TRIAL (Continued). or at which any material fact occurred, the court may order the jury taken there in a body. In a criminal prosecution, upon motion of defendant's counsel and despite the objection of the prosecution, an order was made to take the jury to the scene of the alleged crime. Neither the defendant, his counsel, nor the trial judge accompanied them. No witnesses testified at the taking of the view and the jurors were instructed not to discuss the case among themselves or with any one else. Held, that the statute, supra, is constitutional, and that the view of the locus in quo by the jury, in the absence of the defendant, is not prejudicial error when made with the consent of the defendant. (Elias v. Territory, 1.) 8. TRIAL-NONSUIT-VOLUNTARY-DOES NOT AFFECT DEFENDANT'S RIGHT TO JUDGMENT ON CROSS-COMPLAINT REV. STATS. ARIZ. 1901, PAR. 1396, CONSTRUED.—Paragraph 1396, supra, providing that "at any time before the jury have retired the plaintiff may take a nonsuit, but he shall not thereby prejudice the right of the adverse party to be heard on his own claim for affirmative relief. When the case is tried by the judge, such nonsuit may be taken at any time before the decision is announced,'' means that, whether the case is tried to a jury or by the judge, the taking of the nonsuit by the plaintiff shall not prevent a defendant from being heard and obtaining judg. ment upon his cross-complaint. (Smith v. King of Arizona Mining etc. Co., 228.) By court. See Appeal and Error, 22. See Criminal Law, 25. 1. VERDICT-DAMAGES-EXCESSIVE-REMEDY-REMITTITUR-REV. STATS, ARIZ. 1901, PARS. 1389, 1450, 1455, CITED-SOUTHERN PACIFIC Co. v. TOMLINSON, 4 ARIZ. 126, 33 PAC. 710, DISTINGUISHED.-Under paragraph 1389, supra, providing that "in all cases, both at law and in equity, either party shall have the right to submit all issues of fact to a jury" where the court deems excessive a verdict for damages which are in their nature incapable of exact ascertainment, as for injured feelings, and is satisfied that such excessive verdict was due to the influence of passion and prejudice, it was not within the province of the court to substitute its own estimate of the damages for that which it had rejected by ordering a remittitur, but the question of the proper sum to be awarded was one of fact, which should have been submitted to the determination of another jury. (The Southern Pacific Co. v. Fitchett, 128.) Based on conflicting evidence will not be disturbed on appeal. See VENDOR AND PURCHASER. 1. VENDOR AND PURCHASER-FRAUD-COMPLAINT SUFFICIENCY — EQUITABLE RELIEF.-A complaint setting forth that defendants under a contract to purchase of plaintiffs obtained possession of certain mining claims situate in Mexico, and removed the monuments set up by plaintiffs and set them up in another direction, so as to exclude a large body of ore, and then located for themselves a claim where plaintiffs' claims had been, states facts constituting such fraud and misconduct as to entitle plaintiffs to relief in equity, by declaring. defendants trustees of the property covered by the original locations, to require them to convey an interest in said property to plaintiffs, and to enjoin them from selling, encumbering, or otherwise disposing of the same. (Butterfield v. The Nogales Copper Co., 212.) 2. SAME ADVERSE POSSESSION-FRAUD.-Defendants, in possession under a contract of purchase of mining ground, cannot obtain title thereto by an act of actual fraud made possible by the possession thus gained and hold the same adversely to plaintiffs. (Butterfield v. The Nogales Copper Co., 212.) 3. SAME-CONTRACT-PURCHASING MINING CLAIM VENDEE'S FAILURE TO SIGN-IMMATERIAL-WHERE PART PAYMENT MADE AND POSSESSION TAKEN.-Where defendants make part payment and enter into possession of a mining claim under a contract signed by plaintiffs, they are bound thereby, and the fact that defendants did not sign the contract is immaterial. (Butterfield v. The Nogales Copper Co., 212.) VERIFICATION. Defect in, a formal matter, and not jurisdictional. See Bankruptcy, 2. WAIVER. Of assignment of error not argued in brief. See Appeal and Error, 5. WARRANTS. 1. WARRANTS-FUNDING-LOAN COMMISSIONERS-MANDAMUS-ACT CONGRESS JUNE 25, 1890, c. 614, 26 STATS. 175, CITED AND CONSTRUED. -Mandamus will not lie to compel the funding by the loan commission of certain city warrants under the acts, supra, where the petition alleges that the plaintiff is the assignee of such warrants, but it appears from the proofs that said warrants are payable to certain persons, and not to their order; that some were indorsed in blank and some unindorsed; that the original holders had not parted with their interest or received any valuable consideration therefor, WARRANTS (Continued). even were such warrants properly fundable on presentation and demand by the owners or real parties in interest. (The Valley Bank v. Brodie, 17.) 2. SAME SIGNATURE-MAYor-Auditor—VALIDITY-LAWS ARIZ. 1881, Act No. 39, p. 37 (TOMBSTONE CITY CHARTER), AND LAWS 1885, ACT No. 109, p. 315, CONSTRUED.-Section 5 of article 2 of act 39, supra, gave the city council power to create certain offices and appoint officers therefor. Section 2 of article 9 gave the council power to fix the salaries for such officers. Section 17 of article 10 provides that all demands against the city shall be presented to the council, which shall audit the same, and if allowed they shall order the same to be paid, and shall require the auditor to draw a warrant upon the city treasurer in favor of the holder of said claim, and such warrant shall be signed by the mayor and countersigned by the auditor. Act No. 109, supra, amendatory to act No. 39, supra, while it created certain city offices, fixed the salaries thereof, made such salaries a just and legal claim against the city, and required the auditor to draw warrants on the salary fund for each office on the first day of each month, did not except warrants for salaries from the requirement of the charter that all warrants should be signed by the mayor and countersigned by the auditor. (The Valley Bank v. Brodie, 17.) 3. SAME RES JUDICATA.-Where salaried officers of a city have brought mandamus to compel the mayor to sign warrants for their salaries and the writ has been denied, such judgment is res judicata as to the question of the duty of the city to issue such warrants. But if the city, notwithstanding such adjudication, has issued such warrants, the duty of the loan commissioners to fund such warrants is the sole question in mandamus to compel the funding. (The Valley Bank v. Brodie, 17.) 4. SAME VALIDITY SIGNATURES NECESSARY.-Warrants, to have a binding effect upon a municipal corporation, must be signed by the mayor, where his signature has been made a necessity by the charter of such corporation to every warrant or evidence of indebtedness against the same. (The Valley Bank v. Brodie, 17.) 5. SAME NON-PAYMENT-INTEREST.-Where a city charter provided that warrants of a city should be drawn on the city treasury, presentation of warrants to one J. and their non-payment for want of funds at a time when he had none of the city funds in his possession or control, and no access to such funds without a presentation to the acting and qualified treasurer, who had such funds, from which, if at all, they could have and should have been paid, was not such presentation as would cause them to bear interest thereafter, irrespective of whether the one to whom presentation was made had any claim to the office of treasurer. (The Valley Bank v. Brodie, 17.) WATERS. 1. WATERS-MUNICIPAL CORPORATIONS-GRANT OF FRANCHISE-IMPLIED CONTRACTS.-There cannot be an implied contract in a grant of franchise by a municipality that it will do nothing to impair or destroy the value thereof, or that it will not enter into competition with the grantee. Such a restraint can be imposed only by express provision. (Phoenix Water Co. v. Common Council, 430.) 2. SAME OPERATION OF WATERWORKS-JUDICIAL REVIEW.-The question whether the construction and operation by a city of a system of waterworks, determined upon in a lawful manner, would be an economical and wise enterprise is not a matter for judicial inquiry. (Phoenix Water Co. v. Common Council, 430.) WATER AND WATER-RIGHTS. 1. WATER AND WATER-RIGHTS-LIMITATION OF ACTIONS-PLEADING-INJUNCTION.-A complaint alleging that plaintiffs are appropriators of water, that certain defendant canal companies are distributing it to subsequent appropriators, and that all of the defendants many years ago entered into a wrongful agreement under which they are now dividing the waters of the river in stipulated proportions among themselves, to the entire disregard of the rights of plaintiffs, although showing on its face that the agreement was made at a time since which the various periods of the statutes of limitations have elapsed, is not barred by the statutes of limitations, the gist of the action being to enjoin wrongs now being perpetrated and threatened to be continued. (Henshaw v. Salt River Valley Canal Company, 418.) 2. SAME INJUNCTION-PARTIES.-Parties to a contract under which water is alleged to be distributed to the injury of plaintiffs are proper parties defendant in an action to enjoin a continuance of the wrongful distribution. (Henshaw v. Salt River Valley Canal Company, 418.) WRITTEN INSTRUMENT. Explanation by parol. See Evidence, 8. 7007 043 |