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St. 359, 17 Atl. 10S6, 1100, says: "It is settled law that the life tenant cannot of his own motion improve the remainder-men out of their estate." Or, as was said in Van Bibber v. Williamson, 37 Fed. 759: "Improvements made by the life tenant, or those holding or claiming by, through, or under him prior to his death, could not, upon well-settled principles, be charged against the remainder-men, who were minors, and in no position to interfere or complain." See, also, Elam v. Parkhill, 60 Tex. 582, and Miller v. Shields, 55 Ind. 71.

The cost of the improvement in raising the stone buildings was about $3,000. This expenditure was entirely, as we have seen, from the funds of the defendant, but it was by her own volition, with knowledge at the time of the exact relationship which she sustained to the owners of the remainder. So that this expenditure cannot be allowed, upon any ground that we are now enabled to discover, at the expense of the inheritance. The expenditure for the improvement of the street should, however, be allowed the defendant. This improvement constituted a betterment, and inured to the benefit of the inheritance, as well as to the life estate, and the cost thereof should be treated as an incumbrance on the whole estate. Plympton v. Boston Dispensary, 106 Mass. 547; Cairns v. Chabert, 3 Edw. Ch. 330. In view of the fact that the defendant bought in the outstanding mission title in good faith, believing it to be necessary for the protection of the whole estate, the amount expended therefor should also be treated as an incumbrance. The amount expended for improving the street was $100, which, being added to the consideration for the mission title, makes $520. The defendant, by paying this sum out of her own funds, became a creditor of the estate to that extent, deducting the interest she would have to pay as life tenant during her life. It is the duty of the defendant to keep down the interest upon this sum during her life, and of the remainder-men to pay the principal at her death. 4 Kent, Comm. 74, 75; Reyburn v. Wallace (Mo. Sup.) 3 S. W. 482. The rule is well settled by which may be ascertained the relative proportion of the incumbrance to be borne, respectively, by the life tenant and the owners of the remainder if paid at once or at any given time before the death of the life tenant. The life tenant must pay the present worth of an annuity, equal to the annual interest running during the number of years which constitute the expectancy of life. The balance, after subtracting the sum thus ascertained from the incumbrance, should be borne by those in remainder. 3 Pom. Eq. Jur. § 1223, and note 2, at page 213.

There is evidence in the case tending to show that the Missionary Society has agreed to refund to the defendant the $420 paid for the mission title, and that a percentage of that amount has been tendered and is now

ready to be paid her. When she collects this fund, it ought to go towards the discharge of the incumbrance. Plaintiffs seek to have the $400 which defendant received for the iron doors offset against any claim she may have for expenditures; but this is in the nature of waste, and no claim is made therefor under the pleadings, nor was there any evidence offered during the trial showing that she was guilty of committing waste in this respect. She may or may not have committed waste in selling the iron doors, but the evidence is insufficient to determine that question, none apparently having been offered with that end in view. Hence this claim cannot be allowed.

The decree will be that the defendant convey to the other devisees of Jonas Whitney the premises in the proportion they would take under the will, reserving to herself the rents, issues, and profits thereof during her natural life, and that the $520 be declared an incumbrance thereon, to be discharged by the life tenant and other devisees, the proportion for each to pay to be ascertained under the rule herein determined. The decree of the court below will therefore be modified in accordance with this opinion.

(4 Idaho, 431)

FIRST NAT. BANK OF PALOUSE CITY v. LIEUALLEN et al. (Supreme Court of Idaho. April 6, 1895.) ATTACHMENT LIEN-NOTICE OF LEVY-SALE.

1. The evidence of the levy of the attachment and the notice thereof, filed with the recorder, held sufficient to give notice of the attachment lien.

2. A sheriff's deed for land sold under exe cution relates back to the date of the attachment, and cuts off all subsequent liens.

(Syllabus by the Court.)

Appeal from district court, Latah county; W. G. Piper, Judge.

Action by the First National Bank of Palouse City against J. W. Lieuallen and others to foreclose a mortgage. Plaintiff had judg ment, and defendants appeal. Reversed.

J. H. Forney and I. N. Smith, for appellants. J. A. C. Freund and Hanna, McCrosky & Ettinger, for respondent.

SULLIVAN, J. This is an appeal from a judgment and decree of foreclosure. The facts are substantially as follows: The defendants Lieuallen and Lestoe brought suit against the defendant Andrew Clyde, doing business under the name of the Andrew Clyde Company, on the 19th of November, 1892, to recover the sum of $1,041.09, with interest and costs; and an attachment was duly issued in said action, and levied upon the land described in the complaint in this action. Thereafter, on the 20th day of December, 1893, Lieuallen and Lestoe obtained judgment in said suit for the sum $1,446.84. On the 14th day of February, 1893, the said Andrew Clyde and Anna Clyde, his wife, exe

cuted their certain mortgage upon the real estate described in the complaint to secure the payment of their promissory note for $7,040.27, due November 1, 1893, in favor of the plaintiff, the First National Bank of Palouse City, Wash. Thereafter said First National Bank brought this suit to foreclose said mortgage, and the said Lieuallen and Lestoe were made parties, for the reason following, stated in the complaint: "That the defendants Lieuallen and Lestoe have, or claim to have, some interest or claim upon said premises, or some part thereof, as judgment creditors;" and that such interest was subsequent to that of plaintiff's. The defendants answered the complaint, and denied that their interest in and to said land was subsequent to the lien of plaintiff's mortgage, and set up their said action brought on November 19, 1892, against Andrew Clyde, and their attachment proceedings therein, the judgment obtained in said case, the issuance of an execution to enforce said judgment, the sale of the land described in said notice of attachment under said execution, and the purchase thereof by said Lieuallen and Lestoe. The cause was tried by the court, and judgment and decree entered in favor of the First National Bank. The court held that said attachment was invalid, and that plaintiff's said mortgage was a prior lien to the attachment and judgment of the said Lieuallen and Lestoe against Andrew Clyde. The appeal is from the judgment. Respondent has not filed a brief in this court.

The main question in the case is as to the validity of the attachment levied November 19, 1892, in the case of Lieuallen and Lestoe v. Andrew Clyde. The record shows that on the 20th day of November, 1892, the notice of the levy of the attachment, together with a copy of the writ of attachment and a description of the property attached, was duly filed in the office of the auditor and recorder of Latah county,-the county in which said real estate is located. Section 4307, Rev. St., provides that a writ of attachment must be executed by the sheriff to whom it is delivered without delay if the undertaking mentioned in section 4305, Id., be not given. Subdivision 1 of that section is as follows: "(1) Real property standing upon the records of the county in the name of the defendant must be attached by filing with the recorder of the county, a copy of the writ together with a description of the property attached and a notice that it is attached. The record shows a sufficient compliance with the provisions of said section in making the levy of said attachment. While it is a fact that the notice of levy is not as complete as it might have been made, it is sufficient to put any person dealing with said Clyde in regard to said land upon inquiry, and to give notice to the world of the lien claimed thereon by the said Lieuallen and Lestoe, under said attachment. Said attachment lien attached to said land on the 19th of Novem

**

ber, 1892 (the date of the levy), and the lien of the judgment in that case relates back to that date. Said land was sold under the execution issued in said case, and the certificate of sale of the land issued to said Lieuallen and Lestoe. The sheriff's deed, if issued, will relate back to the date of the levy of the writ of attachment, and cut off all subsequent liens on said land, unless subsequent lien holders redeem said land from the execution sale to Lieuallen and Lestoe. Said mortgage bears date of February 14, 1893, and is subsequent to the lien of said attachment. The court erred in holding that said mortgage was a prior lien to said attachment. The judgment and decree are reversed, with directions to the court below to enter judgment in favor of appellants, whereby their lien obtained by said attachment judgment and execution sale is made a prior lien to that of the mortgage of the plaintiff, the First National Bank of Palouse City. Costs awarded to appellants.

MORGAN, C. J., and HUSTON, J., concur.

(4 Idaho, 426) SIMMONS v. CUNNINGHAM et al. (Supreme Court of Idaho. April 6, 1895.) JURY-DISCHARGE OF PANEL-OPEN VENIRENONSUIT.

1. Under provisions of section 3961, Rev. St., the court may, for good cause, discharge regularly drawn and summoned jurors, and order open venire for jurors to try causes at the term for which jurors were regularly drawn.

2. When plaintiff refuses to introduce evidence to prove his case, and defendants fail to produce evidence to prove their cross demand against plaintiff, it is error to instruct the jury to find for the defendant. Held, in that case action should have been dismissed, or a judgment of nonsuit entered.

(Syllabus by the Court.)

Appeal from district court, Shoshone county; J. Holleman, Judge.

Action in ejectment by Moses S. Simmons against Clarence Cunningham and others to recover certain placer mining ground. Defendants had judgment, and plaintiff appeals. Reversed.

Albert Hagan and C. W. Beale, for appellant. C. W. O'Neil, for respondents.

SULLIVAN, J. This is an action in ejectment to obtain possession of a mining claim. It appears from the record that at the commencement of the June term, 1894, of the district in and for Shoshone county there were present 36 jurors, who had been regularly drawn and summoned; that afterwards, on June 20th, 30 additional jurors were ordered by the court to be summoned on an open venire. On July 7th the court took a recess until July 16th, by reason of a resolution adopted by the bar of Shoshone county requesting the judge to adjourn the term to that date. This recess was taken, at the request of said bar, on account of a troubled

condition of affairs in said county, and it was doubtful whether the business of the court would be proceeded with on the day to which the court adjourned; and the judge, not wishing to keep the panel then summoned, because of the great expense to the county, discharged the jurors. On July 16th the court convened, and the conditions had become such that it was deemed advisable for the court to proceed with the business; and, it appearing to the court that a jury was needed to properly dispose of the business then before the court, an open venire was ordered, and 40 jurors summoned, and the court proceeded to dispatch the business of the term. The case at bar came regularly on for trial on August 2, 1894; and, a jury being about to be called to try the issues, appellant's counsel interposed a challenge to the panel, which challenge is as follows: "Comes now the plaintiff, and challenges the panel of the jury herein in attendance on said court, and the whole thereof, upon the following grounds, to wit: (1) That at the commencement of the present term of court, in June, 1894, to wit, June 13, 1894, a jury was regularly drawn from the box as provided by law; and said jury was in attendance upon this court until on or about the 7th day of July, 1894, when said panel, so drawn and in attendance, was discharged by the court, and the whole thereof discharged; and thereafter, on the 6th day of July, 1894, an open venire was issued and placed in the hands of the sheriff to summon a jury from the body of the county, and not from the names drawn from the jury box, and that such order and such panel was unauthorized and illegal. (2) That the court had no authority to discharge a drawn jury in toto in the middle of or during the term, and substitute therefor a panel summoned by the sheriff on an open venire. (3) That the plaintiff is entitled as much as any other litigant to have his case tried by the jury regularly drawn, and in attendance upon the court, and should not be forced to accept a panel not drawn as provided by law. (4) That in summoning and procuring the present panel the court proceeded without authority of law, and did not conform to title 3 of the Code of Civil Procedure, nor did the court conform to sections 3960-3962 of the Revised Statutes of Idaho. (5) Said panel was not drawn and summoned as provided by section 3961. Wherefore plaintiff moves that this challenge be sustained; that said panel be discharged; and that he be not compelled to select therefrom jurors to try his cause." The challenge was denied by the court; whereupon the plaintiff announced that he would stand on his challenge, and refused to go to trial; whereupon the jury was impaneled and sworn to try the cause, to which action plaintiff duly excepted, and refused to offer any testimony. The defendants offered no testimony, but asked the court to instruct the jury to find for the defendants, which instruction was given; whereupon the jury re

tired, and afterwards returned a verdict in favor of defendants, and judgment was entered in their favor, decreeing that the defendants were owners of and entitled to the possession of the placer mining ground in dispute. This appeal is from the judgment.

The first error assigned is that the court erred in overruling the challenge to the panel. Under this assignment of error, the appellant contends that, as a jury regularly drawn and summoned had been discharged, the court was not authorized by law to order an open venire for a jury; that section 3961, Rev. St., is the only one that permits the court to order on open venire, and the provisions of that section permits such order only "whenever jurors are not drawn and summoned to attend." Said section is as follows:

"Sec. 3961. Whenever jurors are not drawn and summoned to attend any court of record, or a sufficient number of jurors fail to appear, such court may, in its discretion order a sufficient number to be drawn and summoned to attend such court; or it may, by an order entered on its minutes, direct the sheriff of the county to summon so many good and lawful men of his county to serve as jurors as the case may require. And in either case such jurors must be summoned in the manner provided by the preceding section."

We think, under a fair construction of said section, if jurors are drawn and summoned and appear, and are thereafter discharged by the court for good cause, and it thereafter appears that a jury is necessary in the trial of any case, the court may order an open venire. We do not hold that a court may captiously or through caprice discharge the regularly drawn and summoned jurors, and issue an open venire for others. But when, as in this case, it was shown that, be cause of the excited condition of the people, the turmoil and strife occasioned by strikes, riots, and murders in the county in which court is being held, the court discharges the regular panel, and takes a recess, upon the reconvening of the court, if the business requires it the court may issue an open venire, and thus secure a jury. No claim is made by appellant that the court acted in bad faith in discharging the regularly drawn jurors, or in ordering the open venire, or that the sheriff acted corruptly in summoning the jurors. In Bennett v. Iron Co. (Utah) 34 Pac. 61, the court says: "There is abundant authority for holding that, when there is no intimation or charge of bad faith, the court has the power, whenever the necessity arises, and there is no regular jury in attendance, to impanel a jury to try a case which has been properly set, and is ready for trial to a jury." Under the circumstances of the case at bar, we do not think the court erred in denying the challenge.

The second error assigned is: "The court erred in submitting the case to the jury when plaintiff rested upon his challenge, but should have simply dismissed the plaintiff's case,

under subdivision 5 of section 4354 of the Code of Civil Procedure." It appears from the record that plaintiff elected to stand on his challenge, and refused to go to trial before the jury. Thereupon a jury was sworn to try the case. The defendants offered no testimony, but asked the court to instruct the jury to find for defendants, which the court did, and a verdict was found for the defendants, reciting that they were the owners of and entitled to the possession of the mining claim described in the complaint; whereupon judgment was entered in favor of defendants in accordance with said verdict, to all of which plaintiff duly excepted. The defendants offered no evidence whatever to prove their cross demand against the plaintiff, and the court erred in instructing the jury to find for them. Under the provisions of section 4354, subd. 4, the court should have ordered a dismissal of the case or juugment of nonsuit when the plaintiff refused to produce his proof and the defendants failed to produce any testimony in support of their cross demand against plaintiff. The defendants were not entitled to the relief asked without proof of their demand.

The judgment is reversed, and cause remanded for trial. If the parties refuse to proceed with the trial, the court below is directed to dismiss the action. Each party shall pay their own costs on this appeal.

MORGAN, C. J., and HUSTON, J., con

cur.

(4 Idaho, 391)

RANKIN v. JAUMAN. (Supreme Court of Idaho. March 7, 1895.) COMPENSATION OF COUNTY COMMISSIONERS.

1. Under section 5 of an act entitled "Concerning Fees and Compensation of County Officers," approved March 13, 1891, county commissioners are only entitled to a per diem and mileage therein allowed when acting as a board actually in session and transacting county busi

ness.

2. Boards of county commissioners are entireties, and can only act collectively and as empowered by law.

3. If a member of the board performs services for the county, whether by order of the board or on his own motion, he does so as an individual, and his claim for compensation must be presented in the same manner and take the same course as the claim of any other person. (Syllabus by the Court.)

Appeal from district court, Ada county; Edward Nugent, Judge.

Information by W. A. Rankin against William Jauman, a member of the board of county commissioners of Ada county, for corruption in office. From a judgment of nonsuit, plaintiff appeals. Reversed.

Hawley & Puckett, for appellant. Geo. Ainslie and W. E. Borah, for respondent.

HUSTON, J. This action was brought under section 7459, Rev. St. Idaho, which is as follows:

"Sec. 7459. When an information in writing verified by the oath of any person, is presented to a district court, alleging that any officer within the jurisdiction of the court has been guilty of charging and collecting illegal fees for services rendered or to be rendered in his office, or has refused or neglected to perform the official duties pertaining to his office, the court must cite the party charged to appear before the court at a time not more than ten nor less than five days from the time the information was presented, and on that day or some other subsequent day, not more than twenty days from that on which the information was presented, must proceed to hear, in a summary manner, the information and evidence offered in support of the same, and the answer and evidence offered by the party informed against; and if on such hearing it appears that the charge is sustained, the court must enter a decree that the party informed against be deprived of his office, and must enter a judgment for five hundred dollars in favor of the informer and such costs as are allowed in civil cases."

Upon a demurrer to the information, the district court held that the statute was unconstitutional. On appeal to this court from said decision of the district court, the judgment of the district court was reversed, and the cause remanded for a trial. 36 Pac. 502. Upon a trial before the court without a jury, judgment of nonsuit was entered upon motion of defendant, and from that judgment this appeal is taken.

The case is before us on a bill of exceptions, from which, and the evidence therein contained, the following facts appear: At the regular biennial election of 1892 the defendant was elected a member of the board of county commissioners for Ada county from district No. 1. He qualified as such officer on the 2d day of January, 1893. At that time the following laws were in force, relative to the duties and compensation of county commissioners: The compensation of the members of the board of county commissioners, as fixed by section 5 of an act of the first session of the legislature of the state of Idaho, was as follows: "County commissioners of each county shall receive the sum of six dollars for each day actually engaged in transacting county business, and twenty cents per mile for each mile necessarily traveled in transacting county business." Laws 1891, p. 179. Now, this section of the statute would seem to be, and perhaps is, somewhat loosely drawn, and, unless construed in the light of recognized legal principles, would give a degree of latitude in application which would, in the intellectual analysis of a mind bent solely upon personal ends, be little conducive to the interests generally supposed to be a controlling consideration in all legislation of a general character, to wit, the public welfare. But we are compelled to conclude that in the enactment of

this statute the legislature did not intend to enact a law wholly in the interest of those who might, for the time being, become the incumbents of the office, wholly and entirely ignoring the higher interests of the people. It is the duty of courts, in construing legis. lative enactments, to so construe them as to carry out the real intention of the legislature. All laws in relation to the same subject-matter must be construed in pari materia. As above stated, the respondent, having been duly elected and having qualified as a member of the board of county commissioners for Ada county for district No. 1 of said county, made his first appearance on the 2d day of January, 1893, as a member of said board, and was duly elected chairman of said board. Section 1755, Rev. St., provides that the regular meetings of the boards of commissioners must be held on the second Mondays of January, April, July, and October of each year. As appears by the record of the board, they met in special session on the 2d day of January, 1893, were in session two days. The regular session opened on the 9th of January, and were in session nine days. A special session was held on the 7th February, and held for two days. A special session was held on April 1st for one day, making in the aggregate 14 days from the time respondent took office until the first day of the regular April session. On the 16th day of January, 1893, respondent filed the following bill, which was duly allowed by said board, the respondent acting as chairman of said board, to wit: "Ada County, State of Idaho, to William Jauman, Dr.

To 14 days as Co. Com., at $6.00.. $ 84 00 To 50 miles travel, at 40c.... 20.00 $104 00"

Said bill is attested as follows: "State of Idaho, County of Ada-ss.: William Jauman, being duly sworn, says that the above account is correct; that * * as stated. [Signed] W. Jauman. Subscribed and sworn to," etc. And on the 10th day of April, 1893, the respondent presented the following bill, which was duly allowed by said board, respondent acting as chairman, to wit:

"Ada County, State of Idaho, to William Jauman, Dr.

To 82 days' services as Co. Com., at $6.00

To 380 miles travel, at 40c.

-Duly subscribed and sworn to.

$492 00 152 00

$644 00"

From the 2d day of January, 1893, to the 10th day of April, 1893, is, inclusive of Sundays and holidays, 98 days. Deducting therefrom the occurring holidays, to wit, 14 Sundays, and the 22d February, a holiday by our statutes, we have 82 working days; and the record of the board shows that during that period the board was in session only 14 days. The respondent was elected a commissioner from the first district of Ada coun

ty, and, by the provisions of law, must have been a resident of the district for which he was elected. Now, giving him the very limits of his district from which to charge mileage, he could not be more than one mile from the place of holding the session of the board of county commissioners for Ada county: and yet we find in the bills presented by the respondent, above referred to, a charge of 430 miles travel for the session of the board held for 14 days. Certainly, this shows an exhibition of virile activity, which, while doubtless a subject of admiring wonder when displayed by a "sprinter," is devoid of much of its attractiveness when viewed or considered from the standpoint of a poor and overburdened taxpayer. But this marvelous exhibition of patriotic pedestrianism is given a deeper hue by the argument of counsel for the respondent. It is contended in explanation of this charge that the bills were made out by the clerk of the board at the request of respondent, and the said clerk states in a somewhat perfunctory manner that, "for the convenience of the commissioner," he divided the number of miles traveled, and doubled the rate allowed by the statute. If this contention is accepted, the number of miles actually traveled by respondent, in attending that one session of the board, was 860 miles, and he resided less than one mile from the courthouse. There were good sprinters in the Olympic races, but their powers of locomotion fade into insignificance by the side of this wonderful exhibition. It will hardly be seriously contended, we apprehend, that mileage is chargeable for every day the board is in session; but, even if this were so, the respondent must have traveled a little over 61 miles each day the board was in session. "O wonderful, wonderful, and most wonderful, wonderful; and yet again wonderful; and, after that, out of all whooping."

But it is claimed by counsel for the respondent that, if the services were actually rendered, a mere irregularity in the account will not be construed into a corrupt extortion. The board of county commissioners are an entirety, they can only act collectively, and as empowered by law. They are only engaged in "transacting county business," as that term is used in section 5 of the act of 1891, when acting as a board; and it is only while so acting that they can legally charge either per diem or mileage. It needs no authority to support this proposition. Should the board see fit to employ one of its members to perform certain services for the county, permissible by law to be performed by such officer, such member would act, not as a member of the board of county commissioners, but as an individual, and must present his claim for such services, and is subject to the same rules as any other individual presenting a claim against the county.

Section 1773, Rev. St., is as follows: "Sec. 1773. The board of commissioners must not hear or consider any claim in favor

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