Tholcke, Vanderhurst v. (Cal.).. Thomas v. Bowen (Or.).. Thomason v. Grace M. E. Church (Cal.).. 838 Waterhouse, Murphy v. (Cal.). 266 Washington Nat. Bank of Seattle v. Smith 768 (Wash.) 736 866 Thomason, Cooper v. (Or.). Thompson, In re (Cal.). Thompson, Linney v. (Kan. App.). 296 Waters, Flanigan v. (Kan. Sup.). 1034 Watkins v. Pierson (Kan. App.). 456 Watson v. Buckler (Or.).. 56 121 765 Thompson, Pierson v. (Kan. App.). 914 Weatherwax, Glick v. (Wash.). 153 Thorne v. Joy (Wash.). 642 Weaver v. Lock (Kan. App.). .1039 852 Weir Plow Co., Marshall v. (Kan. App.).. 621 Wellman, In re (Kan. App.).. 726 91 Wesson, Spaulding v. (Cal.). 807 Tintic Milling Co.. Salt Lake Hardware Co. v. (Utah).. 200 West Coast Plumbing Supply Co., J. L. Mott Iron Works v. (Cal.).. 683 Titus v. Mitchell (Kan. App.). 99 Western Union Tel. Co., Russell v. (Kan. Tootle v. Berkley (Kan. Sup.). Tracy, Yost v. (Utah). 77 Sup.) 598 346 Treadwell, In re (Cal.). Tribune Pub. Co., Fenstermaker v. (Utah). 1097 993 Westfall v. Powell (Kan. Sup.). Weston v. Estey (Colo. Sup.). 92 367 259 Tufts, Maxwell v. (N. M.).. Turner, Ex. parte (Cal.). Turner, Graden v. (Wash.). West Portland Park Ass'n v. Kelly (Or.).. 901 Wetmore v. C. A. Wetmore Co. (Cal.).... 679 Wetmore Co., Wetmore v. (Cal.). 679 979 Whatcom County, Anderson v. (Wash.).. 665 571 Wheeler, Osgood & Co. v. Everett Land 733 Co. (Wash.) 316 Turner, People v. (Cal.). Tyler v. Cate (Or.)... 800 Whipple_v. Henderson (Utah). 274 Tyler, Holmes v. (N. M.). .1129 White, In re (Cal.). 323 Tyler, State v. (Wash.).. 31 White . People (Colo. App.). Whitmore, Eaton v. (Kan. App.). 539 450 Umfrid v. Brookes (Wash.). 310 Whittier, Rapp v. (Cal.).. 703 Union Pac. R. Co. v. Young (Kan. Sup.). 580 Widber, Pacific Undertakers v. (Cal.).. 273 Union Park Land Co. v. Muret (Kan. Sup.) United States v. Routledge (N. M.).. United States v. Swan (N. M.)... 589 Wiggins v. Muscnp.abe Land & Water Co. 883 REHEARINGS DENIED. [Cases in which rehearings have been denied, without the rendition of a written opinion, since the publication of the original opinions in 41-44 Pac. This list does not include cases where an opinion has been filed on the denial of the rehearing.] Arment v. Yamhill County (Or.) 43 Pac. 653. Barbre v. Goodale (Or.) 43 Pac. 378. Cawston v. Sturgis (Or.) 43 Pac. 656. Pease v. Baxter (Wash.) 41 Pac. 899. Rogers v. Miller (Wash.) 42 Pac. 525. State v. La Grave (Nev.) 43 Pac. 470. Stone v. Bancroft (Cal.) 44 Pac. 1069. Willamette Real-Estate Co. v. Hendrix (Or.) 42 Pac. 514. PETITIONS FOR ORDERS. Petitions for orders to certify to the Supreme Court of Kansas for review have been refused in the following cases in the Court of Appeals: Carr v. Huffman, 41 P. 982. Chicago, K. & W. Ry. Co. v. Need, 43 P. 997. City of Concordia v. Hagaman, 41 P. 133. Dwelling House Ins. Co. v. Osborn, 40 P. 1099. Groesbeck v. Barget, 41 P. 204. Kansas Inv. Co. v. Jones, 42 P. 935. McDowell v. Miller, 42 P. 402. Missouri, K. & T. Ry. Co. v. Greenwood, 41 Morris v. Trumbo, 41 P. 974. Rouse v. Osborne, 42 P. 843. Union Pac. Ry. Co. v. McCollum, 43 P. 97. Groesbeck v. First Nat. Bank of Smith Center, United States Wind-Engine & Pump Co. v. 41 P. 205. Hentig v. Redden, 41 P. 1054. Davis, 42 P. 590. Hughes v. Durein, 44 P. 434. v.45 PAC. Watson v. Beckett, 43 P. 787. Wilson v. Willey, 42 P. 1092. (xvi)+ THE PACIFIC REPORTER. VOLUME 45. 23 Nev. 203) DONLAN v. CLARK. (No. 1,465.) (Supreme Court of Nevada. June 1, 1896.) CONVERSION BY BAILEE-BURDEN OF PROOF. 1. When a person is intrusted with the care and custody of goods, it is his duty to return them at the end of the bailment, or account for their loss, and show that it happened without legal negligence upon his part. If he fails to do either, the presumption is that he has converted them, or that they have been lost through his negligence, and he is responsible for them. 2. This is equally true whether, by the nature of the bailment, the bailee is bound to exercise ordinary care and diligence, or is liable only for gross neglect. 3. The burden of proving that they have been lost without his fault being upon him, it is not sufficient for him simply to produce evidence to that effect. He must establish the fact to the satisfaction of the court. (Syllabus by Bigelow, C. J.) Appeal from district court, Washoe county; A. E. Cheney, Judge. Action by J. H. Donlan against A. J. Clark. From a judgment for plaintiff, defendant appeals. Affirmed. In March, 1894, the plaintiff left with the defendant, an hotel keeper at Reno, Nev., a trunk full of masquerade costumes and masks, in pledge for the payment of a board bill of $17, upon the agreement that, when the money was paid, they were to be sent to him, as he might direct. The money was paid in January, 1895, and in the following October the trunk was sent to the plaintiff, at San Francisco, Cal., by express. Upon its arrival there it was found to have been broken open, a part of the goods was missing, and the others had been worn and damaged. A witness testified that in February, 1895, he saw a son of the defendant, and a companion, upon the streets of Reno, in an intoxicated condition, and dressed in masquerade costumes; and another witness, that in October, 1895, she saw a cape, identified as belonging to one of the costumes, in the possession of another woman, and that the defendant's son was present when the cape was shown to her. On the other hand, the defendant, his son, and a clerk all testified that the trunk had been kept in a trunk room in the basement of his hotel, which was kept securely locked, and that the trunk had not been opened or v.45P.no.1-1 its contents disturbed while in his possession; but the son did not deny the testimony of the woman concerning the cape, nor was any explanation offered of it, but he denied having been upon the streets in masquerade costume in February, 1895. The findings and judgment were for the plaintiff, and the defendant appeals. Robt. M. Clarke and T. V. Julien, for appellant. James F. Dennis, Edmund R. Dodge, and Charles A. Jones, for respondent. BIGELOW, C. J. (after stating the facts). When a bailee, either for hire or gratuitous, is intrusted with the care and custody of goods, it is his duty to return them at the end of the bailment, or account for their loss, and show that it happened without legal negligence upon his part. If he fails to do either, the presumption is that they have been converted by him, or lost through his negligence, and he is responsible for them. Beardslee v. Richardson, 11 Wend. 25; Logan v. Mathews, 6 Pa. St. 417; Wiser v. Chesley, 53 Mo. 547; Cumins v. Wood, 44 Ill. 416; Murray v. Clarke, 2 Daly, 102; Arent v. Squire, 1 Daly, 347. We regard these principles as conclusive of the defendant's liability in the case. The court found, upon sufficient evidence, that he received the goods in good order, that he failed to return a part of them, and returned the balance in a damaged condition. He failed to account for this state of affairs. His defense consisted of a denial that any of the goods had been lost or damaged while in his possession, and his evidence, if true, showed that such could not have been the case; but, unfortunately for him, there was evidence to the contrary, and the court found the fact against him. The very fact that they were so taken and used is, under the circumstances, strong evidence that it was either done with the defendant's consent, or through gross negligence upon his part. Boies v. Railroad Co., 37 Conn. 272. This finding makes that one of the settled facts in the case, and leaves him in the predicament of a bailee in whose custody goods have been lost or damaged, and for which he has wholly failed to account. This, at least, threw upon him the burden of proving that they had not been lost or damaged through any fault of his, and this means more than that he must produce evidence to that effect. He must establish it to the satisfaction of the court, and, if he does not, where there is a conflict in the evidence, the case stands the same as though no evidence to that effect had been offered. Had he been able to establish that the goods had been stolen, or used without his connivance or negligence, this would have constituted a complete defense for him, even though the wrongful act had been perpetrated by a servant of some one in his employ. Jones, Pledges, § 403; Story, Bailm. §§ 88, 338. But no explanation whatever left him responsible for the loss, and, as already stated, this is equally true whether, after payment of the debt, he was bound to exercise ordinary care and diligence, or was liable only for gross neglect. We are of the opinion that there was some substantial evidence to support the finding that the damage was done while the goods were in the defendant's possession, and not while in charge of the express company. The judgment is affirmed. BELKNAP and BONNIFIELD, JJ., concur. (4 Idaho, 788) THEISS et al. v. HUNTER, Treasurer. (Supreme Court of Idaho. May 25, 1896.) CITIES INDEBTEDNESS-PAYMENT. Under section 3, art. 8, Const. Idaho, and sections 82 and 86 of "An act concerning cities and villages" (Laws 2d Sess. 1893, p. 124), a city indebtedness incurred during one fiscal year cannot be paid from the income or revenue of a future fiscal year, unless a fund is especially provided for that purpose, and collected therefor in such future year. (Syllabus by the Court.) Appeal from district court, Latah county; W. G. Piper, Judge. This is an application by Charles Theiss and others for a writ of mandate to compel the city treasurer of the city of Moscow to pay warrants issued in 1892 and 1894, out of funds raised to pay expenses and liabilities of said city for the fiscal year ending first Tuesday of May, 1896. Judgment of the lower court refusing said writ, and petitioners appeal. Affirmed. Forney, Smith & Moore, for appellants. G. G. Pickett, for respondent. SULLIVAN, J. This suit was brought for a writ of mandate to compel the treasurer of the city of Moscow, Latah county, to pay two certain city warrants,-one issued August 5, 1892, and drawn on the general fund; and the other on the 6th day of August, 1894, and drawn on the waterworks fund of said city. This case was submitted to the court on an agreed statement of facts. The writ of mandate was denied, and a judgment of dismissal entered. This appeal is from the order denying the said writ, and from the judgment of dismissal. Both the order and judgment are assigned as error. son. The validity of said warrants is not questioned. It is admitted that the one first mentioned was presented for payment on the 5th day of August, 1892, and not paid, for want of funds; and that the other was presented for payment on the 1st day of September, 1894, and not paid for the same reaIt is also admitted or stipulated that the council of said city, on the 5th day of August, 1895, duly passed an ordinance making appropriations for the payment of the salaries of city officers, for lighting the city, for the fire department, for street improvement, for running waterworks, including engineer's salary, and for general miscellaneous expenses for the fiscal year ending the first Tuesday of May, 1896, and for the payment of interest for one year on the bonded indebtedness of said city, and to provide a sinking fund to pay said bonded indebtedness, and to pay cemetery and contingent expenses. A tax of 10 mills on the dollar was duly levied on all of the taxable property within said city, under and by virtue of said ordinance, and collected; and appellants demand the payment of said warrants out of the fund thus created. The treasurer refused to pay said warrants, on the ground that said funds were only applicable to pay warrants drawn thereon since the first Tuesday in May, 1895, and during the fiscal year ending on the first Tuesday in May, 1896. Under that state of facts, the court is asked to answer the following questions: (1) "Are the moneys of a municipal corporation. as shown herein, by the pleadings herein, collected for the fiscal year of 1895, properly applicable to the payment of indebtedness incurred by the city for the year 1892?” (2) The second question is the same as the first, except it is stated that the indebtedness was incurred by the city for the year 1894. We answer both of the queries in the negative. Section 3 of article 8 of the constitution of the state of Idaho provides as follows: "No county, city, town, township, board of education, or school district, or other sub-division of the state, shall incur any indebtedness or liability in any manner or for any purpose, exceeding in that year the income or revenue provided for it for such year, without the assent of two-thirds of the qualified electors thereof, voting at an election to be held for that purpose, nor unless before or at the time of incurring such indebtedness provision shall be made for the collection of an annual tax sufficient to pay the interest on such indebtedness as it falls due, and also to constitute a sinking fund for the payment of the principal thereof within twenty years from the time of contracting the same. Any indebtedness or liability incurred contrary to this provision shall be void: provided that this section shall not be construed to apply to the ordinary and necessary expenses authorized by the |