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HUSTON, J. This, is an application for a writ of mandate to the state board of wagonroad commissioners, commanding the said board to audit and allow the bill of the petitioner, presented to said board, and by them disallowed. The law establishing the board of wagon-road commissioners provides (section 13, p. 28, Laws 1893) "that, before the state auditor shall draw his warrant, all claims against said commission for labor performed, or materials furnished, shall be audited and allowed by said commission and shall be certified up to the state auditor by the president and secretary of said commission: provided, further, that before the president and secretary of said commission shall certify any claim to the auditor said claim or claims must be authorized by a vote of a majority of said commission, at a regular meeting of said commission." The claim in question was disallowed by the board of state wagon-road commissioners, and this court is now asked to issue its mandate requiring said board to reverse their action and allow said claim. In support of this contention by the petitioner, we are cited to the case of Wood v. Strother, 76 Cal. 545, 18 Pac. 766, and the cases therein cited. This was an appeal from a judgment awarding a writ of mandamus to the auditor of San Francisco to countersign a street-assessment warrant under the act of 1872 of the legislature of that state, which act provided that the warrant shall be countersigned by the auditor, "who before countersigning it shall examine the contract, the steps taken previous thereto, and the record of assessments, and must be satisfied that the proceedings have been legal and fair." In this case the court

say (quoting from the syllabus): "The test for the issuance of a writ of mandamus, to compel a board, tribunal, or officer to do an act which he has refused to do, is not whether the refusal involves the exercise of discretion or an exercise of judicial power, but whether it was a determination which the law intended to be final; but, if not, whether there is a plain, speedy, and adequate remedy in the ordinary course." Without discussing 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 is claimed by the petitioner that the reason assigned by the board for the disallowance of the claim was that there was no money remaining in the fund provided by the statute out of which the claim could be paid. This being so, the allowance of the claim by the board would only be a matter of evidence. The claim would stand as a claim against the state, and as such must pursue the course prescribed by law for all claims against the state, to wit, be first submitted to the state board of examiners, and, if disallowed by them, it can then be presented to this court in the manner prescribed by section 10, art. 5, Const. For this court, at this time, to command the board of wagonroad commissioners to audit and allow a claim against a fund which the petitioner himself concedes is exhausted, would, it seems to us, be an act of supererogation. The constitution and the laws of the state provide an adequate remedy for the petitioner, and for this court to assume the functions of a board of audit, when its action, at the most, would only be recommendatory, is a proposition we are not prepared to entertain. There is nothing in any of the cases cited in support of the decision in 76 Cal. and 18 Pac. which militates against this view. The alternative writ is quashed, costs to respondent.

MORGAN, C. J., and SULLIVAN, J., con

cur.

(4 Idaho, 377)

GRIFFITHS v. MONTANDON. (Supreme Court of Idaho. Feb. 27, 1895.) IMPEACHMENT OF VERDICT-AFFIDAVIT OF JURORS.

1. Affidavits of jurors, under the provision of subdivision 2, § 4439, Rev. St., cannot be received for the purpose of impeaching their verdict, unless it is a verdict obtained by a resort to the determination of chance.

2. Said subdivision 2, § 4439, is not punctuated the same as the corresponding provision is punctuated, in the Code of Civil Procedure of California; but the change was made by the printer, and not by the legislature or code commissioners.

(Syllabus by the Court.)

Appeal from district court, Alturas county; C. O. Stockslager, Judge.

Action by John C. Griffiths to recover of A. F. Montandon the value of certain Logan county warrants claimed to have been

wrongfully taken from him and sold to defendant. Judgment for plaintiff in the sum of $1,711.82 and costs of suit. Defendant appeals. Affirmed.

A. F. Montandon, in pro. per. Kingsbury & Parsons, for respondent.

SULLIVAN, J. The plaintiff brought this suit to recover the value of certain Logan county warrants, which, it is alleged, were wrongfully taken from him by one Edwin Cooper, and sold to the appellant. The defendant denied that the warrants were wrongfully taken from the plaintiff, and averred, as a separate defense, that, if taken without plaintiff's leave or consent, they were taken because of such gross negligence of plaintiff as to amount to consent, and that, if plaintiff was damaged thereby, it was damage without injury. The cause was tried by the court with a jury, and verdict and judgment given and entered against the defendant. The defendant moved for a new trial, which was denied, and this appeal is from the judgment and the order overruling the motion for a new trial.

It is contended by the appellant that, because of certain irregularity and misconduct of the jury, a new trial should have been granted. The alleged misconduct was shown by the affidavits of T. A. Starrh and A. Wolters, two of the jurymen who rendered the verdict complained of, and consisted in the plaintiff's going to the Ore-Sampling Mill, in the town of Hailey, where it is alleged the theft of the said county warrants occur red, and showing eight of the jurymen the safe in which said warrants were kept, and explaining to them how said theft was committed, and how it was discovered. The language used by A. Wolters in his said affidavit is as follows: "Said John C. Griffiths met affiant and his said cojurors at said of. fice and safe, and then and there showed him and them about, explained how the theft was done, how he discovered it, and for the purpose replaced the inner lock of the said safe, to better explain the same." Counsel for respondent contend that said affidavits cannot be considered on this appeal, for the reason that they were not filed with the clerk, and copies served on the adverse party, as required by subdivision 1, § 4441, Rev. St. This question was raised by counsel for the respondent on the settlement of the statement or bill of exceptions. They asked to have said affidavit stricken from the statement, which motion the court denied. We shall consider the statement as settled by the judge, and found in the record. Respondent contends that the affidavit of a juror cannot be received to impeach the verdict, except when one or more of the jurors have been induced to assent to a verdict by a resort to the determination of chance, and cites subdivision 2, § 4439, Rev. St., which subdivision provides that for certain causes a verdict may be set aside or

vacated, and is as follows: "(2) Misconduct of the jury; and when any one or more of the jurors have been induced to assent to any general or special verdict, or to a finding on any question submitted to them by the court, by a resort to the determination of chance. Such misconduct may be proved by the affidavit of any one of the jurors." That section is identical with section 957 of the Code of Civil Procedure of California, and was copied from it. Prior to the adoption of subdivision 2 of said section, as it now stands, by the legislature of California, the supreme court of that state established the rule that the affidavit of a juror mist not be received to defeat his own verdict. People v. Baker, 1 Cal. 405. The same rule was declared in Amsby v. Dickhouse, 4 Cal 103; Castro v. Gill, 5 Cal. 42; People v. Wyman, 15 Cal. 75. This was the established rule in California until 1862, when said subdivision 2 was so amended as to permit the affidavit of jurors to be considered on application to set aside à verdict on the ground that it was obtained by "a resort to the determination of chance." In Turner v. Water Co., 25 Cal. 397, referring to the change made by the statute, the court says: "But this rule of the common law has been changed in this state, to a certain extent, by statute. The second subdivision of the one hundred and ninety-third section of the practice act provides that the misconduct of the jury shall be cause for new trial,"-and then quotes the greater portion of said subdivision 2, and holds that the affidavits of jurors cannot be received for the purpose of impeaching their verdict, unless it is a verdict obtained by "a resort to the determination of chance." The same construction is placed upon said statute by numerous California decisions. See Boyce v. Stage Co., 25 Cal. 460; People v. Hughes, 29 Cal. 262; People v. Hunt, 59 Cal. 430; People v. Gray, 61 Cal. 183.

It is urged that, as said subdivision 2 of section 4439 is not punctuated the same as the corresponding section of the Code of Civil Procedure of the state of California, a different construction was intended. While that is true, it is also true that in the original manuscript of the Revised Statutes of 1877, as prepared by the code commission and adopted by the legislature, said subdivision 2 is punctuated the same as the corresponding subdivision 2 of the California Code of Civil Procedure is punctuated; thus showing that the change in punctuation, as the change in capitalization, was made by the printer, and not by the code commis sion or the legislature. We think the intention of the legislature was to adopt the rule that affidavits by jurors should not be received to impeach their verdict, except when a verdict has been obtained by "a resort to the determination of chance." It follows that the affidavits in this case cannot be received for the purpose of impeach

ing the verdict for the misconduct set forth in the affidavits.

The main point in issue in this case was the ownership of the warrants. The testimony on that issue was conflicting, and it is admitted by the record that the evidence justified the verdict of the jury. When there is a substantial conflict in the evidence, the verdict of the jury will not be disturbed on a question of fact. O'Connor v. Langdon, 2 Idaho, 803, 26 Pac. 659; Chamberlain v. Woodin, 2 Idaho, 609, 23 Pac. 177. It is further contended by appellant that certain instructions given did not correctly state the law on the question of negligence. We have examined the question of negligence, as raised by the pleadings and shown by the proof, and are of the opinion that the record contains no evidence of negligence on the part of the respondent. Therefore, no instructions were necessary upon that issue. The court, no doubt, gave the instructions referred to, thinking that on the issue of negligence the jury might consider there was some evidence; but, as there was none, the giving of the instructions, if erroneous, did not prejudice the appellant. The judg ment of the court below is affirmed, with costs of this appeal in favor of respondent.

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

(4 Idaho, 334)

SIMMONS HARDWARE CO. v. ALTURAS
COMMERCIAL CO.

orders of the district court denying applications for the discharge of certain writs of attachment sued out by the plaintiffs and levied upon property of defendant. The record contains the papers upon which the motions were made, consisting of the affidavits for attachment and the undertakings in each case, the motions, and the order of the court thereon. We will consider the questions raised by the record in the order in which they were presented upon the hearing.

It is contended by appellant that the affidavit for attachment in the case of Simmons Hardware Co. v. Alturas Commercial Co. is void for the reason that it affirmatively appears therefrom that at the time the same was made the plaintiff had received from the defendant, and still held, as collateral security for the debt sued for, a pledge of personal property. Said affidavit, after the usual statements required by the statute, contains the following statement: "That after said contract was made, and said claim became payable to the plaintiff, the defendant sent to the plaintiff, as collateral security for said claim, a certain account purporting to be an account against a firm known as 'Holland & Short,' and that defendant agreed to forward in place of said claim a note of said firm of Holland & Short. That defendant has not forwarded to the plaintiff a note of said firm of Holland & Short, but instead thereof forwarded what purported to be a note signed by one W. A. Holland and J. B. Short as individuals, and that said note was taken by the defendant from the said individuals Holland and Short in pursuance of an agreement made between the said defendant and the said firm of Holland & Short, and that said claim of Holland & Short should be merged in said note (and said claim was and is merged in said note). That, in accordance with said agreement between Holland & Short and the defendant, said Holland and Short, individuals, made and executed said note, and delivered the same to the defendant, as plaintiff is informed and believes, and the said defendant sent the same to this plaintiff in order that this plaintiff might take the same in place of said claim of said firm of Holland & Short, and hold the same as collateral security, but this plaintiff is unwilling to take and accept the said note as collateral security, and has returned the same to the defendant. That the plaintiff has now no security whatever for its said claim, and that the pretended giving of security by the defendant to the plaintiff was F. E. Ensign, for appellant. S. B. Kings- unfairly, and, as afliant believes, fraudulentbury and Johnson & Johnson, for respond-ly,

STANDARD OIL CO. v. SAME. (Supreme Court of Idaho. Feb. 14, 1895.) ATTACHMENT-AFFIDAVIT-SUFFICIENCY OF BOND. 1. Affidavit in attachment held sufficient. 2. Where the affidavit in attachment purports to have been duly sworn to, before a proper officer, and the name of the affiant appears in the commencement of the affidavit as "A. B., being duly sworn," etc., the affidavit will be held sufficient, although the signature of the affiant does not appear thereon.

3. The purpose of the undertaking in attachment provided for in the statute is to indemnify the defendant, and, where it is conclusive that this end has been served, mere clerical errors, or the omission or insertion of unimportant words, will not vitiate the instrument. (Syllabus by the Court.)

Appeal from district court, Alturas county; C. O. Stockslager, Judge.

Action by the Simmons Hardware Company against the Alturas Commercial Company, and by the Standard Oil Company against the same. Judgment for plaintiffs, and defendant appeals. Affirmed.

ents.

HUSTON, J. These cases, resting, as they do, upon similar facts, and involving the application of the same principles of law, were heard together, and will be so considered by the court. The appeal is from

made and attempted for the purpose of defrauding the plaintiff of any chance to secure his claim by attachment, and of defrauding plaintiff out of is said claim, and that there was never in fact any security. That this attachment is not sought, and the action is not prosecuted, to hinder, delay, or defraud any creditors of the defend

ant." It is contended by appellant that as the affidavit admits the receipt by the plaintiff of the account or claim against Holland & Short, and does not show that the same was ever returned to the defendant, we must conclude that said claim or account was so kept and retained by plaintiff as security for the debt for which attachment was sought. Accepting the statements in the affidavit as true,-which, for the purposes of this case, we must do,-no issue having been raised by the filing of counter affidavits or otherwise upon this question, we must base our conclusions entirely upon the record before us.

Does it support this contention? The claim or account against Holland & Short was accepted by plaintiff conditionally, to wit, that the same should be substituted by the note of said firm of Holland & Short. The defendant procured and sent to plaintiff the individual note of Holland and Short, which plaintiff declined to accept, and returned, as not being in conformity with its agreement with defendant. Conceding that the account or claim against Holland & Short remained in the possession of plaintiffs, of what avail was it to them as security? The plaintiff could not sustain an action upon the account against Holland & Short, for it had at the demand of its creditor (the defendant) liquidated the claim by giving a note therefor; so the same was valueless in the hands of plaintiff or any, one else, and this impairment of value was in no way attributable to the acts of the plaintiff. It is not necessary to attribute any fraud or wrongful motive to defendant in this transaction. It is sufficient to say that it appears that, from the record before us, the agreement to give the plaintiff security was not carried out according to its terms, and that the security proffered was not accepted, but was returned to the defendant. This case is not in parity with Murphy v. Montandon, 2 Idaho, 1048, 29 Pac. 851. In that case the plaintiff had received and accepted a draft or order, and had not only retained it, but had received partial payment thereof. The consideration of this point does not involve the question of amendment of the affidavit. We think the affidavit, as set forth in the record, was sufficient.

Appellant objects to the affidavit for attachment in the case of Standard Oil Co. v. Alturas Commercial Co. upon the ground that the same was not signed by the affiant, although duly verified. The authorities upon this question are somewhat conflicting. The trend of decision seems to be directed, if not controlled, by the letter of the statutes. the statute requires, as in some cases it does, that the affidavit shall be "signed and sworn to," or "subscribed and sworn to," the letter of the law has been held to control, and the signature of the affiant held to be an indispensable requisite to the validity of the affidavit. On the other hand, when the statute

If

has not in terms made the signing of the affidavit a necessary incident, the absence of the signature of the affiant has been held not to invalidate the affidavit. Some of the chancery courts of this country, following a rule laid down by the chancery courts of England, have insisted upon the presence of the signature of the affiant to give validity to the affidavit, but a contrary rule has obtained in the courts of law from a very early period. In Haff v. Spicer (1805) 3 Caines, 190, it was quite peremptorily held that the absence of a signature to the affidavit did not invalidate it. The court says (and this is the whole text of the decision): "It begins with his name, and that is sufficient;" and this ruling is followed and affirmed by the same court in Jackson v. Virgil, 3 Johns. 540, and this rule seems to have obtained generally, when the wording of the statute has not required a departure therefrom. Under the weight of authority, and the imperative requirements of section 4 of our Revised Statutes, we feel constrained to hold that the signing of the affidavit was not in this case an indispensable prerequisite to the issuance of the attachment; although we believe, with many of the authorities who thus hold, that it is the better practice to have the signature of the affiant appear upon the affidavit, as it doubtless would do but for mistake or inadvertence on the part of the attorney in drawing the papers.

Objection is made by appellant to the undertakings filed in both of the cases under consideration. In the case of Simmons Hardware Co. v. Alturas Commercial Co. the original undertaking closes with these words: "The plaintiff will pay all costs that may be awarded to the defendant, and all damages that he may sustain by reason of attachment under execution, in the sum of four thousand dollars." It is palpable that the words "under execution" were inserted by inadvertence or mistake. They have neither pertinence, place, or meaning as they appear, nor would they, in our opinion, at all affect the validity of the undertaking. We think they come clearly within the rule laid down by Judge Amasa J. Parker in Teall v. Van Wyck, 10 Barb. 379, which is as follows: "When the words of a bond are not sufficiently explicit, or, if literally construed, the words would be nonsense, it must be construed with reference to the intention of the parties. In doing this it is allowable to depart from the letter of the condition, to reject insensible words, and to supply obvious omission." The intention of the party here was to procure a remedy provided by the statute, by a compliance with the terms and conditions of the statute. The object and purpose of the statute is that one seeking the remedy by attachment shall, before being allowed to avail himself of such remedy, give the indemnity to the defendant required by the statute. We think the indemnity required by the statute was complete under the first undertak

ing, but, even if it were not, the filing of the second undertaking by leave of court placed the matter beyond cavil.

The objection of appellant that the filing of the second undertaking was unauthorized is not tenable. We have found no authorities in support of this contention, while, aside from the plain and unequivocal provision of our own statutes, all the authorities we have been able to consult upon the question are against the contention of appellant. Our conclusions cover the objections raised by appellant to the undertaking in the case of Standard Oil Co. v. Alturas Commercial Co. The orders of the district court in both cases are affirmed, with costs.

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1. On an appeal from an order of the county commissioners, the cause must be tried anew in the district court, and the court may submit the issues to a jury.

2. The court did not err in receiving evidence as to whether C. was actually and necessarily engaged in the transaction of county business for the days charged, that being the issue in the case.

3. On the trial in the district court, all evidence pertinent to the issues should be received.

4. A county commissioner, under an act of the legislature approved February 23, 1893 (2 Sess. Laws, 39), is permitted to charge and receive $6 per day for each day actually and necessarily engaged in the transaction of county business, the total of which compensation shall not exceed $500 per annum.

(Syllabus by the Court.)

Error to district court, Bannock county; D. W. Standrod, Judge.

A. W. Fisher and others appealed from an order of the county commissioners of Bannock county from an allowance of a claim to J. O. Caldwell. The judgment of the commissioners was reversed, and the board of county commissioners and J. O. Caldwell bring error. Affirmed.

This cause was taken to the district court of Bannock county by appeal from an order of the board of county commissioners of said county allowing J. O. Caldwell, a member of said board, $150.40, mileage and per diem, compensation for services as a member of said board, and was brought to this court by writ of error. In the trial of the cause in the district court two questions were submitted to the jury, and a special verdict found by them, on which verdict judgment was entered reducing the claim from $150.40 to $90.40. The record shows that the reduction was made by refusing to allow the claim of Caldwell, defendant in error, for 10 days' services, at $6 per day, that had been allowed

by said board. It appears from the record that said board adjourning from day to day for many days, awaiting a decision of the supreme court in a case there pending in which Bannock county was interested, claiming that said board could not make the annual tax levy until said decision was made. and for that reason adjourned from day to day, as above stated.

Hawley & Puckett and D. C. Lockwood, for plaintiffs in error. W. C. Love and P. E. Keeler, for defendants in error.

SULLIVAN, J. (after stating the facts). The plaintiffs in error contend, first, that the court erred in submitting the case to a jury. Section 1776, Rev. St., provides for appeals from the action of the board of county commissioners to the district court, and section 1779 provides that the case on appeal must be heard anew. Section 4369, Rev. St. 1887, provides that in certain cases issues of fact must be tried by a jury, unless a jury trial is waived. The case at bar comes within the provisions of said section, and the court did not err in submitting the case to a jury. Section 4396 provides that in a certain class of cases the jury may, in their discretion, render a general or special verdict. The case under consideration comes within that class.

It is further contended that the court erred in receiving any evidence on the trial of the case. There is nothing in this contention. The case, after appeal to the district court, must be tried anew; and the issue being whether Caldwell, the defendant in error, had been actually and necessarily employed in the discharge of his duties as a county commissioner for the 19 days mentioned, and for which the board had allowed a per diem compensation of $6, any pertinent evidence upon that issue was admissible. The act of February 23, 1893 (2 Sess. Laws, p. 40), allows each member of the board of county commissioners $6 per day for each day actually and necessarily engaged in the transaction of county business, and, unless the commissioners are actually and necessarily so engaged, they are not entitled to their per diem compensation.

It is further contended that the notice of appeal was fatally defective, in that it does not specify wherein or how the allowance of the said claim for services was illegal or prejudicial to the public interests. The notice states that the appeal is taken from the order of the board allowing John O. Caldwell's claim for services as county commissioner alleged to have been rendered between the 9th day of April, 1894, and the 8th day of June, 1894, in the sum of $150.40, on the ground that said allowance was illegal, and prejudicial to the public interests. The defendants in error appeared in the district court, and moved to have the plaintiffs in error specify specific grounds of appeal. Thereupon the plaintiffs in error made specific the grounds of the appeal by filing

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