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stitutional provisions which are restrictions say (quoting from the syllabus): "The test for upon the federal government are in force the issuance of a writ of mandamus, to comtherein.

pel a board, tribunal, or officer to do an act I am of the opinion that the decision in which he has refused to do, is not whether the case of Hess v. White is erroneous; that the refusal involves the exercise of discrethe act of the legislature of 1892 is in vio- tion or an exercise of judicial power, but lation of the seventh amendment to the con- whether it was a determination which the stitution, and therefore void. For this rea- law intended to be final; but, if not, whether son I think the case last mentioned should there is a plain, speedy, and adequate rembe overruled, and that the case at bar should edy in the ordinary course" Without disbe reversed, and remanded for a new trial. cussing the question of the correctness of

this rule, we are of the opinion that the case

of the petitioner does not come within it. It (4 Idaho, 384)

is claimed by the petitioner that the reason PAYNE V. STATE BOARD OF WAGON- assigned by the board for the disallowance ROAD COM'RS.

of the claim was that there was no money (Supreme Court of Idaho. March 4, 1895.) remaining in the fund provided by the statMANDAMUS TO STATE WAGON-ROAD COMMISSION

ute out of which the claim could be paid.

This being so, the allowance of the claim by Mandamus will not lie to direct the the board would only be a matter of eviboard of state wagon-road commissioners to al

dence. The claim would stand as a claim low a claim already rejected by the board.

against the state, and as such must pursue (Syllabus by the Court.)

the course prescribed by law for all claims Application by William H. Payne for a writ

against the state, to wit, be first submitted of mandamus to the state board of wagon

to the state board of examiners, and, if disroad commissioners. Denied.

allowed by them, it can then be presented Hawley & Puckett, for plaintiff. Geo. M. to this court in the manner prescribed by Parsons, Atty. Gen., for defendant.

section 10, art. 5, Const. For this court, at

this time, to command the board of wagonHUSTON, J. This is an application for a road com issioners to audit and allow a writ of mandate to the state board of wagon- claim against a fund which the petitioner road commissioners, commanding the said himself concedes is exhausted, would, it board to audit and allow the bill of the peti- seems to us, be an act of supererogation. tioner, presented to said board, and by them | The constitution and the laws of the state disallowed. The law establishing the board provide an adequate remedy for the petitionof wagon-road commissioners provides (sec- er, and for this court to assume the functions tion 13, p. 28, Laws 1893) "that, before the of a board of audit, when its action, at the state auditor shall draw his warrant, all most, would only be recommendatory, is a claims against said commission for labor per- | proposition we are not prepared to entertain. formed, or materials furnished, shall be au- There is nothing in any of the cases cited in dited and allowed by said commission and support of the decision in 76 Cal. and 18 Pac. shall be certified up to the state auditor by which militates against this view. The althe president and secretary of said commis- ternative writ is quashed, costs to respondsion: provided, further, that before the presi- ent. dent and secretary of said commission shall certify any claim to the auditor said claim MORGAN, C. J., and SULLIVAN, J., conor claims must be authorized by a vote of a cur. majority of said commission, at a regular meeting of said commission." The claim in question was disallowed by the board of

(4 Idaho, 377) state wagon-road commissioners, and this

GRIFFITHS v. MONTANDON. court is now asked to issue its mandate re (Supreme Court of Idaho. Feb. 27, 1895.) quiring said board to reverse their action and IMPEACHMENT OF VERDICT-AFFIDAVIT OF JU'RORS. allow said claim. In support of this conten- 1. Affidavits of jurors, under the provision tion by the petitioner, we are cited to the of subdivision 2, § 4439, Rev. St., cannot be recase of Wood v. Strother, 76 Cal. 515, 18 Pac.

ceived for the purpose of impeaching their ver

dict, unless it is a verdict obtained by a resort 760, and the cases therein cited. This was to the determination of chance. an appeal from a judgment awarding a writ 2. Said subdivision 2, § 4439, is not punctuof mandamus to the auditor of San Fran

ated the same as the corresponding provision is

punctuated, in the Code of Civil Procedure of cisco to countersign a street-assessment war

California; but the change was made by the rant under the act of 1872 of the legislature printer, and not by the legislature or code comof that state, which act provided that the

missioners. warrant shall be countersigned by the au

(Syllabus by the Court.) ditor, “who before countersigning it shall ex- Appeal from district court, Alturas county; amine the contract, the steps taken previous C. 0. Stockslager, Judge. thereto, and the record of assessments, and Action by John C. Griffiths to recover of must be satisfied that the proceedings have ! A. F. Montandon the value of certain Logan been legal and fair.” In this case the court county warrants claimed to have been

.

wrongfully taken from him and sold to de | vacated, and is as follows: "(2) Misconduct fendant. Judgment for plaintiff in the sum of the jury; and when any one or more of of $1,711.82 and costs of suit. Defendant the jurors have been induced to assent to appeals. Affirmed.

any general or special verdict, or to a find. A. F. Montandon, in pro. per. Kingsbury

ing on any question submitted to them by & Parsons, for respondent.

the court, by a resort to the determination

of chance. Such misconduct may be proved SULLIVAN, J. The plaintiff brought this by the affidavit of any one of the jurors." suit to recover the value of certain Logan That section is identical with section 957 of county warrants, which, it is alleged, were the Code of Civil Procedure of California, wrongfully taken from him by one Edwin and was copied from it. Prior to the adopCooper, and sold to the appellant. The de- tion of subdivision 2 of said section, as it fendant denied that the warrants were now stands, by the legislature of California, wrongfully taken from the plaintiff, and the supreme court of that state established averred, as a separate defense, that, if taken the rule that the affidavit of a juror mist without plaintiff's leave or consent, they not be received to defeat his own verdict. were taken because of such gross negligence People v. Baker, 1 Cal. 405. The same rule of plaintiff as to amount to consent, and was declared in Amsby v. Dickhouse, 4 Cale that, if plaintiff was damaged thereby, it 103; Castro v. Gill, 5 Cal. 42; People v. Wywas damage without injury. The cause was man, 15 Cal. 75. This was the established tried by the court with a jury, and verdict rule in California until 1862, when said and judgment given and entered against the subdivision 2 was so amended as to perdefendant. The defendant moved for a new mit the affidavit of jurors to be considered trial, which was denied, and this appeal is on application to set aside å verdict on the from the judgment and the order overrul- ground that it was obtained by "a resort to ing the motion for a new trial.

the determination of chance." In Turner v. It is contended by the appellant that, be- Water Co., 25 Cal. 397, referring to the cause of certain irregularity and misconduct change made by the statute, the court says: of the jury, a new trial should have been "But this rule of the common law has been granted. The alleged misconduct was shown changed in this state, to a certain extent, by by the affidavits of T. A. Starrh and A. statute. The second subdivision of the one Wolters, two of the jurymen who rendered hundred and ninety-third section of the practhe verdict complained of, and consisted in tice act provides that the misconduct of the the plaintiff's going to the Ore-Sampling Mill, jury shall be cause for new trial,”-and then in the town of Hailey, where it is alleged quotes the greater portion of said subdivithe theft of the said county warrants occur. sion 2, and holds that the affidavits of jurors red, and showing eight of the jurymen the

cannot be received for the purpose of imsafe in which said warrants were kept, and peaching their verdict, unless it is a verexplaining to them how said theft was com- dict obtained by "a resort to the determinamitted, and how it was discovered. The lan- tion of chance." The same construction is guage used by A. Wolters in his said affil- placed upon said statute by numerous Cali. davit is as follows: "Said John C. Griffiths fornia decisions. See Boyce v. Stage Co., 25 met affiant and his said cojurors at said of- Cal. 460; People v. Hughes, 29 Cal. 262; fice and safe, and then and there showed People v. Hunt, 59 Cal. 430; People v. Gray, him and them about, explained how the

61 Cal. 183. theft was done, how he discovered it, and It is urged that, as said subdivision 2 of for the purpose replaced the inner lock of section 4439 is not punctuated the same as the said safe, to better explain the same." the corresponding section of the Code of Counsel for respondent contend that said Civil Procedure of the state of California, a affidavits cannot be considered on this ap

different construction was intended. While peal, for the reason that they were not filed that is true, it is also true that in the origwith the clerk, and copies served on the ad- inal manuscript of the Revised Statutes of verse party, as required by subdivision 1, $ 1877, as prepared by the code commission 4441, Rev. St. This question was raised by and adopted by the legislature, said subdicounsel for the respondent on the settlement vision 2 is punctuated the same as the corof the statement or bill of exceptions. They responding subdivision 2 of the California asked to have said affidavit stricken from Code of Civil Procedure is punctuated; thus the statement, which motion the court de- showing that the change in punctuation, as nied. We shall consider the statement as the change in capitalization, was made by settled by the judge, and found in the rec- the printer, and not by the code commis. ord. Respondent contends that the affidavit sion or the legislature. We think the inof a juror cannot be received to impeach the tention of the legislature was to adopt the verdict, except when one or more of the rule that affidavits by jurors should not be jurors have been induced to assent to a received to impeach their verdict, except verdict by a resort to the determination of when a verdict has been obtained by "a re chance, and cites subdivision 2, 8 4439, Rev. sort to the determination of chance." It 6t., which subdivision provides that for cer- follows that the affidavits in this case can. tain causes a verdict may be set aside or not be received for the purpose of impeaching the verdict for the misconduct set forth orders of the district court denying appliin the affidavits.

cations for the discharge of certain writs The main point in issue in this case was of attachment sued out by the plaintiffs and the ownership of the warrants. The testi- levied upon property of defendant. The recmony on that issue was conflicting, and it ord contains the papers upon which the mois admitted by the record that the evidence tions were made, consisting of the affidavits justified the verdict of the jury. When for attachment and the undertakings in each there is a substantial conflict in the evi- case, he motions, and the order of the court dence, the verdict of the jury will not be dis- thereon. We will consider the questions turbed on a question of fact. O'Connor V. raised by the record in the order in which Langdon, 2 Idaho, 803, 26 Pac. 659; Cham- they were presented upon the hearing. berlain v. Woodin, 2 Idaho, 609, 23 Pac. 177. It is contended by appellant that the af

It is further contended by appellant that fidavit for attachment in the case of Simcertain instructions given did not correctly mons Hardware Co. v. Alturas Commercial state the law on the question of negligence. Co. is void for the reason that it affirmativeWe have examined the question of neglio ly appears therefrom that at the time the gence, as raised by the pleadings and shown same was made the plaintiff had received by the proof, and are of the opinion that the from the defendant, and still held, as colrecord contains no evidence of negligence on lateral security for the debt sued for, a the part of the respondent. Therefore, no pledge of personal property. Said affidavit, instructions were necessary upon that issue. after the usual statements required by the The court, no doubt, gave the instructions statute, contains the following statement: referred to, thinking that on the issue of "That after said contract was made, and negligence the jury might consider there said claim became payable to the plaintiff, was some evidence; but, as there was none, the defendant sent to the plaintiff, as colthe giving of the instructions, if erroneous, lateral security for said claim, a certain did not prejudice the appellant. The judg. account purporting to be an account against ment of the court below is affirmed, with a firm known as 'Holland & Short,' and that costs of this appeal in favor of respondent. defendant agreed to forward in place of said

claim a note of said firm of Holland & Short. MORGAN, C. J., and HUSTON, J., concur. That defendant has not forwarded to the

plaintiff a note of said firm of Holland &

Short, but instead thereof forwarded what (4 Idaho, 334)

purported to be a note signed by one w. SIMMONS HARDWARE CO. V. ALTURAS A. Holland and J. B. Short as individuals, COMMERCIAL CO.

and that said note was taken by the de. STANDARD OIL CO. V. SAME.

fendant from the said individuals Holland (Supreme Court of Idaho. Feb. 14, 1895.) and Short in pursuance of an agreement ATTACHMENT-AFFIDAVIT-SUFFICIENCY OF Bond.

made between the said defendant and the 1. Affidavit in attachment held sufficient.

said firm of Holland & Short, and that said 2. Where the affidavit in attachment pur- claim of Holland & Short should be merged ports to have been duly sworn to, before a prop- in said note (and said claim was and is er officer, and the name of the affiant appears in the commencement of the affidavit as "A. B.,

merged in said note). That, in accordance being duly sworn,” etc., the affidavit will be held with said agreement between Holland & sufficient, although the signature of the affiant Short and the defendant, said Holland and does not appear thereon. 3. The purpose of the undertaking in at

Short, individuals, made and executed said tachment provided for in the statute is to in

note, and delivered the same to the defenddemnify the defendant, and, where it is con- ant, as plaintiff is informed and believes, clusive that this end has been served, mere cleri- and the said defendant sent the same to this cal errors, or the omission or insertion of unimportant words, will not vitiate the instrument.

plaintiff in order that this plaintiff might (Syllabus by the Court.)

take the same in place of said claim of said

firm of Holland & Sho and hold the same Appeal from district court, Alturas county;

as collateral security, but this plaintiff is C. 0. Stockslager, Judge.

unwilling to take and accept the said note Action by the Simmons Hardware Com

as collateral security, and has returned the pany against the Alturas Commercial Com

same to the defendant. That the plaintiff pany, and by the Standard Oil Company

has now no security whatever for its said against the same. Judgment for plaintiffs, claim, and that the pretended giving of seand defendant appeals. Affirmed.

curity by the defendant to the plaintiff was F. E. Ensign, for appellant. S. B. Kings- / unfairly, and, as affiant believes, fraudulentbury and Johnson & Johnson, for respondly, made and attempted for the purpose of ents.

defrauding the plaintiff of any chance to se

cure his claim by attachment, and of deHUSTON, J. These cases, resting, as they | frauding plaintiff out of uis said claim, and do, upon similar facts, and involving the ap- that there was never in fact any security, plication of the same principles of law, That this attachment is not sought, and were heard together, and will be so con- the action is not prosecuted, to hinder, desidered by the court. The appeal is from i lay, or defraud any creditors of the defendant.” It is contended by appellant that as has not in terms made the signing of the affthe affidavit admits the receipt by the plain-davit a necessary incident, the absence of tiff of the account or claim against Holland the signature of the affiant has been held not & Short, and does not show that the same to invalidate the affidavit. Some of the chanwas ever returned to the defendant, we must cery courts of this country, following a rule conclude that said claim or account was so laid down by the chancery courts of England, kept and retained by plaintiff as security have insisted upon the presence of the signafor the debt for which attachment was ture of the affiant to give validity to the afsought. Accepting the statements in the af- fidavit, but a contrary rule has obtained in fidavit as true,-which, for the purposes of the courts of law from a very early period. this case, we must do,-no issue having been In Haff v. Spicer (1805) 3 Caines, 190, it was raised by the filing of counter affidavits quite peremptorily held that the absence of or otherwise upon this question, we must a signature to the affidavit did not invalidate base our conclusions entirely upon the record | it. The court says (and this is the whole text before us. Does it support this contention? of the decision): "It begins with his name, The claim or account against Holland & and that is sufficient;" and this ruling is folShort was accepted by plaintiff conditionallowed and affirmed by the same court in ly, to wit, that the same should be substitut- | Jackson v. Virgil, 3 Johns. 540, and this rule ed by the note of said firm of Holland & seems to have obtained generally, when the Short. The defendant procured and sent to wording of the statute has not required a deplaintiff the individual note of Holland and parture therefrom. Under the weight of auShort, which plaintiff declined to accept, and thority, and the imperative requirements of returned, as not being in conformity with section 4 of our Revised Statutes, we feel conits agreement with defendant. Conceding strained to hold that the signing of the affidathat the account or claim against Holland & vit was not in this case an indispensable preShort remained in the possession of plain-| requisite to the issuance of the attachment; tiffs, of what avail was it to them as se- although we believe, with many of the aucurity? The plaintiff could not sustain an thorities who thus hold, that it is the better action upon the account against Holland & practice to have the signature of the affiant Short, for it had at the demand of its cred

appear upon the affidavit, as it doubtless itor (the defendant) liquidated the claim by would do but for mistake or inadvertence on giving a note therefor; so the same was val- the part of the attorney in drawing the paueless in the hands of plaintiff or any. pers. one else, and this impairment of value Objection is made by appellant to the unwas in no way attributable to the acts of dertakings filed in both of the cases under the plaintiff. It is not necessary to at- consideration. In the case of Simmons Hardtribute any fraud or wrongful motive to de- ware Co. v. Alturas Commercial Co. the origfendant in this transaction. It is sufficient inal undertaking closes with these words: to say that it appears that, from the rec- “The plaintiff will pay all costs that may be ord before us, the agreement to give the awarded to the defendant, and all damages plaintiff security was not carried out ac- that he may sustain by reason of attachment cording to its terms, and that the security under execution, in the sum of four thousand proffered was not accepted, but was returned dollars.” It is palpable that the words "unto the defendant. This case is not in pari- der execution" were inserted by inadvertence ty with Murphy v. Montandon, 2 Idaho, 1018, or mistake. They have neither pertinence, 29 Pac. 851. In that case the plaintiff had place, or meaning as they appear, nor would received and accepted a draft or order, and they, in our opinion, at all affect the validity had not only retained it, but had received of the undertaking. We think they come partial payment thereof. The consideration clearly within the rule laid down by Judge of this point does not involve the question of Amasa J. Parker in Teall v. Van Wyck, 10 amendment of the affidavit. We think the Barb. 379, which is as follows: “When the affidavit, as set forth in the record, was suffi- words of a bond are not sufficiently explicit, cient.

or, if literally construed, the words would be Appellant objects to the affidavit for at- nonsense, it must be construed with refertachment in the case of Standard Oil Co. v. ence to the intention of the parties. In doAlturas Commercial Co. upon the ground that ing this it is allowable to depart from the letthe same was not signed by the affiant, al- ter of the condition, to reject insensible though duly verified. The authorities upon words, and to supply obvious omission." The this question are somewhat conflicting. The intention of the party here was to procure a trend of decision seems to be directed, if not remedy provided by the statute, by a complicontrolled, by the letter of the statutes. If ance with the terms and conditions of the the statute requires, as in some cases it does, statute. The object and purpose of the statthat the affidavit shall be “signed and sworn ute is that one seeking the remedy by attachto," or "subscribed and sworn to," the letter ment shall, before being allowed to avail of the law has been held to control, and the himself of such remedy, give the indemnity signature of the affiant held to be an indis- to the defendant required by the statute. pensable requisite to the validity of the af- We think the indemnity required by the statfidavit. On the other band, when the statute ute was complete under the first undertak:

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ing, but, even if it were not, the filing of the by said board. It appears from the record second undertaking by leave of court placed that said board adjourning from day to day the matter beyond cavil.

for many days, awaiting a decision of the The objection of appellant that the filing of supreme court in a case there pending in the second undertaking was unauthorized is which Bannock county was interested, claimnot tenable. We have found no authorities ing that said board could not make the anin support of this contention, while, aside nual tax levy until said decision was made. from the plain and unequivocal provision of and for that reason adjourned from day to our own statutes, all the authorities we have day, as above stated. been able to consult upon the question are

Hawley & Puckett and D. C. Lockwood, against the contention of appellant. Our con

for plaintiffs in error. W. C. Love and P. clusions cover the objections raised by appel

E. Keeler, for defendants in error. lant to the undertaking in the case of Standard Oil Co. v. Alturas Commercial Co. The SULLIVAN, J. (after stating the facts). orders of the district court in both cases are The plaintiffs in error contend, first, that the affirmed, with costs.

court erred in submitting the case to a jury.

Section 1776, Rev. St., provides for appeals MORGAN, C. J., and SULLIVAN, J., con- from the action of the board of county comcur.

inissioners to the district court, and section 1779 provides that the case on appeal must

be heard anew. Section 4369, Rev. St. 1887, (4 Idaho, 381)

provides that in certain cases issues of fact FISHER et al. v. BOARD OF COM’RS OF

must be tried by a jury, unless a jury trial BANNOCK COUNTY et al.

is waived. The case at bar comes within (Supreme Court of Idaho. Feb. 27, 1895.) the provisions of said section, and the court COMPENSATION OF COUNTY COMMISSIONERS AP- did not err in submitting the case to a jury. PEAL-TRIAL BY JURY-EVIDENCE TO

Section 4396 provides that in a certain class PROVE ISSUE.

of cases the jury may, in their discretion, ren1. On an appeal from an order of the county commissioners, the cause must be tried anew

der a general or special verdict. The case in the district court, and the court may submit

under consideration comes within that class. the issues to a jury.

It is further contended that the court erred 2. The court did not err in receiving evidence as to whether C. was actually and neces

in receiving any evidence on the trial of the sarily engaged in the transaction of county busi

case. There is nothing iņ this contention. ness for the days charged, that being the issue The case, after appeal to the district court, in the case.

must be tried anew; and the issue being 3. On the trial in the district court, all evidence pertinent to the issues should be received.

whether Caldwell, the defendant in error, 4. A county commissioner, under an act of had been actually and necessarily employed the legislature approved February 23, 1893 (2 in the discharge of his duties as a county Sess. Laws, 39). is permitted to charge and re

commissioner for the 19 days mentioned, and ceive $6 per day for each day actually and necessarily engaged in the transaction of county

for which the board had allowed a per diem business, the total of which compensation shall compensation of $6, any pertinent evidence not exceed $500 per annum.

upon that issue was admissible. The act of (Syllabus by the Court.)

February 23, 1893 (2 Sess. Laws, p. 40), alError to district court, Bannock county; D. lows each member of the board of county W. Standrod, Judge.

commissioners $6 per day for each day acA. W. Fisher and others appealed from an tually and necessarily engaged in the transorder of the county commissioners of Ban- action of county business, and, unless the nock county from an allowance of a claim commissioners are actually and necessarily to J. 0. Caldwell. The judgment of the com- so engaged, they are not entitled to their per missioners was reversed, and the board of diem compensation. county commissioners and J. 0. Caldwell It is further contended that the notice of bring error. Affirmed.

appeal was fatally defective, in that it does This cause was taken to the district court of not specify wherein or how the allowance Bannock county by appeal from an order of of the said claim for services was illegal or the board of county commissioners of said prejudicial to the public interests. The nocounty allowing J. 0. Caldwell, a member tice states that the appeal is taken from of said board, $150.40, mileage and per diem, the order of the board allowing John 0. compensation for services as a member of Caldwell's claim for services as county comsaid board, and was brought to this court by missioner alleged to have been rendered bewrit of error. In the trial of the cause in the tween the 9th day of April, 1894, and the district court two questions were submitted 8th day of June, 1894, in the sum of $150.40, to the jury, and a special verdict found by on the ground that said allowance was illethem, on which verdict judgment was en- gal, and prejudicial to the public interests. tered reducing the claim from $150,40 to The defendants in error appeared in the $90.40. The record shows that the reduction district court, and moved to have the plain. was made by refusing to allow the claim of tiffs in error specify specific grounds of apCaldwell, defendant in error, for 10 days' peal. Thereupon the plaintiffs in error made services, at $6 per day, that had been allowed specific the grounds of the appeal by filing

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