on the question of probable cause, for, like the proceeding before a committing magistrate, it is not a trial. There is no judgment; it is a mere inquiry." Walton v. Gatlin, 60 N. C. 310, 312.

no probable cause to hold the defendant for | view by either of those writs, when it turns trial. And under this statute, and in the light of that decision, it must be held that the hearing upon the writ of habeas corpus was a preliminary examination. The order discharging the defendant was not a bar to another preliminary examination for the same offense or further prosecution therefor. State v. Jones, 16 Kan. 608.

In Cook v. Wyatt, 60 Kan. 535, 57 Pac. 130, it was held that a sheriff had no right to appeal to this court from an order discharging a person committed to his custody by a justice of the peace for contempt. Whether the state might appeal was not decided. In Bleakley v. Smart, 74 Kan. 476, 87 Pac. 76, the authority of this court to review a judgment of a district court awarding the custody of a child was upheld; but the distinction between an action to determine the custody of a child and the ordinary use of the writ of habeas corpus to release from unlawful imprisonment was pointed out, and the question whether an appeal would lie in the last-named class of cases was not deterNeither of the two foregoing cases was like the one now under consideration. The hearing in the district court in this case was only an inquiry as to the existence of probable cause to hold the prisoner for trial -a mere preliminary examination-and the result only determined that upon the evidence then produced probable cause was not shown.

mined.

Gen. St. 1901, § 5492. The order discharging the petitioner was not a "judgment," or "final order," or "order involving the merits," as these terms are used in the Civil Code. Gen. St. 1901, § 5019.

Speaking of the functions of a committing magistrate and the power to review an order discharging a prisoner for want of probable cause, it was said by the Supreme Court of North Carolina: "The object of a commitment is to secure the attendance of the party at the trial, and it is the duty of the committing magistrate to make an examination, inquire into the circumstances, and

We conclude that the state has no right to have a review in this court of an order of the district court discharging a prisoner for want of probable cause to hold him for trial, where such order is made in habeas corpus proceedings taken as an appeal from the commitment of an examining magistrate. The appeal is dismissed. All the Justices concur.

STATE V. LA BORE.

Nov. 6, 1909.) 1. CRIMINAL LAW (§ 1043*)-APPEAL-RESERVATION OF GROUNDS-SCOPE OF OBJECTION. Though the information was objectionable in form, because charging the offense in general terms, yet the motion to quash having merely such ground of objection was waived by defendset up the usual grounds, in general terms, ant, when asked by the court to point out the defects, declining to do so, saying the motion was formal, and that he knew of no particular defect.

(Supreme Court of Kansas.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2654, 2655; Dec. Dig. § 1043.*]

2. CRIMINAL LAW (§ 915*)-NEW TRIALGROUNDS-OBJECTION TO INFORMATION.

to quash the informatica, waived objection to its charge being general, could not question it on that ground by motion for new trial.

Defendant, having by his action, on motion

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2152-2158; Dec. Dig. § 915.*]

3. CRIMINAL LAW (§ 1216*)-PUNISHMENT. three months from February 27th expires May The sentence to confinement in jail for 27th, and so does not exceed the maximum of 90 days, authorized by Gen. St. 1901, § 2457, for violation of the prohibition law.

Law, Cent. Dig. §§ 3310-3319; Dec. Dig. § [Ed. Note.-For other cases, see Criminal 1216.*]

Appeal from District Court, Decatur Coun

ty; W. H. Pratt, Judge.

L. W. La Bore was convicted of violation

of the prohibition law, and appeals. Af

firmed.

J. F. Peters, for appellant. F. S. Jackson, Atty. Gen., and H. O. Caster, for the State.

to discharge the person arrested. or remand him, or take security for his appearance, according to the nature of the offense and the degree of proof. This proceeding is not the subject of review by writ of error or certiorari, for the reason that there is no trial, and no judgment, but a mere inquiry, to see whether the person accused ought to be tried; indeed, when the law is duly administered, the trial will take place, before a PER CURIAM. It may be conceded that writ of error or certiorari could be disposed the information was defective in form beof in the course of the court. The courts, cause it charged the offense in general terms, however, exercise a supervising jurisdiction and if the attention of the court had been over the action of the committing magis- called to this the state would doubtless have trate, by means of the writ of habeas corpus, been required to make the charge more defiand inquire into the legality of the commit- nite. The motion to quash set up the usual ment and the question of probable cause. grounds in general terms. When asked by This proceeding is in lieu of a writ of error the court to point out the defects in the inor certiorari, and is not the subject of re- formation, counsel for appellant declined to

do so, saying that the motion was formal, |4. PLEADING (§ 237*)-AMENDMENT OF-DISand that he knew of no particular defect. CRETION OF COURT. By declining to enlighten the court in respect of his contentions, he must be held to have waived them. State v. Everett, 62 Kan. 275, 62 Pac. 657. And for the same And for the same reason he cannot be permitted to question the sufficiency of the information by a motion for a new trial. State v. Ratner, 44 Kan. 429, 24 Pac. 953.

plaintiffs had been discharged and paid, as alleged in the plaintiffs' complaint. The action, in our opinion, is a statutory action brought under and authorized by the provisions of section 4928, Rev. Codes, as follows: "An action may be brought by one person against another, for the purpose of determining an adverse claim, which the latter makes against the former, for money or property upon an alleged obligation." It will be observed from the provisions of this section that it is intended to provide a remedy by which one person can require another to come into court for the purpose of having determined an adverse claim which the latter may claim to hold against the former, for money or property, upon an alleged obligation. It is not an action to require the defendant to bring suit upon his pretended claim or obligation, but is purely a statutory action, in which the validity of the adverse claim of the defendant for money or property upon an alleged obligation may be adjudicated and determined. In such action, to entitle the plaintiff to recover, he must prove the allegations of his complaint, and in this case that the notes have been paid, or that the consideration has failed, and by reason thereof the notes have become void and are not valid claims against the maker. This statute applies to an action brought to cancel a promissory note, where it is alleged that the same has been paid, or that the consideration therefor has failed. Lewis v. Tobias, 10 Cal. 578; Taylor v. Ford, 92 Cal. 419, 28 Pac. 441. The purpose of this statute is to provide a speedy and adequate remedy for the purpose of having adverse or asserted claims against one adjudicated and determined. The action is one at law, and not an equitable action, and the burden of proof and the right to open and close remains with the plaintiff, as in other ordinary actions at law. County of Ada v. Bullen Bridge Co., 5 Idaho, 188, 47 Pac. 818, 36 L. R. A. 367, 95 Am. St. Rep. 180; King v. Hall & Huggins, 5 Cal. 83; Taylor v. Ford, 92 Cal. 419, 28 Pac. 441; Hoffman v. Kirby, 136 Cal. 26, 68 Pac. 321. The court was clearly in error in taking away from the plaintiffs the right to open and close their case.

by reason of the said agreement the plaintiffs | notes held by the defendant against the herein on, to wit, the 4th day of December, 1900, did pay the sum of $50, and on the 7th day of May, 1901, did pay the sum of $200. That on, to wit, the day of 190, the plaintiffs herein returned to the defendant corporation herein the said machine, and the defendant received the same in accordance with the terms of the contract." The defendant in its answer denies that said notes have been paid, and denies that it warranted the machine, or that it was agreed that if it did not do good work the plaintiffs might return the machine, and that the defendant would return the notes and the payments made on said notes, or that the defendant by reason of the agreement paid the plaintiffs the sums named in the complaint, and then pleads the contract of warranty, which it is claimed was given to the plaintiffs. These allegations, it seems to us, impose upon plaintiffs the burden of proof to the effect that the notes were paid and discharged in the manner alleged in the complaint, and puts in issue the contract alleged in the complaint with reference to the return of the money paid upon said notes. In this state of the pleadings, it was clearly the right of the plaintiff to have the opening and the closing. The burden was upon the plaintiff, under this issue, to prove the allegations of the complaint. Section 4383, Rev. Codes, provides: "When the jury has been sworn, the trial must proceed in the following order unless the judge for special reasons otherwise directs: (1) The plaintiff, after stating the issue and his case, must produce the evidence on his part. (2) The defendant may then open his defense and offer his evidence in support thereof." Then follows the provision with reference to rebutting evidence and the argument of counsel. Under this statute it is the right of the plaintiff in all cases to have the opening and the close, unless there be some peculiar fact or reason why this right should be denied the plaintiff, and upon such reason the judge directs such procedure. There does not appear under the issues of this case any reason why the plaintiffs should be denied this statutory right. The complaint contained affirmative allegations which were denied by the answer, and which it was incumbent upon the plaintiffs to prove in order to re

cover.

There seems to have been some doubt in the mind of the court, as well as counsel, as to the nature and character of this action. The court seems to have been of the opinion that the action was one brought for the purpose of compelling the defendant to bring suit upon promissory notes which it was alleged the defendant held against the plaintiffs as makers. An examination of the pleadings, however, discloses the fact that the action is brought for the purpose of requiring the defendant to come into court and have determined the question as to whether or not

Objection was also made, and an exception taken, to the striking out of certain evidence offered by the plaintiffs, and the refusal of the court to admit certain other evidence tendered by the plaintiffs. A sufficient answer to these questions is to call attention to what this court said with reference to the evidence in this case in the former opinion, as follows: "In the view we take of the case, plaintiffs should be allowed to submit to the jury any competent evidence they may have tending to establish the fact that notice was waived, and also the fact, if it exists, that it was impossible for them to use or test the machinery for any given length of time after they received it at the

The record discloses that, while the witness A. H. Averill was upon the witness stand, counsel for plaintiffs asked leave to amend their complaint by inserting therein the following allegation: "And that the said machine didn't do good work, nor was it fit for the purpose for which it was sold." The court overruled the application to amend, stating: "I think after they have rested I could not allow the amendment. I don't believe I can allow the amendment." then the witness proceeds to testify in the case. It will thus be seen that the plaintiff had not rested, and that the offer to amend was while the evidence was being presented and while a witness was upon the wit

And

defendant's warehouse, and, if the plain- | for whatever weight they might conclude tiffs furnish prima facie evidence tending it deserved. A further discussion of the to establish these facts, then they would questions involved in this case seems be entitled to show the further transactions necessary, as this court in the former opinbetween them and the defendant's agents, ion dealt very fully with the facts of the and their promises and agreement with ref- case. Had the trial of this case proceeded erence to the repairs and work upon the in the manner prescribed by statute, many machinery in order to make it run, and the of the objections made to the relevance of exchange of machinery and the like in con- the testimony would have been avoided. nection therewith. Counsel for defendant objected to evidence of the acts and statements of the agents, on the ground that plaintiffs had not proven the authority of the agents to bind the company. Whatever the original authority of the agent may have been, it would seem clear that his acts were ratified and confirmed by the company subsequently furnishing the purchasers another machine through the agency and medium of this salesman. They appear to have taken the first machine back and delivered a second machine under the original contract, and this case arises over the delivery of the third, or Buck, machine; plaintiffs claiming that it was furnished in place of the second and to make good the original ness stand testifying. The amendment did contract. It is also argued by respondent that plaintiffs are estopped on the grounds that they continued to make payments on the notes given for the purchase price of the machinery. When all the evidence in the case is heard, this objection may or may not be well taken. If payments were made from time to time under the belief and with the promise and agreement that the machinery would be put in running order and made to do the work for which it was purchased, and such agreement was in fact never complied with, and no further waiyer is shown by the purchasers, it would not amount to an estoppel against them; otherwise it might do so. Evidence of their dealings will determine the question.”

In addition to what is here said, the court should have permitted the plaintiffs to show, and the jury should have been allowed to consider, all evidence with reference to the contract alleged to have been made between the plaintiffs and the defendant, the manner in which each of the machines operated, the exchange for other machines, their manner of operation, the final surrender of the last machine, the payments made, and the conversation and correspondence between the parties and those acting for or on behalf of the respondent. Whether the evidence thus offered proves the contention maintained by the plaintiff was a matter entirely for the jury; but these were matters put in issue by the pleadings, and this evidence should have been received and considered by the jury

not present any new issue. The record discloses that no objection was made by counsel for respondent to this proposed amendment. The disallowance of such proposed amendment seems to have been entirely based upon the court's statement that the plaintiffs had rested; but the record does not disclose the facts to be as thus stated. While it is true, in allowing amendments to pleadings, the court is clothed with very great discretionary power, yet where it appears that the amendment offered is made for the sole purpose of conforming to the proof, and does not present any new cause of action or issue, and the opposing party has not been misled or deprived of introducing any evidence which he might desire to offer in consequence of the amendment, we think the amendment should be allowed. Section 4229, Rev. Codes; Palmer v. Utah, etc., Ry. Co., 2 Idaho (Hasb.) 382, 16 Pac. 553; Murphy v. Russell, 8 Idaho, 133, 67 Pac. 421; Parke v. Boulware, 9 Idaho, 225, 73 Pac. 19; Kroetch v. Empire Mill Co., 9 Idaho, 277, 74 Pac. 868; Kindall v. Lincoln Hardware & I. Co., 10 Idaho, 13, 76 Pac. 992; Small v. Harrington, 10 Idaho, 499, 79 Pac. 461; Rankin v. Caldwell, 15 Idaho, 625, 99 Pac. 108; Havlick v. Davidson, 15 Idaho, 787, 100 Pac. 91; Finnegan v. Ulmer (Nev.)

104 Pac. 17.

The judgment is reversed, and a new trial ordered. Costs awarded to appellants.

SULLIVAN, C. J., and AILSHIE, J., con

cur.

ency of the cause, and for a permanent in

GASKILL v. WASHINGTON WATER POW- junction thereafter.
ER CO.
(Supreme Court of Idaho. Oct. 29, 1909.
Oct. 29, 1909.
Petition for Rehearing, Nov. 24, 1909.)

On

1. APPEAL AND ERROR (§ 882*)-INVITED ERROR-RIGHT TO COMPLAIN OF.

Where an action is brought to recover damages for loss of hay crop caused by flooding plaintiff's land, and an injunction prayed for to prevent a repetition of such flooding, and the defendant by its answer sets up several separate defenses, and when the case is called for trial moves to have the court refer the cause to a master in chancery to determine the measure of damages that plaintiff would be entitled to, as if the defendant were condemning the right to flood and overflow the plaintiff's land permanently and perpetually, and such reference is made over the objection of the plaintiff, and the cause is tried by the referee, and his finding and decision reported to the court, and the court enters judgment thereon, and in accordance therewith, on an appeal therefrom the defendant will not be permitted to take advantage of the error made by the court in referring the case to a referee, for the reason that

it invited the court to make the error.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3591-3610; Dec. Dig. 8 882.*]

2. APPEAL AND ERROR (§ 882*)-INVITED ERROR-RIGHT TO COMPLAIN OF.

The parties to an action must act consistently, and they will not be heard on appeal to complain of errors made by the trial court which they themselves invited and procured the

court to make.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3591-3610; Dec. Dig. § 882.*1

3. APPEAL AND ERROR (§ 882*)-INVITED ER

ROR.

Held, that the defendant invited the error made by the court, and thereby changed the theory upon which the action was brought and turned it into a condemnation proceeding, and thereby waived the special defenses pleaded in its answer.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3591-3610; Dec. Dig. § 882.*]

4. SUFFICIENCY OF EVIDENCE.

It is alleged in the complaint: That the defendant is a corporation organized and existing under and by virtue of the laws of the state of Washington. That in 1899 the plaintiff settled upon a part of the public domain under the homestead laws of the United States, and thereafter procured a patent to said land from the United States. That said land is situated adjacent to the Cœur d'Alene river, which river empties into the Coeur d'Alene Lake. That defendant, prior to the month of July, 1907, constructed a dam across Spokane river at Post Falls in Kootenai county, which river is the outlet of Coeur d'Alene Lake. That said dam was so constructed as to control and obstruct the natural flow of the waters from said lake. That in the month of July, 1907, the waters of said lake were so obstructed by means of said dam as to cause the water in said lake to rise and flow backward up the Cœur d'Alene river and overflow about 40 acres of the meadow land of the plaintiff, upon which land a crop of hay had grown and matured, thereby totally destroying said crop of hay to the injury and damage of the plaintiff in the sum of $480. That said dam is of a permanent character and so arranged as to cause the water of Coeur d'Alene Lake and Cœur d'Alene river to rise to such an extent as to overflow said 40-acre tract of land. That, unless said defendant is restrained and enjoined by the court, it will obstruct the natural drainage of said lake during the following years so as to cause said land of plaintiff to be annually overflowed, and thus destroy the growing crops of plaintiff thereon.

An answer was filed by the defendant,

denying the most of the material allegations of the complaint, and setting up as an af

firmative defense: That it had constructed a new dam in the Spokane river at Post

The evidence held sufficient to sustain the Falls with a mechanical contrivance known judgment.

(Syllabus by the Court.) Appeal from District Court, Kootenai County; W. W. Woods, Judge.

Action by Walter S. Gaskill against the Washington Water Power Company. From a judgment for plaintiff and an order deny ing a new trial, defendant appeals. firmed.

Af

Gray & Knight, Wm. K. Shissler, George Turner, and H. M. Stephens, for appellant. A. G. Kerns and A. T. Ryan, for respondent.

as a "bear trap," whereby in periods of low water the crest of the dam was raised

feet above its ordinary level and made to slightly retard the flow of the waters of Lake Cœur d'Alene and of the river;

that it owns the land at Post Falls, and it is engaged in generating electrical power by means of said dam, bear trap, and falls, and selling such electrical power to certain inhabitants of Idaho, as well as to the city of Spokane and other parties; that it has made certain contracts to furnish such power, and without using said bear trap it cannot comply with said contract; that the bear trap, SULLIVAN, C. J. This action was brought when raised, will not raise the water of the to recover the value of a crop of hay grown river and lake to high-water mark, or to a on the lands of the plaintiff, which crop point which will overflow or in any manner of hay, it is alleged, of the value of $480, was disturb the lands of plaintiff; that it comdestroyed by the defendant's overflowing the menced the construction of said dam in 1904 land of the plaintiff, and to obtain a tem- and finished the same in 1907; that someporary restraining order during the pend-time during the year 1907 the respondent