defendants did not have an opportunity to inspect the machine until after the purchase was made. From these allegations it is apparent that the pleading is not open to the criticism that it fails to disclose that defendants had a right to rely upon the representations made by Petrie.

(c) It is alleged that the representations were not true, and that Petrie knew that they were not true when he made them.

[9] (d, e) While it is not alleged directly that defendants believed the representations to be true, it is alleged that they relied upon them, and this is sufficient. Spencer v. Hersam, 31 Mont. 120, 77 Pac. 418.

"In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties."

While the statute does not permit this court to read into a pleading a fact necessary to make it state a cause of action, it does require that whatever is necessarily implied by a statement directly made, or is reasonably to be inferred therefrom, is to be treated as averred directly. Allen v. Bear Creek Coal Co., 43 Mont. 269, 115 Pac. 673. Under this rule we think the answer meets the requirements prescribed in Butte Hardware Co. v. Knox, above.

[10] (f) It is alleged in the answer that defendants required the machine for a particu[13] 3. In their brief counsel for plaintiff lar purpose; that Petrie knew the purpose assign as error the giving of instructions 9, for which it was intended, and with that 10, 11, and 12; but the instructions are not knowledge he made the representations for set out as required by subdivision b, section the sole purpose of inducing the defendants 3, rule 10 of the rules of this court (202 Pac. to purchase the machine; that defendants x), and since the alleged errors are not ardid not have an opportunity to examine the gued in the brief, they are deemed to be machine in advance of the purchase; that waived. Anderson v. Northern Pac. Ry. Co., they relied upon Petrie's knowledge, skill, 34 Mont. 181, 85 Pac. 884. and experience, and upon the representations made by him in purchasing the machine, and that the machine was altogether worthless for the purpose for which it was purchased. This answer reaches the limit to which any pleading may go and still be sustained; but we think it is a necessary inference from the foregoing allegations that, judging by the ordinary experience of mankind, the defend

ants would not in all reasonable probability have purchased the machine but for the representations made by Petrie, and this is deemed to be a fair test as to whether they were induced to make the purchase by reason of the representations. 2 Pomeroy's Equity Jurisprudence, § 890.

[11] (g) If defendants made out a paper case of actual fraud, their answer states a counterclaim for the amount paid by them for freight upon the machine.

[12] Section 9164, Revised Codes 1921, prðvides:

4. It would not serve any useful purpose to review the evidence at length. There is a sharp conflict upon most of the important questions presented, but that conflict was resolved in favor of defendants. In passing we may observe that it is fairly apparent from the record that defendants' case was aided materially by the testimony of Petrie, a witness for the plaintiff. There are some facts and circumstances disclosed by the defendants'

case which, presented in cold print, it would seem ought to have influenced the jury to reach a different verdict, but they are not of such character that this court can say that the verdict is not supported by a preponderance of the evidence. The judgment is affirmed. Affirmed.

CALLAWAY, C. J., and COOPER, GALEN, and STARK, JJ., concur.

(220 P.)

river to Agency creek, and to supply interDANIELS et al. v. ADAIR, Judge of Sixth vening users. Plaintiffs seek by delivering a

Judicial Dist. (No. 4234.)

(Supreme Court of Idaho. Nov. 1, 1923.) I. Waters and water courses

152(11)-In• junction to compel exchange of decreed waters held error.

Under the facts of this case, held, that the trial court exceeded its jurisdiction by issuing a temporary injunction to compel exchange of

decreed waters of one stream for undecreed waters of another.

2. Prohibition 10(1)—Writ lies to restrain proceedings without jurisdiction.

A writ of prohibition will issue to enjoin the judge of the trial court from proceeding further, where it clearly appears that said court is proceeding wholly without and beyond its jurisdiction.

3. Waters and water courses 152(11)-Watermaster must distribute waters in compli

ance with decree.

A watermaster upon a stream, the waters of which have been decreed, must distribute the waters of said stream in compliance with such decree, and, in the absence of a modification 'thereof, cannot be compelled by mandatory injunction to do otherwise. 4. Waters and water courses

152(5)-Complaint insufficient to warrant injunction. Complaint examined, and found insufficient to warrant issuance of temporary injunction.

Original proceedings for writ of prohibition by William Daniels and others against Ralph W. Adair, Judge of Sixth Judicial District. Writ granted.

Burleigh & Glennon, of Salmon, for plaintiffs.

E. H. Casterlin, of Salmon, and Whitcomb, Cowen & Clark, of Blackfoot, for defendant.

BUDGE, C. J. This is an original proceeding brought to secure a permanent writ of prohibition enjoining the defendant, as judge of the district court of the Sixth judicial district from proceeding further in the matter of punishing petitioners as for contempt for their failure to comply with a certain injunctive order relating to the distribution of the waters of Agency creek in Lemhi county.

From the record it appears that on August 15, 1923, Margaret Mahaffey and the Pioneer Bank & Trust Company, a corporation, filed a complaint in the district court of the Sixth judicial district in and for Lemhi county, in which they sought, among other things, to have awarded to them the right to the use of 175 inches of the waters of Agency creek for the irrigation of their lands, which they alleged to be subject to irrigation from that stream. A ditch known as the Lemhi river ditch was constructed in 1914 for the purpose of delivering water from the Lemhi

certain amount of water from the Lemhi river into the Lemhi ditch to have an equal amount of water delivered to them out of Agency creek in exchange therefor. The complaint alleges that the petitioners Fred B. Pattee and Joseph L. Pattee, subsequent to the construction of the Lemhi river ditch, changed their point of diversion from a point where that ditch empties into Agency creek to a point above it, thereby diverting the waters of Agency creek, and denying plaintiffs the right thereto. They also alleged that the petitioner Daniels, watermaster of Agency creek, has refused to deliver any of the waters of Agency creek to the plaintiffs, to their great and irreparable damage. From the record it further appears that the waters of Agency creek have been decreed; that the petitioners Pattees and others were awarded all of the waters of Agency creek by decree made and entered by the district court of the Sixth judicial district for Lemhi county on December 14, 1914, which decree is of recordin that county.

[2] Upon the filing of the complaint and on motion duly made Hon. George W. Edgington, judge of the Ninth judicial district, in the absence of the defendant judge, issued an injunction enjoining the petitioners from in any manner interfering with the plaintiff's right to the use and enjoyment of 175 inches of the flow of the waters of Agency creek, so long as said amount of water is being supplied to the waters of Agency creek from the Lemhi river through the Lemhi river ditch and requiring petitioner Daniels, watermaster, to deliver to the plaintiffs 175 inches of the waters of Agency creek, so long as that amount of water is being supplied to the waters of Agency creek through the Lemhi river ditch. On August 17, 1923, petitioners filed a notice and motion to dissolve the injunction, the motion being supported by affidavits and verified answer. All of the material allegations of the complaint were denied by the answer. By way of affirmative defense, petitioners alleged the ownership of a large tract of land which is irrigated from Agency creek, and that such water is necessary for the proper irrigation of their lands; that all of the waters diverted from the Lemhi river through the Lemhi river ditch are appropriated by the owners of said ditch, and that the capacity thereof is insufficient to carry water in excess of that necessary for the proper irrigation of the lands of the owners of the ditch; that they are the owners of an interest in the waters flowing in the Lemhi river ditch, and that their point of diversion of the waters of Agency creek was changed long prior to the construction of the ditch, and that for more than five years prior to the commencement

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of the action they had used the waters of decreed to them from Agency creek, and alAgency creek from their present point of so the determination of the date of the diversion to and upon their lands, and claim change of the point of diversion by petitiona right to continue such use, and deny the ers. right of plaintiffs to exchange Lemhi river water conducted through the Lemhi river ditch for the waters of Agency creek. The motion to dissolve the injunction was denied on August 22, 1923. On August 29, 1923, a motion for an order to show cause, supported by the affidavit of Margaret Mahaffey, was made to the court. An order was made by the court on August 30, 1923, directing petitioners to appear and show cause why they should not be punished as for contempt in failing to obey the order and writ of injunction theretofore issued. Whereupon this proceeding was resorted to for the purpose of enjoining further proceedings in the matter.

It is the contention of the petitioners that the defendant judge is acting in excess of the jurisdiction of the court, for the following reasons: (1) that the complaint, which forms the sole basis for the issuance of the injunction, does not state a cause of action; (2) that the complaint, even though stating a cause of action, does not set forth any grounds or show any reason for injunctive relief during the pendency of the action; (3) that the so-called injunction is a writ of mandate so far as the petitioner William Daniels is concerned, and directs him to perform acts in violation of his official duty as prescribed by law; (4) that the injunction attempts to restrain the petitioners Fred B. Pattee and Joseph L. Pattee from enjoying a vested right-the right to the use and enjoyment of which has been confirmed in them by a final decree of a competent court; (5) that by said injunction the petitioners Fred B. Pattee and Joseph L. Pattee are deprived of a property right without due process of law, and without just compensation, in violation of their rights as guaranteed by article 1, §§ 13, 14 of the Constitution of this state.

[1] It would seem to us that plaintiffs are attempting, by invoking the injunctive power of the trial court, to enforce an exchange of the waters of Lemhi river for the waters of Agency creek. It is admitted that the petitioners Pattees have a decreed right to the waters of Agency creek. To require them to surrender such property right and take in lieu thereof undecreed waters of Lemhi river would be in violation of their constitutional right to the possession and enjoyment of their property. The extent to which this court has gone in the matter of the exchange of water was announced in the case of Reno v. Richards, 32 Idaho, 1, 5, 178 Pac. 81, where it is said:

"It is not shown that there were any rights intervening between their point of diversion from Birch creek and the point where they caused the waters of Pass creek to empty into Birch creek. In the absence of detriment to other users of water from Birch creek, there is from Birch creek, at their point of diversion, of no doubt of their right to make a diversion. the amount of water which they caused to flow therein for the use of other appropriators farther down the stream."

It may be that under certain circumstances, where a clear case is made, an exchange of water may be brought about, but under no circumstances can it be done where the exchange would result to the detriment of prior users, or result in depriving such prior users of a property right. In the case of Berg v. Twin Falls Canal Co., 36 Idaho, 62, 213 Pac. 694, this court said:

"They could mix waters appropriated by them with those of respondent and any number of others, in a natural watercourse for a similar purpose. C. S. § 5560. But this practice is alout is the water appropriated." lowed upon the theory that the water taken

In the instant case plaintiffs do not seek relief upon this theory, but, on the contrary, seek to take decreed waters of petitioners Pattees, diverted from Agency creek above the point where the Lemhi river ditch empties into Agency creek, and compel petition. ers to accept undecreed Lemhi river water at a point below their point of diversion, just sc long as the plaintiffs deliver 175 inches of the waters of Lemhi river into Agency creek. Under the facts as admitted in the pleadings the power to bring about such an exchange would be beyond and in excess of the jurisdiction of the court.

We shall discuss only such of the contentions mentioned as we deem necessary to a final disposition of this proceeding. It is admitted in the complaint that the Pattees were awarded under the above-mentioned decree the right to the use of 270 inches of the waters of Agency creek; that they have put said waters to a beneficial use, and that the use of the same is necessary to the proper irrigation of their lands. The complaint also admits that the construction of the Lemhi river ditch by the plaintiffs and others in 1914, has, since that year, augmented the flow of the waters of Agency creek. From [3] In so far as the injunction affects the the pleadings it is clear that the controversy petitioner Daniels it is mandatory, and dibetween the plaintiffs and the petitioners rectly in violation of the decree whereby the Pattees involves the right of the plaintiffs waters of Agency creek are to be distributto require petitioners to accept the unde- ed. Daniels, as watermaster, is limited in creed waters of Lemhi river in lieu of waters the matter of the distribution of the waters

(220 P.)

[4] We are of the opinion that the complaint did not state facts sufficient to warrant the court in issuing the injunction, and also that the verified answer and affidavits of petitioners made a clear case warranting the dissolution of the injunction, and that the court erred in refusing to dissolve the same, and acted without and beyond its jurisdiction in citing the petitioners to appear and show cause.

of Agency creek by the decree, and must fol- | information contained 47 counts specifying low its provisions. instances in which appellant had charged and collected illegal fees for services rendered in his office and in which he had neglected to perform official duties pertaining to his office. The court sustained a demurrer to all of the counts except the first 35, all of which alleged the charging and collecting of illegal fees for services rendered in his office of probate judge. On the trial the court found all of the 35 charges sustained by the evidence and entered judgment removing appellant from the office of probate judge and required him to pay respondent the sum of $500, with the costs of the action.

From what has been said it follows that a permanent injunction should issue from this court enjoining further proceedings in this matter, and it is so ordered.

The appeal is from the judgment. Appellant complains that the evidence is insuffi

MCCARTHY, DUNN, WILLIAM A. LEE, cient to sustain the findings of the court and and WM. E. LEE, JJ., concur.

HUDSON V. BERTSCH, Probate Judge. (No. 3705.)

that the court erred in holding that the several sums collected were illegal fees.

There is no conflict in the evidence. It appears that the board of commissioners of Butte county entered into an agreement with appellant that he should discharge the duties of probation officer in that county and that (Supreme Court of Idaho. Oct. 31, 1923.) his actual and necessary expenses would be 1. Officers 66-Honest claim for expenses paid by, the county. Every item in the 35 incurred in official duties not a charge of Il-counts was for expenses incurred by him, legal fees constituting ground for removal. nearly all of them pursuant to this agreeAn honest claim for expenses actually in- ment. By mistake he appears to have incurred by an officer in the discharge of his offi- cluded in his expenses as probation officer a cial duties, even if such expenses are not a le- few items of expense incurred by him as progal charge against the county, cannot be made bate judge. Nowhere is there an item that a ground for removal of such officer for charg-can be brought within the expression "fees ing and collecting illegal fees for services rendered in his office.

2. Officers 66-"Fee" means charge for services.

The word "fee," as used in C. S. § 8684, means a charge for services.

for services rendered or to be rendered in his office." C. S. § 8684.

[2] It would seem that the meaning of the language quoted could hardly be made plainer; but, if anything more than the statutory language were required, this court has supplied it by saying that the word "fees" "means a charge for services." Collman v. Wanamaker, 27 Idaho, 342, 348, 149 Pac. 292; Appeal from District Court, Butte Coun- McRoberts v. Hoar, 28 Idaho, 163, 152 Pac. ty; F. J. Cowen, Judge.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Fee.]

Proceedings by M. F. Hudson against Gus Bertsch, Probate Judge of Butte County, for his removal under C. S. § 8684. Judgment for plaintiff, and defendant appeals. Reversed.

E. J. Dockery, of Boise, for appellant. Chase A. Clark and Solon B. Clark, both of Mackay, and W. J. Lamme, of Arco, for respondent.

1046.

[1] While it is clear that no case for removal of the officer has been made, the legality of the arrangement under which the duties of probation officer are being discharged in Butte county may well be questioned. This matter not being before us, however, we are not assuming to decide it.

The judgment is reversed, with costs to appellant.

BUDGE, C. J., and McCARTHY, WILLIAM A. LEE, and WM. E., LEE, JJ., con

DUNN, J. This action was brought by respondent to remove appellant from the office of probate judge of Butte county. The cur.

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110

DUNN, J. This action was brought by respondent to remove appellant from the office of sheriff of Butte county. The third count set forth that appellant had charged and collected an illegal fee of $12 for services claimed to have been rendered in his office, the first that appellant had neglected to perform an official duty pertaining to his office by failing to pay said fee into the county treasury, and the second that appellant had been guilty of neglect to perform an official duty by failing to file with the district clerk a sworn statement showing that such fee had been collected.

It is undisputed that the sum of money that is the basis of this action was collected by the sheriff from one Hudson as the actual expense incurred by him in making a trip from Arco to Howe and seizing something called a "multi-seller," which it is claimed was a gambling device, in Hudson's pool hall. For some reason not clearly shown in the record, it seems to have been decided that no prosecution should be started against Hudson, but that the matter should be terminated if he would pay the actual expenses of the sheriff's trip, which he did.

While it would have been the part of wisdom, if not of duty, for the sheriff to include this in his report of expenses incurred and paid by him as sheriff, it was in no sense a fee for services rendered in his office, and therefore is not ground for his removal from office.

What we have said as to the word "fee" in the case of Hudson v. Bertsch, 37 Idaho,

220 Pac. 109, applies to this case also. The irregular manner of handling public business disclosed in this case is not to be commended. A public record should be made of every cent of money received by a public officer in his official capacity, showing the

1. Sufficiency of evidence.

Evidence examined, and held sufficient to sustain judgment.

2. Appeal and error 1047(3)—Striking answers of witness to questions put by trial judge not reversible error where same testimony otherwise given.

Reversible error cannot be predicated on action of trial judge in striking answers of witness to questions put by him where substantially the same testimony was given in answer to questions of counsel. 9- Error cannot be 3. Appeal and error predicated on refusal to reopen case for additional evidence after close of trial..

Error cannot be predicated on refusal to reopen case for additional evidence after close of trial. Remedy is motion for a new trial. 4. New trial 108(1)—Not granted for newly discovered evidence unless different judgment would probably result.

A new trial will not be granted on ground of newly discovered evidence unless it appears reasonably probable that a different judgment would result.

5. New trial 102(5)—Reasonable diligence negatived where litigant jointly interested knew of newly discovered witness before trial.

Where one of two litigants, jointly interested, knew before the trial that a person alleged to be a newly discovered witness had knowledge of the transaction upon which the action is based, reasonable diligence is negatived.

Appeal from District Court, Bannock County; Robert M. Terrell, Judge.

Action by Will Caravelis and another against Tom Cacavas, to adjudge a deed a Judgment for defendant, and mortgage. plaintiffs appeal. Affirmed.

Roy L. Black and F. M. Bistline, both of Pocatello, for appellants.

Jones, Pomeroy & Jones, of Pocatello, for respondent.

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