before a commissioner appointed under the authority of this territory to take acknowledgments of deeds."

The act of January, 1871, reads as follows: "Married women of the age of twenty-one years, and upward, shall have the sole and exclusive control of their separate property; and may convey and transfer lands, or any estate or interest therein vested in or held by them in their own right, and without being joined by the husband in such conveyance, as fully and perfectly as they might do if unmarried."

It will be seen that the act of 1864, the first legislation. upon this subject had in the territory, placed the wife upon precisely the same footing with unmarried women as to any contract, sale, transfer, or mortgage of her separate property. The husband had no legal interest in such property, nor need he, in any manner, be consulted as to its disposition. She was competent to make contracts concerning it by parol or in writing, in the same manner as any other person might do as to his or her separate property. Then in 1865 the law was changed, and the entire control of the property was given to the husband, guarded, however, by requiring proof of the wife's consent to any alienation; and herein arose the necessity for the provision as to an examination and acknowledgment separate and apart from her husband.

We have examined these several statutory provisions with care, and we can not adopt the construction which the counsel for the respondent applies to the act of 1871. On the contrary, we think it clear that that act was intended wholly to exempt married women of the age of twenty-one years and upwards from the operation of section 6, in the act of 1865, and to place them precisely where they stood in regard to their separate property under the law of 1864, leaving said section in full force as to married women under that age, who might well be supposed to need the security from imposition provided by the act of 1865 more than persons of more mature age.

The second point made by the respondents is not well taken. It does not appear from the complaint that the defendant, Jenny H. Fisher, was under the age of twenty-one years. If such was the fact, it might have been pleaded as matter of defense, but the failure to aver in the complaint

that she was of the age of twenty-one years is not ground for a general demurrer.

Judgment must be reversed and the cause remanded for future proceedings, and it is so ordered.

IN THE MATTER OF THE PETITION OF RICHARD WOFFENDEN FOR A WRIT OF MANDAMUS AGAINST THE BOARD OF SUPERVISORS OF PIMA COUNTY.

WRIT OF MANDAMUS WILL NOT BE GRANTED TO CONTROL ACTION of any inferior court, board, or officer, in matters wherein their acts are of a judicial character, or wherein they are called upon to exercise discretion; but where their acts are ministerial only, and they fail or refuse to perform any act required by law, and the party injured has no other speedy and adequate remedy, he is entitled to this writ.

PETITION for writ of mandamus. he opinion.

Hugh Farley, for the petitioner.

John Titus, for the respondents.

By Court, TWEED, C. J.:

The facts are stated in

In the matter of the petition of Richard Woffenden for a writ of mandamus against the board of supervisors of Pima county, all the material facts set forth in the petition are admitted by the answer of the respondents. They are substantially as follows:

At the October term of the district court held in and for the county of Pima, for the year A. D. 1874, the chief justice ordered a venire to issue for the summoning of trial jurors for the term. Of those summoned and in attendance during the term, certain jurors were excused from daily attendance for a portion of the term when their services as jurors were not required. The trial jurors were summoned to appear on the sixteenth day of November, and the jurors in whose behalf this petition is presented were in attendance upon the court as trial jurors from the sixteenth day of November until the twenty-sixth day of December, except when excused from daily attendance, as above stated. After the trial

jurors were discharged for the term, the clerk of the court refusing to include in the certificates given to jurors as to the time of attendance "the days in which such jurors had been excused by the court from actual attendance," such jurors applied to the court to have said days included in said certificate, whereupon the court ordered that the clerk issue to said jurors separate certificates for the time during which such jurors had been excused from personal attendance. The clerk delivered to said jurors the certificates contemplated by said order of the court, and the same being presented to the board of supervisors, as claims against the county, were disallowed.

Certain of said jurors have assigned their claims for such services to the petitioner, who is now the owner and holder of the same.

The writ of mandamus will not be granted to control the action of any inferior court, board, or officer, wherein their acts are of a judicial character, or in which they are called upon to exercise discretion; but when their acts are ministerial only, and they fail or refuse to perform any act required by law, and the party injured has no other speedy and adequate remedy, such party is entitled to this writ.

The admission by respondents, that the jurors named in the exhibits accompanying the petition were summoned, were in attendance, and were excused by the court for certain days during the term, is conclusive of their right to the usual compensation and of the regularity of the clerk's certificate, and leaves the board no discretion in the matter. Their duty was to audit the claims. We do not intend to say that the clerk's certificate would always be conclusive; he might purposely issue a false certificate, and in such a case the board might, as provided in sections 474-479 of the civil practice act, concerning mandamus, in their answer to the petition raise the question of fact; the court would then order the question of fact to be settled by a jury, and on the finding of a jury the court would grant or deny the writ as justice might require, it being always remembered that the writ will not be granted where the party has a plain, speedy, and adequate remedy in the ordinary course of law.

But in this case the admission by respondents of the facts set up in the petition are equivalent to an admission that

the clerk's certificate was properly issued, and left no discretion in the board to reject the claim.

Let peremptory writ issue as prayed for by petitioner.

DANIEL C. THORNE v. GEORGE W. BOWERS.

WHERE ONE AGREES WITH ANOTHER TO TAKE A CERTAIN SUM FOR HIS PROPERTY, and the latter then sells it for double that amount, and the former conveys directly to the purchaser, the one so conveying can not recover from the party with whom he made the agreement the excess over the agreed price, where there is no evidence of fraud, or that he was acting as agent in the transaction.

APPEAL from the district court of the third judicial district, Yavapai county. The opinion states the case.

John A. Rush and H. H. Cartter, for the appellant.

Hargrave and McDaniel, for the respondent.

By Court, DUNNE, C. J.:

Action begun by Thorne to recover six hundred and sixtysix dollars and sixty-six cents from Bowers. Thorne alleged that Bowers had received this sum in the sale of some mining ground in such a way that it was properly due and owing to Thorne, and had not been paid to him. Defendant denied. On the trial plaintiff gave in evidence that he and one Hogle and one Cassidy owned a mining claim together, of two hundred feet in length, on a certain quartz lode, each owning a one-third interest; that defendant Bowers and several other parties owned the adjoining claim of two hundred feet on said lode; that on a certain occasion Bowers said to plaintiff that a certain person would buy these claims, if he could get all the interests, that is, the whole two hundred feet in each claim, or four hundred feet in all, and that this person was willing to give ten dollars a foot for it, and asked plaintiff if he would take that sum; that plaintiff said he would, and ultimately joined all the other parties in a deed for the whole of said four hundred feet, and received for his interest ten dollars a foot; that he did not notice the consideration in the deed at the time

of signing it, but afterwards learned that it was four thousand dollars, which would have been an average of twenty dollars a foot, and that he subsequently learned that some of the other vendors got twenty dollars a foot; that he charged Bowers with having negotiated the sale, and having received from the purchaser twenty dollars a foot for his, plaintiff's, interest, and that he therefore had six hundred and sixty-six dollars and sixty-six cents, which properly belonged to plaintiff; that Bowers neither admitted nor denied having received twenty dollars a foot for plaintiff's ground, but said in reply to the demand for the money, “How are you going to get it?" When plaintiff closed his evidence, the court below granted a nonsuit against him, on the ground he had made no case. Plaintiff appealed.

We think the nonsuit was properly granted. It is true the evidence, though not showing the fact, might be considered as tending to show that Bowers received twenty dollars a foot for plaintiff's ground, but we do not think there is anything in the evidence which tends to show that if he had received such money it was any fraud on the plaintiff. There is nothing tending to show that Bowers acted as agent for plaintiff; or was under any obligation to pay the extra ten dollars a foot to plaintiff, even if he had received it from the purchaser.

Judgment affirmed, with costs.

A. E. DAVIS AND ALDER RANDALL v. PAUL BREON.

LAW DOES NOT IMPLY PROMISE TO PAY FOR USE OF PERSONAL PROPERTY where such use is with permission of the owner. COMPLAINT MERELY ALLEGING THAT DEFENDANT USED PERSONAL PROPERTY of the plaintiff with the latter's permission, and that such use is reasonably worth a sum claimed, does not state facts sufficient to constitute a cause of action, and a general demurrer thereto is properly sustained.

APPEAL from the district court of the third judicial district, Mohave county. Action to recover for the use of personal property. The opinion states the case.

Davis and Henning, for the appellants.