adequate remedy. When all the proceedings should be gone through with in the justice's court, and in the district court on appeal, the petitioner would be left just where he stands when he makes this application for the writ of prohibition. It would not relieve him from the stain of the charge, and yet would afford him no relief by a lawful investigation. The charge made against the petitioner is one that can be investigated by a grand jury, and if he be deemed guilty he should be indicted and punished; but, whether guilty or innocent, the law guaranties to him a legal investigation and trial, and these cannot be had in a court or before an officer acting wholly without authority of law. A party charged with an indictable criminal offense is, by the constitution, guarantied also a trial by jury. A pretended jury of six men is not a jury as known at common law, nor as contemplated by the constitution and laws of the United States. Such a jury is composed of 12 men. 3 Bl. Comm. 352; Work v. State, 2 Ohio St. 296; Wynehamer v. People, 13 N. Y. 378; State v. Everett, 14 Minn. 439, (Gil. 330;) Vaughn v. Scade, 30 Mo. 600; Bowles v. State, 5 Sneed, 360.

The prevailing doctrine now is that, although there be no jury in the inferior court, yet if by appeal a party may have a trial by jury, the constitutional guaranty of trial by jury is not violated. Dill. Mun. Corp. 367; Sedg. Const. 491, notes and cases cited. Where, however, a justice acts wholly without his jurisdiction, and there be no provision for a jury trial in his court, nor in the appellate court, the objection that there is no jury trial in the justice's court is not satisfied by the appeal. In the present case no jury is authorized in the justice's court, and none can be had in the district court, as the case would have to be dismissed in the appellate court without trial. No jury would be authorized in the district court, for the reason that no trial could be had there upon the merits. The justice having no jurisdiction to try the case, the district court could acquire none by the appeal, as we have already seen. Upon the whole case, therefore, we conclude that the justice was acting, and proceeding to further act, wholly without his jurisdiction, and that the petitioner had no plain, speedy, and adequate remedy in the ordinary course of law, and is therefore entitled to his writ of prohibition.

As the points we have considered are decisive of the case, it is unnecessary for us to examine the other questions raised by the petition.

The peremptory writ of prohibition is by the court allowed, with

costs.

POWERS, J., (concurring.) Accusations of criminal conduct are tried at the common law by jury; and, wherever this right is guarantied by the constitution without qualification or restriction, it must be understood as retained in all those cases which were triable by jury at the common law, and with all the common-law incidents to a jury

trial, so far, at least, as they can be regarded as tending to the protection of the accused. A petit jury is a body of 12 men who are sworn to try the facts of a case as they are presented in the evidence placed before them. Any less than this number of 12 would not be a common-law jury, and not such a jury as the constitution guaranties to accused parties.

In the case at bar I think that the accused was entitled to a commonlaw jury, that is, a jury of 12 men; and I agree with Judge BLATCHFORD (Dana's Case, 7 Ben. 1) that to require a defendant to be convicted by a judge, or by six men, in order to have a trial in another court upon appeal, is too much a mockery to be regarded as in any just sense a compliance with the constitutional guaranty. I do not think that the objection to the proceedings of the justice's court is removed by the fact that a man can appeal his case, and secure a jury trial in the court above. It does not seem to me to be good reason or good law to compel a man accused of crime to submit to the proceedings of an unauthorized tribunal, saying to him in the meanwhile: "Although you are being tried unlawfully, if you do not like the result you can have a trial before a higher court." I agree with counsel for the petitioner that "it is not an answer to say that a justice has jurisdiction, without the means to enforce it, by reason of not being supplied with a jury. A court cannot be said to have a jurisdiction which it cannot constitutionally exercise." Jurisdiction is the power to hear, try, and determine. A justice has no inherent power to summon a jury. He cannot summon one unless the statute authorizes the act. The statute directing a justice to summon a jury of six is a denial of his power to impanel any other number. It is in fact the exclusion of any jury, because six men are not a jury in a case where a common-law jury is required.

The writ of prohibition in the present case is asked to prevent an illegal trial of the case,-to prevent the injury resulting therefrom. An appeal after the injury sought to be prevented is committed is no remedy. For these reasons and others stated in the opinion of the court, I concur.

ZANE, C. J., dissents.

(2 Idaho [Hasb.] 239)

SUPREME COURT OF IDAHO.

BRADBURY and another v. IDAHO & OREGON LAND IMP. Co.

Filed March 8, 1886.

1. TRIAL VERDICT-SPECIAL FINDINGS.

Where there is an inconsistency between the special findings and the general verdict of a jury, the special findings control the verdict.

2. MECHANIC'S LIEN-STATUTE STRICTLY CONSTRUED.

The mechanic's lien law must be strictly construed, and cannot extend beyond the express provisions of the statute.

3. APPEAL-RECORD-EXCEPTIONS TO RULINGS ON EVIDENCE.

Exceptions to the ruling of the court upon the admission and rejection of evidence may, when properly incorporated into a statement of the case having been used upon the hearing of a motion for a new trial, be considered, on an appeal from a judgment, in the same manner as when brought up by a bill of exceptions

4. SAME-HARMLESS ERROR-ADMISSION OF EVIDENCE.

Irrelevant evidence is not sufficient ground for a reversal of a judgment when it does not prejudice the cause of the party excepting to it.

Appeal from Second judicial district, Alturas county.

F. E. Ensign, for appellant, Idaho & Oregon Land Imp. Co. Huston & Gray, for respondents, W. C. Bradbury and another.

BUCK, J. This action was brought to collect an acceptance for $6,774.49, payable in 15 days from date, which had been protested, and was unpaid. The plaintiffs claim that said acceptance was given for a balance found due on settlement from defendant to plaintiffs for digging an irrigating ditch in Alturas county, Idaho territory; and pray the foreclosure of a mechanic's lien upon said ditch. The complaint also alleges that said ditch was dug upon contract, and sets out the contract therein. The answer admits the contract and the settlement, but alleges that, without defendant's knowledge or authority, the plaintiffs dug said ditch larger than the contract specified, and that the alleged settlement was made by them without knowing of said enlargement, and was procured by plaintiffs by fraud, and deny that a larger sum than $500 was due thereon.

The case was tried by a jury, and the following special questions were submitted to the jury, and answered, to-wit:

"(1) Was the ditch constructed upon the survey made by the engineer in charge employed by the defendant corporation? Answer. Yes. (2) Did the dimensions of the ditch as laid out by the engineer in charge vary from the dimensions as stated in the written contract? A. Yes. (3) Were the changes and variations in the dimensions of the ditch made with the knowledge of Mr. Case, the vice-president and general manager of the defendant corporation, and by his direction? A. Yes. (4) Was there a settlement between the plaintiffs and defendant on the ninth day of June, 1883? A. Yes. (5) What amount was found to be due to plaintiffs from defendant upon such settlement? A. $16,774 49. (6) Did the defendant, by its general manager, R. E. Strahorn, give its acceptance to plaintiffs for the sum of $6,774.49 upor such settlement? A. Yes."

The jury found a general verdict that there was due plaintiffs $4,274.49, and 20 per cent. interest from date of acceptance. The court found several findings of fact, and the following conclusions of law:

"CONCLUSIONS OF LAW.

"(1) That the plaintiffs are entitled to a judgment for $10,107.52; (2) that plaintiffs are entitled to a decree of foreclosure of the lien set forth in their complaint; and it is so ordered."

The appeal is taken from the order overruling a motion for a new trial, and from the judgment, and is brought upon a statement of the

case.

The record assigns as error

"(1) That the first four findings of fact by the court are not sustained by any findings or special verdict of the jury; (2) that the court erred in making any finding of facts after the cause had been once submitted to a jury; (3) that the court erred in its first conclusion of law, in that it is in conflict with the general verdict of the jury, and because there is no finding of fact by the jury authorizing it; (4) that the conclusion of law that the plaintiffs were entitled to a foreclosure of the mechanic's lien is not supported by the evidence, in that the evidence does not show that it was filed of record within 30 days after the work was done, and that the notice itself shows that it was only intended as a lien upon a ditch as originally contracted for; (5) that the court erred in decreeing a foreclosure of the lien for the full amount, because the damages allowed for protest are not secured by the lien."

There are also other alleged errors which will be considered hereafter. The alleged error of rendering judgment for a different amount than specified in the general verdict seems not well taken. Section 385 of our Code provides that where special findings of fact are inconsistent with the general verdict, the former control the latter, and the court must give verdict accordingly. There is an inconsistency between the special findings of fact and the general verdict, but the judgment is in accordance with the special findings, and is valid under said section of the Code.

The alleged error that the conclusion by the court that the plaintiff was entitled to the foreclosure of his mechanic's lien was error seems not well taken, as the evidence shows the plaintiffs to have been original contractors, and entitled to 60 days in which to file. their lien.

The objection to the decree of foreclosure on the ground that the lien, if allowed, could not cover damages for protesting the acceptance, seems well taken. The lien exists only by force of the statute, and cannot exceed the express provisions thereof. Section 815 of our Code provides that the lien is for work, labor, or material done. and furnished, and section 827 allows the lien to extend to moneys paid for filing and recording the same. It cannot be extended beyond these items. 1 Jones, Mortg. § 360; Phil. Mech. Liens, § 204. In the statement of the case are several exceptions to the ruling of the court in the admission or rejection of evidence. It is maintained

by respondents that such exceptions can only be brought up on a bill of exceptions. Section 413 of the Code, subd. 3, provides that if a motion for a new trial is to be made upon a statement of the case, the moving party must prepare the statement. When the notice of motion designates errors in law occurring at the trial as the ground relied on in the motion, the particular errors relied on shall be specified therein. The Code seems to make no distinction between the errors to be brought up in a bill of exceptions and on a statement. It seems to leave it optional with the aggrieved party as to which method he will adopt. A statement of the case can only be made upon a motion for a new trial. Upon a simple appeal from the judgment no statement is authorized. A statement once made may be used on appeal from a judgment, under section 653 of the Code, and, under the authorities, it seems that a statement can be so used on an appeal from a judgment only when first used on a motion for a new trial. Hayne, New Trial, § 254. In other respects a statement and bill of exceptions are similar. People v. Crane, 60 Cal. 279; People v. Lee, 14 Cal. 510; Purdy v. Steel, 1 Idaho, 216; People v. Hunt, Id. 436. We are of the opinion that exceptions to the ruling of the court in admitting or rejecting evidence may be considered on a statement, where a statement is authorized, the same as in a bill of exceptions. Examining these alleged errors, we find that the rulings of the court sustaining objections to certain questions specified in the fifth assignment of error are in harmony with established rules of evidence. The first question is, "What conversation, if any, was had at the time of making the contract?" The written instrument itself contains the final result of their conversation, and what they said outside of it was immaterial. "(2) Did you inform plaintiff Bradbury that you had no authority to contract for a larger ditch than that specified, and that a different contract would not be ratified?" The issues made by the pleadings were, was the ditch dug and accepted? The preliminary conversations of parties would be irrelevant to these issues, and were properly rejected. The evidence admitted under objections in assignments of error Nos. 1, 2, 3, and 4 went, generally, to the progress of the enterprise, and, while apparently not relevant to the chief issue of the acceptance of the ditch as completed by the defendant, we cannot see that it in any way prejudiced defendant's case.

We think the instructions present the issues in the case fairly to the jury, and that no matter material to the appellant's cause was omitted.

Judgment affirmed as to judgment, and decree for foreclosure of lien modified by striking from the amount the penalty for protest.

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