Cal. 630; People v. King, 27 Cal. 507; People v. Davis, 47 Cal. 93; People v. Dodge, 30 Cal. 448; Indianapolis, etc., R. Co. v. Horst, 93 U. S. 395. We think the charge fairly states the law of the case, and that no essential feature of the defense was omitted. The appellant assigns as error the admission of certain papers, receipts, and documents of defendant's showing his financial circumstances, and his expenditures at the time he assumed such position as assayer, and immediately prior to and during the time of his holding said position. We think such evidence competent and relevant in a charge on embezzlement. 2 Bish. Crim. Proc. § 327; Boston & W. R. Corp. v. Dana, 1 Gray, 83.

In the printed brief the appellant states that said papers were of fered and received in bulk, and alleges the same as error. An inspection of the record shows that the objection to their admission was upon the ground of incompetency, and not to the manner of placing them in evidence. We think this objection should have been made at the trial, and cannot be considered for the first time on appeal. It is urged that the verdict is contrary to evidence. Under our criminal practice act this court cannot consider the weight of conflicting evidence. We may review errors of law in admitting evidence, and, in case of error, grant a new trial, but the question of fact, where there is any legal evidence, is for the jury. People v. Ah Hop, 1 Idaho, 698.

We find no error, and the judgment is affirmed.

HAYS, C. J., and BRODERICK, J., concurring.

(2 Idaho [Hasb.] 236)

WYATT v. WYATT.

Filed March 5, 1886.

1. HUSBAND ANd Wife-DivoRCE—ALIMONY, ORDER FOR.

The allowance of alimony to the wife, and counsel fees, pending an action of divorce, rests in the sound discretion of the trial court.1

2. SAME-APPEAL-ORDER FOR ALIMONY NOT APPEALABLE.

Under the laws of this territory no appeal lies to the supreme court from an order in an action of divorce for the payment of alimony pendente lite, and counsel fees. The parties must abide by the discretion of the court in this regard until a final judgment is rendered in the action. Appeal dismissed.1

B. HUSBAND AND WIFE-DIVORCE - ALIENATION OF PROPERTY RESTRAINING ORDER.

In an action of divorce, a restraining order to save the property pending the litigation may be reviewed on appeal to this court. Order herein examined and affirmed.

Appeal from Second judicial district, county of Ada.

Huston & Gray, for respondent.

Brumback & Lamb, for appellant.

1 See note at end of case.

BRODERICK, J. This is an appeal from an order of the district judge, at chambers, awarding to the plaintiff alimony for support pending her divorce suit, and for counsel fees. The first question presented is whether this court has jurisdiction in this class of cases. It is conceded that the court here possesses no power in divorce suits except such as is conferred by statute. Congress has provided that writs of error, bills of exceptions, and appeals shall be allowed in all cases from the final decisions of the district courts to the supreme court of the territory, under such regulations as may be prescribed by law. The legislature has provided, by section 642 of the Code, that an appeal may be taken from the district courts to the supreme court from a final judgment, and then the mode of appeal is prescribed. Can it be said that an order for alimony pendente lite is a final judgment within the meaning of the statute?

It is contended by counsel for the appellant that the order is in the nature of a final judgment, and appealable as such, and, in support of this argument, cite Sharon v. Sharon, 7 Pac. Rep. 456. From a careful examination of the Sharon Case, it appears that the decision was placed upon the following grounds: (1) That an action of divorce is in the nature of a case in equity; (2) that by the constitution of California the supreme court had appellate jurisdiction “in all cases in equity." The court say: "Appellate jurisdiction in other enumerated cases was and is conferred, but the jurisdiction of this court in an action of divorce, in our opinion, depends on its being, in this state at least, a case in equity.' The decision in this case being based on the terms of the constitution conferring upon the supreme court appellate jurisdiction in all cases in equity, it was further held that "wherever and whenever a superior court has jurisdiction to take any step or proceeding, or make any order in any case in equity, of that step, proceeding, or order the supreme court has appellate jurisdiction."

There is no provision, either in the organic act or statute of this territory, that corresponds to the constitutional provision of California; hence it does not seem to us that the Sharon Case is applicable to the case at bar. Our statute defining the appellate jurisdiction of this court (section 21, Code) reads: "Its appellate jurisdiction extends to a review of all cases removed to it, under such regulations as are or may be prescribed by law, from the final decisions of the district courts." It is said by Judge BoVIER that a "final judgment is one which puts an end to a suit." Certain it is that the order appealed from does not come within this definition. It is an incident to the suit. But it is said in some of the cases that such an order is in the nature of a final judgment. This is the most that has or can be said. That such an order may be said to be in the nature of a final judgment does not convince us that the legislature intended to make it appealable. And as this class of orders is not enumerated. among the interlocutory judgments and orders made appealable by

other provisions of the statute, it cannot be claimed that an appeal will lie in this case unless the order is appealable as a final judgment. Whether there should be an appeal in such cases is not for us to determine; but it seems to us that an appeal would, in many instances, defeat the object and purpose of the statute allowing temporary ali

mony.

Where a wife has good ground for divorce, but has no property in her own right, it is doubtful if she can bind herself personally to pay her counsel. Certainly she cannot bind her husband nor the community property. Since she can neither bind her husband nor the community property, unless she had means of her own, she would be powerless to assert and maintain her right to a divorce if the court could not interfere. From the very necessity of the case, therefore, the court should, on application, award her a reasonable allowance for her support, and a sufficient sum with which to employ counsel. The amount awarded should only go to the necessities of the case, considering all the circumstances and the ability of the husband to pay. In view of the necessity which so often arises, and the obligation of the husband to support the wife, the legislature has, in our judgment, seen proper to leave the matter of temporary alimony to the sound discretion of the trial courts, and by that discretion the parties must abide, in such cases, until a final judgment is rendered. If this has not been wisely done, the law-making power must supply the defect or omission. 1 Bish. Mar. & Div. § 71; Sparhawk v. Sparhawk, 120 Mass. 390; Chase v. Ingalls, 97 Mass. 524; Ex parte Perkins, 18 Cal. 60; 2 Bish. Mar. & Div. § 352; Cook v. Cook, 56 Wis. 203; S. C. 14 N. W. Rep. 33, 443; Bacon v. Bacon, 43 Wis. 197.

Our conclusions are that the supreme court has no jurisdiction in this case, except in so far as the order restrained the defendant from disposing of his property. From the restraining order an appeal is allowed. After an examination of the complaint, and the affidavite of the plaintiff and defendant used on the hearing when the order appealed from was made, we are satisfied that there was sufficient ground for granting the restraining order to preserve the property until the rights of the parties could be settled and determined by a decree.

Appeal dismissed, except as to the restraining order, and therein. affirmed.

HAYS, C. J., and Buck, J., concurring.

NOTE.

The court may decree to a wife suing for divorce her expenses and temporary alimony, whenever she shows her inability to bear the expenses of litigation and living without such aid. The amount of temporary alimony and expenses thus allowed is in the reasonable discretion of the court, and an order will not be disturbed as excessive unless clearly unjust. Rose v. Rose, (Mich.) 19 N. W. Rep. 195.

While an action for divorce is pending, the court may, in its discretion, require the

husband to pay any money necessary to enable a wife to prosecute or defend the action, and the action of the court will only be interfered with on appeal in cases of a clear abuse of its discretion. Cleghorn v. Cleghorn, (Cal.) 5 Pac. Rep. 516.

Courts will not compel a husband, in a divorce proceeding, to make an allowance to the wife for maintenance and counsel fees unless it is made to appear that she has no property of her own. There is no presumption of law that she has no property. An order for such allowance, where no such showing is made, will not sustain proceedings for the punishment of the husband, as for contempt in disobeying the same. Ross v. Ross, (Mich.) 10 N. W. Rep. 193.

In divorce proceedings, temporary alimony should not be denied complainant because of her possessing a small property of her own not derived from her husband. Merritt v. Merritt, (N. Y.) 1 N. E. Rep. 605.

In an action for divorce, brought by one claiming to be a wife, alimony pendente lite, and an allowance for expenses, will not be allowed, where marriage in fact is denied by answer, until the actual existence of the marital relation is proved or admitted. Brinkley v. Brinkley, 50 N. Y. 184.

The granting of temporary alimony and suit money to enable a wife to prosecute her appeal is not a matter of course in the supreme court; and when application is made, the court will look into the record so far as to determine whether the appeal is obviously without merit, and if it is, the motion will be denied. Injury and a meritorious cause of action must appear. Friend v. Friend, (Wis.) 27 N. W. Rep. 34.

A judge in vacation, upon the commencement of a suit for divorce, and before the term at which defendant is required to appear to the action, cannot render a judgment for temporary alimony upon an application made for that purpose. Prosser v. Prosser, (Iowa,) 20 N. W. Rep. 480.

An order in an action for divorce awarding the wife alimony and suit money, pendente lite, to be paid by the husband, cannot be taken by appeal or error to the supreme court before judgment or decree granting or denying a divorce. Aspinwall v. Aspinwall, (Neb.) 25 N. W. Rep. 623.

An order made for temporary alimony and expenses is interlocutory, and does not affect the merits of the case. Ross v. Griffin, (Mich.) 18 N. W. Rep. 534.

Under a statute providing for an allowance to the wife and attorney's fees to her counsel, proceedings to secure such an allowance are ancillary to the action for divorce, and a separate action cannot be maintained for either. Clark v. Burke, (Wis.) 27 N. W. Rep. 22.

Under a statute giving the court power, within its discretion, to make an allowance for counsel fees and expenses to enable a wife to prosecute an action for divorce, the court has no power, after the determination of the suit, to make such an allowance. Wagner v. Wagner, (Minn.) 26 N. W. Rep. 450.

Where, in an action for divorce by the wife, the parties, in open court, admit condonation, and ask for a dismissal of the action, in judgment of dismissal the court cannot award the wife's attorney's fees, and order the defendant to pay the same. Reynolds v. Reynolds, (Cal.) 7 Pac. Rep. 480.

A widow may not maintain an action against her husband's administrator for fees charged by her counsel for conducting her suit for divorce, pending which the husband died. McCurley v. Stockbridge, 62 Md. 422.

(9 Colo. 38)

SUPREME COURT OF COLORADO.

HIGGINS and others, Partners, etc., v. ARMSTRONG.

Filed February 26, 1886.

1. MINING PARTNERSHIP WHEN IT MAY EXIST.

When the several owners of a mine co-operate in working it, a mining partnership is thereby established.

2. SAME-RELATIONS OF LAW TO THAT OF GENERAL PARTNERSHIP-AUTHORITY OF ONE MEMBER TO BIND COPARTNERS.

The law of mining partnerships differs in some respects from that of common commercial partnerships; but, upon the point that the acts of one partner in regard to the business bind the copartners, the laws agree.

3. PRINCIPAL AND AGENT-AGENCY-Proof of.

An agency may be proved by the habits and course of dealing between the parties.

4. SAME-RESPONSIBILITY OF PRINCIPAL-PRIVATE INSTRUCTIONS.

The principal is responsible for all acts of the agent within the scope of the authority as held out to the world by the principal, although more limited private instructions may have been given, which are unknown to parties dealing with him.

5. SAME-UNAUTHORIZED ACT OF AGENT-REPUDIATION-RATIFICATION.

If an agent act outside of the strict scope of his authority in making a continuous contract for the delivery of an article, and the principal do not, within a reasonable time, repudiate it, but, on the contrary, accept the delivery from time to time, the principal is bound on the contract as made.

6. SAME-DEFENSE OF IGNORANCE OF CONTRACT.

After such acceptances of deliveries the principal, when the contract is in his own office and within reach, cannot plead ignorance of the extent of the terms of such contract.

7. SALES-MARKET VALUE-PRESUMPTION AS TO LOCAL VALUE.

Upon the subject of the market value of charcoal, the question, in a case where charcoal was only mentioned in connection with the locality where the controversy arose, may properly be presumed to have reference to the market value in that locality.

Appeal from district court, Lake county.

Markham, Patterson & Thomas, for appellants.

L. C. Rockwell, for appellee.

BECK, C. J. This is an action brought by the appellee, Armstrong, against the appellants, Higgins and others, composing a partnership or association of persons styled the "American Smelting Company," to recover damages for the alleged violation by said company of a contract to receive and pay for 75,000 bushels of charcoal. The complaint alleges that the contract was entered into and executed on the part of the company, by its agent, T. W. Robinson, who had authority to make and execute the same. It bears date March 24, 1879, and provides that Armstrong shall deliver to said company, at their smelting works in the city of Leadville, 75,000 bushels of wellburned charcoal, at the price of 17 cents per bushel, 10 per cent. of the contract price to be retained by the company until the completion of the contract. The coal was to be delivered in such manner that thero should be no less than 500 bushels on the grounds of the com