dents the constitution executes itself; and, in the absence of further legislation, all offenses of the grade of felonies, or having their origin in the district court, must be inquired into in this manner.

It has been maintained that the substantial rights of the respondent will be thereby impaired, and that this ruling, in its consequences, is ex post facto. The leading authority upon this matter is the case of Kring v. Missouri, 107 U. S. 221, 2 Sup. Ct. Rep. 443. Mr. Justice MILLER, in delivering the opinion of the court, declares in the follow

It is evident that the clause of the constitution respecting the information does not execute itself. All the details affecting the exercise, jurisdiction, and limitations of the procedure, and the rights and pleadings of the state and accused, must be defined by the legislative department. It has been observed that the states which have abolished the

grand jury system have enacted laws to carry into effect this provision of the constitution, and the following authorities will show their importance: Rowan v. State, 30 Wis. 129; State v. Sloan, 65 Wis. 647, 27 N. W. Rep. 616; Kalloch v. Superior Court, 56 Cal. 229; Hurtado v. California, 110 U. S. 516, 4 Sup. Ct. Rep. 111, 292; State v. Boswell, 104 Ind. 541, 4 N. E. Rep. 675. In Kalloch v. Superior Court, supra, the court says: "But the constitution of this state has made provision for this form of prosecution, and the legislature has furnished the machinery to enforce it. In our opinion the proceeding is a legal and constitutional one." In State v. Boswell, supra, the court says: "It seems clear to us that one who is tried and convicted upon an information provided for by a constitutional state statute is not deprived of his liberty without due process of law; for we perceive no reason for doubting the soundness of the proposition that proceedings founded upon an information provided for by a legally enacted statute do constitute due process of law."

The solution of the legal problem relating to the information in this case includes also the question as to the mode of prosecuting or investigating the charge against the respondent under the state government. The court below did not discharge the defendant, but ordered him to be remanded to the custody of the sheriff to await its further action. all the provisions of the constitution which have been cited are construed together, it will be apparent that the criminal practice

When

act relative to indictments remains in full force, with two exceptions. The number of the grand jury has been reduced from 16 to 7, and the concurrence of 5 members is required to find an indictment. In these inci

"Tested by these criteria, the provision of the constitution of Missouri which denies to plaintiff in error the benefit which the previous law gave him, of acquittal of the charge of murder in the first degree on conviction of murder in the second degree, is, as to his case, an ex post facto law, within the meaning of the constitution of the United States." The same principle is recognized in Hopt v. Utah, 110 U. S. 574, 4 Sup. Ct. Rep. 202, and it is also held that statutes which remove "existing restrictions upon the competency of certain classes of persons as witnesses relate to modes of procedure only, in which no one can be said to have a vested right, and which the state, upon grounds of public policy, may regulate at pleasure. Such regulations of the mode in which the facts constituting guilt may be placed before the jury can be made applicable to prosecutions, or trials thereafter had, without reference to the date of the commission of the offense charged." In People v. Campbell, 59 Cal. 243, the court says: "It is not an uncommon practice to change the number of grand jurors required to investigate criminal charges, but we have never heard of the right of the legislature to make such changes questioned; neither has it ever been claimed that the charge must be investigated by the precise number of grand jurors of which that body was composed at the time the act was committed." See, also, Cooley, Const. Lit. 272, 331, 332; People v. Mortimer, 46 Cal. 114; Bish. St. Crimes, §§ 178, 180. Those authorities support the proposition that the substantial rights of the respondent will not be prejudiced by the submission of his case to the grand jury which has been created by the constitution. It is therefore adjudged that the order appealed from be affirmed, with costs. All concur.

(2 Idaho [Hasb.] 632) DUNNIWAY et al. v. LAWSON et al. (Supreme Court of Idaho. Jan. 29, 1890.) APPEAL-TRANSCRIPT-DISMISSAL.

1. In an action where relief is granted both parties, on motion to dismiss the appeal under rule 3, supreme court, the certificate of the clerk below, under rule 4, not showing the nature and substance of the judgment appealed from, held, that such certificate will not justify a dismissal of the appeal.

2. Also that rule 3 is directory, and gives no right to a party to demand its enforcement.

3. Also that the court will not dismiss an ap

peal under rule 3, unless it be made to appear that justice requires such dismission.

(Syllabus by the Court.)

Appeal from district court, Custer county. On motion to dismiss.

Angel & Sullivan, for respondents. J.T. Morgan, for appellants

BERRY, J. This is a motion by respondents to dismiss an appeal in the above-entitled action, which motion is made under rules 2, 3, and 4 of this court, and upon the certificate of the clerk of the district court of Custer county. The rules are as follows: Rule 2. "When an appeal or writ of error has been perfected thirty days before the commencement of the next regular or adjourned term of this court, the transcript of the record shall be filed at least three days before the first day of such regular or adjourned term." Rule 3. "If the transcript of the record is not filed within the time prescribed [by rule-second.] the appeal or writ of error may be dismissed, on motion, without notice, on Monday of the week during which the cause is subject to call, under rule eight. A cause so dismissed may be restored during the same term, upon good cause shown, on notice to the opposite party. Unless so restored, the dismissal is final, and a bar to any other appeal or writ of error from the same order or judgment." Rule 4. "On such motion there shall be presented the certificate of the clerk below, certifying the amount or character of the judgment; the date of its rendition; the fact and date of the filing of the motion of appeal, or issuing of the writ of error; the fact and date of the filing; the undertaking on appeal or writ of error; the fact and time of the settlement of the statement, if there be one; and also that the appellant has received a duly-certified transcript, or that he had not requested the clerk to certify to a correct transcript of the record; or, if he has made such request, that he has not paid the fees therefor, if the same have been demanded."

It is clear that rule 3 is more in the nature of a statement, or notice by the court, of what it will be likely to do under a given statement of facts, than of a declaration of rights of a party litigant. The right in the court to dismiss, when in its opinion the interests of justice demand such action, and only when it is so demanded, puts upon the party requesting such action the burden of convincing the court, by a proper showing of facts, that the interests of justice require such action. Rule 4 seems specially intended to effect that purpose. The certificate of the clerk is to inform the conscience of the court. The clerk of the court below makes his certificate in substance as follows: "That on the 2d day of October, 1889, judgment was rendered in said district court, in favor of the plaintiffs * * and against said defendants, for costs of plaintiffs in said action amounting to the sum of $858.95, and that each of said defendants be adjudged to

*

pay one-third thereof, to-wit, the sum of $286.32, and that Paul P. Lawson and Chris. Rogers have, and each of them has, the right to the use of 10 inches of the water of Alder creek, a tributary of Big Lost river, and to use no more than 10 inches each, measured under a four-inch pressure, unless there shall be more than 220 inches of water running in said creek; and I further certify that on the 29th day of November, 1889, I received an order made by C. H. Berry, judge of said district court, ordering and directing that all papers and files, including evidence, in above cause, be sent to the clerk of the district court at Blackfoot, which was accordingly done; and I further certify that no notice of appeal from the judgment entered in said cause on the 2d day of October, 1889, has been filed in this office, nor has any been presented at this office for filing, nor has any statement on appeal from said judgment been settled and filed in this office, nor has any person requested that a transcript of the record of said action be made out and certified to the clerk of said district court, and sent such request to this office, but on the 5th day of December, 1889, an undertaking for stay of execution was made out by Paul P. Lawson, one of the defendants in said action, in the sum of $600, being more than double the amount named in said judgment, and was duly filed in this office according to law."

It will be observed that this certificate, while it states many facts, states few required by rule 4. Incidentally upon the argument, however, it appeared that a notice of appeal by the defendants from the judg ment had been served more than 30 days prior to the first day of this term of the supreme court, and that an appeal-bond, regular in form, had been filed in the office of the clerk in the court below; also that the action in which the judgment was entered was an action in equity, in which a decree was made in favor of the respondents in those things constituting the subject-matter of the said action. Aside from those general facts, this court is not further informed in the case. It is not alleged that any hardship to the respondents exists by reason of the failure to file in time the transcript on appeal; and if the respondents are not being injured, prima facie at least, they have no cause to complain. But the appellants' counsel gives reasons for the delay. He alleges that, in addition to the appeal from the judgment, it is his purpose to move for a new trial of the case, and thereby reach a more comprehensive remedy than would alone be an appeal from the judgment, or the bringing into this court of the judgment roll; that, in case his motion for a new trial is denied, he desires to appeal the order of denial; and that, if he gets a new trial, the necessity for any appeal may be avoided. He also avers that the statement of his case, on which he proposes to move, on account of causes beyond control, is not settled, or even yet made; and that, in view of such facts, the court below has

extended the time for settlement of a statement to a time not yet expired.

There is nothing to cast doubt upon the entire good faith of these allegations, and in themselves they are certainly consistent with fairness and the interests of justice. We do not think, from this stand-point. that we are called upon to exercise this reserved power, and summarily dismiss the appeal. But beyond this, as we have seen, the respondents' counsel has not brought himself within the conditions prescribed by rule 4. The certificate does not even show the nature of the judgment appealed from, except in the single matter of costs and certain minor provisions in favor of the appellants. In the absence of a more full and complete showing, the court is precluded, by its own rules, from dismissing the appeal as prayed, and the motion to dismiss must be denied.

(2 Idaho [Hasb.] 627)

COFFIN et al. v. EDGINGTON et al. (Supreme Court of Idaho. Jan. 28, 1890.)

APPEAL-DEATH OF PARTY-NOTICE.

1. After judgment was rendered, but before notice of appeal was filed or served, one of the defendants died. No substitution having been made, held, that all proceedings on the appeal were null and void as to the representatives of the deceased defendant.

2. If a party to an action die after the rendition of judgment, and before filing and serving notice of appeal, the authority of the deceased's attorney to act terminates, and any subsequent action of the attorney, before substitution, will not bind the representatives of the deceased, or any other party in interest.

3. Any party to an action, whether plaintiff or defendant, may appeal; but the notice of appeal must be served on all parties who would be affected by any order of the appellate court, whether said parties be plaintiffs or defendants or intervenors.1

(Syllabus by the Court.)

Appeals from district court, Alturas county.

Kingsbury & McGowan, for appellants. V. S. Anderson, for respondents.

SWEET, J. These are appeals from the second district. It is unnecessary to make a

statement of the facts involved in the case. It is here presented on a motion by the respondents to dismiss the appeals, and a review of the proceedings in connection therewith will enable us to dispose of the issue at bar.

On the 9th day of October, 1889, E. C. Coffin, R. W. Berry, J. M. Burkett, and W. H. Redway, doing business under the firm name of Coffin & Co., obtained a joint and several judgment against A. P. Turner, T. J. Edgington, W. H. Nye, V. S. Anderson, and J. S. Lewis for the sum of $933.35, with interest. On the 11th day of October, 1889, defendants filed and served their notice of appeal. Defendants appeal from the judgment, as well as from the order overruling

1 See, as to adverse parties, Fox v. West, 1 Idaho, 782; Jones v. Quantrell, 9 Pac. Rep. 418.

the motion for a new trial. The appeals were perfected, and the cause was regularly called for hearing in this court. The respondents submit two motions; one of them being a motion to dismiss both appeals. The other asks for an order of this court affirming the judgment of the court below as against appellants T. J. Edgington and J. S. Lewis. The motions were not presented in this order; but, for reasons that will appear, we consider the second motion first. The second motion is based upon an affidavit made by R. W. Berry, one of the plaintiffs, in which he sets forth the fact that after the entry of the judgment in the court below, "and before the notice of appeal herein was filed or served, and before any of the proceedings on the said appeals were had or taken," defendant Lewis died. The facts set forth in the affidavit are admitted. The affidavit of Berry was filed in this court before the cause was called for argument. This was the proper time to direct the attention of the court to the fact, and the manner adopted was approved in Judson v. Love, 35 Cal. 467. It further appears from the transcript, as well as from the admissions of counsel, that no substitution of the personal representatives of the deceased defendant was had in the lower court prior to the proceedings had on appeal, and that the attorney for Lewis acted in behalf of the latter's representatives, in said proceedings, without authority.

The question presented is as follows: Has this court jurisdiction to hear and determine this appeal, in view of the fact that all of the proceedings taken and had on the appeal were subsequent to the death of said defendant Lewis? We think not. In the case of Sheldon v. Dalton, 57 Cal. 20, the court say: "There were two plaintiffs in this case, one of whom died before this appeal was taken. There was no suggestion of the death, and no substitution of the personal representative of the deceased plaintiff. It is conceded that the appeal was prematurely taken, and the motion to dismiss is granted." In the case of Judson v. Love, 35 Cal. 466, the same Judge SAWYER, question was involved. speaking for the court, uses the following language: "A motion is made to dismiss the appeal as to the defendant Love, based— Firstly, upon exceptions to the transcript; and, secondly, upon affidavits filed showing that defendant Love died on the 15th of March, 1866, after the rendition of the verdict in the court below, and before any notice of intention to move for a new trial was given, on the ground that all subsequent proceedings, and motion for new trial, and the attempt to appeal, are void and ineffectual for any purpose as to said defendant Love and his successors in interest, for want of any proper party to the suit, or of any person upmade." Again, the court say: "It is clear on whom a valid service of papers could be that all these proceedings, except the entry of judgment on the verdict before rendered, had since the death of defendant Harlow S.

Love, on the 15th day of March, 1866, are irregular and void as to him, and his successors in interest. There was from that time forth no party before the court as to the interest of Love in the matter in controversy, and no one authorized to represent it. The power of attorney necessarily ceased with the death of the principal. No further proceedings could be had without bringing in the representatives of Love. The practice act authorizes a judgment to be entered upon a verdict when a party dies after verdict and before judgment, *.* ** but this is as far as it goes. Warren v. Eddy, 13 Abb. Pr., 30, is in point. Notice of argument had been served on the attorney of defendant after the death of the latter. The court say: 'At the time of the service of the notice, J. W. Culver could not act for a dead man, and he had no authority to act for or represent the estate. The order of the general term for affirmance by default, founded on such notice, was therefore irregular, inasmuch as it was made without notice to any one representing the estate of Daniel F. Eddy."" Again, the court say: "His former attorney could not give a notice of motion for new trial or of appeal that would be effectual, for he had ceased to have any authority in the matter. If he has no authority to give such notice, he has none to receive one, or act upon it, in the further stages of the proceedings, when it is received. He has become a stranger to the proceedings." It is unnecessary to quote authorities further upon this point. The principle is well known and thoroughly established. It is evident, therefore, that no proceedings can be had in this court affecting the interests of the representatives of the deceased defendant.

The next question is, could an appeal be taken by the defendants in this case before a substitution was made? It would seem to be impossible. The judgment rendered against defendants was joint and several in its character. No decision of this court can be rendered affecting one of the defendants without affecting all. This fact makes them adverse parties, within the statute. It may be worth while to define the meaning of "adverse party," as contemplated by law. In Senter v. De Bernal, 38 Cal. 640, the court say: "The question is as to the meaning of the words adverse party,' as here used; and as to that we think there can be no rational doubt. Every party whose interest in the subject-matter of the appeal is adverse to, or will be affected by, the reversal or modification of the judgment or order from which the appeal has been taken, is, we think, an adverse party,' within the meaning of these provisions of the Code, irrespective of the question whether he appears upon the face of the record in the attitude of plaintiff or defendant or intervenor. Such was declared to be the meaning of this language as used in the statutes and rules of the court of chancery of New York prior to v.23p.no.1--6

the adoption of the Code in that state." Our statute allows an appeal to any and every person who may feel aggrieved; but it requires of the appellant that he shall serve a notice of his appeal upon all parties who may be affected by any decision the appellate court may render affecting the interests of the parties. This cause clearly comes within the rule, as any decision affecting the interests of the representatives of Lewis must certainly affect the other defendants to the action. In the case of Thompson v. Ellsworth, 1 Barb. Ch. 627, after stating that ́ any person may appeal, whether the judgment against him be joint or several, the court say that he is required to notify all other parties who are interested in opposing the relief which he seeks by his appeal, if they have formerly appeared in the action in the court below, or his appeal, as to those not served, will prove ineffectual; and also as to those served, if the relief sought is of such a character that it cannot be granted as to the latter without being granted as to the former, also.

It is further urged by counsel for respondents that this appeal should be dismissed for the reason that the undertaking was served prior to the notice of appeal. It is unnecessary to go into the merits of this question, inasmuch as the appeal must be dismissed for the reasons already stated.

But appellant asks that, in the event of an order of dismissal, the appeal be dismissed without prejudice. We do see any reason why the representatives of defendant Lewis, in whose interest the appeal is taken, cannot appeal to-day, if they so desire. Each and every step taken in the proceedings had on appeal is utterly void. The representatives of the deceased defendant are not bound by them. In short, no appeal has been taken. Therefore the rights of the representatives of Lewis cannot be prejudiced. However, section 4823 of the Revised Statutes provides that "the dismissal of an appeal is in effect an affirmance of the judgment or order appealed from, unless the dismissal is expressly made without prejudice to another appeal." The court may, unquestionably, order the dismissal of an appeal without prejudice; and perhaps it is always safer to do so, when the facts justify it.

The motion submitted by respondents asking that the judgment be affirmed as against Lewis and Edgington is practically disposed of by the authorities cited. If this court is without jurisdiction of the defendants, it certainly cannot make an order that would be binding upon them; and that no such jurisdiction has been acquired is evident. The motion, therefore, to aflirm the judgment as against Lewis and Edgington is overruled, and the motion to dismiss the appeal as to all the defendants is granted, without prejudice to another appeal.

BEATTY, C. J., and BERRY, J., concur.

(2 Idaho [Hasb.] 640)

TERRITORY v. BOWEN. (Supreme Court of Idaho. Feb. 12, 1890.) DISORDERLY HOUSE-EVIDENCE-GENERAL REPU

TATION.

To establish the fact that a house is kept for the purpose of prostitution, evidence of its general reputation as such is competent.

(Syllabus by the Court.)

Appeal from district court, Ada county; H. W. WEIR, Judge.

D. P. B. Pride and T. D. Cahalan, for appellant. R. Z. Johnson, Atty. Gen., for the Territory.

BEATTY, C. J. The indictment in this cause charges that the appellant "did unlawfully keep a house for the purpose of prostitution," upon the trial of which she was found guilty of the charge; and thereupon the court rendered judgment against her of imprisonment in the county jail of Ada county for the period of four months, and that she be fined in the sum of $150. From such judgment she has prosecuted her appeal to this court, and now, without further contest here, she represents that she suffered imprisonment under such judgment for the period of three weeks before being released on bonds; that she has discontinued the offense of which she was charged, and prays the court for a modification of the judgment against her. The attorney general, representing the territory, not disputing the statement made by appellant, consents to a modification of the judgment, but claims that the law as given by the trial court should be affirmed.

The section (6842) of our statutes upon which the indictment is based provides that "every person who keeps any disorderly house, or any house for the purpose of assignation or prostitution, or any house of public resort, by which the peace, comfort, or decency of the immediate neighborhood is disturbed, or who keeps any inn in a disorderly manner, is guilty of a misdemeanor." Rev. St. Under this indictment and the statute two questions are involved: Was the house referred to in the proceedings kept for the purpose of prostitution? and did the appellant keep it?

The first question is disposed of by establishing the character of the house. To do this it is not incumbent on the prosecution to prove particular, or any, acts of prostitution committed in the house. This, in the nature of things, would be impracticable, and generally impossible. Such acts are veiled from the public eye, and are known only to the participators therein, whose interest it is to carefully conceal them. Whatever difference of opinion may have existed on this subject, it is now settled by the weight of authority that in actions of this nature evidence of the general reputation of the house is competent and admissible to establish its character; and so we hold. People v. Buchanan, 1 Idaho, 688; Sara v. State, (Tex.) 3 S. W. Rep. 339; State v. Smith,

(Minn.) 12 N. W. Rep. 524; Drake v. State, (Neb.) 17 N. W. Rep. 117; State v. Mack, (La.) 6 South. Rep. 808; Graeter v. State, (Ind.) 4 N. E. Rep. 461; State v. Brunell, 29 Wis. 435.

There was evidence to the satisfaction. of the jury that the house was kept for the purpose of prostitution, and that the appellant was its keeper, which justifies the judgment, but, in consideration of the facts above stated, we direct that the trial court so modify its judgment that the sentence of imprisonment be remitted; but in all other respects the judgment is affirmed.

(2 Idaho [Hasb.] 636)

MURPHY v. BARTSCH.

(Supreme Court of Idaho. Feb. 12, 1890.) PLEDGE-NEGLIGENCE OF PLEDGEE-BURDEN OF PROOF.

1. When a party takes any property as a pledge for the security of a debt, which through his gross neglect is lost, he must bear the loss, and he must exercise ordinary care and diligence in all

cases.

2. When there is no contract as to the disposition to be made of the pledge, and the pledgeor claims it is lost by neglect, he must show the neglect, and that damage resulted to him therefrom. (Syllabus by the Court.)

Appeal from district court, second district. F. A. Montardon, for appellant. Kingsbury & McGowan, for respondent.

In

BEATTY, C. J. On October 18, 1886, appellant delivered his promissory note to respondent for the sum of $500, due the next day, and, as collateral security for its payment, transferred a demand he held against one Shaw, payable on the 1st day of November, 1886. At this latter date, Shaw was solvent, but by April following became insolvent; just when does not appear. August, 1887, this action was commenced for the recovery of the $500 note, to which appellant interposed the defense that respondent had neglected to collect the claim against Shaw, which by the latter's subsequent insolvency became wholly lost to appellant. Judgment followed for respondent, from which defendant appeals here, and he now claims the demand against Shaw was a bill of exchange, of the dishonor of which he is entitled to notice, according to the law merchant; also that defendant's failure to colect the same must be held such negligence as will charge him with its loss. The record does not inform us clearly of the nature of this claim against Shaw. Appellant, in his answer, says it was a "bill of items" for goods sold to Shaw; that Shaw admitted the same was correct, indorsed his acceptance thereon, and appellant then assigned it to respondent. The findings refer to it as an order drawn by appellant on Shaw, payable to respondent; also as a "demand" against Shaw. Appellant has not shown it was a bill of exchange, or even a chose in action, negotiable in form. It was, however, an evidence of a debt admitted by Shaw to be due from him