J. H. Hawley, and J. Ed. Smith, for ap- | no force whatever. The judgment of conpellant. Richard Z. Johnson, for the Terri-viction is therefore affirmed. Judgment aftory. firmed. LOGAN, J. The defendant was indicted, tried, and convicted at the October term, 1888, of the district court of the Third judicial district of Idaho, in and for Bingham county, of the crime of perjury. The crime was alleged to have been committed by reason of the defendant having taken an oath known as the "election oath" before one A. WEIR, C. J., and BERRY, J., concur. (2 Idaho [Hasb. 568) SCHULTZ e. al. v. KEELER et al. (Supreme Court of Idaho. March 18, 1889.) MINES AND MINING-LOCATION OF CLAIM. Where the complaint alleges that a mining claim was located on behalf of the owner by a duly authorized agent, and the answer admits that fact, it is error for the court to refuse to give an instruction to the jury to the effect that one might initiate the location of a mining claim through an (Syllabus by the Court.) agent. W. B. Heyburn and W. W. Woods, for appellants. Albert Allen and Richard Z. Johnson, for respondents. M. Carter, registrar of Rexburg precinct in said county, on September 15, 1888. The defendant contends that the indictment does not charge the commission of any offense by him, for the reason that A. M. Carter was not authorized by statute to administer the oath complained of, and that it is not charged Appeal from district court, Shoshone in the indictment that the defendant "know-county. ingly" took such oath. Other points are raised by the defendant in his brief in regard to the charge of the court, and in regard to the refusal of the court to admit certain evidence which was offered by the defendant. LOGAN, J. This action is in the nature of These we cannot take notice of. No excep- ejectment, brought to recover the possession tion was taken to the charge of the court, of certain placer mining ground, situated in and no requests were made to the court by Shoshone county. The case was tried before the defendant to charge in his own behalf. the court with a jury. Verdict and judg The exception taken to the refusal of the ment in favor of the defendants. The appeal court to admit certain testimony was not er- is from the judgment only, but the judgror. We have no bill of exceptions before us, ment roll contains the complaint, answer, and no evidence. The testimony was objected and bill of exceptions. The complaint alto as immaterial, and we have no means of leges that on the 11th day of June, 1883, the ascertaining whether it was immaterial or plaintiffs, jointly with one Jesse A. Pritchard, not. In regard to the points raised as against by their attorney, A. J. Pritchard, made a the indictment, we think the registrar was certain mining location in pursuance of the competent to administer the oath. While it act of congress of May 10, 1872. The anis true that under the general act, which em-swer admits that the pretended ownership of powers certain persons to administer an oath, the mining ground described in the plainthe name of the registrar is omitted, yet, un- tiffs' complaint is based upon a pretended loder sections 504 and 505 of the Revised Stat- cation thereof by one A. J. Pritchard, as the utes of Idaho, it is perfectly clear that the leg-agent of the plaintiffs. Although we have islature intended to, and in fact did, by these no evidence before us, taken at the trial as sections, confer upon the registrar the power to this point, yet we have this allegation of to administer such an oath. In regard to the the complaint and the admission by the anomission of the word "knowingly" in the swer. It was therefore proper for the plainindictment, we are perfectly clear that the tiffs to request the court to charge that a valid use of the words "willfully, unlawfully, and location of a mining claim may be made by feloniously contriving and intending to pro- a duly authorized agent in the name and in cure himself to be registered, * * up- the absence of the principal, and that when on his oath aforesaid falsely, wickedly, and such location is once proved it as completely feloniously did say, swear," etc., is sufficient segregates the ground so located from the in a case of this kind. The defendant was public domain as though located and held by called upon to take oath as to certain facts the locator in person. The fact of the locawhich were necessarily within his own tion by an agent was in the case as fully as knowledge, facts which pertained to himself it would have been had there been evidence. alone, and which he was bound to know; It was absolutely necessary for the plaintiffs, and we do not see how he could in any manner be injured by the omission of the word. Section 8236 of the Penal Code of Idaho provides: "Neither a departure from the form or mode prescribed by this Code in respect to any pleading or proceeding, nor an error or mistake therein, renders it invalid, unless it has actually prejudiced the defendant, or tended to his prejudice in respect to a substantial right.' For the defendant to make the claim he does would seem to us to be of in making out their case, to prove this allegation; and they could only prove it in the manner alleged. The answer having admitted the manner of location, evidence of the manner might not be necessary, but it furnishes no excuse for the court to refuse to instruct upon that subject, because the plaintiffs' whole claim, and the validity of their location, depended upon the question whether it could be made by an agent. It is unnecessary for us to go into the question as to whether WEIR, C. J., and BERRY, J., concur. this request to charge is proper or not. Itutes provides a clear and distinct manner of was the law of this case, for the reason that proceeding in such cases. The court or judge the same question had been presented in the might authorize the plaintiff, by order, if it same action on a former appeal, (13 Pac. seemed to him proper, upon the testimony, Rep. 481,) and the charge was there held to to commence an action against the defendant be proper. In that opinion we certainly Burke, and in the mean time could have reconcur. For the refusal of the court to strained the defendant from transferring or charge as requested, the judgment is reversed, in any manner disposing of the interest of and a new trial ordered. defendant until the action so ordered should be disposed of. The defendant Burke should not have been subjected to any different or harsher remedy than he would have been if he had failed to pay his indebtedness to Seymour. He was entitled to a trial of the issues between himself and Seymour, and the court had no power to deprive him of such trial. The judgment, therefore, in favor of the plaintiff in this action, and against defendant Burke, should be reversed, and the plaintiff left to his proceeding under the statute. Judgment reversed. (2 Idaho [Hasb.] 571) LINDENTHAL v. BURKE. (Supreme Court of Idaho. March 18, 1889.) GARNISHMENT-JUDGMENT. When a debt claimed to be due by one person to another is attached, as provided for by section 4309, Rev. St., and such person has been examined under section 4310, Rev. St., and the existence of liability denied, the court or judge has no power to order a judgment against such alleged debtor upon such examination. (Syllabus by the Court.) Appeal from district court, Shoshone county. W. B. Heyburn and W. W. Woods, for appellant. A. E. Mayhew, for respondent. WEIR, C. J., and BERRY, J., concur. (2 Idaho [Hasb.] 498) SMITH v. RICHARDS et ux. (Supreme Court of Idaho. March 11, 1889.) HOMESTEAD-EXEMPTION-JUDGMENT. 1. A judgment lien acquired before the filing of a declaration of homestead by respondent and wife subjects such property to sale under execuquent act of the owners. Such lien cannot be divested by any subse tion. 2. A judgment lien is a vested right of property, and cannot be satisfied except by payment or release. (Syllabus by the Court.) Appeal from district court, Oneida county. Ejectment by Joseph Smith against Edmund T. Richards and Ann Richards. Judgment for defendants, and plaintiff appeals. Smith & Smith, for appellant. D. W. Stanrod and J. T. Morgan, for respondents. LOGAN, J. It appears that on the 27th day of July, 1887, the plaintiff commenced an action in the district court in and for the First district of Idaho territory, to recover $800 upon a promissory note against one Amadis Seymour. A writ of attachment was issued in the action, and on the 30th day of July, 1887, Burke, the appellant herein, was attached as a debtor of the defendant. Such proceedings were had in the action that on the 25th day of October, 1887, judgment was rendered against Amadis Seymour, the defendant, for $884.21, and $49.55 costs. On the 22d day of November, 1887, the plaintiff filed an affidavit in the action stating that the defendant Burke had been attached as a debtor of the defendant Seymour, where- LOGAN, J. This is an action brought by upon the court made an order requiring the the plaintiff against the defendants in ejectdefendant Burke to appear and answer touch- ment. The action arose in Oneida county. ing any debts due by him to the defendant and the same was tried upon an agreed Seymour. The defendant Burke appeared, state of facts. It appears from the findings and the testimony upon the examination of the court that on the 17th day of July, seems to have been somewhat conflicting. 1883, the plaintiff recovered a judgment Upon the testimony so taken the court below ordered judgment in favor of the plaintiff and against defendant Burke for the sum of $933.76 and for $26.15 costs. It is contended here that the court below had no jurisdiction to try the question of indebtedness as between Burke and Seymour in that summary manner, and to render a judgment against Burke as a garnished defendant. Unquestionably the court had the power to direct the defendant Burke to submit to an examination in respect to the indebtedness, but had no power or authority conferred upon him by statute in that manner to direct the entry of judgment against the defendant Burke, without allowing to said defendant a hearing upon issues duly raised. Bank v. Pugsley, 47 N. Y. 368. Section 4510 of the Revised Stat against the defendant E. T. Richards, in the and that, on the 10th day of September, 1883, | that, when an attachment is properly levied the same was sold, and the plaintiff, being on lands not then exempt from attachment the highest bidder, became the purchaser of and execution, a lien is created which no subthe said property; that on the 1st day of sequently arising exemption can supplant; April, 1884, the defendant E. T. Richards and in so thinking we are sustained by a denot having redeemed the said premises, the cided preponderance of the adjudications sheriff executed to plaintiff a deed of convey- upon this subject." Thompson on Homeance of said land and premises; and that by steads & Exemptions, § 317, says: “If a virtue of this deed the plaintiff seeks to simple contract debt, created at a time when eject the defendants. The defendants, how- the creditor has not had the notice required ever, claim that on the 3d day of September, by law,-whether given by visible occupancy 1883,-just seven days before the sale of the or a declaration of record,-that the debtor premises by the sheriff,-Ann Richards, who has withdrawn a certain portion of his land was then the lawful wife of the defendant from exemption by making it his homestead, E. T. Richards, by herself, filed, and caused will bind such homestead, a fortiori a valid to be recorded in the office of county recorder lien placed upon land before it acquires the of said Oneida county her declaration of character of homestead will not be subsehomestead, in the form and in all respects quently impaired by the debtor occupying as required by law, upon the premises de- such land as his homestead, or, in those scribed in the complaint; that the defendant states where such a proceeding is required, E. T. Richards, with his wife and family, by filing the statutory declaration of homehad resided upon the premises continuously stead. If the legislature of a state cannot for seven years last past from the date of the divest such a lien, it is pretty clear that a execution and recording of the declaration of private individual can do no act which have homestead; and that they now have no other this effect. Plain as this conclusion would homestead or place of residence whatever. seem to be, the question has been thrust in Under this state of facts the court found the face of the courts again and again." as conclusion of law that the defendants are Smyth on Homesteads & Exemptions, § 35. entitled to the possession of all the land and says "that, if the premises became a homepremises described in the complaint herein stead after a lien has attached, this does not as against the plaintiff and all persons claim- discharge or affect the lien;" and "a lien ing, or to claim, the same under him, and claimant, having a lien older than the homethat the plaintiff had no right, title, or inter- stead right, may enforce his lien without any est in or to the said land, or any part there- reference to such homestead right." Platt of. It is claimed that this conclusion of on Property Rights of Married Women, § 71, law, as founded upon the facts, is error; and says: "All liens acquired before the homea reversal of the judgment is sought upon stead has been established must be raised, that ground. or it will be subject to forced sale for their satisfaction," And again, in the same section, he says: "Consequently an appropriation of land as a homestead subsequent to the levy of an attachment or the attaching of a judginent lien cannot protect it from forced sale under the lien thus acquired." To the same effect: Kelly v. Dill, 23 Minn. 435; Bullene v. Hiatt, 12 Kan. 82; Robinson v. Wilson, 15 Kan. 448; Bartholomew v. Hook, 23 Cal. 278; Rix v. McHenry, 7 Cal. 89; Elston v. Robinson, 21 Iowa, 532. The question presented for our consideration is, can the defendant, or his wife, under the circumstances, by filing a declaration of homestead subsequent to the attaching of a judgment lien, divest that lien, and prevent the property being made subject to it? It is with some difficulty that we have been able to arrive at a satisfactory conclusion in this case. Such doubts have arisen mainly from a consideration of the decisions of the courts of Nevada and California. These cases appear to hold that the homestead itself is exempt from forced sale under execution, and that a subsequent filing of a declaration of homestead under the statute defeats the operation and effect of the lien. Although we are of the opinion that these cases do not go fully to that extent, yet, even if they do, we are not prepared to uphold the doctrine laid down therein. Freeman, in his work on Executions, § 249, 249d, 249e, says, referring to the cases which we have mentioned: "These provisions clearly make it the duty of the officer to levy the writ on all property not then exempt from execution, and afterwards, in the event of plaintiff's recovering judgment, to sell all the property attached, if necessary to produce a satisfaction of such judgment. We think, therefore, that, construing all the statutes together, it clearly appears that these decisions are wrong, and We are cited by respondents to Hawthorne v. Smith, 3 Nev. 161; Estate of Walley, 11 Nev. 260; and Lachman v. Walker, 15 Nev. 422. In the first case the question was not a judgment lien, but an attachment lien, and the court there refused to express an opinion upon what would be the effect of a judgment lien entered before the filing and recording of a declaration of homestead. In the second case the court merely held that the widow of David Walley, deceased, was entitled to have her homestead set apart for her by the probate judge, and that, when so set apart, it was not subject to the debts of the said David Walley; but no opinion is expressed as to what would be the effect of a judgment lien. In 15 Nev. 424, which is the latest case called to our attention, the court say: “We intimate no opinion of what would have been the effect of a homestead declaration filed by plaintiff's grantors sub-resided thereon, located the section, and filed his sequent to the docketing of Rinaldo's judg- and intended to obtain title thereunder when the declaration to hold it under the pre-emption laws, ment, but before sale of the property under land should be surveyed. Provision for the conexecution issued upon that judgment, and demnation of possessory claims for rights of way prior to the conveyance by McCarran and was made by act Cong. March 3, 1875, and Rev. St. wife to plaintiffs. In this case no declara- claim could not be taken for a right of way by a Idaho, tit. 7 Held, that defendant's possessory tion has ever been filed, and we have not the railroad company having no right to the land, slightest doubt that the property is not ex- without compensation. empt. The statute only exempts a homestead which has been selected according to its provisions. 2. On appeal from the judgment only, where it does not appear that a motion for new trial was made, or that any statement was filed pursuant to The homestead * * *Rev. St. Idaho, § 4443, the judgment roll only can be considered. Appeal from district court, Shoshone county. W. W. Woods and W. B. Heyburn, for appellant. Albert Allen, for respondent. to be selected * * * shall not be subject to forced sale. ** * *Said selection shall be made by either husband or wife, or both of them, * * * declaring their intenAction by the Washington & Idaho Railtion in writing to claim the same as a home-road Company against S. V. William Osborne. stead.' The law does not compel any person Plaintiff appeals. to have his property become a statutory homestead against his will, but it requires him to do certain things in order to enjoy its benefits." Under the act of 1881 home- WEIR, C. J. This is an action brought steads are not exempt from sale under exe- by the plaintiff, in which it appears that the cution, and thus leaves the law as it was un- plaintiff, as a duly-organized corporation, der the act approved January 13, 1875. Sec- has duly filed its certificate of incorporation tion 1 of that act is substantially the same as and due proofs of its organization, under the the Nevada statute; and the only construc- act of March 3, 1875, and is entitled to a tion which we can place upon it is as con- right of way for the purpose of constructing tended for by the appellant. The homestead its railroad over the public lands of the is to be selected by the husband and wife, or United States; that the defendant claims either of them, or other head of a family, that he is the owner of a part of said public and when that is done it is exempt from land, and that he is entitled to the possession forced sale under execution so far only as to of the same as against the plaintiff; that subsequent liens. The property in this case, thereupon, on the 28th day of July, 1888, at the time of the filing and docketing of the plaintiff commenced proceedings in condem. judgment herein mentioned, was the prop-nation against said defendant to condemn the erty of E. T. Richards, the defendant, and right of way for its road over and through was subject to levy and sale under that judg-the land so claimed by the defendant; that ment. No subsequent act of the defendant, upon such proceedings the district court on or of any one acting for him, could release the 13th day of August, 1888, appointed comthat lien except by payment. A person missioners to appraise and assess the damagainst whom the law has created the lien is ages which the said Osborne would suffer by unable by any act of his, short of discharg- reason of the said condemnation for plaining it, to impair or affect it; and certainly, tiff's right of way; that the commissioners in a case of this kind, what he could not do took testimony, and reported, after viewing by himself he could not do by his wife. Tin- the premises and hearing the testimony, that ney v. Wolston, 41 Ill. 215. The effect, the total damage sustained by the defendant under the statute, of permitting the wife to by reason of the taking of the premises by file a declaration of homestead, and thus de- the plaintiff were $6,670. The plaintiff defeating the lien, would be indirectly doing clines to make tender of that sum, or any for himself what he could not do, because sum, to the defendant, upon the ground that the statute provides that from and after the the defendant is not entitled to the possesfiling for record of said declaration the hus- sion of the premises as against the plaintiff. band and wife shall be deemed, and hold said Plaintiff offers to pay the money into court, homestead as, joint tenants. The judgment and abide the determination of the question, in this case should be reversed, and the case and thereupon proceeds to ask judgment that remanded to the court below, with instruc-it may be decreed to be the owner and entitions to enter judgment according to this opinion. Judgment reversed, with costs. (2 Idaho [Hasb.] 557) WASHINGTON & I. R. Co. v. Osborne. (Supreme Court of Idaho. March 18, 1889.) tled to the possession of the land, and also be entitled to enter upon the same for the purpose of constructing its railroad without the payment or tender of the damages so found by the commission; and asks for an injunc tion restraining and enjoining the defendant from interfering with it in the construction 1. A tract of unsurveyed land of the United and operation of its road. The defendant, States, of an agricultural character, was located answering, alleged that he was in all reand settled, and buildings were erected on it. De- spects qualified in law to initiate proceedings fendant, who was qualified to take proceedings to to obtain title to 160 acres of agricultural obtain title under the pre-emption laws, bought land belonging to the United States; that the the right of possession and improvements, took possession, made improvements, and continuously land upon which defendant was in posses PUBLIC LANDS-EMINENT DOMAIN. sion was located and settled upon in the year | by Seth McFarren and Samuel Norman, who 1885 by one Seth McFarren and Samuel Nor- proceeded to erect buildings thereon, and loman, who in that year built a house and cated the same, as required by law; that, on other buildings thereon, marked off the cor- the 18th day of March, 1886, in consideration ners of the same, and partly fenced the same of $2,000, these parties sold and conveyed to on its exterior boundary as defined by their the defendant all the improvements upon the corner stakes; that said McFarren and Nor- said premises, and the right of possession man resided constantly upon the said prop- which the said parties then had; whereupon erty, living in the dwelling-house aforesaid, said Osborne entered into possession, and and constantly engaged in inclosing and im- continued in possession up to the time of proving the same during the year 1885 and the commencement of this action, and has down to March, 1886, at which date the de- duly located the said section, as required by fendant duly purchased the same from them, law, and filed in the office of the county repaying therefor the sum of $2,000; where- corder of Shoshone county, Idaho, his declaupon the defendant went into possession of ration to hold said premises under the prethe entire tract of land comprising 160 acres, emption law under the possessory land act with the intent in good faith to initiate and of the territory; that during all the time perfect the title thereto under the homestead since the 18th day of March, 1886, defendant or pre-emption laws of the United States; and has resided upon the premises, making the that since that time the defendant has resided same his home, and has made large and valupon the ranch continuously, constantly im- uable improvements thereon; and that he inproving the same, and completed the inclos- tends to obtain title to said premises under ure thereof; and that altogether he has ex- the pre-emption laws of the United States, pended the sum of $8,000, exclusive of the as soon as the same shall be surveyed by the sum of $2,000 heretofore paid therefor, as government. As conclusion of law from aforesaid. The defendant further alleged these facts the court found that the defendthat the proposed right of way of plaintiff ant is now, and at all times since the 18th goes through the center of defendant's gar- day of March, 1886, has been, the owner of, den, which defendant has thoroughly reduced as against all persons except the United to cultivation and set out in orchard; and States, and in possession of, the land and premconceded that the land is unsurveyed public ises described in the answer; that the title land of the United States. and right of possession of defendant in and to said premises are prior to and paramount to the right of way of the plaintiff over the said premises; and that the plaintiff has no estate or interest in or to the right of way over and across said premises, or any part thereof, as against the defendant; that defendant is en and that he have judgment for the costs. The appeal in this action is from the judgment and decree only. It does not appear that any motion for a new trial has been made, or any statement been filed in pursuance of section 4443 of the Revised Statutes of Idaho. We can, therefore, in disposing of this case, consider only the judg-|titled to a judgment and decree of this court, ment roll. If that appear to be correct, the judgment must be affirmed. Gamble v. Dun- The only question presented in this case is well, 1 Idaho, 268; People v. O'Conner, Id. whether the defendant's possessory claim 759; Purdy v. Steel, Id. 216; Caney v. Silver- can be taken by the plaintiff without comthorne, 9 Cal. 67. The findings of the court pensation. It appears that the defendant's in this case are conclusive of the facts, and right was acquired before the organization the only question that remains is whether of the plaintiff, and that the plaintiff had no the conclusions of law are supported by the right whatever. The act of March 3, 1875, findings of fact. The court found as a mat- provides that the legislature of the proper ter of fact that on the 5th day of July, 1886, territory may provide for the manner in the plaintiff became a duly-organized cor- which private lands and possessory claims poration under the laws of Washington Ter-on the public lands of the United States may ritory, for the purpose of constructing and be condemned. Section 3 of said act. It is operating a railroad through a certain part under this act that the plaintiff claims its of Shoshone county, and on the 8th day of right. The legislature of Idaho has provided November, 1886, filed amended articles of a law for the condemnation by railroad comincorporation extending the line which the panies of the right of way over possessory plaintiff proposed to construct. The prop-claims. Title 7, Rev. St. Congress itself by erty in question is covered by the extension. the act seemed to provide for condemnation The court further finds that the defendant of possessory claims, and undoubtedly the is a native-born citizen of the United States, defendant's claim was a possessory one, and has never had the benefit of the pre-emption this plaintiff could not enter upon it and take or homestead laws, and is in all respects it from the possession of the defendant, unqualified in law to initiate proceedings to ob- less it had a prior right, without due comtain title to 160 acres of the agricultural land pensation. The question of a rule of dambelonging to the United States; that the ages in a case of this kind, where the proplands in question are part of the unsurveyed erty itself is property of the United States, is public land of the United States, and agri- another question, but is not presented for cultural in character; that the premises in our consideration in this case. It appears question were settled upon in the year 1885 from an examination of the judgment roll |