ularity in the methods adopted by a class of subordinate officials in the performance of their duties, it is not, however, their duty to consider as done in the manner required by law that which should have been done in so important a matter as the assessment of property for taxation. The legislature is charged with the duty of raising revenue for the support of the government, and it is its peculiar function to lay taxes and provide the means for its collection. To that end it may and has prescribed the initial step in order to subject property to the burdens of taxation, and that step is assessment. A description or list of the property, with a valuation attached, is a necessary act, without which a levy cannot be made and enforced. On this subject Judge COOLEY says: "Of the necessity of an assessment no question can be made. Taxes by valuation cannot be apportioned without it. Moreover, it is the first step in the proceedings against individual subjects of taxation, and is the foundation of all which follows it. Without an assessment they have no support, and are mere nullities. It is therefore not only indispensable, but in making it the provisions of the statute under which it is to be made must be observed with particularity. * * As the course unquestionably is prescribed in order that it may be followed, as without it the citizen is substantially without any protection against unequal and unjust demands, the necessity for a strict compliance with all important requirements is manifest." Cooley, Tax'n, 259, 260. * It does not follow, however, that in the assessments of the property of persons who fail to render or return a list that the description or lists made by the assessor, according to his best information, must be strictly accurate, or the valuations correct, but it is essential to the validity of the tax that some description or list be made. In this case the assessment for 1881 consisted of a single item, valued at $1,000,000. For 1882 and 1883 the assessor divides the gross sum into two classes,―real and personal,-giving to each a value of $250,000. Construing these assessments in the most favorable and liberal way, can they be treated as valid? The statute requires real estate to be listed by subdivisions, or some other way sufficient to identify it. It also requires, as we have seen, that a list or description of personal property, as well as its value, must be given. There can be no sort of doubt about the insufficiency of the attempted assessment of the real estate. No deed could be given if sold at delinquent tax sale. No possession could be taken under such a description. There is a value attached to the personal property for the years 1882 and 1883, but there is no effort at description. It is possible to conceive a single piece of railroad property to be worth $250,000, but the owner is certainly entitled to know what piece it is, so that he might, if valued too high, seek his remedy for relief before some proper tribunal or body. Again, the statute makes it the duty of the assessor to ascertain the names of all taxable inhabitants of his county, and all the property in his county subject to taxation. This is not an impossibility, so far as taxable inhabitants and tangible property are con cerned. This assessment does not purport to be founded upon mere credit. It is founded, as we understand it, upon tangible estate. From no point of view can these assessments be treated as legal and binding upon either railroad company. It is urged that in any event the judgment below is erroneous because complainant admitted the ownership of property of the value of $183.12, and did not tender any sum before the institution of the suit, nor in its bill. This is not the rule where assessments are void. In a suit to enjoin the collection of taxes, where the original assessment was void, there is no necessity for a tender of such sum as might be equitably due on account of such taxes. The cases in which a tender has been required were those where there was an excessive, as distinguished from a void, assessment. Albany Nat. Bank v. Maher, 20 Blatchf. 341-343; S. C. 9 Fed. Rep. 884. The judgment is affirmed. LONG, C. J., and BRINKER, J., concurred. (2 Idaho [Hasb.] 256) SUPREME COURT OF IDAHO. LUFKINS v. COLLINS and others. Filed March 8, 1886. 1. REPLEVIN-VERDICT-EVIDENCE. The verdict of a jury against the defendants, in an action for the recovery of personal property, is conclusive, on appeal to the supreme court, on the question of ownership, and also upon all the allegations in the complaint material to recovery in the action, if there is any evidence to sustain the verdict. 2. TRIAL SPECIAL VERDICT-PROVINCE OF JURY. It is the province of the court to determine as to what particular facts the jury shall find specially, and neither party has the right to dictate the terms of any particular question which the court may deem proper to submit to the jury. 3. APPEAL-ERRORS AT TRIAL-INSTRUCTIONS-VERDICT. When the instructions, taken as a whole, fairly submit the case to the jury, the verdict will not be disturbed on account of mere inaccuracies in some of the instructions given. Appeal from Second judicial district, county of Alturas. Kimball & Haywood, for defendants and appellants. G. L. Waters, L. Vineyard, J. B. Roseborough, and Brumback & Lamb, for plaintiff and respondent. BRODERICK, J. This case was here on appeal at the instance of defendants, and was decided at the January term, 1885. 7 Pac. Rep. 95. The former judgment was there reversed, and the cause remanded to the court below for a new trial. The plaintiff again obtained a verdict and judgment, and from this judgment the defendants appeal. The facts, as disclosed by the record, are substantially as follows: On and prior to the twenty-first day of November, 1882, the firm of Adams & Cunningham were the owners of 71 head of mules and horses used in teaming, and at that time the firm was engaged in teaming for Collins & Co., the defendants herein, with this plaintiff as boss or train-master, in the employ of said Adams & Cunningham, on the Oregon Short Line Railroad. On November 21, 1882, at Pocatello station, on the line of said road, Adams & Cunningham, being threatened with attachment suits, sold their stock and forwarding outfit to Collins & Co., defendants, and delivered to them a bill of sale, but the property was not there, and no part of it was delivered until the next day thereafter. The defendants and Adams then proceeded to the 16-mile station on the road, where they met the plaintiff with some of the property, and informed him of the transaction. On the twenty-second day of November, 1882, at the 43-mile station on the road the firm of Adams & Cunningham, by bill of sale and by actual delivery, sold to the plaintiff the five mules described in the complaint. While the negotiation was going on between plaintiff and Adams for the five mules, the defendant Stevens said to plaintiff that the sale of the property to defendants did not amount to much; that it was done to keep the work going on; and that he, (plaintiff,) could go ahead and purchase the mules, and thereby make himself secure. Immediately thereafter, and in presence of Stevens, the plaintiff selected the five head of mules, and he and Adams agreed upon the purchase price, and they were then and there delivered by Adams to the plaintiff. The delivery of the property was accomplished by a bill of sale executed by Adams & Cunningham. This occurred before the property had been delivered to the defendants. Adams then delivered to Stevens, for defendants, the other property, consisting of 66 head of stock and the forwarding outfit, and by agreement there made the plaintiff retained the control of the same for defendants, and continued in their employ as train-master. The plaintiff retained possession of the mules so purchased by him, and claimed and used them without objection from defendants until some time in January, 1883. On the nineteenth day of January, 1883, the defendants, while the plaintiff was absent, and without his consent, and by "force and arms," took and drove away the mules, claiming them under the bill of sale of November 21, 1882. The action was brought to recover the property, and for damages, and the verdict was in favor of the plaintiff for the return of the property or $1,000, the value thereof, and $300 damages for wrongful detention of the same. On the trial of the case, among others, the following special question was submitted to the jury: "(2) Was there a sale and delivery of the property in question for a valuable consideration by Adams & Cunningham to the plaintiff Lufkins? And if so, did the defendants assent or acquiesce in such sale and delivery ?" This question was answered by the jury in the affirmative, and no other special verdict returned is in any manner inconsistent with this one. This special finding of the jury supports the general verdict, and is conclusive upon the question there submitted, if there is any evidence to sustain the finding. At the trial defendants requested the court to instruct the jury to find specially on certain other questions, a part of which were submitted and others refused, and defendants excepted to the ruling. upon the questions refused, and assign the same as error. By our Code, § 385, it is the province of the court to determine as to what particular facts the jury shall find specially, and neither party has a right to dictate the terms of such questions, and for refusing to comply with such request no error can properly be assigned. There are a number of assignments of error in the record as to giving certain instructions to the jury, as well as to the refusal of the court to give others, which assignments need not be noticed in detail. We are unable to find any error, either in the instructions given or refused. Counsel for defendants urge that the court erred in refusing to give the last instruction requested, which is as follows: "On the undisputed facts in this case defendants are entitled to a verdict of no cause of action." This request was made on the assumption that there was no evidence in support of the plaintiff's claim. We have carefully examined the record, and are satisfied that this assumption is not well founded. There is some evidence to support the verdict, but we deem it unnecessary to comment thereon at length. The circumstances surrounding the parties, the apparent motive that gov erned the parties when the transactions were had, the apparent acquiescence of the defendants in the sale to plaintiff, the manner in which the defendants obtained possession of the property,-in short, the whole case,-is such that we think it was properly submitted on the evidence and instructions to the jury to determine who had the better right and title to the property. Monarch, G. & S. M. Co. v. McLaughlin, 1 Idaho, 651; Brown v. Brown, 41 Cal. 88; Trenor v. Central Pac. R. Co., 50 Cal. 222. We are further satisfied, in view of all the facts and circumstances of this case, that justice has been done, and that the verdict and judgment should not be disturbed. The judgment is therefore affirmed. HAYS, C. J., and Buck, J., concurring. PECOTTE, Assignee, etc., v. OLIVER. Filed March 8, 1886. 1. ATTACHMENT-TO WHOM EXECUTION ON JUDGMENT SHOULD ISSUE. The officer who has seized goods under a writ of attachment, and holds the same, is the proper officer to whom the execution on the judgment in the attachment suit should issue. 2. SAME-EXECUTION-DELIVERY TO WRONG PARTY-AMENDMENT. Where a constable attached and held goods, and the execution was directed to the sheriff, but delivered to the constable, who served the same, held, the execution not void, but amendable. 3. SAME-ACTION FOR WRONGFUL SEIZURE-EXECUTION AS EVIDENCE. Where constable was sued for value of goods seized, held, that the execution was proper evidence in his defense, and error in court to exclude the same. Appeal from Second judicial district, Alturas county. Kingsbury & McGowan, for respondent. HAYS, C. J. The appellant was an acting constable of Hailey precinct, Alturas county, and on the twentieth day of June, 1883, a warrant of attachment was duly placed in his hands for service in an action against one Charles E. Bolton. It was duly served by him seizing and holding certain property of Bolton's. Afterwards judgment was duly entered against said Bolton and an execution issued |