Smith, 59 Cal. 206-229.)</p>

Honorable J. C. Rich, Judge. New trial denied by Honorable J. M. Stevens, Judge. Action to settle the water rights of Camas creek. Judgment for plaintiff from which certain defendants appeal. The facts are stated in the opinion. It will not be disputed that in order to constitute a legal appropriation the water claimed must be applied to some beneficial use or purpose.

Honorable Kirtland I. Perky, Judge. Suit by George H. Abbott and others to determine the rights and priorities of the various water consumers of and from Soldier creek in Blaine county. From a decree settling the respective rights of all the parties defendant, John Wardrop appeals. It is an undisputed fact that the appellant Wardrop has the oldest water right on Soldier creek, and-the court so found, as shown by the decree.

Honorable James M. Stevens, Judge. Defendant was convicted of a felony. The facts are stated in the opinion. The rules relating to false pretenses and cheats are applicable here. The presentation of false accounts is false pretenses. (7 Am. & Eng. Ency. of Law, p. 754.) The claim, we submit, must be fair and regular on its face and not plainly absurd or irrational, or sucb as to be readily detected.

Honorable George H. Stewart, Judge. Judgment for defendant — respondent here — from which plaintiff appeals. There is but one question involved in this ease, to wit: Has the user of water upon lands susceptible of irrigation from the ditch of a company claiming a water right under section 2587, Civil Code of Idaho, the right to change the place of use of the water to other lands susceptible of irrigation from such ditch, “if others are not injured by such change”?

Honorable J. M. Stevens, Judge. Defendants were convicted of the crime of grand larceny and appealed from the judgment and order overruling the motion for a new trial.

Honorable George H. Stewart, Judge. Action by plaintiff to recover the possession of a band of sheep, or in case a return thereof cannot be had, for the value thereof. Held: that the mortgage was' inoperative as against the attachment creditor. (Fassett v. Wise, 115 Cal. 316, 47 Pae. 47, 1095, 36 L. R. A. 505; Tabor v. Sampson, 7 Colo. 426, 4 Pac. 45; Grimes Co. v. McKee, 51 Kan. 704, 33 Pac. 594.)

Stewart, Judge. Action by plaintiff to recover possession of a band of sheep, or in ease a return thereof cannot be had, for the value thereof. From a judgment in favor of plaintiff and an order denying a motion for a new trial defendant appeals. This is a companion case of Gowden v. Finney, the facts being substantially the same. cite the same authorities cited in the Cowden-Finney case. cite the same authorities substantially as in the case of Gowden ¶. Finney.

JUDGMENT for respondent, defendant below, from which plaintiff below, appellant here, appeals. The facts are stated in the opinion. A conveyance or other contract of a person of unsound mind, but not entirely without understanding, made before his incapacity has been judicially determiend, is subject to rescission. (Idaho Rev. Stats., sec. 2411.) One who deals in property matters with an aged and feeble person is bound to prove the fairness of the transaction.

ORIGINAL petition by Irven Kinyon for a -writ of habeas corpus. By consent, writ waived and petitioner discharged. This case involves the constitutionality of the act of March 16, 1901, Sixth Session Laws of Idaho, page 159, to provide for the licensing of peddlers, hawkers and solicitors, and prescribing penalty for failure to comply with the provisions of this act.

and for Lincoln County. Honorable Kirtland I. Perky, Judge. Condemnation action by H. L. Hollister against the state of Idaho, W. A. Clark and others. From a judgment by default against defendant Clark and certain other defendants, Clark appeals. The paragraphs of the complaint upon which the controversy is based are set forth in the opinion, as also the statute under the provisions of which the cause is prosecuted.

Honorable Lyttleton Price, Judge. From a final order of condemnation founded and based upon the judgment appealed from in Hollister v. State, Defendant, and W. A. Clark, Defendant and Appellant, ante, p. 651, 75 Pac. 339, decided at this term, the defendant Clark appealed.

<p>Criminal Law — Reading Information and Stating Plea to Jury— Urging Jury to Agree — Prejudicial Error.</p> <p>1. Under section 7855, Revised Statutes, which provides that where the indictment or information charges a felony, “the clerk must read it, and state the plea of the defendant to the jury,” a failure to read the indictment or information, and state the plea by the clerk or any officer of the court is reversible error.</p> <p>2. On trial of a felony ease, the jury, after having deliberated for considerable time, returned into court for further instructions, and thereupon the court gave them some directions and sent them back to the juryroom. On the following day they came into court and announced that they could not agree, whereupon the court reminded them of the great expense of such a trial to the county, and admonished them to meet in a proper spirit of inquiry and investigation, and try to get together and not to have too much pride in their individual opinions, and that it did not seem to him that the ease involved a great deal of difficulty, and then sent them back to the juryroom. After again remaining out for some time, they returned into court and announced that they could not agree, whereupon the court again admonished them and reiterated practically all he had before said to them, and told them that they should accommodate themselves to the condition of affairs and come to an agreement, and that the administration of justice, demanded it, and thereafter the jury returned and brought in a verdict of guilty. Held, that such instructions, admonitions, and urging by the judge were reversible error.</p> <p>3. Held, further, that a verdict returned under such circumstances does not represent the fair and deliberate judgment of the-jury.</p> <p>,(Syllabus by the court.)</p>

Honorable J. M. Stevens, Judge. Defendant was convicted of grand larceny. In the information, the property is alleged to be that of By-bee, but on the trial it was proved to be that of the firm of Bybee & Jones, and this is in law a fatal variance. (People v. Frank, 1 Idaho, 200; Scott v. State, 42 Ark. 73; McGowan v. State, 58 Ark. 17, 22 S. W. 955; Hanndhan v. State, 7 Tex.

Honorable George H. Stewart, Judge. Action by state to recover license tax for billiard and pool tables. Judgment for state. The facts are stated in the opinion. The first question involves both the construction of the act and its constitutionality.

<p>ORIGINAL application for writ of prohibition to restrain the judge of the Fifth Judicial District of Idaho, in and for Bear Lake County, from proceeding to try an action brought under the provisions of an act concerning the regulation of waters appropriated for a beneficial purpose, approved March 11, 1903.</p> <p>In sections 4 and 5 of this statute, pages 228, 229, there is provision, in effect, for a determination by the state engineer of the quantity of water which can be diverted and conducted to the place of intended use, and a determination of the lands, by giving a description of them for which water is made available by such works. If the determination of the availability of the waters of the lands is to involve a determination of the right of such lands to such waters, third persons would be affected by such a determination. The water would not be available for such lands unless there were rights to the use-of such water for such lands, and it is therefore a provision for a determination of the physical and legal availability of water for such lands. This provision is unconditional, for each of the following reasons, to wit: 1. Because it vests judicial power in the state engineer in violation of section 2 of article 5 of the constitution. (Thorp v. Freed, 1 Mont. 657; Fitch v. Board of Auditors, 133 Mich. 178, 94 N. W. 952; Davidson v. Johnson, 113 By. 202, 67 S. W. 996; Pratt v. Breckenridge, 112 By. 1, 65 S. W. 136; People v. Chase, 165 111. 527, 46 N. E. 454, 36 L. B. A. 105; IJeople v. Simon, 176 111. 165, 68 Am. St. Bep. 175, 52 N. E. 910, 44 L. E. A. 801; State v. Gerry, 68 N. H. 495, 38 Atl. 272, 278 et seq., 38 L. B. A. 228; Arlele v. Board of Commrs., 41 W. Va. 471, 23 S. E. 804; State v. Guilbert, 56 Ohio St. 575, 60 Am. St. Bep. 756, 47 N. E. 551, 38 L. E. A. 519; Bisser v. Hoyt, 3 Mich. 185, 18 N. W. 611.) 2. Because even if such judicial power is lawfully vested in the state engineer, the exercise of it, as provided, is unconstitutional. (State v. Guilbert, 56 Ohio St. 575, 60 Am. St. Bep. 756, 47 N. E. 551, 38 L. B. •A. 579; People v. Simon, 176 111. 165, 68 Am. St. Bep. 175, 52 N. E. 910, 44 L. B. A. 801, approving State v. Guilbert; Brown v. Board, 50 Miss. 468; Tyler v. Judges of the Court of Registration, 175 Mass. 71, 55 N. E. 812, 51 L. B. A. 433; Webster v. Reid, 11 How. 437, 13 L. ed. 761; Reed v. Wright, 2 Greene (Iowa), 15.) 3. Because it violates section 26 of article 5 of the constitution of Idaho, providing that all laws relating to courts shall be of general and uniform operation, and the organized judicial powers, proceedings and practices of all courts of the same class -or grade shall be uniform. (Art. 3, sec. 19, subd. 3.) The provisions for service by publication in this ease is not uniform with the provision for service in other classes of eases to quiet title or determine adverse interests. The same provisions are violated by provision authorizing suits to quiet title by a public official ;who is not the real party in interest. The same provisions are also violated by sections 34 to 37, in that they provide a special proceeding to quiet title to water rights only on streams where decrees have been previously entered. (Cullen v. Glendora Water Co., 113 Cal. 503, 39 Pac. 769.) This statute provides for the several counties paying attorneys’ fees of counsel employed by the water commissioners in violation of section 6 of article 18 of the constitution. These statutory provisions impose the liability for these items of expense upon the counties, and impose upon them the duty of raising taxes for the payment thereof in violation of section 6 of article 7 of the constitution. (Knox v. Board of Supervisors of Los Angeles County, 58 Cal. 59; State v. Barnes. 24 Fla. 29,. 3 South. 433.) The statute is unconstitutional, in that in sections 29 and 35 thereof it was provided that the county shall pay, and there shall be assessed against lands, the amount of the claims of the water-master and commissioners as certified by them, without any discretion on the part of the commissioners, of the county or the land owners, and without any time provided for a hearing of the question of the correctness and justness of the accounts. Such legislation is invalid. (People v. Houston„ 54 Cal. 536; Felix v. Board of Commrs., 62 Kan. 832, 84 Am. St. Bep. 424, 62 Pac. 667; State v. Mayor, 72 Mo. 639; Church v. Town of South Kingston, 22 B. I. 381, 48 Atl. 3, 53 L. B. A.. 739.) Section 36 deprives parties of control without due process and violates section 13 of article 5 of Idaho constitution. ’ Statute finds no justification in police power.. States cannot under police power institute suits to quiet titles in order to encourage improvement and settlement of country. (Reed v. Wright, 2 Greene (Iowa), 15; Trega v. Board of Directors of Modesto Irr. Dist., 164 U. S. 179,17 Sup. Ct. Bep. 52, 41 L. ed. 395.) The legislature, though having power to provide what shall be prima facie evidence, has not authority to declare what shall be conclusive evidence. (Tiedeman on State and Federal' Control.) Police power is limited to health, safety, public peace, etc. Encouragements to development of public resources is the power of eminent domain. Section 14, article 1, Idaho constitution, which is exercised only on compensation.</p> <p>Costs and expenses of litigation to the county not a party to-.this action and not interested therein: So far as this phase of the question is concerned, we do not deem it of much importance, and merely call attention to the fact that if the law in question can be held to deal with a proper subject of legislation and falls within the police power of the state (which we think is beyond question), then the costs imposed upon the county by reason of the litigation is in no wise dissimilar to other costs which are made a county charge in the enforcement of the police statutes of the state. Determining the rights of parties without due process of law: Due process of law does not necessarily require that a person whose property is sought to be affected should have personal notice of the proceeding. The notice may be actual or constructive, and it is sufficient if a notice be provided by which it is reasonable to believe that the person who is affected be apprised of the proceeding against him. (10 Am. & Eng. Ency. of Law, p. 299; Gilchrist v. Schmidling, 12 Kan. 263; Happy v. Mosher, 48 N Y. 318.) This is an action in rem. It is dealing with a tangible res, and in such' cases a proceeding may be instituted and carried to judgment without personal service upon claimants within the state. (Pennoyer v. Neff, 95 U. S. 714, 24 L. ed. 565; Freeman on Judgments, 4th ed., secs. 606-611; Black on Judgments, 792, 784, 795.) But we claim that the question of due process of law has no application to the statute involved here. We are fully convinced that the question involved is one purely of police power, and if we are correct in our conclusion, then neither the fourteenth amendment to the constitution of the United States nor section 13 of the Declaration of Rights of the constitution of Idaho is involved. These prohibitions do not impose any restraint upon the exercise of police power of the state in cases where the police power is properly involved. (10 Am. & Eng. Ency. of Law, 307; Barbier v. Connolly, 113 U. S. 27, 5 Sup. Ct. Rep. 357, 28 L. ed. 923; Sifers v. Johnson, 7 Idaho, 798, 97 Am. St. Rep. 271, 65 Pac. 709; Sweet v. Balentine, 8 Idaho, 431, 69 Pac. 995.)</p>

ORIGINAL proceeding in this court for a writ of mandate. The facts are stated in the opinion. The writ properly lies in eases where inferior courts refuse to take jurisdiction where by law they ought to do so, or where, having obtained jurisdiction in a cause, they refuse to proceed in the due exercise thereof. (Ex-parte Parker, 120 H. S. 737-743, 7 Sup. Ct.

Honorable Lyttleton Price, Judge. Action by plaintiff for statutory damages. Judgment for plaintiff and defendant appeals.

<p>APPEAL from District Court, Blaine County. K, I. Perky,. Judge.</p> <p>Action by W. S. McCornick against S. M. Friedman and’ •others.</p> <p>Judgment for defendant from which plaintiff appeals.</p> <p>The facts are stated in the opinion.</p> <p>There are only two important questions of law in this case. All of the exceptions can properly be discussed under these two points: 1. On the tenth day of May, 1893, S. M. Friedman paid the full consideration for the deed of the property from Alexander' Willman. He then became the legal and equitable owner of the property. Our judgment became a lien thereon as soon as it was entered, December 7, 1893. 2. All of the evidence of an agreement between S. M. Friedman and Henry Cohn is within the statute of frauds, because it was an attempt to show a contract between said Friedman' and Cohn for the disposition of real estate, or an interest therein. In some of the cases it seems to be assumed that a second delivery is necessary upon the happening of the event, or the performance of the condition, to vest the title in the grantee. But we can see no good reason why the deed should be actually turned over to the grantee before his title is complete. The grantor has parted with all control and dominion over the deed, and he can have no right to direct the withholding of the deed from the grantee; and if the latter has performed the condition upon which delivery to him was to be made, it seems to us that it is immaterial, except as to a question of evidence or notice, whether the deed is actually delivered to him or not. (1 Devlin on Deeds, 2d ed., see. 331.) But while delivery is essential to render the deed effectual at law, it is in fact the performance of the conditions that imparts life and validity, and for this reason equity regards the title as vesting in the grantee whenever this has been done. (Warvelle on Vendors, 515; Prutsman v. Baker, 30 Wis. 648, 649, 11 Am. Bep. 592; 11 Am. & Eng. Eney. of Law, 2d ed., 345, 346.) An escrow takes effect instantly upon the performance of the condition without any formal delivery over by the depositary. (Couch v. Meeker, 2 Conn. 302, 7 Am. Dec. 274; Davis’v. Clark, 58 Kan. 100, 48 Pae. 563; Began v. Howe, 121 Mass. 424; Lessee of Shirley v. Ayres, 14 Ohio 307, 45 Am, Dec. 546; White Star etc. Co. v. Moragne, 91 Ala. 610, 8 South. 867; State Bank v. Evans, 15 N. J. L. 155, 28 Am. Dee. 400; Cannon v. Handley, 72 Cal. 140, 141, 13 Pac. 315; Hughes v. Thistlewood, 40 Kan. 232, 19 Pae. 629.) The evidence given by Henry Cohn of an agreement between himself and Friedman is within the statute of frauds, and should have been rejected. If it is an attempted agreement to transfer to Cohn the real estate, it is void under the statute of frauds. It is an oral promise to convey real estate or an interest therein. Under the statutes of Idaho a verbal contract for the sale or transfer of real estate is not admissible in evidence against a stranger to such contract. {McGinness v. Stanfield, 6 Idaho, 372, 55 Pac. 1020; Smith ¶. Burnham, 3 Sum. 435, Fed. Cas. Ho. 13,019.) Where plaintiff executed and delivered to defendant a deed of certain land, the legal title passed, although it was intended by both parties that the deed should not take effect until the defendant made a sale of the land for plaintiff, but the equitable title still remained in plaintiff, and a subsequent oral sale thereof to defendant was within the statute of frauds and void, and in an action for the balance of the purchase money a demurrer to the petition was properly sustained. {Darling v. Butler, 45 Fed. 332, 10 L. E. A. 469; Holmes v. Holmes, 86 N. 0. 205; Glitus v. Langford (Tex. Civ. App.), 24 S. W. 325.)</p> <p>The defense in this action is that Emil M. Friedman, of Salt Lake, is the owner of the premises by purchase through mense conveyances from Alex Willman, and the deeds showing a perfect deraignment of title from Willman through S. M. Friedman to Cohn, and from Cohn to Emil M. Friedman, are in the evidence. Ho fault is found with this deraignment except, as above stated, that the legal title passed from Willman to Cohn subject, as contended, to the lien of appellant’s judgment upon a title asserted to have fallen to Friedman in consequence of the Willman suit. This question is fairly presented, and it is the only one in the case. It involves two points: 1. Is the agreement between Cohn and Friedman, by which Cohn assumed and bore the burdens of the litigation with Willman, to take its fruits and pay Friedman’s debt to him, fought by him to a successful issue and the proceeds applied to the payment of that debt, a parol transfer of lands and void under the statute of frauds? And 2. Did Willman’s title become vested in Friedman upon tbe levy of the wrongful attachment or at any other time as a legal consequence of the unlawful attachment or the result of the litigation, or the escrow agreement, or, of all together? No point is made as to the effect of the legal title passing into the name of S. M. Friedman when the escrow deed was taken down on Willman’s order and delivered to Cohn, nor no question as to the creation of a trust in the property as such, in Friedman for the benefit of Cohn. The action is purely a suit in ejectment. It was tried as such as the record fully disclosed. No issue in equity was tried and no equitable principle invoked by either side. As tried, it was strictly and technically a law case, and as presented here as to all points raised, it is the same. It was not a case for submission of special issues to the jury, and if it were, appellant was given an opportunity at the opening of the trial to have them presented, where appellant’s counsel “objected to the introduction of any evidence under the equitable defense set out by the defendants if the action is to be tried by a jury.” The cause was tried by a jury, with one special finding as to rental value at appellant’s request, and no evidence upon any equitable defense was offered. The lien of a judgment attaches to the precise interest ox estate which the judgment debtor has, actually and effectually, in the land. By this is meant that, as the recovery of a judgment against him cannot of itself operate to change the quantity of his interest in the property, so its lien cannot be made effectual to bind or convey any greater or other estate than the debtor himself, in the exercise of his rights, could voluntarily have transferred or alienated. (Black on Judgments, par. 420.) Appellant has no title from this source. The utmost that could be claimed for him would be that he succeeded to Friedman’s equity. This will not support ejectment. Friedman had no interest in the land. He never had the legal title and he had at this time parted with his equity. He was a “mere conduit” of the title. (Black on Judgments, 421.)</p>

Honorable Lyttleton Price, Judge. Appeal from an order of the board of county commissioners refusing to allow personal claims of appellant. Judgment for county. cites no authorities on the only point decided by the court. cites no authorities in his brief upon the point decided.

<p>APPEAL from Canyon County District Court. Honorable George H. Stewart, Judge.</p> <p>Action to recover damages for the careless location and construction of á canal and for the careless mismanagement thereof. Judgment for defendant.</p> <p>Presumption as to damages: The law will presume damage from the infringement of a legal right. {Webb v. Portland Mfg. Go., 3 Sum. 189 Fed. Cas. No. 17,323; Whipple v. Cumberland Mfg. Co., 3 Story, 661, Fed. Cas. No. 17,516.) The law presumes damages from a trespass upon realty. (Attwood v. Fricot, 17 Cal. 37, 76 Am. Dee. 567.) Where the evidence shows a violation of plaintifPs right, the law implies actual damage sufficient to sustain an action. (Blanchard v. Burbank, 16 111. App. 375.) The impossibility of definitely measuring the damages received by a money standard is no ground for denying pecuniary relief. {Birmingham v. Lewis, 92 Ala. 353, 9 South. 243.) If they cannot be measured by a fixed rule, all facts and circumstances tending to show what they are should be submitted to the jury. (Gilbert v. Kennedy, 22 Mich. 117.) Overflowing lands: In an action for overflowing the lands of the plaintiff by a dam, the plaintiff is entitled to nominal damages if he cannot prove any special. (Dorman v. Ames, 12 Minn. 451; Pastorious v. Fisher, 1 Bawle, 27.) Nominal damages may be recovered for the diversion of a natural watercourse, without proof of actual injury. (Blodgett v. Stone, 60 N. H. 167.) The law implies damage from the act of flowing backwater upon the land of another, and nominal damages at least may be recovered. (Graver v. Sholl, 42 Pa. St. 58.)</p> <p>A party who claims compensation for an injury done him must show, as part of his case, not only that he has suffered loss on account of the injury, but also what is the amount of the loss; and the burden of proving both these things is upon him. (Sedgwick on Damages, sec. 170; Orient Min. Oo. v. Freckleton, 27 Utah, 125, 74 Pae. 652.) Where the sole question is one of fact and the evidence is conflicting, the finding of the jury will not be disturbed. (Sears v. Flodstrom, 5 Idaho, 314, 49 Pac. 11.) Where there is a substantial conflict in the testimony, the verdict of the jury will not be disturbed on appeal. (Simpson v. Remington, 6 Idaho, 681, 59 Pac. 360.) Where there is a conflict of evidence in a trial before a jury, the appellate court will not disturb the verdict. (Murphy v. Montandon, 4 Idaho, 320, 39 Pac. 195; Simons v. Daly (Idaho), 72 Pac. 507; Reay v. Butler, 95 Cal. 206, 30 Pae. 209; Coffin et al. v. Bradbury et al., 3 Idaho, 770, 95 Am. St. Eep. 37, 35 Pac. 715; Hawkins v. Pocatello Water Go., 3 Idaho, 766, 35 Pae. 711.) The directors of a corporation occupy a fiduciary relation toward the stockholders, and are treated by courts of equity as trustees for them. The directors are the trustees and managing partners, and the stockholders are the cestuis que trust. (3 Thompson on Corporation, secs. 4009. 4010, 4104, 4106; Briggs v. Spaulding, 141 H. S. 132, 11 Sup. Ct. Eep. 924, 35 L. ed. 662; Wallace v. Lincoln Sav. Bank, 89 Tenn. 630, 24 Am. St. Eep. 625, 15 S. W. 448.) Where there is a duty of finding out and knowing, negligent ignorance has the same effect in law as actual knowledge. (3 Thompson on Corporations, see. 4108; 2 Thompson on Negligence, p. 762.)</p>

<p>APPEAL from District Court, Nez Perce County. Honorable E. C. Steele, Judge.</p> <p>After the remittitur was sent down and filed in the district •court, said district court did on the eighth day of December, 1903, make and render its modified findings and modified judgment in accordance with the views expressed in said opinion, and the same was duly filed and entered of record on the eighth d.ay of December, 1903, in which modified findings the court found “that due claim for lien was filed for record as required by law in the office of recorder of said Nez Perce county on the sixth day of June, 1901, and thereafter, on the same day, was duly recorded in said office in book one (1) of liens at page 303,” 2 findings of fact, and as a conclusion of law that the plaintiff is entitled to a foreclosure of his lien on said mine, and made its modified judgment in accordance with said decision, from which judgment the appeal in this ease is taken. We maintain that the modified judgment and findings so made and entered by the district court, after remittitur, are in accordance with the views expressed in the opinion of this honorable court, and is in fact the judgment of this court from which an appeal will not lie. In support of this contention and our motion to dismiss, we cite the following authorities: Sail v. Blackman et al., ante, p. 555, 75 Pac. 608; Kimpton v. Jubilee Min. Co. et al., 22 Mont. 107, 55 Pac. 918 ;• Krantz v. Bio Grande Western By. Co., 13 Htah, 1, 43 Pac. 623, 32 L. R. A. 828; Keller v. Lewis, 56 Cal. 466; Stewart v. Salmon, 97 II. S. 361, 24 L. ed. 1044.</p> <p>The appellant, answering the brief of respondent on motion to dismiss the appeal from the judgment on remittitur, respectfully directs attention to the following points and authorities : Point 1: Judgments are not permitted to be, and are not, res adjudicata concerning questions not litigated therein. Point 2: On appeal to the supreme court, the supreme court is limited in its decisions to those matters necessarily involved within the limits of the decree of the lower court, and to an adjudication of'the rights actually litigated, or which might have been litigated between the parties. Point 3: There is a vast distinction between matters which are res adjudicata, as^ between the parties, and those which are res inter alios acta, and also those things which were never involved in the controversy. (Hall v. Blackman, ante, p. 555, 75 Pac. 608.) The persons between whom a judgment or decree in a suit is conclusive in' a subsequent suit are the parties to the prior suit and their' privies, and as a general rule it is conclusive only between them. The mere fact that a person had an interest in the' subject matter of the prior suit will not render the judgment or decree therein conclusive upon him. (24 Am. & Eng. Ency. of Law, 2d ed., cases collated, pp. 725-729.) A judgment is not res adjudicata as to a question not appearing upon the face of. the record, or shown by extrinsic evidence to have been determined in the action. If there be any uncertainty as to the precise issue involved and determined in the action, as for example, if it appear that several distinct matters were litigated, upon any one or more of which the judgment may have turned, the whole matter of the action will be at large and open to subsequent controversy. (24 Am. & Eng. Ency. of Law, 2d ed., pp. 773-775.)</p>

APPLICATION to assess damages against the defendant judge on an application for a writ of mandate. files no brief. Hnder the mandatory provisions of section 4912, Eevised Statutes of Idaho, as amended at pages 231, 232 of the Session Laws of 1899, the plaintiffs were required to file with the clerk of this court and serye upon the attorney for the defendant their cost-bill within five days after the notice of the decision of this couft.

<p>ORIGINAL application to this court for release of the petitioner from the custody of the sheriff, he having been held for his appearance to answer to the charge of murder.</p> <p>The facts are stated in the opinion.</p> <p>Authorities cited are nearly all found in the opinion of the court.</p> <p>file no brief.</p>

<p>APPEAL from District Court of Idaho County. Honorable E. C. Steele, Judge.</p> <p>file no brief.</p> <p>An appeal does not lie from a final judgment of this court made and entered in the lower court by the direction of this court. The attempt is as idle as it is absurd. The moment it is attempted by going through the statutory form of an appeal' by filing and serving a notice of appeal and filing an undertaking when it is shown upon motion that no appeal will lie, it will be dismissed. If, however, such an appeal is taken, the-supreme court of the United States in the ease of Stewart v. Salamon, 97 U. S. 361, 24 L. ed. 1044, say: “We will, upon the application of the appellee examine the decree entered, and if it conforms to the mandate, dismiss the case with costs, for it is in effect our decree and the appeal would be from ourselves to ourselves.” (Kimpton v. Jubilee Min. Go., 22 Mont. 107, 55 Pae. 919, and authorities cited; 1 Spelling on Appellate-Practice, see. 655; People v. Van Tassel, 13 Utah, 9, 43 Pac.. 624.)</p>

Honorable R. T. Morgan, Judge. Action to establish and enforce a trust. From a judgment on the pleadings in favor of defendant, plaintiff appeals. The court should have permitted the filing of the amended complaint.

<p>Communications with Jury — Judge in Jtjryroom — Instructions— Delivering Letter to Juror.</p> <p>1. Where a judge, after the jury have retired for deliberation, goes to the juryroom upon request of a juror, and in the absence of defendant and his counsel, and has a conversation with the jury or a juror relative to the ease, or with reference to their verdict, such conduct will constitute error for which a new trial will be granted.</p> <p>2. All communications between judge and jury should take place in open court, and in the presence of the parties litigant or their counsel.</p> <p>3. An instruction in the language of section 7697, Revised Statutes, as follows: “You are further instructed that the distinction between an accessary before the fact and a principal, and between principals in the first and second degree, in eases of felony, is abrogated; and all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, shall be prosecuted, tried, and punished as principals, and no other facts need be alleged in any indictment against such an accessary than are required in an indictment against a principal,” is not error.</p> <p>4. It is error to deliver a sealed letter to a juror after the ease has been submitted to the jury.</p> <p>(Syllabus by the court.)</p>